COURT OF APPEALS
DATED AND FILED
July 7, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Olu A. Rhodes,
from a judgment of the circuit court for Milwaukee County: patricia
Judge. Reversed and cause remanded
for a new trial.
Before Fine, Kessler and Brennan,
¶1 FINE, J. Olu A. Rhodes appeals a judgment entered after a
jury found him guilty of first-degree intentional homicide as party to a crime,
Stat. §§ 940.01(1)(a) & 939.05, and first-degree recklessly
endangering safety as party to a crime, see
Wis. Stat. §§ 941.30(1) &
939.05. Rhodes makes four
claims: (1) the trial court erred when
it cut off his cross-examination of Nari Rhodes while he was trying to “rebut
the State’s allegation that [Olu A. Rhodes] had a motive to harm the victim”;
(2) the trial court erroneously allowed a State witness to give allegedly unqualified
expert testimony; (3) the trial court erroneously allowed the State to use cellular
telephone records to place Olu A. Rhodes at the scene of the shootings; and (4) the
trial court erroneously excluded prior-conviction evidence of one of the
victims. We reverse on the first issue
and remand for a new trial; thus, we do not address the other issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive
issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514, 520 (Ct. App.
1989) (“cases should be decided on the narrowest possible ground”).
¶2 Olu A. Rhodes and his brother, Jelani Saleem,
were tried together for the shooting death of Robert Davis
and the shooting injury of Jonte
Watt. The State’s theory was that the brothers
because they thought he was responsible for the beating of their sister, Nari
Rhodes, and that Watt was an unlucky bystander.
Watt and his girlfriend, Dominique Walker, were with Davis at the time of the shooting. Both Walker and Watt identified the brothers
as the shooters. The jury acquitted
¶3 In its opening statement, the State asserted that Davis
told two women to beat up Nari
Rhodes. Nari Rhodes testified that she had been
fighting with Davis, who was the father of her child. According to Nari Rhodes, Davis broke her car window during the
argument and took her cellular telephone and wallet. Nari Rhodes told the jury that after that she
was driving past one of the women’s homes when Davis came outside and stopped her. Nari Rhodes said that she asked him when he
was going to return her cellular telephone and wallet. According to Nari Rhodes, Davis then left, but the two women beat her.
¶4 After she was beaten, Nari Rhodes went home and then to a hospital
for treatment. She testified that her
brothers were at her home when she returned from the hospital, and that she
told them what had happened.
¶5 During Nari Rhodes’s
cross-examination by Olu
lawyer, the lawyer started to ask about Davis’s earlier beatings of her when
the State objected:
Q Were these … injuries that you’ve got
in these photographs, okay, in 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.
[Prosecutor]: I’m going to object at this time.
lawyer]: Judge, could -- If
you’re going to sustain that, I’d like to be heard at sidebar.
¶6 The sidebar was not recorded, and the trial court did not
allow Olu A.
Rhodes’s lawyer to ask Nari Rhodes any more questions about earlier beatings by
Davis. Later, without the jury present, the trial
court recounted the sidebar discussion:
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 … 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 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
¶7 The defense lawyer had explained that he was not going to ask
about every time Davis hurt Nari Rhodes, but, rather, was going to focus on one
serious incident where Davis broke Nari Rhodes’s orbital bone “to try and rebut
this motive information.” The defense
lawyer said that he then “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.” The lawyer indicated that he would
have then asked if her brothers retaliated, and that she would have replied that
there was “no response” from her brothers.
The defense lawyer argued: “I
think I’m entitled to rebut that motive evidence by showing that there had been
a previous … serious incident and my client took no action in response to
that. That was the purpose of that line of
questioning.” The trial court ruled that
this questioning would be “extraneous evidence that would mislead the jury on
other issues in a trial within a trial,” and thus excluded the evidence.
¶8 The State emphasized the motive evidence in its closing
[I]n this particular case, there is motive. There is motive for Olu Rhodes
and Jelani Saleem to kill Robert Davis;
and that is because as testified to, he had had a child with their sister, Nari Rhodes,
who testified; and on the afternoon before this happened, he became involved in
an argument with her. He broke her
window and the State submits he set up her beating.
This is the beating of Miss
Rhodes and this is what the defendant saw when she came home from the hospital,
and this is what they sought to avenge by killing Robert Davis; and now Nari
Rhodes attempted to minimize it, and Olu Rhodes says “I had given up,” and that
just doesn’t make sense at all.
What makes sense is that they
were horrified and angered by the fact that Nari Rhodes
took such a bad beating at the hands of Robert Davis’
other girlfriend. That is why they went
out. That is why Olu Rhodes followed
them on that morning and early afternoon, and that is why they shot and killed
¶9 A trial court’s decision to admit or exclude evidence is
discretionary, and we will not reverse if it was “‘in accordance with accepted
legal standards and in accordance with the facts of record.’” State v. Pharr,
115 Wis. 2d
334, 342, 340 N.W.2d 498, 501 (1983) (quoted source omitted). We review de
novo, however, whether the trial court’s decision comports with legal
principles. State v. Pittman,
174 Wis. 2d
255, 275, 496 N.W.2d 74, 82 (1993).
One of the trial-process concerns that sets boundaries
on what evidence the trial court may exclude in criminal trials is the
defendant’s right to confrontation.
Every defendant in a criminal case
is entitled to confront his or her accusers: In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses against him. U.S.
Const. amend. VI. This clause
applies to the states as well as to the federal government. The Wisconsin Constitution also guarantees the
right to confrontation: In all criminal
prosecutions the accused shall enjoy the right ... to meet the witnesses face
to face. Wis. Const. art. 1, § 7. The two clauses are, generally, coterminous.
State v. Yang, 2006 WI App 48, ¶10, 290 Wis. 2d 235, 243–244, 712
N.W.2d 400, 404 (internal quotation marks and case citations omitted). Thus, a “‘defendant’s right to confront the witnesses
against him is central to the truthfinding function of the criminal trial.’” Id., 2006 WI
App 48, ¶10, 290 Wis.
2d at 244, 712 N.W.2d at 404 (quoted source omitted). “‘The main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination.’” Davis v.
Alaska, 415 U.S.
308, 315–316 (1974) (quoted source and emphasis omitted). A defendant’s right to cross-examine is “‘an
essential and fundamental requirement for the kind of fair trial which is this
country’s constitutional goal.’” Yang,
2006 WI App 48, ¶10, 290 Wis.
2d at 244, 712 N.W.2d at 404 (quoted source and one set of quotation marks
¶10 A defendant’s “right to confront and to cross-examine is not
absolute[,]” however, and “‘trial judges retain wide latitude … to impose
reasonable limits.’” Id.,
2006 WI App 48, ¶10, 290 Wis.
2d at 244–245, 712 N.W.2d at 404–405 (quoted source omitted). 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. Accordingly, we reverse.
By the Court.—Judgment reversed and cause remanded for a new trial.
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