Carter v. Douma

796 F.3d 726

Renardo CARTER, Petitioner–Appellant

v.Timothy DOUMA, Respondent–Appellee.

No. 13–3312.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 2014.

Decided Aug. 6, 2015.

Leigh Ann Krahenbuhl, Jones Day, Chicago, IL, for Petitioner–Appellant.

Sandra Lynn Tarver, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.

Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

Petitioner Renardo Carter challenges his Wisconsin conviction for possessing between five and fifteen grams of cocaine with intent to deliver. At Carter's trial, a police officer testified about his work with an informant who had said Carter was involved in distributing drugs. The officer's testimony relayed the substance of the identification as well as the fact that he requested and heard the informant call Carter to order cocaine. Carter's lawyer did not object to the testimony about the informant's out-of-court statements and actions. During closing argument, the State referred to the informant's statements and actions to support its argument that Carter possessed cocaine with intent to deliver, again without objection from Carter's lawyer.

Carter sought post-conviction relief in state court. He argued that the officer's testimony about his out-of-court conversation with the informant violated his Confrontation Clause right to cross-examine an adverse witness and that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to object to that testimony. The Wisconsin Court of Appeals rejected both claims, finding no plain error in admission of the evidence and concluding that Carter's lawyer was not ineffective for failing to object. The state court explained that admitting the testimony posed no Confrontation Clause problem because it was offered not to show the truth of what the informant said but to explain why the police investigated Carter as they did.

Carter filed a federal habeas corpus petition under 28 U.S.C. § 2254 asserting the same Confrontation Clause and ineffective assistance theories. The district court denied the petition, and we affirm that denial. While there is a good argument that Carter's trial lawyer should have objected to some of the officer's testimony about the informant and its use during closing argument, we need not determine whether his lawyer rendered constitutionally deficient assistance because Carter has not shown that the failure to object prejudiced him. The evidence shows that Carter possessed at least twelve bags of the sort commonly used to redistribute controlled substances and that each of those bags would have held at least 1.75 grams of cocaine. Though Carter's dramatic efforts to flee the police and then to dispose of the bags while standing in a river in view of officers prevented the State from proving more definitively what those bags contained, the state court's finding of no prejudice was not unreasonable.

I. Factual and Procedural Background

A. Events Leading to Arrest

On November 18, 2004, police narcotics investigator Michael Webster went to a motel parking lot to meet a confidential informant with a lead on a person distributing controlled substances. Officer Webster had hoped to get enough information to justify a stop of the suspected man's vehicle or otherwise to secure his arrest. After hearing about this suspicious man, Officer Webster asked the informant to point out the vehicle the man was using. During their conversation, Officer Webster saw that man leave a motel room and walk toward the vehicle. The man was Carter.

At that point, Officer Webster asked the informant to call Carter and say that he wanted to buy cocaine “teeners,” one-sixteenth ounce quantities of cocaine. The informant complied, and Officer Webster made sure he could hear what the informant was saying and could observe Carter's actions in response to the informant's requests. He saw Carter pick up his phone when the informant called, and when the informant hung up, so did Carter. Shortly after the conversation ended, Carter drove away.

Officer Webster then enlisted an Officer Starks to follow and stop Carter. Carter refused to stop. This prompted a car chase—involving Officer Starks and later Officer Webster—that ended only when Carter stopped his car and ran into the Wisconsin River near a dam. Officers Webster and Starks pursued Carter on foot. They saw from a distance that Carter was holding a large plastic bag that they thought contained a mixture of powder and crack cocaine. Officer Webster estimated that the bag was about the size of a 14–inch softball and could have contained in excess of two ounces of the powdery substance.

Officers Webster and Starks caught up with Carter in the river and arrested him there. Before they reached him, other officers on top of a nearby dam saw Carter pull small packets of a white, powdery substance out of his pockets, tear the packets open with his teeth, and dump the bags and their contents into the water. When the officers reached Carter, the bag they had seen previously was now empty, and Carter had a white, powdery substance around his mouth. At one point, Carter indicated he had ingested all of the substance, but he later said he had not swallowed any of it. Officer Webster also observed a fair amount of white residue floating on the water. Officer Starks testified that his narcotics-detection dog indicated for the presence of an odor of an illegal substance in the water near Carter.

Beyond seeing traces of the powder, Officer Webster also recovered from the river twelve “baggie corners,” a type of bag smaller than the larger bag they previously saw Carter holding. In the officer's experience, people packaging controlled substances often make little bags like these by placing the substance in the corner of a sandwich bag, tying it off, and cutting away the excess bag material. Officer Webster testified that all of these smaller baggies would have fit easily within the larger bag he had seen earlier.

After Carter disposed of the substance in the river, the police were unable to recover much of it for testing. They were not able to test the baggies or powdery residue in the river, but they did test one rock found in the river and other rocks found in Carter's car. Both samples contained cocaine. The total weight of recovered cocaine was just 0.2 grams.

B. Trial

The State charged Carter with possessing between fifteen and forty grams of cocaine with intent to deliver. Carter's actions in the river ensured that the State had little physical evidence at trial, so the State relied primarily on the testimony of Officers Starks and Webster. Then other officers testified about the arrest, including seeing Carter in possession of bags containing a white, powdery substance and trying to dispose of the bags in the river. Officer Webster estimated that Carter had possessed at least 21 grams of cocaine before he disposed of it in the river. Officer Webster also testified that carrying that many baggie corners is strong evidence of intent to distribute the cocaine to others.

The State had planned to call the informant at trial but had waited until right before trial to disclose the informant's identity. This left Carter little time to investigate the informant's background. At Carter's request, the trial court barred the State from calling the informant as a witness. The trial court said it would permit the State to ask witnesses about their interactions with the informant so long as their testimony complied with hearsay rules.

Officer Webster testified about the informant's role in the investigation. He explained the circumstances of the meeting and said the reason they met was so that the informant could “direct [him] to an individual that was involved in distributing controlled substances.” It later came out that the person the informant referred to was Carter. Officer Webster also described what the informant said on the call with Carter and made clear that he heard the informant order “teeners” of cocaine from Carter. At no point did Carter's lawyer object to Officer Webster's discussion of the informant.

Though the State had said it would not use any of the informant's statements for their truth, the State relied on those statements in closing argument:

Why do I feel that possession with intent has been shown here? It has been shown because you heard the testimony by Investigator Webster of a confidential informant, someone that the officer uses in drug investigations as part of a tactic that they use. I mean they have people out there who are aware of drug activity going on. They don't want to necessarily come here and divulge their name or get involved, because they might be used in continuing investigation, more than one person.

But with that CI, he was directed to a place where that CI was. The CI came in the vehicle with him, pointed out Mr. Carter; that they went over to Econo Lodge. And as he is pointing him out, the officer said, okay, if what you are saying is true here, order some up for me. So the CI gets on the line, makes the phone call. Mr. Carter is out there answering the phone all observed by the officer. He hears him order four teeners, which he has testified is 1/16 ounce of cocaine. The CI hangs up, the defendant hangs up. He then keeps surveillance the officer does on the defendant until he becomes mobile after the deal had been set up.

Later the State asked the jury to look at the facts and find that possession with intent to deliver had been shown because:

You had the officer indicating that the CI said, get me at least four teeners, 16th ounce. You have 12 packages, not that we know that this is all he had, but we have 12 packages that we were able to find. And the officer said, those could have been packages teeners, eight balls, they could have been higher amounts of cocaine, but I know

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