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COURT OF APPEALS DECISION DATED AND RELEASED August 3, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
95-0454
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE INTEREST OF BOBBY P.,
A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
BOBBY P.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Dane County:
SARAH B. O'BRIEN, Judge. Affirmed.
GARTZKE, P.J. Bobby P., born on August 10, 1978, appeals
from the juvenile court's order waiving jurisdiction over him.[1] He asserts that the underlying delinquency
petition was insufficient, evidence of a prior "not guilty" finding
should not have been admitted, an evidentiary hearing should have been held on
prosecutive merit, he should have access to his own mug shots, and the grounds
the court relied on for waiver are insufficient. We reject his contentions and affirm.
These proceedings arise
out of a shooting incident in Madison, Wisconsin, on November 23, 1994, in
which one man was seriously injured and three others escaped injury. The shooter was part of a group of several
young black males who approached the victim and his friends to ask for
marijuana. The shooter opened fire with
a shotgun. Other firearms probably were
also involved. The group involving the
shooter then fled in a truck driven by Dawn Soberiski. According to the petition, one or more
persons identified the juvenile as part of the group that included the shooter.
The delinquency petition[2]
charges that on November 23, 1994, the juvenile intentionally, by use of a
firearm, attempted to cause the death of another person, Antoin L. Bussey, as a
party to the crime, contrary to §§ 939.32, 939.63, 939.05 and 940.01(1), Stats.
The second charge alleges that the juvenile, by use of a dangerous
weapon, a firearm, endangered another's safety, Robert R. Washington, under
circumstances showing utter disregard for human life, as a party to the crime,
contrary to §§ 939.05, 939.63 and 941.30(1), Stats. The third
charge is that the juvenile, by use of a dangerous weapon, a firearm,
endangered another's safety, Albert Cole, under circumstances showing utter
disregard for human life, as a party to the crime, contrary to §§ 939.05,
939.63 and 941.30(1), Stats. The fourth charge is that the juvenile, by
use a dangerous weapon, a firearm, endangered another's safety, Shurone V.
Johnson, under circumstances showing utter disregard for human life, as a party
to the crime, contrary to §§ 939.05, 939.63 and 941.30(1), Stats.
Our discussion tracks
the three stages of the proceedings. In
the first stage, the court found that the delinquency petition was
sufficient. In the second, the court
found that the matter has prosecutive merit.
In the third, the court waived the juvenile into adult court.
A. Sufficiency of Delinquency Petition
Section 48.255(1)(d), Stats., provides that if a petition
initiating proceedings under ch. 48, Stats.,
alleges a violation of a criminal statute, the petition must contain the
citation of the appropriate laws and "facts sufficient to establish
probable cause that an offense has been committed and that the child named in
the petition committed the offense."
The sufficiency of the delinquency petition is critical to the court's
competency to decide whether to waive jurisdiction over a juvenile. The court acquires that competency on the
filing of a sufficient delinquency petition.
In Interest of Michael J.L., 174 Wis.2d 131, 139-40, 496
N.W.2d 758, 761-62 (Ct. App. 1993).
1. The Factual Allegations
The following summary of
the factual allegations in the petition relies heavily on the description in
the State's brief.
The juvenile, Courtney
M., and Eddie B. resided in the home of James C. and Theresa P. Theresa P. is the mother of the
juvenile. According to Randy Dorsey,
who had known them for two or three years, Bobby, Eddie, and Courtney are
members of a gang known as the Vice Lords.
Dawn Soberiski was a resident at 506 West Olin Avenue in Madison with
roommates Duane Shulte and William Weber.
Sometime in October 1994 Soberiski began a relationship with a male
known as "Mack." Shortly
thereafter some of his friends, known as "Chili," "Henry"
and "Animal" and a black female named Molisa began to spend time in
the Olin Avenue apartment. Henry,
Chili, Animal and Mack represented themselves to be affiliated with the Insane
Mafia Vice Lords.
On or about November 11,
1994, Mack reported to Henry and Chili that "the Folks are messing with
`Tweety,'" who is Eddie. Mack said
this was not right and they had to get back at the Folks. On or about November 20, 1994, Weber walked
into Soberiski's bedroom, observed a sawed-off shotgun and a sawed-off rifle on
the bed. He also saw a shotgun shell
and a box with approximately 100 .22-caliber shells in it on a dresser.
