2011 WI 73
Supreme Court of Wisconsin
Olu A. Rhodes,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 329
(Ct. App. 2010 – Unpublished)
July 14, 2011
Submitted on Briefs:
February 3, 2011
Source of Appeal:
Patricia D. McMahon
ABRAHAMSON, C. J. dissents (Opinion filed).
BRADLEY, J. joins dissent.
For the plaintiff-respondent-petitioner the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant
there were briefs and oral argument by John
J. Grau, Grau Law Office,
2011 WI 73
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN :
IN SUPREME COURT
Olu A. Rhodes,
JUL 14, 2011
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals.
State v. Rhodes, No. 2009AP25, unpublished slip op. (Wis. Ct.
App. July 7, 2010). The court of appeals
reversed a judgment of conviction entered on a jury verdict finding Olu A.
¶2 On appeal,
¶3 We conclude that the circuit court did not violate the confrontation clause of the Sixth Amendment when it exercised its discretion in limiting the cross-examination of Nari Rhodes. The court reasonably limited the defendant's cross-examination of his sister about incidents of domestic abuse against her by the victim of the homicide to avoid confusing the issues and misleading the jury. This limitation did not prevent the defendant from presenting evidence to rebut the State's theory of the defendant's motive for the crime, and to make that argument in closing.
¶4 Accordingly, we reverse the decision of the court of appeals and remand the case to the court of appeals for consideration of the other grounds presented by the defendant.
I. BACKGROUND AND PROCEDURAL HISTORY
¶5 Olu Rhodes and his brother, Jelani Saleem (Saleem), were tried together
for the murder of Robert Davis (
¶6 The State's theory of the case was that Rhodes and Saleem killed
¶7 The defense theory was simply that Olu Rhodes and Jelani Saleem
were not involved in the shooting. The
defense sought to rebut the State's motive evidence by showing that Rhodes and
Saleem had not avenged other, prior injuries inflicted on Nari by
¶8 During the course of the trial, the jury heard testimony from multiple
witnesses including Jonte Watt, Dominique Walker, Nari Rhodes, Detective David Salazar,
and Olu Rhodes. Jelani Saleem did not
take the stand. Watt testified that
around noon on April 4, 2006, Watt, Davis, and Dominique Walker were driving
around in Watt's car when they noticed Rhodes following them in his red Buick
¶9 As Watt and Davis were waiting on the porch of the grandmother's
¶11 Nari Rhodes was called as a prosecution witness to support the
State's theory of motive for the shooting.
She testified that she had a tense argument with
¶12 Nari testified that after she returned from the hospital, she told
Rhodes and Saleem about the beating from Segura and
¶13 Midway through her testimony, Nari alluded to previous domestic
violence problems with
¶14 On cross-examination, Nari testified that she wanted to get back at
¶15 Detective Salazar testified that on the day of the shooting, he
interviewed Letitia Dotson (Dotson), the mother of
¶16 At trial, Dotson denied making those statements to Detective
Salazar. Salazar's account of the
interview was corroborated, however, by the testimony of his partner, Detective
Willie Huerta, who had participated in the interview. It also was corroborated by a report Huerta
prepared the day of the interview.
Furthermore, the State presented two witnesses who testified about the
use of a cell phone belonging to Saleem.
An employee of Sprint Nextel
presented cell phone records that documented the calls made from Saleem's
phone. In addition, a criminal
intelligence analyst from the Department of Justice took the call location and
time information provided by Sprint and plotted it on a map to show
¶18 The jury found
¶20 The State petitioned this court for review, which we granted on September 24, 2010.
II. STANDARD OF REVIEW
¶21 The State's appeal requires us to determine whether the circuit
court properly exercised its discretion in limiting
¶22 Limiting cross-examination is limiting the introduction of
evidence. A circuit court's decision to
admit or exclude evidence will be viewed as a proper discretionary
determination so long as it was made "in accordance with accepted legal
standards and in accordance with the facts of record." State v.
¶23 In the context of a constitutional challenge to limitations on
cross-examination, the United States Supreme Court has observed, "[T]rial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose limits on cross-examination."
¶24 The court has, on occasion, articulated the standard of review
somewhat differently. In State v.
Williams, the court stated, "Although a circuit court's decision to
admit evidence is ordinarily a matter for the court's discretion, whether the
admission of evidence violates a defendant's right to confrontation is a
question of law subject to independent appellate review." State v. Williams, 2002 WI 58, ¶7, 253
¶25 The standard described in Williams, although articulated
differently from the standard in Van Arsdall, results in the same
analysis set forth in McCall——that
is, a reviewing court should reverse the circuit court if it determines that
the discretionary decision to limit cross-examination did not rely on the
appropriate and applicable law. McCall,
[A] trial court in an exercise of its discretion may reasonably reach a conclusion which another judge or another court may not reach, but it must be a decision which a reasonable judge or court could arrive at by the consideration of the relevant law, the facts, and a process of logical reasoning.
