OPINION and ORDER
BARBARA CRABB, District Judge
Plaintiff Dwayne Almond, a prisoner at the Green Bay Correctional Institution, is proceeding in forma pauperis on a claim that defendants Richard Heidorn, Jeananna Zwiers and William Pollard are denying him adequate treatment for his back ailments. In a September 7, 2010 order, I denied plaintiff's motions for appointment of counsel and for summary judgment. Now plaintiff has submitted a motion for reconsideration of that order as well as a motion asking for a subpoena of Amjad Safvi, the doctor who interpreted his February 25, 2010 test results. Defendants have filed their own motion for summary judgment. After considering the parties' summary judgment submissions, I will stay a ruling on defendants' motion and direct the parties to submit supplemental materials. In addition, I will deny plaintiff's motions for reconsideration and for a subpoena for Safvi.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants have filed a motion for summary judgment and both sides have submitted supporting materials. These materials include a history of plaintiff's appointments with defendant Heidorn and other medical staff at the Green Bay prison, and show that plaintiff was seen on many occasions in response to his complaints of back pain and swelling. In addition, plaintiff had several rounds of X-rays or other tests, none of which showed any identifiable problem. Generally, these undisputed facts might be enough to support the granting of defendants' motion for summary judgment because they tend to indicate that defendants were not deliberately indifferent to plaintiff's serious medical needs. However, plaintiff states in an affidavit that "the last time Plaintiff was given "ice or ibuprofen," for chronic burning pains in his lower back . . . [was] May 13, 2008." Dkt. #110. The statement raises the question whether defendants gave plaintiff appropriate treatment for his complaints of pain notwithstanding the results of his tests; defendants have not provided any evidence suggesting that plaintiff received pain medication, ice or other treatment for his pain after May 13, 2008, or any explanation for why this is so, such as a diagnosis of malingering.
It is not surprising that defendants failed to respond to this statement because plaintiff did not include the statement in his proposed findings of fact or his response to defendants' proposed findings, as required by this court's procedures to be followed on summary judgment, which plaintiff has already received. Nonetheless, plaintiff's statement cannot be overlooked, particularly because plaintiff is proceeding pro se in this action. Accordingly, I will give defendants a chance to file supplemental proposed findings of fact addressing this issue, as well as a supplemental brief if they so choose. Defendants will have until November 16, 2010 to do so.
Also, I will give plaintiff a chance to respond to defendants' supplemental filings and file a brief. Plaintiff will have until November 30, 2010 to file responsive materials. However, in doing so, plaintiff should treat his supplemental filing as a response to defendants' proposed findings of fact. This means that he should list each proposed finding set out by defendant and state whether he disputes the fact. If he does, he should say which evidentiary materials support his view of the facts.
In addition, I note that plaintiff has taken significant effort to include long quotes from the previous orders in this case in each of his filings. He should not include such quotes in his supplemental materials; all he needs to do is respond directly to the findings proposed by defendants.
Finally, this case is limited to plaintiff's back problems and related treatment. Plaintiff should not waste space discussing "groin infections" or any other ailment unrelated to his back problems.
MOTION FOR RECONSIDERATION
Plaintiff has filed a motion for reconsideration of the September 7, 2010 order denying his motions for summary judgment and for appointment of counsel. Regarding the denial of plaintiff's motion for appointment of counsel, I stated in the September 7 order that "it is difficult to gauge the complexity of this case because the court has still not received a more exhaustive history of plaintiff's medical treatment." Now, after receiving a more detailed treatment history, I am still not convinced that appointment of counsel is necessary. Therefore I will deny plaintiff's motion regarding this ruling. As outlined above, plaintiff's next task is to respond to defendants' supplemental filings concerning plaintiff's treatment for back pain after May 13, 2008. This is a task that plaintiff is capable of performing. He knows what treatment he received and has access to his medical records, so he should be able to provide this information to the court.
