Wilber v. Hepp
| Decision Date | 29 October 2021 |
| Docket Number | 20-2614 |
| Parties | Danny Wilber, Petitioner-Appellee, Cross-Appellant, v. Randall Hepp, Warden, Respondent-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
ARGUED FEBRUARY 10, 2021
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 1:10-cv-00179-WCG - William C Griesbach, Judge.
Before MANION, KANNE, and ROVNER, Circuit Judges.
A jury convicted Danny Wilber of murder in Wisconsin state court and he was sentenced to a life term in prison. After unsuccessfully challenging his conviction in state court Wilber sought relief in federal court pursuant to 28 U.S.C. § 2554, arguing among other things that he was deprived of his right to due process under the Fourteenth Amendment when he was visibly shackled before the jury during closing arguments. The district court issued a writ of habeas corpus on that claim, concluding that the Wisconsin Court of Appeals decision sustaining the shackling order amounted to an unreasonable application of the United States Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007 (2005). Because neither the trial judge nor the state appellate court ever articulated a reason why Wilber had to be visibly restrained in the jury's presence, we agree with the district court that the shackling decision ran afoul of Deck. And because Wilber was visibly restrained at a key phase of the trial, when the State highlighted evidence that, in the moments leading up to the murder, Wilber's behavior was "wild," "crazy," "possessed," and "out of control," we also agree with the district court that Wilber was prejudiced by the shackling error. The restraints would have suggested to the jury that the court itself perceived Wilber to be incapable of self-control and to pose such a danger that he must be manacled in order to protect others in the courtroom, including the jurors. We therefore affirm the district court's decision to grant a writ of habeas corpus.
Wilber was convicted for the murder of David Diaz in Milwaukee Circuit Court, Judge Mary M. Kuhnmuench presiding. Wilber attended an after-hours house party at Diaz's home in Milwaukee during the night of January 30-31, 2004. According to witness statements made to the police in the days after the incident, Wilber had been acting belligerently at the party; when his belligerence escalated into a physical confrontation with other guests, several men attempted to subdue him and persuade him to leave the party. At that point, a shot rang out, Diaz fell dead to the floor, and partygoers fled the house. Jeranek Diaz (no relation to the victim) ("Jeranek") reported that he saw Wilber pointing a gun at Diaz just prior to the shooting. When Jeranek heard the gunshot, he turned in Wilber's direction and saw Diaz's body strike the floor and Wilber tucking the gun under his coat. He believed that Wilber fired the shot because the sound came from where Wilber was standing several feet away. A second witness, Richard Torres, told police that he saw Wilber with a gun in his hand immediately after the shooting. Both men also reported that in the aftermath of the shooting, they heard Antonia West, Wilber's sister, cry out, Having seen Wilber with a gun, Torres assumed that he was the shooter. When Torres heard West's exclamation, "[i]t convinced me more that he did." R. 61-24 at 282-83.
At trial, all of the witnesses called by the State denied seeing who shot the victim, including Jeranek, who disclaimed the statement attributed to him by the police. But the trial testimony nonetheless did point the finger at Wilber as the likely shooter. Our summary of this testimony derives verbatim from the Wisconsin Appellate Court's decision resolving Wilber's post-conviction appeal.
* * *
Milwaukee Police Officer Thomas Casper testified that he created a diagram of the crime scene showing the locations of all the physical evidence. Diaz's body was facedown in the kitchen with his head facing north. Bullet fragments were found behind the stove in the northeast corner of the kitchen. During the investigation, the eyewitnesses from the kitchen explained to detectives where everyone had been standing by placing "x's" with people's names or initials on diagrams of the kitchen.
Investigator William Kohl testified about the layout and dimensions of the kitchen. Kohl testified as to where the appliances were located, which portions of the kitchen were visible from different angles and from other parts of the house, and where Diaz's body was found in relation to the measurements of the kitchen.
