Other-acts evidence proper; prosecutor’s closing improper, but not prejudicial

State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.

A victim of one of three robberies Rogers was being tried for testified that he was robbed by men in a gray Jeep Cherokee. Shortly after the robbery police found a gray Jeep Cherokee that had been reported stolen. Because of that report, the vehicle was dusted for fingerprints; Rogers’s prints were found on the outside of a rear passenger door. This led the police to do a photo array with Rogers’s picture, and the robbery victim identified him. (¶¶6-11).

Rogers objects to the references to the Jeep being reported stolen as improper hearsay and other-acts evidence, but the court of appeals turns back his claims. That the Jeep was reported stolen wasn’t offered for its truth, but to explain the context and background as to why it was investigated for prints and how that led police, and the victim, to identify Rogers. That was a permissible purpose under § 904.04(2)(a); the evidence was relevant; and it wasn’t unfairly prejudicial, especially in view of the trial court’s cautionary instruction. And, for good measure, it was harmless if it was inadmissible. (¶¶20-27).

One aspect of the prosecutor’s rebuttal closing argument was problematic, however. The prosecutor argued that, based on the calculations of a “partner here” (presumably a fellow prosecutor) who was a “math person,” the odds of the four victims misidentifying Rogers “is [one] in 1,296.” Trial counsel immediately objected because “there’s no testimony or basis for that at all.” The trial court overruled the defense objection, stating “it’s argument.” (¶¶12, 32). The court of appeals agrees with Rogers that this was improper argument. It refers to facts not in evidence and improperly presented the argument as though it was based on expert testimony. (¶34). “Moreover, the mathematical calculation has to assume the identification was purely random—it is not. Identification involves many factors such as the witness’ opportunity and ability to make observations, the duration of the observation, the lighting, and the effect on the witness’ memory due to the time elapsed between the observation and the identification procedure. See Wis. J.I.—Criminal 141.” (¶35).

Having won that skirmish, however, Rogers doesn’t win the war, as the court of appeals finds that the remark didn’t affect the fairness of the trial, for the usual reasons: the jury was instructed to base its decision only on the evidence, and told the remarks of lawyers aren’t evidence; the court instructed the jury with Wis. J.I.—Criminal 141, which advised the jury how to assess the identification evidence; the jury acquitted Rogers of one of the offenses, showing the remarks didn’t sway them; and the evidence supporting the identifications on the charges he was convicted of was strong. (¶¶36-42).