Hanson v. Beth, No. 13-1535 (7th Cir. 2013)
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Klinkhammer initiated a traffic stop after he clocked Hanson speeding. Hanson got out and Klinkhammer told Hanson to get back into his car. He later testified that Hanson was yelling and acting bizarrely. Hanson testified that Klinkhammer was screaming. Klinkhammer extended his baton and Hanson returned to the car. Klinkhammer approached, took Hanson’s license, and walked toward his cruiser, Hanson left the car again. Klinkhammer brandished his baton and eventually stated that Hanson was under arrest. Hanson ran for his car. Klinkhammer grabbed at Hanson’s shirt and struck him with the baton. Hanson got into his car, drove off and called 911, stating that Klinkhammer was endangering his life. The dispatcher told him not to move because backup was on the way, but Hanson drove to the police station. Another police car tried to block Hanson, but Hanson navigated around it. Hanson stopped at a red light; police surrounded his car with guns drawn. Hanson turned off his engine and put his hands up, but would not move, so the officers smashed a window to pull him out. Charged with felony fleeing‐and‐eluding, Hanson was not allowed to introduce testimony from a school principal with whom Klinkhammer had worked that Klinkhammer had a reputation as confrontational, aggressive and hot‐tempered. The court concluded that this was a “victimless crime” to which the exception for propensity evidence did not apply. Sentenced to 60 days in jail, Hanson petitioned for habeas corpus, claiming that the ruling abridged his right to present an effective defense. The Seventh Circuit affirmed denial, finding that the last state‐court decision addressing this claim was not contrary to, or an unreasonable application of, Supreme Court precedent.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 1535 DANIEL HANSON, Petitioner Appellant, v. DAVID BETH, KENOSHA COUNTY SHERIFF, Respondent Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12 CV 408 J. P. Stadtmueller, Judge. ____________________ ARGUED NOVEMBER 15, 2013 DECIDED DECEMBER 17, 2013 ____________________ Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.* FLAUM, Circuit Judge. Daniel Hanson appeals from the district court s denial of his petition for a writ of habeas cor pus, which challenges his state conviction for fleeing and eluding a Wisconsin traffic officer. At his trial, Hanson * Of the Northern District of Illinois, sitting by designation. 2 No. 13 1535 sought to introduce testimony that the police officer from whom he fled had a confrontational, aggressive and hot tempered character, but the trial court excluded the evi dence under Wisconsin s analogue to Federal Rule of Evi dence 404(a). Hanson was convicted and sentenced to sixty days in jail. He petitioned for a writ of habeas corpus, claim ing that the trial court s evidentiary ruling abridged his con stitutional right to present an effective defense. Because we do not find the last state court decision addressing this claim to be contrary to, or an unreasonable application of, Su preme Court precedent, we affirm. I. Background On June 29, 2006, Kenosha County Sheriff s Deputy Eric Klinkhammer initiated a traffic stop after he clocked Daniel Hanson s Ford Mustang travelling 15 mph over the speed limit. It is fair to say that the stop did not pan out as either party might have wished. Upon coming to a halt, Hanson got out of his vehicle waving his driver s license. Klinkhammer told Hanson to get back into his car. He testified that Hanson was yelling that the officer was taking his rights away and that he didn t want to be there and was acting bizarrely. Hanson, howev er, stated that Klinkhammer was the one screaming really loudly and very frighteningly and said that he found the situation disorienting and confusing. Klinkhammer extend ed his police baton and again ordered Hanson to get back into his vehicle. Hanson finally returned to the driver s seat. Klinkhammer then approached the car on the passenger side, informed Hanson that he had been speeding, and took Hanson s license. No. 13 1535 3 As Klinkhammer walked back towards his police cruiser, Hanson exited the car a second time. Once again the situa tion became very tense. Klinkhammer re brandished his ba ton and ordered Hanson to return to the car; eventually he told Hanson that he was under arrest. Suddenly, Hanson turned and made a break for his vehicle. Klinkhammer grabbed at Hanson s shirt and struck him with the baton. However, Hanson tore himself loose, got back into the car, and locked the doors. Once inside the car, Hanson drove off and called 911 to get directions to the nearest police station. He told the dis patcher that Klinkhammer was endangering his life, and that he wanted to find cooler heads to defuse the situation. The dispatcher told him not to move because