Wilber's sister, Antonia, testified that she, Wilber, and other family members went to the house party in the early morning hours of the shooting following a night out at a local bar. Antonia denied saying to Wilber, but told the jury that she had to tell Wilber to "calm down" multiple times because Wilber "got into it" with another party-goer, Oscar Niles. Antonia also testified that Wilber grabbed and choked another man in the kitchen. Antonia said someone tried to grab Wilber from behind to stop the choking. Antonia was also in the kitchen at the time of the choking incident. She said the next thing she remembered was the sound of the gunshot coming from Wilber's direction.
Wilber's cousin, Donald Jennings, told the jury that he also attended the house party and was standing in the kitchen when Wilber got into an altercation with Niles. He testified that Wilber got aggressive with Niles and Jeranek intervened. Jennings said the parties Jennings did not say that he saw Wilber shoot Diaz, but stated that he "yelled" at Antonia when they left the party because "she was saying, my brother, my brother, I can't believe this shit[.]" Jennings interpreted Antonia's statement to mean that Antonia saw her brother shoot Diaz.
Two other witnesses, Lea Franceschetti and Jaimie Williams, also testified that they heard Antonia say "I can't believe he did that," and "I can't believe he shot him." Franceschetti stated that she interpreted Antonia's statement to mean that Antonia knew the shooter.
Torres testified that he was also in the kitchen at the time Diaz was shot. He stated that immediately after the shooting he saw Wilber with a gun. Torres stated that Wilber, while in the kitchen, was acting aggressively towards other guests. Diaz, who was also in the kitchen, told Jeranek to ask Wilber to leave. Wilber "didn't want to hear that" and started choking Jeranek, who was standing next to Diaz. Torres intervened and got into his own altercation with Wilber. Wilber hit Torres, causing Torres to "black out a little bit" and "lean[ ] up against the ... sink." Torres said he then heard a gunshot from "the right side of my ... ear," where he said Wilber was standing. Torres said that he saw Wilber with a gun after the shooting "in a crouched position." Torres stated that he heard someone in the kitchen yell "you shot the guy," and then Wilber ran out. Torres stated that he tried to chase Wilber but lost him in the chaos.
Torres also testified that he saw a man named "Ricky" at the party with a gun, but that he did not see Ricky in the kitchen at the time of the shooting. Torres stated that there was no tension between Diaz and Ricky, but that the two exchanged "dirty looks" the week before. Torres stated that there did not appear to be tension between Diaz and Ricky at the party and that Torres was not concerned about Ricky's possession of a gun.
Jill Neubecker testified that she lived in the upper portion of a duplex above Wilber's sister, Wanda Tatum. She testified that police came to the house looking for Wilber on February 1, 2004. She told them that the night before, she smelled something on fire and saw smoke coming from an old grill in the back yard. Detective Joseph Erwin found the soles of a pair of shoes burnt in the grill.
The police officers who had interviewed Antonia, Williams, Niles, and Jeranek testified about statements they gave that were inconsistent with their trial testimony.
Mark Bernhagen, a shoe store manager, testified for the defense about shoe sizing. He testified that Wilber's feet were size fourteen and one-half. The soles of the burnt shoes found in the grill were size twelve, which were smaller than the shoes Wilber was wearing at trial.
Shortly after the defense rested, defense counsel asked for an adjournment, telling the trial court that during the break, an eyewitness approached counsel and said that he saw "another person shooting the shot that struck the head of David Diaz." Counsel told the court that neither he nor Wilber was aware of the potential witness until that moment. The trial court allowed defense counsel to make an offer of proof.
Defense counsel called two of Wilber's sisters, Tatum and Monique West. Tatum told the court that six days after the trial began, Monique told Tatum "if my brother was found guilty this person was supposed to give a confession saying he did it." She stated that this information came from Monique's boyfriend, Roberto Gonzalez, who told Monique that if Wilber was convicted, another person would come forward and confess to the shooting. According to Tatum Gonzalez told Monique that he and "Isaiah" were at the party the night of the shooting. Gonzalez told Monique that he heard Diaz tell his girlfriend to go get a gun, and in response, Isaiah pulled out a gun that went off and hit Diaz. Monique conveyed this information to Tatum. Tatum said she first learned...
To continue reading
Request your trial