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COURT OF APPEALS DECISION DATED AND FILED December 20, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal Nos. |
2005AP2421 2005AP2422 |
Cir. Ct. Nos.
2004TP267 2004TP268 2004TP269 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT 1 |
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No. 2005AP2420 Cir. Ct. No.
2004TP267 In re the termination of
parental rights to Fantaisha A., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. Karla J., Respondent-Appellant. |
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No. 2005AP2421 Cir. Ct. No.
2004TP268 In re the termination of
parental rights to Kenya A., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. Karla J., Respondent-Appellant. |
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No. 2005AP2422 Cir. Ct. No.
2004TP269 In re the termination of
parental rights to Kennyth A., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. Karla J., Respondent-Appellant. |
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APPEAL from orders of the circuit court for Milwaukee County: joseph r. wall, Judge. Affirmed.
¶1 KESSLER, J.[1] Karla
J. appeals from orders terminating her parental rights to Fantaisha A., Kenya A. and Kennyth
A. The sole issue on appeal is whether
the trial court erred when it gave the falsus in uno jury instruction
based on Karla’s false statements to the jury about her employment at a grocery
store. We conclude that the trial court
properly exercised its discretion in giving the instruction. Therefore, we affirm.
BACKGROUND
¶2 The
State filed a petition to terminate Karla’s parental rights to her three
children.[2] The alleged grounds for termination were
failure to assume parental responsibility, see Wis. Stat. § 48.415(6), and continuing need of
protection or services (CHIPS), see § 48.415(2).
¶3 The
case proceeded to trial. The State
called Karla adversely. She testified
that she worked at Jewel Osco. She said
that she had worked there continuously since August 2004, and had never been
fired. She testified that sometimes she
worked on a part-time basis, and sometimes on a full-time basis. She added that she had worked forty hours
the week before the jury trial started.
Finally, she testified that her sole source of income and support was
her job at Jewel Osco.
¶4 The
State then called as its next witness the personnel coordinator at Jewel
Osco. She testified that
Karla: began employment at Jewel Osco on August 6, 2004; worked
part-time, for a maximum of thirty hours a week; had not worked at Jewel Osco
since December 13, 2004; and was not currently employed there.
¶5 Although
several witnesses testified for the defense, Karla did not testify again. Before the case went to the jury, the State
asked the trial court to give the falsus in uno jury instruction, see
Wis JI—Civil 405, based on
Karla’s false testimony that she was still employed at Jewel Osco. Karla’s counsel objected on grounds that
Karla had never received an official letter of termination, citing testimony
from the Jewel Osco employee that a termination letter that was sent to Karla
was returned unopened.
¶6 The
State countered that even if Karla had not received the termination letter, she
knew she had not continued to work at Jewel Osco, and yet she testified that
she was still working there. She even
provided the detail that she had worked forty hours the week before trial, which
was absolutely false. The trial court
granted the State’s request and gave the instruction, based on reasoning
discussed later in this opinion.
¶7 The
jury found that Karla had failed to assume parental responsibility for her
children, that the children were subject to a continuing CHIPS order, and that
Karla was unlikely to meet the conditions for their return within the next
twelve months. After a dispositional
hearing, the trial court concluded that termination was in the children’s best
interest. This appeal followed.
DISCUSSION
¶8 Karla argues that she is entitled to a new trial because the trial court erroneously exercised its discretion when it gave the falsus in uno jury instruction. This instruction provides: “If you become satisfied from the evidence that any witness has willfully testified falsely as to any material fact, you may, in your discretion, disregard all the testimony of such witness which is not supported by other credible evidence in the case.” Wis JI—Civil 405 (2001). This instruction permits, but does not require, a jury to disregard a witness’s testimony if he or she testifies falsely. Ollman v. Wisconsin Health Care Liab. Ins. Plan, 178 Wis. 2d 648, 658, 505 N.W.2d 399 (Ct. App. 1993).
¶9 As Karla notes, this instruction is disfavored. See State v. Williamson, 84 Wis. 2d 370, 395, 267 N.W.2d 337 (1978); see also Ollman, 178 Wis. 2d at 664 n.8 (expressing opinion of Court of Appeals that the instruction is not necessary). Nonetheless, application of the falsus in uno instruction “is not foreclosed if the appropriate circumstances are present.” State v. Robinson, 145 Wis. 2d 273, 281, 426 N.W.2d 606 (Ct. App. 1988); see also Wis JI—Civil 405 Comment (“This instruction should not be given routinely although the Committee believes its discretionary use is appropriate in some circumstances.”).
¶10 In Wisconsin, a falsus in uno instruction can be used “only in situations where a witness wilfully and intentionally gives false testimony relating to a material fact, and is not proper where there are ‘[m]ere discrepancies in the testimony that are most likely attributed to defects of memory or mistake.’” Ollman, 178 Wis. 2d at 659-60 (quoting Williamson, 84 Wis. 2d at 394). The instruction
should be given only if the trial court finds “something either in the appearance, demeanor, or manner of a witness while testifying, or such a conflict or contradiction between him and the other witnesses in the case, or such an inherent incredibility in the facts testified to by him, as would reasonably tend to show that the witness willfully swore falsely.”
