PUBLISHED OPINION
Case Nos.: 94-2444-CR
94-2445
†Petition to
review filed
Complete Title
of Case:
No. 94-2444-CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SHANNON L. LA BINE,
Defendant-Appellant.†
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No. 94-2445
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
SHANNON L.L.,
Respondent-Appellant.†
Submitted on Briefs: August 22, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 29, 1995
Opinion Filed: November
29, 1995
Source of APPEAL Appeals from a judgment and
an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Sheboygan
(If
"Special", JUDGE: GARY LANGHOFF
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Michael J. Backes of Law Offices of
Michael J. Backes of Milwaukee.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Gregory
M. Posner-Weber, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED November
29, 1995 |
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. 94-2444-CR
94-2445
STATE OF WISCONSIN IN
COURT OF APPEALS
No.
94-2444-CR
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SHANNON
L. LA BINE,
Defendant-Appellant.
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No.
94-2445
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
SHANNON
L.L.,
Respondent-Appellant.
APPEALS
from a judgment and an order of the circuit court for Sheboygan County: GARY LANGHOFF, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. Shannon
L. LaBine appeals from a judgment of conviction for homicide and an order
denying his motion for postconviction relief.
Shannon challenges the jury's verdict on two grounds: (1) the trial court erred by admitting
“other acts” evidence, and (2) the juvenile court erroneously applied the law
when it permitted the release of certain juvenile information. Shannon further asks this court to reexamine
his juvenile waiver, which was the subject of an earlier appeal.[1] We conclude that the trial court properly
exercised its discretion in admitting the other acts evidence, and the juvenile
court acted within the applicable statute in permitting the release of the
juvenile court information. Because
there is no basis upon which to reexamine the juvenile waiver, we affirm.
The
incident that gave rise to the underlying charges was the shooting death of
Shannon's stepmother, Sandra LaBine.
Shannon was fourteen years old at the time. The facts are not in dispute that Shannon shot Sandra once in the
chest as she came up the basement stairs, and then shot her a second time, at
close range, in the head. Shortly after
Sandra's body was discovered, Shannon was apprehended and charged with
delinquency. The State sought a
juvenile waiver, and after a three-day hearing, the case was waived into
criminal court.[2]
A
jury found Shannon guilty of the charged crimes. Following the denial of his motions for postconviction relief, he
appeals. We first address Shannon's contention
that the trial court erred in admitting the other acts evidence.
Shannon's
defense was that he lacked the intent to shoot or to kill Sandra and that the
first shot fired was an accident that resulted from an attempt to engage the
safety on an unusually dangerous gun.[3] The defense then presented the second shot
to the jury as an unthinking, unintentional reaction to Sandra's moan that
occurred because of Shannon's fear and confusion.
The
State portrayed Shannon's actions as part of a broader plan to rob Sandra, take
her truck and run away without being intercepted by the police. In support of this portrayal, the State
sought to introduce evidence that Shannon had taken Sandra's truck a month
earlier to run away with a friend and Sandra thwarted his plan by notifying the
police. The State argued that the prior
incident was probative as a similar plan of truck theft with Shannon having an
added intent and purpose of shooting Sandra to prevent her interference this
time.
Shannon
first argues that the trial court erred when it admitted the evidence of the
prior taking of Sandra's truck. On
review of evidentiary questions, the issue on appeal is whether the trial court
exercised its discretion in accordance with acceptable legal standards and the
facts of record. State v. Pharr,
115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983). An appeals court will not find a misuse of discretion if there is
a reasonable basis for the trial court's determination. See id.
The
admissibility of other acts evidence is governed by § 904.04(2), Stats.[4] State v. Parr, 182 Wis.2d 349,
360, 513 N.W.2d 647, 650 (Ct. App. 1994).
While this evidence is not admissible to prove the character of the
accused, it may be used to establish, inter alia, motive and intent. Id. Under the well-established two-pronged test of admissibility, the
court must first determine whether the proffered evidence is relevant. Id. If so, the second prong is whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice,
confusion of issues or misleading the jury.
Id. While the
obvious purpose of all relevant evidence is to prejudice the individual against
whom it is offered, id. at 361, 513 N.W.2d at 650, unfair
prejudice refers to the risk that a jury may conclude that because the actor
committed one bad act, he or she necessarily committed the charged crime. State v. Mink, 146 Wis.2d 1,
17, 429 N.W.2d 99, 105 (Ct. App. 1988).
Shannon
maintains that the other acts evidence of the prior taking of Sandra's truck
was unduly prejudicial and irrelevant to the determination of his guilt or
innocence. The trial court found that
the prior incident was relevant to the disputed issues of Shannon's intent and
to his defense of mistake or accident.
