Donovan Burris v. Judy Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2891
DONOVAN M. BURRIS,
Petitioner-Appellant,
v.
JUDY P. SMITH,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-cv-00465— Rudolph T. Randa, Judge.
____________________
ARGUED APRIL 6, 2016 — DECIDED APRIL 28, 2016
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Petitioner Donovan Burris argues
that a supplemental jury instruction given during his trial in
Wisconsin state court misled the jury in a way that violated
the Constitution. On direct appeal, the Wisconsin Supreme
Court held that although the instruction may have been am-
biguous, it was not reasonably likely that it misled the jury.
Burris petitioned for habeas relief in the district court. The dis-
2 No. 15-2891
trict court denied habeas relief and Burris appeals. We con-
clude that the Wisconsin Supreme Court did not unreasona-
bly apply clearly established federal law and affirm the judg-
ment of the district court.
I. Background
On September 5, 2007, Donovan Burris went to visit his ex-
girlfriend Khadijah Rashada. Khadijah was staying with her
mother, Cathy Rashada, at Cathy’s apartment. Burris and
Khadijah’s two children and Khadijah’s brother, Kamal
Rashada, were also at the apartment. Burris brought a hand-
gun with him to the apartment. After Burris arrived, he and
Khadijah began to argue. The parties dispute what happened
next, but ultimately, Burris fired a single shot from his hand-
gun, hitting Kamal in the neck and paralyzing him. Burris’s
two children were present during the incident.
The state charged Burris with first degree reckless injury
under Wis. Stat. § 940.23(1) and possession of a firearm by a
felon under Wis. Stat. § 941.29(2)(a). At trial in the Milwaukee
County Circuit Court, the judge instructed the jury on the
charged offenses, as well as the lesser included offense of sec-
ond degree reckless injury under Wis. Stat. § 940.23(2). In Wis-
consin, the only difference between first and second degree
reckless injury is that for first degree liability, the government
must prove that the defendant caused bodily harm under cir-
cumstances showing an “utter disregard for human life.” Wis.
Stat. § 940.23.
At trial, Burris argued that the shooting was an accident.
He testified that when he arrived at the apartment, he placed
the gun under a mattress for safety reasons. He claimed that
No. 15-2891 3
he brought the gun for protection because of an earlier alter-
cation involving the Rashadas’ neighbors. Burris stated that
after hiding the gun, he talked with Khadijah, leading to an
argument. Cathy asked Burris to leave. Burris testified that he
then retrieved the gun and headed towards the door with the
gun at his side, while still arguing with Khadijah. Burris
claimed that as he and Khadijah were arguing near the front
door, Kamal grabbed Burris’s wrist from behind, and as Burris
turned and pulled his hand away, the gun fired and hit Kamal.
The Rashadas—Khadijah, Cathy, and Kamal—offered a
different version of the incident at trial. They claimed that
Burris never stored the handgun under the mattress and that
as he argued with Khadijah, Burris threatened her and
pointed the gun at her. When Cathy asked Burris to leave, he
refused. According to the Rashadas, Kamal tapped Burris on
his left side to get his attention and asked Burris to leave. In
response, Burris turned around, raised the gun, and shot
Kamal in the neck at close range.
During cross-examination, Burris impeached the Rasha-
das’ testimony with inconsistent statements that they made to
the police immediately after the incident. The statements that
the Rashadas gave to the police mirrored Burris’s trial testi-
mony: Burris had the gun at his side, Kamal grabbed Burris’s
arm, the gun fired.
Although the parties offered conflicting accounts of Bur-
ris’s conduct before the gun fired, everyone agreed about Bur-
ris’s extreme emotional reaction after. Following the gunshot,
Burris called out to Kamal and said “I didn’t mean to do it.”
Burris, distraught, then asked either Cathy or Khadijah to
shoot him. Burris pointed the gun at his own head and tried
to give the gun to either Cathy or Khadijah. About one minute
4 No. 15-2891
later, Burris stated that he could not go to jail and fled the
apartment. Burris evaded police for five months after the
shooting and then turned himself in. As the parties note, this
after-the-fact evidence was important for both the defense
and the government, as it was one of the few sources of un-
disputed facts bearing on Burris’s mental state.
After a three-day trial, the judge instructed the jury on the
elements of first degree reckless injury as well as the lesser
included offense of second degree reckless injury. The judge
further instructed the jury that to determine whether Burris’s
conduct showed the utter disregard for human life necessary
for first degree reckless injury, the jury should consider:
“What the defendant was doing, how dangerous the conduct
was, how obvious the danger was, whether the conduct
showed any regard for human life and all other facts and cir-
cumstances relating to the conduct.”
