PUBLISHED OPINION
Case No.: 94-2424-CR
94-3146-CR
95-1402-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,†
v.
KELLY K. KOOPMANS,
Defendant-Appellant.
Oral Argument: February 21, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: May 1, 1996
Opinion Filed: May
1, 1996
Source of APPEAL Appeal from a judgment
and orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If
"Special", JUDGE: JAMES L. CARLSON
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, there were briefs
and oral argument by Mary E.Waitrovich, assistant state public defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, there was a brief
by James E. Doyle, attorney general, and Thomas J. Balistreri,
assistant attorney general, with oral argument by Thomas J. Balistreri.
COURT OF
APPEALS DECISION DATED AND
RELEASED May
1, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-2424-CR
94-3146-CR
95-1402-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KELLY
K. KOOPMANS,
Defendant-Appellant.
APPEALS
from a judgment and orders of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Judgment affirmed in part, reversed in
part; orders reversed and cause remanded.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Kelly K. Koopmans appeals from a trial court
judgment of conviction for one count of intentional child abuse and one count
of reckless child abuse, and from orders denying postconviction relief.
On
appeal, Koopmans raises two issues.
First, she argues that the trial court erred by denying her mistrial
request after the court allowed testimony about her inculpatory statement which
Koopmans contends was not revealed during discovery. We conclude that Koopmans' inculpatory statement was disclosed to
her during discovery.
Second,
Koopmans contends that the trial court erred when it sentenced her in
absentia. We agree that Wisconsin law
does not permit a trial court to sentence a defendant in absentia.
Therefore,
we affirm that portion of the judgment which adjudges Koopmans guilty of the
stated offenses. We reverse the
sentencing portions of the judgment and the postconviction orders denying
Koopmans a new sentencing proceeding.
Background and Trial Proceedings
We
recite the facts as revealed at trial.
On the morning of July 23, 1992, Brent Morse, Koopmans' boyfriend, took
Koopmans' then thirteen-month-old daughter, Krystie, to the child's
grandmother's house. Morse indicated
that Krystie did not appear to be injured and was acting normally at that
time. However, at about 10:30 a.m.,
Krystie's grandmother called Koopmans and asked her to pick up Krystie because
she was crying.
Both
Morse and Koopmans retrieved Krystie and took her home, where Koopmans fed and
calmed her. They left when the
afternoon babysitter arrived at the apartment and assumed responsibility for
Krystie. At approximately 1:30 p.m.,
Koopmans called the babysitter and was informed that everything was fine.
Sometime
after 4:00 p.m, the babysitter called Koopmans to tell her that Krystie was
having trouble moving her arm. Koopmans
and Morse immediately went home and found that Krystie's arm was “kind of
limp,” although she was not crying. The
babysitter attributed the condition to the fact that Krystie had slept on her
arm that afternoon, and when it seemed to improve, Koopmans and Morse returned
to their jobs.
Later
that evening, Koopmans discovered that Krystie could not hold weight on her
left leg and called Mercy Hospital to ask the advice of a nurse. She also spoke with a physician who said it
did not seem to be an emergency and told her to take Krystie to a doctor the
next day. Koopmans made an appointment
at Riverview Clinic for the following morning.
At
the clinic, a pediatric radiologist discovered two fractures in Krystie's left
leg and one in her left arm and estimated that both injuries had occurred
sometime within the preceding five days.
The radiologist also dated an ulna periosteal injury at approximately
seven days, and an injury to the radius periosteal at four to six weeks. He testified at trial that it was “very
unlikely” that the fractures had been caused accidentally. As a result of the examination, Krystie was
taken from Koopmans and put into protective custody.
Within
a week of the discovery of Krystie's injuries, Delavan Police Officer Greg
Strohm interviewed Koopmans at Mercy Hospital in Janesville. A social worker, Judith Sicard Rhinehart,
was also present during the interview.
