Moore v. Casperson

• Decision Date: 29 September 2003
• Docket Number: No. 02-3055.,02-3055.
• Citation: 345 F.3d 474
• Parties: Reynold C. Moore, Petitioner-Appellant, v. Steven B. Casperson, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.3d 474

Reynold C. Moore, Petitioner-Appellant, v. Steven B. Casperson, Respondent-Appellee.

No. 02-3055.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2003.

Decided September 29, 2003.

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James Rebholz, Milwaukee, WI, for Petitioner-Appellant.

Thomas J. Balistreri, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Reynold Moore was convicted in Wisconsin state court of first degree intentional homicide as a party to a crime, in violation of Wisconsin Statutes §§ 940.01 and 939.05. After having attempted without success to obtain relief through a post-conviction motion and in the Court of Appeals of Wisconsin, Mr. Moore filed a petition for review in the Supreme Court of Wisconsin, which was denied. In that petition, he included only three of his eight claims. Mr. Moore then petitioned for habeas corpus relief. See 28 U.S.C. § 2254. The district court determined that the five claims not raised in the petition to the Supreme Court of Wisconsin were procedurally defaulted. With respect to the three remaining claims, the district court denied habeas relief on the merits. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

On November 10, 1992, Thomas Monfils, an employee at the James River Paper Mill, called the Green Bay, Wisconsin police department and anonymously informed the police that one of his coworkers, Keith Kutska, was planning to steal an expensive piece of electrical cord from the plant. The police informed the company of the tip. James River Security Guards Gary Schmitz and John Gilson stopped Kutska on his way out of the plant and asked Kutska to show them the contents of his bag. Kutska refused and received five days of unpaid suspension.

Monfils asked the police not to give anyone access to the tape of his call and not to disclose his identity. Although the police promised they would keep the tape confidential, they gave the tape to Kutska. Kutska recognized Monfils' voice and then brought the tape to work. He played the tape for various coworkers, including once for Monfils, in the number 9 control room (or "coop"). Connie Jones, a lab technician, who was at coop 9 to take readings from a machine, listened to the tape. As she returned to the lab, she encountered Mr. Moore. She told him about the tape and suggested that Mr. Moore go and listen to it. Mr. Moore went and listened to the tape and was told that the voice was that of Monfils. He did not know Monfils.

Monfils left his post at coop 7 and was confronted around 7:35 a.m. by a group of workers near a water fountain between coops 7 and 9. Monfils was attacked and seriously injured. He ended up lying in a ball on the floor, unconscious but alive. At approximately 7:40 a.m., mill worker David Wiener observed, from the break room, that Dale Basten and Michael Johnson¹ were carrying something, which he could not see, toward a pulp vat. Johnson was walking backwards, and the two men were five to six feet apart.

At 7:45 a.m., Kutska and Mr. Moore entered coop 7, followed by Piaskowski. Kutska told Piaskowski to alert a supervisor that Monfils was missing. The next day, Monfils' partially decomposed body was found at the bottom of the pulp vat. A heavy weight, usually kept near machine 7, was tied around his neck. The coroner determined that Monfils died by asphyxiation due to the aspiration of paper pulp.

For two years, the Green Bay police made no progress in the case. But then, in April 1995, Brian Kellner told police that, on the previous Fourth of July, Kutska, after drinking an alleged forty beers, had admitted that he, Mr. Moore and several other coworkers had confronted Monfils near the water fountain after the 7:34 a.m. turnover. Kutska had drawn a diagram of where each defendant stood and had told Kellner that someone slapped Monfils and that Him shoved him. Kutska asked "what if" someone hit Monfils with a wrench or a board.

Kellner testified to Kutska's statement at trial, but, in a post-conviction proceeding, recanted some of his statement and testified that Kutska only identified himself, Hirn and Mr. Moore.

B.