As for plaintiff's motion for summary judgment, that motion was denied because plaintiff fell far short of providing enough evidence to show that he was entitled to judgment as a matter of law on his claims. In his motion for reconsideration plaintiff asserts that the evidence shows otherwise, but he provides no persuasive argument that this is so. Accordingly, I will deny plaintiff's motion for reconsideration of this ruling.
Finally, I note that plaintiff asks the court to order the attorney general to file criminal charges for attempted murder against defendants for their treatment of plaintiff. This court has no authority to launch investigations into criminal wrongdoing or to ask law enforcement to initiate criminal proceedings. If plaintiff believes that defendants have been involved in criminal wrongdoing, he should write the authorities directly.
MOTION FOR SUBPOENA
Plaintiff has filed a motion to subpoena Amjad Safvi, the doctor who interpreted plaintiff's February 25, 2010 X-rays (concluding that his lumbar spine was normal but that he had a "minimal amount of air in the small bowel"). I will deny plaintiff's motion without prejudice. First, it is unlikely that this court is the proper court from which to seek a subpoena for Safvi. Under Fed.R.Civ.P. 45(a)(2)(B), a subpoena for attendance at a deposition must be issued by the court for the district in which the deposition is being held. A deposition would probably have to take place at the Green Bay Correctional Institution, meaning that the District Court for the Eastern District of Wisconsin is the proper court to ask.
Even if this were the proper court, plaintiff seems to be under the impression that the court might pay for a deposition of Safvi. If so, he is mistaken. The court is not authorized by law to pay for room rentals, court reporter costs, witness fees, mileage expenses or service fees in civil cases, even when the litigant is an indigent pro se prisoner. Before issuing a subpoena form, plaintiff would have to provide an affidavit indicating that Safvi refuses to testify voluntarily and that plaintiff is able to pay the daily witness fee ($40) and Safvi's mileage to travel to the deposition ($0.50 per mile).
ORDER
IT IS ORDERED that
1. A ruling on defendants' motion for summary judgment, dkt. #97, is STAYED pending supplemental briefing. Defendants will have until November 16, 2010 to file supplemental materials in support of their motion for summary judgment as outlined in the opinion above. Plaintiff will have until November 30, 2010 to file responsive materials.
2. Plaintiff's motion for reconsideration of the court's September 7, 2010 order denying his motions for appointment of counsel and summary judgment, dkt. #103, is DENIED.
3. Plaintiff's motion to subpoena Dr. Amjad Safvi, dkt. #95, is DENIED.
Entered this 2d day of November, 2010
on of Baldwin's sentences are not relevant to the issues on appeal, and as they are quite lengthy, we need not recite them here.
¶ 29. On June 12, 2009, Baldwin's postconviction counsel filed a notice of appeal "from the conviction entered on April 18, 2008, and the sentence entered on June 19, 2008." Thereafter, on July 20, 2009, Baldwin filed a pro se postconviction "Notice of Motion To Vacate DNA Surcharge." The trial court issued a written order denying his postconviction motion on the grounds that Baldwin was represented by counsel at the time of the filing and the court would not entertain his pro se motion when he had counsel appointed. Baldwin appeals.
STANDARD OF REVIEW
¶ 30. "Although a [trial] court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review." State v. Jensen, 2007 WI 26, ¶ 12, 299 Wis. 2d 267, 727 N.W.2d 518 (quoting Williams, 253 Wis. 2d 99, ¶ 7) (internal quotation marks and one citation omitted). On review, we accept the trial court's findings of fact unless they are clearly erroneous. State v. Jackson, 216 Wis. 2d 646, 655, 575 N.W.2d 475 (1998).
¶ 31. A trial court properly exercises its discretion when the record shows it" `examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.'" State v. Jenkins, 2007 WI 96, ¶ 30, 303 Wis. 2d 157, 736 N.W.2d 24 (citation omitted).
