Gerald Kamlager v. William Pollard , 715 F.3d 1010 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3372
G ERALD K AMLAGER,
Petitioner-Appellant,
v.
W ILLIAM P OLLARD ,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10 C 667—Rudolph T. Randa, Judge.
A RGUED JANUARY 23, 2013—D ECIDED A PRIL 26, 2013
Before P OSNER and W ILLIAMS, Circuit Judges, and
N ORGLE, District Judge.Œ
N ORGLE, District Judge. Following a jury trial, Gerald
Kamlager was convicted of first-degree intentional homi-
cide and use of a dangerous weapon in the death of
Wanda Greenlee, in violation of Wis. Stat. §§ 940.01(1)(a)
Œ
Hon. Charles R. Norgle of the United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-3372
and 939.63(1)(b),1 and was sentenced to life imprison-
ment with no possibility for extended supervision. He
was also convicted of hiding a corpse, in violation of
Wis. Stat. § 940.11(2), and was sentenced to five years’
imprisonment followed by five years’ extended supervi-
sion to be served consecutively. After exhausting post-
conviction remedies, Kamlager sought collateral relief
pursuant to 28 U.S.C. § 2254. The district court denied
his writ of habeas corpus petition. We granted Kamlager
a certificate of appealability limited to a single issue:
whether the admission of statements he made to police
officers after he requested to see counsel violated his
Sixth Amendment rights. See 28 U.S.C. § 2253(c)(2).
Because we conclude that the Wisconsin Appellate
Court reasonably applied Supreme Court precedent in
finding that the admission of tainted evidence was harm-
less, we affirm the judgment of the district court denying
the writ of habeas corpus.
I. Background
Our account of the facts is drawn from the Wisconsin
Appellate Court’s decision affirming Kamlager’s convic-
tion on direct appeal. On December 23, 2001, Wanda’s
body was discovered covered with branches and brush
1
The Judgment of Conviction mistakenly cites to Wis. Stat.
§ 939.63(1)(a), which refers to the increased penalty for a
misdemeanor. However, it correctly indicates the maximum
five-year increase for a felony pursuant to § 939.63(1)(b).
No. 11-3372 3
in a secluded wooded area—close to both Wanda and
Kamlager’s homes—in Walworth, Wisconsin. Wanda
died as a result of gunshot wounds to the abdomen and
blunt-force trauma to the head. The condition of Wanda’s
body was consistent with her death occurring on the
date of her disappearance, November 24, 2001. Wanda’s
boyfriend Kamlager became the prime suspect and was
eventually charged with first-degree intentional homicide,
use of a dangerous weapon, and hiding a corpse.
The evidence against him was extensive, albeit circum-
stantial.
A. Evidence at Trial
At trial, Wanda’s mother, Phyllis Greenlee, testified
that the day before her daughter disappeared, Wanda
went to a dog track with Kamlager. According to Phyllis,
Wanda said things did not work out with Kamlager
that night. Phyllis testified that on the morning of her
disappearance, Wanda told her that she had received a
phone call from Kamlager, and was going to meet him
at Menards (a home improvement store) in Janesville.
Phyllis also testified that in the Fall of 2001 Kamlager
had Wanda’s cell phone, which he used to call their
home. The state introduced Wanda’s cell phone records,
reflecting that a call was placed from Wanda’s cell phone
to Wanda and Phyllis’s home on November 24, 2001,
at 8:09 a.m.
Deputy Richard Paquin testified that he interviewed
Phyllis and Darrell Greenlee, Wanda’s brother, on Novem-
ber 27, 2001. Paquin testified that upon learning about
4 No. 11-3372
Kamlager’s phone call and Wanda’s plan to meet
Kamlager at Menards on the morning of her disappear-
ance, he asked the Janesville Police Department to
check the Menards parking lot. Wanda’s car was found
in the Menards parking lot.
When Paquin questioned Kamlager as to Wanda’s
whereabouts, Kamlager said he did not know where
Wanda currently was but the last time he saw her
was on November 23, 2001, at the dog track (the night
before she disappeared). Kamlager denied having plans
to meet Wanda at Menards on November 24, 2001, and
said he did not know why Wanda’s vehicle was
parked there. Paquin advised his sergeant that “some-
thing appeared suspicious.”
A formal videotaped interview followed at the
sheriff’s department. The video and transcript were
admitted into evidence at trial, without objection. At
the beginning of the interview, Kamlager was told three
times that he was free to leave at anytime and that he
was not under arrest. Kamlager admitted that he and
Wanda were having an extramarital affair. He also ad-
mitted that he owed Wanda approximately $1,000.
