State v. Rodriguez

• Decision Date: 02 October 2007
• Docket Number: No. 2005AP1265-CR.,2005AP1265-CR.
• Citation: 2007 WI App 252,743 N.W.2d 460
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roberto Vargas RODRIGUEZ, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

743 N.W.2d 460

2007 WI App 252

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

No. 2005AP1265-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 07, 2007.

Opinion Filed October 2, 2007.

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

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Charlotte

Gibson, assistant attorney general and J.B. Van Hollen, attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 KESSLER, J

This case comes before us on remand from the Wisconsin Supreme Court. Roberto Vargas Rodriguez previously appealed from judgments of the circuit court for Milwaukee County convicting him of one count of battery, see WIS. STAT. § 940.19(1) (2005-06);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, and from the trial court's order denying his motion for postconviction relief. State v. Rodriguez, 2006 WI App 163, ¶ 1, 295 Wis.2d 801, 722 N.W.2d 136 (Rodriguez I).

¶ 2 In Rodriguez I, Rodriguez argued that the trial court denied him his right to confrontation of the victim and witness, Jill LaMoore and her daughter Casey, who did not appear at trial and 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.

Id.

¶ 3 We affirmed on all grounds. Id. Rodriguez petitioned for review, which petition the supreme court held in abeyance pending its decision in State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518. The court subsequently remanded Rodriguez I to this court for reconsideration in light of Jensen.

¶ 4 Jensen further explains previous Wisconsin holdings describing when statements are subject to the United States and Wisconsin constitutional right of confrontation² because they are testimonial as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).³ In addition, for the first time in Wisconsin, Jensen adopts the doctrine of forfeiture by wrongdoing, explains when confrontation rights may be forfeited because of misconduct by the person asserting the right to confrontation, and specifies how the determination of forfeiture is to be made by the trial court. See id., 299 Wis.2d 267, ¶ 57, 727 N.W.2d 518. In Rodriguez I, the majority concluded that all statements were admissible under Crawford because they were not testimonial. Rodriguez I, 295 Wis.2d 801, ¶¶ 27-28, 722 N.W.2d 136. Therefore, we did not consider whether Rodriguez had forfeited his right of confrontation by misconduct, including the effect of Rodriguez's convictions for intimidation of the victim and witness. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct.App.1989) ("[C]ases should be decided on the narrowest possible ground."). We now reconsider the right of confrontation portion of our decision in Rodriguez I in light of Jensen.

I. Facts

¶ 5 The facts underlying the multiple convictions have been described in detail in Rodriguez I, and will not be repeated here except as necessary to this opinion. See id., 295 Wis.2d 801, ¶¶ 3-11, 722 N.W.2d 136. Rodriguez was charged in the original criminal complaint with battery; his victims were Jill LaMoore, who was his girlfriend, and her daughter, who was seven years old. He was also charged with intimidation of a victim based upon a supporting affidavit that alleged that he threatened LaMoore with a "bloodbath" and that he would stab her if she ever called the police again.

¶ 6 On the original trial date, January 14, 2004, after a hearing at which Rodriguez and his counsel were present, the trial court issued an order which suspended all of Rodriguez's telephone, mail and visitation privileges (except with his attorney) because the court found the restrictions were "necessary to prevent further intimidation of witnesses." The State supported its request for the order with audiotapes of multiple telephone calls made by Rodriguez from the House of Correction in which Rodriguez urged his brother, Luis, to tell LaMoore not to testify. These conversations were recorded after Rodriguez had received both a written notice that this could occur and after an automated warning of the recording was given to Rodriguez before each of the recorded conversations. The audiotapes of twenty-one conversations demonstrate that Rodriguez repeatedly asked Luis to tell LaMoore "to not come to court and testify" against him. The recordings also establish that Luis indicated that he would "pay her [off]." Rodriguez eventually told Luis that he had "found" LaMoore.

¶ 7 The State subsequently filed an amended complaint, adding the additional charges of intimidation of a witness based upon Rodriguez's attempting to discourage LaMoore "from attending or giving testimony at trial." When the trial began on March 17, 2004, neither LaMoore nor her seven-year-old daughter appeared. Id., ¶ 2. The State indicated it had made approximately a dozen telephone calls to LaMoore, had written letters and had attempted to subpoena her before trial. The trial court found that the "State has made a due and diligent effort to get the victim here to court.... [T]he State has done everything they could to try to get her here." The trial court noted, apparently in reference to the intimidation charges, that "if the charges are true ... the defendant . . . is part of why the victim is not here." Statements LaMoore made directly to police officers, and statements that her daughter made to her and to police officers,⁴ were admitted at trial through the testimony of the officers. Id., ¶¶ 3-11. Rodriguez objected to that testimony on confrontation grounds, based upon Crawford. Rodriguez I, 295 Wis.2d 801, ¶ 2, 722 N.W.2d 136.

¶ 8 The House of Correction's logs of these telephone calls and the audiotapes of the conversations were admitted as evidence at trial, and played for the jury. The jury found Rodriguez guilty of intimidating LaMoore, both as a victim and as a witness.⁵

¶ 9 In Rodriguez I, Rodriguez argued that the statements by LaMoore and her daughter were testimonial and therefore inadmissible because he was unable to cross-examine the declarants. Not surprisingly, the State argued that the statements were not testimonial, but that if we concluded otherwise, then Rodriguez's conviction for witness intimidation forfeited his right to object to the same witness's hearsay testimony. Rodriguez responded that the State had waived that argument because it failed to argue forfeiture by wrongdoing at the trial court, and because application of the doctrine required the trial court to find that Rodriguez caused LaMoore's absence from trial. These arguments are renewed by the parties on remand.

II. Waiver

¶ 10 Rodriguez argues that forfeiture by wrongdoing was not argued by the State at the trial court level, and is therefore waived. We disagree.

¶ 11 The State did not name the doctrine during the January 2004 hearing, but it advised the trial court of Rodriguez's efforts to intimidate LaMoore as evidenced by the recorded telephone conversations. It also advised the trial court it would likely be charging Rodriguez with intimidation of a witness based upon those calls. The issue of Rodriguez's misconduct was before the trial court. At the time of that hearing, neither Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), on a federal level, nor Jensen in Wisconsin, had yet been decided, endorsing the doctrine of forfeiture of the right of confrontation by wrongdoing. See Davis, 126 S.Ct. at 2280; Jensen, 299 Wis.2d 267, ¶ 2, 727 N.W.2d 518. A litigant cannot fairly be held to have waived an argument that, at the time, a court of competent jurisdiction had not yet announced. See State v. Howard, 211 Wis.2d 269, 287-88, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, 262 Wis.2d 380, 663 N.W.2d 765.

¶ 12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt, 128 Wis.2d 110, 124-26, 382 N.W.2d 679 (Ct.App.1985). If, however, actions by the State prevented fact finding on an issue that could have been resolved, then waiver may be applied. See State v. Nichelson, 220 Wis.2d 214, 230, 582 N.W.2d 460 (Ct.App.1998). Here, the State did nothing to prevent necessary fact finding; on the contrary, the State initiated the process from which the trial court made the pretrial findings of witness intimidation that supported the order terminating Rodriguez's access to telephone, mail and visitors in order to prevent further intimidation.

III. Admissibility of absent witness statements

A. Impact of Jensen

¶ 13 The majority originally concluded in Rodriguez I that the statements were not testimonial and, therefore, were admissible under the third Crawford formulation⁶ because they were excited utterances. Rodriguez I, 295 Wis.2d 801, ¶ 23, 722 N.W.2d 136. In reaching that conclusion, we considered the following: Davis; State v. Manuel, 2005...