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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 17, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1162-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD C. DEVEREUX,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Oconto County:
LARRY L. JESKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Richard Devereux appeals a judgment of
conviction for second-degree sexual assault of a child, contrary to §
948.02(2), Stats.[1] Devereux contends that the court erred when
it admitted prior acts evidence, admitted his inculpatory statement, failed to
send an exhibit to the jury, and permitted testimony about his request for an
attorney. We reject his arguments and
affirm the judgment.
The facts are not
disputed. In 1992, when she was
thirteen, Cindy first met Devereux, his wife, and their two children. She was introduced to them by a friend who
was a babysitter for the Devereux children.
Between 1992 and 1994 Cindy went to the Devereux house approximately
twenty-five times to visit the family, and she babysat for their children on
several occasions.
At a Memorial Day party
in 1994, Cindy asked Devereux for a ride in his Jeep, and he agreed. He drove to a secluded area near his
residence and asked Cindy if she would "give him a little." She ignored the request. Devereux asked again, and Cindy refused. Devereux responded by driving his Jeep
through the mud in an apparent attempt to splash Cindy. She climbed out of the Jeep. Devereux then offered to take her back to
the party, and she accepted the ride.
In July 1994, Cindy went
to the Devereux house to ask for spaghetti noodles. Devereux asked what he would get in return, and then grabbed her
arm and tried to pull her toward the bedroom.
She left, and Devereux later apologized.
Devereux sexually
assaulted Cindy on August 4, 1994. She
was babysitting at a house near Devereux's residence when she saw Devereux
drive by in his Jeep and Cindy went to his house to ask him for a ride. Once inside, Devereux asked her in the
kitchen if she would "give him a little." She ignored the request.
He then unzipped his pants and said, "He's ready for
you." When Cindy walked away,
Devereux locked the front door and closed the patio door. He forced Cindy to the floor in the living
room, and sexually assaulted her.
Oconto County Officer
Judy Kadlec interviewed Cindy and then arrested Devereux at his home on August
4, 1994, for the sexual assault. At the
time of his arrest, Devereux told Kadlec that he knew what the arrest was all
about. Before interviewing him at the
station, Kadlec read Devereux his Miranda[2]
rights. He agreed to talk about the
case but refused to sign the waiver form.
Kadlec discussed with
Devereux the availability of DNA testing in sexual assault cases, and told him
that Cindy was being tested at the hospital at that time.[3] He said, "Oh, no, then you already
know, what can I do?" Devereux
asked for an attorney by name, and Kadlec stopped the interview. She later transcribed her interview notes
into a police report, and destroyed the notes.
Devereux did not make a written statement to the police.
The State filed a
pretrial motion in limine to introduce evidence of Devereux's behavior toward
Cindy on the two occasions prior to the sexual assault. The trial court granted the motion, noting
that the evidence went to proof of motive, intent, preparation, plan and
absence of mistake. The court described
the evidence as highly relevant and determined that any prejudicial effect was
substantially outweighed by the probative value of the evidence. Devereux opposed the motion and now
challenges the admission of the other acts evidence.
The admission of
evidence is a matter within the discretion of the trial court. State v. Friedrich, 135 Wis.2d
1, 16, 398 N.W.2d 763, 770 (1987). This
court will not disturb an evidentiary ruling of the trial court as long as the
trial court exercised its discretion in accordance with accepted legal
standards and the facts of record. See
id. In the absence of an
adequate explanation by the trial court of the reasons for its ruling, we will
independently review the record to determine whether it provides a reasonable
basis for the court's evidentiary ruling.
See State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d
498, 502 (1983).
Whenever the trial court
rules on the admissibility of evidence, a preliminary question is whether the
evidence is relevant. State v.
Roberson, 157 Wis.2d 447, 453, 459 N.W.2d 611, 612 (Ct. App.
1990). When deciding whether to admit
other acts evidence, the trial court applies a two-part test. State v. Kuntz, 160 Wis.2d
722, 746, 467 N.W.2d 531, 540 (1991).
First, the court considers whether the evidence is admissible under §
904.04(2), Stats. Id. According to the statute:
Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
If
the evidence is admissible under one or more of the statutory exceptions, the
trial court must then decide whether the probative value of the evidence is
substantially outweighed by its prejudicial effect. Id. at 746, 467 N.W.2d at 540.
Evidence of prior acts
may not be used to show a defendant's criminal disposition or propensity to
commit similar crimes. State v.
