OSCAR C. THOMAS, Petitioner-Appellant,
MARC CLEMENTS, Respondent-Appellee
Argued January 6, 2015.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-cv-1024 -- William E. Callahan, Jr. Magistrate Judge.
For OSCAR C. THOMAS, Petitioner - Appellant: Amelia L. Bizzaro, Attorney, Milwaukee, WI.
For MARC CLEMENTS, Respondent - Appellee: Marguerite M. Moeller, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI.
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
Williams, Circuit Judge.
Joyce Oliver-Thomas passed away sometime in the early morning of December 27, 2006. Her ex-husband and roommate Oscar Thomas was convicted of intentionally committing her murder (as well as first-degree sexual assault and false imprisonment). During the trial, the state's forensic pathologist testified that the autopsy findings were consistent with the application of intentional pressure to Oliver-Thomas's neck, resulting in manual strangulation and her death. Thomas argues that his trial counsel was ineffective for failing to consider and consult with an expert to review the pathologist's report and perhaps testify consistently with the defense's theory of the case, namely that Thomas unintentionally caused Oliver-Thomas's
death by putting pressure on her neck for too long during sex. To show he received ineffective assistance, Thomas must demonstrate his counsel's performance was deficient and resulted in prejudice. Since the last reasoned opinion from the state courts did not address the performance analysis and applied the wrong standard to the prejudice analysis, we review Thomas's claim de novo. We agree with Thomas that a reasonable counsel would have consider and/or consulted with a forensic expert, especially when the state's expert testified there was no evidence of external bruising on Oliver-Thomas's neck but that the expert was still sure that this was intentional strangulation. Given the weakness of the state's case, especially as it relates to Thomas's intent, had counsel reached out to a forensic pathologist, or another expert similar to the habeas expert, and the expert testified, there is a reasonable probability the outcome of the trial would have turned out differently. Defendant's expert testimony would have highlighted the shortcomings in the medical evidence--the lack of external bruises on Oliver-Thomas's neck and lack of any signs of a struggle on either Thomas or Oliver-Thomas--and provided an expert, medical basis upon which the jury could have found reasonable doubt. Therefore we reverse the district court's denial of Thomas's petition and remand for proceedings consistent with this opinion.
A. Facts Surrounding Oliver-Thomas's Death
Thomas and Oliver-Thomas were married in 1990, had two children together, and divorced in 1999. Even after the divorce, Oliver-Thomas let Thomas live in her apartment, lent him money and helped him in other ways. The two would also occasionally have sex. They also fought, and there was testimony Oliver-Thomas threatened to kick Thomas out numerous times, including on December 26, 2006, but she never actually forced him out of the apartment.
Around 2 a.m. on December 27, 2006, Erica Cruz, the neighbor who lived directly below Oliver-Thomas woke to the sound of screaming. Cruz said she heard noises for about an hour. She testified that the noises included a woman screaming " Stop, stop, I love you. I love you" about three times, someone choking, and kicks and thumps on the ceiling. There was then ten minutes of silence, and then the sound of moving furniture, which she told police officers sounded like someone dragging a body a few feet. She then saw two men, including Thomas, leave the building. Cruz later heard someone go into Oliver-Thomas's apartment, walk around and say " oh my god move," either once (as testified at trial) or several times (as Cruz told police in statements).
Police received a call from Thomas at 3:24 a.m. saying Oliver-Thomas was unconscious. An officer arrived on the scene within minutes and found Oliver-Thomas unresponsive with her eyes open and without any pulse. She was pronounced dead in the hospital at 4:19 a.m.
While officers were tending to Oliver-Thomas, Thomas told two officers that he came back to the apartment and found Oliver-Thomas grabbing her neck in a choking manner before he called the police. Thomas then wrote a statement in which his story differed somewhat, and he said he discovered her unresponsive on the floor. A few hours later, Thomas voluntarily went to the police station to give another, more detailed written statement. He said around midnight he left the basement and went upstairs to Oliver-Thomas's apartment and began watching a pornographic movie. He went into the bedroom and he and Oliver-Thomas
had sex, during which they fell off the bed and continued to have sex. Thomas left the apartment complex to get a cigarette. When Thomas returned, he found Oliver-Thomas on the floor.
After learning of the autopsy results--which we discuss in more detail later--the police confronted Thomas later that afternoon. He was interviewed for eight hours, towards the end of which he wrote a two-page statement. He reiterated his movie viewing and the ensuing sexual encounter, but this time added that he " had [his] left arm up around her neck, [his] right arm underneath her" while having sex. After they had sex, Thomas went out to the living room and watched more of the video. He then again went into Oliver-Thomas's room and:
went and jumped on her hip area and was humping. I was just messing around. I told her I had time for a quickie. ... I rolled Joyce over and we went back down on the floor. ... I had my left arm around Joyce's neck. I didn't think I was squeezing hard but Joyce was struggling, yelling to stop and [quit]. Joyce's feet were kicking the floor while telling me to stop. Joyce was telling me she loved me and for me to quit playing. I kept squeezing for a little while until she said she would bite the shit out of me. I got up and left.
Thomas did not say the two had a second sexual encounter. Thomas went to the basement and came back to find Oliver-Thomas " laying face down on the floor" making " gurgling sounds." The statement ends: " I do believe I was accidentally responsible for the death of Joyce."
B. The trial
In addition to presenting that evidence at trial, the state proposed two possible motives for Thomas's actions. First, it painted Thomas as desperate for money. It presented the testimony of two co-workers of Oliver-Thomas who said that Thomas called just hours after she died to ask about her paycheck. Oliver-Thomas's daughter also testified that the purse Oliver-Thomas used every day was missing. Second, the state suggested Thomas was upset about a relationship he perceived Oliver-Thomas as having with a co-worker. One of Oliver-Thomas's co-workers said Thomas was jealous of Oliver-Thomas and a male co-worker and at one point Thomas said " he was going to kill that mother fucker." The same witness admitted there was no evidence Oliver-Thomas and the co-worker were actually involved.
The state also put on the testimony of Dr. Mary Mainland, the coroner and the medical examiner for Kenosha County. Dr. Mainland testified that Oliver-Thomas had hemorrhages in her eyes and at least ten abrasions on her face. Dr. Mainland also found multiple hemorrhages inside Oliver-Thomas's neck and bruises to her thyroid and larynx. There were no marks around Joyce's neck, but Dr. Mainland stated, " It's possible that another part of the body [other than fingers] could have been used to inflict these injuries to her neck, such as an arm or a forearm." Dr. Mainland came to the conclusion that Joyce died from " strangulation and the strangulation was due to a physical assault." She ...