Lee v. Kolb, 88-C-504.
Decision Date | 17 January 1989 |
Docket Number | No. 88-C-504.,88-C-504. |
Parties | Tony Hanif LEE, Plaintiff, v. Darrell KOLB, Defendant. |
Court | U.S. District Court — Eastern District of Wisconsin |
Tony Hanif Lee, pro se.
Donald J. Hanaway, Atty. Gen. by Sharon Ruhly, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendant.
DECISION AND ORDER
Tony Lee's petition for a writ of habeas corpus brings to mind the cartoon of the two ladies in the jury box; one turns to the other and says, "You can be sure that won't be stricken from my record."
No citations of authority need be cited for the premise that one of a trial judge's responsibilities is to protect the jury from itself. The question in this case is whether the state trial judge adequately insulated Mr. Lee from the devastating impact on the jury of certain highly incriminating hearsay statements.
The prosecution offered the incriminating statements, not for their inherent truth, but to show the defendant's conduct in response thereto. The trial judge instructed the jury to regard the statements only for that limited purpose. The Wisconsin court of appeals reviewed the matter and found no error. The Wisconsin supreme court denied further appeal. Facially, the game was played according to the rules, but in my opinion a realistic appraisal establishes that the defendant's rights under the confrontation clause were acutely violated and that he was denied a fair trial. The issues are of law, and therefore the presumption of correctness afforded the state court's finding under 28 U.S.C. § 2254(d) is not controlling.
Mr. Lee was convicted of first degree murder, party to a crime, for the 1985 killing of Booker Sparks. When Mr. Lee was arrested, he denied involvement in the murder. Later, that same day, Donald Williams was taken into custody and gave a statement, which was recorded, in which he said that he saw Mr. Lee commit the murder. The next day, the prosecutor, Mr. Cook, interviewed the petitioner. He told him of the Williams accusation and played the tape for Mr. Lee which had been made of the Williams statement. The interviews between Mr. Cook and Mr. Lee were also recorded. Mr. Cook made frequent references to the accusation of Mr. Lee by Donald Williams, and in response, Mr. Lee admitted that he was present at the time of the shooting but denied shooting Booker Sparks. Indeed, Mr. Lee then claimed that it was Donald Williams who shot Mr. Sparks.
At trial, the prosecution played before the jury the tape recordings of the interviews of Mr. Lee. The unedited tapes contained Mr. Cook's narration of Mr. Williams' accusations against Mr. Lee. No effort was made to establish Mr. Williams' unavailability or the reliability of the out of court statements.
Prior to the admission of the tapes, the following colloquy occurred:
The jury was then called in and the prosecution proceeded to play the unedited tapes. During the first tape that was played for the jury, the prosecutor, Mr. Cook, stated:
The tape being played for the jury then indicated that the recording was being stopped while Mr. Cook played another tape for Mr. Lee of Mr. Williams making his accusations. At that point, the defense counsel, Mr. Burke renewed his objection. The trial judge, then gave the following instruction to the jury:
The foregoing constituted the only curative instruction given by the trial judge regarding the tapes played for the jury and the narrated out of court statements by Mr. Williams.
After the instruction, Mr. Cook continued playing the rest of the tapes for the jury. During the remainder of the tapes, Mr. Cook repeated Mr. Williams' accusations six more times. On several occasions, Mr. Cook made comments in the presence of the jury which tended to treat the accusations of Mr. Williams as truthful. When asked by Mr. Lee why Mr. Williams would make such an accusation, Mr. Cook responded: While responding to an allegation by Mr. Lee that Mr. Williams must have been tricked into making the accusation, Mr. Cook stated: (Tr. p. 74). The prosecutor also embroidered the accusation of Mr. Williams with certain factual matters which the defendant had admitted. No distinction was made as to facts proved and the hearsay accusation:
MR. COOK: And you ended up with some .38 caliber spent bullets or casings in your pocket, your pants' pocket, and your jacket pocket. And it's clear that Donald Williams said that he saw you out there shooting. And it's clear that there is some tracks that led from your house over to where the body is and back to your house.... (Tr. p. 40)
During closing arguments, in the absence of a limiting instruction by the judge prior to charging the jury, the prosecutor made a final reference to the out of court accusation:
But, then a few moments later, Mr. Cook, bolstered the credibility of the truth of the matter asserted in the accusation when he added: "... (Tr. Closing Argument, p. 44) Finally referring to the "nonhearsay purpose" of showing the effect of the accusation on the accused, Mr. Cook told the jury: "You knew this man Mr. Lee was going to lie sooner or later when confronted with evidence that shows that he's responsible for this offense." (Tr....
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Lee v. Kolb, 88-C-504.
...first degree murder, party to a crime, was obtained in violation of his sixth amendment right to confrontation of witnesses against him, 707 F.Supp. 394. The issuance of the writ was stayed for a period of seventy days so as to enable the state to commence a retrial; if a retrial is commenc......