Kamlager stated that he and Wanda had an argument
on November 23, 2001, relating to their weekend plans,
and her desire to go away together for the weekend. That
night, at about 7:00 p.m., Kamlager said he spoke to
his brother-in-law, Richard Bender, about going hunting
in Richland Center. According to Kamlager, Bender
was supposed to pick him up at 3:00 a.m. the next day
(November 24, 2001). Kamlager stated that he had all of
No. 11-3372 5
his hunting gear ready to go, packed in the truck. Paquin
asked whether he would have his own weapon or shot-
gun. Kamlager nodded yes and said, “A .308 [rifle].”
Bender, however, did not show up at 3 a.m. Kamlager
said he left at 8:00 a.m. for Richland Center to go
hunting with Bender, arriving a little after 11:00 a.m. In
response to further questioning, Kamlager said that he
brought his hunting gear but did not have his rifle. He
said Bender was supposed to bring him his father-in-
law’s rifle. Paquin asked Kamlager if he owned any
weapons. Kamlager shook his head no, answering incon-
sistently with his previous statements. Kamlager said
that he and Bender spent four hours hunting and that
he left for home between 2:30 and 3:00 p.m., arriving
home at around 6:00 p.m.
Kamlager’s videotaped statements, however, were
largely controverted by the testimony of multiple
witnesses at trial. Bender testified that although he and
Kamlager had talked about going hunting on Novem-
ber 24, 2001, their plans were never finalized. He
further stated that Kamlager arrived at Richland Center
at about 11:30 a.m. Bender testified that Kamlager was
“acting weird” and “had something on his mind other
than coming up there deer hunting.” Bender said that
he had hunted with Kamlager for about seven years
and, on this occasion, Kamlager was not dressed in his
usual hunting attire. He also said that Kamlager did
not bring a gun and borrowed his extra gun. Bender
testified that Kamlager left around 2:30 or 3:00 p.m.,
and asked him to call Kamlager’s wife, Bonnie, to say that
he was with him and would be coming home. Bender
testified that he did not call Bonnie stating, “why should
6 No. 11-3372
I lie for him? [H]e wasn’t up there hunting with me all
day. He pretty much showed up for a couple of hours.
And I know Jerry from years past, and he uses people
for excuses a lot; so that’s why I said I’m not going to
get involved in it.”
Bender’s wife, Barbara Nordmeyer-Bender, testified
that on November 24, 2001, she answered a collect call
made to the Bender home, at approximately 9:00 a.m.,
from Kamlager. Barbara said that Kamlager wanted her
to call Bender’s cell phone and then call him back, giving
her the payphone number where he could be reached.
Police confirmed that this number was the number of
the payphone located at the Menards in Janesville.
Kamlager’s wife, Bonnie, also testified. She said that
she purchased a gun for Kamlager, but did not know
what caliber or type of gun it was. She also stated that
Kamlager told her that he had won two or three guns.
Bonnie said that on November 24, 2001, Kamlager left
their house at 7:00 a.m. and returned home that night
between 7:00 and 8:00 p.m. She confronted Kamlager
because she expected him home earlier, but Kamlager
did not respond and gave her a “deer in headlights”
look. Bonnie reported Kamlager missing on November 29,
2001, having not seen him since November 26, 2001.
Kamlager’s father-in-law, Wesley Bender, testified that
Kamlager called him on December 5, 2001, and told him
to take care of Bonnie, stating, “The bitch wanted me to
leave my Bonnie for her.” The same day, when police
went to take Kamlager into custody on a probation
hold, they found him attempting to commit suicide by
No. 11-3372 7
inhaling exhaust fumes from the tailpipe of his
running truck.
Michael Murphy, a Wisconsin prison inmate, testified
that he and Kamlager were in prison together and that
Kamlager confessed that he “killed somebody in
Walworth County” and was worried about it. Murphy
asked if anyone had seen him, and Kamlager replied
that no one had. Murphy stated that he did not believe
Kamlager, but two years later, after learning that
Kamlager had been charged with first-degree inten-
tional homicide, sent a letter to Walworth County
Judge Kennedy disclosing Kamlager’s admission.
Murphy testified that the state did not promise him
anything in exchange for his testimony.
Additionally, the state introduced the following evi-
dence. Kamlager owed Wanda a significant amount of
money, approximately $35,000 to $36,000; not the mere
$1,000 Kamlager claimed. Wanda’s ATM card was used
approximately ten times on November 26, 2001, two
days after anyone reported seeing her. Surveillance
video depicted Kamlager in the area of the ATM at
which five withdrawals were made from Wanda’s
checking account. The ATM card was also used at a
location approximately one-half mile from where
Wanda’s body was found. One of the bullets taken
from Wanda’s body was a fired lead .22-caliber long-
rifle bullet. Three unfired .22-caliber bullets were
recovered from Kamlager’s hunting jacket. Kamlager
owned a .22-caliber rifle that was not seen after Wanda
disappeared.
