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“Im finna have to go on da run smh” is obviously incriminating

State v. Mario Martinez Redmond, 2015AP657-2015AP658-CR, 5/17/16, District 1 (not recommended for publication); case activity (including briefs)

Redmond was charged and convicted of battery, disorderly conduct, and multiple counts of witness intimidation. His appeal raised various ineffective assistance of counsel and other claims. But the most interesting issue concerns Redmond’s failed motion to suppress a cryptic text message sent from his phone.

Suppression of text messages. At the suppression hearing, Officer Davis testified that when he patted down Redmond he felt something in Redmond’s pocket. He removed a cell phone and happened to see the screen lit with the message: “Im finna have to go on da run smh.” The court of appeals upheld the admissibility of this text message under the plain view doctrine

Davis’s testimony established that the text message was in plain view and that Davis had “‘prior justification’ for being in the position to discover” the message. See State v. Applewhite, 2008 WI App 138, ¶15, 314 Wis. 2d 179, 758 N.W.2d 181 (citation omitted). Davis’s testimony also indicated that he recognized the incriminating nature of the message, telling the court he saw a message “stating something to the effect that he was gonna go on the run.” The trial court found Davis credible. We accept the trial court’s findings of fact and do not resolve questions as to the weight of testimony or the credibility of witnesses. See Johnson v. Merta, 95 Wis. 2d 141, 151, 289 N.W.2d 813 (1980). Slip op. ¶35

Moreover, Redmond’s argument that the discovery of the text message was not “inadvertent” because it required a conscious interpretation of the text ignores the Wisconsin Supreme Court’s holding in State v. Guy, 172 Wis. 2d 86, 492 N.W.2d 311 (1992), which “eliminate[ed] the inadvertence requirement.” See id. at 101. The court in Guy stated “for the plain-view doctrine to apply, the evidence must be in plain view, the officer must have a lawful right of access to the object itself, and the object’s incriminating character must be immediately apparent.” Id. As stated, all of those elements are present here. The text message was properly admitted. Slip op. ¶36

Failure to investigate witnesses. The court of appeals also rejected Redmond’s claim that his trial lawyer failed to investigate 3 witnesses. The court reasoned that Redmond failed to call his trial lawyer’s attention to one witness and failed to explain how the proffered testimony by the other two witnesses would have bolstered his defense. Slip op. ¶¶24-25.

Failure to adequately object to amended information. Within hours of being subpoenaed to testify in this case, Redmond allegedly called the victim and told her to avoid her apartment and stay with her grandmother.  This information prompted the State to file an amended information adding a fourth count of witness intimidation.  Defense counsel objected, but, according to Redmond, he failed to argue that the fourth count was “wholly unrelated” to the first three counts. The court of appeals waived off this claim as meritless:

The fourth witness intimidation charge involved the same potential witness (T.P.), the same conduct (phone calls either to T.P. or about T.P.), the same motive (preventing T.P.’s testimony), and the same geographical proximity (calls were made from the House of Corrections). Based on these factors, the postconviction court noted that even if counsel had moved to dismiss the fourth charge, the trial court would have denied the motion. Counsel cannot be deemed ineffective for failing to make a meritless argument. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994).

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