Before November 23, 1994,
three juveniles, whom Soberiski knew as Tweety, Bobby and Courtney, visited her
apartment on a number of occasions. She
positively identified a photograph of Eddie as "Tweety" and a
photograph of Courtney as an individual who had been at her apartment before,
and she identified a photograph of the juvenile as being either
"Courtney" or the brother of "Tweety." On or about November 22, 1994, Chili, Henry,
Tweety, the juvenile, Courtney and Animal were at Soberiski's apartment
drinking and smoking in her bedroom.
When they came out of her bedroom they were loud and saying, "Mafia
(this), Mafia (that)," "Folks must die," and "GD's must
die."[3]
Tekea Stewart has known
Courtney and the juvenile since August 6, 1994, and she has known Eddie for
about three years. On November 23,
1994, the day of the shooting, Courtney picked her up from school. The juvenile was also in the vehicle. They drove to Darbo Drive at about 1:30
p.m., at which time the juvenile left the vehicle to visit his girlfriend. Eddie began talking with a group of boys
outside and then began going back and forth to the car, telling Courtney that
the boys were talking about how they got jumped on Allied Drive at gunpoint and
how they wanted to go back there and shoot.
Eddie got back into the car and started talking about guns and about who
they could get guns from and how they should go in a big van with the Lords and
go shoot Disciples on Allied Drive and Simpson Street. Upon leaving Darbo Drive, Stewart, the
juvenile, Courtney and Eddie were in the car, and Eddie was talking about
getting guns from some "hype" he knew and some girl. Stewart had previously seen Eddie, the juvenile,
and Courtney with a gun between August and September 1994.
On November 23 Molisa
Prince was at the Olin Avenue apartment with Dawn Soberiski, Duane, Will,
Animal, Chili and Henry, when at about 5:30 p.m. three young black males, whom
Prince identified by photograph as Eddie, the juvenile and Courtney, came into
the apartment. Eddie, the juvenile and
Courtney went into Soberiski's room where they talked to Henry and Chili and
began to smoke marijuana and drink beer.
Some time thereafter Soberiski left the apartment to visit her friend
named Will, at his residence.
On November 23 Soberiski
drove to William Dinkins's residence and arrived at about 7:00 p.m. A short time later she telephoned her
apartment to speak to Molisa. A male
got on the phone who asked "Soberiski to come and pick us up and take us
to Somerset." She agreed to do so,
after which she and Dinkins left his residence and drove to her apartment. There they waited and beeped the truck horn
but no one came. Soberiski started into
the building, when Henry, Chili, Courtney, the juvenile and Eddie started
coming out. Molisa Prince observed
Henry, Chili, Courtney, Eddie and the juvenile leave Soberiski's apartment at
about 7:45 p.m. Henry and Chili got
into the cab of the truck. Eddie,
Courtney and the juvenile got into the truck bed. Chili sat on Dinkins's leg and was wearing a curly Afro wig and
had a .22 rifle in his possession.
Dinkins observed that the black male sitting near the door of the truck
had a banana clip about a foot long.
After entering the truck Chili told Soberiski that there was a change of
plans and that he wanted her to go to Simpson Street. Chili gave Soberiski directions to 1717 Simpson and told her
where to park. Upon arriving at that
location, Eddie, Courtney, the juvenile, Henry and Chili got out of the truck
while Soberiski and Dinkins remained in the cab with the motor running. Dinkins observed that after the five black
males got out of the truck they began walking toward the "Hole" on
West Broadway.
On November 23, some
time before 9:00 p.m., Robert Washington was in the back parking lot at 1822
West Broadway playing dice with Antoin Bussey, Shurone Johnson and Albert
Cole. A black male whom Washington knew
as "Courtney" and whom he subsequently identified by photograph as
Courtney M., walked up to them and asked for some "reefer." They told Courtney they had no reefer. Courtney walked back to a group of three or
four other black males that he had been with who were standing between 1814 and
1822 West Broadway.
Shortly thereafter,
another black male, whom Washington described as about six-feet tall, emerged
from the group that Courtney was with and started walking towards Washington's
group. One of Washington's group asked,
"What's up?" at which time the black male who had approached stated
to them, "GDK, that's what's up, nigger, GDK." The black male at the same time, used both
hands in the symbol "pitch forks down," a put-down of the Gangster
Disciples. Washington states that
"GDK" means "Gangster Disciple Killer." The same black male then opened his coat,
pulled out a sawed-off shotgun and pointed it at Washington's group. Washington saw Courtney had a handgun which
Washington believed was a revolver.