During deliberations, the jury submitted a written ques-
tion to the judge: “Regarding the element of utter disregard,
all other facts and circumstances relating to the incident, do
we consider facts and circumstances after the shooting?” The
trial judge consulted with counsel, and over Burris’s objection,
decided to give the jury an instruction from the Wisconsin Su-
preme Court’s decision in State v. Jensen, 613 N.W.2d 170 (Wis.
2000). But before the judge answered the jury’s question, the
jury submitted another question: “Should we consider facts
and circumstances after the shooting to determine utter disre-
gard?” The jury foreperson later explained that the second
question was the same as the first, but asked “more directly.”
In response to the jury’s two questions, the trial judge gave
the following supplemental instruction:
No. 15-2891 5
First of all, I want to emphasize that you are to
rely on the instructions that I gave you. All
right? And to rely on all of the instructions that
I gave you.
And in response to this question, if this clarifies
anything, after-the-fact regard for human life does
not negate utter disregard otherwise established by
the circumstances before and during the crime. It
may be considered by the fact-finder as a part of the
total factual picture, but it does not operate to pre-
clude a finding of utter disregard for human life. The
element of utter disregard for human life is
measured objectively on the basis of what a rea-
sonable person in the defendant’s position
would have known.
The italicized portion of the instruction quoted verbatim from
Jensen, 613 N.W.2d at 177. This part of the Jensen decision ad-
dressed a sufficiency of the evidence challenge. The Jensen
court was responding to the defendant’s argument in that case
that his after-the-fact conduct precluded the jury’s finding of
utter disregard. See id. at 176–77. Both parties agree that this
language was not intended to preclude or limit a factfinder’s
consideration of after-the-fact conduct. Indeed, Jensen also
states that, in evaluating the utter disregard element, a fact-
finder should consider the defendant’s conduct “before, dur-
ing and after the crime.” Id. at 174.
After returning to deliberations and without asking any
further questions, the jury convicted Burris of first degree
reckless injury as well as unlawful possession of a firearm.
Burris moved for post-conviction relief, arguing that the sup-
plemental instruction was erroneous. He contended that the
6 No. 15-2891
court should have answered the jury’s questions with a simple
“yes.” The court rejected Burris’s request for a new trial and
sentenced him to fifteen years of imprisonment and five years
of extended supervision.
Burris appealed the denial of post-conviction relief to the
Wisconsin Court of Appeals. State v. Burris, 781 N.W.2d 551(Wis. Ct. App. 2010). The state court of appeals granted post-
conviction relief and reversed Burris’s conviction. The court
held that although the supplemental instruction was techni-
cally accurate as a statement of law, it misled the jury by sug-
gesting that they could not consider after-the-fact conduct,
when in fact, they could. The state court of appeals explained
that the trial judge should have answered the jury’s questions
with a simple “yes.”
The state petitioned for review, and the Wisconsin Su-
preme Court reinstated Burris’s conviction. State v. Burris, 797
N.W.2d 430 (Wis. 2011). The Wisconsin Supreme Court
agreed with the court of appeals that the jury could consider
after-the-fact conduct in determining utter disregard and that
such conduct does not deserve any less weight. Furthermore,
the court explained that the quote from Jensen, although tech-
nically correct, was “potentially ambiguous” taken out of the
sufficiency of the evidence context. See id. at 446. However, the
court held that given all of the instructions and evidence of-
fered at trial, “Burris has not established a reasonable likeli-
hood that the jury ignored all of [the after-the-fact evidence]
because of a potentially ambiguous instruction.” Id. One jus-
tice dissented, opining that the instruction was reasonably
likely to mislead the jury because it implied that after-the-fact
conduct was entitled to little or no weight. Id. at 450.
No. 15-2891 7
After exhausting his state court remedies, Burris filed a pe-
tition for habeas relief in the Eastern District of Wisconsin.
The district court concluded that the Wisconsin Supreme
Court did not unreasonably apply clearly established federal
law. It recognized the potential ambiguity in the instruction
but held that Burris failed to meet his burden to show that the
Wisconsin court acted unreasonably. The district court
granted Burris’s certificate of appealability but denied his pe-
tition on the merits. Burris appeals.