DISCUSSION
I. Forfeiture by Misconduct
¶ 32. Baldwin argues that the trial court violated the Confrontation Clause of the United States Constitution when it admitted into evidence at trial R.Z.'s hearsay statements to police officers about what Baldwin did to her. Specifically, Baldwin argues that the trial court erred in admitting the hearsay under the forfeiture by wrongdoing doctrine because the record fails to support the trial court's unavailability finding and the trial court relied on the forfeiture by wrongdoing test adopted by the Wisconsin Supreme Court in Jensen, which has now been superseded by Giles.
¶ 33. The State counters that the trial court properly found R.Z. unavailable and that the record shows that the trial court's finding of forfeiture by wrongdoing comports with the recently adopted test from the United States Supreme Court in Giles. We agree with the State and affirm.
A. Baldwin's "Bad Law" Argument
¶ 34. The forfeiture by wrongdoing doctrine is an exception to the Sixth Amendment's Confrontation Clause. Id., 128 S. Ct. at 2682-83. Although the Confrontation Clause gives defendants the right to cross-examine the witnesses who give testimony against them, the United States Supreme Court has found exceptions to this general rule. Id. One of those exceptions recognized at common law was forfeiture by wrongdoing, which "permitted the introduction of statements of a [declarant] who was `detained' or `kept away' by the `means or procurement' of the defendant." Id. at 2683 (citations omitted).
"The Sixth Amendment provides that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 2687 (2008) (alterations in Giles).
¶ 35. The forfeiture by wrongdoing doctrine is based on equitable grounds, not alternative reliability grounds. Jensen, 299 Wis. 2d 267, ¶ 37 (citing Reynolds v. United States, 98 U.S. 145, 158-59 (1878)). The doctrine arises out of public policy against permitting a defendant to profit from his own wrongdoing. United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976). ("To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the [Confrontation [C]lause.").
¶ 36. In 1997, FED. R. EVID. 804(b)(6) was created, codifying the common law doctrine of forfeiture by wrongdoing. Giles, 128 S. Ct. at 2687. The rule created an exception to the general prohibition against hearsay if a court found a declarant to be unavailable because the party against whom the statement was offered "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." RULE 804(b)(6).
¶ 37. Wisconsin has no similar evidentiary rule, and it was not until Jensen, which was decided on February 23, 2007, that the Wisconsin Supreme Court first adopted the doctrine of forfeiture by wrongdoing. See id., 299 Wis. 2d 267, ¶ 52 ("In other words, after `[n]oting the broad embrace of the doctrine' by courts nationwide and `recognizing the compelling public policy interests behind its enactment,' we elect to adopt the forfeiture by wrongdoing doctrine in Wisconsin.") (brackets in Jensen; citation omitted). In doing so, the Wisconsin Supreme Court adopted the broader of two views of the doctrine: "if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant." Id., 57.
¶ 38. Giles was not decided until June 25, 2008, sixteen months after Jensen. In Giles, the United States Supreme Court interpreted past precedent to permit only those hearsay exceptions to the Confrontation Clause that were established at the time of the founding of the country. See id., 128 S. Ct. at 2682 ("[T]he Confrontation Clause is `most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.'") (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)). The Court acknowledged that the forfeiture by wrongdoing doctrine was in existence at the time of the founding, but concluded that at that time it "applied only when the defendant engaged in conduct designed to prevent the witness from testifying." Id. at 2683. Additionally, the Court in Giles noted that all interpreters of FED. R. EVID. 804(b)(6) had concluded that the exception only applied when the defendant intended to prevent the witness from testifying. See Giles, 128 S. Ct. at 2687 ("Every commentator we are aware of has concluded the requirement of intent [in RULE 804(b)(6)] `means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.'") (citations omitted).
¶ 39. Therefore, the Court in Giles held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. See id. at 2684-86. In doing so, the Court reaffirmed the doctrine's viability generally, but chose the narrower view of its scope. See id. This narrower view was the one advanced by Justice Louis Butler's dissent in Jensen. See id., 299 Wis. 2d 267, ¶¶ 84-97 (Butler, J., concurring in part, dissenting in part).
