State v. Rogers
| Decision Date | 03 November 2021 |
| Docket Number | Appeal No. 2020AP759-CR |
| Citation | 968 N.W.2d 869 (Table),2022 WI App 1 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Quentin L. ROGERS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Quentin L. Rogers appeals from a judgment convicting him after a jury found him guilty of three counts of retail theft as a repeater. He also appeals from an order denying his motion for postconviction relief in which he alleged Brady /discovery violations, prosecutorial misconduct, ineffective assistance of trial counsel, and additionally sought postconviction testing of physical evidence for fingerprints and DNA.1 We affirm.
¶2 The State charged Rogers with the following three counts of retail theft stemming from incidents that took place at a Walmart: count one, taking a computer valued under $500 on February 11, 2013; count two, taking a computer valued over $500 but less than $5,000 on February 12, 2013; and count three, intentionally removing an anti-theft device with the intent to steal another computer, also on February 12, 2013. At trial, Rogers’ defense was one of misidentification regarding the first two counts. He argued he was not the suspect observed on surveillance videos from the first two incidents or the suspect who sold the stolen computers. As to count three, Rogers’ defense was that although he was the person on the surveillance video, he did not take anything.
¶3 The State's evidence against Rogers fell into four main categories: (1) testimony by Walmart employee Lucas Viner who personally observed and followed Rogers during the incident that formed the basis for count three; (2) surveillance videos from the store and testimony by Walmart loss prevention associate Lisa Clark describing the videos; (3) testimony by Darryn Shipton and Erick Johnston claiming Rogers sold them computers, one of which was later determined to be stolen from Walmart; and (4) testimony from Detective Patrick Primising related to clothing that was located at the residence of Rogers’ thengirlfriend, Vicki Brown, which the State argued were worn by the suspect in the surveillance videos.
¶4 The jury found Rogers guilty of the three counts, and he sought postconviction relief. Following an evidentiary hearing where both Rogers and his trial counsel testified, the circuit court denied the motion.
¶5 We will present additional background information pertinent to each of the issues Rogers pursues on appeal in the discussion that follows.
(1) Alleged Brady /discovery violations by the State
¶6 Rogers first asserts that the State violated its obligations under Brady and WIS. STAT. § 971.23(1) (2019-20) by failing to disclose Shipton's deferred agreement and what Rogers contends was an improper single-photo identification procedure.2 Under Brady , the State must turn over to a defendant evidence that is material to either guilt or punishment. State v. Harris , 2004 WI 64, ¶12, 272 Wis. 2d 80, 680 N.W.2d 737. Id. , ¶14 (citation omitted). Whether a discovery violation has occurred because the State failed to disclose required information under § 971.23(1) is a question of law we review without deference to the circuit court. See State v. Rice , 2008 WI App 10, ¶14, 307 Wis. 2d 335, 743 N.W.2d 517 (2007).
¶7 Shipton, as noted above, was one of the State's witnesses claiming that Rogers sold him a computer. The State informed the defense that it intended to present testimony from Shipton during its case-in-chief and advised that Shipton had one criminal conviction. However, just before Shipton testified, the State sought confirmation that it had correctly specified that Shipton had only one criminal conviction, explaining that it had learned that Shipton had a deferred prosecution agreement in addition to the one previously disclosed conviction. The court told the State that a deferred prosecution agreement was not a conviction, making the State's earlier assertion that Shipton had one criminal conviction accurate.3 Rogers did not disagree.
¶8 Shipton went on to testify that he previously had been convicted of one crime. He further testified that on February 12, 2013, Rogers arrived at Shipton's body shop in a blue car. Shipton said that Rogers offered to sell him a computer with a Walmart tag on it, which Shipton purchased for $275.
