Horton, Anthony v. Grams, Gregory ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1008
ANTHONY HORTON,
Petitioner-Appellant,
v.
JON E. LITSCHER,
Secretary, Wisconsin
Department of Corrections,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 1233—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 13, 2005—DECIDED OCTOBER 26, 2005
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Anthony Horton appeals from the
denial of his petition for a writ of habeas corpus by the
United States District Court for the Eastern District of
Wisconsin. Mr. Horton was convicted of three counts of first
degree sexual assault of a child, in violation of Wis. Stat.
§ 948.02(1). He appealed his convictions, alleging that he
2 No. 05-1008
was deprived of his right to present a defense because the
trial court excluded testimony that the victim had lied about
the number of times she had had consensual sex with
another individual. Mr. Horton also challenged the trial
court’s exclusion of testimony that the victim was under
time pressure to explain her unexpected pregnancy, which
may have prompted her to falsely accuse Mr. Horton of
sexual assault. The Wisconsin Court of Appeals concluded
that, although the excluded testimony was relevant, it was
cumulative, and, consequently, its exclusion did not violate
the Constitution of the United States. After the Wisconsin
Supreme Court denied Mr. Horton’s petition for review, he
filed a petition for habeas relief in the United States District
Court for the Eastern District of Wisconsin. See 28 U.S.C.
§ 2254. On September 11, 2003, the district court denied Mr.
Horton’s petition, holding that the Wisconsin Court of
Appeals did not unreasonably apply clearly established
federal law, as articulated by the Supreme Court of the
United States. See id. § 2254(d)(1). We now affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
Anthony Horton’s convictions are based on a series of
incidents that occurred between October 1997 and March
1998 and involved his girlfriend’s eleven-year-old daughter,
Jessica Robinson. While living with Jessica’s family, Mr.
Horton allegedly entered Jessica’s bedroom in the middle of
the night and sexually assaulted her approximately twelve
times. On March 1, 1998, Jessica discovered that she was
pregnant. Four days later, she told her mother about the
No. 05-1008 3
pregnancy and claimed that Mr. Horton was the father.
Subsequently, Mr. Horton was indicted and charged with
four counts of first degree sexual assault of a child. See Wis.
Stat. § 948.02(1). Although DNA testing later established
that Mr. Horton was not the father of Jessica’s baby, and
Jessica admitted to having had sex with Randy, a friend of
her older brother’s, the state proceeded to trial on three
of the sexual assault charges.1
At trial, the prosecution called seven witnesses. Jessica
testified that Mr. Horton had sexually assaulted her a
number of times while he was living with her family. In
October 1995, when she was eight- or nine-years-old, he
came into her room while she was sleeping and touched her
in a sexual manner. While Jessica’s mother disbelieved the
allegations, charges for first degree sexual assault of a child
were brought by the State. Mr. Horton pled guilty to fourth
degree sexual assault and spent nine months in prison.2
According to Jessica’s testimony, Mr. Horton moved back
into the Robinson home after his release, and, around
October 1997, his sexual assault of her, this time including
sexual intercourse, resumed. Jessica explained that Mr.
1
The fourth count charged Mr. Horton with having sexual
intercourse with Jessica without consent and “caus[ing] [her]
pregnancy.” R.12, Ex.B at 101. When paternity testing later
confirmed that Mr. Horton was not the baby’s father, the state
moved to dismiss this count. R.44 at 3.
2
Specifically, Mr. Horton was issued a nine-month stayed
sentence, with two years probation. One of the conditions of his
sentence was that he have no contact with the victim. Because he
moved back into the Robinson home while on probation, the stay
on his sentence was revoked and he was required to serve nine
months in prison. R.43 at 6-7.
4 No. 05-1008
Horton often offered her gifts in exchange for remaining
quiet about their illicit activity. No physical evidence was
introduced at trial.
Jessica testified that, when she discovered that she was
pregnant, she knew that there was a possibility that Randy,
not Mr. Horton, might be the father. She testified that
TaShea, her friend and Mr. Horton’s niece, was with her
when she took the home pregnancy test and that, when the
test was positive, TaShea inquired about the identity of the
father. Jessica told her that the father was Randy; she made
no mention of Mr. Horton. However, when she revealed her
pregnancy to her mother four days later, she did not
mention Randy. Only after DNA testing eliminated the
possibility that Mr. Horton was the father3 did Jessica finally
disclose her relationship with Randy to her mother, noting
that she had had sex with Randy only once.
