Burris v. Baenen

Filing 22

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 8/3/2015. 1 Burris' Petition for Writ of Habeas Corpus DENIED. Certificate of appealability GRANTED on issue of whether Wis. Sup. Court relied on unreasonable application of clearly established law in concluding that Burris failed to demonstrate reasonable likelihood that jury unconstitutionally applied supplemental jury instrucion. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONOVAN M. BURRIS,
Petitioner,
-vs-

Case No. 12-cv-00465-RTR

MICHAEL BAENEN, Warden,
Green Bay Correctional Institution
Respondent.

DECISION AND ORDER
The Petitioner, Donovan M. Burris (“Burris”), is an inmate at Green
Bay Correctional Institution. A Milwaukee County circuit court convicted
Burris of first degree reckless injury and possession of a firearm by felon, in
violation of Wis. Stat. §§ 940.23(1) and 941.29(2)(a), respectively. Burris was
sentenced to fifteen years of imprisonment on count one and three years of
imprisonment on count two.
Burris contends that the jury applied a supplemental instruction in an
unconstitutional manner, (Br. Supp. Pet. 2) (ECF No. 17), and the state
courts have addressed his claim. The state court of appeals reversed Burris’
conviction,

finding

“a

reasonable

likelihood

that

the

trial

court’s

[supplemental jury instruction], offered in response to the jury’s specific
question, misled the jury.” State v. Burris, 323 Wis. 2d 823, 781 N.W.2d 551

(Wis. Ct. App. 2011). On appeal, the Wisconsin Supreme Court reversed the
court of appeals’ decision, ruling that Burris “ha[d] not established a
reasonable likelihood that the jury applied the supplemental jury instruction
. . . in an unconstitutional manner.” State v. Burris, 333 Wis. 2d 87, 797
N.W.2d 430, 434 (Wis. 2011). It remanded the case to the court of appeals for
adjudication of Burris’s other claims.
Burris filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, which survived preliminary review by this Court. (Court’s May 17,
2012 Decision & Order.) (ECF No. 6.) It was filed in a timely manner after
Burris exhausted all available state court remedies. 28 U.S.C.
§ 2254(b)(1)(A). The question before this Court is whether the Wisconsin
Supreme Court relied upon an unreasonable application of clearly established
federal law in concluding that Burris failed to demonstrate a reasonable
likelihood that the jury unconstitutionally applied the supplemental
instruction.
BACKGROUND
The Court begins by setting forth the following facts found by the
Wisconsin Supreme Court, which are presumed to be correct. Burris visited
the mother of his two children, Khadijah Rashada (“Khadijah”).1 Burris, 797

1

name.

For clarity’s sake, the Court refers to members of the Rashada family by given

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N.W.2d at 434. An argument ensued during which Burris’ pistol discharged
and Khadijah’s brother, Kamal, was shot in the neck. Id.
Both Kamal and Burris offered similar testimony about the events
after the shooting. Id. at 436. Burris testified that he fell to his knees and
held his face in a fit of remorse. Id. He asked either Khadijah or her mother,
Cathy, to shoot him, and tried to hand over the gun. Id. Burris then fled the
scene and evaded authorities for five months before turning himself in to
police. Id. at 434. It was undisputed at trial that the shooting paralyzed
Kamal; he remained in the hospital for two months. Id.
Burris was charged with first and second degree reckless injury. At
trial, the circuit court instructed the jury to consider both charges. To convict
a defendant for first degree reckless injury under Wisconsin law, the state
needs to prove beyond a reasonable doubt that the defendant recklessly
caused great bodily harm to another under circumstances which show utter
disregard for human life. Wis. Stat. § 940.23(1). The jury’s decision to choose
between the first and second degree charges turned on whether Burris
displayed “utter disregard for human life.”
During deliberations, the jury submitted two questions to the judge
concerning

after-the-fact

conduct

as

part

of

the

utter

disregard

determination: “Regarding the element of utter disregard, all other facts and
circumstances

relating

to

the

incident,

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do

we

consider

facts

and

circumstances after the shooting?” Burris, 797 N.W.2d at 436. In a follow-up
question, the jury asked more directly, “[s]hould we consider facts and
circumstances after the shooting in determining utter disregard?” Id. at 449
(Abrahamson, C.J., dissenting).
After consulting with counsel, the circuit court brought the jury back
into the courtroom and provided the following supplemental instruction:
And in response to this question, if this clarifies
anything, after-the-fact regard for human life does
not negate utter disregard otherwise established by
the circumstances before and during the crime. It
may be considered by the fact-finder as a part of the
total factual picture, but it does not operate to
preclude a finding of utter disregard for human life.
The element of utter disregard for human life is
measured objectively on the basis of what a
reasonable person in the defendant’s position would
have known.
Id. at 436.
The jury found Burris guilty of first degree reckless injury. On appeal,
Burris challenged the trial court’s answer to the jury’s utter disregard
question, arguing that the correct response was simply, “yes.” The lengthier
response, according to Burris, confused the jury and implicitly informed them
that after-the-fact conduct should be accorded less weight than other types of
conduct. (Br. Supp. Pet. 5.) (ECF No. 2.) Burris contended that the
supplemental instruction was ambiguous and established a reasonable
likelihood that the answer misled the jury. The Wisconsin Supreme Court