Washington, Cole and Johnson upon seeing the shotgun turned and began to
run, after which they heard numerous gunshots.
Cole stated that he recognized one of the individuals in this group to
be Courtney, but when shown a photo lineup which included photographs of
Courtney and the juvenile, Cole selected the photograph of the juvenile as
being part of the group which approached him and his friends at the time of the
shooting.
At the time of the
shooting, Derrick Gosha was in an apartment at 1822 West Broadway. He looked out of a window facing 1902 West
Broadway and saw the juvenile and Eddie standing outside, between 1822 and 1902
West Broadway. At the same time Gosha
saw a person known to him as K-Ron walking backwards out of the east entrance
of 1902 West Broadway while firing a gun into the entrance. Gosha heard the juvenile and Eddie call to
K-Ron, "Let's go."
Officer Montie reported
that on November 23, at about 7:55 p.m., he was dispatched to 1902 West
Broadway regarding the shooting.
Shortly after arriving he saw Antoin Bussey laying in the middle of the
ground-floor hallway at 1902 West Broadway with gunshot wounds. Detective Alix Olson subsequently made
contact with Bussey at the hospital and saw that he had nine gunshot wounds,
including four in the back.
William Dinkins believed
that the five black males who left Soberiski's truck were gone for ten to
fifteen minutes, after which they returned to the truck. At the time, he saw that one of the
individuals who had been in the back of the truck was carrying what appeared to
be a sawed-off shotgun. Chili and Henry
again entered the cab of the truck while the juvenile, Courtney and Eddie again
crawled into the back. Dinkins saw that
the black males appeared to be very excited, talking loudly, laughing, and
jittery. Dinkins heard the black male
with the .22 rifle say he did not know how many times he shot him but he shot
him a lot. Dinkins heard Soberiski tell
them that if she had known what they were going to do, she would not have come
and picked them up. When they arrived
back at Soberiski's apartment, everybody got out in a hurry and ran upstairs,
after which Dinkins and Soberiski returned to his residence.
At about 8:15 p.m. on
November 23, Molisa Prince saw Chili, Henry, Courtney, Eddie and the juvenile
return to Soberiski's apartment. She
saw them immediately begin to switch their hats and jackets. Shortly after they returned to the
apartment, Courtney and the juvenile said that they were going to leave to go
to Courtney's girlfriend's house. Eddie
stayed in the apartment for a short time, but then said that he was going to
leave in an attempt to catch up with Courtney and the juvenile. Prince was able to hear the sound of sirens
going by the apartment, at which time Chili said, "I hope I got that
mother-fucker."
At about 8:50 p.m. to
9:00 p.m. on November 23, Courtney and the juvenile arrived at Tekea Stewart's
residence, followed by Eddie about five minutes later. Stewart saw that Eddie was "dressed
funny" in that he was in all dark clothing and "He was wearing a wig,
a curly wig, black with a hat, like a disguise." Stewart states that besides herself, Courtney, the juvenile and
Eddie, the only other person in her apartment at that time was her sister,
Billie Dixon. Dixon saw that Eddie
looked nervous and started talking to the juvenile. Dixon heard Eddie say words to the effect "that `mob' shot
that `mob' eight or nine times, and as the `mob' was shooting the `mob' said
that he was dying." Dixon then
accused the juvenile and Eddie of having done something, and they both denied
doing anything. Dixon states that Eddie,
Courtney and the juvenile left the residence at about 9:20 p.m.
Police investigators
located twenty bullet casings at the scene of the shooting. An unidentified citizen picked up a
.12-gauge shotgun shell in the parking lot of 1717 Simpson Street and gave it
to the police. A police investigator
reports that it appears that the suspects in the case started shooting from the
terrace of 1822 West Broadway, moved in a westerly direction to the 1902 West
Broadway driveway, then continued up into the 1902 West Broadway vestibule,
after which they entered the hallway at 1902 West Broadway and remained in the
immediate east end, with all the bullet holes starting from the east and
traveling west.
The juvenile and
Courtney went to Randy Dorsey, Jr.'s residence on November 24 at about 3:00
p.m. The juvenile told Dorsey that they
were involved in the shooting on West Broadway the night before. Dorsey stated,
Bobby
was just saying that they had drove up on the side of the building and they had
come around the corner and got into an argument with the people outside and as
they were arguing Courtney was telling Bobby to move out of the way so that
when Bobby moved, he just started shooting at the people who were sitting
outside shooting dice.
