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Consent to Search – Scope – Trial Court Findings

State v. Timothy D. Moseley, 2011AP892-CR, District 1, 5/1/12 

court of appeals decision (not recommended for publication); for Moseley: Michael J. Steinle; case activity

Moseley’s contention, that he qualified his written consent to search with an oral limitation, was rejected by the trial court as a matter of credibility; that finding of fact is now affirmed:

¶18      The trial court is in the best position to judge the credibility of witnesses.  See State v. Angiolo, 186 Wis. 2d 488, 495, 520 N.W.2d 923 (Ct. App. 1994).  When witness testimony conflicts, “the trial court is the ultimate arbiter of the credibility of witnesses.”  See id. We review determinations of credibility with deference.  See Huehne v. Huehne, 175 Wis. 2d 33, 43, 498 N.W.2d 870 (Ct. App. 1993).  Upon reviewing the evidence in the record, we conclude that the trial court’s factual findings were not clearly erroneous.  The officers’ testimony, together with Moseley’s admission that he signed the consent form, amply supports the trial court’s findings.

¶19      Because the evidence supports the conclusions that Moseley did not limit his consent, did not withdraw his consent at any time, and that the signed consent form was not obtained as a result of police misconduct, the motions to suppress the evidence obtained in the search were properly denied.

Shiffra-Green Procedure – Review of Trial Court denial of in Camera Review 

Charged with taking nude photos without consentUnder the circumstances, Moseley wasn’t entitled to Shiffra in camera review of the complainant’s therapy records on his assertion that she suffered from memory lapse:

¶24      We conclude that Moseley did not meet the burden required for an in camera inspection.  Under Shiffra and Green, Moseley was required to establish a specific factual basis demonstrating a reasonable likelihood that information in T.H.’s counseling records would be relevant to a determination of his guilt or innocence.  See Green, 253 Wis. 2d 356, ¶34.  T.H. demonstrated to the jury herself that perhaps she did suffer from memory lapses by answering many questions with “I don’t recall.”  What the counseling records would have added to the demonstrated memory lapses, that was not merely cumulative, Moseley does not explain.  Moseley has not shown that additional evidence of memory lapses—which he alleged would be found in the counseling records—was anything more than cumulative of what was demonstrated clearly to the jury during T.H.’s testimony.

¶25      With regard to T.H.’s conversations with her therapist, which Moseley claims would have shown that the two had a consensual, rather than a forced, sexual relationship, the trial court correctly stated that such information was unrelated to the charges and was unnecessary to impeach T.H.  Moseley’s defense was that he and T.H. had an ongoing consensual sexual relationship.  He claimed that a review of her counseling records would impeach T.H.’s credibility.  However, the “mere assertion … that … sexual assault was discussed during counseling and that the counseling records may contain statements that are inconsistent with other reports is insufficient to compel an in camera review.” Id., ¶37 (emphasis added).

Judicial Bias – Comments Made During Trial 

Comments made by the trial court during trial in response to counsel’s examination of a witness (“Let’s do this the humane way”) and referring to witnesses as “victims” did not amount to disqualifying judicial bias:

¶32      Our review of the record persuades us that Moseley has not overcome the presumption that the trial court was impartial.  First, the record demonstrates that in denying Moseley’s motion for a mistrial, the trial court subjectively determined that it was not biased.  This determination is binding.  See State v. McBride, 187 Wis. 2d 409, 415, 523 N.W.2d 106 (Ct. App. 1994).  Second, the record reflects the trial court’s concern with the way in which the “general legal process” involving the answering of sensitive questions was affecting T.H and does not reflect objective bias.  The trial court’s comments to defense counsel were a result of defense counsel’s aggressive questioning. “‘[E]xpressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as … judges, sometimes [are] display[ed].’”  State v. Pirtle, 2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492 (citation omitted).

¶33      Finally, the trial court’s references to T.H. and M.K. as victims, in the context of this record, do not demonstrate trial court bias. …

¶34      With regard to the first comment, we note that the jury could not have been influenced by a comment it did not hear.  With regard to the second comment, an examination of the entire record shows that the comments were, in context, de minimis.  The trial court’s comment was made in the context of discussing the courtroom’s acoustics, as the trial court was instructing the attorneys to speak close to their microphones.  Doing so, the trial court stated, would allow those who had come to closing arguments to hear properly.

¶35      Further, the trial court clearly instructed the jurors to “disregard any … impression” of “[its] opinion as to whether … Mr. Moseley is guilty or not guilty.”  “Juries are presumed to follow the court’s instructions.”  State v. Delgado, 2002 WI App 38, ¶17, 250 Wis. 2d 689, 641 N.W.2d 490.  Moseley, therefore, has not overcome the presumption that the trial court was impartial.

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