Debra, Jessica’s mother, also testified. She began by
discussing her relationship with Mr. Horton, including his
often violent conduct towards her. She then testified that
Jessica told her of the pregnancy on March 5, 1998 in the
school counselor’s office and that she subsequently took
Jessica to file a police report, and then for an abortion.
Lastly, she testified that Jessica never mentioned her
relationship with Randy until after DNA testing revealed
that Mr. Horton was not the father of her baby; then, Jessica
told her mother that she had thought “it was [Mr. Horton’s]
baby because [of] the number of times that he had had sex
3
At trial, the parties stipulated to the results of the paternity test:
specifically, that the DNA samples established that Mr. Horton
was not the father of the baby Jessica had been carrying. R.45 at
79.
No. 05-1008 5
with her,” and that she had only had sex with Randy once.
R.44 at 125-26.
Jessica’s seventeen-year-old cousin, Keionnia, testified
that, about six years before the trial, she had slept over at
her aunt Debra’s home. According to Keionnia, Mr. Horton,
who was living with Debra at the time, woke her up in the
middle of the night, offered her marijuana, and, after she fell
back asleep, sexually molested her. For this incident, Mr.
Horton was charged with first degree sexual assault of a
child. He pled guilty to fourth degree sexual assault on
April 26, 1993, and was sentenced to nine months in prison.
Four other witnesses were called by the State, whose
testimony is not directly relevant to this appeal.4
The defense submitted the theory that Jessica had a
motive to fabricate evidence. In the defense’s view, Jessica
had accused Mr. Horton of being the father of her child in
order to avoid moral culpability for her consensual sexual
activities with Randy, to protect Randy, and to remove Mr.
Horton, her primary disciplinarian, from her home. To
support this theory, the defense proffered the testimony of
4
Ms. Judy Walczak, the pediatric nurse who examined Jessica at
the hospital, testified to the details of Jessica’s medical exam. Ms.
Elizabeth Ghilardi, the clinical social worker at the hospital,
testified about the phenomenon of delayed reporting in child
sexual abuse cases, including a child’s hesitance to come forward
with evidence of sexual abuse, particularly when
adult authorities have previously disbelieved the child’s allega-
tions. Ms. Betsy Cocos, the social worker at Jessica’s school,
testified about Jessica’s emotional problems, including her
suicidal tendencies. Officer Kim Stein testified to Jessica’s
demeanor during the post-report interview, as well as the details,
as Jessica relayed them to her, of Jessica’s relationship with Mr.
Horton.
6 No. 05-1008
two witnesses: TaShea Horton, who was both a friend of
Jessica’s and Mr. Horton’s niece; and Trina Horton, who
was both TaShea’s mother and Mr. Horton’s sister. The State
filed a motion to exclude this testimony as irrelevant. R.45
at 111.
With regard to TaShea Horton, the trial court denied in
part and granted in part the State’s motion. It allowed
TaShea to testify that she was with Jessica when she took the
pregnancy test. At that time, which was prior to the disclo-
sure of DNA test results, she asked Jessica, “Who[se] baby
is it? Randy?”, to which Jessica responded, “Yes, I guess so.”
R.45 at 132. On recross-examination, when the defense
inquired why TaShea would ask this question, she was
permitted to explain that she “had seen Jessica and Randy
have sex twice” and that Jessica “used to tell [her] some-
times that they had sex.” Id. at 137.
However, the trial court precluded TaShea from testifying
that Jessica had told both her and her mother, Trina, that
Jessica and Randy had had sex four or five times, rather
than once--as Jessica had told her mother and the court. The
defense submitted that “[this conversation] goes directly to
Jessica’s credibility.” Id. at 126. The court held, however,
that the evidence was not relevant: it makes no difference,
the court explained, “whether Randy had sex with her one
time or five times or ten times.” Id. at 127. In the court’s
view, the frequency neither proved nor disproved whether
Mr. Horton sexually assaulted Jessica.
The trial court granted the State’s motion to exclude the
testimony of Trina Horton. According to the defense’s oral
offer of proof, Trina would have testified that, shortly after
March 1, TaShea confided in her about Jessica’s pregnancy.