backup was on the way, but Hanson refused and insisted that he did not feel safe. Eventually, the dispatcher relented and gave Hanson directions to the Pleasant Prairie police station. Klinkhammer followed in his cruiser. A witness testified that Hanson was driving safely down the highway, but Klinkhammer said that at one point Hanson cut off a vehicle while changing lanes. At the off ramp, another police car tried to block Han son s progress, but Hanson navigated around it. The chase such as it was ended when Hanson stopped at a red light and police surrounded his car with guns drawn. Hanson, who later recounted that he had been absolutely terrified, turned off his engine and put his hands up. Klinkhammer demanded that Hanson open the door and exit the vehicle. Hanson did not comply, so the officers smashed the car win dow, pulled him out, and arrested him. 4 No. 13 1535 Hanson was eventually charged under Wisconsin s felo ny fleeing and eluding statute, Wis. Stat. § 346.04(3). His tri al strategy was to argue that he fled in self defense because he legitimately and reasonably feared for his safety. In sup port of this theory, he moved in limine to introduce testimo ny from a high school principal under whom Klinkhammer had worked as the school s liaison officer. The principal was prepared to testify that Klinkhammer had a reputation as being confrontational, aggressive and hot tempered. Importantly, Hanson did not claim that he knew of Klinkhammer s reputation prior to their encounter. Rather, he sought to advance a pure propensity theory: the princi pal s evidence showed that Klinkhammer was an aggressive person in general, and that made it more likely that Klinkhammer acted aggressively during the June 29 traffic stop. Like federal courts, Wisconsin largely excludes pro pensity evidence. Wis. Stat. § 904.04(1); Fed. R. Evid. 404(a)(1). But, also like federal courts, Wisconsin makes an exception if the character evidence is offered by the accused in a criminal case in order to prove a pertinent trait of char acter of the victim of the crime. Wis. Stat. § 904.04(1)(b); ac cord Fed. R. Evid. 404(a)(2)(B). Hanson accordingly argued that, within the meaning of the Wisconsin rule, Klinkhammer was a victim of Han son s conduct. Cf. State v. Haase, 293 Wis.2d 322, 330 (Ct. App. 2006) (holding that where the defendant eluded a police of ficer and caused damage to a squad car, the officer was a victim for purposes of restitution). The trial court rejected Hanson s theory. It concluded that fleeing and eluding was a victimless crime to which the exception in § 904.04(1)(b) did not apply. See 7 Daniel D. Blinka, Wisconsin Practice Se No. 13 1535 5 ries: Wisconsin Evidence § 404.5, at 165 66 (3d ed. 2008) (not ing that so called victimless crimes (e.g., drug dealing) fall within the general ban against using third parties character as circumstantial evidence of conduct ). Although deprived by this ruling of his corroborating propensity evidence, Hanson was still able to explain to the jury that he acted in self defense. Even so, the jury convicted him. He appealed to the Wisconsin Court of Appeals and again to the Wisconsin Supreme Court. State v. Hanson, 330 Wis.2d 140 (Ct. App. 2010); State v. Hanson, 338 Wis.2d 243 (2012). Both courts approved of the trial court s interpreta tion of Wisconsin s rules of evidence and affirmed Hanson s conviction. Hanson began serving his prison sentence on March 24, 2012, during which time he filed his petition for a writ of habeas corpus.1 II. Discussion So far, all we have described is a dispute about the mean ing of the term victim in Wis. Stat. § 904.04(1)(b). We may not quarrel with the Wisconsin Supreme Court s interpreta tion of its own rules of evidence, for it is not the province of a federal habeas court to reexamine state court determina tions on state law questions. Estelle v. McGuire, 502 U.S. 62, 67 68 (1991). But the question Hanson asks us to decide here is different (a point that may have been somewhat lost dur ing the state s oral argument). Hanson contends that, taking 1 Although Hanson has since been released from prison, his habeas peti tion is not moot because Wisconsin has not rebutted indeed, has con ceded the presumption that his felony conviction carries collateral con sequences. See Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir. 2012); Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998). 6 No. 13 1535 as given that Wisconsin s rules precluded him from intro ducing evidence in support of his self defense theory, the application of those rules at his trial violated his federal rights specifically, his constitutional right to present an ef fective defense. See, e.g., Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012) (noting that various constitutional provisions together embod[y] a substantive right to present a mean ingful and complete defense ). Our review of this federal question begins with the deci sion of the last state court to adjudicate the merits of the peti tioner s claim here, the Wisconsin Supreme Court. Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th Cir. 2013). The bulk of Hanson s argument before the state supreme court con cerned issues of state law. But he also raised the constitu tional claim we have just described, albeit only in a cursory fashion. Hanson, 338 Wis.2d at 265. The court dismissed it as follows: The right to present a defense is grounded in princi ples of due process and confrontation, and ensures that criminal defendants are not deprived of legiti mate opportunities to challenge the State s theory, and generally to present evidence that could create reasonable doubt in the minds of members of the jury. See Chambers v. Mississippi, 410 U.S. 284, 294 95 (1973). That right is limited, though, as this court and the United States Supreme Court have recognized. See, e.g., Taylor v. Illinois, 484 U.S. 400, 410 (1988) (ac knowledging limitations on constitutional right to present a defense, including exclusion of evidence inadmissible under standard rules of evidence ); State v. Pulizano, 155 Wis. 2d 633, 646 47 (1990) No. 13 1535 7 (same). As these and many other cases make clear, the rules of evidence generally have been held to comply with the constitutional right to present a defense. Hanson s challenge does nothing to draw those prec edents into question. See Crawford v. Washington, 541 U.S. 36, 68 (2004); Davis v. Washington, 547 U.S. 813, 822 (2006) (discussing exceptions to the hearsay rule and the right of confrontation). Id. at 265 66 (parallel citations omitted). Because this habeas corpus case involves a state court judgment, Hanson must show that the quoted paragraph was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Su preme Court of the United States. 28 U.S.C. § 2254(d)(1). For a decision to be contrary to clearly established law, it must either apply a rule that contradicts the governing law set forth in a Supreme Court case or come to a different out come than the Supreme Court has reached on materially in distinguishable facts. See Brown v. Payton, 544 U.S. 133, 141 (2005). For a decision to involve an unreasonable applica tion of clearly established law, the state court must apply the Supreme Court s precedents to the facts in an objective ly unreasonable manner. Id. The Supreme Court has not spoken directly to the consti tutionality of rules like Federal Rule of Evidence 404(a)(2) a problem for Hanson. Cf. Pack v. Page, 147 F.3d 586, 589 (7th Cir. 1998) ( [T]he Supreme Court has yet to hold that any application of a rape shield statute is inconsistent with the Constitution, making it particularly hard to say that failure to make a constitutional exception ¦ is contrary to ¦ clear ly established Federal law. ). Instead, it has described the 8 No. 13 1535 parameters of the right to present an effective defense in more general terms. The Court s cases stand for two basic propositions. First, rules of evidence must yield to a defend ant s constitutional right to present a defense when the rules infringe upon a weighty interest of the accused and are ar bitrary or disproportionate to the purposes they are de signed to serve. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks and alterations omitted); see also Rock v. Arkansas, 483 U.S. 44, 55 (1987) ( [A] state rule of evidence ¦ may not be applied mechanistically to defeat the ends of justice. ). Second, despite this limitation, [s]tate and federal rulemakers have broad latitude under the Constitu tion to establish rules excluding evidence from criminal tri als. Holmes, 547 U.S. at 324 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). Hanson argues that the Wisconsin Supreme Court s deci sion was contrary to this body of law because the court never asked whether applying § 904.04(1)(b) to exclude character evidence about Klinkhammer was arbitrary or dispropor tionate to the rule s purpose. Indeed, the court did not iden tify a purpose at all. It simply reasoned that (1) there is a right to present a defense, although it is limited; (2) most rules of evidence comply with this right; and (3) § 904.04(1)(b) is one of those rules. All this is true, but it does not follow that the state court applied the wrong rule. At most, Hanson s argument shows that the court voiced no rule at all that it moved from a ma jor premise (most rules of evidence are constitutional) to a conclusion (this rule of evidence is constitutional) without stating the minor premise that linked the two. Yet the Su preme Court has said that a state court does not need to cite, No. 13 1535 9 or even be aware of, its precedents so long as neither the reasoning nor the result of the state court decision contra dicts them. Early v. Packer, 537 U.S. 3, 8 (2002); see also Stock v. Rednour, 621 F.3d 644, 648 (7th