PUBLISHED
OPINION
Case No.: 95-2570-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DESHAWN RODGERS,
Defendant-Appellant.†
Submitted on Briefs: May
13, 1996
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June
18, 1996
Opinion Filed: June 18, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: PATRICIA D. McMAHON
so indicate)
JUDGES: WEDEMEYER,
P.J., SULLIVAN and SCHUDSON, JJ.
Concurred: ----
Dissented: ----
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Mark Lukoff,
assistant state public defender of Milwaukee.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the briefs of James E. Doyle,
attorney general and Diane M. Nicks, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED June 18, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2570-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DESHAWN RODGERS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
WEDEMEYER, P.J. Deshawn Rodgers appeals from a judgment
entered after a jury found him guilty of two counts of armed robbery, party to
a crime, contrary to §§ 943.32(1)(b) & (2) and 939.05, Stats.
He also appeals from a postconviction order denying his motion to modify
his sentence. Rodgers claims:
(1) the trial court erred in denying his motion to suppress his
confession; (2) the trial court erred in excluding his expert witness; and
(3) the trial court erroneously exercised its sentencing discretion. Because the trial court did not err in
denying the suppression motion; because the trial court did not erroneously
exercise its discretion in excluding Rodgers's expert witness; and because the
trial court properly exercised its sentencing discretion, we affirm.
I. BACKGROUND
On July 9, 1994, Rodgers
was arrested at his home by police detective, William Blumenberg. As Rodgers was being led from his house, he
turned to his mother and said, “You should call a lawyer for me.” When Rodgers arrived at the police station,
Blumenberg advised him of his Miranda rights.[1] Blumenberg testified at the suppression
hearing regarding what happened next:
I
then told him that I was aware, because I had heard him yell to his mother,
“Mom, you should call a lawyer for me,” and I said, “Is that your wish now, to
have a lawyer present; or do you want to talk to a lawyer?”
And he said, “No; I want to get this over with
and tell you what I know.”
Rodgers
proceeded to give a statement admitting his involvement in the two armed
robberies. Rodgers signed the
statement. Subsequently, Rodgers filed
a motion in limine to suppress the statement. After conducting a suppression hearing, the trial court denied
the motion, ruling:
There
apparently was a request [for an attorney]; the defendant made a request to his
mother as he was being taken into custody that she should call a lawyer, but
the testimony here is uncontradicted that the detective questioned the
defendant about that request because he was aware of that request, and asked
whether that was his request now. The
defendant said, no; he wanted to talk about it.
And I am satisfied that therefore the
requirements of the Miranda rule have been complied with, and the
statement will be permitted. The motion
then to suppress is denied.
The trial court also
granted the State's request to exclude the testimony of Rodgers's expert
witness, Jerry Grayson. Grayson was a
videotape enhancement expert. Both
armed robberies were videotaped by the stores' security cameras. Rodgers was identified on the videotape as
the individual with the number “53” on his shirt. In an offer of proof, Grayson indicated that he could testify
regarding the height of the individuals on the videotape, relative to a fixed
object, such as a doorway. The trial
court ruled that the jurors did not need expert testimony on this issue because
such a determination was within their common knowledge, there was insufficient
foundation for the testimony, and it would lead to jury speculation and
confusion.
The case proceeded to
trial and the jury returned a guilty verdict.
Rodgers was sentenced to ten years in prison on the first count and
twenty years in prison on the second, to run consecutively. Rodgers filed a motion to modify the
sentence, alleging that the trial court improperly linked his lack of remorse to
its consideration of the need to protect the public. The trial court denied the motion. Rodgers now appeals.
II. DISCUSSION
A. Request
for Counsel.
Rodgers contends that
the trial court erred when it denied his motion to suppress his
statements. He claims the statements
should have been suppressed because he made a clear and unambiguous request for
counsel, and instead of honoring that request, the police talked him into
waiving his asserted right to counsel.
We reject Rodgers's contention.