The trial court weighed the probative value against the danger of unfair
prejudice and concluded that the evidence was admissible, noting that “it
clearly goes to motive and for that reason is also relevant. I don't think that it is unfairly
prejudicial in any way.”
We
agree that the evidence was probative to the issue of whether Shannon shot and
killed his stepmother in order to avoid her interference with his taking of the
truck. The evidence impacts upon
Shannon's motive and intent to kill and counters his theory that he shot his
stepmother by mistake. Based upon our
independent review of the record, we conclude that the trial court did not
erroneously exercise its discretion in finding the other acts evidence
probative and admissible under § 904.04(2), Stats.
Shannon
next raises an issue regarding a hearing before a ch. 48, Stats. (juvenile) court in which the
juvenile court authorized the release of two court summonses and agreed to
allow the State to elicit testimony from witnesses regarding Shannon's custody
during the months preceding the shooting.
The juvenile court hearing took place during the criminal trial.[5]
Initially,
we note that it is only the fact that the order from the juvenile court was a
nonfinal order that allows this to be included in the appeal from the criminal
conviction.[6] “An appeal from a final judgment ... brings
before the court all prior nonfinal judgments, orders and rulings ... not
previously appealed and ruled upon.”
Section 809.10(4), Stats. A final judgment or order “disposes of the
entire matter in litigation as to one or more of the parties,” § 808.03(1), Stats., whereas an intermediate,
nonfinal order settles only ancillary matters.
Shuput v. Lauer, 109 Wis.2d 164, 170, 325 N.W.2d 321, 325
(1982).
Further,
the State contends that Shannon has waived this appellate argument because it
was not raised in the trial court. See
C.A.K. v. State, 154 Wis.2d 612, 624, 453 N.W.2d 897, 902
(1990). Waiver is a rule of judicial administration
which we may, in the proper exercise of discretion, choose not to apply. See Wirth v. Ehly, 93
Wis.2d 433, 443‑44, 287 N.W.2d 140, 145‑46 (1980). In recognition of the strong social policy
implicit in the statutory protections of juvenile proceedings, see State
v. Gustafson, 119 Wis.2d 676, 685-86, 350 N.W.2d 653, 658 (1984), modified
on other grounds, 121 Wis.2d 459, 359 N.W.2d 920 (1985), cert. denied,
471 U.S. 1056 (1985), we choose to address the issue on the merits.
Shannon
contends that the juvenile court erred when it authorized the release of two
court summonses and permitted testimony regarding his placement. This was not a decision permitting testimony
extracted from the juvenile record but rather a ruling allowing witnesses in
the criminal trial to testify about their personal knowledge of Shannon's
custody and living arrangements.
The
issue of the release of juvenile records is governed by § 48.35, Stats.
The application of a statute to undisputed facts is a question of
law. Sauer v. Reliance Ins. Co.,
152 Wis.2d 234, 240, 448 N.W.2d 256, 259 (Ct. App. 1989). An appellate court is not bound by a trial
court's conclusions of law and decides the matter de novo. First Nat'l Leasing Corp. v. City of
Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
When
the State sought to introduce evidence which was related to Shannon's prior
involvement with the juvenile system, the district attorney requested release
of the information from the juvenile court.
The release of records is governed by § 48.35, Stats. It states in
relevant part:
(1) ....
....
(b) The disposition of a child, and any
record of evidence given in a hearing in court, shall not be admissible as
evidence against the child in any case or proceeding in any other court except:
1.
In sentencing proceedings ... and then only for the purpose of a
presentence study and report;
2.
In a proceeding in any court assigned to exercise jurisdiction under
this chapter; or
3.
In a court of civil or criminal jurisdiction while it is exercising the
jurisdiction of a family court and is considering the custody of children.
4.
The fact that a child has been adjudged delinquent on the basis of
unlawfully and intentionally killing a person is admissible for the purpose of
[the intestate succession statute].
(2)
Except as specifically provided in sub. (1), this section does not preclude the
court from disclosing information to qualified persons if the court considers
the disclosure to be in the best interests of the child or of the
administration of justice.
In
applying this statute, the juvenile court must make two determinations. First, the juvenile court must determine
whether the requested information implicates the prohibitions of subsec.
(1)(b): is the information sought
either “the disposition of a child” or a “record of evidence given in a hearing
in court.” If so, it cannot be released
if it will be introduced as evidence in another court. See Banas v. State, 34
Wis.2d 468, 474-75, 149 N.W.2d 571, 574-75 (knowing the intended use of the
juvenile records was prohibited, the juvenile court judge may have been without
power to order the release), cert. denied, 389 U.S. 962 (1967). If the information does not fall within the
prohibited areas or will not be used as evidence, the juvenile court has
discretion under subsec. (2) to disclose any information contained in the juvenile
record if the court considers it to be “in the best interests of the child or
of the administration of justice.”
