Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.william B. Chapman, Petitioner-appellant, v. Gordon A. Abrahamson, Respondent-appellee, 41 F.3d 1510 (7th Cir. 1995)

ORDER

William B. Chapman appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254, on the grounds that his constitutional right to present a defense was violated.¹  Mr. Chapman claims that his Sixth and Fourteenth Amendment rights were violated by the trial court's exclusion of opinion testimony from his former air force commander, Colonel Copotoski, that he was not the type of person to commit the charged crimes and testimony that Mr. Chapman's ex-wife had been reported for child abuse two and one half years before the charged crime.²  We believe that Chapman's trial was fundamentally fair and that his constitutional rights were not violated by the trial court's rulings.

ANALYSIS

A federal court exercising habeas corpus jurisdiction under 28 U.S.C. § 2254 may only grant relief to a petitioner in state custody if his custody violates federal statutory or constitutional law. Escobar v. O'Leary, 943 F.2d 711, 720 (7th Cir. 1991). An evidentiary ruling in a state court case will ordinarily not rise to the level of a constitutional violation since the evidentiary question itself is a matter of state law which rarely serves as a basis for granting a writ of habeas corpus. Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990). "Unless the petitioner demonstrates that 'a specific constitutional right has been violated, a federal court can issue a writ of habeas corpus only when a state evidentiary ruling violates the defendant's due process rights by denying him a fundamentally fair hearing.' " Id . (quoting Lee v. Flannigan, 884 F.2d 945, 953 (7th Cir. 1989), cert. denied, 497 U.S. 1027 (1990)). The petitioner bears the burden of persuasion that the admission or exclusion of evidence rendered the trial fundamentally unfair. United States ex rel. Shaw v. De Robertis, 755 F.2d 1279, 1281 n. 1 (7th Cir. 1985).

Upon review of the proffered testimony of Colonel Copotoski,³  we do not find the trial court's exclusion of Colonel Copotoski's testimony violated Chapman's constitutional rights. While Chapman has the right to introduce opinion testimony as to a relevant character trait, Chapman has failed to establish that Colonel Copotoski was qualified to offer any such testimony. Colonel Copotoski had minimal contact with Chapman as his supervisor while he was stationed at Loring Air Force base and had no contact with Chapman in his family environment or knowledge of Chapman's behavior with respect to his family.

Nor do we find that the trial court's exclusion of notes of Duska Day, a social worker in Maine who worked with Chapman's ex-wife, Lydia Chapman, two and one half years prior to the crime charged, violated Chapman's constitutional rights. Ms. Day's notes reported an incident of excessive spanking and another incident of possible physical abuse by Lydia Chapman two and one half years prior to the crime charged.⁴  Ms. Day's notes related to incidents remote in time, place, and circumstance from the crime charged and the Maine Department of Human Services, after conducting a full investigation based upon the reported incidents, found the allegations of child abuse unsubstantiated.

We also note that Ms. Day's notes recording abusive conduct on the part of Lydia Chapman have limited probative value, if any, as to whether Chapman abused and neglected his children and the exclusion of these notes did not violate Chapman's constitutional rights. A trial court's exclusion of evidence results in a constitutional violation only where the excluded evidence is relevant, material, and vital to the defendant such that the exclusion of the evidence could have affected the outcome of the trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 867-868 (1982); Sharlow v. Israel, 767 F.2d 373, 373-378 (7th Cir. 1985), cert denied, 475 U.S. 1022 (1986). The exclusion of statements by a third party admitting culpability for the crime is not vital to a defendant when he is also charged under Wisconsin's party to a crime statute, Sec. 939.05.⁵  Sharlow, 767 F.2d at 378 (Co-defendant's hearsay statements that he, rather than the defendant, shot the murder victim were not vital to the defendant's defense since the statements did not exculpate the defendant who could have been convicted under Wisconsin's party to a crime statute, Sec. 939.05, regardless of whether he or his co-defendant shot the victim). Since Chapman was charged under Wisconsin's party to a crime statute, Sec. 939.05, with respect to all counts of the indictment and convicted upon the basis of physical evidence, expert medical testimony, and testimony of Chapman's young daughter, Ms. Day's testimony was not vital. In addition, Chapman was able to testify at length about his ex-wife's abusive conduct toward their son and hence was not completely barred from bringing this defense.

Accordingly, we AFFIRM the judgment of the district court.