State v. Zocco

Docket Number2021AP1412-CR
Decision Date31 October 2023
PartiesState of Wisconsin, Plaintiff-Respondent, v. Kris V. Zocco, Defendant-Appellant.
CourtWisconsin Court of Appeals

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Milwaukee County, Cir. Ct. No. 2017CF2151 JEFFREY A. WAGNER Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.

PER CURIAM.

¶1 Kris V. Zocco appeals from an amended judgment of conviction[1] entered following a jury trial for first-degree reckless homicide, hiding a corpse, and strangulation and suffocation, and an order denying his postconviction motion. On appeal, Zocco contends that: (1) the evidence was insufficient to convict him of first-degree reckless homicide; (2) the warrant to search Zocco's cell phone violated the Fourth Amendment's particularity requirement; (3) the cadaver dog evidence admitted during his trial should have been excluded; (4) the admission of pornography evidence during his trial constituted plain error; (5) he was deprived of effective assistance of trial counsel; and (6) he is entitled to a new trial in the interest of justice. For the reasons discussed below, we affirm.

BACKGROUND

¶2 On May 1, 2015, Kelly Dwyer's skeletal remains were found along a rural road in Jefferson County. No clothes or personal items, such as a bag or shoes, were found with Dwyer's remains. According to the Jefferson County Medical Examiner, Dwyer's body was face-down on the ground and her right arm was "underneath her torso," her left arm was "bent backwards and resting on her back," her left leg was "extended with her lower leg kind of off to the side," and her right leg was "bent backwards behind, resting kind of in a bent position as well, upward."

¶3 Dwyer was last seen alive on Friday, October 11, 2013, at 2:37 a.m. in Milwaukee entering Zocco's apartment complex. Zocco and Dwyer were in a "friends with benefits"[2] relationship.

¶4 In 2017, Zocco was charged with first-degree reckless homicide, hiding a corpse, and strangulation and suffocation. In 2018, a ten-day jury trial took place. The State argued that Zocco either manually strangled Dwyer or forced his penis down her esophagus causing her to asphyxiate and die at his apartment. The State further argued that Zocco then transported her body out of his apartment in a travel golf bag and dumped her body in Jefferson County. The defense contended that the State had failed to present sufficient evidence that Zocco caused Dwyer's death. The jury found Zocco guilty as charged, and he was sentenced to a total of thirty-one years of initial confinement and nineteen years of extended supervision.

¶5 Zocco moved for postconviction relief. After briefing, the circuit court denied Zocco's postconviction motion without a hearing. This appeal follows. Additional relevant facts are discussed below.

DISCUSSION

¶6 On appeal, Zocco contends that: (1) the evidence was insufficient to convict him of first-degree reckless homicide; (2) the warrant to search Zocco's cell phone violated the Fourth Amendment's particularity requirement; (3) the cadaver dog evidence admitted during his trial should have been excluded; (4) the admission of pornography evidence during his trial constituted plain error; (5) he was deprived of effective assistance of trial counsel; and (6) he is entitled to a new trial in the interest of justice. We address each of Zocco's claims in turn.

I. Sufficiency of the Evidence

¶7 In this case, due to the decomposition of Dwyer's remains, no doctor or medical examiner could definitively determine the cause or manner of Dwyer's death.

¶8 Zocco contends that there was insufficient evidence supporting his first-degree reckless homicide conviction. Zocco asserts that "[a]bsent evidence of the cause or circumstances of [Dwyer's] death, the jury necessarily was left to speculate whether her death was criminal rather than accidental or natural and, if criminal, whether it was reckless rather than negligent."

¶9 When reviewing a sufficiency of the evidence claim, we may not substitute our "judgment for that of the trier of fact unless the evidence, viewed most favorably to the [S]tate and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752 (1990). We will uphold a conviction, "[i]f any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt," and we do so even if we do not believe that the trier of fact should have found guilt based on the evidence. Id. "It is the function of the trier of fact, and not of an appellate court, to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." State v. Bodoh, 226 Wis.2d 718, 727, 595 N.W.2d 330 (1999) (citation omitted). Whether the evidence in a case is sufficient to sustain a guilty verdict is a question of law that we review independently. State v. Smith, 2012 WI 91, ¶24 342 Wis.2d 710, 817 N.W.2d 410.