¶26 A reviewing court may not substitute its discretion for that of the
circuit court. McCall, 202
¶27 To address the issues presented, we consider first the history of the confrontation clause, the scope of its application, and its development in the context of cross-examination. We next review a circuit court's discretion to exclude relevant evidence under Wis. Stat. § 904.03, including testimonial evidence in the context of cross-examination and the confrontation clause. We then apply these principles of law to the facts of this case.
A. Confrontation Clause
¶28 The Sixth Amendment to the United States Constitution provides in
part that, "In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with
the witnesses against him." This right has been applied to the states
through the Fourteenth Amendment. Pointer
¶29 The Supreme Court has held that the "main and essential
purpose" of the confrontation clause is to give the accused an opportunity
to cross-examine the witnesses against him.
¶30 In Davis the Supreme Court considered a case in which the
trial court allowed some cross-examination of a prosecution witness, but did
not allow defense counsel to question the witness on his probation status at
the time of the events to which he was testifying.
¶31 Similarly, in Van Arsdall, the Supreme Court concluded that
the circuit court improperly curtailed all inquiry into the dismissal of a
pending public drunkenness charge against one of the prosecution's
witnesses. Van Arsdall, 475
[T]he focus of the Confrontation Clause is on individual witnesses. Accordingly, the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial. . . . We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.
¶32 The right to cross-examination, and thereby confrontation, is not,
¶33 The harmless error test, as the Court explained, is focused on
"whether, assuming that the damaging potential of the cross-examination
were fully realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt."
¶34 Because the right to cross-examination is not absolute, the right
to confrontation may be limited where necessary to further an important public
policy, so long as there are means to assure the reliability of the witness's
¶35 In Craig, the important public policy concern was the
protection of the "physical and psychological well-being" of children.
¶36 Similarly, courts have upheld limitations on cross-examination by a pro se defendant of a child witness in a sexual abuse case, Fields v. Murray, 49 F.3d 1024, 1034-37 (4th Cir. 1995); limitation on cross-examination about a witness's history of mental illness when the accused had been permitted to explore the issue outside the presence of the jury and was allowed to cross-examine the witness on his drug and alcohol history, U.S. v. Jones, 213 F.3d 1253, 1261 (10th Cir. 2000); and use of strongly corroborated testimony from the defendant's first trial, instead of presenting live testimony at the second trial, Lowery v. Anderson, 225 F.3d 833, 839-41 (7th Cir. 2000).
¶37 The Supreme Court also has recognized that the confrontation clause
does not guarantee cross-examination "that is effective in whatever way,
and to whatever extent, the defense might wish."
¶38 In addition, the right to cross-examination extends only to
evidence that is relevant. We have long
recognized that a defendant has no right, "constitutional or
otherwise," to present evidence on cross-examination that is not
¶39 As the Supreme Court explained in Van Arsdall, the right of cross-examination does not mean
that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.
Van Arsdall, 475
¶40 Accordingly, we have upheld limitations on cross-examination when
the circuit court properly exercises its discretion to preclude evidence that
is "irrelevant or immaterial," "designed to confuse the issues
in the instant case, and interject undue prejudice into the jury's decision
making process." McCall, 202
B. Exclusion Of Evidence Under
¶41 Wisconsin Stat. § 904.03 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
¶42 "Relevant evidence" is defined in Wis. Stat. § 904.01 as "evidence having any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence." Evidence need not bear
directly on one of the elements of the crime in order to be admissible, but may
bear on another "fact that is of consequence" to the determination of
the action. Holmes v. State, 76
Holmes, the factor of consequence was motive.
¶44 We apply the same analysis to discretionary decisions when the defendant's right to cross-examination under the confrontation clause may be implicated.
¶45 For example, in McCall, the defendant claimed his
constitutional right to confront his accusers was violated when the circuit
court limited his cross-examination of the victim. McCall, 202
¶46 We then concluded that the court of appeals erred when it
substituted its discretion for that of the circuit court.
¶47 We also found significant the fact that the record indicated the
defendant was able to present other evidence to give the jury reason to
discredit the victim's testimony.
¶48 In sum, we have consistently balanced a defendant's right to
cross-examination under the confrontation clause against the circuit court's
discretionary authority to exclude evidence that may lead to confusion of the
issues or confusion of the jury. See
State v. Hammer, 2000 WI 92, ¶¶42-43, 236
¶49 Rhodes' chief argument is that he should have been allowed to
cross-examine Nari to rebut the State's theory of motive——namely, that Rhodes and Saleem gunned down Davis, and
in the process also shot Watts, in an attempt to avenge the beating Nari had
incurred at Davis's alleged direction.
