State v. Rogers

• Decision Date: 13 September 1995
• Docket Number: No. 94-1912-CR,94-1912-CR
• Citation: 539 N.W.2d 897,196 Wis.2d 817
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Donny ROGERS, Defendant-Respondent.

Page 897

539 N.W.2d 897

196 Wis.2d 817

STATE of Wisconsin, Plaintiff-Appellant, v. Donny ROGERS, Defendant-Respondent.

No. 94-1912-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 28, 1995.

Opinion Released Sept. 13, 1995.

Opinion Filed Sept. 13, 1995.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Brian K. Holmgren, Assistant District Attorney.

On behalf of the defendant-respondent, the cause was submitted on the brief of Paul G. Bonneson of Wauwatosa.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

BROWN, Judge.

At Donny Rogers's upcoming trial for murder, the State of Wisconsin wants to introduce an inculpatory statement made by his codefendant, Thomas Myers. However, Rogers raised a hearsay objection before the trial court. In response, the State principally argued that Rogers adopted Myers's statement. The trial court reviewed the circumstances surrounding the alleged adoption and sustained Rogers's objection. The State then sought this interlocutory appeal. We affirm.

The body of Daette Berndt was found on May 24, 1987, floating in a retention pond in southern Kenosha County. A subsequent autopsy revealed that she had died as a result of drowning and had received three blows to her head with a blunt object shortly before death. She was sixteen years old.

On May 30, 1987, Kenosha sheriff's department detectives interviewed Myers and Rogers. At the time, Myers indicated that he had met Berndt on Friday, May 22 at a party in Fox Lake, Illinois, and then later brought her to another party at Rogers's apartment in Zion, Illinois. While at this party, Berndt was accused of stealing marijuana from another guest and was asked to leave. Myers told the detectives he was too drunk to drive her home and that once she left the party he did not see her again. When interviewed, Rogers only indicated that he saw the victim at the party at his apartment. Myers was interviewed again on June 5 and 12, 1987. The interviews revealed nothing different. These investigative efforts did not lead to any arrests.

The case remained open, but effectively dormant until the summer of 1993, when the Lake County Major Crimes Task Force and the Kenosha sheriff's department together renewed the investigation. On June 1, 1993, Rogers and Myers were both reinterviewed. At first, each tried to implicate a third party, Brad Nix, as Berndt's killer. Myers and Rogers each attributed statements to Nix suggesting that Nix had admitted leaving the party with Berndt and that he later killed her. Both claimed that Rogers's older brother, David Rogers, was present when Nix made these statements. However, when Rogers and Myers were brought into the interview room with David and repeated their stories in front of him, David could not recall Nix making such statements.

Myers was interviewed again on June 2, 1993, and this time gave a statement to the detectives from the Lake County Major Crimes Task Force. In that statement, Myers explained that he, David Rogers, Nix, Berndt and a Nick Fisch had all driven in Nix's Blazer to Kenosha for breakfast. Myers claimed he saw Nix pull Berndt out of the Blazer and hit her in the back after she refused his sexual advances. Myers indicated that Nix left the victim on the side of the road, saying she could "find her own way home."

On the morning of June 3, 1993, Myers and Rogers were both brought to the Lake County sheriff's station house for further questioning. Myers was confronted with his various conflicting versions, the fact that Nix did not own a Blazer as claimed and his admission that he was present at the crime scene. At this point, Myers again provided a different version of what occurred. This time he implicated himself and Rogers in the death of the victim. He stated that only he and Rogers went with Berndt in his car to Kenosha for breakfast. Then on the way back to Zion, they parked on a quiet country road next to a big pond and they each tried to have sex with Berndt. After she rejected their advances, Myers claimed that Rogers hit the victim three times in the head with a tire iron, knocking her out, and then rolled her down the hill into the water to wake her up.

After Myers provided this statement, a detective confronted Rogers with the facts of Myers's confession and later testified that Rogers remained silent in the face of these accusations. The detective also played a portion of Myers's tape recorded statement before Rogers and testified that Rogers refused to admit his involvement in the death, stating that Myers already had lied about the case.

