State v. Rhodes
| Citation | 2011 WI 73,799 N.W.2d 850 |
| Decision Date | 14 July 2011 |
| Docket Number | No. 2009AP25–CR.,2009AP25–CR. |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner,v.Olu A. RHODES, Defendant–Appellant. |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
For the plaintiff-respondent-petitioner the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.For the defendant-appellant there were briefs and oral argument by John J. Grau, Grau Law Office, Waukesha.DAVID T. PROSSER, J.
¶ 1 This is a review of an unpublished decision of the court of appeals. State v. Rhodes, No. 2009AP25, unpublished slip op., 2010 WL 2671289 (Wis.Ct.App. July 7, 2010). The court of appeals reversed a judgment of conviction entered on a jury verdict finding Olu A. Rhodes (Rhodes) guilty of first-degree intentional homicide and first-degree recklessly endangering safety, both as party to a crime, in violation of Wis. Stat. §§ 940.01(1)(a) and 941.30(1).1
¶ 2 On appeal, Rhodes claimed that the circuit court erred when it cut off his cross-examination of a prosecution witness—his sister, Nari Rhodes (Nari). His cross-examination sought to cast doubt on the State's theory of motive in the case, that Rhodes had killed the victim because the victim was responsible for Nari being beaten the day before the shooting. Rhodes argued that by cutting short his cross-examination, the circuit court violated his constitutional right to confront a witness, and the error was not harmless.
¶ 3 We conclude that the circuit court did not violate the confrontation clause of the Sixth Amendment when it exercised its discretion in limiting the cross-examination of Nari Rhodes. The court reasonably limited the defendant's cross-examination of his sister about incidents of domestic abuse against her by the victim of the homicide to avoid confusing the issues and misleading the jury. This limitation did not prevent the defendant from presenting evidence to rebut the State's theory of the defendant's motive for the crime, and to make that argument in closing.
¶ 4 Accordingly, we reverse the decision of the court of appeals and remand the case to the court of appeals for consideration of the other grounds presented by the defendant.
¶ 5 Olu Rhodes and his brother, Jelani Saleem (Saleem), were tried together for the murder of Robert Davis (Davis) and the shooting injury of Jonte Watt (Watt) in an incident that occurred on April 4, 2006. Davis was shot seven or eight times and died from the gunshot wounds. Watt was shot in the thigh in the same incident.
¶ 6 The State's theory of the case was that Rhodes and Saleem killed Davis in retribution for a beating the day before of their sister, Nari, for which they believed Davis was ultimately responsible. Nari and Davis had previously had a tempestuous romantic relationship, and Davis fathered Nari's child.
¶ 7 The defense theory was simply that Olu Rhodes and Jelani Saleem were not involved in the shooting. The defense sought to rebut the State's motive evidence by showing that Rhodes and Saleem had not avenged other, prior injuries inflicted on Nari by Davis. The trial court cut the cross-examination of Nari short on grounds that the previous injuries were extraneous “other acts” evidence and might confuse the issues.
¶ 8 During the course of the trial, the jury heard testimony from multiple witnesses including Jonte Watt, Dominique Walker, Nari Rhodes, Detective David Salazar, and Olu Rhodes. Jelani Saleem did not take the stand. Watt testified that around noon on April 4, 2006, Watt, Davis, and Dominique Walker were driving around in Watt's car when they noticed Rhodes following them in his red Buick Riviera. Watt did not testify that he recognized anyone in the car other than Rhodes. Watt stopped on 1st Street in Milwaukee to speak with a friend, then continued driving, at which point Watt no longer saw Rhodes following them. Watt drove to his grandmother's house and parked the car in front of the house.
¶ 9 As Watt and Davis were waiting on the porch of the grandmother's house, Rhodes came around the corner in his car. Watt noticed Saleem in the passenger's seat. As Watt continued to knock on his grandmother's door, Saleem and Davis ran toward them with handguns. Watt testified that he heard three shots as he and Davis fled from the porch. Watt was shot in the thigh. During the course of the shooting, Davis fell and Watt heard additional shots. Watt looked back and saw Saleem standing over Davis.
¶ 10 Walker corroborated Watt's testimony and added that she yelled to Watt that Rhodes was approaching. She testified that she saw Rhodes and Saleem running toward the porch and saw, after Davis fell, that both Saleem and Rhodes stood over him and fired additional shots, after which they ran away.
