State v. Rodriguez

• Decision Date: 28 July 2006
• Docket Number: No. 2005AP1265-CR.,2005AP1265-CR.
• Citation: 722 N.W.2d 136,2006 WI App 163
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roberto Vargas RODRIGUEZ, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

722 N.W.2d 136

2006 WI App 163

STATE of Wisconsin, Plaintiff-Respondent, v. Roberto Vargas RODRIGUEZ, Defendant-Appellant.^†

No. 2005AP1265-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 1, 2006.

Opinion Filed July 28, 2006.

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On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Charlotte Gibson, assistant attorney general.

Before FINE, CURLEY and KESSLER, JJ.

¶ 1 FINE, J

Roberto Vargas Rodriguez appeals judgments convicting him of: one count of battery, see WIS. STAT. § 940.19(1); one count of intimidation of a victim, see WIS. STAT. §§ 940.45(3) & 940.46; one count of intimidation of a witness, see WIS. STAT. §§ 940.42 & 940.46; and two counts of disorderly conduct, see WIS. STAT. § 947.01, all as an habitual criminal, see WIS. STAT. § 939.62. He also appeals from the trial court's order denying his motion for postconviction relief. He contends that the trial court denied him his right to confrontation by receiving into evidence police-officer testimony of what his alleged victim, Jill LaMoore, and her seven-year-old daughter Casey, told the police, when neither Ms. LaMoore nor Casey testified at the trial. He also claims that the trial court erred in: (1) permitting the State to ask Rodriguez's brother about his membership in a street gang; (2) overruling a defense objection to the prosecutor accusing Rodriguez of lying during his testimony; and (3) not recusing itself in connection with Rodriguez's postconviction motion asserting that he was prejudiced by his trial lawyer's alleged deficient representation. Rodriguez also argues that he was prejudiced by his trial lawyer's alleged deficient representation when the trial lawyer: (1) did not object when the prosecutor asked the police-officer witnesses whether there was anything else they wanted to tell the jury, and (2) asked one of the police officers whether he believed that Ms. LaMoore was telling the truth when she told him that Rodriguez had attacked her and Casey. We affirm, and analyze in sequence Rodriguez's claims.

I. CONFRONTATION.

A.

¶ 2 As we have seen, Rodriguez claims that he was denied his right to confrontation when the trial court permitted police-officer witnesses to testify about what Jill LaMoore and her daughter Casey told the officers, when neither Ms. LaMoore nor Casey testified. We disagree.

¶ 3 The West Allis officers, Brad Sterling and Todd Kurtz, were the first two witnesses called by the State. Sterling told the jury that he went to LaMoore's house in West Allis after midnight because someone had called his department to say that a man was beating a woman there. He said that he arrived within "about a minute of the call at the most," and found Jill LaMoore inside the house: "She was crying. She was breathing very fast. She was hysterical. She stated she was just beat up." Sterling testified that "the right side of her face was red," that "it looked like an injury," and that Ms. LaMoore had "contusions on the top of her head and back of her head."

¶ 4 Officer Sterling also testified that Ms. LaMoore told him that Rodriguez had come home around midnight, accused her of infidelity, and kicked her repeatedly, threatening to kill her. According to the officer, LaMoore then called her Rottweiller dog for help, but Rodriguez punched the animal "several times, choked it, threw it against the wall," and then "[g]rabbed [LaMoore] by the hair" and "punched her in the top and back of the head." Sterling testified that LaMoore "was crying the entire time I was talking to her and she would talk very fast."

¶ 5 According to Officer Sterling's recounting of what Ms. LaMoore told him, seven-year-old Casey came into the room during the assault and "yelled to Mr. Rodriguez, `Stop hitting my mom.'" Rodriguez "then turned and grabbed the seven year old and pushed her hard against the wall." When Ms. LaMoore tried to stop this, and made an unsuccessful attempt to slap Rodriguez, Rodriguez grabbed her "by the shoulders I believe it was or the head, pushed her up against the wall and spit in her face."

¶ 6 Both LaMoore and Casey were able to run out of the house, and, again according to what LaMoore told Sterling, LaMoore "could see inside the door and she noticed the defendant was kicking or punching the dog and dragging the dog out the door." At this point, the prosecutor asked the open-ended question to which Rodriguez contends his trial lawyer should have objected:

Q. Is there anything else in your investigation with regard to this that I've neglected to ask you that you think it's important for the jury to hear?