In reviewing a trial
court's decision on a suppression motion, we are bound by the court's findings
of historical fact unless they are clearly erroneous. State v. Kramar, 149 Wis.2d 767, 784, 440 N.W.2d
317, 324 (1989). Whether a defendant's Miranda
rights were violated, however, is a constitutional fact that we review
independent of the trial court's determination. Kramar, 149 Wis.2d at 784, 440 N.W.2d at 324.
It is undisputed that
Rodgers said to his mother as he was being led from the house, “You should call
a lawyer for me.” The question is whether
this statement constitutes a clear invocation of his right to counsel. If a suspect clearly asserts his right to
counsel during a custodial interrogation, law enforcement officers are required
to immediately cease all questioning. Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981). However, if the request for counsel is ambiguous or equivocal so
that a “reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel,” the police officer
is not required to cease questioning. Davis v.
United States, 512 U.S. ,
114 S. Ct. 2350, 2355 (1994).
We conclude from our
review of the events at issue in the instant case that Rodgers's statement was
not a clear invocation of his right to have counsel present for
questioning. We base this conclusion on
several factors. First, Rodgers made
the request to his mother and did not make any request for an attorney directly
to any police officer. The Wisconsin
Supreme Court recently held that “[s]imply retaining counsel is not an
unequivocal statement that the suspect wishes to deal with the police only in
the presence of counsel.” State
v. Coerper, 199 Wis.2d 216, 225, 544 N.W.2d 423, 427 (1996). It logically follows that Rodgers's
statement to his mother as he was being led out of his house to “call a lawyer”
does not satisfy the unequivocal personal invocation standard outlined in the
case law.
Second, even though this
statement was made to Rodgers's mother, the police did not simply ignore
it. Blumenberg gave Rodgers an
opportunity to assert his right to have counsel present for questioning once he
was brought to the police station. He
specifically asked whether Rodgers wanted a lawyer present or whether he wanted
to talk to a lawyer. Rodgers said no,
that he wanted to give a statement.
Further, Rodgers made no reference to or request for an attorney during
the interrogation, which was several hours long.
Accordingly, Rodgers's
statement to his mother did not constitute a clear invocation of the right to
have counsel present for police questioning.
Therefore, the trial court did not err in denying his motion to suppress
and the statement was properly admitted.
B. Exclusion
of Expert Witness.
Rodgers also claims that
the trial court erred in excluding the testimony of his expert witness. We disagree.
The decision whether to
admit or exclude proffered expert testimony is a matter of trial court
discretion. State v. Friedrich,
135 Wis.2d 1, 15, 398 N.W.2d 763, 769 (1987).
Our review of the trial court's decision is limited to determining
whether the trial court erroneously exercised its discretion. State v. Pittman, 174 Wis.2d
255, 268, 496 N.W.2d 74, 79-80, cert. denied, 510 U.S. 845 (1993). We will not find an erroneous exercise of
discretion if the trial court examined the relevant facts, applied a proper
legal standard, and used a rational process to reach a reasonable decision. Id.
In an offer of proof,
Rodgers's expert witness testified that he had examined the videotape and would
testify regarding relative heights of the individuals on the tape. Rodgers's counsel indicated that the sole
purpose in offering this testimony was to assist the jury in determining
whether the individual on the videotape wearing the “53” shirt was
Rodgers. In deciding to exclude the
testimony of this witness, the trial court noted that the expert witness was
unable to enhance the videotape to make the images clearer. The trial court's decision to exclude the
testimony explained the limited purpose of the expert's testimony:
[T]he expert has been working and proposes to
offer the opinion concerning measurements and so forth and offer an opinion
concerning rules to be applied for the jury so that they can, in viewing the
tape, determine if Number 53, the person wearing Number 53, is or is not the
defendant in this case.
The
trial court reasoned:
As we have discussed on the record, it's clear
that you don't need an expert to tell the jury what they are seeing. It's not necessary for the jury to be told,
“This is a tape.”
