State v. Zocco
| Decision Date | 27 August 2019 |
| Docket Number | 2018AP1146-CR,Appeal Nos. 2018AP1145-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Kris V. ZOCCO, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 A jury convicted Kris Zocco of knowingly possessing sixteen recordings of child pornography. Zocco raises numerous issues on appeal. First, Zocco argues that the circuit court erroneously denied his motions to suppress evidence obtained from his apartment pursuant to two search warrants on the grounds that: (1) probable cause did not support the issuance of a warrant for the search of photos and videos on Zocco’s smartphone, the execution of which led to the issuance of a subsequent warrant to search "devices" on which the child pornography recordings were found; and (2) the seizure of an external hard drive and CDs exceeded the scope of that subsequent warrant. Second, Zocco argues that the evidence was insufficient to establish that he knowingly possessed the sixteen child pornography recordings. Third, Zocco argues that he is entitled to a Machner hearing on whether trial counsel was ineffective for not requesting a supplemental jury instruction that defined the knowledge element of the charged crime.1 Fourth, Zocco argues that the court erroneously rejected Zocco’s "other acts" objection and motion for a mistrial related to the State’s reference at trial to uncharged images of child pornography located on the CDs seized from Zocco’s apartment. Fifth, Zocco argues that he is entitled to a new trial in the interest of justice because of the errors alleged above. Sixth, Zocco argues that the court erroneously exercised its discretion in imposing sentence based on the court’s deeming Zocco to be a "consumer" of child pornography and on the aggravated nature of the contents of the recordings. Seventh, Zocco argues that the court improperly required as a condition of extended supervision that he "not be involved in any conduct that rises to the level of a finding of probable cause that you have violated the criminal law." For the reasons stated, we reject all of Zocco’s arguments and affirm.
¶2 Following the execution of a series of search warrants at Zocco’s Milwaukee apartment in October 2013, the State charged Zocco with drug and child pornography offenses. This appeal concerns the child pornography charges only. The complaint alleged that police "uncovered approximately 23 videos depicting child pornography" on an external hard drive and CDs that were seized from Zocco’s apartment pursuant to the search warrants. The complaint charged Zocco with seventeen counts of possession of child pornography; the first sixteen counts concerned videos on the external hard drive and the last count concerned a video on a CD.
¶3 The circuit court denied Zocco’s suppression motions challenging the search warrants, and the case proceeded to a jury trial. The jury convicted on the first sixteen counts and acquitted on the seventeenth count. After sentencing, Zocco filed a postconviction motion, which the court denied without a hearing. This appeal follows.2
¶4 We address each of Zocco’s arguments in turn.
¶5 Zocco argues that the evidence found on the external hard drive and CDs should have been suppressed because: (1) probable cause did not support the issuance of a warrant for the search of photos and videos on Zocco’s smartphone, the execution of which led to the issuance of the warrant to search "devices" on which the child pornography recordings were found; and (2) the seizure of the external hard drive and CDs exceeded the scope of that subsequent warrant. We first summarize the standard of review and applicable legal principles; we next provide additional pertinent background; and we then explain why we conclude that Zocco’s challenges to the issuance and execution of the two search warrants fail.
¶6 "Whether a search and seizure is constitutional remains a question of law that we review de novo ...." State v. LaCount , 2008 WI 59, ¶34, 310 Wis. 2d 85, 750 N.W.2d 780 (italics added).
¶7 In our review of a challenge to the issuance of a search warrant, we are limited to the record as it existed before the judge at the time the warrant was issued. State v. Sloan , 2007 WI App 146, ¶8, 303 Wis. 2d 438, 736 N.W.2d 189. The question before us is whether the judge "was ‘apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched.’ " Id. (citation omitted). "The well-established test for probable cause is that it is ‘flexible,’ and is ‘a practical commonsense decision’ that is made considering ‘the totality of the circumstances,’ " State v. Silverstein , 2017 WI App 64, ¶22, 378 Wis. 2d 42, 902 N.W.2d 550 (citations omitted), and the judge issuing or denying the warrant "may make the usual inferences reasonable persons would draw from the facts presented." State v. St. Martin , 2011 WI 44, ¶16, 334 Wis. 2d 290, 800 N.W.2d 858 (citation omitted). "In reviewing whether there was probable cause for the issuance of a search warrant, we accord great deference to the determination made by the warrant-issuing [judge]." State v. Ward , 2000 WI 3, ¶21, 231 Wis. 2d 723, 604 N.W.2d 517.
