COURT OF APPEALS
DECISION
DATED AND FILED
February 20, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Roy Lee Rogers,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 CURLEY, P.J. Roy Lee Rogers appeals
from the February 7, 1994 judgment of conviction for first-degree intentional
homicide, party to a crime, contrary to Wis.
Stat. §§ 940.01(1) and 939.05 (1991-92),
and the November 14, 2006 order denying his postconviction motion. Rogers
argues that his motion to suppress his statement should have been granted
because the State failed to prove that he waived his rights to counsel and his
right to remain silent. Further, he
argues that his statement given to the police was involuntary because it was
“the product of undue police coercion.”
Because we are satisfied that the State met its burden in proving that Rogers waived his
constitutional rights, and under the totality of the circumstances his
statement was voluntary, we affirm.
I. Background.
¶2 According to the criminal complaint, later used as a factual
basis for Rogers’s guilty plea, on September 20,
1993, Rogers,
then sixteen years old, and two accomplices abducted Clance Venson, Jr., intending
to rob him of his money and car. All
three gave incriminating, but conflicting, statements. The complaint recounts that the three tied the
victim’s hands, taped his mouth, and forced him into the trunk of his car. After driving around for more than an hour,
they stopped the car and opened the trunk, and either Rogers or one of his
accomplices (the complaint included differing accounts) aimed a gun at Venson
and fired. They reentered the car and,
after driving around for a short time, they pulled into an alley where Rogers opened the trunk,
aimed the gun at Venson’s head and fired.
Rogers and his accomplices then drove to a house where Rogers sold the gun. They then continued driving a short time more
until they parked the car, used bleach in an attempt to rid the car of
evidence, and then set the car on fire.
Police recovered Venson’s partially burned body from the trunk. An autopsy established that he bled to death
as a result of a gunshot wound to the head.
¶3 Rogers
was waived from the juvenile court to the adult court system, where he was
charged with first-degree intentional homicide and armed robbery, both as party
to a crime. He filed a motion to
suppress his statement given to the police.
At the initial suppression motion, only one detective testified. The detective stated that he asked Rogers some background questions before reading Rogers his Miranda
rights.
He also stated that while he believed Rogers understood his rights, the detective never wrote in
his report that Rogers
waived his Miranda rights. The
trial court denied the suppression motion.
Thereafter, Rogers
pled guilty to first-degree intentional homicide, party to a crime, and the
armed robbery charge was dismissed. He
was sentenced to life imprisonment with parole eligibility in 2020.
¶4 After his appellate counsel withdrew, the public defender’s
office declined to appoint successor counsel for Rogers
because Rogers had
indicated he wished to proceed pro se. More than three years after his conviction, following
successive extensions from this court, Rogers
filed a pro se motion for
postconviction relief. In this motion, he claimed the police did not
have probable cause to arrest him; that his trial attorney provided ineffective
assistance for various reasons; and that the juvenile court did not consider
all the waiver information during his waiver hearing. Additionally, he claimed his statements to
the police should have been suppressed because they were taken in violation of
his due process rights; and he sought to withdraw his guilty plea because he
did not understand the rights he was giving up.
The trial court denied his motion without a hearing. Rogers filed a
notice of appeal and, after various extensions, Rogers filed a pro se brief with this court. A
decision from this court, State v. Rogers, No. 97‑3181-CR,
unpublished slip op. (Wis. Ct. App. June 8, 1999), affirmed his
conviction.
¶5 Sometime later, Rogers
filed a writ of habeas corpus in the federal court. On November 6, 2003, the federal court
granted Rogers’s motion for habeas corpus relief
because Rogers
had never been informed of the danger of proceeding without the assistance of
counsel. The judgment granting the writ
of habeas corpus stated that “Rogers shall be
released from custody unless within 120 days … the State of Wisconsin
affords Rogers a
new appeal with the assistance of appointed counsel.” The State moved to reinstate Rogers’s appellate rights,
a motion which we granted, and an attorney was appointed to represent him. Following this, a postconviction motion was
filed in the trial court. The trial
court denied the motion, concluding that the law of the case resolved the
matter. An appeal was taken from this
decision to which the State agreed with Rogers
that the trial court’s summary denial of Rogers’s
postconviction motion was improper, and in 2005 this court reversed the order
denying the motion and remanded the matter to the trial court.