Speer, 176 Wis.2d 1101, 1115, 501 N.W.2d 429, 433 (1993). However, our supreme court applies a
"greater latitude of proof as to other like occurrences" to the
prosecution of sex crimes, particularly to those which victimize children. Friedrich, 135 Wis.2d at
19-20, 398 N.W.2d at 771 (quoting Hendrickson v. State, 61 Wis.2d
275, 279, 212 N.W.2d 481, 482 (1973)).
The trial court admitted
the other acts evidence and instructed the jury at the close of evidence to
consider it with regard to Devereux's motive, intent, and preparation or plan,
but not as proof of his character.
Devereux is correct to point out on appeal that because intent is not an
element of the offense of sexual intercourse with a child, the evidence of his
other acts is not admissible to show proof of motive or intent. See State v. Rushing,
197 Wis.2d 631, 646, 541 N.W.2d 155, 161 (Ct. App. 1995).
However, even though the
evidence was not admissible on the question of intent, the trial court had
sufficient grounds to admit the other acts as evidence of Devereux's
preparation or plan to sexually assault Cindy.
Evidence admissible to demonstrate preparation or plan shows that the
act of sexual intercourse was "part of a definite, preconceived plan,
design or scheme by the defendant" and also establishes "that the
defendant created the opportunity and circumstances whereby the plan could be
carried out." See Day v.
State, 92 Wis.2d 392, 405, 284 N.W.2d 666, 673 (1979).
Devereux's other acts
show his preparation for the sexual assault.
During Cindy's visits to the Devereux home in the year and a half
preceding the sexual assault, Devereux complimented her on her physical
appearance. His suggestive remarks and
sexual advances escalated in the two months preceding the sexual assault. In the Jeep in May 1994, he asked Cindy
twice to "give him a little."
When she went to his house to ask for spaghetti noodles in July 1994,
Devereux asked what she would give him in return, and pulled her by the arm
toward the bedroom. These acts
demonstrate the progression of events in his plan to have sexual intercourse
with Cindy.
The trial court decided
that the probative value of the evidence outweighed its prejudicial
effect. When we review the court's
determination of probative value, we consider the nearness in time, place, and
circumstance of the other acts to the alleged crime. See Friedrich, 135 Wis.2d at 23, 398 N.W.2d
at 773. The three events occurred
within approximately two months. All
three of the incidents occurred when Devereux and the victim were alone, once
in his Jeep near his residence and twice in his house. Devereux made similar sexually suggestive
remarks to the victim on all three occasions, and he responded aggressively
each time she rejected his advances: he
drove his Jeep through the mud to splash her, he pulled her by the arm toward
the bedroom, and he pushed her to the floor and sexually assaulted her. We agree with the court's assessment of the
probative value of the evidence.
Next, Devereux contends
that the trial court erred when it denied his motion to suppress the
inculpatory statement he made to Kadlec.
When she told him of the use of DNA testing in sexual assault cases, he
said, "Oh, no, then you already know, what can I do?" The statement was used against him at
trial. Devereux argues that the court
should have suppressed the statement because it was not voluntary. We disagree and affirm the trial court's
ruling.
The state has the burden
of proof to demonstrate that the defendant's statement was voluntarily and
intelligently made. See Oregon v.
Bradshaw, 462 U.S. 1039, 1044 (1983).
A voluntary statement is one which, under the totality of the
circumstances surrounding the statement, was the "product of [the
defendant's] free and rational choice."
Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968). When we consider the voluntariness of a
statement, we apply constitutional principles to the historical and evidentiary
facts found by the trial court. State
v. Moats, 156 Wis.2d 74, 94, 457 N.W.2d 299, 308 (1990). Therefore, we independently review the
record to determine whether Devereux's statement was voluntary. See id.
In each case where
voluntariness is at issue, the totality of the circumstances test requires us
to consider the defendant's age, intelligence, education, physical and
emotional condition, and experience with the police. State v. Turner, 136 Wis.2d 333, 363, 401 N.W.2d
827, 841 (1987). These characteristics
must be balanced against the methods used by the police during questioning,
including "the length and condition of the interrogation, the
psychological and physical pressures used by the questioner, and whether
defendant was apprised of his Miranda rights to counsel and to
remain silent." Id.
Kadlec testified that
after speaking with Cindy, she arrested Devereux at his home. She advised him that he was under arrest for
the sexual assault, handcuffed him, and transported him to the sheriff's
department. During transport, Devereux
asked Kadlec more than once if he could talk about the incident. She told him that he would have a chance to
talk about it after he was booked.
After booking, Kadlec
met with Devereux at a visitation booth in the jail. She read him his Miranda rights, each of which he
said he understood. She asked him to
sign the waiver of rights form, and he said, "What's the difference, you
already know what I did." Kadlec
asked Devereux if they could discuss the incident, and he agreed. Kadlec told him that DNA testing is used in
sexual assault cases, and that Cindy was being tested or had been tested at the
hospital. At that point, Devereux said,
"Oh, no, then you already know, what can I do." He requested an attorney, and Kadlec stopped
the interview.