8 No. 11-3372
B. Assumed Constitutional Violation at Trial
The state also introduced statements obtained by
police after Kamlager requested an attorney in his first in-
custody interview, on December 5, 2001. Detective
Michael Banaszynski testified that Kamlager admitted
that he had seen Wanda on the day she disappeared,
November 24, 2001. Kamlager admitted that he met
Wanda at the Menards parking lot in Janesville to go to
breakfast, but they had a fight and he returned her to
her truck.
Banaszynski also testified that Kamlager wrote him
letters from prison, and excerpts from the letters were
read to the jury. For example, on July 24, 2002, Kamlager
wrote: “Should I ever receive a letter from Bonnie
saying, I just got the truck back, cleaned . . . and the
computer . . . I would be so happy that I might talk for
weeks.” On August 25, 2002, Kamlager wrote: “I might
have something . . . in my memory . . . to help solve—solve
different crimes. But the way I was treated . . . for what
I did . . . . When I saw a fight at the county, I asked some-
one important, ‘What do I say I saw?’ I knew I was
going to prison, do I want to be labeled a snitch or not.”
On October 6, 2002, Kamlager wrote that he does not
care if he is charged because he has nothing more to
lose. On November 15, 2002, Kamlager wrote that if the
items he wanted back were returned, he would be
available “24/7.” On December 9, 2002, Kamlager wrote
that he would be available to meet at anytime.
Before trial, Kamlager moved to exclude the state-
ments he made after exercising his right to counsel on the
No. 11-3372 9
grounds that these statements were obtained in viola-
tion of his Fifth, Sixth and Fourteenth Amendment
rights. The state trial court found that although Kamlager
invoked his right to counsel on December 5, 2001, he
also indicated that he might speak with Banaszynski at a
later date. The state trial court denied the motion to
suppress, determining that this was an “invitation” that
gave Banaszynski the right to reinitiate contact with
Kamlager. The Wisconsin Court of Appeals assumed,
without deciding, that Kamlager’s constitutional rights
were violated through the admission of this evidence,
but nevertheless concluded that the error was harmless
because it was clear beyond a reasonable doubt that a
rational jury would have rendered the same verdict
even if the tainted evidence had been suppressed. The
Supreme Court of Wisconsin declined review.
II. Discussion
We review the district court’s denial of a petition for
writ of habeas corpus de novo. Carter v. Thompson, 690 F.3d
837, 843 (7th Cir. 2012). “Federal habeas relief from a
state-court criminal judgment is not easy to come by
because the Antiterrorism and Effective Death Penalty
Act of 1996 (the ‘AEDPA’) requires us to defer to a
great extent to the decisions of the state courts.” Thompkins
v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (internal quota-
tion marks and citation omitted). We review the deci-
sion of the last state court to adjudicate the merits of
the petitioner’s claim—here, the 2007 opinion of the
Wisconsin Appellate Court. McNary v. Lemke, 708 F.3d
10 No. 11-3372
905, 913 (7th Cir. 2013). We may grant habeas relief
only if the proceeding in the Wisconsin Appellate
Court resulted in a decision that is: (1) “contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States”; or (2) ” based on an unreasonable
determination of the facts in the light of the evidence
presented in the state court proceeding.” 28 U.S.C.
§ 2254(d).
Kamlager alleges only an error of law; he does not
challenge the factual findings. A state court decision
is “contrary to” federal law if it applies the wrong legal
standard established by Supreme Court precedent or
decides a case differently than the Supreme Court on
materially indistinguishable facts. Bell v. Cone, 535
U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)); McNary, 708 F.3d at 913. Alternatively,
a state court decision involves an “unreasonable appli-
cation of” federal law if the state court “correctly
identifies the governing legal principle . . . but unreason-
ably applies it to the facts of the particular case.” Bell,
535 U.S. at 694 (citing Williams, 529 U.S. at 407-08);
McNary, 708 F.3d at 913. The focus of this inquiry
is “whether the state court’s application of clearly estab-
lished federal law is objectively unreasonable,” not
whether it was merely incorrect. Bell, 535 U.S. at 694
(citing Williams, 529 U.S. at 409-11). Indeed, “even a
strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). An objectively unrea-
No. 11-3372 11
sonable application is one that falls “well outside the
boundaries of permissible differences of opinion.” Carter,
690 F.3d at 843 (internal quotation marks and citation
omitted). Put differently, a state court decision in-
volves a reasonable application of federal law if it is
“at least minimally consistent with the facts and circum-
stances of the case.” Hall v. Zenk, 692 F.3d 793, 798 (7th
Cir. 2012) (internal quotation marks and citation omitted).
