State v. Hogan

397 Wis.2d 171

959 N.W.2d 658

2021 WI App 24

STATE of Wisconsin, Plaintiff-Respondent,

v.Markell HOGAN, Defendant-Appellant.^†

Appeal No. 2019AP2350-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: October 27, 2020

Opinion Filed: March 24, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Frederick A. Bechtold of Taylors Falls, Minnesota.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy M. Barber, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

DAVIS, J.

¶1 Ten years ago, our legislature amended the Wisconsin Rules of Evidence to align with well-established federal standards governing the admissibility of expert testimony. With a simple addition to WIS. STAT. § 907.02(1) (2017-18),¹ the legislature adopted the Daubert² reliability test and created a more rigorous "gatekeeping" role for trial courts. Whereas before, courts were required to admit expert testimony so long as it was relevant and the witness qualified, the statute now requires an additional, more rigorous, showing: the reasoning or methodology underlying the testimony must be reliable and reliably applied to the facts of the case.

¶2 This appeal requires us to apply that standard to the testimony of an expert who is qualified by experience and training (as opposed to formal education) in an emerging branch of criminology. A jury found Markell Hogan guilty of human trafficking. See WIS. STAT. § 940.302(1)(d), (2)(a) (as relevant here, it is a felony to use force, threats, fraud, or coercion to knowingly recruit, transport, or provide an individual for the purposes of a commercial sex act). His conviction followed a trial in which an expert testified about trends in human trafficking, including the methods and characteristics of traffickers and the common characteristics of their victims. Such testimony has become prevalent in human trafficking prosecutions, but no reported Wisconsin decision has addressed its admissibility. We do so here. We hold that the type of "specialized knowledge" at issue in this case may form the basis for expert testimony and that the trial court did not err in finding this expert's testimony reliable. See WIS. STAT. § 907.02(1). Accordingly, we affirm.

BACKGROUND

¶3 A 2015 criminal complaint charged Hogan, as a repeater, with human trafficking; trafficking of a child, party to the crime; and strangulation and suffocation. See WIS. STAT. §§ 940.302(2)(a), 948.051(1), 940.235(1). The charges were primarily based on statements "Cathy" and "Mary"³ made to police. Cathy, then fourteen years old, told police that she was walking down the street in Sheboygan when a "suspicious" white Cadillac pulled up next to her. The occupants, later identified as Mary and Hogan, tried to convince Cathy to get in the car with them. Cathy told police that "she had a feeling inside of her that the two individuals were going to try to traffic her"—that is, try to force her to perform sexual acts.

¶4 When police first spoke with Mary, by telephone, she took sole responsibility for the incident with Cathy. According to Mary, she was in an argument with Hogan, her boyfriend, and Hogan told her "that she was not his girlfriend." Mary "responded by saying that if she was not his girlfriend, she would find him one and ultimately called out of the car window to the young girl."

¶5 A week later, Sheboygan Police Department Detective Tamara Remington interviewed Mary in person, and Mary's story started to change. Remington saw bruises on Mary's arms and legs, a bruise on her back, and a scab on her forehead; Mary said that Hogan caused the injuries. She explained that she had met Hogan about two months earlier and that Hogan had started beating her a month after that. Mary said that Hogan was "very controlling" and that "she wanted to get away from him." She also stated that one time Hogan bent her neck so that she could not breathe; she "indicated that the incident occurred because she tried to get away." Mary told Remington that "Hogan wanted $2500.00 from her before she left because he knew he could get money because she was so beautiful and that people would pay" to have sex with her.

¶6 In a follow-up interview, Mary said that just prior to the incident with Cathy, Hogan took her to a party to meet the owner of the white Cadillac. Hogan took Mary there "specifically to offer her out for sex" with the Cadillac's owner, although they ended up not having sex. Mary explained that, on other occasions, Hogan drove her to houses to have intercourse with men, but she did not know how much she was paid for the sex acts because the customers always paid Hogan.

While Mary was having sex with these clients, Hogan would wait outside the door.

