COA: Circuit court erroneously exercised discretion in finding deceased officer’s body camera footage could not be authenticated.
State v. Billy Ray Edward Johnson, 2024AP1135, 12/2/25, District I (ineligible for publication); case activity
COA reverses order denying State’s motion to admit body camera footage compiled by a deceased police officer.
A Milwaukee police officer stopped Billy Ray Edward Johnson for speeding, which resulted in charges for operating a motor vehicle while intoxicated as a second offense, operating with a prohibited alcohol concentration as a second offense, operating a motor vehicle while revoked, and failing to install an ignition interlock device. (¶ 2).
The arresting officer died before Johnson’s trial. The State moved to admit the first four minutes of the officer’s body camera footage, which showed Johnson driving the vehicle. Johnson objected and argued that the State could not authenticate the first four minutes of the video because no other officer personally observed the events depicted. The State argued that a second officer arrived on scene five minutes after the arresting officer and could authenticate the last 35 minutes of the deceased officer’s body camera footage. (¶ 4). The State also submitted an affidavit from an MPD field technology officer, who explained that police cannot edit or alter a recording once it has been made and that he viewed the entire video and there was no evidence it was altered. (¶ 4).
The circuit court denied the State’s motion to admit the video footage because the second officer could not authenticate the first five minutes. The circuit court found that Wis. Stat. 909.01, which states that authentication requires “evidence sufficient to support a finding that the matter in question is what its proponent claims,” is not met through circumstantial evidence. (¶ 6). The circuit court compared the video to an array of still photographs, which it determined would need to be authenticated by each person who took the pictures. (¶ 6). And even if the video could be authenticated, the circuit court concluded, Johnson would be denied his right to confrontation if it was admitted. (¶ 6). The circuit court then granted Johnson’s motion to dismiss because the video was the only evidence that he drove a vehicle, from which the State appealed. (¶ 7).
The COA determined the circuit court erroneously exercised its discretion because its decision “was based on its incorrect belief that [the deceased officer’s] testimony would be the only way to authenticate the footage.” (¶ 18). The circuit court did not address Wis. Stat. § 909.015(4), which permits authentication by distinctive characteristics, and that authentication “can be done through circumstantial evidence.” (¶ 14) (citing Giacomantonio). The COA considered that the deceased officer’s footage could be authenticated by the MPD field technology officer, who “detailed the ways in which body camera footage is captured, collected, and stored by the MPD”; and by the second officer to arrive on the scene, who also recorded body camera footage and could have authenticated that the arresting officer’s footage was consistent with his own. (¶ 18). Instead, the circuit court proceeded on “the mistaken belief that only [the deceased officer’s] testimony could serve to authenticate it. In doing so, the court applied the wrong standard of law to its decision and erroneously exercised its discretion.” (¶ 18). The court remanded the case to allow the circuit court to apply the proper legal standard.
Regarding the Confrontation Clause, the COA noted that Johnson’s objection in the circuit court to admitting the body camera footage “made no more than a conclusory statement as to the Confrontation Clause,” and there was no “meaningful analysis” by the circuit court regarding the issue, so the COA declined to address it. However, the COA advised Johnson that he could raise confrontation on remand if it is adequately developed. (¶ 22).