PUBLISHED OPINION
Case No.: 94-2639-CR
† Petition
for review filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
QUINCY FERGUSON,
Defendant-Appellant.
†
Submitted on Briefs: May 3, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: June 6, 1995
Opinion Filed: June
6, 1995
Source of APPEAL Appeal from a judgment
and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: LEE E. WELLS
so indicate)
JUDGES: Wedemeyer, P.J., Fine and Schudson, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on the briefs of Marla J.
Stephens, first assistant state public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and James M. Freimuth,
assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED June
6, 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. |
No. 94-2639-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
QUINCY
FERGUSON,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Milwaukee County: LEE E. WELLS, Judge. Affirmed.
Before
Wedemeyer, P.J., Fine and Schudson, JJ.
SCHUDSON,
J. Quincy Ferguson appeals from the
trial court judgment and order denying his postconviction motion, following his
convictions for two drug offenses and bail jumping. He challenges only that part of his sentence ordering him to pay
$105 to the Wisconsin State Crime Laboratory.
He argues that the trial court had neither inherent nor statutory
authority to order such a payment. We
conclude, however, that the trial court did have statutory authority to order
payment to the crime laboratory under § 973.06(1)(c), Stats., as “[f]ees and disbursements
allowed by the court to expert witnesses.”[1]
Following
a two day court trial, Ferguson was convicted of possession with intent to
deliver cocaine base while armed within one-thousand feet of a public park,
possession with intent to deliver THC (marijuana) while armed, and bail
jumping. The trial court sentenced
Ferguson to three years in prison without parole for the cocaine offense, one
concurrent year in prison for the marijuana offense, and time served for bail
jumping. The trial court also imposed a
$1000 fine, suspended Ferguson's driver's license for six months, ordered that
the $615 cash found on Ferguson when he was arrested at the crime scene be
donated to the DARE [Drug Abuse and Resistance Education] program of the
Milwaukee Metropolitan Drug Enforcement Unit,[2]
and ordered “costs, assessments and surcharges and restitution.” Although the judgment of conviction
specified only that the “court costs” including “witness fees” were “to be
determined,” apparently the sentence ultimately required Ferguson to pay $105
to the crime lab—the amount that the State had recommended as “restitution” to
the state crime laboratory. Ferguson
then brought his postconviction motion to vacate that part of his sentence
requiring the $105 payment.
Although
the trial court did not specifically address the issue of the crime lab payment
at sentencing, it did so at the hearing on Ferguson's postconviction
motion. Denying Ferguson's motion, the
trial court explained, in part:
[Section] 973.06(1)(c) which deals with disbursements
for expert witnesses would include the costs of testing those materials by the
State Crime Laboratory. They have to do
this in this case. They have to be
prepared to come into court and testify to that extent, that that kind of, if
you want, [sic] time allocation and cost is something that should be
reimbursable to that expert. You don't
just bring that expert in and say, now, what do you think from looking at that
substance. They would have to actually
perform this test; and so, the Court, if they hadn't performed the test, would
have required them to complete this test, and I think that they're entitled to
be reimbursed for cost [sic] of completing that test. It's a standardized cost in most cases.
Whether
§ 973.06(1)(c), Stats.,
provides authority to order payment to the state crime laboratory is an issue
of first impression. Because this issue
requires interpretation of a statute, it presents a question of law subject to our
independent review. State v. Dodd,
185 Wis.2d 560, 564, 518 N.W.2d 300, 301 (Ct. App. 1994). When interpreting a statute, our objective
is to discern the legislature's intent with the statutory language as the
primary source. Id. If the statutory language is clear on its
face, it should be construed according to its plain meaning. Id. We conclude that the clear language of § 973.06(1)(c) provides
trial courts the sentencing authority to order defendants to pay the state
crime laboratory for the “fees and disbursements” of expert witnesses.[3]
“The
clear and unambiguous language of [section 973.06] provides for the taxation of
costs against the defendant only if the costs fit within one of the categories
enumerated in the statute.” State
v. Peterson, 163 Wis.2d 800, 803-804, 472 N.W.2d 571, 573 (Ct. App.
1991). Whether payment to the state
crime laboratory is a payment fitting within the specific, enumerated statutory
category of “fees and disbursements ... to expert witnesses” presents a
question of law. See id.
at 802, 472 N.W.2d at 573.
Ferguson
argues that this court's recent decision in State v. Evans, 181
Wis.2d 978, 512 N.W.2d 259 (Ct. App. 1994), precludes the trial court from
ordering payment to the crime laboratory.
We disagree. Although the trial
court's order required payment of “costs” to the crime laboratory presumably to
cover the costs of the investigation into Evans's drug crimes, the issue on
appeal was solely and specifically whether the trial court had authority, under
§ 973.20(1), Stats., to
order the defendant to reimburse the Metro Narcotics Unit for $120 in “buy
money”—funds used by undercover police to buy drugs—as a condition of
probation. Id., 181
Wis.2d at 979 & n.1, 512 N.W.2d at 259 & n.1. The instant case, by contrast, deals neither with “buy money” nor
with the trial court's authority to order a probation condition under
§ 973.20(1). Thus, Evans
does not control this case.[4]
Ferguson
also argues that § 973.06(1)(c), Stats.,
is inapplicable to his case because “[t]here were no expert witnesses from the
crime lab ... at the preliminary examination or at the trial.” Ferguson fails, however, to offer any
authority that would require a witness's actual appearance or testimony in
order to qualify for the trial court's allowance of expert witness fees and
disbursements.[5] Indeed, there would be no logical basis for
such a rule. As the State argues:
[T]he fact that
Mr. Popovich did not testify in person at trial makes him no less a “witness”
for purposes of trial and for purposes of taxable costs under sec.
973.06(1)(c), Stats. The term “expert
witness” in sub. (1)(c) of sec. 973.06, Stats., clearly contemplates those
experts whose development of evidence is used in the prosecution in
question—whether on behalf of the State or the defense—regardless of whether
the “expert witness” actually testifies in person.[6]
We
agree. Moreover, § 973.06, Stats., specifically exempts the award
of expert witness fees from the requirement, under § 814.04(2), Stats., that the witness have
testified. We thus reject Ferguson's
argument and conclude that the trial court properly exercised its discretion in
allowing fees and disbursements to expert witnesses under § 973.06(1)(c).[7]
By
the Court.—Judgment and order
affirmed.
[1] Because we
resolve this case on a statutory basis, we need not consider the issue of the
trial court's inherent authority. See
Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938)
(only dispositive issue need be addressed).
[2] The trial court's judgment specifies a DARE
payment of $610, but the court subsequently ordered a payment of $615.
[3] Section 973.06(1)(c), Stats., provides:
(1) Except
as provided in s. 93.20, the costs taxable against the defendant shall consist
of the following items and no others:
....
(c) Fees and disbursements allowed by the court to expert
witnesses. Section 814.04(2) shall not
apply in criminal cases.
Section 814.04(2), Stats.,
provides for witness fees for expert witnesses who testify.
[4] The State
conceded on appeal that the trial court had no authority to order repayment of
“buy money” as “costs” under § 973.06(3), Stats., and we did not address that issue. State v. Evans, 181 Wis.2d
978, 981, 512 N.W.2d 259, 260 (Ct. App. 1994).
Even the most generous reading of Evans allows for no
interpretation that in any way could encompass the issue in this case relating
to expert witnesses under § 973.06(1)(c), Stats.
[5] In fact, under § 970.03, Stats., at a preliminary hearing, “[t]he
expert who made the findings need not be called as a witness.”