Davis v. Israel
| Decision Date | 19 July 1978 |
| Docket Number | Civ. A. No. 75-C-462. |
| Citation | 453 F. Supp. 1316 |
| Parties | Wilbur Eugene DAVIS, Petitioner, v. Thomas R. ISRAEL, Warden, Wisconsin State Prison, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Stephen M. Glynn, Milwaukee, Wis., for petitioner.
William L. Gansner, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION AND ORDER
Wilbur Eugene Davis has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is presently in the custody of the respondent warden serving a term of life imprisonment imposed upon him on October 2, 1973, by the Circuit Court of Milwaukee County, the Honorable Jerold E. Murphy presiding, following conviction of the petitioner for the crime of first degree murder. Petitioner has exhausted his state remedies through an appeal to the Wisconsin Supreme Court. See State v. Davis, 66 Wis.2d 636, 225 N.W.2d 505 (1975). The two constitutional issues presently before the Court are petitioner's claim that the admission of his trousers into evidence constituted a violation of his Fifth Amendment right against self-incrimination, and petitioner's claim that the trial court's denial of a continuance after the key state witness, an 8-year-old child and the daughter of the victim, changed her testimony deprived the petitioner of due process of law and effective assistance of counsel in violation of petitioner's Sixth and Fourteenth Amendment rights.1 The Court has reviewed the relevant portions of the state court record, including portions of the transcripts of the pretrial proceedings and of the trial, and the decision on the post-trial motions in the Circuit Court of Milwaukee County, and has had the benefit of extensive briefs and oral argument of counsel on these issues, as well as amicus curiae briefs submitted by Frank J. Remington, Professor of Law at the University of Wisconsin Law School, Madison, Wisconsin. For the reasons stated hereafter, the Court concludes that the petition must be granted.
On April 6, 1972, Wilbur Eugene Davis was arrested and charged with first degree murder in violation of Wis.Stat. § 940.01. The victim of the killing was Allean Mosley, whose daughter Robin was six years old at the time of the alleged murder, and eight years old at the time of the trial. Robin became the principal state's witness, and she testified that she and her mother were home watching television in a bedroom on the night of April 5, 1972, and that sometime during the evening the doorbell rang and she was told by her mother to remain in the bedroom while her mother answered the door. Robin originally testified that she remained in the bedroom and did not see the petitioner, but that she heard and recognized his voice. This testimony was consistent with what she had originally told the investigating detectives, and with her testimony at the preliminary hearing and on her first cross-examination at trial. After she was excused, she told the prosecutor that she had in fact seen Davis on the night of the murder. When the Court recalled her on its own motion in the absence of the jury, she testified that she had not seen Davis. When the prosecutor questioned her during this voir dire, she testified that she had seen Davis. During the same voir dire on cross-examination, she stated that she did not know if she had lied in court that morning concerning seeing Davis. In a continuation of the voir dire in chambers, the witness stated that she did see Davis. After she was recalled she testified that she had seen Davis, but she would not state whether she had been lying in her earlier testimony even though the court repeatedly ordered her to answer that question. On cross-examination she testified that she was not telling the truth when she testified that she had seen Davis at the house. On redirect examination, she testified that she did not know which story was true, and finally she testified that she had seen Davis.
Robin testified that after Davis arrived, he and her mother argued over a Cadillac parked in the driveway adjacent to the victim's house, and that the Cadillac belonged to one David Brown. She testified that after the argument she heard a shot, and that when it was quiet, she fell asleep. Her testimony that she had heard the shot was contrary to statements she had given the original investigating officer. Robin testified that when she woke up, she found the television on, but no program on it, and then she went into the living room, discovered her mother lying on the floor, began to cry, and then called the police.
Davis was arrested on the morning of April 6, 1972, and he put on a pair of trousers which were subsequently found to contain an identifiable spot of blood of the same type as the victim's, but not the same type as the defendant's. The issue of the pants was first raised June 6, 1973, at a hearing on the defendant's motion to suppress the pants as evidence at the trial. At that point, it was the defense theory that the seizure of the pants required a warrant, and alternatively, that the pants would be immaterial to the trial and prejudicial to the defendant since there could be no showing that they were worn on the night of the offense. Officer Ronald Enk testified at that hearing that he and his partner had been despatched to the address of Davis' apartment to meet their superior officer to effect an arrest of Davis as a suspect in the murder of Allean Mosley. He testified that the other two officers had their pistols drawn upon entering the apartment, and that Davis answered the door and was clad only in his underwear. Davis was informed that he was under arrest for the murder of Allean Mosley, and he and two or three of the officers went into Davis' bedroom. At that point, Enk testified, he saw no guns drawn, and: "Then I asked if he would get dressed in the clothes that he wore the previous evening." Tr. of June 6, 1973, at 26. Enk testified that Davis picked up some clothes to put on, including a pair of pants, which Enk searched for weapons before giving them to Davis to put on. Upon further questioning by the prosecutor, who inquired as to the exact conversation which occurred with Davis before he put his clothes on, Enk testified:
Tr. of June 6, 1973, at 29.
Enk also stated that he later asked Davis if the pants he was wearing were the ones he had been wearing the previous evening, and that Davis said they were. Tr. of June 6, 1973, at 33. As the other two arresting officers were unavailable on June 6, 1973, the hearing was continued until July 2, 1973.
Captain Daniel Koprowski, another arresting officer, testified in July. He stated that he did not have his revolver out at the moment of arrest, but that he assumed that the two other officers, who went into Davis' apartment, had their guns drawn. Tr. of July 2, 1973, at 12. Detective Bottoni testified next and stated that Davis was told to "put on the clothes he wore last." Tr. of July 2, 1973, at 30., but that he couldn't recall which officer told Davis that. Tr. of July 2, 1973, at 31. The following colloquy took place upon cross-examination of Bottoni:
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Bivins v. State
...on the circumstances, any particular action required of a defendant may or may not be testimonial in nature. See, e.g., Davis v. Israel, (E.D.Wis.1978) 453 F.Supp. 1316. Here, however, we conclude the defendant's privilege against self-incrimination was not violated when, at trial, he was c......
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Dreske v. WIS. DEPT. OF HEALTH & SOC. SERVICES, Civ. A. No. 79-C-707.
...The practice in this district with regard to the entry of separate judgments has not been consistent. Compare, e. g., Davis v. Israel, 453 F.Supp. 1316 (E.D.Wis.1978) (no judgment entered and appeal taken from final order), with Hughes v. Matthews, 440 F.Supp. 1272 (E.D. Wis.1977) (appeal t......
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State v. Nason
...Appellant attempts to distinguish Schmerber by characterizing the facts in the instant case as analogous to those in Davis v. Israel, 453 F.Supp. 1316 (E.D.Wis.1978), aff'd without published opinion, 601 F.2d 594 (7th Cir. 1979). In Davis, police officers ordered a suspect to select those c......