Trina, along with TaShea, then confronted Jessica, and
Jessica admitted that she had had sex with Randy on four or
No. 05-1008 7
five occasions. According to the defense’s proffer, Trina
would have testified further that she then gave Jessica five
days to tell her mother of the situation; if Jessica failed to do
so, Trina would do so. The trial court prohibited Trina from
taking the stand, holding that this evidence does not have
“anything to do with whether or not this defendant commit-
ted the acts he is accused of committing.” Id. at 126.5
On August 7, 1998, Mr. Horton was convicted of three
counts of first degree sexual assault of a child. He was
sentenced to consecutive twenty- and forty-year terms in
prison, followed by forty years of probation.6
B. Proceedings on Direct Appeal and on Habeas Review
On direct appeal, the defendant argued that the trial
court’s exclusion of Trina’s testimony, as well as limitations
on TaShea’s testimony, violated his Sixth Amendment right
to present a defense.7 The Wisconsin Court of Appeals held
that Trina’s testimony on the five-day ultimatum “would
have been relevant to whatever inference of truthfulness the
5
The defendant did not take the stand in his own defense. As a
result, TaShea was the sole defense witness.
6
For count II, Mr. Horton received 20 years in prison; for count
III, he received 40 years in prison, to run consecutive to count II.
For count I, the court ordered 40 years probation, consecutive to
the sentences imposed in counts II and III. R.12, Ex.A at 1-2.
7
Other evidentiary questions arose during the trial and on Mr.
Horton’s direct appeal. For example, the trial court excluded
testimony that Jessica had stolen a home pregnancy kit and that
she knew Randy’s last name but lied about it to protect him.
These holdings have not been challenged on federal habeas
review.
8 No. 05-1008
jury might have drawn from the timing of Jessica’s accusa-
tions.” R.12, Ex.E at 6. Similarly, the excluded testimony on
the number of times Jessica and Randy had had sex “would
strengthen the defense claim that Jessica named [Mr.
Horton] as the father to protect Randy and minimize her
responsibility for her own consensual sexual activities.” Id.
at 7.
The Wisconsin appellate court nevertheless affirmed Mr.
Horton’s conviction. It held that the defense, even absent the
precluded testimony, had an opportunity to present fully its
theory of the case; therefore, Mr. Horton was not deprived
of the right to a fair trial. For example, Jessica testified that
she did not mention to her mother or to the police that
Randy might be the father of her baby, even though she
knew it was a possibility. She also admitted telling TaShea
that Randy was the father, long before DNA test results
were returned. Additionally, according to the state court, it
was clear that Jessica was under time pressure, given that
“the pregnancy could not be hidden forever.” Id.After Mr. Horton’s petition for review was denied by the
Wisconsin Supreme Court, he filed a petition for a writ of
habeas corpus in the United States District Court for the
Eastern District of Wisconsin. See 28 U.S.C. § 2254. He
alleged that the Wisconsin trial court’s limitations on
TaShea’s testimony and the exclusion of Trina’s testimony
violated his constitutional rights to confrontation, to
compulsory process and to present a defense.8 The district
court denied Mr. Horton’s petition. It held that the Wiscon-
8
The petitioner has presented these violations as a single issue,
rather than as separate claims. See Appellant’s Br. at 22. The
Wisconsin courts and the United States District Court treated the
alleged constitutional violations as a single claim as well.
No. 05-1008 9
sin Court of Appeals’ conclusion that the defendant had a
full and fair opportunity to present its theory of the case
was not an unreasonable application of federal law. Specifi-
cally, although the excluded evidence was relevant, a
review of the record indicated that there was sufficient
evidence to support the theory that Jessica accused Mr.
Horton to “protect Randy and minimize her responsibility
for her own consensual sexual activities.” R.14 at 4 (quoting
State v. Anthony H., 2000 WL 678535, at *4 (Wis. Ct. App.)).
For example, Mr. Horton was permitted to show that Jessica
gave contradictory answers concerning her “familiarity with
Randy her boyfriend, and the number of times they engaged
in consensual sexual activity.” Id. In light of this evidence,
the district court concluded that the Wisconsin Court of
Appeals did not act unreasonably in determining that the
state trial court did not deny Mr. Horton the right to present
a defense.
II
DISCUSSION
A. Standard of Review
We review the district court’s denial of Mr. Horton’s
petition de novo. Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002). The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) mandates that Mr. Horton may be
granted habeas relief only if the state court’s adjudication
“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.”
28 U.S.C. § 2254(d)(1).
Under the “contrary to” clause, habeas relief is proper if
the state court “arrive[d] at a conclusion opposite to that
10 No. 05-1008
reached by [the] Court on a question of law” or “if the state
court confront[ed] facts that are materially indistinguishable
from a relevant Supreme Court precedent” and reached a
different result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
In assessing whether the state court’s decision was an
“unreasonable application” of Supreme Court precedent, we
look to whether the decision is “objectively unreasonable.”