¶ 40. The holding in Giles did not explicitly dictate the method by which the State must prove the defendant's intent to prevent the declarant from appearing and testifying. However, the majority addressed the issue when responding to the dissent's concern that the majority's narrow view of the doctrine could negatively impact domestic violence cases. Significantly, the majority noted that evidence of past abuse or threats was "highly relevant" to the proof of the defendant's intent to prevent the victim from testifying, especially if there were ongoing proceedings at which the victim would be expected to testify:
Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
Id., 128 S. Ct. at 2693.
¶ 41. Here, the trial court ruled that the State had met its burden of proving forfeiture by wrongdoing by a preponderance of the evidence because it demonstrated that "the defendant, Scottie Baldwin, has intimidated the State's witness, R[.]Z[.], from attending court to testify against him at trial." (Emphasis added.) At the time of the trial court's ruling, Giles had not been decided and Jensen, with its broader view of the forfeiture by wrongdoing doctrine, required only that the defendant prevent the witness from appearing. Despite Jensen's broader interpretation of the doctrine, in a prescient decision, the trial court went beyond finding that Baldwin's actions satisfied that more lenient holding in Jensen and found that Baldwin's actions satisfied the yet-to-be-decided Giles holding. Whether the trial court was aware of the dissent in Jensen, or whether the trial court acted on its own judicial instincts, the trial court made the correct legal finding, namely, that Baldwin's intent was to prevent R.Z. from testifying at trial.
¶ 42. In his reply brief, Baldwin concedes that the trial court made the correct legal finding when he failed to respond to the State's assertion that the trial court made the correct finding. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (arguments not refuted are deemed conceded). Rather, Baldwin argues for the first time in his reply brief that the trial court erred because "all of the evidence presented to the trial court concerned prior acts of intimidation." In other words, Baldwin claims for the first time in his reply brief that his past behavior and successful attempts to prevent R.Z. from testifying at prior hearings are insufficient proof that Baldwin intimidated R.Z. and prevented her from testifying on April 14, 2008.
¶ 43. Baldwin's argument fails for two reasons. First, the trial court properly found that Baldwin intended to prohibit R.Z. from testifying on April 14, 2008, stating: "This court finds, by a preponderance of the evidence, that the defendant, Scottie Baldwin, has in timidated the State's witness, R[.]Z[.] from attending court to testify against him at trial."
¶ 44. Second, as noted in Giles, Baldwin's past physical violence and threats to R.Z. are "highly relevant" to a finding of wrongdoing by forfeiture, even if alone such evidence is not sufficient proof of his present intent. Giles, 128 S. Ct. at 2693. Giles stated that prior acts, particularly in the domestic violence context, are "highly relevant", to the question of whether the defendant's intent was to prevent the witness from appearing and testifying. Id. The record here shows many examples of highly relevant past physical violence and threats. Most notably, the trial court had already found, following the August 2 and 3, 2007 preliminary hearing in Case No. 2007CF3514, that Baldwin had previously intimidated R.Z. from appearing and testifying in an earlier case. The trial court's decision at that time was based on the testimony of Deputy Urban and Garcia, and the exhibits entered into evidence, including the card Baldwin sent R.Z. from jail directing her not to appear or testify. That instance of intimidation was not remote and, in fact, the charges in that case were still before the court.
¶ 45. Finally, with regard to the trial court's forfeiture by wrongdoing finding, we note that Baldwin does not challenge the sufficiency of the record to support the trial court's factual findings that he intimidated R.Z., preventing her from appearing to testify at trial. Indeed, Baldwin could not challenge the sufficiency of the evidence because the jury subsequently found Baldwin guilty, beyond a reasonable doubt, of three counts of intimidating R.Z. based on that same evidence. The jury's findings confirm the trial court's earlier finding of intimidation by a preponderance of the evidence. See State v. Rodriguez, 2007 WI App 252, ¶ 19, 306 Wis. 2d 129, 743 N.W.2d 460.
