Brecht v. Abrahamson
| Decision Date | 14 March 1991 |
| Docket Number | No. 90-C-603-C.,90-C-603-C. |
| Citation | 759 F. Supp. 500 |
| Parties | Todd A. BRECHT, Petitioner, v. Gordon A. ABRAHAMSON, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
Stan Thomas, Stevens Point, Wis., for petitioner.
Jeffrey M. Gabrysiak, Asst. Atty. Gen., Madison, Wis., for respondent.
This is a petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Dodge Correctional Institution in Waupun, Wisconsin, contends that he is in custody in violation of the Constitution of the United States. Petitioner seeks relief on three separate grounds: 1) that the state's use of his pretrial silence infringed on his Fifth and Fourteenth Amendment rights; 2) that certain rulings by the state court involving evidence of his homosexuality and rebuttal evidence of a prior worthless check conviction violated his due process rights; and 3) that the trial court's reliance on an ex parte trial brief violated his due process rights. Petitioner has exhausted his state remedies as required under 28 U.S.C. § 2254.
After reviewing the entire record, I conclude that references to petitioner's post-Miranda silence on cross-examination and in closing argument violated his due process rights and did not constitute harmless error. However, the state's references to petitioner's pre-Miranda silence did not infringe on his constitutional rights. Also, I conclude that the state court erred in admitting evidence about petitioner's homosexuality and in ruling that testimony on a prior worthless check conviction would be admissible to rebut testimony on petitioner's non-violent character. Taken together, these evidentiary rulings are sufficiently prejudicial to violate petitioner's rights to a fundamentally fair trial. Finally, I conclude that petitioner's claim regarding the state's ex parte trial brief has no merit in light of petitioner's consent to the use of ex parte briefs and the absence of improper material in the brief.
In habeas corpus actions, state court findings of fact are presumed correct unless upon consideration of the record as a whole, the federal court concludes that factual determinations are not "fairly supported" by the record. 28 U.S.C. § 2254(d)(8); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1019 (7th Cir.1987). Petitioner does not object to the accuracy or completeness of the state court findings. Therefore, I adopt the following facts paraphrased from the Wisconsin supreme court's decision in State v. Brecht, 143 Wis.2d 297, 421 N.W.2d 96 (1988), and the Wisconsin Court of Appeals' decision in State v. Brecht, 138 Wis.2d 158, 405 N.W.2d 718 (Ct.App.1987), supplemented by pertinent facts from the record.
On October 17, 1985, petitioner shot and wounded his brother-in-law, Roger Hartman, who was the district attorney for Buffalo County, Wisconsin. Hartman died several weeks later. At his trial, petitioner testified that the shooting was accidental. However, the jury found him guilty of first degree murder.
Evidence at the trial disclosed the following: on October 12, 1985, Molly and Roger Hartman went to the Georgia State prison to secure the release of petitioner, who is Molly Hartman's younger brother. Petitioner's release from prison and placement on probation were conditioned on payment of $3,750 in restitution. The Hartmans paid his restitution and obtained his release and the transfer of his probation to Wisconsin.
The Hartmans brought petitioner to their home in Alma, Wisconsin, where he was to stay until an opening became available in an Eau Claire halfway house. The Hartmans told petitioner that while he lived in their home he was to refrain from drinking and from homosexual activity in the Alma area.
Petitioner testified that on the day of the shooting he had been drinking and playing with a gun that belonged to Roger Hartman while Hartman was at work and Molly Hartman was out shopping. Petitioner had been using the gun to shoot at tin cans in the Hartman's yard, when he saw Roger Hartman pull into the driveway. Because he did not want Hartman to see him with the gun, petitioner ran into the rear garage and entered a downstairs hallway. Petitioner explained that he intended to replace the gun in the upstairs room where he had found it.
Petitioner testified that he had stopped to listen for Hartman, heard nothing, and started running for the stairs to the upper level of the house when he tripped and the gun discharged. A bullet struck Hartman in the back.
Petitioner yelled to Hartman and looked for him but Hartman had disappeared. Petitioner then took Molly Hartman's car and drove around the area looking for Hartman. When petitioner saw Hartman at the door of a neighbor's house, petitioner drove off in the car. The Hartman car was observed traveling at a faster than normal speed away from Alma and toward Fountain City.
Neighbors of the Hartmans testified that Roger Hartman came to their door seeking help and told them that petitioner had shot him. Police officers who had surveyed the Hartman residence after the shooting testified that they had found beer cans in the house, and a liquor bottle and a soda can with a bullet hole in it and a spent .22 casing in the backyard. Experts from the State Crime Laboratory testified that petitioner's fingerprints were on an ammunition box and on a brandy bottle found in the Hartman home. There was additional testimony that the doorway area leading into the hall from the garage was covered with tightly stretched carpet and that nothing was observed on which one could trip.
Meanwhile, petitioner had driven the Hartman car into a ditch near Fountain City, rendering the car inoperable. Officer Zeller arrived and offered petitioner assistance with the car, but petitioner told Zeller that his sister would call a wrecker for him. Petitioner then caught a ride from a stranger, Melvin Schlesselman, to the nearest town, Winona, Minnesota. He did not mention the shooting incident to either Zeller or Schlesselman.
In Winona, petitioner was stopped by the police in a shopping center. When his identity was ascertained, he was arrested for the shooting of Hartman in Wisconsin. Petitioner told Officer Papke, one of the arresting officers, that it was a mistake and that he wanted to talk with "somebody that would understand him." Neither petitioner's testimony nor that of the police officer indicates that petitioner explained the shooting incident upon arrest.
The record is unclear when petitioner received his Miranda warnings. The state submitted testimony by two of the five officers involved in the arrest, who testified that petitioner was not given his Miranda warnings in their presence. However, the record does reflect that petitioner received his Miranda warnings at his initial appearance.
On November 11, 1985, Roger Hartman died. A coroner testified that the bullet wound was a substantial factor in producing his death. He also testified that the bullet entered Hartman's back and exited his chest, traveling on a basically horizontal to slightly downward trajectory.
At trial, the state questioned Zeller, Schlesselman and Papke during its case-in-chief about petitioner's failure to mention Hartman's condition and the accidental nature of the shooting. Additionally, the state attempted to impeach petitioner's credibility directly by cross-examining him on his pre-trial silence concerning the shooting and by making reference in closing argument to his silence.
The first reference to petitioner's silence was elicited from officer Zeller, the officer who spoke to petitioner when his car was in the ditch.
Schlesselman testified on direct examination by the state:
On cross-examination of Papke, one of the officers who apprehended petitioner in Winona, petitioner's counsel elicited the following:
In response, the state conducted redirect examination of Papke.
The state elicited testimony from Deputy Bratner during its case-in-chief.
On cross-examination, the state engaged petitioner in the following exchange:
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