Id. at 409. The Supreme Court has cautioned that, in this
context, “unreasonable” and “incorrect” are not synony-
mous: “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Id. at
411.9 With these principles in mind, we now turn to Mr.
Horton’s Sixth Amendment claim.
B. The Sixth Amendment Right to Present a Defense
The Sixth Amendment, as interpreted by the Supreme
Court, guarantees a criminal defendant the right to present
a defense. See Chambers v. Mississippi, 410 U.S. 284, 302
(1973). “[A]t a minimum, . . . criminal defendants have the
right . . . to put before a jury evidence that might influence
the determination of guilt.” Taylor v. Illinois, 484 U.S. 400,
408 (1988) (quotation marks omitted). The Supreme Court
has held unconstitutional the rigid application of state
evidentiary rules when such an application infringes upon
the right to present witnesses in one’s own defense, particu-
larly when that testimony is critical to the defense’s theory
9
See also Owens v. Frank, 394 F.3d 490, 496 (7th Cir. 2005); Conner
v. McBride, 375 F.3d 643, 649 (7th Cir. 2004).
No. 05-1008 11
of the case. Chambers, 410 U.S. at 302-03 (holding that “the
[rules of evidence] may not be applied mechanistically to
defeat the ends of justice”).
This right, however, is not unlimited and may “bow to
accommodate other legitimate interests in the criminal trial
process.” Id. at 295. The state is permitted to impose reason-
able restrictions on the presentation of a defense, including
state and federal rules “designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” Id.
at 302; see also United States v. Lea, 249 F.3d 632, 642 (7th Cir.
2001) (state courts have “broad latitude to fashion rules
which operate to exclude evidence from criminal trials”).
Such rules do not abridge an accused's right to present a
defense so long as they are not “ ‘arbitrary’ or ‘dispropor-
tionate to the purposes they are designed to serve.’ ” Rock v.
Arkansas, 483 U.S. 44, 56 (1987) (citations omitted). The
Supreme Court has held “the exclusion of evidence to be
unconstitutionally arbitrary or disproportionate only where
it has infringed upon a weighty interest of the accused.”
United States v. Scheffer, 523 U.S. 303, 308 (1998).
The Wisconsin Court of Appeals adequately articulated
the governing Sixth Amendment standards, as set forth by
the Supreme Court of the United States.10 It correctly noted
10
That the Wisconsin Court of Appeals did not apply or distin-
guish this circuit’s, or other circuits,’ specific approach to Sixth
Amendment problems is of no moment. Under § 2254(d)(1), we
may grant relief only for a violation of “clearly established”
federal law “as determined by the Supreme Court of the United
States.” See also Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding
[the] pitfalls [of § 2254] does not require citation of our
cases—indeed, it does not even require awareness of our cases, so
(continued...)
12 No. 05-1008
that the right to present a defense is not violated by every
limitation placed on a defendant’s exploration of a witness’
bias. Instead, it held, the right to present a defense “is
limited to the presentation of relevant evidence whose
probative value is not substantially outweighed by its
potential prejudicial effect.” R.12, Ex.E at 4.
Furthermore, the Wisconsin court reasonably applied the
Supreme Court’s case law to the facts of this case.
1. TaShea and Trina’s Testimony Concerning their
Conversation with Jessica
The trial court precluded Mr. Horton from asking either
Trina or TaShea Horton about their conversation with
Jessica, in which she admitted that she had had sex with
Randy on four or five occasions. Because this testimony
would have contradicted Jessica’s claim at trial that she and
Randy had had sex only once, Mr. Horton contends that its
exclusion violated his constitutional right to present a
defense. According to Mr. Horton, this evidence substanti-
ated the defense’s theory that Jessica falsely accused him of
sexual abuse in order to avoid punishment for her consen-
sual sexual relations with Randy; it also exposed one of
Jessica’s lies and therefore impeached her credibility. The
State responds that the Wisconsin Court of Appeals did not
err in concluding that, although the trial court improperly
held this evidence to be irrelevant to the trial, no federal
constitutional right was violated because Mr. Horton had an
opportunity to present substantially similar evidence.
10
(...continued)
long as neither the reasoning nor the result of the state-court
decision contradicts them.”).