¶6 The trial court then set a briefing schedule on the
postconviction motion and eventually held a Machner hearing. Because Rogers’s
trial attorney could not recall advising Rogers
that he could testify at the Miranda-Goodchild hearing,
the trial court ordered that the Miranda-Goodchild hearing be continued
and permitted Rogers
to testify. At the hearing, Rogers
testified, as did the retired arresting officer and the two Milwaukee Police
Department detectives, one of whom was retired at the time, who took Rogers’s
statement (one of the detectives testified at the motion hearing in 1994). After the testimony was completed, the trial
court denied the motion, finding that Rogers
was advised of his rights, understood them, and waived his rights. Further, the trial court found that Rogers freely and
voluntarily gave a statement to police.
Consequently, the trial court signed an order denying the postconviction
motion. This appeal follows.
II. Analysis.
¶7 Rogers
first argues that his motion to suppress his inculpatory statement should have
been granted because the State failed to establish that he waived either his
right to remain silent or his right to an attorney. He also asserts that his statement was
involuntary because of undue police coercion.
We disagree with both contentions.
¶8 At a suppression hearing, the State is required to show that
the defendant received and understood his Miranda warnings, State
v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999); State
v. Mitchell, 167 Wis. 2d 672, 697, 482 N.W.2d 364 (1992), and that
he knowingly and intelligently waived the rights protected by the Miranda
warnings, Armstrong, 223 Wis. 2d at 346; State v. Santiago,
206 Wis. 2d
3, 12, 556 N.W.2d 687 (1996). “The State
also bears the burden on the issue of whether the warnings were sufficient in
substance.” Armstrong, 223 Wis. 2d at 346 (citing Santiago,
206 Wis. 2d
at 12). Finally, the State has the
burden of showing that the defendant’s statements were voluntary. Id. at 347; Mitchell,
167 Wis. 2d at 696; State ex rel. Goodchild v. Burke,
27 Wis. 2d
244, 264‑65, 133 N.W.2d 753 (1965). The State’s burden throughout the proceedings
is a preponderance of the evidence. State
v. Agnello, 226 Wis. 2d
164, 181-82, 593 N.W.2d 427 (1999).
¶9 In reviewing a motion to suppress an inculpatory statement,
our standard of review is mixed. See State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827
(1987). We will uphold a trial court’s
findings of historical or evidentiary facts as long as they are not clearly
erroneous; however, we independently determine whether those facts resulted in
a constitutional violation. Id.
¶10 Rogers
testified that he asked for an attorney and the detective replied that they
would “get to that,” or words to that effect, and the detective continued
reading. With respect to Rogers’s contention that he did not waive his right to
remain silent or his right to an attorney, the two detectives’ testimony
contradicted Rogers’s
testimony. One of the two detectives who
took Rogers’s statement testified that he read Rogers his rights from a card containing the Miranda
rights, as he did routinely, and that he stopped after every right and made
sure that Rogers
understood it. The detective also
testified that he believed that Rogers
understood all his rights and was willing to waive them. The detective denied that Rogers ever asked for an attorney. The detective also recalled that Rogers did not ask to call
his parents before giving a statement.
¶11 The trial court concluded that Rogers
intelligently waived his constitutional rights and implicitly found that the
detectives’ version of the events was more credible than Rogers’s version. Our review of the record supports the trial
court’s findings and conclusion. A detective
testified that Rogers
understood his rights and that he waived his rights. Indeed, Rogers
initialed all the pages that contained both the fact that he had been advised
of his rights and the pages containing his entire statement. We are satisfied that the State met its
burden of proof and that Rogers
waived his right to remain silent and his right to an attorney.