¶8 In our review of a challenge to the execution of a search warrant, we are guided by the principle that LaCount , 310 Wis. 2d 85, ¶38 (citations omitted).
¶9 While Zocco challenges only the second and third of a series of four search warrants issued in October 2013, we provide background as to all four warrants in order to provide necessary context for the analysis of his challenges.
¶10 The first warrant was issued on October 16, 2013, to search Zocco’s apartment on the 18th floor of a Milwaukee apartment building for drugs and drug paraphernalia. The search warrant affidavit made the following pertinent assertions. A woman, K.D., was reported missing on October 12, and video surveillance at Zocco’s apartment building showed K.D. with Zocco at his apartment building on October 10, the night before her cell phone stopped activity; the video surveillance did not show K.D. leaving the building. Zocco told police that on the night of October 10, he and K.D. left the apartment to purchase cocaine, returned to the apartment and used some of the cocaine, "may have" smoked marijuana, went out to a club, returned to his apartment and used the rest of the cocaine, and K.D. performed oral sex on him. Zocco’s statements about both his and K.D.’s dress and comings and goings during that time were contradicted by the building’s surveillance footage. Video surveillance showed Zocco leaving in his vehicle on the evening of October 11 and returning in the vehicle during the afternoon of October 12. After parking, Zocco removed from his vehicle’s front passenger compartment a small white plastic bag, which the officer believed contained cocaine and marijuana.
¶11 The second warrant was issued on October 18, 2013, to search the contents of Zocco’s smartphone for evidence of homicide, mutilating or hiding a corpse, and drug offenses. Zocco had been arrested on October 17 with his smartphone on him. The affidavit for the October 18 search warrant reiterated the first warrant information summarized above and related the following results of the search executed pursuant to the first warrant. Police found cocaine and marijuana in Zocco’s apartment and noticed that the shower curtain in the bathroom had been ripped off and was missing. A cadaver dog detected the odor of human remains in the first-floor trash room of Zocco’s building, in the parking area about twenty-five feet from Zocco’s assigned parking space, in the 18th-floor trash chute, and at the exterior door of Zocco’s 18th-floor apartment. The cadaver dog also detected the odor of human remains in Zocco’s bathroom and laundry and on Zocco’s bed.3
¶12 The third warrant was issued on October 22, 2013, to search for evidence of representations depicting nudity, including items used to restrain a person’s arms and legs, and "[c]ameras, video recording devices, or any other device capable of capturing photo and video images, to include a detailed forensic examination of the contents within." The search warrant affidavit reiterated the information in the prior two warrant affidavits and noted evidence obtained from the prior warrants. The evidence retrieved from Zocco’s phone as a result of the second warrant included photos and one video of K.D., taken in the bedroom of Zocco’s apartment. In one photo K.D. was lying on her back naked, eyes closed, mouth open, hands bound, and apparently unconscious. Another photo depicted K.D. naked, lying face down on a bed, with her hands and feet bound. A third photo depicted K.D. in the same position with her eyes closed and mouth open, seemingly unconscious, with a hand on the back of her head pushing her face into the bed. In the video, K.D. was blindfolded and apparently unaware of being recorded, performing oral sex on a man with his hand pushing her head down.
¶13 A fourth warrant was issued on October 23, 2013, to search specific "data storage devices" seized from Zocco’s apartment for child pornography. The search warrant affidavit stated that, in executing the third warrant described above, police seized data storage devices and found on a CD a video of a prepubescent girl rubbing a dildo on her vagina, which is the basis for one of the charges in this case. It was in executing this...
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