Based on this interview, Koopmans was targeted as a suspect, and on
January 26, 1993, the State charged Koopmans with two counts of intentional
child abuse, contrary to § 948.03(2)(a) and (5), Stats. Three days
before trial, on November 12, 1993, the State amended the second count in the
information to reckless child abuse, in violation of § 948.03(3)(a) and
(5).
At
trial, the prosecutor questioned Strohm about his interview of Koopmans at
Mercy Hospital. Strohm testified, in
part, as follows:
At certain points during the conversation [Koopmans]
would start to cry and laugh at the same time and seemed to be looking through
the questions. The impression I was
getting, I wish this would just go away.
At one point in time, not too long into the interview, she stated to me
— [“]I will just say I did this and we can just get this all behind us,[”] or
something to that effect.
At this point, Koopmans' trial attorney objected,
stating that Strohm's answer sounded like speculation, and that he did not know
if Strohm was talking about statements that Koopmans had given while she was in
custody, and if so, whether the statements had been free and voluntary. The trial court overruled the objection and
instructed the prosecutor to continue his direct examination.
The
prosecutor asked several more questions of Strohm before Koopmans' attorney
objected again and moved for a mistrial on the grounds that he “never found
such a statement in ¼ discovery.” The
trial court concluded that Koopmans was not in custody at the time she made the
alleged statement and that there was no inference that the statement was not
voluntary. The court denied the
mistrial motion, but did not specifically address Koopmans' objection that the
statement was not disclosed during pretrial discovery.
On
cross-examination, Strohm again referenced the statement allegedly made by
Koopmans. During this testimony, Strohm
stated that he did not take notes during Koopmans' interview because he knew
that Rhinehart was taking notes.
Rhinehart testified immediately after Strohm. She was asked on direct examination whether Koopmans had made any
statement about the cause of Krystie's injuries. The exchange was as follows:
Q ¼ [D]id [Koopmans] make any statement about ¼ having caused the
injuries as opposed to Brent ¼?
A She stated
that she would say that she hurt the child herself, which she didn't, before
she would think Brent did it.
At
the conclusion of the testimony by Strohm and Rhinehart, Koopmans renewed her
earlier motion for a mistrial. The
trial court again denied the motion, concluding that the statement as recorded
by Rhinehart had been disclosed to Koopmans.
On
November 20, 1993, at the conclusion of a six-day jury trial, Koopmans was
convicted of one count of intentional
child abuse under § 948.03(2)(a) and (5), Stats.,
and one count of reckless child abuse under § 948.03(3)(a) and (5).
Following
the conviction, the originally scheduled sentencing was cancelled because
Koopmans had fled the country with Krystie.
On March 11, 1994, the trial court sentenced her in absentia to fifteen
years in prison on the first count and a stayed ten-year sentence with ten
years' probation on the second count.
Shortly after the sentencing in absentia, Koopmans was apprehended in
Belize and returned to Wisconsin.
Koopmans
brought a postconviction motion seeking a new sentencing. She and her trial counsel submitted
affidavits stating that before Koopmans was sentenced in absentia, she had not
been advised of her right to be present and to make an allocution statement at
the sentencing. The court denied the
postconviction motion, concluding that Koopmans had waived her right to be
present. Koopmans appeals.[1]
Discussion
Discovery
Violation
Koopmans
first argues that the trial court erred when it allowed Strohm's testimony of
her inculpatory statement and denied her motion for a mistrial. She maintains that the admission of the
statement violated the discovery provisions of § 971.23(1), Stats.
The State responds that although Strohm and Rhinehart testified in
different terms about the statement, their evidence establishes that there was
but one inculpatory statement and that they were testifying about the same
statement. Since the statement referred
to by Rhinehart was revealed to Koopmans via discovery, the State argues that
the trial court did not err.[2]
Section
971.23(1), Stats., requires the
district attorney, upon demand, to furnish a defendant with a written summary
of all oral statements made by the defendant, and the witnesses thereto, which
the prosecutor plans to use at trial. See
State v. Maass, 178 Wis.2d 63, 68, 502 N.W.2d 913, 915-16 (Ct.
