State v. Johnson
| Decision Date | 15 February 2022 |
| Docket Number | Appeal No. 2020AP1396-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Joseph A. JOHNSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Joseph Johnson appeals a judgment convicting him of possession of child pornography and an order denying his postconviction motion. Johnson argues that the circuit court erred by denying his motion to suppress evidence of child pornography on his cell phone because that evidence was derived from his compelled statements and because no independent source for that evidence existed. Johnson also argues that he is entitled to a new trial based on: (1) a newly discovered log written by his extended supervision agent; (2) his trial counsel's failure to discover the log; and (3) the State's failure to disclose the log in discovery. We reject Johnson's arguments and affirm.
¶2 Johnson was previously convicted of three counts of first-degree sexual assault of a child. In late July 2016, Johnson was on extended supervision for those convictions when his supervising agent, Denise Campbell, received an anonymous tip that Johnson possessed "smart" cell phones containing "possible child pornography" and that Johnson was in contact with a twelve-year-old boy. At that time, Johnson's rules of supervision prohibited him from possessing any cell phone not authorized by his agent. Campbell later testified that Johnson was not authorized to possess a cell phone with internet capabilities.
¶3 On July 26, 2016, after receiving the anonymous tip, Campbell went to Johnson's home and took him into custody for the suspected rules violation. Johnson and his fiancée subsequently turned over four cell phones to Campbell, three retrieved from Johnson's home and one from his vehicle. Three days later, on July 29, Campbell questioned Johnson at the Dunn County Jail, and he admitted that one of the phones might contain child pornography.
¶4 After receiving instructions from her supervisor, Campbell then provided the cell phones to Maloree Switlick, an investigator with the Menomonie Police Department. Switlick immediately applied for and obtained a warrant to search the cell phones. As relevant to this appeal, Switlick averred in her search warrant affidavit:
¶5 Before viewing data from the cell phones, Switlick interviewed Johnson at the jail. Johnson agreed to speak with Switlick after being read Miranda warnings,1 and he stated that the "large" Samsung phone was his primary cell phone and that he did not believe the phone contained any child pornography.2 Switlick later reviewed data from Johnson's "Samsung Galaxy Note 4," and she discovered several suspected images of child pornography. The State subsequently charged Johnson with six counts of possession of child pornography.
¶6 Johnson moved to suppress all evidence and derivative evidence related to his statements to Campbell, arguing that they were compelled because he "was required by the terms of his extended supervision to provide a truthful and accurate description of his whereabouts and activities." As such, he contended that the probable cause for the search warrant was unlawfully based on his compelled statements. Johnson further argued that "there is no legitimate source wholly independent of [his] compelled statements" to Campbell and relied upon in the search warrant affidavit.
¶7 The circuit court held an evidentiary hearing on the suppression motion. Campbell testified that on July 20, 2016, she had received "an anonymous tip that [Johnson] was in possession of two or three cell phones; two of them which were smart phones which contained possible child pornography, and he was also in contact with a 12-year-old boy." When asked whether the anonymous source wished to remain anonymous, Campbell testified, Campbell further stated, however, that she was aware the source was "an acquaintance" of Johnson.
¶8 Campbell also testified that when she confronted Johnson at his home, he initially told her that he only had one flip phone—i.e., his TracFone—and he denied having any other phones. Once in custody, however, Johnson admitted to Campbell that there might be two additional phones in his home, and he described where to find the phones. Johnson's fiancée retrieved the two phones located in the home and provided them to Campbell. Johnson's fiancée also then informed Campbell that Johnson had "another big black cell phone." Campbell asked Johnson about that phone, but "he denied having it." Johnson's fiancée later found that black cell phone in Johnson's vehicle and provided it to Campbell. Johnson does not contest or dispute that the "big black cell phone" described by his fiancée and found by her in his vehicle was the Samsung Galaxy Note 4 that ultimately contained child pornography.
¶9 Switlick also testified at the suppression hearing. She stated, among other things, that she researched Johnson's criminal history and relied on information provided by Campbell in order to draft the search warrant and affidavit. In particular, she stated that Campbell had told her she "received an anonymous—reliable anonymous tip," and Switlick learned that Johnson was not supposed to access the internet as a condition of his supervision.
¶10 Johnson did not testify or present any evidence at the hearing. Johnson did, however, file an affidavit after the hearing. Johnson averred, among other things, that when Campbell questioned him in jail, she provided him a statement form on which he could write a statement, and that form "indicated that I was required to be truthful and that any information I provided could not be used in criminal proceedings." Johnson further asserted that Campbell interviewed him approximately four times between his arrest and his interview with Switlick, and that each time "Campbell stated that I was required to be truthful and if not then I could be revoked."3
¶11 The circuit court denied Johnson's motion to suppress. The court found that an anonymous source had informed Campbell that Johnson had "pornographic materials on his ... cell phones." The court also found that one of the phones "had been turned over by an independent source—I believe it was the person that lived with Mr. Johnson at the residence ...." The court concluded that "when you take the totality of the information and how it was collected," there was a sufficient independent source for the information that Johnson provided in his statements to Campbell.
¶12 Johnson subsequently pled no contest to one count of possession of child pornography, and the other five counts were dismissed and read in. The circuit court sentenced Johnson to four years’ initial confinement and five years’ extended supervision.
¶13 Johnson later filed a postconviction motion, renewing the arguments in his suppression motion. Soon thereafter, Johnson filed a supplemental postconviction motion. He asserted that he discovered a July 26, 2016 event log written by Campbell, which stated that Campbell "received info from agent Sandy Frigo who was informed [that Johnson] had two cell phones and was in contact with a 12[-]year[-]old boy." Johnson argued that the log "clearly shows Agent Campbell was untruthful in her testimony," and "that Agent Campbell did not have any prior information about child pornography other than compelled statements made by Mr. Johnson ...." He further contended that he should be granted a jury trial (and, impliedly, be allowed to withdraw his plea) because: (1) Campbell's log was newly discovered evidence; (2) his trial counsel was ineffective for not discovering the log; and (3) the district attorney improperly failed to disclose the log.
¶14 The circuit court held a Machner hearing,4 and Johnson's trial counsel testified regarding his representation of Johnson, including his lack of knowledge regarding the event log. No other witnesses testified. As relevant to this appeal, the court issued a written order granting Johnson's request to suppress his statements to Campbell, but denying his request to suppress his statements to Switlick or to suppress evidence obtained from the search warrant. In addition, the court denied Johnson's request for a trial in an oral ruling, concluding that Johnson's trial counsel was not ineffective and that the newly discovered evidence would not have changed the outcome of the case. Johnson now appeals.
¶15 Whether a violation of constitutional rights possibly warranting the suppression of evidence has occurred is a question of constitutional fact. State v. Reed , 2018 WI 109, ¶51, 384 Wis. 2d 469, 920 N.W.2d 56. When presented with a question of constitutional fact, we will uphold the circuit court's findings of historical fact unless they are clearly erroneous. Id. We then independently apply constitutional principles to those facts. Id.
¶16 The Fifth Amendment to the United States Constitution prohibits the...
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