2. Probable Cause
The principles that
govern the sufficiency of criminal complaints apply to the sufficiency of a
petition in a juvenile court proceeding.
In Interest of L.A.T., 167 Wis.2d 276, 283, 481 N.W.2d
493, 496 (Ct. App. 1992). Whether the
petition is sufficient is a question of law which we decide without deference
to the juvenile court's ruling. Id.
at 282-83, 481 N.W.2d at 496. The
petition must state with specificity reliable and credible information
necessary to invoke the juvenile court's jurisdiction and to provide reasonable
notice of the conduct or circumstances to be considered by the court. Id. at 284, 481 N.W.2d at
497. When determining the sufficiency
we may draw logical and fair inferences from the allegations. Id.[4]
We need not tarry over
the first requirement in § 48.255(1)(d), Stats.,
that the petition alleges facts sufficient to establish probable cause that a
criminal offense has been committed.
Nobody argues otherwise. The
issue before us is whether the petition alleges facts sufficient to establish
that the juvenile probably committed the offense. In Interest of P.A.K., 119 Wis.2d 871, 875, 350
N.W.2d 677, 680 (1984).
The elements of
attempted first-degree intentional homicide, as applied in this case to a
principal, are that the actor intended to cause the death of Antoin Bussey and
that the actor's acts demonstrated unequivocally under all of the circumstances
that he intended to and would have caused the death, except for the
intervention of some other person or some other extraneous factor. Wis
J I—Criminal 580 and Wis J
I—Criminal 1010. The elements of
first-degree "recklessly endangering safety," as applied in this case
to a principal, include that the actor endangered the safety of another human
being, that he did so by criminally reckless conduct which created an
unreasonable and substantial risk of death or great bodily harm to another and
that the actor was aware that his conduct created such a risk, and that the
circumstances of the actor's conduct showed utter disregard for human
life. Wis
J I—Criminal 1345.
No dispute exists that
probable cause was shown as to the substantive offenses charged as applied to
the shooters. Intent to kill is reasonably
inferred from the fact that Antoin Bussey was shot nine times, including four
shots in the back. The elements of
first-degree recklessly endangering safety are reasonably inferred from the
statements of Albert Cole and Shurone Johnson and the physical evidence
recovered by a special investigator of the Madison Police Department. Cole stated that the individual with the
shotgun pointed it at the chests of a group of men playing dice, Cole began to
run and he heard between eighteen and twenty shots fired. Johnson said that the individual with the
shotgun pointed it at him and his friends, and he therefore turned and began to
run. He believes that the man with the
shotgun shot once at them, after which Johnson heard eight to thirteen other
shots. A police investigator states
that twenty bullet casings were collected in the general area. The reasonable inference from the evidence
is that a group of five black males began shooting indiscriminately at Antoin
Bussey, Albert Cole, Robert Washington and Shurone Johnson.
The question remains
whether sufficient facts are alleged to establish probable cause that the
juvenile is a party to the substantive offenses charged. The petition does not allege that he was one
of the shooters. However,
§ 939.05(1), Stats.,
provides,
Whoever
is concerned in the commission of a crime is a principal and may be charged
with and convicted of the commission of the crime although the person did not
directly commit it and although the person who directly committed it has not been
convicted or has been convicted of some other degree of the crime or of some
other crime based on the same act.
Section
939.05(2) provides in material part that a person is concerned in the
commission of a crime if the person directly commits the crime or intentionally
aids and abets its commission or is a party to a conspiracy with another to
commit it or advises, hires, counsels or otherwise procures another to commit
it.
A person intentionally
aids and abets the commission of a crime when, acting with knowledge or belief
that another person is committing or intends to commit a crime, he knowingly
either (a) renders aid to the person who commits the crime, or (b) is ready and
willing to render aid, if needed, and the person who commits the crime knows of
his willingness to aid him. State
v. Charbarneau, 82 Wis.2d 644, 651, 264 N.W.2d 227, 231 (1978).