B. Unavailability
¶ 46. Baldwin also argues that the trial court's finding that R.Z. was unavailable on April 14, 2008, the first day of trial, was an erroneous exercise of discretion because the State did not do enough to return R.Z. on the body attachment that was issued early that morning. Baldwin argues that the trial court erred in not requiring the State to provide proof of its attempts to locate R.Z. on the body attachment.
¶ 47. Baldwin fails to cite any authority in support of his argument that a finding of unavailability requires the State to prove the extent of its attempts to serve a body attachment. We need not consider unsupported arguments. Kruczek v. DWD, 2005 WI App 12, ¶ 32, 278 Wis. 2d 563, 692 N.W.2d 286.
¶ 48. Nonetheless, we note that the record supports the trial court's unavailability finding. WISCONSIN STAT. § 908.04(1)(e) requires the proponent of a witness to secure the witness's appearance" `by process or other reasonable means.'" Williams, 253 Wis. 2d 99, 1 62. The proponent must make a "`good-faith effort'" and exercise "`due diligence'" to secure the witness's presence. Id.
¶ 49. Here, the trial court properly found that the State had met its burden of showing that R.Z. was unavailable under WIS. STAT. § 908.04 and that the State exercised due diligence and good faith in attempting to secure her presence. See Williams, 253 Wis. 2d 99, 1 62. The trial court stated:
THE COURT: The State has provided me with a subpoena that demonstrates that R[.]Z[.] was served with a copy of the subpoena on April 14th — excuse me — on March 31[], 2008, at 2:16 p.m. requiring her attendance in court today, April 14th, at 8:30 in the witness waiting room of the courthouse. This case was called earlier today, and R[.]Z[.] had not appeared, and I take it the State double-checked that she was not in the waiting area; is that correct?
[STATE]: Yes, Judge.
THE COURT: And I issued a body attachment. I don't recall, exactly, what time that was. It took some time to bring the defendant over from court staging. I'm just guessing maybe around 9:30 or so. It was signed by the court, but I'm just guessing sometime this morning it was signed by the Court. And — and the State has sent out officers looking for Ms. Z[.], and she is not in court.
I believe, based upon the State's attempts, they have made a good faith attempt to secure her appearance in court on today's date, and R[.]Z[.] is not here.
¶ 50. In addition to successfully serving R.Z. with process for the trial, the record shows that the State successfully served R.Z. with process two previous times — on June 21, 2007 and January 7, 2008 — and once in 2005. Each time, R.Z. failed to appear. Despite R.Z.'s past failures to appear, the State served her again, and on the morning of the jury trial, April 14, 2008, the State obtained a body attachment and again unsuccessfully attempted to return R.Z. to court. Based on the above record, the trial court found that the State had exercised due diligence and made a good faith effort to produce R.Z. for trial, but that despite that effort R.Z. was unavailable. See La Barge v. State, 74 Wis. 2d 327, 336-39, 246 N.W.2d 794 (1976) (issuance of subpoena and arrest warrant for witness is sufficient to show State's due diligence to secure witness's presence).
¶ 51. Accordingly, we conclude that the record shows that the trial court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.1" See Jenkins, 303 Wis. 2d 157, ¶ 30 (citations omitted). Therefore, we affirm the admission of R.Z.'s hearsay statements under the forfeiture by wrongdoing doctrine.
II. Authentication of Telephone Recordings
¶ 52. Next, we address the admissibility of the telephone recordings. Baldwin argues that the telephone recordings were not properly authenticated under WIS. STAT. § 909.015 because the State failed to follow the enumerated methods of authentication listed in the statute, and as a result, the State failed to prove that Baldwin made the calls and that R.Z. received them. The State points out that the examples of methods of authentication set forth in § 909.015 are merely illustrative and that the telephone recordings were properly authenticated by both direct and circumstantial evidence.