A. I think that she just advised she was very, very afraid and very threatened of Mr. Rodriguez. She has advised that she had wanted to—she doesn't know how to leave Mr. Rodriguez and she even said that the quote she gave me was, the police can't help me. You guys can't help me. You can't protect me or my child.

That ended the State's direct-examination of Officer Sterling.

¶ 7 The cross-examination of Officer Sterling by Rodriguez's trial lawyer was brief, and gave the officer a chance to repeat that Ms. LaMoore was very upset when he spoke to her shortly after he arrived at her house. Additionally, Rodriguez's trial lawyer asked the officer:

Q. And you believe that her statements were truthful at the time?

A. Yes, sir.

Q. Okay. And what are you relying on to believe that they were truthful?

A. I don't believe she had enough time to make up any kind of statement. The way she was, her emotional state. My experience in this area, we've taken a number of domestic violence incidents. When people are this upset and we get there very quickly, there's not enough time in my opinion that I have seen for her to make up any kind of story. That this didn't happen. Also with her injuries that I felt and observed.

¶ 8 The State called West Allis police officer Todd Kurtz as its second witness. Kurtz arrived at LaMoore's house shortly after Sterling, and spoke with LaMoore's little girl, Casey. According to Kurtz, Casey was "crying hysterically" when he first spoke with her "a few seconds" after he arrived. He testified what she told him after he tried "to calm her down for a little bit."

She told me she was trying to sleep in the living room on the couch and that her mom had brought some popcorn into the living room. She told me that Roberto had punched her mom in the head and she didn't know why that had occurred. She then said that Roberto was throwing her mom around the entire house, picking her up and throwing her down, and that at one point she saw Roberto throw her mom into the bathroom.

According to Kurtz, Casey was able to get away and ask "the upstairs neighbor" to call the police, which the neighbor apparently did.

¶ 9 Officer Kurtz also told the jury that the next day he found some of Jill LaMoore's personal property near the LaMoore house, and that he was on his way to return it to her when he saw LaMoore's dog, which he also brought back to the house. Once at the house, the dog started to bark, and Ms. LaMoore came out of the house. Kurtz testified that when he asked about Rodriguez, Ms. LaMoore told him that Rodriguez had returned about an hour after the police had left but that he was then on his way to Texas.

¶ 10 Kurtz testified that he was suspicious about Ms. LaMoore's "body language" and story when Casey came out of the house and told him that Rodriguez had "tried to stab me and my mom with a knife last night." Kurtz then testified:

I looked at Jill, at the mother, and I said is that true and she put her head down, started to cry, and told me—she told me that that was true. So now I asked her again, I said, are you sure that he's not in the house right now and she was crying and said, you know, no, he's not in there, and as she said that then Casey, the little girl, tucked [sic] on my pants leg and said—she said, mommy, don't lie, he's underneath the couch with a knife, and I looked at her again and I said is that true. She started crying even harder and said, yes, he's in there.

Officer Kurtz "called for back-up," and, after the other officers arrived, they found Rodriguez underneath a couch with "a knife laying right next to his feet."

¶ 11 As with Sterling, the prosecutor also asked Officer Kurtz whether there was "anything else" the prosecutor "neglected to ask with regards to your investigation that you think is for the jury to hear." Kurtz responded:

He did make several threats to stab her with the knife and this had gone on for quite a period of time and she said that eventually she just got sick of the-of all these threats and she said she called his bluff and said, well, then go ahead and stab me then if you're going to do it, and he didn't stab her at that point.

B.

¶ 12 Every defendant in a criminal case is entitled to confront his or her accusers: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. This clause applies to the states as well as to the federal government. The Wisconsin Constitution also guarantees the right to confrontation: "In all criminal prosecutions the accused shall enjoy the right ... to meet the witnesses face to face." WIS. CONST. art. 1, § 7. The two clauses are, "generally," coterminous.

State v. King, 2005 WI App 224, ¶ 4, 287 Wis.2d 756, 760, 706 N.W.2d 181, 184 (case citations and quoted case-source omitted). Rodriguez was tried shortly after the United States Supreme Court issued Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that a defendant's right to confrontation is violated if the trial court receives into evidence out-of-court statements by someone who does not...