State v. Jason Luis Rodriguez ( 2022 )


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  •      COURT OF APPEALS
    DECISION                                                  NOTICE
    DATED AND FILED                              This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    December 6, 2022
    A party may file with the Supreme Court a
    Sheila T. Reiff                    petition to review an adverse decision by the
    Clerk of Court of Appeals               Court of Appeals. See WIS. STAT. § 808.10
    and RULE 809.62.
    Appeal Nos.
    2021AP371-CR                                                        Cir. Ct. Nos. 2019CF1141
    2019CF1743
    2021AP372-CR
    STATE OF WISCONSIN                                             IN COURT OF APPEALS
    DISTRICT I
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    JASON LUIS RODRIGUEZ,
    DEFENDANT-APPELLANT.
    APPEALS from judgments of the circuit court for Milwaukee
    County: GLENN H. YAMAHIRO, Judge. Affirmed.
    Before Brash, C.J., Donald, P.J., and White, J.
    Per curiam opinions may not be cited in any court of this state as precedent
    or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
    Nos. 2021AP371-CR
    2021AP372-CR
    ¶1     PER CURIAM. In this consolidated appeal, Jason Luis Rodriguez
    appeals from judgments convicting him of strangulation and suffocation, false
    imprisonment, two counts of felony bail jumping, and three counts of intimidation
    of a witness. Rodriguez contends that the circuit court erroneously admitted
    statements from the victim, J.E.P., under the forfeiture by wrongdoing doctrine.
    We reject Rodriguez’s argument, and affirm.
    BACKGROUND
    A. Charges and Pretrial Proceedings
    ¶2     In Milwaukee County Circuit Court case No. 2019CF1141, the State
    charged Rodriguez with strangulation and suffocation, false imprisonment, and
    two counts of felony bail jumping. According to the complaint, J.E.P. alleged that
    on March 12, 2019, Rodriguez, her boyfriend, choked her and dragged her
    multiple times by her hair. Rodriguez took J.E.P.’s phone so that she could not
    make any calls or send any text messages. After J.E.P. got her phone back, she
    texted her mother, E.M.B., for help. Rodriguez then took J.E.P.’s phone again and
    forced her to respond to E.M.B. that “everything [was] okay.” After the text
    message was sent to E.M.B., Rodriguez broke J.E.P.’s phone. J.E.P. tried to get
    away, but Rodriguez repeatedly grabbed her by the neck and choked her.
    Eventually, J.E.P. was able to escape.
    ¶3     On March 28, 2019, at the preliminary hearing, the State informed
    the court that Rodriguez had made more than forty calls from the jail to J.E.P., and
    that Rodriguez’s mother also contacted J.E.P. At the request of the State, the court
    commissioner suspended Rodriguez’s phone privileges in the jail.
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    ¶4   At a bail modification hearing on April 3, 2019, the State indicated
    that Rodriguez was “still calling [J.E.P.] and having family members call her,”
    despite having his phone privileges rescinded.          The State indicated that
    intimidation charges were forthcoming.
    ¶5   Subsequently,    in   Milwaukee     County    Circuit     Court     case
    No. 2019CF1743, the State charged Rodriguez with three counts of felony
    intimidation of a witness and one count of felony intimidation of a victim.
    According to the complaint, Rodriguez attempted to dissuade J.E.P. from causing
    the prior case from being prosecuted on four separate occasions between
    March 17, 2019, and March 24, 2019. The complaint detailed numerous text
    messages from Rodriguez to J.E.P., which included asking her to drop the charges,
    offering to pay her to drop the charges, and telling her to go to the court and drop
    the charges. The complaint also detailed several calls from Rodriguez, including a
    call where he told her that “When I come home I’m coming for you.”
    ¶6   Following the new charges, in an August 2019 pro se letter to the
    court, Rodriguez wrote, “I learned the court system does not like when someone
    trys [sic] to pursuae [sic] a witness from coming to court …. I did learn for future
    refrences [sic] (DO NOT) (INTIMIDATE YOUR WITNESS), lesson learned
    never doing that again.”
    ¶7   On November 1, 2019, the two cases were joined for trial. On
    November 18, 2019, the date scheduled for the trial, J.E.P. and her mother
    appeared. The court adjourned the trial due to a discovery issue regarding the jail
    calls.
    ¶8   At the rescheduled trial date on December 16, 2019, the State
    indicated that J.E.P. had not appeared and that it had filed a motion to admit her
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    Nos. 2021AP371-CR
    2021AP372-CR
    statements under the forfeiture by wrongdoing doctrine. The prosecutor informed
    the court that J.E.P. had stopped responding to the victim/witness advocate since
    the last court date. The prosecutor also stated that at the last date J.E.P. was
    “terrified and sobbing the entire time,” and stated that she did not want to testify
    because she was afraid for her safety and the safety of her daughter and her
    mother. According to the prosecutor, Rodriguez sent J.E.P. hundreds of text
    messages and called J.E.P. six times telling her not to come to court and to get the
    case dropped.
    B. Forfeiture by Wrongdoing Decision
    ¶9       An evidentiary hearing was held on the State’s forfeiture by
    wrongdoing motion. Investigator Douglas Tweedie testified that he spoke with
    J.E.P. on March 20, 2019. Investigator Tweedie described J.E.P. as “shaking a
    little bit” and “visibly shook[.]” J.E.P. said that Rodriguez had sent her numerous
    text messages that were threatening and caused her to fear for her safety.
    Investigator Tweedie testified about the content of several of the messages, which