Baldwin does not dispute the accuracy of the telephone recording transcripts.
¶ 53. The trial court found that the telephone recordings were properly authenticated because the State had sufficiently identified Baldwin as the caller and R.Z. as the recipient of the calls, by presenting: (1) the testimony of a lay witness (Garcia) who identified the voice of the recipient of the calls as belonging to R.Z.; (2) Milwaukee County Jail records identifying the specific pods in the jail from which the calls were made as the same pods that Baldwin was assigned to and identifying the times the calls were made as times when Baldwin was there; and (3) the details in the telephone calls themselves, which demonstrated knowledge familiar only to Baldwin and R.Z. We agree and affirm.
¶ 54. WISCONSIN STAT. ch. 909 sets forth the rules on authentication. WISCONSIN STAT. § 909.01 provides: " General provision. The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In other words, as applied here, § 909.01 provides that the trial court, as gatekeeper, must exercise its discretion to determine whether the evidence is sufficient to prove that Baldwin made the calls to R.Z.
¶ 55. WISCONSIN STAT. § 909.015 lists examples of ways to authenticate, but expressly states that it is not an exhaustive or exclusive list. Id. ("By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of s. 909.01[.]"). Indeed, telephone calls can be authenticated by circumstantial evidence. See Campbell v. Wilson, 18 Wis. 2d 22, 30 n. 1, 117 N.W.2d 620 (1962).
¶ 56. We conclude that the record identifies Baldwin as the caller and R.Z. as the recipient of the telephone calls through both direct and circumstantial evidence. First, Garcia testified at the August 2 and 3, 2007 preliminary hearing that R.Z. gave Garcia her telephone number, (414) 588-4372, and asked Garcia to call her. Garcia testified that she called R.Z. at that number and spoke to her on the telephone seven or eight times and heard Garcia's voice once in person. Based on that contact, Garcia identified R.Z's voice on the telephone recordings made from the Milwaukee County Jail. This is one of the authentication methods illustrated in WIS. STAT. § 909.015(5). ('VOICE IDENTIFICATION. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker").
¶ 57. Additionally, Deputy Urban testified at the preliminary hearing that Milwaukee County Jail records, admitted into the record, revealed several telephone calls made to (414) 588-4372, R.Z.'s phone number, from the pod that Baldwin was housed in during the time he was in jail, providing circumstantial evidence that Baldwin was the caller. Further, in one of the recordings, a three-way call to Baldwin's attorney, Baldwin identified himself as the caller, leaving a message for his attorney saying that "Mr. Baldwin" called. This is a variant on a method of authentication listed in the statute. See WIS. STAT. § 909.015(6)(a) ("TELEPHONE CONVERSATIONS . . . circumstances, including self-identification.).
¶ 58. Finally, the telephone transcripts reveal that the caller and receiver in the recordings spoke about details surrounding Baldwin's cases that would be familiar only to Baldwin and R.Z. We note that Baldwin conceded before the trial court that the transcripts accurately reflected the content of the telephone calls. Sometimes the caller mentions, in reference to Baldwin's cases: various court dates, the prosecutor's name, the judge's name, the existence of the body attachment for R.Z., instructions to the recipient on what to tell the court about not testifying, instructions on how to send a notarized recant letter to the court, the particulars of which charges were dropped that day, defense counsel's name, Baldwin's bail amount, and the amendments to the charges. In one call, the caller tells the recipient that she should name their son, "Knowledge Pablo Baldwin." In short, the details of the telephone calls add additional and substantial circumstantial evidence that identifies Baldwin as the caller and R.Z. as the recipient of the calls. Thus, we conclude that the record supports the authentication of the telephone recordings. Accordingly, we affirm the trial court.
III. DNA surcharge
¶ 59. Finally, Baldwin appeals the trial court's imposition of the DNA surcharge on the grounds that the trial court erroneously exercised its discretion under Cherry because it did not adequately explain its reasons for imposing the surcharge. The State argues that this court lacks jurisdiction over the issue because Baldwin failed to file a notice of appeal from the trial court's order denying his postconviction motion. We agree.
