Butler v. Foster

Filing 37

ORDER signed by Judge Lynn Adelman on 8/3/18. IT IS ORDERED that Butler's petition for a writ of habeas corpus is DENIED. The Clerk of Court shall enter final judgment. (cc: all counsel, petitioner)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LANCE D. BUTLER, JR.,
Petitioner,
v.

Case No. 16-C-1615

BRIAN FOSTER,
Respondent.

DECISION AND ORDER
Lance D. Butler, Jr., petitions for a writ of habeas corpus under 28 U.S.C. § 2254.
I. BACKGROUND
Following a jury trial in Milwaukee County Circuit Court, Butler was found guilty of
one count of arson and two counts of first-degree recklessly endangering safety. The
endangering safety counts arose out of the arson—the fire trapped a person in her
apartment and endangered both that person and the firefighter who rescued her. On
the arson charge, the court sentenced Butler to 16 years’ initial confinement and six
years’ extended supervision. On each recklessly-endangering-safety charge, the court
sentenced Butler to four years’ initial confinement and two years’ extended supervision,
to run consecutively to the arson charge.
At trial, Butler’s ex-girlfriend (whom the state court of appeals identified only as
“M.L.”) testified that, on the night of February 20, 2011, Butler arrived at her apartment
and started banging on her door and yelling at her. M.L. had broken up with Butler a
few weeks before, and she was in her apartment watching movies with a friend, who
was male. Butler made comments suggesting that he was upset that she was with
another man. Butler then threw a fire extinguisher through M.L.’s living room window,

reached through the broken glass, and pointed a gun at her. When M.L. and her friend
retreated to the bedroom, Butler used a second fire extinguisher to break the window of
the patio door that opened into her bedroom.
M.L. called the police, but they did not arrive until after Butler had left the scene.
Butler made phone calls to M.L. using his cellular telephone while the police were at the
apartment, and the police listened to the calls. M.L. testified that Butler was laughing on
the calls and said that he “ain’t finished.” Tr. at 39, ECF No. 22-10.
At about 7:20 the next morning, a fire was reported at M.L.’s apartment. M.L.
was not in her apartment at the time—because of the damage to her apartment from the
night before, she was staying at a friend’s house. However, one of M.L.’s neighbors
was at home at the time of the fire and was trapped in her apartment. A firefighter
rescued the neighbor, but he was injured in the process.
A few hours after the fire was reported, M.L. discovered that she had received
text messages from Butler earlier that morning, while her phone was off. The messages
were not sent from Butler’s phone, but M.L. could tell that they were authored by Butler.
Some of the texts either strongly implied or directly stated that M.L.’s apartment was on
fire. One text said, among other things, that “I smell fire.” Tr. at 45, ECF No. 22-10.
Another text read, “Thanks for my movies and da drank ha-ha. You better go put that
fire out.” Id. at 46. Another read, “I told you I’m just getting started, ho. Why, I’m
guessing you getting fucked. Your ho[u]se is on fire, ho. Ha-ha.” Id. Still another read,
“I told you this ain’t what you want. Now your house is on fire, ho.” Id. at 47. Still
another read, “Watch my movies and da drink, and yo house went up in flames. Ha, ha,

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ha. I told you I was going to catch you.” Id. at 50. Another text suggested that M.L.’s
clothes and her couch had been set on fire. Id.
The police investigated the fire as a possible arson, and Butler was a suspect. A
detective subpoenaed Butler’s cell phone records from his carrier. The carrier gave the
police a report listing all the calls that Butler made on February 21, 2011, the numbers
that he called, the time of the calls, the cell tower that Butler’s calls connected to, the
GPS coordinates of each of the towers, and which antenna on the tower serviced the
call. As to this last bit of data, the testimony at trial established that, typically, a cell
tower will have three antennae, with each antenna pointing in a different direction. Each
antenna generally covers a 120-degree sector of a circle (with the tower at the center of
the circle) such that the three antennae together provide 360-degrees of coverage
around the tower. The cell phone records indicate which antenna on the tower was
used to compete the call. This, in turn, provides some indication of the direction from
which the call was made. For example, a call made from the south side of the tower will
generally connect with an antenna whose 120-degree sector includes the south side of
the tower.
After the detective received Butler’s cell phone records, she gave them to a
fellow officer, Brian Brosseau, who worked in the department’s “Intelligence Fusion
Center.”

Brosseau’s duties included mapping and analyzing cell phone records.

