Jordan v. Bartow, Case No. 17-C-230
| Decision Date | 16 July 2019 |
| Docket Number | Case No. 17-C-230 |
| Parties | JOEVONE M. JORDAN, Petitioner, v. BYRAN BARTOW, Director, Wisconsin Resource Center, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
The petitioner, Joevone M. Jordan ("Jordan"), is a prisoner in Wisconsin custody seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2010, Jordan was convicted of one count of first-degree intentional homicide, Wis. Stat. § 940.01, and one count of attempted robbery, Wis. Stat. §§ 939.32, 943.32(2). Jordan was sentenced to life in prison on the homicide charge and 20 years (12.5 in prison and 7.5 years of extended supervision) on the robbery charge. ECF No. 19-1.
The parties have briefed the petition for a writ of habeas corpus and the petition is ready for disposition.1 For the reasons stated below, the petition for writ of habeas corpus is denied.
Roland Haefner was the proprietor of a candy store at 8305 West Silver Spring Drive in Milwaukee, WI. On the evening of June 17, 2009, the proprietor of a nearby shop in the same building heard someone demand money on Mr. Haefner's side of the building and then heard a gunshot. The proprietor ran to Mr. Haefner's booth where she found him unresponsive, before running to a nearby daycare to call 911. Authorities found Haefner lying face-up with a gunshot wound to the chest and later pronounced him dead at the scene. After news of the shooting aired on television, Jordan's mother asked one of Jordan's cousins to ask Jordan about his involvement in the shooting. During the ensuing conversation, Jordan admitted that he had shot the candy store owner. The cousin then proceeded to tell his wife and the police about the details of his conversation with petitioner, alerting authorities to his potential involvement in the shooting.
Shortly before his arrest, petitioner went to the home of an acquaintance, Sherita Carter. Petitioner appeared upset because he thought his family was going to turn him in for $2,000 in reward money. See ECF No. 19-15 at 76-77. Petitioner told Carter that he had a gun and that if the police tried to arrest him, that Id. at 79: 9-10. Carter then called the police. Id. at 78:16-19. Upon arrival, the police found petitioner hiding behind a door in an upstairs room and arrested him. Among the items found on petitioner was a fake handgun tucked in the waistband of his pants. ECF No. 19-16 at 15:3-11.
Jordan filed a pretrial motion to suppress any evidence that he possessed a fake handgun when he was arrested, arguing that such evidence was irrelevant and misleading. ECF No. 19-11 at 3-4. The trial court disagreed, concluding that possession of the fake handgun at the time of arrest was admissible to show Jordan's "consciousness of guilt." Id. at 7:4. The trial court held that the fake handgun's probative value was not "unduly prejudicial under [Wis. Stat. §] 904.03," finding there was no risk of jury confusion where the weapon used to commit the offense, and that bore Jordan's fingerprints, was a shotgun. Id. at 8:13.
While in custody, Jordan made statements to investigators that were ultimately suppressed by the trial court as violating Jordan's rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). ECF No. 19-10 at 13:6-17. While in jail awaiting trial, Jordan made several telephone calls, some of which were recorded and transcribed. On one such call to his mother ("Call #6"), Jordan referenced the ultimately suppressed statements that he made to the police:
At trial, Jordan moved to suppress the call, arguing that Jordan gave a "summarization" of the statement that the court had already ruled inadmissible. ECF No. 19-11 at 9:19. Admitting the call would thus be a "back-end way of getting the [suppressed] statement to the jury." Id. What Jordan told his mother on Call Number 6 was "exactly what [Jordan] told the police in the custodial statement that [the court] ruled inadmissible." Id. at 12:21-23. The trial court disagreed, finding no constitutional violation that would prohibit introduction of the call. Evidence from the call was "not compelled information by the State." Id. at 16:5-6. The court emphasized that the constitutional protections at issue exist to preclude officers from testifying as to what a defendant may have said in a constitutionally improper interrogation but "don't preclude[defendant] from relaying other information to third parties." Id. at 16:24-17:1. The trial court also found no basis for preclusion under the fruit of the poisonous tree doctrine. Id. at 18:4-5. This phone call between Jordan and his mother was played for the jury at trial. ECF No. 19-16 at 40.
After being convicted by jury on both counts, Jordan appealed his conviction to the Wisconsin Court of Appeals. See ECF No. 19-2; ECF No. 19-4. Jordan raised admission of both the fake handgun and Call #6 as grounds for overturning his conviction. ECF No. 19-2 at iii. Jordan argued that because the fake handgun had zero probative value, its use at trial could serve no other purpose than to confuse the jury and unfairly prejudice him. Id. at 15. Jordan did not use the fake handgun to resist or obstruct his arrest, nor was it connected in any way to the crime. ECF No. 19-4 at 1. Admission of the fake handgun was not harmless because it left the jury free to speculate as to why he had it and whether he used it in connection with other crimes. Id. at 2.
Further, Jordan argued that the admission of Call #6 constituted impermissible fruits of a statement given in violation of a defendant's Miranda rights, citing the Wisconsin Supreme Court's decision in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899. ECF No. 19-2 at 17. Call #6 did not contain any statement regarding what happened on the date of the offense, but rather was based entirely on questions asked by the police after Jordan requested counsel. Id. at 21. Call #6 would not exist but for the police's violation of Jordan's Miranda rights. Id. Thus, Jordan's utterances Call #6 were the fruit of inadmissible custodial statements. Id. at 23 (citing Harrison v.United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); State v. Anson, 2005 WI 96, 282 Wis.2d 629, 698 N.W.2d 776). Further, any error in admitting Call #6 was not harmless or trivial; the phone calls played for the jury were the only times that the jury heard Jordan speak2 at trial. ECF No. 19-4 at 6-7.
The Wisconsin Court of Appeals affirmed the trial court's decision on both issues. ECF No. 19-5. In addressing the admission of the fake handgun, the court, citing Wisconsin law, concluded that the trial court properly exercised its discretion in admitting evidence of the fake handgun when considered in conjunction with Jordan's hiding from police and statements he made to Carter. Id. at ¶¶15-16. Even if it was error to admit the fake handgun, the court found that such error would be "harmless given the overwhelming evidence of Jordan's guilt." Id. at ¶17. Specifically, the court cited Jordan's admission of his role in the shooting to other persons, the police's recovery of the murder weapon from Jordan's bedroom at his mother's house, and the presence of Jordan's fingerprint on one of the cartridges inside the shotgun. Id. at ¶¶17-18.
In addressing the admission of Call #6, the appellate court declined to extend Knapp, which holds that physical evidence obtained as a direct result of an intentional Miranda violation must be suppressed under Wisconsin's constitution. Id. at ¶¶19-21. In contrast to the circumstances in cases cited by Jordan, at issue were "voluntary statements" made by Jordan. Id. at ¶21 (emphasis added). In addition to declining to extend the Knapp decision to the circumstances of Jordan's case, the appellate court found that any error in admitting Call #6 would also be harmless as the call was merely"one small piece of overwhelming evidence" leaving "no reasonable possibility" that an error here contributed to the ultimate outcome. Id. at ¶22.
Jordan then petitioned the Wisconsin Supreme Court for review on both the fake handgun and phone call issues. ECF No. 19-6. Jordan argued that the admissibility of Call #6 "raise[d] a substantial issue regarding the scope of the Wisconsin Constitution's prohibition of the fruits of a Miranda violation set forth in State v. Knapp." Id. at 13. See also id. at 22 (). Citing Wisconsin statutes and case law, Jordan reiterated his argument that the fake...
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