Aiding and abetting
requires "(1) some conduct (either verbal or overt), that as a matter of
objective fact aids another person in the execution of a crime; and (2)
conscience desire or intent that the conduct will in fact yield such
assistance." State v. Rundle,
176 Wis.2d 985, 1005, 500 N.W.2d 916, 924 (1993).
Conspiracy requires
evidence supporting (1) an agreement among two or more persons to direct their
conduct toward the realization of a criminal objective, and (2) each member of
the conspiracy must individually consciously intend the realization of the
particular criminal objective. State
v. Hecht, 116 Wis.2d 605, 624-25, 342 N.W.2d 721, 732 (1984). The existence of an agreement may be shown
by circumstantial evidence. Id.
at 625, 342 N.W.2d at 732. The
circumstantial evidence utilized in demonstrating an agreement need not
indicate an express agreement among the parties. A mere tacit understanding is sufficient. Id. Lack of a "stake in the venture" does not absolve one
of liability as a party to the crime. Id.
at 627, 342 N.W.2d at 733.
Mere presence and
ambivalent conduct at the scene of a crime are insufficient to charge a
crime. State v. Haugen,
52 Wis.2d 791, 796, 191 N.W.2d 12, 15 (1971).
However, it is reasonable to infer from the allegations that an
agreement existed, at least tacitly, between the juvenile, Henry, Chili, Eddie
and Courtney to shoot and kill Gangster Disciples. It is also reasonable to infer that the juvenile's conduct aided
the shooters. Gosha's statement
established the juvenile's presence and assistance at the shooting scene. The juvenile's saying "Let's go"
supports a reasonable inference that he was acting as a look out and
encouraging or advising the shooters to flee before they were caught. His participation in the jacket switching at
Soberiski's apartment supports a reasonable inference that he continued to
assist both himself and his accomplices in avoiding apprehension.
His presence at the
shooting was not a coincidence. The
trip to West Broadway on the night of November 23 had a purpose and the
juvenile knew the purpose--to shoot Gangster Disciples. The allegations justify the inferences that
the juvenile knew that the truck contained firearms when en route to West
Broadway, that he knew when he left the truck with the others and walked with
them toward the four men rolling dice that a shooting was about to take place,
that he intended it to occur, and that before, during and after the shooting he
was present to assist the shooters.
We conclude that the
delinquency petition sets forth with specificity facts to establish probable
cause that the juvenile committed the crimes alleged in the petition, as a
party to the crimes.
3. Factual Reliability of
Petition
The principles
applicable in determining the factual reliability of a criminal complaint or in
an affidavit supporting a search warrant apply to determining the factual
reliability of a delinquency petition.
Reliable means trustworthy or worthy of confidence. In Interest of J.G., 119
Wis.2d 748, 761, 350 N.W.2d 668, 675 (1984).
Reliability is determined from the face of the petition.
The petitioner is
Detective Grann. He states in the
petition that he bases it on his own personal knowledge and on information and
belief. He states he personally
participated in the investigation, including a meeting with Dawn Soberiski and
her attorney. He states he reviewed
police reports by various Madison police officers. Nothing in the petition indicates that Grann is biased or
prejudiced against the juvenile or that he is lying.
Grann's petition is
based largely on hearsay--the contents of the officers' reports--and that is
permitted if the petition contains something that shows that the information
should be believed. Ruff v. State,
65 Wis.2d 713, 719, 223 N.W.2d 446, 449 (1974).
The officers' reports,
according to Grann, were made in the ordinary course of duty. Statements by officers in the ordinary
course of duty are trustworthy.
The officers collected
statements from the victims of the crime who of course were eyewitnesses. An eyewitness's statement relied on by the
police is reliable. Anderson v.
State, 66 Wis.2d 233, 242, 223 N.W.2d 879, 883 (1974). "[D]irect personal observation attests
to the reliability of the manner in which the citizen informer obtained his
information." Loveday v.
State, 74 Wis.2d 503, 525, 247 N.W.2d 116, 128 (1976). Gosha appears to have been an ordinary
citizen informer. Statements by
ordinary citizens to the police that are believed by the police are
reliable. See State v.
Kerr, 181 Wis.2d 372, 381, 511 N.W.2d 586, 589 (1994), cert. denied,
115 S. Ct. 2245 (1995) (police may assume information from ordinary citizen is
credible).
The State concedes that
Dawn Soberiski is not an ordinary citizen informer, and Grann does not suggest
that she is. But she implicated herself
in the charged crimes, in that she provided transportation to and from the
crime scene, and the shooters and others who were with them, including the
juvenile, congregated at her apartment before and after the shooting. Her statements were against her interest as
an aider and abettor. Such statements
to the police are reliable. P.A.K.,
119 Wis.2d at 888, 350 N.W.2d at 686.
We conclude that the
statements to the officers related in their reports upon which Grann relies are
reliable.