¶12 Rogers
also asserts that his statement was involuntary due to undue police coercion. We disagree.
¶13 In determining whether a statement was voluntary, this court
must consider the totality of the circumstances, which includes balancing the
personal characteristics of the defendant against the pressures applied by the
police. State v. Hoppe, 2003 WI
43, ¶38, 261 Wis.
2d 294, 661 N.W.2d 407. The court should
consider things such as “the defendant’s age, education and intelligence,
physical and emotional condition, and prior experience with law enforcement.” Id.,
¶39. These are balanced against police
tactics such as:
the length of the questioning, any delay in
arraignment, the general conditions under which the statements took place, any
excessive physical or psychological pressure brought to bear on the defendant,
any inducements, threats, methods or strategies used by the police to compel a
response, and whether the defendant was informed of the right to counsel and
right against self-incrimination.
Id. This balancing recognizes “that the amount of
police pressure that is constitutional is not the same for each defendant.” Id.,
¶40.
¶14 “‘[S]pecial caution’” is needed when assessing the
voluntariness of a juvenile’s statements, particularly when the statement is
obtained “‘in the absence of a parent, lawyer, or other friendly adult.’” State v. Jerrell C.J., 2005 WI 105,
¶21, 283 Wis.
2d 145, 699 N.W.2d 110 (citations omitted).
However, there is no Wisconsin rule
mandating parental notification before a juvenile’s statement is
admissible. Theriault v. State, 66 Wis. 2d 33, 46, 50, 223
N.W.2d 850 (1974). Nor is there a per se rule excluding in-custody statements
from juveniles who were not first given the opportunity to consult with a
parent. Jerrell C.J., 283 Wis. 2d 145, ¶¶37,
43.
¶15 A defendant’s statement is voluntary if it “was the product of
a ‘free and unconstrained will, reflecting deliberateness of choice,’” as
opposed to the result of a “‘conspicuously unequal confrontation in which the
pressures brought to bear on [the defendant] by representatives of the [S]tate
exceed[ed] the defendant’s ability to resist.’” State v. Clappes, 136 Wis. 2d 222, 236,
401 N.W.2d 759 (1987) (citations omitted).
Here, the trial court found that the statement “certainly wasn’t coerced
or [the] product of any type of coercion by the police.” Again, we agree.
¶16 While Rogers was only sixteen years old at the time of the
interrogation, he owned a weapon and was apparently very independent, as he had
traveled to California
without his parents. He was of average
intelligence, was in good physical health, was attending high school, and had
had prior contact with the police. At
the time the detectives advised Rogers
of his constitutional rights, he was not handcuffed and had been given
cigarettes and something to drink. The
interrogation was relatively short, being only two and one‑half hours in
length, and he had been in custody for only approximately four hours before the
interrogation began. As noted, Rogers
initialed all the pages containing his statement and initialed the paragraph
that read: “At 5:47 pm Roy Rogers
was read his Miranda Rights from the card issued from [sic] the State of
Wisconsin Department of Justice by Det. John H. Wesley, in the presence of Det.
Michael Wesolowski, at which time, he stated he understood.” Perhaps the most important piece of evidence
that points to a lack of police coercion in this case is the fact that in his
statement Rogers
minimizes his involvement and points the finger at his two accomplices. Had his statement been coerced as he claims,
one would have expected the statement to place the blame entirely on Rogers. Thus, we are satisfied that Rogers’s statement was “the product of a ‘free
and unconstrained will, reflecting deliberateness of choice.’” Clappes, 136 Wis. 2d at 236 (citation omitted).
¶17 For the reasons stated, the judgment of conviction and the
order denying the postconviction motion are affirmed.
By the Court.—Judgment and order affirmed.
Not
recommended for publication in the official reports.