Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 740 -- Robert W. Warren, Judge.
Wood and Posner, Circuit Judges, and Moran,*fn* District Judge. Moran, District Judge, concurring.
Scott Mattes, a Wisconsin state prison inmate, appeals from the judgment by the United States District Court for the Eastern District of Wisconsin which denied his petition for a writ of habeas corpus. His petition raised the same three issues presented in this appeal: (1) whether the introduction of hearsay violated the petitioner's right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution; (2) whether the alleged violation of the right to confrontation constituted harmless error beyond a reasonable doubt, and (3) whether the jury instruction on intent impermissibly shifted the burden of proof respecting an element of the crime from the prosecution to the defense. This court has jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1291 and 2253.*fn1
Following his conviction, Mattes appealed the right to confrontation issue to the Wisconsin Court of Appeals. Mattes v. Wisconsin, 90 Wis. 2d 858, 279 N.W.2d 507 (1979) (unpublished). The appellate court failed to address the confrontation issue, however, merely ruling that Koller's testimony did not fit within any state hearsay exception but only harmless error resulted. The Wisconsin Supreme Court denied further review on June 28, 1979. Mattes v. Wisconsin, No. 78-258-CR (Wis. June 28, 1979). Thus, Mattes presented the opportunity to consider the confrontation issue to the Wisconsin Court of Appeals and to the Wisconsin Supreme Court, thereby exhausting his state remedies.
Mattes then filed a motion for post-conviction relief on the issue of the presumptive intent instruction pursuant to Wis. Stat. § 974.06. On May 19, 1980, the Wisconsin court denied post-conviction relief based on Muller v. State, 94 Wis. 2d 450, 289 N.W.2d 570 (1980), upholding the challenged instruction. According to Mattes, further review of the presumption of intent instruction issue would have proved futile in light of the Wisconsin Supreme Court decision in Muller v. State, 94 Wis. 2d 450, 289 N.W.2d 570 (1980).
The court concludes that Mattes exhausted his state remedies available with respect to the burden shifting instruction ground for relief. Although he could have appealed the adverse ruling on the post-conviction petition, Wis. Stat. § 974.06(7), the Muller decision rendered the appeal futile and therefore, unnecessary to establish exhaustion. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. at 516 n. 7, 50 U.S.L.W. at 4274 n.7 (1982); Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Carter v. Estelle, 677 F.2d 427 (5th Cir. 1982).
The indictment against the petitioner Mattes charged him and Joseph Sorce*fn2 with two counts of attempted first-degree murder. According to the evidence, Gregory Nauertz, with Dawn Wimmer as a passenger behind him on his motorcycle, was riding southbound on Wisconsin Highway 141. When they were passing under a highway overpass, Mattes dropped a 66-pound concrete block from the overpass which landed directly in front of the motorcycle. Nauertz testified that "there was no way or chance of avoiding hitting it." The motorcycle smashed into the concrete block and skidded 700 feet before coming to rest. As a result, both Nauertz and Wimmer sustained injuries.
Two eyewitnesses testified. Patrick Cooney testified that he observed a red van stopped at the overpass, saw a man on the edge of the overpass drop the concrete block onto the freeway, and watched that man run to the red van and drive off, proceeding west on the County Line Road.
The other eyewitness, Frederick P. Stratton, Jr., gave substantially the same account but added some details. According to Stratton, the man who dropped the concrete block was a white male wearing a brown shirt and dark pants. Additionally, he observed the license plate number of the van and that the driver of the van, Sorce, wore glasses and a horizontally striped shirt. Shortly after the incident, Stratton identified the van and its occupants at the intersection of the County Line Road and the Upper River Road.
Also, State Trooper Gregory Boening testified that while heading south on Highway 141, he saw Nauertz's motorcycle swerve and skid. Based on statements made by eyewitnesses, Boening pursued the red van. After the van spun to a stop, the passenger, who was clad in a brown T-shirt, threw out of the window a paper bag containing a loaded .38 caliber revolver. During his testimony, Boening made an in-court identification of petitioner and Sorce.
To establish a motive for the alleged attempted murders, the prosecution introduced evidence that Nauertz knew Sorce, that at the time of the attempted murder Nauertz was scheduled to testify in another case against an associate of the Milwaukee Outlaws (a motorcycle organization) named Robert Koller, and that Sorce and Mattes were connected with the Milwaukee Outlaws.*fn3 Nauertz testified that at the time of the attempted murder he knew Sorce and was scheduled to testify against Robert Koller in the other case. Following up, over defense counsel's objections, Trooper Boening testified that Sorce's arm bore a tattoo depicting a skull and crossbones with the words "Milwaukee" above the picture and "Outlaws" below, and that the glove compartment of the van contained two ribbons, one reading "Our Brother" and the other, "The Outlaws." Further establishing the connection, State Trooper Charles Janssen also testified that, when arrested, Sorce wore a brass belt buckle reading "Outlaws."
Pursuing the motive line, the state then called Koller to the stand. Koller declined to testify relying on the Fifth Amendment right against self-incrimination. When the prosecutor asked Koller about his connection with the Outlaws and about his testimony on the subject at his own trial, Koller refused to answer.*fn4
To establish Koller's prior testimony and his connection with the Outlaws, the state called the court reporter for the trial of Wisconsin v. Robert Koller and Gregory Frankovis, 87 Wis.2d 253, 274 N.W.2d 651 (1979). The state contended that Koller's testimony from the prior trial was admissible as a prior inconsistent statement. The defense objected on the grounds that any prior testimony could not be inconsistent with Koller's present assertion of the Fifth Amendment and that the testimony was hearsay. The trial court ruled that Koller's former testimony could be introduced as a prior inconsistent statement. The reporter testified that Koller had testified that, although he was not a member of the Outlaws, he had traveled places with them and his brother was one. The defense elected not to cross-examine the court reporter.
The defense called no witnesses and made no opening statement. Essentially conceding that the state had proved the acts alleged, defense counsel, in the closing argument, argued that the only issue was whether Mattes was guilty of attempted murder or the lesser included offense of endangering safety by conduct regardless of life and asked the jury to find Mattes guilty of endangering safety, but innocent of attempted murder.
At the close of the evidence, the trial court, without objection from the state, submitted an instruction and verdicts on the lesser included offense of endangering safety by conduct regardless of life as well as on attempted first-degree murder.*fn5 The instructions as to attempted murder contained the following language on the element of intent:
When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all the natural, probable and usual consequences of his deliberate acts. If one person assaults another violently with a dangerous instrumentality, likely to kill then when there are no circumstances to prevent or ...