¶7 Contrary to her prior statements, Mary further explained that she did not approach Cathy voluntarily but rather did so because Hogan told her to "get that bitch." According to Mary, Hogan said of Cathy, "[S]he'll be my bitch, she'll get me money," and, "She'll do what I say, ‘cause if she don't I'll fuck her up." Hogan also told Mary that he would "bust ... in [her] shit ... right now" if she did not try to recruit Cathy. As Mary described it, Hogan wanted her to "get me a girl," but since she did not have any female friends, she "saw the first woman on the street and indicated she would get that girl." Mary stated that "she felt she had to approach" Cathy because otherwise she would have to prostitute herself.

¶8 Based on these statements and corroborating evidence, Hogan was arrested and charged with various crimes, including human trafficking; he pled not guilty and a trial date was set. Remington was expected to testify as one of the detectives in the case, but the State also moved to admit her expert testimony on the general "methods employed by people engaged in human trafficking or trafficking a child." Prior to trial, the court held a Daubert hearing to assess Remington's qualifications and the reliability and relevancy of her proffered testimony. See State v. Jones , 2018 WI 44, ¶¶29-32, 381 Wis. 2d 284, 911 N.W.2d 97 ; WIS. STAT. § 907.02(1).

¶9 At the Daubert hearing, Remington explained that she began her career in 1995 as a police officer in San Jose, California. She worked there for over ten years, including as a gang detective, and during that time participated in her first human trafficking operation. It was not until Remington moved to Sheboygan in 2005 and became a "school resource officer," however, "that the students there opened [her] eyes about human trafficking." In 2013, she began attending Wisconsin Department of Justice (DOJ) and other trainings on human trafficking. At her first conference, she met people from "agencies[, including] ... the FBI [Federal Bureau of Investigation] and Milwaukee [Police Department]," and they invited her to join the Eastern Wisconsin Federal Human Trafficking Taskforce.

¶10 Thus, since 2013, Remington has been part of a human trafficking task force consisting of state law enforcement representatives from southeastern Wisconsin; representatives from federal agencies, such as the FBI and the Department of Homeland Security (DHS); and assistant United States attorneys. The task force meets every two to three months. During the first portion of each meeting, the group hears from individuals and community organizations, such as "nonprofits, [the] Convergence Resource Center ... and citizens who work with human trafficking ... survivors." The second portion is "law enforcement only" and is devoted to "a roundtable discussing our cases, because many of them, since this is a very mobile crime ... overlap, so we're able to exchange information, discuss cases, discuss some of the trends, debriefings." Remington explained that because "[i]t's a big task force," the group is able to review "a large number" of cases.

¶11 In addition to her work with the task force, Remington continued to attend formal trainings on human trafficking, which covered topics like how to investigate trafficking and how to help survivors. In 2014, Remington herself began leading human trafficking trainings. According to her curriculum vitae, Remington has been an instructor or panelist on this topic over a hundred times, both locally and nationally; she presents mainly to law enforcement officials but also to community groups and agencies, such as the Wisconsin Department of Children and Families (DCF). In 2016, Remington also joined a DCF work group to develop a Wisconsin-specific "indicator tool" for teachers, parents, and others to identify children at high risk of being trafficked. That tool was released in 2017.

¶12 Remington testified that her experience with human trafficking has not been confined to meetings and training sessions but includes work with over eighty victims and approximately twenty suspected traffickers. She worked on additional trafficking investigations that began in her department before being turned over to federal or other state authorities. Remington further testified that she volunteers "[a] lot" at support groups for trafficking survivors run by the Convergence Resource Center, a community organization, and in this way has met "numerous survivors" of human trafficking. Finally, Remington reads relevant publications on human trafficking, including annual United States DOJ reports to Congress and information and articles published by DHS.

¶13 Remington next discussed her proposed testimony in this case. She testified that there are "some trends or commonalities" among trafficking victims and "some consistent behaviors" of traffickers. In an overview of her proffered trial testimony, Remington explained that "victims are vulnerable, high-risk individuals"—for example, they are often "runaways, juveniles with adverse behavior," or addicted to drugs. Traffickers, on the other hand, are "master manipulators" able to identify and exploit these...