    included Rodriguez apologizing and asking J.E.P. to drop the charges, and
    offering to pay her to drop the case.
    ¶10      Investigator Tweedie further testified that on November 16, 2019, he
    escorted J.E.P. to a conference room for trial preparation with the prosecutor.
    Investigator Tweedie testified that “[y]ou could see anxiety building in her,” and
    after discussing the case, she seemed “agitated, nervous, and scared.” J.E.P. made
    comments that she was afraid something could happen to her.
    ¶11      Investigator Tweedie next observed J.E.P. on November 18, 2019.
    Investigator Tweedie testified that when J.E.P. was told that the trial was going to
    be adjourned, J.E.P. was “shaking” and “crying.” J.E.P. said that she had to look
    4
    Nos. 2021AP371-CR
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    out for her child and she was not coming back because she was afraid of
    Rodriguez. As Investigator Tweedie walked J.E.P. to her car, J.E.P. said that “it
    doesn’t matter, you don’t get it, he can do anything, his family has connections, it
    doesn’t matter where he is, if he wanted something done it would happen to me,
    he made comments to me like that in the past[.]”
    ¶12   In addition, Investigator Tweedie testified that texts that Rodriguez
    had previously sent were resent to J.E.P. in November 2019.            J.E.P. called
    Investigator Tweedie and was “hysterical” and panicking that someone had
    Rodriguez’s phone or he was out.        Investigator Tweedie looked into it and
    determined that the texts were resent due to an “internet fluke” that made national
    news.
    ¶13   After hearing argument, the circuit court found that Rodriguez
    forfeited his right to confrontation subject to a showing on the next trial date that
    the State had exercised due diligence in attempting to secure J.E.P.’s presence.
    The court noted that the “barrage of text messages” Rodriguez sent over a one
    week period in March 2019 was “almost unprecedented” and it was “basically
    nonstop.” The court stated that this was “classic abuser behavior and attempting
    to manipulate a victim” and the only reason the contact stopped was that the jail
    successfully prevented Rodriguez from having phone access. The court noted that
    J.E.P. had appeared for the November trial date, but the testimony was
    uncontroverted that J.E.P. was “petrified” of Rodriguez and that she was not
    planning to return to court.
    ¶14   On January 27, 2020, the date scheduled for trial, the prosecutor
    informed the court that a victim/witness advocate and Investigator Tweedie had
    attempted to reach J.E.P. that morning and there was not a response.             The
    5
    Nos. 2021AP371-CR
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    prosecutor also informed the court that Investigator Tweedie had received a phone
    call from J.E.P. the preceding Friday and she told him that someone contacted her
    and told her to download an app because Rodriguez needed to speak with her.
    J.E.P. sent a screenshot of the text to Investigator Tweedie. Investigator Tweedie
    informed J.E.P. that her presence was required in court per the subpoena she
    received.
    ¶15    The State presented testimony from Marivel Maldonado, who
    worked for the district attorney’s office. Maldonado testified that she served a
    subpoena on J.E.P. for January 27, 2020. Maldonado explained to J.E.P. the court
    date and time and told J.E.P. to contact the victim/witness advocate if she had any
    questions.
    ¶16    The circuit court found that J.E.P. was unavailable. The court stated
    that Rodriguez’s “actions were more than adequate to harass and intimidate
    [J.E.P.],” which was bolstered by Investigator Tweedie’s testimony describing
    J.E.P. on the date she had appeared for trial. The case then proceeded to trial.
    C. Jury Trial
    ¶17    During the jury trial, the State presented testimony from several
    witnesses: Officer Dustin Corrigan, who spoke to both J.E.P. and E.M.B. after the
    alleged offenses on March 13, 2019; Officer Thomas Kupsik, who spoke to J.E.P.
    after Rodriguez showed up to her workplace on March 19, 2019; and Investigator
    Tweedie.
    ¶18    The State showed the jury photos of J.E.P. from March 13, 2019,
    which depicted bruising and injuries to her neck. The State also played a portion
    of a video of J.E.P.’s interview with the police after Rodriguez showed up at her
    6
    Nos. 2021AP371-CR
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    work place, and portions of the calls that Rodriguez made to J.E.P. from jail. In
    addition, the State moved into evidence forty-six pages of text messages between
    Rodriguez and J.E.P.
    ¶19    The jury found Rodriguez guilty of strangulation and suffocation,
    false imprisonment, two counts of felony bail jumping, and three counts of
    intimidation of a witness. The jury acquitted Rodriguez of one count of felony
    intimidation of a victim. This appeal follows. Additional relevant facts will be
    referenced below.
    DISCUSSION
    ¶20    On appeal, Rodriguez contends that the circuit court erroneously
    admitted J.E.P.’s out-of-court statements under the doctrine of forfeiture by
    wrongdoing.
    ¶21    The Confrontation Clause of the Sixth Amendment to the United
    States Constitution provides that “[i]n all criminal prosecutions, the accused shall
    enjoy the right … to be confronted with the witnesses against him[.]” U.S. CONST.
    amend. VI; see also, WIS. CONST. art. I, § 7. “Testimonial statements of witnesses
    absent from trial [can be] admitted only where the declarant is unavailable, and
    only where the defendant has had a prior opportunity to cross-examine.”
    Crawford v. Washington, 
    541 U.S. 36
    , 59 (2004).
    ¶22    One exception to the Confrontation Clause is the forfeiture by
    wrongdoing doctrine. State v. Baldwin, 
    2010 WI App 162
    , ¶34, 
    330 Wis. 2d 500
    ,
    