Kadlec described
Devereux as cooperative, coherent, of average intelligence, and not under the
influence of drugs or alcohol during the interview, which lasted approximately
twenty-five minutes. It was not
videotaped or tape recorded. Kadlec
took notes during the interview, which she later transcribed into a police
report. The questioning ceased when
Devereux requested an attorney.
After a "totality
of the circumstances" review of the facts of this case, we are satisfied
that Devereux's statements were voluntary.
Kadlec described him as a man of average intelligence. Kadlec also testified that Devereux tried
more than once to talk with her about the crime on the way to the jail, and she
told him to wait until after he was booked.
She read him the Miranda warnings, and he said he
understood. The interview lasted for
twenty-five minutes. Only Devereux and
Kadlec were present, and the questioning session was not recorded. These facts demonstrate that Devereux
voluntarily made the statements, and we affirm the ruling of the trial court.[4]
Next, Devereux argues
that the trial court erred when it did not send the state crime lab report to
the jury room, and when it permitted Kadlec to testify about Devereux's request
for an attorney. However, Devereux did
not object when the court excluded the report from the group of items to be
sent to the jury room, and although the parties agreed to make the other
exhibits available to the jury upon specific request, the jury did not request
the report. Similarly, Devereux did not
object to Kadlec's testimony, move to strike the testimony, move for a
mistrial, or request a curative instruction when Kadlec testified about his
invocation of the right to counsel.
Devereux's failure to
object in both instances at trial precludes his right to raise these issues on
appeal. See State v.
Boshcka, 178 Wis.2d 628, 642, 496 N.W.2d 627, 632 (Ct. App. 1992). As stated by the court,
"[U]nobjected-to errors are generally considered waived, and the rule
applies to both evidentiary and constitutional errors." Id. We therefore reject both of these
arguments without reaching the merits.
Because the court
properly admitted the other acts evidence and the inculpatory statement, we
affirm the judgment of the trial court.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] In order to convict under § 948.02(2), Stats., the state must prove beyond a reasonable doubt that the defendant had sexual intercourse with the victim, and that the victim had not attained the age of 16 years at the time of the sexual intercourse. The defendant's intent is not an element of the crime.
[3]
Devereux contends that Kadlec's comment about the DNA tests constituted
trickery and deception by the police, and therefore rendered his statement
involuntary. However, his failure to
raise this issue at trial precludes him from raising it on appeal. See State v. Davis, 199
Wis.2d 513, 517-19, 545 N.W.2d 244, 245-46 (Ct. App. 1996).
Even if we were to
consider the merits, Devereux's argument would fail. As stated by our supreme court, "[The] confrontation of a
defendant with possible incriminating evidence is not sufficient to undermine
the voluntariness of a waiver of the privilege against
self-incrimination." Schilling
v. State, 86 Wis.2d 69, 87, 271 N.W.2d 631, 640 (1978).
Kadlec testified that although she told Devereux that Cindy was being tested at the hospital, she did not tell him that the tests being conducted were DNA tests. Further, the state crime lab test report came back negative for the presence of semen on any of the items of evidence sent by police and, therefore, the crime lab did not test any blood, hair, or saliva samples taken from the victim.
[4]
In the alternative to his voluntariness arguments, Devereux presents two
new arguments on appeal. He argues that
his inculpatory statement was inadmissible because it was not an
"admission by party opponent" within the contemplation of § 908.01, Stats., and that he was denied due
process because Kadlec destroyed her notes after transcribing them into the
police report. By not raising these
arguments at trial, Devereux waived his right to raise them on appeal. See State v. Davis, 199
Wis.2d 513, 517-19, 545 N.W.2d 244, 245-46 (Ct. App. 1996). We therefore need not address the merits of
these arguments.
Even if we were to consider the merits regarding Kadlec's destruction of the notes, Devereux's argument fails. Kadlec testified that she took handwritten notes during her interview with Devereux, and destroyed them after transcribing them into a formal police report, in accordance with standard departmental procedures. In order to violate the defendant's due process rights, the police must either fail to preserve exculpatory evidence, or act in bad faith by failing to preserve potentially exculpatory evidence. State v. Greenwold, 189 Wis.2d 59, 67, 525 N.W.2d 294, 297 (Ct. App. 1994). Devereux failed to prove a due process violation because he neither showed that the handwritten notes contained exculpatory evidence, nor did he show that Kadlec acted in bad faith.