Brosseau used the cell phone records to create a map showing the locations of the cell
towers that were used to make each call. Brosseau then added “pie slices” to the map
to show the estimated coverage area of the antenna on each tower that the phone
connected to. Each pie slice was a sector of a circle with the cell tower at the center.

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The central angle of each sector was 120 degrees, to reflect the 120-degree coverage
area of the antenna.

Each radius represented a one-mile or one-and-a-half-mile

distance from the cell tower, which Brosseau testified represented the typical range of
an antenna located in the City of Milwaukee. Tr. at 100, ECF No. 35-1.
At trial, Brosseau testified about his map and about the general operation of cell
phones and cell towers. A second police officer, Eric Draeger, offered similar testimony.
Brosseau’s map showed that, on the morning of the fire, Butler’s phone made a
series of calls that connected to cell towers along a path from Butler’s uncle’s house to
M.L.’s residence, and then to the home of Butler’s uncle’s girlfriend, Melveretta
Bradford. The path corresponded with Milwaukee County bus routes that a person
could have used to get from Butler’s uncle’s house to M.L.’s house, and then from
M.L.’s house to Bradford’s house. The cell records also showed that, approximately two
hours before the fire, Butler’s phone called the Milwaukee County Transit System’s
automated route-information number.

The police also determined that the text

messages that M.L. received on the morning of the fire—which taunted her about the
fact that her house was on fire—were sent from cell phones that belonged to Bradford’s
children. These text messages were sent approximately 90 minutes after the fire.
Neither Brosseau nor Draeger opined that Butler’s phone was definitely within
each pie slice on the map at the times reflected. Rather, Brosseau testified that cell
phones will connect with the tower sending the strongest signal to the phone, and that
usually this is the closest tower. Tr. at 89–90, ECF No. 35-1. But he noted that not
every call will connect with the closest tower because other factors, including weather
and terrain, may cause a more distant tower to send a stronger signal to the phone. Id.

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at 90. Employees from two cell phone companies (Sprint and Verizon) also testified
that cell phones will connect with the tower sending the strongest signal and that usually
but not always this is the closest tower. Tr. at 75 & 99–101, ECF No. 22-9.
Butler did not testify at the trial. However, his uncle testified that Butler was with
him at Bradford’s house for the entire time starting on the Friday before the fire until
after the fire occurred on Monday morning. Tr. at 13–21, ECF No. 22-11. Butler’s uncle
testified that he saw Butler in the house at 7:30 a.m. on the morning of the fire. Id. at
20.

This testimony was intended to provide Butler with an alibi, as Butler’s uncle

testified to seeing Butler at almost the exact time that the fire was reported. Because
Bradford’s house was located more than 10 miles from M.L.’s house, Butler could not
have been at M.L.’s house if in fact his uncle was with him at Bradford’s house at 7:30
a.m.
The jury convicted Butler on the arson and the recklessly-endangering-safety
counts. It was unable to reach a verdict on a criminal-damage-to-property count that
arose out of the events that occurred at M.L.’s apartment the night before the fire.
Butler filed a postconviction motion claiming that his trial counsel rendered
ineffective assistance by not objecting to the testimony of Officers Brosseau and
Draeger. Butler argued that these officers gave expert testimony and opinions, and that
trial counsel should have asked for a hearing to determine if they were qualified to give
that testimony and whether their opinions satisfied the criteria of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), which the State of Wisconsin had recently
incorporated into its rules of evidence.

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After Butler filed this motion, the parties suggested that the trial court hold a posttrial Daubert hearing to determine if the officers’ testimony was admissible.

They

reasoned that if the testimony would have been admissible under Daubert, then Butler’s
trial counsel could not have been ineffective in failing to object on that ground. The trial
court agreed with this approach and held what the state courts and the parties
described as a nunc pro tunc Daubert hearing.

At this hearing, both officers testified

that they had received training about cell phone records and how to use them for lawenforcement purposes. They also testified that the map used at trial was largely nothing
more than a visual depiction of the data included in the cell phone records—Brosseau
merely displayed on a map the geographic location of each cell tower, and the direction
of the antenna to which the phone connected. However, Brosseau also testified that he
added an “approximate range of service” for each cell tower—meaning the mile-to-mileand-a-half distance represented by the radii of the sectors on the map. Tr. at 21–22,
ECF No. 22-14. He testified that this range of service was based on his “training and
experience,” meaning the Fusion Center’s experience that “[i]n the Milwaukee metro
area . . . towers generally cannot reach more than a mile-and-a-half.”

Id.

