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COURT OF APPEALS DECISION DATED AND RELEASED July 9, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0623
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE INTEREST OF TY
J. L.,
A PERSON UNDER THE AGE
OF
EIGHTEEN:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
TY J. L.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Outagamie County:
DEE R. DYER, Judge. Affirmed.
MYSE, J. Ty J. L. appeals an
order waiving juvenile jurisdiction over him.[1] Ty contends that the circuit court erred
by: (1) concluding that the State
complied with the time limits of a local court rule and that alternatively the
local court rule was not mandatory and its violation did not deprive the court
of jurisdiction; (2) concluding that there was prosecutive merit for the charge
of aiding a felon; (3) waiving him into adult court; and (4) refusing to permit
the defense access to certain police reports and by refusing to grant a motion
in limine excluding certain evidence.
This court rejects Ty's arguments and affirms the order.
On May 11, 1995, three
youths were found dead in a car in Plamann Park in Outagamie County. Thereafter, the body of Germaine G. was
discovered in Langlade County.
Authorities began an investigation into the deaths and the roles of two
other juveniles, Jonathan K. and Derek B., in planning Germaine's death and concealing
his body.
The police questioned Ty
on several occasions beginning on May 12.
Ty also testified at a John Doe hearing on May 16. Ty had grown up in a home which adjoined
Derek's backyard and had been a good friend with one of the deceased youths. The police asked Ty whether he gave a gun to
Derek, when the gun was transferred, whether Ty recognized the gun as the
weapon recovered from the Plamann Park scene, when he had learned that the
three boys in Plamann Park had been involved in Germaine's death, and from whom
he had received this information. The
police did not conduct any interviews with Ty after August 3, 1995.
On November 28, 1995,
the police referred Ty's case to juvenile intake. Ty attended an intake conference with his parents and attorney
and met at length with the intake worker, who recommended a consent decree
containing certain terms. The district
attorney, however, rejected the intake worker's recommendation and filed a
petition for delinquency alleging that Ty possessed a firearm, intentionally
gave a firearm to a child, and aided a felon.
The district attorney later filed another delinquency petition charging
Ty with two counts of perjury and a petition requesting that the circuit court
waive juvenile jurisdiction over Ty.
The circuit court held a
hearing on the waiver petition on February 15, 1996. At the hearing, the circuit court denied Ty's motion to dismiss
that alleged the State had failed to follow local court rules. The circuit court dismissed the petition on
the two perjury counts because it lacked prosecutive merit. The circuit court, however, found
prosecutive merit for the counts of possession of a firearm, transferring a
firearm and aiding a felon, and waived juvenile jurisdiction over Ty.
LOCAL COURT RULE
First, Ty contends that
the State violated a local court rule and therefore the court was required to
dismiss the petition. The local court
rule provides in relevant part:
In Outagamie County, Juvenile Court
Intake, which deals with 48.12, 48.125, and 48.13(4)[,] (6) [and] (7), is
attached to the Circuit Court Children's Division. Law enforcement officers may make referrals to Juvenile Court
Intake using the following procedure:
1. Police are allowed 14 calendar days from
completion of investigation until receipt of referral by Intake. The Intake Worker shall dismiss any
referrals received past this 14 day limit.
Ty
contends that the police violated the fourteen-day limit to refer the case to
intake after completion of the investigation.
The circuit court concluded:
With
regard to the local courtroom violation, if any, first of all, it appears that
certainly it happens on many occasions that charges are not brought until the
John Doe proceeding is concluded. It
appears from the statements made by counsel here today, that the John Doe
proceedings were not concluded until November 22nd, therefore a referral on
November 28th may well, and certainly looks like appears to comply with the
local court rules.
