Brecht v. Abrahamson, 91-1835

• Decision Date: 20 November 1991
• Docket Number: No. 91-1835,91-1835
• Parties: Todd A. BRECHT, Petitioner-Appellee, v. Gordon A. ABRAHAMSON, Superintendent, Dodge Correctional Institution, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1363

944 F.2d 1363

60 USLW 2240

Todd A. BRECHT, Petitioner-Appellee, v. Gordon A. ABRAHAMSON, Superintendent, Dodge Correctional

Institution, Respondent-Appellant.

No. 91-1835.

United States Court of Appeals, Seventh Circuit.

Argued July 10, 1991.

Decided Sept. 26, 1991.

Rehearing and Rehearing En Banc

Denied Nov. 20, 1991.

Allen E. Shoenberger, Michael A. Moynihan (argued), Chicago, Ill., for petitioner-appellee.

Jeffrey M. Gabrysiak (argued), Office of Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellant.

Before CUDAHY and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Todd A. Brecht was serving time in Georgia for felony theft when his sister Molly Hartman paid the restitution for Brecht's crime and took temporary custody of him while he awaited an opening in a halfway house. This created a sticky situation because Molly's husband Roger was the district attorney for Buffalo County, Wisconsin. There cannot be many public prosecutors who want to have a felon about the house. The awkwardness of putting up the black sheep of the family was augmented by the fact that Brecht, a heavy drinker, is also homosexual, which Roger disapproved. The Hartmans explained to Brecht, when they picked him up at the prison gate on October 10, 1985, that there was to be no drinking or homosexual activity so long as he remained at their home. They reiterated that theme at least twice more before October 17, when Brecht shot and killed Roger Hartman. Wisconsin convicted Brecht of murder and sentenced him to life imprisonment. A district court has ordered him released. 759 F.Supp. 500 (W.D.Wis.1991). Whether the writ of habeas corpus should issue depends on the standard of harmless error employed on collateral review.

I

While Roger Hartman was at work on October 17 and Molly Hartman was shopping, Brecht raided the Hartmans' liquor cabinet for beer and brandy, and their gun cabinet for a rifle. Out in the back yard, Brecht opened fire on some cans. When Roger returned, Brecht shot him in the back and fled in Molly's car. Roger crawled up the hill to a neighbor's house to summon help (the phone on the ground floor of the Hartman home was inoperable, Brecht having taken a receiver off the hook upstairs). Help came, but the injury was too serious; Roger died on November 11. Roger named his assassin to the neighbor and an officer who arrived with the medics. Brecht's initial flight ended after he drove the car into a ditch. When a police officer stopped to inquire, Brecht asserted that Molly Hartman knew about the wreck and had called a tow truck. That lie was coupled with silence about the shooting. Brecht hitched a ride to Winona, Minnesota, where the police nabbed him in a shopping center. Brecht first lied about his identity and when that did not work asked to talk with "somebody that would understand me." He said nothing else.

Come the trial, Brecht admitted shooting Roger Hartman but contended that the rifle discharged by accident. According to Brecht, Roger's return caught him by surprise; he did not want Roger to see him with a gun and raced to take the rifle upstairs before Roger entered the house. He tripped as he was heading toward the stairs, Brecht testified, and the gun went off as he fell. He tried to find Roger to offer aid, Brecht maintained, but Roger had left the house. Only after seeing Roger at the neighbor's door did Brecht drive away in panic, according to his tale.

It is unlikely, but not impossible, that someone would run with his finger on the trigger of a cocked bolt-action rifle. The state thought the path of the bullet dispositive. The coroner testified that the bullet entered Roger Hartman's upper body on a horizontal to slightly downward trajectory, inconsistent with a claim that the weapon discharged as its bearer was falling. The rifle was found on the patio near the pool (where Roger was shot), not inside near the stairs; a live round was jammed in the chamber (from which a jury could have inferred that Brecht tried to fire another shot). In further response to the defense of accident, the prosecutor pointed to (a) Brecht's failure to summon aid for Roger; (b) his flight; (c) his lies to the police; (d) his failure to say to anyone, at any time before trial, that the shooting was accidental; and (e) his homosexuality. The first four were offered to impeach Brecht's testimony, and the fifth to establish a motive--hostility to Roger, reciprocating Roger's hostility to Brecht's sexual preference and the ban on its practice in the Hartmans' home. The prosecutor also obtained a ruling from the trial court that if Brecht called his probation officer in Wisconsin to testify that Brecht lacks a violent disposition, the state could offer into evidence Brecht's conviction for passing worthless checks. Brecht elected not to call the probation officer.