Neither

Brosseau nor Draeger testified that information relating to the approximate range of
service of the cell towers was included in the data that the police received from the cell
phone companies.
Butler’s postconviction counsel cross-examined Brosseau and Draeger about
their methodologies. In particular, he was interested in the error rate for the kind of cell
phone tracking they performed in this case. Neither officer could specify an error rate,
but they testified that they knew from experience that their methodology worked.

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Draeger in particular testified that the Fusion Center used the same methodology that
the officers employed in Butler’s case to track cell phones in real time. He testified that
the police routinely find people located within the coverage areas estimated by the pie
slices, and that from this he infers that the methodology works. Tr. at 24 & 28, ECF No.
22-14.
After the Daubert hearing, the trial court issued an oral ruling finding that the
officers’ trial testimony was admissible. ECF No. 22-1 at p. 42 of 57. The court found
that “the majority” of the officers’ testimony was lay testimony rather than expert
testimony under the Wisconsin rules of evidence. Id. at 48. The court stated that this
lay testimony consisted of merely plotting the locations of cell towers on a map, which
was more of a clerical exercise than a task requiring specialized expertise. However,
the court also found that the officers had received extensive training in the area of cell
phone tracking and that, to the extent any part of either officer’s testimony could be
thought to be expert testimony, the officers were qualified to give that testimony. Id at
48–49. The trial court thus found that Butler’s trial counsel did not render ineffective
assistance in failing to object to the testimony.
Butler appealed the trial court’s ruling to the Wisconsin Court of Appeals. That
court affirmed, holding that no part of the officers’ testimony constituted expert
testimony under the Wisconsin rules of evidence, and that therefore trial counsel did not
perform deficiently in failing to object to the testimony, and Butler did not suffer
prejudice.

The court stated that “a witness need not be an expert to take the

information provided by a cell phone provider and transfer that information onto a map,
which creates a visual aid from which a jury can more easily understand that

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information.” Op. at 12, ECF No. 22-5. The court then found that the officers did no
more than visually depict information already contained in the cell phone records and
that, therefore, they did not have to qualify as experts or satisfy the other Daubert
requirements. Id. at 12–15.
Butler, still represented by appellate counsel, filed a petition for review in the
Wisconsin Supreme Court.

The petition raised a single issue: “Does police officer

testimony about cell phone towers’ range and area of coverage qualify as lay opinion
testimony.” Pet. for Review at 1, ECF No. 22-6. The Wisconsin Supreme Court denied
review.
In his federal habeas petition,1 Butler, now proceeding pro se, alleges a single
ground for relief: that his trial counsel rendered ineffective assistance when he failed to
object to the testimony of Officers Brosseau and Draeger.

Butler argues that the

officers did not qualify as experts under Daubert, and that their testimony was not
admissible lay testimony.
In the respondent’s view, Butler’s habeas petition raises two claims: (1) that his
trial counsel was ineffective in failing to object to the officers’ testimony on the ground
that it was improper expert testimony, and (2) that his trial counsel was ineffective in
failing to object to the officers’ testimony on the ground that it was improper lay
testimony. The respondent then contends that Butler has procedurally defaulted his
claim that trial counsel was ineffective in failing to object to the officer’s testimony as
improper expert testimony. This is so, argues the respondent, because, in his petition
for review in the Wisconsin Supreme Court, Butler failed to raise this claim; instead, he
1

I granted Butler leave to file an amended petition, so any references to the petition are
to the amended petition at ECF No. 20.
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argued only that his counsel was ineffective in failing to object to the officers’ testimony
on the ground that it was improper lay testimony. The respondent concedes that Butler
properly preserved his ineffective-assistance claim based on the latter argument, but he
contends that the argument fails on the merits. For purposes of this opinion, I will
assume that Butler did not procedurally default any aspect of his claim of ineffective
assistance of counsel and will address the entire claim on the merits. See Carrion v.
Butler, 835 F.3d 764, 772 (7th Cir. 2016) (federal court can reject a habeas petition on
the merits without resolving respondent’s procedural defenses, including procedural
default).
II. DISCUSSION
Butler contends that he is entitled to habeas relief because his trial counsel
rendered ineffective assistance.