Generally, the party
asserting the claim, in this case Ty, must make a prima facie showing of a rule
violation. See In re
Kywanda F., 200 Wis.2d 26, 38-39, 546 N.W.2d 440, 446-47 (1996); Joint
School Dist. No. 1 v. Wisconsin Rapids Educ. Ass'n, 70 Wis.2d 292, 321,
234 N.W.2d 289, 305 (1975). Ty relies
on his claim that all the facts necessary for filing the petition or referring
the case to juvenile intake were in the hands of police before August 3, 1995,
the day of the last contact between Ty and the police. However, the fact that the police had sufficient
facts to refer the case to intake does not mean the investigation was
complete. Additional investigation
could have led to evidence of Ty's further involvement in the deaths of the
other juveniles. The police are
entitled to investigate the matter thoroughly to explore the circumstances with
which the juvenile could have been involved before referring the case to
intake. Otherwise, the police would be
required to refer the case to intake immediately and continue forwarding new
information to intake as it was gathered.
Because new information would likely affect the intake worker's
decision, the police are entitled to do a thorough investigation before
referring the case to intake.
The fact that the
investigation disclosed no other evidence of Ty's involvement is not a basis to
conclude the investigation was complete earlier. With the benefit of hindsight, it now appears the police were
unable to discover evidence that would implicate Ty with the events in Langlade
County or Plamann Park. Nonetheless, it
was reasonable for the police to investigate the entire case including the
deaths before determining whether Ty was involved more deeply than the initial
investigation disclosed.
Further, the circuit
court made a finding of fact that the John Doe hearing concluded on November
22. This court reviews the circuit
court's findings of fact under a clearly erroneous standard. Section 805.17(2), Stats. Because Ty's
counsel did not object to the district attorney's statement regarding the date
the John Doe hearing was concluded and no contrary evidence was introduced, the
circuit court's finding was not clearly erroneous. The referral to intake was within fourteen days of the conclusion
of the John Doe hearing. Ty does not
demonstrate that it was unreasonable for the police to conduct a comprehensive
investigation into the juveniles' deaths and Ty's involvement. This court therefore concludes that Ty
failed to make a prima facie showing that the State violated the local court
rule.
Further, the circuit
court has inherent discretion to waive local court rules that have been adopted
based on its power to control and administer the processing of the cases before
them. See Kotecki & Radtke,
S.C. v. Johnson, 192 Wis.2d 429, 446-47, 531 N.W.2d 606, 613 (Ct. App.
1995). The circuit court concluded that
the local rule was archaic and noted major revisions to the juvenile law since
its adoption. The circuit court, later
in its waiver decision, also stated that its waiver decision would have been
the same even if the case had been referred to juvenile intake earlier. These considerations were sufficient for the
circuit court, in its discretion, to waive the local court rule in this case.
Ty contends, however,
that the circuit court's failure to enforce the local court rule deprived him
of due process. This court
disagrees. Because the local court rule
is not mandatory and the circuit court had discretion to waive it, Ty has no
protected interest in its enforcement.
Therefore, Ty was not deprived of due process by the circuit court's
failure to enforce the local court rule.
See Greenholtz v. Inmates of Neb. Penal & Correctional
Complex, 442 U.S. 1, 7 (1979).
PROSECUTIVE MERIT
Next, Ty contends that
the circuit court erred by concluding that there was prosecutive merit for the
charge of aiding a felon. Whether
charges brought against a juvenile have prosecutive merit is a question of law. See In re P.A.K., 119 Wis.2d
871, 876, 350 N.W.2d 677, 680-81 (1984).
This court reviews questions of law without deference to the circuit
court. Id. at 876, 350
N.W.2d at 680.
Before determining
whether to waive juvenile jurisdiction, the circuit court must first determine
whether the matter has prosecutive merit.
Section 48.18(4), Stats. A finding of prosecutive merit is
functionally equivalent to a finding of probable cause in a preliminary
hearing. In re T.R.B. 109
Wis.2d 179, 190, 325 N.W.2d 329, 334 (1982).
Accordingly, the resolution of competing facts and inferences are to be
resolved at trial, not at the waiver hearing.
See State v. Dunn, 121 Wis.2d 389, 397-98, 359
N.W.2d 151, 155 (1984). The circuit
court must satisfy itself that the record establishes to a reasonable probability
that the alleged violation of the criminal law has been committed and the
juvenile has probably committed it. T.R.B.,
109 Wis.2d at 192, 325 N.W.2d at 335.
The circuit court may find prosecutive merit on the basis of the
delinquency and waiver petitions alone.