B. Prosecutive Merit
Section 48.18(4), Stats., provides, "The judge shall
determine whether the matter has prosecutive merit before proceeding to
determine if it should waive its jurisdiction."
Even when prosecutive
merit is contested, the State need not present, and the juvenile court need not
consider, evidence in addition to the facts alleged in the delinquency
petition. P.A.K., 119
Wis.2d at 877, 350 N.W.2d at 681. A
full evidentiary hearing on prosecutive merit is not necessary. Id. at 887, 350 N.W.2d at 685.
A determination of
prosecutive merit is analogous to the determination of probable cause in a
criminal proceeding. In Interest
of T.R.B., 109 Wis.2d 179, 187, 325 N.W.2d 329, 333 (1982). "[A] finding of prosecutive merit must
be based on a showing that reasonable grounds exist to believe that the
juvenile has committed the violation of state criminal law charged" Id. (footnote omitted).
"This is the degree of probable cause required to bind over an
adult for criminal trial." Id.
at 192, 325 N.W.2d at 335. Like a
bindover at a preliminary hearing, a finding of prosecutive merit is not a
finding of guilt. The judge in a
preliminary hearing must determine the plausibility of a witness's story and
whether, if the story is believed, it will support a bindover, and may not
delve into the credibility of the witness.
State v. Dunn, 121 Wis.2d 389, 396-97, 359 N.W.2d 151, 154
(1984). The judge conducting a
preliminary is not to choose between conflicting facts or inferences, or weigh
the State's evidence against evidence favorable to the defendant. State v. Koch, 175 Wis.2d 684,
704, 499 N.W.2d 152, 162 (1993). The
same principles apply to determining prosecutive merit.
The juvenile requested
an evidentiary hearing. Before
conducting the hearing, the court required the juvenile to make an offer of
proof regarding the testimony each witness the juvenile desired to call to
support his challenge to prosecutive merit.
We review the offer and the court's reasons for refusing (with a single
exception) to hear the offered testimony.
The juvenile offered to
prove that Albert Cole said Courtney was present at the shooting. When shown an array of photographs that
included photographs of Courtney and the juvenile, Cole selected the juvenile's
photograph rather than Courtney's photograph as picturing one member of the group
of black males that approached Cole prior to the shooting incident. The offer was insufficient to require an
evidentiary hearing. The juvenile court
properly concluded that the offer of proof went to the credibility of Cole's
statement. The prosecutive-merit stage
"is not a forum to examine the credibility of a witness." In Interest of T.M.J., 110
Wis.2d 7, 17, 327 N.W.2d 198, 204 (Ct. App. 1982).
The juvenile offered to
prove that Robert Washington had known both Courtney and the juvenile for several
years, but Washington identified only Courtney as being at the scene and not
the juvenile. This, too, is a matter of
credibility, subject to inquiry at a trial but not at the prosecutive-merit
stage. Id.
The juvenile offered to
show that when his mother and stepfather spoke to Dawn Soberiski a few days
after the shooting, she told them she had no idea who got into her truck. The offer went to Soberiski's
credibility. The evidence is
inadmissible at the prosecutive-merit stage.
Id.
The juvenile offered to
show that Tekea Stewart would testify that she told the police that Eddie and
Courtney talked about other boys talking about getting guns and going in a big
van with Lords to shoot Disciples on Allied Drive and Simpson Street, and
contrary to her statement, she did not say that Eddie and Courtney talked about
themselves getting the guns. The offer
raises a credibility issue as between Stewart and the reporting officer, an
appropriate subject for inquiry at the trial, but not at the prosecutive-merit
stage. Id. The juvenile court correctly refused to hold
an evidentiary hearing to allow the juvenile to present the evidence.
The juvenile offered to
show that Derrick Gosha would testify he never told Detective Alix Olson that
he saw the juvenile and Eddie at the scene of the shooting or that he heard
them say to K-Ron, "Let's go," and further, that Olson had testified
at the preliminary hearing regarding Eddie that Gosha said he heard Eddie say,
"Let's go," but that Officer Olson did not offer any testimony
regarding the juvenile's saying "Let's go." The proposed evidence raises a credibility issue as between the
officer and Gosha. The evidence is not
admissible at the prosecutive-merit stage.
