State v. Gonzalez-Villarreal
| Decision Date | 27 January 2015 |
| Docket Number | No. 2013AP1615–CR.,2013AP1615–CR. |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Jose O. GONZALEZ–VILLARREAL, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Jose O. Gonzalez–Villarreal appeals the judgment convicting him of five counts of possession of child pornography, contrary to Wis. Stat. § 948.12(1m) (2009–10).1 Gonzalez–Villarreal makes five arguments on appeal: (1) his right to a speedy trial was violated; (2) unreasonable discovery restrictions violated his right to equal protection; (3) the trial court erred in admitting “other acts” evidence at trial; (4) the trial court erred in not submitting Gonzalez–Villarreal's chosen jury instruction on possession; and (5) the trial court erroneously exercised its discretion at sentencing. We reject his arguments and affirm.
¶ 2 In August 2009, the State charged Gonzalez–Villarreal with five counts of child pornography. The charges stemmed from the recovery of more than 1100 images of suspected child pornography and child erotica from his computer's hard drive following the execution of a search warrant.2 According to the complaint, the search warrant was issued after Milwaukee police discovered that an internet user with the email address “alvawillie@hotmail.com” had posted images of child pornography to Google Groups, an internet discussion group, and further investigation—including investigation of social networking sites and other places where the email address was used—linked Gonzalez–Villarreal to the “alvawillie@hotmail.com” address. The search of Gonzalez–Villarreal's hard drive revealed not only the aforementioned images of child pornography, but also images of Gonzalez–Villarreal in the company of boys who appeared to be about five to twelve years of age, and “a folder showing a connection to the email address that originally uploaded the suspected child pornography to Google Groups.”
¶ 3 Gonzalez–Villarreal pled not guilty to the charges and the case went to trial. Although the State charged Gonzalez–Villarreal with just five counts of child pornography, the State sought to introduce the other images recovered from his hard drive to show that Gonzalez–Villarreal knew that child pornography was stored on his computer. The trial court allowed the evidence over Gonzalez–Villarreal's objection, and the jury found him guilty.
¶ 4 Gonzalez–Villarreal now appeals. Additional facts will be developed as necessary below.
¶ 5 Gonzalez–Villarreal makes five arguments on appeal: (1) his right to a speedy trial was violated; (2) unreasonable discovery restrictions violated his right to equal protection; (3) the trial court erred in admitting “other acts” evidence at trial; (4) the trial court erred in not submitting Gonzalez–Villarreal's chosen jury instruction on possession; and (5) the trial court erroneously exercised its discretion at sentencing.3 We address each argument in turn.
(1) Gonzalez–Villarreal's right to a speedy trial was not violated.
¶ 6 Gonzalez–Villarreal first argues that his constitutional right to a speedy trial was violated. “Whether a defendant has been denied the right to a speedy trial is a constitutional question that this court reviews de novo. ” See State v. Leighton, 2000 WI App 156, ¶ 5, 237 Wis.2d 709, 616 N.W.2d 126. While our review of the legal question is de novo, the trial court's underlying findings of historical fact will be upheld unless they are clearly erroneous. See id.
¶ 7 To determine whether a defendant has been denied the constitutional right to a speedy trial, we must consider four factors enumerated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) : the length of the delay; the reason for the delay, that is, whether the government or the defendant is more to blame for the delay; whether the defendant asserted the right to a speedy trial; and whether the delay resulted in any prejudice to the defendant. See Leighton, 237 Wis.2d 709, ¶ 6, 616 N.W.2d 126. The four factors are balanced on a case-by-case basis, with no single factor representing either a necessary or a sufficient condition to the finding of a deprivation of the right to a speedy trial. See Barker, 407 U.S. at 533.
¶ 8 In this case, there is no dispute that Gonzalez–Villarreal repeatedly asserted his right to a speedy trial; therefore, we will evaluate: (a) the length of the delay; (b) the reasons for the delay; and (c) any resulting prejudice to Gonzalez–Villarreal. See Leighton, 237 Wis.2d 709, ¶ 6, 616 N.W.2d 126.