Cir. 2010) ( Our review is of the state court s decision, not the cases that it cited (or failed to cite) along the way. ). The contrary to prong of § 2254(d) requires Hanson to show more than the state s fail ure to cite Holmes, Rock, or some other like case to justify its conclusion. It requires him to show that the state court s de cision contradicts clearly established law, Brown, 544 U.S. at 141, and nothing the state court said about Hanson s fed eral claim is out of step with the Supreme Court s cases. To the contrary, the court accurately stated their holdings. The second way Hanson can satisfy § 2254(d) is if the Wisconsin Supreme Court unreasonably applied clearly es tablished law if its ruling on the claim being presented in federal court was so lacking in justification that there was an error ¦ beyond any possibility for fairminded disagree ment. Harrington v. Richter, 131 S. Ct. 770, 786 87 (2011). Federal courts must adopt this deferential approach even when state court decisions give no reasons for an outcome at all. See id. at 786 (facing a state court s one sentence sum mary disposition, a habeas court must determine what ar guments ¦ could have supported[] the state court s deci sion. ). It follows that federal courts must do the same where, as here, the state court gave some reasons for an out come without necessarily displaying all of its reasoning. Malinowski v. Smith, 509 F.3d 328 (7th Cir. 2007), is in structive. In that case, a state trial court excluded, as privi leged, testimony by the victim s school counselor concerning the young victim s difficulty perceiving and relating the 10 No. 13 1535 truth. The defendant claimed that this violated his right to present a defense. The operative state court decision did not reference the Holmes/Rock test, or even any federal law at all. Nevertheless, examining the relevant Supreme Court cases and the Wisconsin law at issue, we concluded that a fair minded jurist could determine that the evidence was consti tutionally excluded, and so we denied the writ. Id. at 335 39. The Wisconsin Supreme Court s decision in this case was likewise well within the realm of reasonableness. To begin with, the balancing approach required by Holmes and Rock involves very general interests. For that reason, we recently cautioned against reading Rock too broadly in the habeas context. See Arredondo v. Huibregtse, 542 F.3d 1155, 1170 (7th Cir. 2008). We also noted that a state court s application of the Rock methodology entails a substantial element of judg ment, so that the state court is entitled to more leeway on habeas corpus review. Id. (internal quotation marks omit ted). Our review of the Wisconsin s court s decision is thus even more deferential than usual. Wis. Stat. § 904.04(1)(b) also tracks FRE 404(a)(2)(B) and thus falls squarely within those standard rules of evidence that the Supreme Court has said almost always pass consti tutional muster. Taylor v. Illinois, 484 U.S. 400, 410 (1988). Just this year, the Court observed that [o]nly rarely have we held that the right to present a complete defense was violat ed by the exclusion of defense evidence under a state rule of evidence. Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam). The Court also noted that the constitutional pro priety of a state rule that was akin to [a] widely accepted rule of evidence ¦ cannot be seriously disputed. Id. at 1993; see also Montana v. Egelhoff, 518 U.S. 37, 42 (1996) ( [A]ny No. 13 1535 11 number of familiar and unquestionably constitutional evi dentiary rules authorize the exclusion of relevant evi dence. ); Harding v. Sternes, 380 F.3d 1034, 1048 (7th Cir. 2004) ( Rule 404(b) is not unconstitutional and therefore Illi nois equivalent is not unconstitutional. ). We think it very unlikely that § 904.04(1) would disturb this trend. As the Wisconsin Supreme Court observed in re gards to the state evidentiary issue, excluding the character evidence about Klinkhammer served important, nonarbi trary goals. The evidence would have added little to the ju ryʹs understanding of [Hanson s] actions during the traffic stop, and ¦ likely would have confused the relevant issues. Hanson, 338 Wis.2d at 265. These are classic reasons to ex clude character evidence. See, e.g., Michelson v. United States, 335 U.S. 469, 476 (1948) (the exclusion of character evidence tends to prevent confusion of issues ¦ and undue preju dice ); Advisory Committee s Note to Fed. R. Evid. 404(a) (1972) ( Character evidence is of slight probative value and ¦ tends to distract the trier of fact from the main question of what actually happened on the particular occasion. ). Nor does the exclusion of Hanson s proffered character evidence seem disproportionate to these interests. Holmes, 547 U.S. at 324. Even though the high school principal s tes timony was excluded, the exclusion of this character evi dence did not prevent the real