No. 05-1008 13
In cases of sexual abuse, in which there are usually neither
eye witnesses nor physical evidence and, consequently, the
state’s case in large part depends on the victim’s testimony,
courts have recognized the need to be especially sensitive to
the importance of careful exploration of matters of credibil-
ity.11 Therefore, the claim that the state trial court’s eviden-
tiary rulings cut off an important avenue for Mr. Horton to
expose potential inconsistencies in Jessica’s testimony is
worthy of close examination. To the degree that the testi-
mony in question would have established that Jessica lied
when she denied having sex with anyone but Mr. Horton,
and when she claimed that she only had sex with Randy
once, it would have corroborated the defense’s theory that
Jessica was willing to falsify charges to protect herself and
Randy from punishment.
On the other hand, unlike the situations in the cases relied
upon by the defendant,12 the Wisconsin trial court did not
wholly bar Mr. Horton from testing Jessica’s claim that she
only had sex with Randy once. First, on recross-examina-
tion, defense counsel was permitted to ask TaShea what
prompted her on March 1 to ask Jessica if Randy was the
father of the baby. TaShea responded, “[b]ecause I had seen
Jessica and Randy have sex twice and she used to tell me
sometimes that they had sex.” R.45 at 137. This testimony
substantiated the claim that Jessica and Randy had had sex
11
See Earls v. McCaughtry, 379 F.3d 489, 494 (7th Cir. 2004); see also
generally United States v. Abel, 469 U.S. 45, 52 (1984).
12
See, e.g., Green v. Lambert, 288 F.3d 1081, 1091 (9th Cir. 2002)
(holding that the trial court’s complete prohibition of testi-
mony—both the victim’s and the defendant’s—on the defen-
dant’s dissociative identity disorder violated the right to present
a defense).
14 No. 05-1008
on numerous occasions and therefore challenged directly
Jessica’s contrary account to her mother and to the police, as
well as in her testimony at trial. Additionally, even though
she continued to insist that she only had had sex with
Randy once, Jessica did admit under oath that she had
misrepresented her relationship with Randy to her mother
and had disclosed their sexual contact only after it was clear
that Mr. Horton was not the father of the child.13 In sum, the
trial court merely prohibited the defense from “add[ing]
extra detail” to the claim of bias, which does not implicate
constitutional guarantees. United States v. Sasson, 62 F.3d
874, 883 (7th Cir. 1995) (distinguishing between a complete
bar on the introduction of testimony on a witness’ bias and
adding mere detail to evidence already in the record)
(citations omitted); see also Wade v. Mantello, 333 F.3d 51, 60
(2d Cir. 2003) (“The Constitution leaves to the judges who
must make [evidentiary] decisions ‘wide latitude’ to exclude
evidence that is ‘repetitive . . . , [or] only marginally rele-
vant.’ ”) (citations omitted). Based on this review of the
13
Mr. Horton compares this case to Chambers v. Mississippi, 410
U.S. 284 (1973), in which the Court held that the defendant was
deprived of the Sixth Amendment right to present a complete
defense when the trial court ruled that the testimony of a number
of witnesses--who were present when a third person confessed to
a murder for which the defendant had been charged--was
inadmissible hearsay. In Chambers, the Court concluded that the
witnesses’ hearsay testimony was critical to Chambers’ defense
because the third party had repudiated his confession at trial.
Unlike this case, in which the jury heard evidence substantially
similar to that which was excluded—that Jessica and Randy had
had sex multiple times—there was no other trustworthy evidence
presented in Chambers to support the claim that the third party,
rather than the defendant, had committed the murder. See id. at
301-02.
No. 05-1008 15
record, we cannot conclude that the Wisconsin Court of
Appeals “unreasonably” applied federal law in holding that
“the exclusion of testimony by Trina and TaShea about a
specific conversation in which Jessica had admitted having
sex with Randy multiple times did not completely preclude
the defense from presenting its theory on this point.” R.12,
Ex.E at 8.
2. Trina’s Testimony Concerning the Five-Day Ultima-
tum
The Wisconsin trial court also prohibited Trina Horton
from testifying that, upon learning of Jessica’s pregnancy,
she threatened to disclose this information to Jessica’s
mother if Jessica did not do so within five days. The trial
court held that this evidence was not relevant to whether
Mr. Horton sexually assaulted Jessica; the state appellate
court concluded that the evidence was probative of Jessica’s
state of mind when making the accusations of sexual
assault. It determined, however, that there was no constitu-
tional error because the defense was permitted to present
evidence that Jessica was “motivated by a desire to mini-
mize the negative consequences of her pregnancy” and it
was “apparent” that Jessica “faced time pressure in disclos-
ing her pregnancy.” Id.14
14
The State also submits that Trina’s testimony on the subject of
the five-day deadline is irrelevant. Although we shall review the
state court’s federal constitutional conclusions de novo, as a
general rule, we may not disturb state court conclusions that are
based on an interpretation of state law, including the determina-
tion that—under state evidentiary rules—certain testimony
fulfills relevancy requirements. See Rice v. McCann, 339 F.3d 546,
(continued...)