¶ 9 Turning to the first factor for consideration, the length of the delay, we must first make a threshold determination that the length of the delay is presumptively prejudicial before we inquire about the remaining factors. See id., ¶ 7. A finding that a delay is presumptively prejudicial “do[es] not place an additional burden on the state to prove the negative, lack of prejudice.” State v. Lemay, 155 Wis.2d 202, 212–13, 455 N.W.2d 233 (1990). Rather, such a finding “merely triggers further review of the allegation under the other three Barker factors.” Lemay, 155 Wis.2d at 212–13, 455 N.W.2d 233.
¶ 10 The State and Gonzalez–Villarreal agree that the three year and nine month interval between the filing of the complaint and trial is presumptively prejudicial.4 See Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (). Consequently, we must examine the remaining Barker factors.
¶ 11 Turning to the next factor, the reason advanced for the delay, we must ask, “who caused the delay?” See Norwood v. State, 74 Wis.2d 343, 354, 246 N.W.2d 801 (1976). If the delay is attributed to the actions of the defendant, that period of time is not considered in deciding whether he has been denied a speedy trial. See id. Moreover, “preconviction delay is not to be weighed heavily against the state if it was not intentional and not motivated by a desire to disadvantage the defendant in preparation of his or her defense.” State v. Allen, 179 Wis.2d 67, 77, 505 N.W.2d 801 (Ct.App.1993).
¶ 12 As best as we can tell, Gonzalez–Villarreal outlines two ways in which the State caused the delay between charging and trial: continually failing to answer his discovery demands, both as a general matter and specifically by failing to disclose a copy of his hard drive for the defense expert to evaluate; and moving to disqualify trial counsel, which precipitated an interlocutory appeal. We disagree with Gonzalez–Villarreal on all points raised.
¶ 13 Gonzalez–Villarreal's argument that the State generally refused to answer his discovery demands is inadequate and must be rejected. See, e.g., State v. Pettit, 171 Wis.2d 627, 646–47, 492 N.W.2d 633 (Ct.App.1992). Of the many citations to the record Gonzalez–Villarreal points to as proof of the State's allegedly flagrant refusal to provide discovery, not a single one supports his contentions. Indeed, many of his record citations are to motions he filed, which are not evidence of anything other than the fact that he filed motions. See Nelson v. Schreiner, 161 Wis.2d 798, 804, 469 N.W.2d 214 (Ct.App.1991) (). We decline to further elaborate on the myriad inadequacies of Gonzalez–Villarreal's brief in developing this argument and conclude that we will not consider it further. See, e.g., Pettit, 171 Wis.2d at 646–47, 492 N.W.2d 633.
¶ 14 Additionally, any specific delays that Gonzalez–Villarreal claims were necessitated by the State's failure to disclose a copy of his hard drive for his expert are unavailing. There is no evidence that the State denied Gonzalez–Villarreal's expert access to his hard drive; rather, as is explained quite thoroughly in the State's brief, the State merely required the expert to review the hard drive within the confines of the trial court's protective order. Gonzalez–Villarreal argues that complying with the protective order caused him financial hardship, as his expert allegedly charged over $50,000 to review the hard drive in Milwaukee, compared with about $5000 to view it in Chicago. But, as we will later discuss, there is nothing in the record to support this claim. In any event, Gonzalez–Villarreal's argument fails to sustain an argument that the State was responsible for the delay, and we must therefore reject it.
¶ 15 With respect to Gonzalez–Villarreal's interlocutory appeal stemming from the State's motion to disqualify counsel, the trial court proceedings were stayed from June 7, 2011, through September 18, 2012–a period of over fifteen months. The State had requested that the trial court remove Attorney Michael Knoeller as defense counsel and appoint new counsel due to concern that counsel had conflicted himself out of the case. This court summarized the State's position as follows:
The State explained that its motion for disqualification was based on its understanding that Attorney Knoeller was in a position of conflict because Gonzalez–Villarreal made a potentially incriminating statement during the recorded interview. Because Attorney Knoeller acted as Gonzalez–Villarreal's translator during that interview, the State reasoned, Attorney Knoeller was in a position where he could potentially have to act as a witness in his client's case.
State v. Gonzalez–Villarreal, 2012 WI App 110, ¶ 3, 344 Wis.2d 472, 824 N.W.2d 161.
¶ 16 While Gonzalez–Villarreal argues that this period of delay should be charged against the State because he was allegedly compelled to file the interlocutory appeal by the prosecutor's “attempt to strip [Gonzalez–Villarreal] from his chosen representation,” we disagree. The fact that Gonzalez–Villarreal was...
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