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ruled against him. Burris’ petition challenges the application of federal law
by the Wisconsin Supreme Court.
ANALYSIS
Section 2254 provides that “a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United
States.” In order for this Court to grant habeas relief under § 2254, Burris
must show that the Wisconsin Supreme Court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
As a threshold matter, this Court must identify the relevant “clearly
established Federal law.” To demonstrate constitutional error with a legally
accurate jury instruction, Burris “must show both that the instruction was
ambiguous and that there was a reasonable likelihood that the jury applied
the instruction in a way that relieved the State of its burden of proving every
element of the crime beyond a reasonable doubt.” Waddington v. Sarausad,
555 U.S. 179, 190 (2009) (internal quotation marks omitted; emphasis added).
The instruction “‘may not be judged in artificial isolation,’ but must be
considered in the context of the instructions as a whole and the trial record.”

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Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414
U.S. 141, 147 (1973)). The consideration of the whole record comports with
the reality that jurors “do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning.” Boyde v. California, 494 U.S. 370,
380-81 (1990). Rather, jurors interpret instructions using a “deliberative
process, with commonsense understanding of the instructions in the light of
all that has taken place at the trial likely to prevail over technical
hairsplitting.” Id. at 381.
The United States Supreme Court places an “especially heavy” burden
on the challenger. Waddington, 555 U.S. at 190. It is not enough that there is
some “slight possibility” that the jury misapplied the instruction. Weeks v.
Angelone, 528 U.S. 225, 236 (2000). Rather, the proper measure is whether
the “instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Estelle, 502 U.S. at 72. The burden on the
challenger is high, and the United States Supreme Court takes a holistic
approach to examining the adequacy of jury instructions.
Burris faults the trial court because its supplemental instruction
quoted from an inapplicable “utter disregard” analysis done by the Wisconsin
Supreme Court in State v. Jensen, 236 Wis. 2d 521, 613 N.W.2d 170 (Wis.
2000). In Jensen, a sufficiency of evidence case, the issue was whether afterthe-fact conduct could preclude a finding of utter disregard. Burris argues

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that the trial court erred in adopting this language for the instant case
because the jury’s question was about whether they should consider after-thefact conduct at all. (Br. Supp. Pet. 8.) (ECF No. 2.) According to Burris,
phrases within the supplemental instruction explaining that after-the-fact
conduct “does not operate to preclude” utter disregard or “does not negate”
utter disregard are ambiguous and misleading. (Id.)
The Wisconsin Supreme Court conceded that the instruction was
“potentially ambiguous.” Burris, 797 N.W.2d at 446. But it also correctly
observed that “[e]ven some ‘ambiguity, inconsistency, or deficiency’ in an
instruction does not violate due process.” Id. at 443 (quoting Waddington, 555
U.S. at 190).
There must also be a reasonable likelihood that the jury misapplied the
instruction in an unconstitutional manner. Waddington, 555 U.S. at 190-191.
Moreover, the wording of the instruction cannot be examined in isolation.
Estelle, 502 U.S. at 72. The Wisconsin Supreme Court was bound to examine
the challenged jury instruction in light of the whole proceeding, including the
evidence presented at trial, the initial instruction, the jury’s question, and
the supplemental instruction.
After-the-fact conduct was central to the trial as a whole. During voir
dire, Milwaukee County Assistant District Attorney Thomas Potter made
clear that jurors would consider “the circumstances surrounding the

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immediate time when the shot was fired from the gun.” (Tr. 22.) (ECF No. 1510.) Before opening statements, Milwaukee County Circuit Court Judge
William Sosnay described the jury’s duty “to scrutinize and to weigh the
testimony of the witnesses and to determine the effect of the evidence as a
whole.” (Id. at 53.) See also (Id. at 57-58) (Prosecution’s preview of Burris’s
after-the-shooting “hysteri[cs]”); (Id. at 84-87) (Kamal’s testimony); (Id. at
124-126) (Cathy’s testimony); (Tr. 60-62) (ECF No. 15-11) (Khadijah’s
testimony); (Tr. 18-21, 38-40) (ECF No. 15-12) (Burris’s testimony); (Id. at 8283) (prosecution’s closing argument). Both parties, and every witness,
discussed Burris’s after-the-shooting conduct, including the aggravating
evidence of Burris evading the police and the mitigating evidence of Burris
showing remorse for his actions. The result itself — Burris’ conviction of first
degree reckless injury — and the lack of additional questions from the jury
concerning after-the-fact conduct is consistent with the jury considering all
the evidence in a holistic approach to fact-finding.
Furthermore, the trial court’s closing instructions informed the jurors
that they should examine the whole record in making their utter disregard
determination:
In determining whether the conduct showed utter
disregard for human life, you should consider these
factors: what the defendant was doing; why the
defendant was engaged in that conduct; how
dangerous the conduct was; how obvious the danger