P.A.K., 119 Wis.2d at 876-77, 350 N.W.2d at 681. This court will search the record for any
substantial ground based on competent evidence to support the circuit court's
determination of prosecutive merit. See
State v. Koch, 175 Wis.2d 684, 704, 499 N.W.2d 152, 162 (1993).
The charge of aiding a
felon under § 946.47, Stats.,
requires the State to show that Ty aided a felon with intent to prevent the
apprehension of the felon. The relevant
portion of the delinquency petition provides as follows:
[Jonathan
K.] stated that Derek had told Ty L. what had happened about Jazz's
[Germaine's] death and the disposal of the body and Derek made the comment,
"We're going to have to stick together on this." [Jonathan K.] said that Derek and Ty helped
him make up an alibi for [Jonathan K.'s] activities during the time that
Germaine [G.'s] body was disposed of in Langlade County. [Jonathan K.] explained that some of the
discussions with [Derek B.] and [Ty L.] continued to the next day, Friday, May
12, 1995. ... He stated that as the three of them were driving around, Derek
practiced asking him questions in preparation for a potential police
interview. ... [Jonathan K.] stated that he still didn't
have a story down yet, so Ty [L.] drove them around some more so Ty could
practice the story with him.
This court concludes
that the petition contains sufficient inferences that Ty probably committed the
offense of aiding a felon. According to
the petition, Ty was told about Germaine's death and the disposal of his body,
in which Derek and Jonathan were involved.
Ty helped Jonathan make up an alibi and practiced the story with
Jonathan. This supports the inference
that Ty knew that Jonathan committed a crime and intentionally aided Jonathan
to prevent his apprehension. Therefore,
this court concludes that there was prosecutive merit for the charge of
participating in concealing a felony.
WAIVER DECISION
Next, Ty challenges the
circuit court's waiver of juvenile jurisdiction. The decision whether to waive juvenile jurisdiction is addressed
to the sound discretion of the circuit court.
In re J.A.L., 162 Wis.2d 940, 960, 471 N.W.2d 493, 501
(1991). The circuit court's decision
must be based on the criteria listed in § 48.18(5), Stats., and the court must set forth in
the record specific findings with respect to the criteria. In re C.D.M., 125 Wis.2d 170,
176, 370 N.W.2d 287, 290 (Ct. App. 1985).
However, the circuit court has discretion as to the weight it affords
each of the criteria, and it is not required to find against the juvenile with
respect to each of the criteria before waiver is warranted. In re B.B., 166 Wis.2d 202,
209-10, 479 N.W.2d 205, 207-08 (Ct. App. 1991). On review, this court looks to whether the record reflects a
reasonable basis for the circuit court's determination. See In re G.B.K., 126
Wis.2d 253, 259, 376 N.W.2d 385, 389 (Ct. App. 1985).
In this case, the record
shows that the circuit court had a reasonable basis for its decision and that
it appropriately weighed all the relevant criteria. Although the circuit court considered all the relevant criteria,
it relied primarily on three factors.
First, the court concluded that the alleged offenses were serious because a weapon was involved, children were
involved, and Ty knew that the person he delivered the gun to was a gang
member. Second, the court relied on the
fact that Ty was over seventeen when the incident occurred and almost eighteen
at the time of the hearing. Third, the
circuit court concluded that, based on the testimony, the juvenile system does
not have adequate and suitable services or procedures to deal with Ty. These factors provide the circuit court with
a reasonable basis to waive Ty into adult court.
Ty does not challenge
any of the circuit court's findings except for the seriousness of the
offense. Ty suggests that the circuit
court's seriousness of the offense determination was improperly affected by the
fact that four juveniles had died. Ty
argues that if his behavior was weighed in isolation, since he is not alleged
to have had anything to do with the deaths or any knowledge of them when he
delivered the gun, waiver would seem unreasonable. This court disagrees.