Rhodes argues that to effectively rebut the State's theory, he should
have been allowed to cross-examine Nari regarding the previous incidents of
domestic violence at
¶50 "The exposure of a witness's motivation in testifying
represents 'a proper and important function of the constitutionally protected
right of cross-examination.'" McCall,
direct examination, Nari detailed her beating on April 3 by Segura and
response to a question from the assistant district attorney about her
Q: You did tell us . . . on direct examination that there had been domestic violence or violence between yourself and Davis before, right?
Q: Before that date?
Q: In fact, Mr. Davis had attacked you previous to April 3, 2006; is that right?
. . . .
Q: [I]n your conflict with Mr. Davis, have there been other times when you've been injured?
Q: And what injuries had you received?
A: One side——My orbital bone in my eye was broken and it was like really bad. (Emphasis added.)
¶54 This is where the State objected and the court called a sidebar. The court blocked further questions on the subject. In the subsequent comment about the sidebar, defense counsel said:
I asked Nari Rhodes about a particular incident. She said her orbital bone had been broken. That's a fairly serious injury. My next question would have been, well, what's your orbital bone? The question——She would have described as something around her eye.
After that I would have asked her did she make her brothers aware of that injury and who would have inflicted it and she would have said yes. There was no response from her brothers.
That was proper for me to try and rebut this motive information that the State has come forward with.
¶55 The State objected that it did not have notice of that particular incident and said it had expressed concern before any evidence was introduced that the defense would make "a history of domestic abuse" by Davis an issue.
¶56 Judge McMahon stated that this possibility had been a concern from the beginning, which is why the court had made an initial "ruling that we not get into evidence——extraneous evidence that would mislead the jury on other issues in a trial within a trial which is the concern."
¶57 Motive is not an element of either first-degree intentional
homicide or first-degree recklessly endangering safety, the charges brought by
the State against Rhodes and Saleem. See
¶59 Nonetheless, the circuit court permissively exercised its
discretion in curtailing a full inquiry into prior incidents between Davis and
¶60 As discussed above, one of the grounds for exclusion of relevant
evidence under § 904.03
is the danger of "confusion of the issues." Another is the risk of "misleading the
¶61 Judge McMahon's concerns were not without reasonable basis. This case already involved two defendants,
only one of whom testified. Over the
course of the four-day trial, testimony was taken from sixteen witnesses,
¶62 Judge McMahon was concerned that the jury would be misled into an
improper focus on questions about motive and the alleged history of abuse
between the victim and Nari. There was
also the possibility that if Rhodes were allowed to emphasize his rebuttal
theory he would not have retaliated against
¶63 At the same time, Judge McMahon was clearly mindful of the
importance of allowing
¶64 If anything, Nari's testimony seemed to refute the State's theory
of motive, because she testified that she and Davis had a friendly
relationship, and that Davis repeatedly warned her to leave the scene when
Segura arrived and became angry. Nothing
in her testimony suggested that she believed
¶65 Rhodes, in turn, testified that he was aware of the history of
domestic violence by Davis against Nari, and that when he initially discovered
the abuse, he threw Davis out of the house.
He then proceeded to explain that as time went on, he saw that Nari
continued to return to
¶66 Both Rhodes and Nari were allowed to present their side of the
story. There is no indication that this
story would have been more persuasive if Nari had been allowed to testify that
there was no retaliation after the incident when
¶67 The circuit court was faced with a difficult dilemma, one that
required a delicate balance between
¶68 As we have already discussed, the right to cross-examination under
the confrontation clause is not absolute.
See Van Arsdall, 475
¶69 In this instance, the record supports the conclusion that Judge
McMahon's decision was the product of a logical process of reasoning, applying
the correct standard of law to the facts of the case.
¶70 Accordingly, we reverse the decision of the court of appeals and remand the case to the court of appeals for its consideration of the other grounds presented by the defendant.
¶71 The record shows that Judge McMahon applied a proper standard of
law in the exercise of her discretion, and it is not our place to substitute
our judgment for hers. We hold that
By the Court.—The decision of the court of appeals is reversed and the cause is remanded to the court of appeals for further proceedings consistent with this opinion.
¶72 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). A criminal defendant's fundamental right to confront witnesses is a central tenet of our system of justice, our process of truthfinding, and our concepts of fair trial.
¶73 Although the circuit court has wide latitude in excluding evidence, the criminal defendant's fundamental constitutional right in the present case to confront a witness through cross-examination was unconstitutionally truncated.
¶74 The State emphasized a retaliation motive theory throughout the prosecution of this case. In opening argument, throughout testimony, and in closing argument, the State's story of the case was that these brothers hunted down the victim in retaliation for their sister's beating of the day before. The State called Nari Rhodes to testify against the defendant for the purpose of establishing this motive theory.
¶75 The defendant had a fundamental constitutional right to confront this witness and test the probative value of the testimony through cross-examination.