Section 48.35(2), Stats.
Since
the information requested was to be introduced as evidence in another court,
the only means for allowing the release was if the information was outside the
reach of § 48.35(1)(b), Stats. None of the exceptions outlined in subsec.
(1) are relevant to this case. Here,
the trial court ruled that juvenile records could not be introduced for
evidentiary purposes pursuant to § 48.35(1)(b) and then determined as a
juvenile court that the admission of the requested evidence was not contrary to
the earlier ruling. If an independent
review of the record reveals a basis for sustaining the trial court's action,
we need not reverse. State v.
Pittman, 174 Wis.2d 255, 268, 496 N.W.2d 74, 80, cert. denied,
114 S. Ct. 137 (1993).
In
Sanford v. State, 76 Wis.2d 72, 250 N.W.2d 348 (1977), the
supreme court concluded that there were limits to the reach of § 48.38(1), Stats.[7] See Sanford, 76 Wis.2d
at 83, 250 N.W.2d at 353. The supreme
court held that the testimony of a rape victim, describing a rape committed by
the defendant while a juvenile, was not evidence protected by § 48.38(1). Id. The court reasoned that since no record of any juvenile court
proceedings was introduced, the prohibitions of subsec. (1) were not
implicated. See id.
We
find the information sought in Shannon's case to be analogous to that in Sanford. The State sought permission to question
Shannon's father, Karl, regarding Shannon's placement during the months
preceding the shooting.[8] The testimony given covered only first-hand
knowledge of where Shannon was physically residing during the period in
question and who was caring for him.[9] In our review of the record, it is apparent
that with regard to this testimony, as in Sanford, “no reference
to or record of any juvenile court proceedings was introduced at the time of the
... trial of this defendant.” Sanford,
76 Wis.2d at 83, 250 N.W.2d at 353.
The
other information which was released by the juvenile court were two court
summonses which had been delivered to the LaBines' home prior to the
shooting. The notices were taken as
evidence from the LaBines' home during the police investigation and gave a date
and time for a later court hearing. The
notices never were a part of the juvenile record. Karl identified the notices in court as notices that he had
received. He was asked whether there
had been an upcoming court hearing at the time of the shooting, and he
responded, “yes.” Karl then was asked
whether Shannon had any concerns that he would be removed from the home at the
next court hearing. Karl responded:
No. ... Sandra
and I were quite perturbed about it because in the social worker's office she
told him he would be going back in front of the judge that he had always been
to other than that one time, and that judge was probably just going to give him
another verbal hand slap. He hadn't
done anything bad enough to be taken out yet.
Based
on our independent review of the record, we conclude that none of the
information released by the juvenile court and admitted into evidence by the
criminal court pertained to protected areas.
The testimony by witnesses in the criminal case did not involve evidence
of a juvenile court's disposition of Shannon, nor did it include the
evidentiary record of a hearing.
“Merely because [the] defendant was under the age of majority at the
time ... does not in itself bring the testimony ... as to what then transpired
within the reach of either sec. 48.38, Stats., or the Banas
holding.” Sanford, 76
Wis.2d at 83, 250 N.W.2d at 353.
Shannon
relies on Gustafson for his contention that the testimony about
his placement and the court summonses were prohibited. His reliance is misplaced. The Gustafson court was
concerned with the admission of a witness' prior juvenile adjudication and
evidence of a no contest plea. Gustafson,
119 Wis.2d at 686, 350 N.W.2d at 658.
At a criminal trial, the State elicited testimony from a juvenile
witness that the juvenile had been adjudged delinquent for events which
occurred the same night as the adult's charged crimes. Id. at 681, 350 N.W.2d at
656. The juvenile also testified that
he had pleaded no contest to the charges of delinquency. Id. The court held that it was error to allow this to be admitted
into evidence,[10] noting that
the evidence “relates to the disposition of R.G.'s case in juvenile court and
record of evidence given in that court.”
Id. at 686, 350 N.W.2d at 658.
Having
determined that the evidence was outside the reach of § 48.35(1)(b), Stats., the court is then allowed by
subsec. (2) to permit the release of any juvenile information contained in the
juvenile record if the court considers it to be “in the best interests of the
child or of the administration of justice.”
Section 48.35(2).
The
court must apply its discretion in making this determination. A discretionary decision is one a reasonable
court could reach by a consideration of the relevant law, the facts and a
process of logical reasoning. State
v. Robinson, 146 Wis.2d 315, 330, 431 N.W.2d 165, 170 (1988). In order to be sustained, a court's
discretion must be demonstrably based on the record and must rely on the
appropriate and applicable law. Id.
In
seeking the release, the State argued that this information was necessary in
order to clarify Shannon's placement.