First, the evidence shows that the gun was involved in the deaths of the
three juveniles in Plamann Park.
Second, the court focused on the fact that a weapon was involved and Ty
gave the gun to a person he knew was a gang member. The fact that the evidence suggests that Ty was not directly
involved in the deaths does not diminish the seriousness of delivering a gun to
a known gang member. Ty was old enough
to appreciate the natural and probable consequences of such an act. While he could not necessarily foresee these
specific deaths, the consequences are not unforeseeable. Therefore, the circuit court's decision was
not improperly affected by the deaths of the juveniles.
This court is satisfied
that the circuit court carefully reviewed all the criteria, giving greater
weight to the criteria it felt most important to the waiver decision. It is not an erroneous exercise of
discretion to waive juvenile jurisdiction after giving heavy weight to one or
more factors. G.B.K., 126
Wis.2d at 260, 376 N.W.2d at 389.
Because the circuit court considered all of the relevant criteria and
had a reasonable basis for its determination, this court concludes that the
circuit court did not erroneously exercise its discretion by waiving juvenile
jurisdiction over Ty.
DISCOVERY
Finally, Ty contends
that the circuit court erroneously exercised its discretion by refusing to
permit the defense access to certain police reports and by refusing to grant a
motion in limine excluding certain evidence.
This court will sustain the circuit court's discretionary decision as
long as it examined the relevant facts, applied a proper standard of law and,
using a demonstrated rational process, reached a conclusion a reasonable judge
could reach. Loy v. Bunderson,
107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).
Prior to the waiver
hearing, discovery is limited to inspection of materials relating to the
juvenile's personality and past history, including social reports. In re T.M.J., 110 Wis.2d 7,
14, 327 N.W.2d 198, 202 (Ct. App. 1982).
The juvenile is not allowed discovery of materials relating to the
commission of the offense that are not brought before the court. Id.
Ty claims that the State
did not deliver the requested police reports describing his past offenses until
3:30 p.m. on the day before the waiver hearing was to commence at 10 a.m., and
after he had filed a motion in limine asking the court to preclude such
evidence because the State had not provided the information to him. Ty contends that because the circuit court
declined to sign a discovery order and directed him to obtain the material from
the State, and because the reports were not provided until the eleventh hour,
the circuit court should have excluded the evidence based on the motion in
limine.
This court agrees that
Ty was entitled to discovery in a timely manner in order to prepare his case. Therefore, it was error for the State to
have delayed discovery until the day before the hearing. This court must, however, look to whether Ty
was prejudiced by the error. See
§ 805.18, Stats. Ty contends that because of the delay, he
could not conduct any investigation or locate or prepare witnesses regarding
the reports. Ty, however, does not
refer to any particular investigation that could have been done or any
witnesses he could have called that would have changed the outcome. In addition, the circuit court in its
decision to waive juvenile jurisdiction relied primarily on three factors
unrelated to the police reports.
Therefore, this court concludes that any error regarding the police
reports was harmless. See §
805.18, Stats.
Ty also contends that he
was prejudiced by the circuit court's failure to grant the motion in limine
regarding evidence of the John Doe hearing.
The only evidence admitted regarding the John Doe hearing was counsel's
statement that the hearing concluded on November 22. Because Ty's counsel failed to object to this statement and no
contrary evidence was received, the circuit court was entitled to rely on
it. Because Ty does not refer to any
other evidence relating to the John Doe hearing that was admitted, this court
concludes that any error regarding the John Doe hearing evidence was harmless.
CONCLUSION
In sum, this court
concludes that: (1) the circuit court
did not err when it concluded the local court rule was not violated and
alternatively that the rule was not mandatory and did not deprive the court of
jurisdiction; (2) there was prosecutive merit for the charge of aiding a felon;
(3) the circuit court did not erroneously exercise its discretion by waiving
juvenile jurisdiction over Ty; and (4) any error regarding the discovery of the
police reports or material relating to the John Doe hearing was harmless. Therefore, the order is affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.