Olu A. Rhodes, Petitioner-Appellant,
Michael A. Dittmann, Respondent-Appellee.
January 18, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 13-CV-683 - Pamela Pepper, Judge.
Sykes and Hamilton, Circuit Judges and Lee, District Judge
Hamilton, Circuit Judge.
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).
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
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).
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.
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.
Factual & Procedural Background
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
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.
Nari Rhodes's Testimony
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."
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.
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.
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
Q: Well, did they become angry? Either of them?
Q: They just took it calmly?
Q: That their sister had just been beaten?
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."
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
Q: You did tell us ... on direct examination that there had
been domestic violence or violence between yourself and Davis
Q: Before that date?
Q: In fact, Mr. Davis had attacked you previous to April 3,
2006; is that right?
Q: And you -On direct examination you said something to the
effect that there had been a lot of that; is that right?
* * *
Q: [I]n your conflict with Mr. Davis, have there been other
times when you've been injured?
Q: And what injuries had you received?
A: One side-My orbital bone in my eye was broken and it was