¶ 60. On June 12, 2009, Baldwin, through his postconviction counsel, filed a notice of appeal "from the conviction entered on April 18, 2008, and the sentence entered on June 19, 2008." On July 20, 2009, although still represented by counsel, Baldwin filed a pro se postconviction motion, asking the court to vacate the DNA surcharge on Cherry grounds. Relying on Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978), the trial court denied the motion in a written order entered on July 31, 2009, on the grounds that the motion was filed pro se and Baldwin was represented by counsel. See State v. Wanta, 224 Wis. 2d 679, 699, 592 N.W.2d 645 (Ct. App. 1999) ("[T]he [trial] court did not erroneously exercise its discretion by deciding not to consider [the defendant]'s pro se objection because he was represented in the proceedings by counsel.") (citing Moore, 83 Wis. 2d at 301-02). Baldwin never subsequently filed a notice of appeal from the trial court's order denying his postconviction Cherry motion.
¶ 61. WISCONSIN STAT. § 809.10(1) provides that an appeal is initiated by the filing of a notice of appeal from the "judgment or order appealed from." Pursuant to WIS. STAT. § 809.10(4), the notice of appeal "brings before the court all prior nonfinal judgments, orders and rulings adverse to — the appellant." (Emphasis added.) The notice of appeal must sufficiently identify the order being appealed from. See State v. Avery, 80 Wis. 2d 305, 309, 259 N.W.2d 63 (1977). Baldwin never filed a notice of appeal that identified the order denying his Cherry motion as the subject of his appeal. Baldwin admits that the notice of appeal his attorney filed in June 2009 identified only the judgment of conviction and sentence as the judgment and order appealed from. The notice of appeal did not mention Baldwin's Cherry motion, nor could it because Baldwin had not filed it yet. Consequently, we lack jurisdiction to consider the order under §§ 809.10(1), (4).
Although WIS. STAT. § 809.10(4) provides that "[a]n appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant," (emphasis added), by exclusion, it does not bring before the appellate court orders filed after the judgment or order appealed from is entered.
We note that although Baldwin does not argue that his notice of appeal is sufficient under WIS. STAT. § 808.04(8), we address that statute also for completeness of our analysis. Section 808.04(8) provides an exception to WIS. STAT. § 809.10(4) and permits a notice of appeal to bring before the appellate court a judgment or order filed after the notice of appeal, but only when: (1) the party "sufficiently identified" the order being appealed from; and (2) the order had been made but not entered yet. See Mayek v. Cloverleaf Lakes Sanitary Dist. #1, 2000 WI App 182, ¶ 18, 238 Wis. 2d 261, 617 N.W.2d 235. Neither of those conditions occurred here. Accordingly, § 808.04(8) fails to convey jurisdiction of Baldwin's Cherry motion.
¶ 62. Baldwin inaccurately states in his reply brief that he was unable to file a notice of appeal from the trial court's order denying his pro se postconviction motion because "there was no order of the court made which could be appealed." Baldwin is incorrect. Our review of the record reveals that the trial court issued a written order, on July 31, 2009, denying Baldwin's pro se postconviction motion to vacate the DNA surcharge. Because neither Baldwin, proceeding pro se, nor his postconviction counsel filed a notice of appeal from the trial court's July 31, 2009 order, this court lacks jurisdiction over his appeal of the surcharge. By the Court. — Judgments affirmed.
While we resolve this issue by concluding that we lack jurisdiction to review the DNA surcharge, we also note that Baldwin never raised this issue in the trial court at sentencing. Although Baldwin correctly notes that his trial counsel told the court at sentencing: "Judge, I believe that the defendant has already given a DNA sample in the past," counsel objected to giving a second sample. He did not object to the imposition of the surcharge on Cherry grounds.