¶ 11 Nari Rhodes was called as a prosecution witness to support the State's theory of motive for the shooting. She testified that she had a tense argument with Davis on April 3, 2006, the day before the murder. Nari testified that Davis swore at her, damaged her car window, took her cell phone, and attempted to pull their child from the car. Later that same day, Davis flagged Nari down in her car and they resumed talking. While they were talking, Davis's then current girlfriend, Nancy Segura, came up to the car and started arguing with Nari. Davis walked away as the argument escalated, and thereafter Segura beat Nari with the help of Tammy Bell. Nari was punched, pulled from the car, and rendered unconscious after hitting her head on the concrete. She had to be taken to a hospital.
¶ 12 Nari testified that after she returned from the hospital, she told Rhodes and Saleem about the beating from Segura and Bell, but explained that her brothers did not react with anger. Rather, they were upset with Nari for putting herself in the position to be beaten by the two women.
¶ 13 Midway through her testimony, Nari alluded to previous domestic violence problems with Davis.
¶ 14 On cross-examination, Nari testified that she wanted to get back at Segura and Bell personally. When defense counsel asked Nari about the injuries she previously received from Davis, she explained that the orbital bone by her eye had been broken. At that point, the prosecution objected and a sidebar ensued. Although the initial sidebar was not on the record, Milwaukee County Circuit Judge Patricia McMahon later summarized for the record what happened during the sidebar. Judge McMahon explained that she did not want the defense to go “into each instance of alleged violence from Mr. Davis” because there had already been “an opportunity for fair response,” but the defense was “going into an incident by incident which really gets into other acts” evidence. Accordingly, Judge McMahon told defense counsel to move on.2
¶ 15 Detective Salazar testified that on the day of the shooting, he interviewed Letitia Dotson (Dotson), the mother of Rhodes' daughter, about conversations that she and Rhodes had shortly after the shooting. He testified that Dotson told him that Rhodes called her at 2:44 p.m. on April 4, 2006, just minutes after the shooting. During a second call at 3:04 p.m., Rhodes explained that he had shot Davis six times and that he did not “stick around to find out” whether Davis was dead.
¶ 16 At trial, Dotson denied making those statements to Detective Salazar. Salazar's account of the interview was corroborated, however, by the testimony of his partner, Detective Willie Huerta, who had participated in the interview. It also was corroborated by a report Huerta prepared the day of the interview. Furthermore, the State presented two witnesses who testified about the use of a cell phone belonging to Saleem. An employee of Sprint Nextel presented cell phone records that documented the calls made from Saleem's phone. In addition, a criminal intelligence analyst from the Department of Justice took the call location and time information provided by Sprint and plotted it on a map to show Rhodes had been in the vicinity of the location of the shooting.
¶ 17 Rhodes chose to take the stand and testified that he did not shoot Davis or Watt. He explained that, while it was true he drove a Buick Riviera, on the day of the shooting he had been driving around trying to buy marijuana. He stated that he was aware for at least a year prior to the shooting that Robert Davis was physically abusing Nari. Rhodes testified that when he first found out about the abuse, he had a physical confrontation with Davis in which he and his cousins threw Davis out of the house. He said he had no further physical confrontations with Davis, that he eventually “left it alone” because he saw that his sister kept going back to Davis after Davis had physically abused her.
¶ 18 The jury found Rhodes guilty of the respective charges of first-degree intentional homicide and first-degree recklessly endangering safety in violation of Wis. Stat. § 940.01(1)(a) and 939.05, but it acquitted Saleem.
¶ 19 Rhodes appealed his conviction on four grounds. Rhodes argued that the trial court denied him his right to confrontation when it limited his cross-examination of Nari Rhodes; the Department of Justice analyst was not qualified to give expert testimony about the operation of cell phone towers; the prosecutor impermissibly argued in his closing argument that phone records placed Rhodes at the scene of the crime; and the circuit court erroneously exercised its discretion when it determined that one of Watt's prior convictions would be excluded from the number of convictions that would be counted for impeachment purposes. The court of appeals reversed both of Rhodes' convictions on the first ground, concluding that the trial court erred when it limited Rhodes' cross-examination of Nari. It did not address the other grounds raised.
¶ 20 The State petitioned this court for review, which we granted on September 24, 2010.
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