    794 N.W.2d 769
    . The forfeiture by wrongdoing doctrine permits the introduction
    of statements of a declarant who is detained or kept away by the defendant. 
    Id.
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    Nos. 2021AP371-CR
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    The policy behind this doctrine is to prohibit a defendant from profiting from his
    or her own wrongdoing. See id., ¶35.
    ¶23      In order to admit evidence under the forfeiture by wrongdoing
    doctrine, the parties agree that the State must prove by a preponderance of
    evidence that: (1) the witness whose out-of-court statement the State seeks to use
    is unavailable; and (2) the defendant prevented the witness from testifying and did
    so with the intent to prevent the witness from testifying. See id., ¶¶37-39, 48.
    ¶24      Whether the admission of evidence violates a defendant’s right to
    confrontation is a question of law that we review de novo. State v. Reinwand,
    
    2019 WI 25
    , ¶17, 
    385 Wis. 2d 700
    , 
    924 N.W.2d 184
    . We accept the circuit
    court’s findings of fact unless they are clearly erroneous. Id., ¶18.
    ¶25      In this case, we conclude that the circuit court properly admitted
    J.E.P.’s out-of-court statements under the forfeiture by wrongdoing doctrine.
    First, we address whether J.E.P. was unavailable.                         WISCONSIN STAT.
    § 908.04(1)(e) (2019-20)1 requires the State to secure a witness’s appearance “by
    process or other reasonable means.” The State also must make a “‘good-faith
    effort’ and exercise ‘due diligence’” to secure the witness’s presence. Baldwin,
    