Robinson, 145 Wis. 2d at 281-82 (quoting Pumorlo v. City of Merrill, 125 Wis. 102, 111, 103 N.W. 464 (1905)).
¶11 “The
trial court has broad discretion in instructing the jury and we will not find
error as long as the instructions adequately cover the applicable law.” Id. at 281. “If the discretionary decisions are the
result of a rational mental process and are reasoned and reasonable we will not
reverse.” Id.
¶12 Here,
the trial court considered carefully whether to give the falsus in uno
instruction, stating:
This
is a discretionary instruction. It’s a
pretty harsh instruction. I am given
pause here by a couple things. One is
[Karla’s] cognitive delays. The other
is the interest at stake on the case.
But, [Karla] I think knows the difference between the truth and a
lie. And certainly she knows whether
she was working last week 40 hours at Jewel Osco. So she definitely has the mental capacity for knowing the
difference between the truth and a lie or exaggerations. This really isn’t an exaggeration; this is
not an inconsistency; this is not an issue of confusion…. [The lie has to be related to] a material
point. Here her employment is
material. It really goes to the heart
of some of the problems she’s had that has brought us to this point; and that
is the depression, the loss of her residences, non-payment of rent, some of the
poverty issues that have brought us here.
If she was really working full-time, that would be an indication that
she is not crippled by depression….
[T]hat would be evidence that she’s able to function as opposed to a lot
of the other evidence we have heard where she’s just having a very difficult
time functioning through the depression and other problems…. [I]t goes right to the core of a lot of the
issues in this case…. It’s material on
many different levels.
Then
the question is whether it’s willful and intentional…. [C]learly she knew that by saying she was
working full-time all this time that it would better her in front of the
jury. So it was willful and it was
intentional, and there was definitely forethought in it…. I would note also that she’s been late for
court pretty much every day that we have had trial…. [T]uesday I asked her why she was late….
[She
said I]t was job related…. [T]he
inference to be drawn is she’s testifying about this job that she has….
[T]here
was certainly a willfulness about this.
This is an instruction that should be given very, very rarely; but I
think it is an instruction that is intended to be given when there has been a
lie proven. And I think the state has
really tied this down well…. There is
not a lot of wiggle room in light of her testimony. In fact, I don’t think there is any.
¶13 We
conclude that the trial court did not erroneously exercise its discretion when
it gave the falsus in uno instruction.
There is no question that Karla lied about her Jewel Osco
employment. Indeed, her brief
states: “There is no doubt that Karla
J.’s testimony that she was working at Jewel Osco during this trial was
untrue.” The trial court’s finding that
this lie was intentional and willful is not clearly erroneous. Karla’s testimony was unequivocal, and it is
a fair inference that she intended to lie so that the jury would be more likely
to find in her favor. Finally, we agree
with the trial court’s conclusion that whether Karla was employed was relevant
and material to whether the children were likely to be returned to her care
within the next twelve months.
¶14 Karla
argues that even though she lied, the trial court erred in using the
instruction for three reasons. First,
she argues that the instruction should not have been given because it allowed
the jury to
disregard
125 pages of testimony over a 2-page lie.
The trial court’s decision to give this instruction was extremely
damaging because it allowed the jury to disregard the majority of the evidence
presented by Karla over a single untruth—that she was still employed at Jewel
Osco. Therefore, it was unreasonable
for the court to have given the instruction.
We recognize that the instruction may have harmed Karla’s case. That is precisely why courts can offer the
instruction only if the lie is related to a material issue. Whether Karla was employed—allowing her to
provide for her family and demonstrate that she had the ability to function,
despite depression and other obstacles—was a crucial fact in the case. It was appropriate to give the instruction.
¶15 Second, Karla argues that the instruction was confusing to the jury. Karla reasons that the instruction conflicts with other approved jury instructions, and that the general instruction on witness credibility and the weight of evidence should have been enough. In effect, Karla is offering a general argument against the use of the falsus in uno instruction. Our supreme court has rejected that general challenge; in the appropriate case, the instruction can be given. See Williamson, 84 Wis. 2d at 394; Robinson, 145 Wis. 2d at 281-82.
¶16 Finally, Karla contends that the trial court should not have given an instruction allowing the jury to disregard Karla’s entire testimony as false when the trial court itself found aspects of her testimony to be credible. We reject this argument. Karla provides no authority for the proposition that a falsus in uno instruction can only be given if the witness lies about everything, and we are aware of none. As explained above, the trial court applied the proper analysis and reached a reasonable conclusion. We discern no erroneous exercise of discretion.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.