State v. Medrano, 76-114-CR

• Decision Date: 30 June 1978
• Docket Number: No. 76-114-CR,76-114-CR
• Citation: 84 Wis.2d 11,267 N.W.2d 586
• Parties: STATE of Wisconsin, Respondent, v. David Peter MEDRANO, Appellant.
• Court: Wisconsin Supreme Court

Page 586

267 N.W.2d 586

84 Wis.2d 11

STATE of Wisconsin, Respondent, v. David Peter MEDRANO, Appellant.

No. 76-114-CR.

Supreme Court of Wisconsin.

Argued March 8, 1978.

Decided June 30, 1978.

William U. Burke, Milwaukee, for appellant; Thomas J. Balistreri and Shellow & Shellow, Milwaukee, on briefs.

Michael R. Klos, Asst. Atty. Gen., for respondent; Bronson C. La Follette, Atty. Gen., on brief.

The appellant, David Peter Medrano, was convicted of two counts of rape contrary to sec. 944.01, Stats., 1973, and sentenced to two prison terms not to exceed eighteen years each to be served concurrently. The sentences were subsequently reduced to fifteen years each. Medrano has appealed from the judgment of conviction and the order denying his motion for new trial.

BEILFUSS, Chief Justice.

After a party at a farmhouse near Plymouth, Wisconsin on the evening of November 16-17, 1974, two of the guests, Diane Kenealy and Cynthia Miller, reported to authorities that they were forced to partake in numerous acts of sexual intercourse and sexual perversion. David Peter Medrano was charged with raping each of the women, and tried with five other defendants who were charged with raping or performing acts of sexual perversion with one or both of the women.

On this appeal Medrano contends the trial court erred in admitting hearsay testimony and evidence regarding a gun in Medrano's possession and in preventing the defense from offering testimony regarding a prior act by Diane Kenealy. Medrano alleges that he was prejudiced when the jury heard that a third woman who had sexual intercourse at the party also had an abortion. Finally, Medrano argues that he was denied effective representation by counsel because his attorney also represented two other defendants whose interests conflicted with Medrano's.

Kenealy and Miller testified that around 9 p. m., a kangaroo court composed of several men convened in the kitchen and found Miller guilty of spilling beer in the living room. Two men carried Miller from the living room to the bedroom in the back of the kitchen on the first floor of the farmhouse where she was forced to partake in ten to twenty acts of sexual intercourse and about eight acts of oral intercourse.

The kangaroo court later found Kenealy guilty and she was taken to an upstairs bedroom where she was forced to partake in at least four acts of sexual intercourse with four different men. At approximately 2:30 or 3 a. m., she managed to escape and, while being pursued by men and dogs, she ran through a field to another farmhouse. During her flight she ran through tall grass, a cornfield and a dirtfield and she lost her shoes. She was given shelter at the second farmhouse, the home of Alfred Bruggink and his family.

Medrano first contends that the trial court erred in admitting, through the testimony of eight other witnesses, out-of-court statements that the victims and a third woman had been raped at the party. Medrano argues that the statements were admitted in violation of the hearsay rules and that he was denied due process by the cumulative effect of the eight extra witnesses testifying that the two victims had been raped.

The first state witness was Sheboygan County Deputy Sheriff Dennis Luedtke who was dispatched to the Bruggink farm at approximately 3:30 a. m., on November 17, 1974. He testified that he arrived at the house and was introduced to Diane Kenealy. When he asked what the problem was she said that she had been to a party and had been raped. Medrano's attorney joined the attorney for another defendant in objecting to this statement on the grounds that it was hearsay. The trial court overruled the objection. Luedtke then reported that Kenealy had told him that she had left her residence in Milwaukee at about 7 p. m., to go to the party and at the party was a group of people she believed to be members of a motorcycle gang because they were wearing black leather jackets and she heard some name mentioned like the "American Breed" motorcycle gang. She explained that she was put before a kangaroo-type court and was found guilty. At that point the attorney for another defendant objected to Luedtke reporting Kenealy's statements on the grounds of hearsay and asked that his testimony be stricken. However, the attorney said that he would withdraw his objection if the court instructed the jury that the statements were offered not as proof of the facts stated but merely as background. Medrano's attorney joined in the objection and moved for a mistrial. The court instructed the jury that the testimony received through the officer relating to matters told him by Kenealy was received in evidence not to prove the truth of the various things she related but only to inform the jury that she related certain things to the police officer. The court had ruled that the testimony was being offered only to explain why the officer did what he did. After speaking with Kenealy, Luedtke and several other officers went to the first farmhouse and arrested eleven males and one female.