    330 Wis. 2d 500
    , ¶48 (citation omitted).
    ¶26      Rodriguez suggests that the State should have taken “more
    aggressive actions” to compel J.E.P.’s appearance, such as a body attachment.
    Rodriguez, however, does not cite any case law that establishes that a body
    1
    All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
    noted.
    8
    Nos. 2021AP371-CR
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    attachment is a prerequisite to establishing a witness’s unavailability. See id., ¶47
    (holding that the defendant had failed “to cite any authority in support of his
    argument that a finding of unavailability requires the State to prove the extent of
    its attempts to serve a body attachment”).
    ¶27    Moreover, the record reflects that the State made a “good-faith
    effort” and exercised “due diligence” to secure J.E.P.’s presence. See id., ¶48
    (citation omitted). In this case, it is undisputed that a subpoena was served in
    advance on J.E.P. for the January 27, 2020 trial date. Maldonado, the process
    server, testified that she served the subpoena on J.E.P. on December 31, 2019, and
    explained the court date and time to J.E.P.
    ¶28    In addition, the record reflects that the State made ongoing efforts to
    secure J.E.P.’s presence. The prosecutor informed the court that on the Friday
    before the January trial date, Investigator Tweedie informed J.E.P. that her
    presence was required in court per the subpoena she received. The prosecutor also
    indicated that both Investigator Tweedie and a victim/witness advocate attempted
    to reach J.E.P. the morning of the trial, but J.E.P. did not respond.
    ¶29    Given that J.E.P. was served with a subpoena, and the State’s on-
    going efforts regarding J.E.P.’s appearance up until the morning of the trial, we
    conclude that the record reflects that the State made a “good-faith effort” and
    exercised “due diligence” to secure J.E.P.’s presence. See id. (citation omitted).
    ¶30    Second, we address whether the defendant prevented the witness
    from testifying and did so with the intent to prevent the witness from testifying.
    See id., ¶39. To prevail on this factor, the State must show that the defendant’s
    actions were a “substantial factor” in producing the witness’s absence from trial.
    9
    Nos. 2021AP371-CR
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    State v. Rodriguez, 
    2007 WI App 252
    , ¶15, 
    306 Wis. 2d 129
    , 
    743 N.W.2d 460
    (citation omitted).
    ¶31      Here, the record reflects that Rodriguez prevented J.E.P. from
    testifying and did so with the intent to prevent J.E.P. from testifying.                            See
    Baldwin, 
    330 Wis. 2d 500
    , ¶39. Rodriguez sent hundreds of text messages to
    J.E.P. which included requests asking her to drop the charges. Rodriguez also
    made multiple phone calls to J.E.P. from the jail, including telling J.E.P. that he
    would come for her when he came home, which Investigator Tweedie interpreted
    as an overt threat.         Moreover, Investigator Tweedie’s description of J.E.P.’s
    emotional reaction and her statements at the November trial date that she was not
    coming back to court based on safety concerns reflects that Rodriguez succeeded
    in preventing J.E.P. from testifying.2
    ¶32      Rodriguez admits that he contacted J.E.P. numerous times, but
    emphasizes that he did not have any contact with J.E.P. after March or April 2019
    due to the fact that his phone privileges were rescinded. This overlooks, however,
    that on the Friday preceding the January 27, 2020 trial date, J.E.P. reported to
    Investigator Tweedie that someone had called her and asked her to download an
    app because Rodriguez needed to speak to her.
    2
    We note that Rodriguez in his initial brief complains that the circuit court accepted
    Investigator Tweedie’s testimony and ignored testimony from Maldonado that J.E.P. was not
    crying, J.E.P. did not look nervous, and “said she was fine” when she was served with a
    subpoena. Given that Maldonado only interacted with J.E.P. on a single occasion, and
    Investigator Tweedie had repeated contact with J.E.P., the circuit court could reasonably give
    more weight to Investigator Tweedie’s testimony about J.E.P. See State v. Peppertree Resort
    Villas, Inc., 
    2002 WI App 207
    , ¶19, 
    257 Wis. 2d 421
    , 
    651 N.W.2d 345
     (“When the circuit court
    acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses and the weight
    to be given to each witness’s testimony.”).
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    Nos. 2021AP371-CR
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    ¶33     In addition, Rodriguez attempts to distinguish his case from Baldwin
    because J.E.P. showed up for the November 18, 2019 trial date. As the State
    observes, Baldwin did not hold that an intervening event broke any connection
    between a defendant’s past conduct toward the witness and the witness’s non-
    appearance at a future trial date. Rather, Baldwin held that past physical violence
    and threats to a victim are “highly relevant” to a finding of forfeiture by
    wrongdoing.      See id., ¶44 (citation omitted).          And, in this case, Rodriguez’s
    violent conduct towards J.E.P., his attempt to prevent her from seeking help by
    breaking her phone, and his numerous text messages and calls are highly relevant
    to a finding of forfeiture by wrongdoing.
    ¶34     Therefore, for all of the reasons above, we reject Rodriguez’s claim
    that the circuit court erred when it admitted J.E.P.’s statements under the forfeiture
    by wrongdoing doctrine.3
    By the Court.—Judgments affirmed.
    This    opinion     will   not      be   published.       See     WIS. STAT.
    RULE 809.23(1)(b)5.
    3
    We note that the State also raises harmless error. Because we conclude that the circuit
    court did not err, we do not address harmless error. See State v. Blalock, 
    150 Wis. 2d 688
    , 703,
    
    442 N.W.2d 514
     (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible
    ground[.]”).
    11
    

Document Info

Docket Number: 2021AP000371-CR, 2021AP000372-CR

Filed Date: 12/6/2022

Precedential Status: Non-Precedential

Modified Date: 9/9/2024