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was; whether the conduct showed any regard for life;
and, all other facts and circumstances relating to the
conduct.
Burris, 797 N.W.2d at 444 (emphasis added). Moreover, before offering the
supplemental instruction in dispute, the court provided a disclaimer: “First of
all, I want to emphasize that you are to rely on the instructions that I gave
you. All right? And to rely on all of the instructions that I gave you.” (Tr. 14.)
(ECF No. 15-13.) In light of this holistic approach, this Court concludes that
the Wisconsin Supreme Court did not unreasonably apply clearly established
federal law in concluding that Burris failed to demonstrate a reasonable
likelihood that the jury unconstitutionally applied the supplemental
instruction.
Burris takes issue with the contextual approach to jury instructions,
arguing that the main sources of information about after-the-fact conduct,
such as the trial testimony and the language of the original jury instruction,
are “trumped” by the supplemental jury instruction. (Pet’r’s Reply Br. 4.)
(ECF No. 20.) Citing “common sense” and Bollenbach v. United States, Burris
argues that “the judge’s last word is apt to be the decisive word.” 326 U.S.
607, 612 (1946) (stating that if the instructions are “a specific ruling on a
vital issue and misleading, the error is not cured by a prior unexceptional and
unilluminating abstract charge”). (Pet’r’s Mar. 2013 Br. 4-5.) (ECF No. 17.)
But even if the jury considers the supplemental instruction to be the “decisive

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word” on the law, as it should, it does not follow that it is the only word the
jury will consider during deliberations. Such a position runs contrary to
Supreme Court doctrine that even instructions, definitive statements on the
law, should be understood in context; reasonable jurors would not believe
that a court’s instructions transformed the rest of the trial into a “virtual
charade.” Boyde, 494 U.S. at 383.
Notably, the supplemental instruction itself exhorts the jury to
examine the whole record: after-the-fact conduct “may be considered by the
fact-finder as a part of the total factual picture.” Burris, 797 N.W.2d at 436.
Even if the jury was sharply focused on the language of the supplemental
instruction, it is clear the jury was to examine the proceedings as a whole.
Burris also argues that the supplemental instruction should have been
a simple “yes,” and that the court ran afoul of the United States Supreme
Court’s mandate from Bollenbach (“[w]hen a jury makes explicit its
difficulties a trial judge should clear them away with concrete accuracy.”).
326 U.S. at 612-13. (Pet’r’s Mar. 2013, Br. 2.) But the supplemental
instruction satisfies the requirement. The instruction was potentially
ambiguous, but it was not insubstantial or flimsy. It was concrete,
unequivocal, and thorough. It was also an accurate statement of the law, a
characteristic lacking in Bollenbach. Unlike this case, the trial judge in
Bollenbach “was not even ‘cursorily’ accurate. He was simply wrong.”

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Bollenbach, 326 U.S. at 613.
Burris is correct: the jury’s question was not whether after-the-fact
conduct negated or precluded a finding of utter disregard, but rather whether
the jury should consider after-the-fact conduct at all. This distinction
explains Burris’s issue with the court using language from Jensen, a
sufficiency of evidence case. Jensen’s focus is immaterial. What is material
are the words of the jury instructions that were read to the jury, and it is by
those words that this Court determines whether the Wisconsin Supreme
Court relied upon an unreasonable application of clearly established federal
law in concluding that Burris failed to demonstrate a reasonable likelihood
that the jury unconstitutionally applied the supplemental instruction. The
supplemental instruction answered the question in a concrete fashion and
informed the jury of the totality of circumstances approach to fact-finding.
The instruction did not preclude the consideration of constitutionally
relevant evidence. See Boyde, 494 U.S. at 380. The instruction did not advise
the jury that after-the-fact conduct carries less weight than other types of
conduct, it simply advised the jury that the existence of after-the-fact
mitigating evidence does not automatically negate a finding of utter
disregard — a completely accurate statement of current Wisconsin law.

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CONCLUSION
The burden on Burris to prove that the Wisconsin Supreme Court
relied on an unreasonable application of clearly established federal law is
high, and Burris has failed to meet it.
Pursuant to Rule 11 of the Rules Governing 28 U.S.C. § 2254
proceedings, the Court must “issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” A certificate of appealability
may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met
when “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation
marks omitted). The standard “does not require a showing that the appeal
will succeed.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). It does,
however, require more than a showing of the “absence of frivolity.” Id. at 338.
Under this standard, having carefully considered the Wisconsin
Supreme Court’s application of federal law, this Court grants a certificate of
appealability: reasonable jurists could debate whether the petition should
have been resolved differently.

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Burris’ petition for a writ of habeas corpus (ECF No. 1) is DENIED;
This action is DISMISSED;
The Clerk of Court is DIRECTED TO ENTER JUDGMENT
accordingly;
The Court GRANTS Burris a Certificate of Appealability on the issue
of whether the Wisconsin Supreme Court relied upon an unreasonable
application of clearly established federal law in concluding that Burris failed
to demonstrate a reasonable likelihood that the jury unconstitutionally
applied the supplemental instruction.

Dated at Milwaukee, Wisconsin, this 3rd day of August, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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