Medrano argues that it was error to permit Luedtke to testify to the details of Kenealy's story. Medrano admits that the deputy's testimony that Kenealy said that she had been to a party and had been raped was made without objection and argues that that testimony alone was sufficient to permit the jury to understand the reason for the subsequent activity of the police. Such testimony is permitted to explain the later action of the officer. State v. Lopez, 182 Kan. 46, 318 P.2d 662 (1957). However, Medrano argues that it was improper to permit Luedtke to relate the further details that Kenealy had reported to him. Medrano admits that these details only concern events leading up to the rape, and not details of the rape itself. The admission of these details was not prejudicial to the defendant's case because, with the exception of the reference to the mock trial, the other facts were admitted by the defendants. Harris v. State, 52 Wis.2d 703, 705, 191 N.W.2d 198 (1971).

Medrano contends that it was error for the trial court to permit three women to report Cynthia Miller's out-of-court statements. After the state called three law enforcement officials as its first witnesses, it called Cynthia Miller who related her version of the events of the party. Before the state completed its direct examination of Miller, her testimony was interrupted so that the state could call three women to testify. Each of the three women testified that she talked to Cynthia Miller either late in the morning or during the afternoon of November 17, 1974, and that Miller related facts regarding the events of the party. Medrano now argues that Miller's out-of-court statements reported by the three women were hearsay and should not have been admitted into evidence. After the first woman began relating what Miller told her, one of the defendant attorneys objected but said he would have no objection if the jury was instructed. Medrano's attorney joined in the objection. After the court instructed the jury that the testimony was not being received into evidence to prove the truth of what Miller said but only to show that these things were in fact said, the other defense attorney withdrew his objection. Because Medrano's attorney had joined in the first attorney's objection, the withdrawal of the objection by the first attorney is deemed the withdrawal of the objection by Medrano's attorney also. By withdrawing the objection Medrano's attorney waived his right to challenge the admissibility of the evidence. Bailey v. State, 65 Wis.2d 331, 350, 222 N.W.2d 871 (1974).

No objection was made by Medrano's attorney when the other two women related their conversations with Miller. The failure of Medrano's attorney to object waived his right to contest the introduction of the evidence. Bennett v. State, 54 Wis.2d 727, 735, 196 N.W.2d 704 (1972).

Before Diane Kenealy testified, Alfred Bruggink and his daughter, Edith, reported that when Kenealy came to their house she told them that she had been raped. Medrano now argues that their testimony was in violation of the hearsay rules. At the trial the attorney for another defendant objected to Alfred Bruggink's report of what Diane Kenealy said. Medrano's attorney joined in the objection. The court concluded that Diane Kenealy's statement to Alfred Bruggink was admissible as an excited utterance under sec. 908.03(2), Stats.

Sec. 908.03(2), Stats., authorizes the admission of out-of-court statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Diane Kenealy later testified that she arrived at the Bruggink farm after running through a field while being chased by men and dogs. Alfred Bruggink testified that he let Diane Kenealy in after hearing her knock on the window and yelling and begging to be let in. He said she had on jeans and a shirt, but no shoes and there was mud on her. She tried to call the sheriff's department but was too excited to make the call. He described her as hysterical. Edith Bruggink testified that Kenealy was hysterical, crying, shaking and nervous. The trial court correctly admitted the statements as excited utterances. The statements related to a startling event and were made while Kenealy was under the stress of excitement caused by the event.

On appeal, Medrano also objects to hearsay statements related by Sheboygan County Sheriff's Detective Eugene Simonsmeier. There were no objections to the statements and therefore Medrano's right to contest the admissions was waived. Bennett, supra, 54 Wis.2d at 735, 196 N.W.2d 704.

Dr. Irvin Schroeder examined Diane Kenealy on the morning of November 17, 1974. He testified that he was asked to examine her because she stated she was raped. Medrano now argues that Schroeder should not have been permitted to testify that Kenealy said that she had been raped. There was no...