¶10 In order to convict Zocco of first-degree reckless homicide the State bore the burden of proving that: (1) Zocco caused the death of Dwyer; (2) Zocco caused Dwyer's death by criminally reckless conduct; and (3) the circumstances of Dwyer's death showed utter disregard for human life. See Wis. Stat. § 940.02(1) (2021-22);[3] Wis JI-Criminal 1022.

¶11 To start, there is no dispute in this case that Dwyer is deceased. Evidence was presented at trial that human remains were found along a rural road in Jefferson County, and Dr. Donald Simley, a forensic dentist, identified Dwyer as the deceased using her dental records.

¶12 While no doctor or medical examiner was able to definitively opine as to Dwyer's cause of death, the State presented a variety of other evidence to support that Zocco caused Dwyer's death and to rule out non-homicidal causes. As we discuss in detail below, the evidence at trial included, but was not limited to: surveillance footage, statements from Zocco, testimony from those close to Dwyer, phone records, information relating to Zocco's whereabouts following Dwyer's disappearance, testimony relating to Zocco's apartment, cadaver dog evidence, photos and a video from Zocco's cell phone, testimony from a woman that Zocco had a sexual relationship with, and testimony from a former girlfriend. "It is well established that a finding of guilt may rest upon evidence that is entirely circumstantial and that circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence." Poellinger, 153 Wis.2d at 501.

¶13 During the trial, the State presented surveillance footage from Zocco's apartment complex, which showed Dwyer entering the lobby alone on Thursday, October 10, 2013, at 9:22 p.m., leaving with Zocco approximately twenty minutes later, and returning after 10:00 p.m. Around midnight, on Friday, October 11, 2013, Dwyer and Zocco are seen leaving again and then returning at 2:37 a.m. After returning to Zocco's apartment complex at 2:37 a.m., Dwyer is not seen alive again on the video.

¶14 Zocco admitted to police that he and Dwyer were together on Thursday evening and early Friday morning. According to Zocco, they snorted cocaine and drank at Zocco's apartment, went to a local bar, and then returned to his apartment and had more drinks and cocaine. Dwyer gave him oral sex, and then they both passed out. They woke up at approximately 9:00 a.m. and Dwyer said she was leaving. He then heard the door click.

¶15 On Friday morning, around 10:00 a.m., Zocco is seen on the surveillance video leaving his garage without Dwyer. Zocco's car returned at 10:22 a.m. and Zocco parked, got out, and went and opened his trunk. A detective testified that there was a gray object in the trunk, which could have been a golf bag, and a toolbox. The car left again at 10:37 a.m. and returned at 10:52 a.m.

¶16 Just after noon, Zocco returned to his car in a white t-shirt and a light hat. In a subsequent video clip at 1:43 p.m., the headlights of Zocco's car are on, he exits the car, and walks back toward the door to his apartment. At that point, Zocco has darker-type clothing. Zocco then shows up again at 3:34 p.m. at the back of his car with a rolling duffle-bag designed to hold bats, which he puts in his trunk. At 5:06 p.m., he approaches his car carrying a smaller, range-type golf bag on his shoulder and places it at the rear-passenger door of the car. Finally, at 6:15 p.m., Zocco's car leaves for the evening.

¶17 Zocco told police that after Dwyer left, he got ready for work and started to drive to his office to get a document, but changed his mind and came home, where he usually worked. After his workday ended, around 6:30 p.m., Zocco said that he took sports equipment, which included golf clubs, to his parents' house in Richfield because his own apartment was getting too crowded.

¶18 The following day, Saturday, October 12, 2013, Dwyer did not show up for work, which her coworkers said was unusual for her. Dwyer's coworkers testified that they could not reach her by phone or at her apartment. Dwyer's boss contacted Zocco. According to Dwyer's boss, Zocco returned her call approximately three or four hours later and said that he was out Christmas shopping that October morning. Zocco initially said that Dwyer left his apartment at "7-ish." Later, he said "9-ish." At another point, he said he was not sure.

¶19 Dwyer's mother, who shared a phone plan with Dwyer testified that Dwyer's phone call activity ended on Thursday, October 10, 2013...

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