Wisconsin ex rel. Toliver v. McCaughtry

• Decision Date: 09 November 1999
• Docket Number: No. 98-C-1041.,98-C-1041.
• Citation: 72 F.Supp.2d 960
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: State of WISCONSIN ex rel. Stephen TOLIVER, Petitioner, v. Gary R. McCAUGHTRY, Respondent.

72 F.Supp.2d 960

State of WISCONSIN ex rel. Stephen TOLIVER, Petitioner, v. Gary R. McCAUGHTRY, Respondent.

No. 98-C-1041.

United States District Court, E.D. Wisconsin.

November 9, 1999.

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Kathryn A. Keppel, Milwaukee, WI, for Petitioner.

Stephen W. Kleinmaier, Madison, WI, for Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

Stephen Toliver petitions for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his conviction of first degree intentional homicide (as a party to the crime), which was entered by Judge John DiMotto on March 16, 1992, in Milwaukee County Circuit Court following a jury trial and guilty verdict. Petitioner claims that (1) he was denied the effective assistance of appellate counsel when his counsel was allowed to withdraw and no other attorney was substituted for her, (2) the trial court's refusal to instruct the jury on the lesser included offense of felony murder violated his rights to due process and a fair trial, (3) he was denied his Sixth Amendment right to cross-examine a prosecution witness because the state misrepresented promises it made to that witness in exchange for testimony, and (4) the admission of a hearsay statement made by his brother was error.

I. FACTUAL BACKGROUND¹

Petitioner's conviction arose out of the shooting death of 24-year-old Tina Rogers in a home at 2918 North 37th Street in Milwaukee. Rogers's body was found by a pedestrian on May 15, wrapped in plastic garbage bags and dumped along West Lincoln Creek Parkway in Milwaukee. The autopsy of her body revealed that she had been shot at least twice. There were two entry wounds in the head: one bullet entered the back and another entered the left forefront. A bullet wound in her right hand could have been caused by either of the shots if Rogers held her hand up or by a third shot. In the opinion of the medical examiner who performed the autopsy the wound to the back of Rogers's head likely caused near instantaneous death, and there was a high potential of death from either of the two wounds. A picture of Rogers was found between her buttocks, secured with duct tape.

Petitioner's brother, Oliver Toliver ("Oliver"), fired the shots that killed Rogers. Also present at the scene of the shooting were Commosie Thompson, Corey Henry, Darian Robinson and Jo'Etta Foster. The four latter persons all testified at trial, as did petitioner. To say that the story they relayed was not pleasant is an understatement.

At about noon on May 12, 1991, Thompson discovered he was missing $1,800 in drug sales revenues. He paged petitioner, who helped Thompson sell drugs. In response to the page, Toliver, Foster and Oliver met Thompson at the upper-flat residence at 2918 North 37th Street, where petitioner, Foster, Thompson, and Rogers lived together. Foster testified that as they were going home petitioner said Rogers had taken the money.

At the house, petitioner told Oliver to "strap up." (R. 5 Ex. FF at 31-32.) Petitioner and Oliver each then grabbed a gun and went to look for Rogers. They found her around 4:00 p.m. and brought her back to the house; in addition to Foster and Thompson, Henry and Robinson were at the residence when Toliver and Oliver returned. Petitioner and Rogers argued; petitioner accused her of taking the money but she denied it. Oliver, who carried a Tech 9 firearm, then moved toward Rogers, but petitioner pushed him away. Henry said petitioner told Oliver to "chill out and sit down." (R. 5 Ex. FF at 17.)

Toliver threw his gun next to Thompson and said something to the effect that Thompson should shoot whomever he thought took the money. Thompson just sat there scared. Petitioner then asked Thompson either what he wanted done or "what's up." (R. 5 Ex. FF at 35; R. 5 Ex. GG at 49.) Thompson answered "whatever is clever." (R. 5 Ex. FF at 35; see R. 5 Ex. GG at 49.) Robinson said Toliver then asked Thompson whether he was sure.

According to Thompson, petitioner then moved back. Rogers said, "No, Steve," or "Oh, No." (R. 5 Ex. GG at 20.) Oliver then stepped forward and shot Rogers — who was holding her hands in front of her face — in the forehead, and Rogers slumped to the floor. Thompson said petitioner had not tried to stop Oliver.

After the shot, Thompson, Henry, and Robinson fled the room and ran down the stairs and outside. As he ran Thompson heard petitioner say, "kill that bitch, kill her." (R. 5 Ex. FF at 36.) Robinson heard petitioner say "kill the bitch." (R. 5 Ex. GG at 56, 57, 61.) A second shot then rang out.