II. Discussion
We review Burris’s habeas claim under the deferential
standard set forth in 28 U.S.C. § 2254. Under § 2254(d), a ha-
beas petition may only be granted if a state court’s adjudica-
tion:
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court pro-
ceeding.
To challenge a legally accurate jury instruction, Burris
must show that the instruction was ambiguous and there was
a reasonable likelihood that the jury applied the instruction in
a way that violated the U.S. Constitution. Waddington v.
Sarausad, 555 U.S. 179, 190–91 (2009); Estelle v. McGuire, 502
U.S. 62, 72 (1991). A habeas petitioner carries an especially
heavy burden to show constitutional error from an instruction
quoting state law. See Waddington, 555 U.S. at 190. It is not
8 No. 15-2891
enough that the instruction contains some ambiguity, incon-
sistency, or deficiency. Id. On the other hand, “a defendant
need not establish that the jury was more likely than not to
have been impermissibly inhibited by the instruction ….”
Boyde v. California, 494 U.S. 370, 380 (1990). In making this de-
termination, the instruction “may not be judged in artificial
isolation, but must be considered in the context of the instruc-
tions as a whole and the trial record.” Waddington, 555 U.S. at
191 (citation and internal quotation marks omitted). Ulti-
mately, the relevant question is “whether the ailing instruc-
tion by itself so infected the entire trial that the resulting con-
viction violates due process.” Id. (citation and internal quota-
tion marks omitted).
In this appeal, Burris argues that the supplemental in-
struction, though legally accurate, was ambiguous and un-
constitutionally misleading. In particular, Burris argues that
the wording of the instruction—“after-the-fact regard for hu-
man life does not negate utter disregard otherwise established
by the circumstances before and during the crime” and “it
does not operate to preclude a finding of utter disregard for hu-
man life”—was reasonably likely to cause the jury to ignore
or give little weight to Burris’s after-the-fact conduct. He con-
tends that this conduct was relevant to a finding of utter dis-
regard and the reasonable probability that the instruction pre-
vented the jury from considering it violated due process.
However, Burris has not presented a claim appropriate for
federal habeas relief. He must show that it was reasonably
likely that the jury applied the instruction in a way that vio-
lated the U.S. Constitution. Estelle, 502 U.S. at 72. “[I]nstruc-
tions that [only] contain errors of state law may not form the
basis for federal habeas relief.” Gilmore v. Taylor, 508 U.S. 333,
No. 15-2891 9
342 (1993) (citing Estelle, 502 U.S. at 62). Burris contends that
the instruction can be read to violate the Constitution in two
ways: (1) the instruction alleviated or shifted the govern-
ment’s burden of proof; and (2) the instruction gave little or
no weight to constitutionally relevant evidence.
To be sure, an instruction that shifts the government’s bur-
den of proof violates due process and may form the basis for
habeas relief. See Waddington, 555 U.S. at 190–91. But an in-
struction that merely assigns little or no weight to one cate-
gory of evidence does not shift the burden of proof. Even if
the jury did ignore after-the-fact conduct in making its deter-
mination, the government still had to prove the element of ut-
ter disregard beyond a reasonable doubt. As the Supreme
Court has explained, “excluding a significant line of evidence
[might make] it easier for the State to meet the requirement of
proving mens rea beyond a reasonable doubt …. But any evi-
dentiary rule can have that effect.” Montana v. Egelhoff, 518
U.S. 37, 55 (1996). And unlike shifting the burden of proof,
excluding consideration of a category of evidence might ben-
efit the defendant. In this case, Burris not only expressed re-
morse after-the-fact, he also quickly fled the scene and evaded
the police for five months. So even if the jury did assign less
weight to after-the-fact conduct, it might have helped Burris.
In sum, the instruction perhaps affected the jury’s considera-
tion of the evidence, but it did not affect the state’s burden.
An instruction that prevents the jury from considering
constitutionally relevant evidence also violates due process.
See Boyde, 494 U.S. at 380. In Boyde, for example, the instruc-
tion prevented the jury from considering constitutionally rel-
evant mitigating evidence about the defendant’s character
10 No. 15-2891
and background at his capital sentencing. Id. at 376. Burris ar-
gues that like Boyde, this instruction prevented the jury from
considering relevant evidence. But Boyde was a capital case
involving instructions during sentencing. This is a noncapital
case involving an instruction prior to a determination of guilt.