To establish a claim of ineffective assistance of

counsel, Butler must show that his counsel performed deficiently and that he suffered
prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687–94 (1984). To
establish deficient performance, Butler must demonstrate that counsel’s representation
fell below an objective standard of reasonableness as measured by prevailing
professional norms. Id. at 687. This requires showing that counsel made errors so
serious that he was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Id. To establish prejudice, Butler must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. Id. at 694.
The Wisconsin Court of Appeals resolved Butler’s claim of ineffective assistance
of counsel on the merits, and therefore the standard of review in 28 U.S.C. § 2254(d)

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applies. Under that standard, I may grant relief only if the court’s adjudication of the
claim resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of
the United States, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state-court
proceeding.
At the outset, I note that the central issue in this case—whether the testimony of
Officers Brosseau and Draeger was admissible either as lay testimony or expert
testimony—is one of state law rather than federal law. Although this issue touches on
the federal Daubert standard, it does so only because Wisconsin has chosen to enact
that standard as part of its rules of evidence. The fact that Wisconsin has chosen to
enact the federal standard does not transform the question of the admissibility of the
officers’ testimony into a question of federal law. Rather, the question remains one of
state law, on which the state courts have the final say. See Milone v. Camp, 22 F.3d
693, 702 (7th Cir. 1994) (noting that the admissibility of evidence is generally a matter of
state law and that a federal court ordinarily may grant habeas relief based on a state
evidentiary ruling only when the admission of the evidence violated a specific
constitutional guarantee).

Thus, I cannot review whether the Wisconsin Court of

Appeals properly applied Daubert or the Wisconsin rules of evidence governing the
admissibility of lay opinions and expert testimony. In other words, the question in this
case is not whether the Wisconsin Court of Appeals reached a decision that was
contrary to, or involved an unreasonable application of, Daubert or any other Supreme
Court case on the admissibility of lay and expert opinion testimony. The question is

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whether the Wisconsin Court of Appeals reached a decision that was contrary to, or
involved an unreasonable application of, Strickland and other Supreme Court cases
concerning ineffective assistance of counsel. But here it is clear that the Wisconsin
Court of Appeals did not reach such a decision. The court found that, because the
officers’ testimony was admissible under state law, Butler’s counsel could not have
been ineffective in failing to object to the testimony.

This was a straightforward

application of Strickland and was in accord with federal law. See Hough v. Anderson,
272 F.3d 878, 898 (7th Cir. 2001) (“An ineffective assistance claim based on a failure to
object is tied to the admissibility of the underlying evidence. If evidence admitted without
objection was admissible, then the complained of action fails both prongs of the
Strickland test: failing to object to admissible evidence cannot be a professionally
‘unreasonable’ action, nor can it prejudice the defendant against whom the evidence
was admitted.”).
However, a remaining question is whether the Wisconsin Court of Appeals based
its disposition of Butler’s claim of ineffective assistance of counsel on an unreasonable
determination of the facts in light of the evidence presented in the state-court
proceeding. See 28 U.S.C. § 2254(d)(2). And here I think it might have. The court of
appeals based its conclusion that the officers’ testimony was not expert testimony on
the factual premise that they did nothing more than “take the information provided by a
cell phone provider and transfer that information onto a map, which creates a visual aid
from which a jury can more easily understand that information.” Op. at 12, ECF No. 225. But it is clear from both the officers’ testimony at trial and their testimony at the nunc
pro tunc Daubert hearing that they did more than that. They also applied some level of

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expertise when they created the pie slices that represented the approximate coverage
area of the antenna on each tower that Butler’s phone connected to. The cell phone
records did not state that each antenna had a range of about a mile or a mile-and-ahalf. Nor did either of the witnesses who worked for the cell phone companies testify
that an antenna located in the City of Milwaukee has a range of about a mile to a mileand-a-half.

Rather, the officers testified that, based on their prior experience, they

believed that an antenna located in the Milwaukee metro area has such a range. Trial
Tr. at 107–07, ECF No. 35-1; Daubert Hr’g Tr. at 21–22, ECF No. 22-14. Presumably,
this belief was based on their prior experience using their cell phone tracking
methodology. See Daubert Hr’g Tr. at 24.
Because the officers clearly did more than just transfer information from the cell
phone records onto a map, it is at least arguable that the state court’s decision was
based on an unreasonable determination of the facts. Had the court accounted for the
officers’ testimony about how they created the pie slices emanating from each tower, it
might have found that the officers were giving expert testimony. The court also might
have found that the officers did not use a reliable methodology when they created the
pie slices. But I need not resolve these issues because, as explained below, even if the
pie slices had been removed from Officer Brosseau’s map, the remaining information on
the map (which consisted of nothing but information contained in the cell phone
records), when combined with the other admissible evidence at trial, would have clearly
shown that Butler’s phone was near M.L.’s house at the time of the fire. Thus, I find that

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Butler could not have been prejudiced by his trial counsel’s failure to object to the
officers’ testimony.2
At trial, the state used the cell phone data to show that Butler’s phone (and thus
likely Butler himself) travelled to the area of M.L.’s apartment at the approximate time of
the fire.

