Taylor v. Bradley

• Decision Date: 22 May 2006
• Docket Number: No. 04-4061.,04-4061.
• Citation: 448 F.3d 942
• Parties: Davinne G. TAYLOR, Petitioner-Appellant, v. Jody BRADLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

448 F.3d 942

Davinne G. TAYLOR, Petitioner-Appellant, v. Jody BRADLEY, Warden, Respondent-Appellee.

No. 04-4061.

United States Court of Appeals, Seventh Circuit.

Argued May 11, 2005.

Decided May 22, 2006.

Keith A. Findley, Ryan Worrell (argued), Law Student, University of Wisconsin, Madison, WI, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before COFFEY, MANION and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

After a three-day trial, the jury convicted Davinne Taylor of armed robbery, Wis. Stat. §§ 943.32(1)(a) and 939.05, for an armed robbery that occurred on August 6, 1999 at Rena and Steven Lee's apartment in Milwaukee, Wisconsin. After trial, Taylor filed a post-conviction motion pursuant to Wis. Stat. § 809.30 requesting a new trial. In his motion, Taylor argued that the prosecutor's comments concerning his post-Miranda silence violated his right to due process and, further, that his attorney failed to provide him with effective assistance at trial. The state trial judge denied the motion, finding that the performance of his trial attorney had not prejudiced his case, and proceeded to sentence him to a term of 25 years. The trial court's decision was affirmed by the Wisconsin Court of Appeals and the Wisconsin Supreme Court denied his petition for review. Taylor next filed a petition for a writ of habeas corpus in federal court, and the court denied the same, finding that the alleged ineffective assistance of Taylor's trial attorney was not prejudicial to his case. Since the evidence against Taylor at trial was overwhelming, and established his guilt beyond a reasonable doubt, we affirm the denial of Taylor's petition.

I. BACKGROUND

On August 6, 1999, Rena Lee and her son, Steven, were robbed at gunpoint in their apartment at 2326 North 45th Street in Milwaukee, Wisconsin. When the police arrived at the scene, Rena and Steven informed the investigating officers that while they were entertaining guests, a group of men forced their way into the apartment, held them at gunpoint, and departed with a number of their possessions.¹ During interviews with police, Rena and Steven identified two acquaintances, Andre Hull and a man they referred to as "Jarod," as two of the robbers. Although the police canvassed the neighborhood shortly after the robbery, they were unable to locate any suspects at that time. However, in September of 1999, while continuing their investigation, the police located and arrested Andre Hull and Davinne "Jarod" Taylor (Hull's cousin), and charged the two men with armed robbery. Prior to trial, Hull entered an Alford plea, which the trial judge accepted, and the case against Taylor proceeded to trial.

At trial, the prosecution's first witness was Rena Lee who testified that the robbers entered her apartment shortly after 8:00 p.m. on August 6, 1999, while six people were present in the home, including herself, James Addison (her boyfriend) Steven, and three of Steven's friends. According to Rena, she was in her bedroom when the robbers entered, but when she came out, she observed her guests standing in her living room with their arms raised. She stated that there were four or five intruders, including Hull and a man she knew as "Jarod." She also testified that she knew Hull prior to the crime, as he was a friend of her other son Marvin.² Rena also recognized "Jarod," although at the time of the robbery, she was not aware that Jarod's given name was Davinne Taylor. At trial, Rena identified Davinne Taylor as the man known to her as Jarod.

Rena claimed that during the course of the robbery, Hull pointed a gun at Steven's neck, and Taylor told Hull to shoot him:

Q: And after you saw them with guns, what did they do at that point?

A: Andre had my son laying on the floor in front of the entertainment center with the gun pointed to his neck.

Q: And had him, you said, on the floor in front of the entertainment center with the gun pointed to his neck, correct?

A: Yes. Yes.

Q: And what was Jarod doing?

A: Oh, he was—I asked him, I asked him why he was throwing everything out.

Q: You said he was pulling stuff out of where?

A: Out of my drawer in the front room.

Q: And he was—what was he saying?

. . . .

A: He said shoot him, they already saw my face.