App. 1993).[3] The remedy for the failure to comply with a
duty of disclosure is stated in subsec. (7)—“The court shall exclude any
witness not listed or evidence not presented ¼ unless good cause is shown for failure to comply.” See State v. Ruiz, 118
Wis.2d 177, 197, 347 N.W.2d 352, 361-62 (1984).
We
conclude that there was no violation of § 971.23(1), Stats., because the evidence shows that Koopmans made only
one statement that was inconsistent with her otherwise unwavering denials of
abusing Krystie and that this statement was divulged to Koopmans during the
discovery process. On
cross-examination, Strohm testified:
Q And [Koopmans] indeed has always told you
that she never hurt this child?
A Yes, she's always said that, except for the
initial interview.
Q Except for the initial interview?
A As I stated
before, in the initial interview she said:
[“]I will just say I did it so we can get on with this.[”]
Strohm had testified on direct examination that Koopmans
had stated, “[‘]I will just say I did this and we can just get this all behind
us,[’] or something to that effect.”
(Emphasis added.) The jury also
heard Strohm's testimony that although Rhinehart took notes during the initial
interview, Strohm had not taken notes and was not quoting Koopmans verbatim,
but was relying on his own recollection.
The
jury heard Rhinehart's testimony immediately following Strohm's. She testified that she was present during
the interview of Koopmans at Mercy Hospital.
Rhinehart's testimony was similar to Strohm's regarding the inculpatory
statement. Both witnesses testified to
Koopmans' statement offering to accept responsibility for the harm to the
child. The only difference was that
Rhinehart's version referenced the possible involvement of Morse. More importantly, both Strohm's and
Rhinehart's testimony alluded to but one inculpatory statement by Koopmans in
the face of her otherwise steadfast denials.
From this, we conclude that their testimony alluded to the same
statement—a statement which was produced during the discovery process.
Thus,
while Strohm and Rhinehart did not give the exact same rendition of Koopmans'
statement,[4]
the record in this case supports the conclusion that Koopmans was made aware
that the statement she made at the interview would be used at trial through
either Rhinehart, Strohm or both. We
base this on the following history.
Koopmans had filed an extensive and all-encompassing motion for
discovery prior to trial. Koopmans has
not included the State's response to this motion in the appellate record. From this, we properly conclude that, except
for her oral statement to Strohm, the State fully complied with her discovery
demands. Thus, Koopmans knew that both
Rhinehart and Strohm would testify.
And, she additionally had been provided with Rhinehart's version of her
statement made in the presence of Rhinehart and Strohm. In fact, the trial court made an express
finding on this latter point—a finding which Koopmans does not dispute. In addition, Koopmans does not dispute that
Rhinehart and Strohm were present when she made her statement. It follows that Koopmans reasonably knew
that they would both be presenting their individual accounts of the initial
interview. Therefore, Koopmans was put
on fair notice that the State intended to use the statement.
In
light of this record, we conclude that the trial court properly allowed
Strohm's testimony regarding the statement and properly denied Koopmans' motion
for a mistrial.
Alternatively,
we hold that if any error occurred, it was harmless. Our review of a claimed discovery violation under § 971.23, Stats., is subject to a harmless error
analysis. See Ruiz,
118 Wis.2d at 198, 347 N.W.2d at 362. A
conviction should be overturned as a result of noncompliance with the statute
only if it appears that the result probably would have been more favorable to
the defendant had the evidence been excluded.
See id. at 198-99, 347 N.W.2d at 362.
Even
if the State was required to produce Koopmans' statement to Strohm on
discovery, our foregoing analysis of the facts and the history of this case
demonstrate that Koopmans not only reasonably knew that Strohm and Rhinehart
would testify, but that they would testify regarding the single inculpatory
statement which she had made. Thus, we
cannot say that the specific failure to reveal to Koopmans that her statement
would come into evidence via Strohm as well as Rhinehart worked any prejudicial
effect.