16 No. 05-1008
Mr. Horton presents a strong argument that at no other
time during the trial did he have the opportunity to demon-
strate the effect of the ultimatum on Jessica’s decision to
accuse him of sexual assault. To be sure, the timing of the
accusation is quite suspicious: on the fourth day of the five-
day ultimatum period, Jessica told her mother of the
pregnancy. Moreover, the admission was hesitant: after
broaching the subject with her mother in the school coun-
selor’s office, she faltered, only coming forward with the
information when her mother told her that they could talk
after they returned from visiting Trina.
Nevertheless, we must affirm the district court’s decision
not to grant the writ. Although the excluded testimony is
relevant and probative, its exclusion did not deprive Mr.
Horton of the right to present a defense. Trina’s proffered
testimony about the ultimatum certainly would not have
been cumulative in the same sense as the testimony about
the number of times Randy and Jessica had had sexual
intercourse. However, there was substantial evidence before
the court that Jessica had a motive to lie to her mother. For
example, on cross-examination, Jessica admitted that she
knew that there was a possibility that Randy was the father
of the child, but still did not tell her mother about her
relationship with Randy until after the paternity test results
were returned. R.44 at 191-92, 200. She admitted not disclos-
ing this same information to the police in early March, even
though she was asked explicitly by the interviewing officers
whether she had had sex with anyone besides Mr. Horton.
Id. at 208. She admitted not telling TaShea about the possi-
bility that Mr. Horton was the father of the baby when she
(...continued)
549 (7th Cir. 2003).
No. 05-1008 17
first took the pregnancy test, an omission that the defense
later argued undermined the credibility of her allegations of
sexual abuse. Id. at 189-90; R.46 at 28. The defense also
attempted to bring out on cross-examination and during its
closing statement that, in an effort to protect Randy, Jessica
lied when she testified that she did not know Randy’s last
name or address. R.44 at 193; R.46 at 29.15 Lastly, as the
Wisconsin Court of Appeals noted, it was apparent to the
jury that, at a certain point, Jessica would be forced to reveal
to her mother that she was pregnant.
Therefore, although Trina’s testimony that Jessica was
given a five-day deadline by which to tell her mother of her
pregnancy, and therefore reveal her relationship with Mr.
Horton in order to avoid revealing her relationship with
Randy, would have helped the defense’s case, the matter of
Jessica’s motive to lie to her mother was sufficiently devel-
oped by the defense through other means. At the very least,
it is apparent that the Wisconsin appellate court assessed the
15
That this evidence was presented to the jury by way of cross-
examination of the state’s witnesses, rather than the direct
examination of defense witnesses, is of no import. Although due
process guarantees the right not only to “confront the prosecu-
tion’s witnesses” but also to “present [one’s] own witnesses to
establish a defense,” Washington v. Texas, 388 U.S. 14, 19 (1967),
limitations on this right are harmless when the defense otherwise
had a meaningful opportunity to present necessary information
through cross-examination of the state’s witnesses. Cf. United
States v. Martin, 369 F.3d 1046, 1059 (8th Cir. 2004) (“lengthy
cross-examination” rendered any violation of the right to present
a defense harmless); United States v. Orr, 825 F.2d 1537, 1540 (11th
Cir. 1987) (trial court judge may limit testimony where cumula-
tive and when defendant had substantial opportunity to expose
witness’ potential biases).
18 No. 05-1008
probative value of the evidence and concluded that, because
of its cumulative nature, its exclusion did not warrant
retrial. See also Rice v. McCann, 339 F.3d 546, 550 (7th Cir.
2003) (holding that, because reasonable courts could differ
on the exclusion of the evidence, the state court’s approach
could not be considered improper). In light of the broad
latitude given such decisions under § 2254(d)(1), the
Wisconsin appellate court’s conclusion that the exclusion
did not violate Mr. Horton’s right to present a defense is not
an unreasonable application of clearly established federal
law.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-05