controversy Hanson s self defense claim from being tried. Hanson, 330 Wis.2d at 155. As the Wisconsin Court of Appeals noted, Hanson told the jury directly about his version of the traffic stop. He testi fied that Klinkhammer screamed at the top of his lungs, took out his baton, acted gruffly and angrily in taking Hanson s license, grabbed him, ripped his shirt, and struck 12 No. 13 1535 him on the back of the head. Id. In addition, [t]he jury also heard testimony from four character witnesses that Hanson is a truthful and fair person, id., along with testimony from Klinkhammer, another police officer, an intern riding in Klinkhammer s car, and an onlooker, id. at 150. In light of Hanson s opportunity to make his case and the risks associ ated with character evidence in general, there is little reason to think that excluding the evidence violated Hanson s con stitutional rights. Cf. Fontini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (rejecting a challenge to the exclusion of evidence where the defendant offered direct testimony on the perti nent issue of self defense and the exclusion was at best in direct evidence which [did] no more than add to existing proof that [the victim] was in a mood to lunge ). One other aspect of Hanson s position is worth pausing to consider. A traditional rationale for victim character rules like § 904.04(1)(b) is that they give defendants a counter weight against the strong investigative and prosecutorial re sources of the government. Christopher B. Mueller & Laird C. Kirkpatrick, Evidence: Practice Under the Rules 264 65 (2d ed. 1999). The gist of Hanson s argument is that both the de fendant charged with fleeing the police and the defendant charged with assault need such a counterweight. Both seek to introduce character evidence for the same purpose: to show that they acted (i.e., fled or attacked) because of anoth er person s (i.e., the police officer or the victim s) aggressive actions. Yet only the latter defendant is allowed to introduce the evidence at trial. Indeed, as Hanson notes, Wisconsin s interpretation of victim implies that he would have been better off from an evidentiary perspective if he had as No. 13 1535 13 saulted Officer Klinkhammer instead of driving to the police station.2 At bottom, then, Hanson s argument is not really about whether an individual affected by a particular crime is a victim or not. It is about whether, once a state decides that some third party propensity evidence can be introduced to show a defendant acted in self defense, the state must give an airtight rationale for extending that option to defendants charged with some crimes but not others. That is a tall order. The narrow exceptions that allow cer tain types of propensity evidence to be used in criminal trials have a long pedigree, and are now so deeply imbedded in our jurisprudence as to assume almost constitutional pro portions and to override doubts of the basic relevancy of the evidence. Advisory Committee s Note to Fed. R. Evid. 404(a). But their basis lies more in history and experience than in logic. Id. They are dispensation[s] from the ordi nary rules of evidence, and a curious dispensation indeed. United States v. Burke, 781 F.2d 1234, 1239 (7th Cir. 1985). The victim exception in particular was historically confined largely to cases involving homicide, assault, or rape, even though, as Hanson contends, its rationale might arguably cut more broadly. See H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Penn. L. Rev. 845, 856 n.34 (1982). The Supreme Court long ago acknowledged the general opinion of courts, textwriters and the profession that as 2 But note: battery of a police officer is a Class H felony (punishable by up to 6 years in prison) while simply fleeing is only Class I (up to 3 years, 6 months). See Wis. Stat. §§ 346.17(3)(a), 939.50(3) & 940.20(2). 14 No. 13 1535 pects of character evidence law are archaic, paradoxical and full of compromises and compensations. Michelson, 335 U.S. at 486. To pull one misshapen stone out of the gro tesque structure, as Hanson suggests we do here, may simi larly be more likely simply to upset its present balance be tween adverse interests than to establish a rational edifice. Id. In any event, the standards that govern habeas corpus review of state court judgments ensure that we need not de cide that question in this case. Excluding the character evi dence about Officer Klinkhammer focused the jury on the relevant issues while still permitting Hanson to make a vig orous case that he was acting in self defense when he fled the scene of the traffic stop. The Wisconsin Supreme Court s decision rejecting Hanson s constitutional claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and we must therefore deny Hanson s petition. III. Conclusion We AFFIRM the judgment of the district court.
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