Id.
The juvenile offered to
show that Elizabeth Bell would testify that she was with the juvenile and
Courtney when they went to the Randy Dorsey residence on November 24, the
juvenile got out of the car and went to get Randy, and when he and Randy
returned to the car "three seconds later" no discussion about a
shooting took place in her presence.
For that reason, the juvenile contends that Dorsey's statement to the
police regarding a claimed discussion between him and the juvenile could not
have taken place. The proposed
testimony relates to the credibility of Dorsey. The juvenile also offered to show through Dorsey's testimony that
the statement the police attributed to him did not accurately report what he
said. This too goes to
credibility. It is inadmissible on the
prosecutive-merit issue. Id.
The juvenile offered
through a ten-year-old child, Anthony, to contradict what Soberiski and Dinkins
had said to the police. Again, this
goes to credibility and is inadmissible.
Id.
The court said,
"The juvenile contends that Alix Olson would testify, who is a police
officer, that she is misquoted in the petition. If in fact that is true, that testimony should be allowed because
that directly conflicts with the basis for believing her testimony to be
reliable." Olson is reported to
have furnished statements made to her by Derrick Gosha regarding the juvenile's
presence at the shooting. However, at
no time during the balance of the hearing did the juvenile present the
testimony of Detective Olson, even though the court ruled that the testimony
was admissible, or request a continuance for that purpose.
We turn to the testimony
the juvenile actually produced through witnesses regarding prosecutive
merit. One such witness was Theresa P.,
the mother of the juvenile. Her
testimony pertained to the juvenile's home detention during the fall semester
of 1994. She testified that on November
23 she had left the home. She said she
spoke to her son at home by telephone at about 2:00 p.m. But the shooting incident occurred well
after that. According to Officer
Montie, he was dispatched to the scene of the shooting at about 7:55 p.m. According to the statement by Dinkins, he
and Soberiski left his residence a little after 7:00 p.m. and drove to her
apartment, fifteen minutes later five black males got into the truck, Soberiski
drove to Simpson Street and pulled her truck into the parking lot near 1717
Simpson Street, the males got out of the truck and began walking, were gone for
ten to fifteen minutes and then returned to the truck. While they were driving back to Soberiski's
apartment the black male with the .22 rifle said he did not know how many times
he "shot him, but he shot him a lot." Consequently, Theresa P.'s testimony fails to establish that the
juvenile could not have been at the scene of the shooting. Moreover, her testimony is an attempt to
provide an alibi for the juvenile, and, as such, it raises a credibility issue
and does not affect the reliability of the petition.
The juvenile's mother's
boyfriend, James C., who functions as the juvenile's stepfather, testified that
he gets off work at 2:30 p.m., goes straight home, and should be there by 2:40 p.m. James C. did not testify that the juvenile
was at home in the early evening hours of November 23. James's testimony does not affect the
reliability issue.
We conclude that the
testimony of Theresa P. and James C. failed to establish that the delinquency
petition is unreliable.
The juvenile next
contends that before the court found prosecutive merit, it should have held a Franks
hearing. Franks v. Delaware,
438 U.S. 154 (1978). The Franks
court said,
[W]e hold that, where the defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the
defendant's request. In the event that
at that hearing the allegation of perjury or reckless disregard is established
by the defendant by a preponderance of the evidence, and, with the affidavit's
false material set to one side, the affidavit's remaining content is
insufficient to establish probable cause, the search warrant must be voided and
the fruits of the search excluded to the same extent as if probable cause was
lacking on the face of the affidavit.
Id. at
155-56.
The juvenile failed to
make the required "substantial preliminary showing." The closest the juvenile came to making an
offer of proof that petitioner Grann or any officer reporting to him had made a
false statement was his claim that Detective Alix Olson would testify that the
petition misquoted her. As we have
noted, the juvenile never called Detective Olson, even though the court ruled
that Olson's testimony would be admissible, we add that such testimony as
described in the offer, standing alone, would fail to establish that Grann made
a false statement knowingly and intentionally, or with reckless disregard for
the truth, regarding Olson's report.
We next turn to the
juvenile's assertion that the court should have granted his motion to access
his "mug shots" taken upon his detention for a prior delinquency in
early November 1994 and mug shots taken of him shortly after the instant
delinquency petition was filed later that same month. His counsel asserted that she needed the photographs to show to
potential witnesses involved with the prosecutive-merit issues, and she needed
both sets to show that the juvenile's appearance had not substantially altered
between the beginning and end of November.