After Rena completed her testimony, the prosecutor called Steven, who recounted that he was watching television with his mother when he heard banging on the downstairs door. He arose to discover the cause of the racket and observed Hull coming up the stairs, followed by Taylor.³ Steven testified that he met Taylor through his brother approximately three years prior to the robbery, and would see him around the neighborhood on occasion.

According to Steven, shortly after the robbers entered the apartment, they forced him into his bedroom. As he was being shoved onto his bed, Steven testified that Taylor came into the room and said to an accomplice, "shoot them, they already seen [sic] my face." The threat was not carried out and the robbers continued trashing the apartment and carting out anything of value. At some point, Steven claims Hull repeatedly asked him: "[W]here the money at?", to which he replied that "there was none."

After approximately an hour of rummaging through the apartment, Steven testified that Hull and another man escorted him into the bathroom and again asked him about the location of "the money." Steven repeated his insistence that there was no money in the house, and as a result of this answer he received a punch to the face from one of the robbers he did not recognize. After he was assaulted, Taylor escorted Steven outside and ordered him to lie prone on the ground. Taylor warned him that if he was found to be harboring any cash, they would "come back again." As if to emphasize this point, Steven claims that Taylor proceeded to fire his weapon into the earth near him. According to Steven, later that night, Taylor telephoned him, identified himself as Jarod, and stated that "he didn't mean to do it" and promised that he would return Steven's belongings the next day.

The prosecution next called Detective Kirsten Webb, a nine year veteran of the Milwaukee Police Department, to the witness stand. Webb, the lead detective on the robbery investigation, recounted that when she arrived at the Lees' apartment on August 6, 1999, she observed that the living room and the two bedrooms had been ransacked with clothes and other belongings strewn about the floor. After assessing the crime scene, she obtained a statement from Steven, who told her that several men—some of whom he knew— had entered their apartment and repeatedly made clear that they were looking for money. Detective Webb then asked Steven if he knew the names of any of the men that took part in the robbery. He replied that he did, telling her that one of the men was named Andre Hull and the other was known to him only as "Jarod." Detective Webb also recalled Steven informing her that two of the perpetrators had been armed during the robbery. While Steven was giving his statement, Detective Webb observed that he had an abrasion on the left side of his face, which he stated was caused by his having been struck with a gun by one of the robbers.

Following Detective Webb's initial conversation with Steven, during which he identified Hull by name as being one of the perpetrators, she procured a picture of Hull. After viewing the picture, Steven confirmed that Hull was indeed one of the men that he had previously identified as having taken part in the armed robbery. On August 7, 1999, the day after the armed robbery, Detective Webb displayed a photographic array to Rena Lee including a picture of Hull, and she too identified him as one of the robbers.⁴ Based on this information police prepared a warrant for Hull's arrest, but while that warrant was being processed he was arrested and detained on an unrelated offense. While in police custody, Hull was questioned about the Lee robbery, and during the course of an interview with Detective Webb, he gave her the name of his cousin, Davinne "Jarod" Taylor, as having been involved. Based on Hull's statement, Webb secured a second group of mug shots from the police department's files which included a picture of Taylor. On September 16, 1999, she displayed the second array to the Lees, and, according to Detective Webb, each of them positively identified Taylor as one of the robbers.

After the prosecution rested, the defense called Sharlisha Thomas as an alibi witness. Thomas stated that she had known Taylor for three and a half years and that they had conceived a child together. She went on to recount that one evening in early August of 1999, Taylor visited her house and delivered some clothes for the baby. She could not remember the exact date of his visit, only that it was in early August of 1999. She estimated that he arrived at approximately 7:00 p.m. and that she had taken him home around 1:00 a.m. On cross-examination, the prosecutor asked Thomas if she remembered a conversation she had with Detective Webb in which she stated that Taylor had called her from the county jail and asked that she tell the police that he was with her the night of the crime. She admitted that she had spoken with Detective Webb, but was unable to recall the substance of their conversation.

At the completion of Thomas's testimony, defense counsel informed the court that Taylor wished to testify. Thereafter Taylor took the stand and his counsel asked him if he remembered what he was doing on August 6, 1999. When Taylor replied that he did, defense counsel asked him why he recalled that date. Taylor responded that the date was familiar to him because he had been released from jail just two days earlier. He went on to testify that on August 6, he spent the evening with Sharlisha Thomas and their son. According to the...