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Rhodes v. Dittmann

United States Court of Appeals, Seventh Circuit

September 10, 2018

Olu A. Rhodes, Petitioner-Appellant,
v.
Michael A. Dittmann, Respondent-Appellee.

          Argued January 18, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CV-683 - Pamela Pepper, Judge.

          Before Sykes and Hamilton, Circuit Judges and Lee, District Judge [*]

          Hamilton, Circuit Judge.

         Petitioner-appellant Olu Rhodes seeks a writ of habeas corpus, arguing that his Sixth Amendment right to confront witnesses against him was violated. Rhodes was convicted of first-degree intentional homicide and first-degree recklessly endangering safety for shooting two victims and killing one: Robert Davis. The State's theory at trial was that Rhodes and his brother shot Davis, who was an ex-boyfriend of their sister, Nari Rhodes (and that the surviving shooting victim was at the wrong place at the wrong time).

         Nari had suffered a severe beating the day before Davis was murdered. She was the only connection between Rhodes and the victims. The State called her as a witness. Her direct testimony focused heavily on her injuries from the beating the day before. But when Rhodes tried to cross-examine Nari to rebut the State's motive theory, the judge limited the questioning on this central issue. In essence, the trial court shut down the defense's cross-examination to rebut the prosecution's central theory. Rhodes argues that this violated his rights under the Confrontation Clause of the Sixth Amendment.

         The Wisconsin Court of Appeals reversed Rhodes's conviction, finding that his Confrontation Clause rights were violated and that the violation was not harmless. State v. Rhodes, 329 Wis.2d 268 (Wis. App. 2010). A divided Wisconsin Supreme Court reversed that decision, finding no Confrontation Clause violation and reinstating the conviction. State v. Rhodes, 336 Wis.2d 64, 799 N.W.2d 850 (Wis. 2011). Rhodes then sought a writ of habeas corpus in federal court, arguing that the Wisconsin Supreme Court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The district court agreed that Rhodes had indeed shown a clear Confrontation Clause violation but found that the violation was harmless. Rhodes v. Meisner, 2017 WL 2345671, at *1 (E.D. Wis. May 30, 2017).

         We agree with the district court that the state courts violated clearly established federal law in violating Rhodes's Confrontation Clause rights. Like the other courts that have reviewed this trial, we recognize that trial judges have considerable discretion in managing trials and deciding the boundaries of cross-examination, even by the accused in a criminal case. The reasoning of the state trial court and the Wisconsin Supreme Court looks, superficially, like reasoning that receives considerable deference in that area. If the defense had been the party trying to open up the history of domestic violence between Nari and the murder victim, perhaps the trial court's limits might have seemed within bounds of a trial court's discretion.

         What happened here was very different, though, as the state appellate court and federal district court explained. The prosecution itself first opened up that history of domestic violence. But the prosecution then convinced the trial court that Rhodes's rebuttal evidence would "confuse" the jury on the subject. As a result, the defense did not have a fair opportunity to rebut the prosecution's central theory about why Rhodes would have murdered the victim. As we explain below, in affirming Rhodes's convictions, the state supreme court applied the wrong standard under federal law, and its rationale was not just wrong but unreasonably so. Even under the deferential standard of § 2254(d)(1), Rhodes has shown clear constitutional error. And we must disagree with our colleague on the district court, and agree with the state appellate court, on the issue of harmless error. Given the importance of the motive issue and the overall balance of evidence in the trial, the constitutional error was not harmless. Rhodes is entitled to a new trial.

         I. Factual & Procedural Background

         On April 4, 2006, two men shot Robert Davis and Jonte Watt as they were standing on Watt's grandparents' porch. Davis was shot several times and died at the scene. Watt fled and suffered one gunshot to his leg. The police investigation identified Rhodes and his brother, Jelani Saleem, as the shooters.

         Rhodes and Saleem were tried together. The State's theory of the motive for the murder was that on April 4, Rhodes and Saleem shot Davis as retribution for the attack on their sister Nari the day before. The prosecutor presented the motive theory from the start, telling jurors in opening statements that they would hear about Nari's injuries and how both defendants "hunted Robert Davis down and shot him dead" in retaliation. Rhodes's and Saleem's defense was that they were not involved in the shooting and that the two eyewitnesses who identified them were unreliable. Rebutting the State's motive theory was central to the defense.

         A. Nari Rhodes's Testimony

         Nari Rhodes's testimony featured prominently in the prosecution case. The State called Nari as a witness and questioned her about what happened on April 3, the day before the shooting. Nari testified that she and Davis got into an argument that morning. Davis stole her wallet and telephone and punched her car window so hard that he broke it. Davis was the father of Nari's child, and at some point, the State asked Nari what her relationship was with Davis at the time of the shooting. Nari responded that they "had had a lot of domestic violence problems/' had not been romantically involved for a year, and "had just been working on being friends."

         The afternoon of April 3 took an even more violent turn, which was the focus of the State's direct examination and its motive theory. Nari testified that she drove past Davis's girlfriend's house that afternoon and saw Davis, and that he waved her down. She pulled over, thinking he was going to return her telephone and wallet. Instead, Davis's girlfriend, Nancy Segura, approached, and Nari and Segura argued. According to Nari's trial testimony, Davis walked away once the women began arguing. Nari wanted to get out of the car and fight Segura, but before she could, another woman attacked Nari from the passenger side of the car. Segura and the other woman pulled Nari out of the car by her feet. Nari's head hit the concrete and she lost consciousness.

         The State questioned Nari about her injuries. Nari testified that she received treatment at a hospital. She had a cut near her eye, a cut on her lip, four displaced teeth, and "a lot of skin missing from the right side" of her face. The State introduced four photographs of Nari's injuries and showed them to the jury. This evidence did not concern the fatal shooting that was being tried, but it was detailed and full-color evidence of a separate assault to support the State's motive theory.

         The State tried twice to get Nari herself to endorse the motive theory on direct examination. She was not as cooperative as the State hoped. She testified that she saw her brothers, Rhodes and Saleem, when she got home from the hospital on April 3. She testified that she told them that the two women, not Davis, were responsible for the beating. She also testified that her brothers were not angry at Davis. Apparently skeptical, the prosecution asked follow-up questions:

Q: Well, did they become angry? Either of them?
A: No.
Q: They just took it calmly?
A: Yes.
Q: That their sister had just been beaten?
A: Yes.

         After introducing the photographs of Nari's injuries, the State asked Nari again: "And your testimony earlier is that this had no effect on your brothers?" She answered that her brothers were mad only at her-for putting herself "in the predicament to be beaten."

         On cross-examination, the defense tried to respond to the State's motive theory. The defense asked Nari about an earlier time when Davis himself had beaten her. Rhodes's attorney asked the following questions before the State objected:

Q: You did tell us ... on direct examination that there had been domestic violence or violence between yourself and Davis before, right?
A: Yes.
Q: Before that date?
A: Yes.
Q: In fact, Mr. Davis had attacked you previous to April 3, 2006; is that right?
A: Yes.
Q: And you -On direct examination you said something to the effect that there had been a lot of that; is that right?
A: Yes.
* * *
Q: [I]n your conflict with Mr. Davis, have there been other times when you've been injured?
A: Yes.
Q: And what injuries had you received?
A: One side-My orbital bone in my eye was broken and it was ...

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