The Court of Appeals of Wisconsin reversed Brecht's conviction. State v. Brecht, 138 Wis.2d 158, 405 N.W.2d 718 (1987). It gave three reasons: first, that the prosecutor's use of Brecht's silence violated both the self-incrimination clauses of the state and federal Constitutions and the due process clause of the federal Constitution; second, that the references to Brecht's homosexuality were unduly prejudicial because the prosecutor was not able to show that Roger Hartman communicated antipathy explicitly to Brecht; third, that the court's ruling on the motion in limine was wrong because worthless checks do not establish a propensity for violence. The court concluded that these errors were not harmless.

The Supreme Court of Wisconsin reversed in turn, unanimously reinstating the conviction. 143 Wis.2d 297, 421 N.W.2d 96 (1988). Relying on State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77 (1988), the court rebuffed all claims under the self-incrimination clause of the state constitution, just as Jenkins v. Anderson, 447 U.S. 231, 235-39, 100 S.Ct. 2124, 2127-30, 65 L.Ed.2d 86 (1980), had held that use of silence to impeach a testifying defendant does not violate the self-incrimination clause of the federal Bill of Rights. Turning to the due process inquiry, the court observed that prosecutors may use as impeachment silence preceding the delivery of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). Nothing in the record implies that Brecht was told, until his arraignment, that he had a right to remain silent. It follows from Jenkins and Fletcher, the court held, that the prosecutor could impeach Brecht's testimony at trial by observing that he did not tell anyone before his arraignment the story he told on the stand at trial. Silence at and after the arraignment was another matter under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the court thought, because advice that you have a right to be silent implies that silence may not be used against you. Twice the prosecutor asked Brecht whether he told anyone at any time before trial that the shooting was accidental; twice the prosecutor remarked in closing argument that Brecht told no one; these four references, the court thought, invited the jury to draw an adverse inference from post-arraignment silence and thus violated the rule established in Doyle.

This did not avail Brecht, however, because the court deemed four references in a four-day trial to be peripheral; the error, the court held, was harmless beyond a reasonable doubt. Error in the ruling on the motion in limine the court put into the same category. As for the evidence of Brecht's homosexuality: the court held this no error at all. Although Molly Hartman testified that her husband had not "openly express[ed]" his disapproval of homosexuality to Brecht, and that there had been no set-to, she also testified that her husband "didn't want a brother-in-law who was a homosexual." (The district court's opinion reproduces this part of her testimony, 759 F.Supp. at 505.) The Supreme Court of Wisconsin concluded that Roger Hartman's "disapproval was conveyed to Brecht by the restrictions Hartman and his wife imposed on Brecht while he lived in their home. These restrictions included that Brecht was to refrain from homosexual conduct and from inviting homosexual friends to the Hartman home. Thus, it is not unreasonable to infer that Brecht's homosexuality, which prompted restrictions on his lifestyle, could furnish a motive for the shooting." 143 Wis.2d at 321, 421 N.W.2d at 105.

The district court continued this game of Ping-Pong by issuing a writ of habeas corpus. Chief Judge Crabb agreed with the Court of Appeals of Wisconsin on all issues: she concluded that the comments on Brecht's silence violated the due process clause, that the evidentiary rulings were erroneous, and that none of the errors is harmless beyond a reasonable doubt. We summarize only her grounds of disagreement with the Supreme Court of Wisconsin.

Concerning evidence of homosexuality, the district judge wrote: "Discussing a person's sexual preference and setting restrictions on that person's behavior while staying in one's home are not equivalent to communicating disapproval or condemnation to that person." 759 F.Supp. at 509. The references to Brecht's homosexuality therefore were irrelevant, and, given the subject matter, prejudicial.

Disagreement on whether the references to post-arraignment silence were harmless was driven largely by the different questions the courts asked. The Supreme Court of Wisconsin asked whether these four references added substantial force to the many proper references to pre-arraignment silence and the lies Brecht told to the police; it concluded that the incremental effect was small. The district court, by contrast, asked whether the evidence against Brecht was irrefutable, stating that "the Court of Appeals for the Seventh Circuit...