¶76 I agree with Judge Fine, writing for the court of appeals, who balanced the circuit court's latitude in excluding evidence and the defendant's constitutional right as follows:
Here, although we acknowledge the trial court's "wide latitude," Rhodes's constitutional right to cross-examine was cut off too soon. As we have seen, the State emphasized the defendant's motive to avenge his sister's beating in its opening, during the testimony, and in its closing. The argument was that when Rhodes found out Davis had his sister beaten, he "hunted Davis down" and killed him. The trial court truncated Olu A. Rhodes's lack-of-motive defense when it stopped him from proving he did not react violently when Davis had earlier hurt his sister. Although, as the State argues, the jury could have concluded that the beating that the State contends gave Olu A. Rhodes the motive to kill Davis in this case was the last straw and that the earlier incidents contributed to what the State asserted was Olu A. Rhodes's and Saleem's rage, the jury could have also reached the conclusion advanced by Olu A. Rhodes's lawyer. This was, therefore, a matter that the jury had to resolve, and it needed to have a full picture of the dynamics that roiled the relationships in this case. By cutting off the cross-examination of Nari Rhodes when Olu A. Rhodes's lawyer was trying to rebut the State's motive theory, the trial court deprived Olu A. Rhodes of his constitutional right to a fair trial.
State v. Rhodes, No
2009AP25, unpublished slip op., ¶10
¶77 The majority presents numerous examples of situations in which it has been determined that it was reasonable to limit a defendant's ability to confront or cross-examine a witness. Majority op., ¶¶35-40.
¶78 I agree that the defendant's fundamental right to cross-examine a witness is not absolute or unlimited. A circuit court may impose reasonable limitations on a defendant's cross-examination when necessary, balancing competing interests.
¶79 The majority states that the appropriate analysis in reviewing the circuit court's determination regarding whether a limitation of the defendant's fundamental constitutional right was reasonable and necessary is the same analysis that is applied in reviewing any discretionary evidentiary decision of the circuit court. Majority op., ¶44. The majority analogizes the appropriate discretionary determination for limiting the defendant's fundamental constitutional right to confront a witness to the balancing of the probative value against the chance of undue prejudice to the defendant that the circuit court must perform in determining whether to allow the prosecution to present evidence. Majority op., ¶¶43-44.
¶80 A defendant's fundamental constitutional right of confrontation surely affords the defendant more protection and leeway in cross-examining a witness than the standard analysis used in discretionary evidentiary decisions when a fundamental constitutional right is not implicated. Indeed, in State v. St. George, 2002 WI 50, ¶38, 252 Wis. 2d 499, 643 N.W.2d 777, in which the defendant argued that his constitutional right to present a defense was violated through the exclusion of an expert witness, the court ruled: "One, the circuit court must adhere to the evidentiary rules applicable to expert witnesses, and two, because the defendant asserted that the exclusion of the evidence would violate his constitutional right to present a defense, the circuit court must consider the constitutional law principles in making its evidentiary ruling."
¶81 A similar two-fold legal analysis is applicable in the present case, in which the defendant asserts that the exclusion of evidence in cross-examination violates his constitutional right to confrontation.
¶82 In the present case, I conclude that the circuit court's limitation was not reasonable or necessary in light of the defendant's offer of proof, the competing interests examined by the circuit court, and the defendant's fundamental constitutional right.
¶83 For the reasons set forth, I dissent.
¶84 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
 Judge McMahon summarized the sidebar:
What happened at sidebar was there was questioning gone into the witness as to the injuries that she sustained as a result of Mr. Davis and there was an objection.
The Court had permitted previously reference to the fact there had been other incidents of domestic violence between her and Mr. Davis and . . . there were other issues involved, but I did stop you from going into each instance of alleged violence from Mr. Davis.
I felt that . . . We talked about this before on the record and I thought that there was an opportunity for fair response to raising it and——and it was raised. We were going to avoid it altogether, but it was raised, and I gave opportunity for fair response, but what you were doing was going into a[n] incident by incident which really gets into other acts and things that were not——there was no motion and there was no order to admit that.
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
 Nari Rhodes had already linked the "orbital bone" to her eye in her testimony.
 Nari Rhodes had already testified that Olu Rhodes had lived with his mother and sister for a number of years, which would have included the time when Nari sustained the orbital bone injury.
 Rhodes' brief spends
much time arguing that Nari's testimony should not have been excluded as
"other acts evidence" under State v. Sullivan, 216 Wis. 2d
768, 771-73, 576 N.W. 2d 30 (1988).
While counsel argued during the sidebar on the record about whether or
not a Sullivan analysis should apply to any prior assaults on Nari by
 Because we conclude that the circuit court did not err in limiting the cross-examination of Nari's testimony regarding her prior incidents of abuse, we do not reach the question of harmless error.