Kamlager argues that the state trial court unreasonably
applied Miranda v. Arizona, 384 U.S. 436 (1966), and its
progeny in admitting statements he made to police
officers after he requested counsel. Relying on Brecht
v. Abrahamson, 507 U.S. 619 (1993), Kamlager main-
tains that the tainted evidence could be interpreted as
tacit admissions of guilt and therefore the error was not
harmless because it necessarily had a substantial and
injurious effect on the jury’s verdict. However, where, as
here, the state court has conducted a harmless-error
analysis, our role is to decide whether that analysis was
a reasonable application of Chapman v. California, 386
U.S. 18 (1967). Johnson v. Acevedo, 572 F.3d 398, 404 (7th
Cir. 2009); see also Mitchell v. Esparza, 540 U.S. 12, 18
(2003) (per curiam).
Under Chapman, “before a federal constitutional error
can be held harmless, the court must be able to declare
a belief that it was harmless beyond a reasonable
doubt.” 386 U.S. at 24. An error is harmless if the state
proves “beyond a reasonable doubt that the error com-
plained of did not contribute to the verdict obtained.” Id.In applying Chapman, the Supreme Court has articulated
the inquiry in alternative wording: “Is it clear beyond a
12 No. 11-3372
reasonable doubt that a rational jury would have found
the defendant guilty absent the error?” Neder v. United
States, 527 U.S. 1, 18 (1999). If the state court reasonably
applied the Chapman standard, “the federal case is over
and no collateral relief issues.” Johnson, 572 F.3d at 404.
But if the state court unreasonably applied the Chapman
standard, we must make an independent decision, ap-
plying the Brecht standard of “actual prejudice” to de-
termine whether the error was harmless. Id.Here, the Wisconsin Appellate Court assumed, without
deciding, that the statements Kamlager made after exer-
cising his right to counsel were admitted in error, but
reasoned that “if it is clear beyond a reasonable doubt
that a rational jury would have rendered the same
verdict absent trial error, then the error did not con-
tribute to the verdict, and it is therefore harmless.” The
Wisconsin Appellate Court, citing State v. Hale, 691
N.W.2d 637 (Wis. 2005), articulated relevant factors in
applying the Chapman standard, including the nature of
the state’s case, the frequency of the error, the im-
portance of the erroneously admitted evidence, whether
the erroneously admitted evidence corroborates or dupli-
cates other untainted evidence, the nature of the de-
fense, and the strength of the state’s case. The Wisconsin
Appellate Court’s reliance on these factors is consistent
with Chapman. Mereness v. Schwochert, 375 F. App’x 612,
616 (7th Cir. 2010) (non-precedential order). The Wisconsin
Appellate Court concluded that given the overall strength
of the state’s case, a rational jury would have rendered the
same verdict absent the tainted evidence.
No. 11-3372 13
In determining that the Miranda error was harmless,
the Wisconsin Appellate Court evaluated and rejected
Kamlager’s argument—that the state improperly relied
on Kamlager’s inadmissible statement to contradict his
previous statement to police that he had not seen
Wanda on the day she disappeared—finding that the
state introduced untainted evidence from which a jury
could rationally draw the same conclusion. Specifically,
the Wisconsin Appellate Court found that the errone-
ously admitted evidence was strongly corroborated
by evidence that Kamlager met with Wanda on the day
she disappeared and lied when he told detectives that
he had not. For example, the state presented phone
records and testimonial evidence that Kamlager made
a collect call on November 24, 2001, at almost 9:00 a.m.,
from a payphone located at the Janesville Menards
(where Wanda’s car was found); that Wanda received
a phone call the morning of her disappearance from
Kamlager and that she was going to meet him at
Menards; that a call was placed from Wanda’s
cell phone to Wanda and Phyllis’ home at 8:09 a.m. on
November 24, 2001; and that Kamlager had Wanda’s
cell phone during the Fall of 2001 (including the week-
end this call was placed).