Sentencing in
Absentia
Koopmans
next argues that the trial court erred when it sentenced her in absentia. She contends that this procedure violated
both her constitutional and statutory rights.
We agree that the sentencing in this case violated the statutes.
The
interpretation of a statute is a question of law which we review
independently. See State
v. Sostre, 198 Wis.2d 409, 414, 542 N.W.2d 774, 776 (1996). The goal of statutory construction is to
give effect to the intent of the legislature.
Id. The first step
in this process is to look to the language of the statute. Id. If the meaning of the statute is clear, we will not look outside
the statute to ascertain its meaning. Kellner
v. Christian, 197 Wis.2d 183, 190, 539 N.W.2d 685, 688 (1995). We will simply apply the plain meaning of
the statute to the facts at hand. See
id.
A
defendant has a due process right to be present at a sentencing hearing and to
be afforded the right of allocution. State
v. Varnell, 153 Wis.2d 334, 340, 450 N.W.2d 524, 527 (Ct. App.
1989). Section 971.04(1), Stats., provides in relevant part:
Defendant
to be present. (1) Except as provided in subs. (2) and (3), the
defendant shall be present:
¼
(g) At the
pronouncement of judgment and the imposition of sentence ¼.
Subsection (2), which permits a defendant charged with a
misdemeanor to be excused from attending any or all proceedings and to
authorize an attorney to act on his or her behalf, has no application in this
case because Koopmans was charged with a felony.
Likewise,
subsec. (3) of § 971.04, Stats.,
does not provide an exception to the statute's requirement that a defendant
shall be present at sentencing. It
reads, “If the defendant is present at the beginning of the trial and
thereafter ¼ voluntarily absents himself or herself from the
presence of the court without leave of the court, the trial or return of
verdict of the jury in the case shall not thereby be postponed or delayed ¼.” Id. (emphasis added). This subsection does not say that
“sentencing” shall not be postponed, nor does the remaining language of §
971.04 provide for sentencing in a defendant's absence.
Thus,
Wisconsin law does not merely require that a defendant be personally present at
sentencing. Were that the case, we
perhaps could be persuaded that such right can be waived. But our legislature has gone further. By the language of § 971.04(3), Stats., the legislature has further
expressly detailed which proceedings may go forth in the face of the
defendant's voluntary absence. These
include the completion of the trial and receipt of the jury's verdict. But at that point, the statute stops and no
further proceedings are authorized. It
would have been a simple matter for the legislature to authorize further
proceedings had it so desired. It did
not.
Although
the State can cite to other jurisdictions which approve sentencing in absentia,[5]
we conclude that the plain language of the Wisconsin statutes requires a
defendant's presence at sentencing.
We
also observe that the State's argument that Koopmans waived her right to be
present by virtue of her fugitive status relies on cases which discuss the
predecessor statute of § 971.04, Stats.,
and which the State concedes “admittedly dealt only with a defendant's presence
at the trial.” Further, the State's
reliance on French v. State, 85 Wis. 400, 410, 55 N.W. 566, 569
(1893), for the proposition that a waiver occurs when there is a positive and
personal relinquishment of a right offers no guidance in the face of a later-enacted
statute which specifically requires a defendant's presence at sentencing.
We
also reject the State's argument that we should construe the word “shall” in §
971.04(1), Stats., as directory
rather than mandatory. The word “shall”
is presumed to be mandatory when it appears in a statute. Georgina G. v. Terry M., 184
Wis.2d 492, 511, 516 N.W.2d 678, 683 (1994).
The State has not demonstrated to our satisfaction anything to overcome
that presumption. See id.
at 512, 516 N.W.2d at 683. We conclude
that the plain language of the statute requires a defendant's presence at
sentencing.
Finally,
we address this court's recent opinion in State v. Divanovic, No.