The police subsequently brought Myers into the interview room where Rogers was located and asked him to restate his story about Berndt's death. The detective testified that Rogers for the most part remained silent during Myers's testimonial. However, at several points, Rogers denied Myers's allegations and accused Myers of lying.

Myers's statement was then used as support for a joint criminal complaint against Myers and Rogers. Both were arrested and extradited to Kenosha County. They had their initial appearance on September 2, 1993. Subsequently, in a separate trial, Myers was convicted as a party to the crimes of second-degree murder and intermediate aggravated battery with a weapon. Myers was acquitted of kidnapping and attempted first-degree sexual assault. This appeal only addresses the State's case against Rogers.

In addition to the above information gathered from these police interviews, the State also wants to present at Rogers's trial, testimony from Steven Martin, his fellow inmate at the Kenosha County jail. In an April 26, 1994, written statement, Martin indicated that back in September 1993, Rogers made various statements to him concerning his involvement in Berndt's death. Martin also indicated Rogers had pointed out Myers in the jail and that Rogers told Martin that he wanted to kill Myers because Myers had "snitched him out."

In a preliminary hearing on evidentiary issues, the trial court sustained Rogers's hearsay objection to the introduction of Myers's June 3 statement. ¹ In this interlocutory appeal, the State challenges this ruling. It presents three arguments. ² First, it argues that these codefendants' early efforts to shift the blame to Nix required each to adopt the other's version of the events, thereby establishing a "pattern of adopted admissions." The State argues that it should therefore be allowed to present all of Myers's statements to the police because Rogers previously agreed to stick to this version of their story. Next, the State claims that Rogers adopted Myers's June 3 statement during his police interrogation since when personally faced with the accusations that he was involved in Berndt's murder, Rogers did not truthfully and sincerely deny them. See, e.g., McCormick v. State, 181 Wis. 261, 270-72, 194 N.W. 347, 350-51 (1923) (describing admissions by silence). Third, the State alleges that Rogers's statements to a fellow inmate, in which he stated that Myers "snitched him out," separately demonstrate his adoption of the June 3 statement. Finally, even if each factual scenario does not support admission, the State submits that all of the facts must be viewed together, and thus are enough to overcome the hearsay objection.

Before turning to the merits of the State's arguments, however, we must address Rogers's suggestion that the State has waived its right to raise two of its three specific challenges because they were not all addressed at the trial level. In State v. Holt, 128 Wis.2d 110, 125, 382 N.W.2d 679, 687 (Ct.App.1985), we held that a party seeking reversal may not advance arguments on appeal which were not presented to the trial court. Although we recognized that the rule would seemingly disadvantage criminal defendants, since they are most likely to challenge the trial court, we nonetheless cautioned that "[w]e will without hesitation apply the waiver rule against the state where the issue was not first raised by it at the trial court." Id. This is such a case.

Our conclusion rests on the analysis of the various arguments which the State put to the trial court. The State first raised its adoptive admission theory during a hearing on May 20, 1994. There, the trial court ruled that Rogers, through statements he made to Martin, did not adopt Myers's June 3 statement. The State later filed a motion for reconsideration of rulings on this and other related evidentiary issues. Subsequently, during the June 24 hearing, the State offered the following summary of its position on the admissibility of Myers's statement So, that is essentially the theory of the case. One, [Myers's statements are] not hearsay because they're not offered for the truth of the matter asserted, but they show, in fact, Tom Myers repeatedly lied; second, they are statements in furtherance of a conspiracy, i.e., to cover up their own involvement in the death; and, third, they are statements which are adopted by Donny Rogers to the extent that there are other portions of the statements that deal directly with matters that are being offered for the truth of the matter asserted, and specifically those involved the events that took place at the party.

The State now contends that it raised the general issue of adoptive admissions as its third reason for admitting Myers's statement, and this should suffice for purposes of defeating the Holt waiver rule. Prior to this colloquy, however, the only theory advanced by the State in its trial briefs and during oral arguments was that Rogers adopted Myers's statement during his conversations with Martin. We observe that although the State now attempts to assert a conspiracy to adopt each other's admissions, this theory is completely unrelated to its earlier argument that a conspiracy to commit the crime acted as an exception to the hearsay rule. We cannot allow the State to advance its two new theories in this...