The Wisconsin Appellate Court concluded that the
error was harmless because the remaining evidence
against Kamlager was strong. The Wisconsin Appellate
Court identified compelling circumstantial evidence
pointing to Kamlager as the perpetrator, including, inter
alia, a discredited account of Kamlager’s whereabouts
on the day of Wanda’s disappearance; his strange
14 No. 11-3372
behavior on the day of Wanda’s disappearance and
thereafter; his large debt (approximately $35,000 to
$36,000) owed to Wanda; his presence, captured on video
surveillance, in the area of the ATM at which five of ten
withdrawals were made from Wanda’s checking ac-
count two days after she went missing; his conversation
with his father-in-law, in which Kamlager told him to
take care of Bonnie and stated, “The bitch wanted me
to leave my Bonnie for her”; expert testimony that three
unfired .22-caliber bullets were recovered from Kam-
lager’s hunting jacket (one of the bullets taken from
Wanda’s body was a fired lead .22-caliber long-rifle bullet);
and his .22-caliber rifle was not seen after Wanda disap-
peared.
Kamlager argues that the Wisconsin Appellate Court’s
decision is unreasonable—despite the state’s presentation
of a strong, albeit circumstantial, case—because, in his
view, admission of his unconstitutionally-obtained con-
tradictory statement (which he characterizes as a “de
facto confession”) is per se reversible error. Not so. The
Supreme Court has rejected a per se rule of prejudice
in cases involving suppressible confessions. Premo v.
Moore, 131 S. Ct. 733, 744 (2011). In rejecting a per se rule,
the Supreme Court addressed its previous application
of the harmless-error standard in Arizona v. Fulminante,
499 U.S. 279 (1991), wherein it held that an improperly
admitted confession was not harmless under Chapman
because the remaining evidence against the defendant
was weak. Id. The Supreme Court reaffirmed the legal
standard announced in Neder (paraphrasing Fulminante)
that, for direct review following an acknowledged con-
No. 11-3372 15
stitutional error at trial, the state has “the burden of
showing that it was ‘clear beyond a reasonable doubt
that a rational jury would have found the defendant
guilty absent the error.’ ” Id. (quoting Neder, 527 U.S. at 18).
At the time of the Wisconsin Appellate Court’s deci-
sion, the harmless-error standard as established by Su-
preme Court precedent, including Fulminante and Neder,
provides that the strength of the state’s case absent the
error was relevant. Thus, the mere fact that the jury was
presented with improperly admitted statements does
not, in and of itself, constitute reversible error. Nor
does the fact that the remaining evidence against
Kamlager was circumstantial in nature. See United States
v. Reyes, 270 F.3d 1158, 1169 (7th Cir. 2001) (“Circum-
stantial evidence is of equal probative value to direct
evidence, and in some cases is even more reliable.” (inter-
nal quotation marks and citations omitted)).
In any event, Kamlager’s admission that he had seen
Wanda on the day she disappeared simply does not
amount to “a full confession in which the defendant
discloses the motive for and means of the crime,” which
may have tempted the jury to “rely upon that evidence
alone in reaching its decision.” Fulminante, 499 U.S. at 296.
Kamlager merely stated that he met Wanda at the
Menards parking lot in Janesville to go to breakfast but
they had a fight and he returned her to her truck, where
he had last seen her. We reject Kamlager’s argument to
the extent he claims that this evidence is uniquely dis-
tinctive, critical evidence against him. The Wisconsin
Appellate Court reasonably found that the state pre-
16 No. 11-3372
sented untainted corroborating evidence from which a
rational jury could conclude that Kamlager met with
Wanda on the day she disappeared. Further, the court
reasonably found the testimony relating to the other
tainted exchanges between Banaszynski and Kamlager
“relatively less important.” Under § 2254(d)(1), we may
not substitute our own judgment for that of the state
court. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002).
Finally, Kamlager argues that the Wisconsin Appel-
late Court’s decision is unreasonable because it failed to
analyze whether the prosecutor impermissibly em-
phasized the tainted evidence. The Wisconsin Appellate
Court concluded that even if Kamlager was correct in
his assertion that the state relied on the tainted evidence
in substantial part, the error was nonetheless harmless
because it is clear beyond a reasonable doubt, in light of
the overwhelming untainted evidence in the case, that
a rational jury would have rendered the same guilty
verdict absent the error. Although the Wisconsin
Appellate Court assigned no weight to the state’s refer-
ences to the tainted evidence, its decision was nonethe-
less a reasonable application of Chapman. The Wisconsin
Appellate Court’s conclusion is consistent with the facts
and circumstances of the case. We therefore find that
fairminded jurists could not disagree with the Wisconsin
Appellate Court. Because the evidence against Kamlager
was overwhelming, any error in admitting statements
he made to police officers after he requested to see
counsel was harmless.
No. 11-3372 17
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
decision to deny Kamlager’s habeas corpus petition.
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