¶9 Rogers argues the State violated Brady by failing to disclose Shipton's deferred agreement, which gave Shipton a motive to lie to police about how he received the stolen computer; namely, to avoid revocation of the deferred agreement. Assuming without deciding that the State erred when it failed to disclose Shipton's deferred agreement before trial, Rogers has not shown that there is a reasonable probability that even if the jury had learned that Shipton had been convicted not once, but twice, the result of the trial would have been different. As a result, he has not shown that the deferred agreement was material evidence. See Harris , 272 Wis. 2d 80, ¶¶14-15
¶10 The closest Rogers comes to making this showing is by speculating that the deferred agreement motivated Shipton to lie about how he ended up with the stolen computer. However, there is nothing in the record to suggest that Shipton was involved in the underlying crimes so as to compel him to lie to shift suspicion and avoid being implicated. Rogers’ conclusory allegations are insufficient to support his claim of a Brady violation
¶11 Rogers additionally contends that WIS. STAT. § 971.23(1)(f), which requires disclosure of the criminal record of witnesses on the State's witness list, extends to deferred charges. As support, he relies on State v. White , 2004 WI App 78, ¶25, 271 Wis. 2d 742, 680 N.W.2d 362, where we held that "[a] witness's probationary status is relevant [and should be disclosed] because it and the fear of possible revocation are pertinent to the material issue of whether the witness has ‘ulterior motives’ to shape his or her testimony." Rogers acknowledges that Shipton was not on deferred status at the time of trial, but suggests that White applies because Shipton was on deferred status when the incident was investigated. We are not persuaded that we should adopt Rogers’ broad reading of White so as to apply it to the circumstances presented.
¶12 We turn to Rogers’ claim that the use of a single photo, which was not disclosed to the defense before trial, effectively constituted an improper showup. Rogers submits that the State's failure to disclose the improper identification procedure that was used amounted to the suppression of evidence that was favorable to him in violation of Brady and WIS. STAT. § 971.23(1).
¶13 During cross-examination, Shipton testified that he was shown a picture lineup. Outside the presence of the jury, trial counsel objected that the State had not provided information about a lineup. Detective Primising subsequently explained that he asked Shipton to identify Rogers by showing him a single Department of Corrections ("DOC") photo of Rogers. Trial counsel made no further objection. Consequently, we agree with the State that Rogers forfeited his argument that the State violated Brady and WIS. STAT. § 971.23(1) for not disclosing the single-photo identification procedure.4 See State v. Delgado , 2002 WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490 ().
¶14 Rogers next asserts that the prosecutor committed misconduct by knowingly asking the jury to draw a false inference, which warrants reversal based either on plain error or in the interest of justice. During rebuttal, the prosecutor argued that he did not know how long Rogers was in jail following his February 12, 2013 arrest and suggested that Rogers may have been released from custody before the suspect sold the computer to Johnston on February 13, 2013. Rogers argues that this was false and the prosecutor knew or should have known that this was false. He submits that he remained in jail for months on a probation hold while he awaited his revocation proceedings.
¶15 Rogers acknowledges that the lack of a contemporaneous objection precludes direct review, but asserts that the misconduct is subject to review as plain error. The plain error doctrine permits appellate courts to review "fundamental" errors that are otherwise forfeited by the failure to object in the circuit court. State v. Jorgensen , 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. Appellate courts will deem an error to be plain only "sparingly" and "[t]o qualify ... the error must be obvious and substantial[,] and so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time." State v. Bell , 2018 WI 28, ¶12, 380 Wis. 2d 616, 909 N.W.2d 750 (). Rogers additionally contends that prosecutorial misconduct can be grounds for reversal in the interest of justice when the real controversy was not fully tried, regardless of the lack of contemporaneous objection. See State v. Weiss , 2008 WI App 72, ¶17, 312 Wis. 2d 382, 752 N.W.2d 372.
¶16 Prosecutorial misconduct violates due process if it "poisons the entire atmosphere of the trial[.]" State v. Lettice , 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citation omitted). Reversal on this basis is drastic and should be approached with caution. Id. It is the defendant's burden to establish that it occurred. State v. Harrell , 85 Wis. 2d 331, 337, 270 N.W.2d 428 (Ct. App. 1978).
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