Butler’s defense, in turn, was that he was with his uncle at Melveretta

Bradford’s house the entire time, which was located more than 10 miles away from
M.L.’s apartment. See Tr. at 22, ECF No. 22-10 (M.L. testifies that she lived at 9239 N.
75th St. in Milwaukee); Tr. at 74–75, ECF No. 22-10 (Bradford testifies that she lived at
1252 N. 14th St. in Milwaukee). The raw cell phone data received from the carriers
showed that, about two hours before the fire, Butler’s phone made calls to the
Milwaukee County Transit System’s route-information line. This call connected through
a cell tower located near downtown Milwaukee, which was ten miles or more from
M.L.’s apartment. From that point on, the phone connected with other cell towers that
were located about one mile from a bus route that Butler could have used to travel
between downtown Milwaukee and M.L.’s apartment. At 7:28 a.m., which was shortly
after the fire was reported, Butler’s phone connected with a cell tower located about one
mile from M.L.’s apartment.

Then, between 7:50 a.m. and 8:35 a.m., the phone

connected with a series of towers that were located approximately one mile from a bus
route that Butler could have used to get from M.L.’s apartment to Melveretta Bradford’s
house.

After that (from 9:06 a.m. to 10:08 a.m.) someone used cell phones that

2

I reach this conclusion as a matter of de novo review, since I am assuming for
purposes of this discussion that the state court of appeals based its decision on an
unreasonable determination of the facts. See, e.g., Caffey v. Butler, 802 F.3d 884, 894
(7th Cir. 2015) (when deference under § 2254(d) no longer applies, the court conducts
de novo review).
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belonged to Bradford’s children to send text messages to M.L. that taunted her about
the fire.
The evidence described in the prior paragraph—which does not include the pie
slices that estimated the coverage area for each antenna—would have been sufficient
to demonstrate that Butler’s phone traveled from downtown Milwaukee to an area near
M.L.’s apartment at the approximate time of the fire. The testimony of the cell phone
company employees established that a phone will usually but not always connect to the
closest tower. Tr. at 75 & 99–101, ECF No. 22-9. Moreover, the raw cell data showed
that, on the morning of the fire, Butler’s phone was consistently connecting to towers
located near a bus route from downtown Milwaukee, to M.L.’s house, and then to
Melveretta Bradford’s house.

From these two premises—which did not depend on

expert testimony from Brosseau or Draeger—the jury would have easily concluded that
Butler’s phone travelled this path. It is simply implausible to think that Butler’s phone
would have consistently connected with towers located about one mile from that path if,
in fact, it was sitting stationary inside Melveretta Bradford’s house—which was more
than 10 miles from M.L.’s apartment—the entire time. This is true regardless of the
actual range and coverage area of any particular antenna. In other words, what was
important was the pattern that the cell data revealed, not the exact location of the phone
at any given time. Showing the geographic location of each cell tower was enough to
establish the pattern, and therefore it was unnecessary to also provide an estimated
coverage area for any particular tower.
What’s more, factoring into the analysis the numbers that the phone dialed and
the contents of the text messages that were later sent from Bradford’s children’s phones

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makes the conclusion that Butler took the bus to M.L.’s apartment and was there at the
approximate time of the fire inescapable.

The phone was used to call the transit

system’s route-information line, which is something that a person would do if he or she
intended to take the bus somewhere. Moreover, the text messages directly referenced
the fire, and the record does not suggest any way that Butler could have known about
the fire so soon after it occurred if he was not there to witness it.
In light of this evidence, Butler could not have suffered prejudice from the
inclusion of the pie slices on Officer Brosseau’s map and the officers’ testimony about
those pie slices.

Thus, even if the trial court would or should have sustained an

objection to the pie slices and the officers’ testimony about them, and even if trial
counsel rendered deficient performance in failing to make that objection, Butler could
not prevail on a claim of ineffective assistance of counsel.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that Butler’s petition for a writ of habeas
corpus is DENIED. The Clerk of Court shall enter final judgment. Pursuant to Rule 11
of the Rules Governing § 2254 Cases, I find that the petitioner has not made the
showing required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of
appealability.
Dated at Milwaukee, Wisconsin, this 3rd day of August, 2018.

s/Lynn Adelman
LYNN ADELMAN
District Judge

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