Mr. Moore, along with five codefendants, was charged with and convicted of first degree intentional homicide as a party to a crime. The only evidence about the confrontation with the decedent was the testimony of Kellner concerning Kutska's statement and the testimony of James Gilliam. Gilliam was incarcerated with Mr. Moore. He testified that, while in prison together, Mr. Moore had said that he, Kutska and others confronted Monfils, that Kutska initially hit Monfils and that Mr. Moore then decided that he would "just do it [hit Monfils] like everybody else and he was just came from with his fist over the head just like—just like hitting him on the head and he was just kicking and beating him." Tr. 10/13/1995 at 170. According to Gilliam, Mr. Moore said "he came over everybody else's arm and just started popping him in the head, I mean, with his fist." Id. at 171. However, according to Gilliam, Mr. Moore said that he was surprised to learn of Monfils' ultimate demise in the pulp vat.

The trial court gave the following limiting instruction to the jury:

Some evidence has been received in this trial which relates to one or more of the defendants, without having any reference to the remaining defendants. In considering and evaluating such evidence, you should exercise the utmost care and discretion. Such evidence may be used only in considering whether the individual or individuals with whom it is concerned are guilty or not guilty. Such evidence must not be used or considered in any way against any of the other defendants who are not implicated by such evidence, either directly or by inference, except insofar as you may consider that evidence in connection with the instructions which have been given you regarding a conspiracy.

R.2, Ex.A at 20 (footnote omitted).

Another key state witness was Connie Jones, the lab technician who had told Mr. Moore about the tape and suggested that he listen to it. In all of her statements prior to trial, including her deposition and statements to the police, Jones had indicated that she saw Mr. Moore at about the time of a procedure known as a "turnover," which the factory records indicated took place at 7:34 a.m. Consequently, she had testified that she had seen Mr. Moore about 7:35 a.m. or soon thereafter. If that testimony was accurate, that indicated that Mr. Moore probably would have arrived at coop 9 slightly too late to have participated in the beating of Monfils.

About a week before trial, a member of the prosecution team met with Jones. The attorney asked Jones "whether [the procedure] could have been a paper break that she saw Tom Monfils working on as opposed to a turnover which the earlier statements had said." R.5, Ex.2 at 64. Factory records indicated that a "paper break"—a different procedure from a "turnover"—had been performed at 7:17 a.m. Jones said that she was not sure which she had seen because she never had observed both procedures. After this meeting with the prosecution, Jones, of her own volition, went to the factory and observed both procedures. On the basis of that observation, Jones came to believe that it was possible, and perhaps even more likely, that she had seen a "paper break" rather than a turnover. The record indicates that she called the prosecution and informed them of her changed time frame. See R.5, Ex.2 at 70. The prosecution did not pass along this information to the defense until after trial began and, apparently, until after Jones had testified on October 3.

In Mr. Moore's opening statement, his defense counsel relied on the timing to make his argument that Mr. Moore arrived too late to take part in the beating. Counsel noted that Jones would state that she had seen a turnover, which the records indicate took place at 7:34 or 7:35, and had talked to Mr. Moore afterwards. See Tr. 9/27/1995 at 140. However, when Jones later testified, she stated that she was unsure as to whether she witnessed a paper break or a turnover. She explained at trial that the prosecution had mentioned to her that a paper break had been performed and thus "there was a possibility that what I saw was not an actual turnover, but a paper break." Tr. 10/3/1995 at 91. She then recounted that she had observed both procedures and that, although she remained unsure, she did think, based on differences in the procedures that she observed, that "[i]t would be more reasonable" to conclude that she had seen a paper break rather than a turnover. Id. at 92. Her conclusion with regard to timing was that she believed that she saw Mr. Moore "somewhere about 7:25," but that was merely "an approximation" and that it could "possibly" be "as late as 7:35," but it could not have been "as early as 7:15." Id. at 94.

Defense counsel for several of the defendants, including counsel for Mr. Moore, cross-examined Jones about her prior statements concerning what she had seen and the time frame in which she had seen it. Defense counsel for Kutska attempted to show from Jones' other testimony that she could not have seen a paper break. See id. at 105. In cross-examination by Mr. Moore's own counsel, he attempted to show that Jones previously had testified that she had looked at a clock and thus her prior time frame was correct. See id. at 121. He further attempted to demonstrate that all of her prior inconsistent statements impeached her credibility. See id. at 119-25. Moreover, Mr. Moore's counsel further brought out on cross-examination that Jones had changed her testimony in the week before trial—after the prosecution had talked to her and suggested such a possibility. See id. at 125-26.

Mr. Moore testified at trial and...