Foster was in a bedroom when she heard the first gunshot. She ran to the bedroom door and saw Rogers slumped on the floor bleeding, with petitioner and Oliver standing over her. She heard petitioner say, "shoot the bitch," and Oliver fired the second shot.² (R. 5 Ex. GG at 80.)

According to Foster, petitioner told her to clean up the blood, and petitioner and Oliver covered Rogers's body with plastic lawn bags, taping them shut. Petitioner and Oliver ultimately dumped Rogers's body along West Lincoln Creek Parkway.³ The day after the shooting, petitioner told Thompson he had taped Rogers's picture to her buttocks, and Foster thereafter did not see the picture of Rogers that had been in the house.

At trial, Foster related a statement made by Oliver the day after the murder regarding why he shot Rogers:

Q: In the presence of Stephen Toliver, the next day, did Oliver Toliver tell you why he shot Tina Rogers?

A: Yes. Because he would do anything for his brother, Steve, Carey, and his mother.

(R. 5 Ex. GG at 122.) Toliver's objection to admission of the statement was overruled; the statement was deemed a statement of a coconspirator during the course of and in furtherance of the conspiracy as well as an adopted admission. (See R. 5 Ex. GG at 117.)

At trial, prosecution witness Henry testified that no one had agreed to make any recommendations in return for his testimony and that he had to serve a mandatory three years in prison in another case. According to Toliver, however, the state had already agreed to recommend a sentence of two to three years incarceration. Further, according to Toliver, at sentencing Henry's prosecutor actually stood silent regarding Henry's sentence and Toliver's prosecutor recommended leniency due to Henry's cooperation in Toliver's case. Henry ended up on probation with no incarceration.

II. PROCEDURAL HISTORY

After the jury's guilty verdict, the trial court, on March 16, 1992, sentenced Toliver to life imprisonment with a parole eligibility date of December 14, 2045. On April 1, 1992, Donna L. Hintze, an assistant state public defender, was appointed to represent Toliver in post-conviction and appellate proceedings.

Hintze met with petitioner once, on October 28, 1992. The next day she filed a motion in the Wisconsin Court of Appeals to withdraw as petitioner's counsel. The motion stated, in total:

Defendant, Stephen Toliver, by his attorney, Donna L. Hintze, Assistant State Public Defender, hereby moves the court to permit her to withdraw as counsel in the above-captioned case. The grounds for the motion are as follows:

1. Undersigned counsel was appointed on April 1, 1992, to represent Mr. Toliver in any post-conviction proceedings arising from his conviction for party to a crime first-degree intentional homicide.

2. Counsel reviewed the transcripts and court file and met with Mr. Toliver to discuss his case with him on October 28, 1992. At that time Mr. Toliver advised counsel that he did not wish to have her represent him and that he wished to proceed pro se. Accordingly he asked that counsel request permission to withdraw from his case.

WHEREFORE, it is respectfully requested that the court allow counsel to withdraw from further representation of Mr. Toliver and permit him to proceed pro se.

Dated this 29th day of October, 1992.

(R. 5 Ex. D attachment (Motion to Withdraw as Counsel).) No affidavit by Hintze accompanied the motion.⁴

Meanwhile, on October 28 after his meeting with Hintze petitioner wrote and sent at least three letters. The first was addressed to Milwaukee County Circuit Court Judge Patrick Sheedy. Petitioner indicated in the letter that he agreed with Hintze's request to withdraw because she refused to raise the issue of ineffective assistance of trial counsel; petitioner also requested, however, the appointment of an attorney to replace Hintze. Because the exact content of Toliver's letter is important, I quote its substance in full:

Please take notice to the enclosed letter in regards to my request for new appellate counsel. I am not a lawyer, and it would be a miscarriage of justice if this defendant had to represent himself in his first appeal before the trial court. State Public Defender Donna L. Hintze, has requested to withdraw, and I agree because she refuses to request a evidentiary hearing for ineffective asst. of trial counsel so that this defendant can raise all of his issues at once, and prevent having to piece meal. I would hope you could intervene, and request that this defendant be given new appellate counsel to present my issues before the trial court. Again I am not a lawyer, and would like new counsel appointed. Thank you.

(R. 5 Ex. L at 1.)

Attached to Toliver's letter to Judge Sheedy was the second letter, addressed to Mark Lukoff as director of the State Public Defender's Milwaukee office (it is unclear to me whether this was a carbon copy or whether Toliver wished Judge Sheedy to forward the letter to Lukoff). The letter similarly starts with: "This letter is to request new counsel to represent me in my first appeal...." (R. 5 Ex. L at 2.) After noting his disagreement with Hintze regarding the issues to be pressed post-trial and on appeal, Toliver continued: "I'm entitled to effective appellate counsel in my first appeal.... I'm requesting appointment of new appellate counsel to represent me at...