The
trial court also expressed concerns regarding the foundation for this expert's
testimony:
He
did state he had no prior experience to this case in scaling sizes in videotape
and no training with respect to such scaling on videotape....
There
is some concern about the level of that expertise. I am concerned with respect to the fact that there is no evidence
that this witness has ... seen the camera as it was at the time of the taking
of the tape.
... There is no evidence that the angle of the
camera, the type of the camera was the same....
The
trial court was also concerned that this expert's testimony would “lead to some
side issues; jury speculation, jury confusion rather than making clearer the
issues to the trier of fact.” In
addition, the trial court noted that the videotape was not being used as the
sole identification of the defendant.
There were eyewitness identifications of Rodgers.
The trial court
concluded that there was an insufficient foundation to allow the testimony,
that the witness did not qualify as an expert on the precise issue in this
case, that the testimony would not assist or aid the jury, and that the
testimony would lead to jury speculation and confusion.
Based on this review, we
cannot say that the trial court's decision to exclude the testimony was an
erroneous exercise of discretion. The
trial court examined the relevant facts, applied the proper law and reached a reasonable
determination. See State
v. Mordica, 168 Wis.2d 593, 602, 484 N.W.2d 352, 356 (Ct. App. 1992).
C. Sentencing.
Finally, Rodgers claims
the trial court erroneously exercised its sentencing discretion. Specifically, Rodgers contends the trial
court erred by linking his lack of remorse with the need to protect the
public. Again, we reject Rodgers's
contention.
Sentencing decisions are
left to the discretion of the trial court.
See State v. Thompson, 172 Wis.2d 257, 263, 493
N.W.2d 729, 732 (Ct. App. 1992). We
will not disturb these decisions absent an erroneous exercise of
discretion. Id. In order to properly exercise its sentencing
discretion, the trial court must consider the three primary factors: the gravity
of the offense, the character of the offender, and the need to protect the
public. State v. Echols,
175 Wis.2d 653, 682, 499 N.W.2d 631, 640, cert. denied, 510 U.S. 889
(1993). As part of these primary
factors the trial court may also consider: the vicious and aggravated nature of
the crime; the past record of criminal offenses; any history of undesirable
behavior patterns; the defendant's personality, character and social traits;
the results of a presentence investigation; the degree of the defendant's
culpability; the defendant's demeanor at trial; the defendant's age,
educational background and employment record; the defendant's remorse,
repentance, and cooperativeness; the defendant's need for rehabilitative
control; the right of the public; and the length of pretrial detention. Id. at 682, 499 N.W.2d at
640-41.
Our review of the
sentencing transcript confirms that the trial court examined each of the
primary factors. The trial court
addressed the gravity of the offense, noting the tragic consequences for the
victims. It addressed Rodgers's
character, observing that he had been incarcerated previously and had a pattern
for blaming others for his criminal behavior.
Finally, the trial court addressed the need to protect the public from
Rodgers's immature, impulsive, volatile and easily persuasive nature. The trial court statement on which Rodgers
bases his entire argument was: “With
respect to the needs of the community, there is a need for protection from this
conduct, and the aspect of protection and remorse go together in the sense of
not even appreciating the seriousness of this offense, some recognition of the
impact on these victims.” In its order
denying Rodgers's motion to modify his sentence, the trial court further
explained the challenged comment: “[I]n
the context of the entire sentencing proceedings, the intent of this statement
is to point out that the defendant had no appreciation for the ordeal suffered
by the victims. It was not intended as
a reflection on his right to maintain his innocence.” A trial court is permitted to consider a defendant's remorse as
an additional sentencing factor. Echols,
175 Wis.2d at 681-82, 499 N.W.2d at 640-41.
Given the trial court's
explanation with respect to the reference, the fact that the trial court
addressed the three primary factors, and the fact that a trial court can
properly consider the additional factor of remorse, we cannot say that the
trial court erroneously exercised its sentencing discretion.
By the Court.—Judgment
and order affirmed.