95-0881-CR (Wis. Ct. App. Feb. 14, 1996, ordered published Mar. 26, 1996).[6] There, Divanovic was in custody during all
the trial court proceedings. However,
he refused to come out of the jail to attend any of the proceedings, from the
initial appearance through the sentencing.
On appeal, Divanovic argued that he had not sufficiently waived his
constitutional right to be present. Id.
at 8-9. In deciding the case, we
stressed that we were addressing only the constitutional, not the statutory,
implications of the issue. Id.
We
rejected Divanovic's argument, holding that the record sufficiently showed that
Divanovic knew of his constitutional right to be present and his waiver of that
right by his words and conduct. Id.
at 10-12. Here, of course, the
statutory issue not raised in Divanovic is squarely before
us. Thus, even assuming that Koopmans
waived her constitutional right to be present at the sentencing under Divanovic,
that ruling does not govern the statutory question before us. Our conclusion that a defendant cannot be
sentenced in absentia is not precluded by Divanovic or
constitutional considerations. The laws
of a state may accord greater protections than the minimums which are imposed
by the United States Supreme Court. See
State v. Doe, 78 Wis.2d 161, 172, 254 N.W.2d 210, 216 (1977); see
also Oregon v. Hass, 420 U.S. 714, 719 (1975).
Conclusion
We
affirm that portion of the judgment which adjudges Koopmans guilty. We reverse the sentencing provisions of the
judgment and the postconviction orders denying Koopmans a new sentencing
proceeding. We remand for further
sentencing in Koopmans' presence.
By
the Court.—Judgment affirmed in
part, reversed in part; orders reversed and cause remanded.
[1] On September 16,
1994, Koopmans filed a notice of appeal from the order denying postconviction relief. She filed a second notice of appeal from the
judgment of conviction on November 30, 1994.
This court granted Koopmans' February 9, 1995, motion to consolidate the
two appeals on February 14, 1995. On
March 27, 1995, this court granted Koopmans' March 23, 1995, motion for
leave to file an amended postconviction motion in the trial court. After the trial court denied the amended
postconviction motion, Koopmans filed a third notice of appeal. All three appeals have been consolidated for
purposes of our review.
[2] On a threshold
basis, the State argues that Koopmans did not make a timely or specific
objection to the admission of the statement.
Koopmans initially objected on grounds that Strohm's answer was
speculation and raised possible Miranda problems. However, only a few questions later,
Koopmans extended her objection to discovery grounds. We conclude that even though the objection on discovery grounds
was not instantaneous, it was timely enough to preserve the issue. Our holding on this point is proper given
that the discovery revelation pertained to the statement recorded by Rhinehart,
not Strohm.
[3] Section
971.23(1), Stats., provides:
Discovery and inspection. (1) Defendant's
statements. Upon demand, the
district attorney shall permit the defendant within a reasonable time before
trial to inspect and copy or photograph any written or recorded statement
concerning the alleged crime made by the defendant which is within the
possession, custody or control of the state ¼. Upon demand,
the district attorney shall furnish the defendant with a written summary of all
oral statements of the defendant which the district attorney plans to use in
the course of the trial. The names of
witnesses to the written and oral statements which the state plans to use in
the course of the trial shall also be furnished.
[5] See, e.g.,
Capuzzo v. State, 578 So.2d 328, 329 (Fla. Dist. Ct. App. 1991), aff'd,
596 So.2d 438 (Fla. 1992); People v. Lane, 414 N.E.2d 1249, 1251
(Ill. App. Ct. 1980); Gillespie v. State, 634 N.E.2d 862 (Ind.
Ct. App. 1994); Crank v. State, 502 N.E.2d 1355, 1358-59 (Ind.
Ct. App. 1987); People v. Corley, 491 N.E.2d 1090, 1091-92 (N.Y.
1986); Commonwealth v. Rodriguez, 670 A.2d 678 (Pa. Super. Ct.
1996).