Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 C 149 -- Myron L. Gordon, Judge.
Before MANION and ROVNER, Circuit Judges, and WILL, District Judge. *fn1
DECIDED SEPTEMBER 13, 1995
John Bergmann was convicted of first degree reckless injury with a dangerous weapon, kidnapping while armed with a dangerous weapon, intimidation of a witness, and theft from a person. He appeals from the district court's order denying his petition for a writ of habeas corpus. Because Bergmann's constitutional rights were not impinged during the course of his trial, we affirm the district court's judgment.
Bergmann's convictions arise out of the early morning kidnapping and battery of Christine Trawitzki on Monday, October 2, 1989. Prior to that incident, Bergmann and Trawitzki had been involved in an intimate relationship and had lived together intermittently for some time. On the Friday before the attack, Trawitzki and Bergmann decided to end their relationship. Late that night, Bergmann left Trawitzki's Milwaukee home with several hundred dollars belonging to her, and drove six hours to the home of his mother and step-father in Bedford, Indiana. Over the course of the weekend, Trawitzki and Bergmann exchanged several phone calls relating to the money. The last call was made on Sunday evening at 10:35 p.m.
At approximately 4:30 the next morning, as Trawitzki was returning home from a neighbor's house, Bergmann attacked her and forced her into his truck at gunpoint. As Bergmann drove, he severely beat Trawitzki, stopping along the road on two occasions to drag her out of the truck and beat her further. By the time Bergmann dumped Trawitzki in a ditch in Racine approximately one hour later, he had broken her nose, caused serious, long-term injury to her right eye, and inflicted bruises and abrasions extensive enough to cost Trawitzki the use of her right arm for a week. *fn2 Before abandoning her, Bergmann removed money from Trawitzki's wallet and threatened to kill her if she went to the police. He also made thinly veiled threats that he would harm her children.
After Bergmann drove away, Trawitzki crawled out of the ditch and crossed a field, looking for help. She found a home whose residents took her in and called the police. Trawitzki expressed concern for her children, who were asleep at her Milwaukee home in the care of a babysitter. The Milwaukee police were alerted, and the children were removed safely from the home. Bergmann, in the meantime, drove back to his parent's home in Indiana, where he was later apprehended.
At trial, Bergmann's primary defense strategy was to discredit Trawitzki, the main witness in the state's case. However, before the trial began, Bergmann filed a notice of alibi, as he was required to do under Wisconsin law if he intended to call an alibi witness at trial. *fn3 In the midst of her opening statement, believing that Bergmann intended to go forward with an alibi defense, the prosecutor briefly mentioned to the jury that Bergmann apparently would be raising an alibi defense. Defense counsel immediately objected and the jury was ushered from the courtroom. Out of the presence of the jury, Bergmann's counsel objected to the reference to the alibi defense because he had not yet decided whether he would put on such a defense. He argued that the prosecutor violated Wisconsin Statutes sec. 971.23(8)(a), which prevents the prosecution from making reference to a withdrawn alibi defense. The court sustained the objection and took Bergmann's motion for a mistrial under advisement. The trial proceeded without any further reference to an alibi.
During the state's case-in-chief, however, the prosecutor called Betty Scott, Bergmann's mother and one of his designated alibi witnesses, to establish, among other things, Bergmann's opportunity to assault Trawitzki. Because Bergmann was in Indiana immediately before and immediately after the attack, the State sought to show that he had adequate time to travel to Milwaukee to commit the offenses. Significantly, the prosecutor did not question Scott about Bergmann's alibi -- that is, his whereabouts during the crime -- but rather asked only about his absence from her home in Indiana. Scott testified that her son was not home during the relevant time period.
A jury found Bergmann guilty on all charges, and the court sentenced him to fifteen years in the penitentiary with an additional fifteen year suspended sentence, well below the fifty-five year maximum he faced. During the sentencing hearing, the court considered Bergmann's propensities for violence as evidenced by his lack of remorse for his crimes, his history of carrying guns, and the results of psychological testing. The court also considered the impact of the offenses on the victim, the need to protect the community from a person capable of such violence, the gravity of the offenses, and Bergmann's rehabilitative needs. Against this, the court weighed Bergmann's relatively good record before this crime, including family involvement, military service, and lack of a prior significant criminal record.
After exhausting his appeals in the state courts, Bergmann petitioned the district court for a writ of habeas corpus. Bergmann alleged four separate constitutional violations arising out of his trial and sentencing: (1) that the prosecution's reference to his alibi defense and the questioning of one of his alibi witnesses violated his fifth amendment right to remain silent; (2) that his due process rights were violated because there was insufficient evidence to convict him; (3) that the trial court's use of lack of remorse in setting his sentence violated his fifth amendment right against self-incrimination; and (4) that his trial counsel and counsel for post-conviction motions were ineffective.
The district court believed that the prosecutor's reference to Bergmann's alibi defense in her opening statement violated Bergmann's fifth amendment right to remain silent, but that the error was harmless. The state's use of one of Bergmann's designated alibi witnesses did not violate Bergmann's constitutional rights, the court reasoned, because she was called to prove opportunity, and not to impeach Bergmann's alleged alibi. Furthermore, the district court found the evidence sufficient to sustain Bergmann's convictions on all four counts, meaning that he was not denied due process. The district court found that there was no evidence that the trial court enhanced Bergmann's sentence for exercising his right to remain silent. Rather, the trial court properly considered Bergmann's character and degree of dangerousness in calculating his sentence. Finally, the ...