The Supreme Court has clarified that “in a noncapital case …
there is no counterpart to the Eighth Amendment’s doctrine
of ‘constitutionally relevant evidence’ in capital cases.” Gil-
more, 508 U.S. at 342. As a result, the fact that the instruction
may have precluded consideration of evidence relevant under
state law does not mean that it violated the Constitution.
The Constitution also guarantees criminal defendants a
meaningful opportunity to present a complete defense. Id. at
343. But the Supreme Court has only invoked this principle in
cases involving the exclusion of evidence or testimony of de-
fense witnesses. Id. Here, the after-the-fact evidence was pre-
sented at Burris’s trial; the instruction merely affected the
jury’s consideration of that evidence. The Supreme Court has
explicitly refused to extend the right to present a defense to a
right to have the jury consider that defense. Id. at 343–44. Ex-
panding Burris’s right to present a complete defense to in-
clude the right to have the jury consider this after-the-fact ev-
idence “would make a nullity of the rule reaffirmed in Estelle
v. McGuire, [] that instructional errors of state law generally
may not form the basis for federal habeas relief.” Id. at 344.
There are still other ways in which a misleading jury in-
struction may violate due process but we need not discuss
them here. The bottom line is that this instruction, to the ex-
tent that it may have misled the jury, only contained errors of
No. 15-2891 11
state law. And “the fact that the instruction was allegedly in-
correct under state law is not a basis for habeas relief.” Estelle,
502 U.S. at 71–72.
Moreover, Burris has not demonstrated that the instruc-
tion was reasonably likely to mislead the jury. Assuming, as
the parties do, that the instruction was ambiguous, the Wis-
consin Supreme Court properly stated the correct standard
for reviewing allegedly misleading jury instructions and rea-
sonably applied that standard to this case.
Burris faults the Wisconsin Supreme Court’s analysis for
two primary reasons, neither of which is persuasive. First,
Burris argues that the state court, as well as the district court,
upheld his conviction on the grounds that the jury could have
found utter disregard based on the evidence. In other words,
Burris contends that the state court engaged in a sufficiency
of the evidence inquiry, rather than examining the instruction
and the effect it had on the jury.
We disagree with this characterization of the Wisconsin
Supreme Court’s analysis. The Wisconsin Supreme Court
does summarize the evidence at trial and considers it in re-
viewing the jury instruction. But the court does not suggest
that the evidence is relevant because it supports the jury ver-
dict. To the contrary, the Wisconsin Supreme Court consid-
ered the after-the-fact evidence presented at trial because Bur-
ris’s argument assumes that the jury heard all of this evidence
and nonetheless ignored it. Burris, 797 N.W.2d at 446 (“Given
all the evidence and arguments regarding his after-the-fact
conduct … Burris has not established a reasonable likelihood
that the jury ignored all of that because of a potentially am-
biguous instruction.”). This approach is not unreasonable; in
point of fact, the U.S. Supreme Court has employed the same
12 No. 15-2891
approach. For instance, in Boyde, the Supreme Court consid-
ered the fact that the defense presented extensive mitigating
evidence related to the petitioner’s background and character
in deciding whether the contested instructions were reasona-
bly likely to preclude the jury’s consideration of that evidence.
494 U.S. at 383–84.
Second, Burris contends that the Wisconsin Supreme
Court did not properly consider the import of the jury’s two
questions. Specifically, he argues that the jury’s apparent con-
fusion suggests that the proceedings up to that point—the ev-
idence presented, closing arguments, and other instruc-
tions—did not help to clarify whether the jury could consider
after-the-fact conduct. According to Burris, the state court
placed too much weight on the proceedings leading up to the
contested instruction since those proceedings prompted the
jury’s questions, and too little on the confusing nature of the
supplemental instruction itself.
Courts must consider jury instructions in the context of the
proceedings as a whole, including the evidence, arguments,
other jury instructions, as well as any jury questions. See Wad-
dington, 555 U.S. at 191. Here, the Wisconsin Supreme Court
properly considered the entire trial, including the jury’s two
questions. The court acknowledged that in light of the jury’s
questions, the circumstances leading up to the contested in-
struction left the jury uncertain. The court explicitly noted
that “[b]ased on its questions, even after [the utter disregard]
instruction, the jury was unsure whether it could consider af-
ter-the-fact conduct.” Burris, 797 N.W.2d at 445. Even so, it
found that the instruction was not reasonably likely to mis-
lead the jury. Since the Wisconsin Supreme Court recognized
the significance of the jury’s questions within the trial’s greater
No. 15-2891 13
context, it did not unreasonably apply clearly established fed-
eral law.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.