This became an issue because of the opening statement made by the
defense. Shannon's counsel objected,
agreeing that the issue of Shannon's placement could be addressed, but stating
that there was no need to “accentuate any juvenile delinquency proceeding.”[11] The State also requested permission to
introduce two court summonses which had been delivered to the LaBines.
In
reaching its decision to release the requested information, the juvenile court
weighed Shannon's right of nondisclosure against society's interest in a full
and fair trial in the criminal court proceeding, as mandated by § 48.35(2), Stats.
The juvenile court issued an order authorizing the State to “elicit
testimony concerning the custody and placement of Shannon LaBine” and to allow
disclosure of the two court summonses.
The juvenile court further noted that counsel was limited to the precise
information outlined in the order. We
conclude that the juvenile court reasonably exercised its discretion in finding
the release to be in the interests of justice, as allowed by § 48.35(2).
Finally,
Shannon argues that this court should reexamine the juvenile court's waiver
order now that the case is concluded.
At the time the juvenile court ordered the waiver, that order was appealed
to this court, and the decision was affirmed.
Shannon L.L., No. 92-2094, unpublished slip op. (Wis. Ct.
App. Dec. 30, 1992). The issue of
juvenile waiver may be appealed at the time the juvenile court grants it, see
State ex rel. A.E. v. Circuit Court, 94 Wis.2d 98, 105d‑e,
292 N.W.2d 114, 115‑16 (1980) (on motion for reconsideration), or at the
conclusion of the criminal case, see § 809.10(4), Stats.
As Shannon concedes, there is no procedural basis for this court to
reconsider that appeal.[12]
By
the Court.—Judgment and order
affirmed.
[1] The juvenile
waiver into adult court was appealed when it was granted and a stay of
proceedings ordered. In an unpublished
decision this court affirmed the waiver.
State v. Shannon L.L., No. 92-2094, unpublished slip op.
(Wis. Ct. App. Dec. 30, 1992). A
petition to review was denied by the supreme court.
[2] Shannon was
charged under § 940.01(1), Stats.
(first-degree intentional homicide), and § 939.63(1)(a)2, Stats. (penalties; use of a dangerous
weapon). He was also charged with one
count of armed robbery pursuant to § 943.32(1)(a), Stats.
[3] In order to
engage the safety on this particular gun, it was necessary to slowly lower the
cocked hammer while simultaneously pulling the trigger.
[4] Section
904.04(2), Stats., provides:
(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that the
person acted in conformity therewith.
This subsection does not exclude the evidence when offered for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
[5] The judge who
conducted the juvenile court hearing also presided over the criminal case. Prior to the hearing, the trial court had
already ruled that the State would not be permitted to use “any juvenile court records
for impeachment purposes. ... Both
parties are precluded ... from making any reference to juvenile records or
adjudications or alluding to records of any juvenile court proceeding.”
[6] We do not
address the situation that would occur if the order of the juvenile court had
been reduced to a final order, other than to suggest that in such a case, it
clearly would have to be the subject of a separate appeal.
[7] Section
48.38(1), Stats., 1963, was
repealed by Laws of 1977, ch. 354, § 62.
It also restricted the use of juvenile court dispositions as evidence in
other courts in language similar to the current § 48.35(1)(b), Stats.
[8] During the
trial, both Karl LaBine and Kathy Walber, a family friend with whom Shannon had
been staying, were questioned.
[9] As an example of
the testimony, Karl was questioned by the prosecution on redirect:
QFrom that point in time, the time he went down to your
ex-wife in Alabama and until the time of the court hearing in October, did he
live with you? Shannon, I mean.
AHe was home at times.
I believe he spent most of his time with Kathy Walber [a family friend].
....
QAnd then you had the October hearing?
AYes.
....
QSo the agreement was he stay with Kathy until then?
AYes.
[10] The supreme
court ultimately concluded under the facts of that case that the error was
harmless. State v. Gustafson,
119 Wis.2d 676, 690, 350 N.W.2d 653, 660 (1984).
[11] We conclude that
both the juvenile court and the trial court were careful not to allow evidence
that emphasized any juvenile court proceedings.
[12] We note that
prior to this appeal Shannon brought a § 974.06, Stats., motion on the juvenile waiver issue. This was not proper procedure. Relief under § 974.06 is not available
to an individual seeking to collaterally attack a juvenile waiver. See generally State v.
Langston, 53 Wis.2d 228, 231-32, 191 N.W.2d 713, 715 (1971) (holding
that to allow a defendant to attack errors in the admission of evidence or
faulty jury instructions long after his or her conviction through the use of
the postconviction relief statute would render statutes which limit the time
for appeal meaningless). The trial
court correctly recognized this and dismissed the request for lack of
jurisdiction to review the juvenile court proceeding.