The court denied the motion.
On appeal, the juvenile
contends that he was entitled to the mug shots under § 48.293(2), Stats., which provides in relevant
part:
All records relating to a child which are
relevant to the subject matter of a proceeding under this chapter shall be open
to inspection by a guardian ad litem or counsel for any party, upon demand and
upon presentation of releases where necessary, at least 48 hours before the
proceeding. Persons entitled to inspect
the records may obtain copies of the records with the permission of the
custodian of the records or with permission of the court.... Sections 971.23 to 971.25 ... shall be
applicable in all delinquency proceedings under this chapter ....
Sections
971.23 and 971.25, Stats.,
pertain to discovery in criminal cases.
We affirm the juvenile
court's ruling. Section 48.293(2), Stats., permits discovery of "social
reports and records relating to a juvenile." T.M.J., 110 Wis.2d at 14, 327 N.W.2d at 202
(emphasis added). The mug shots were
taken during criminal investigations.
While the statute allows use of the criminal discovery statutes "in
all delinquency proceedings under this chapter," a delinquency proceeding
is not pending unless and until the court declines to waive a juvenile into
adult court. T.M.J., 110
Wis.2d at 11, 327 N.W.2d at 201.
Section 48.293(2) provides for no criminal discovery before a waiver
hearing is held. Id.
Before the hearing the
juvenile unsuccessfully moved the court to prevent the State from using the
record from a prior delinquency proceeding against the juvenile in which a jury
found the juvenile "not guilty."
The issue is pertinent only to whether the juvenile court should have
waived jurisdiction, the third stage of the proceeding.
We conclude that the
juvenile court properly concluded that the matter has prosecutive merit. The court was therefore entitled to
determine whether it should waive its jurisdiction.
C.
Waiver
Section 48.18(5), Stats., provides that if prosecutive
merit is found, the judge shall base the decision whether to waive jurisdiction
on the criteria stated in para. (a) through (d). Section 48.18(6), Stats.,
provides in substance that after considering the criteria under sub. (5), the
judge shall state his or her finding with respect to the criteria and if the
judge determines on the record that it is established by "clear and
convincing evidence that it would be contrary to the best interests of the
child or of the public to hear the case, the judge shall enter an order waiving
jurisdiction ...."
Waiver of jurisdiction
under § 48.18, Stats., is
within the discretion of the juvenile court.
In Interest of J.A.L., 162 Wis.2d 940, 960, 471 N.W.2d
493, 501 (1991). The court is to regard
the best interest of the child as of paramount consideration. Id. The court has discretion as to the weight it affords each of the
criteria under § 48.18(5). We look
to the record to see whether discretion was exercised, and if it has been, we
look for reasons to sustain the court's decision. Id. at 960-61, 471 N.W.2d at 501. We will reverse a juvenile court's waiver
determination if and only if the record does not reflect a reasonable basis for
its determination, or the court does not state relevant facts or reasons
motivating the decision. Id.
at 961, 471 N.W.2d at 501.
The court exercised its
discretion on the basis of facts of record and gave the reasons for its
decision. It first dealt with the
factors listed in § 48.18(5), Stats. The court found that the juvenile is not
mentally ill or developmentally disabled.
He was acquitted on the only previous juvenile court delinquency
petition that was filed. He has not
previously been found delinquent. His
motives, attitudes and physical and mental maturity and pattern of living are
fairly average for a child of his age.
The court described the offense charged against the juvenile as
extraordinarily serious, one of the most serious of all offenses, and except
for good luck the charge could have been murder. The act was premeditated, planned in advance, done in a group and
against an apparently innocent victim, was not in self-defense, and no
mitigating factors whatever are obvious.
The crime was violent, aggressive, premeditated, wilful and serious.
The court found that the
juvenile has an extremely strong family.
The court was impressed by his mother and James C.,[5]
and observed that they apparently had given Bobby everything they could give to
a child. They provided not only a home
but close supervision, responsibility and consequences "when he has
screwed up." The family enrolled
him at Bootstrap, made arrangements for him to have a tutor, and transferred
his school. They attempted to try to
meet his educational needs. They
arranged counseling for him through Bootstrap.
They twice moved so that the juvenile would not be exposed to the
negative influences of gang behavior in Chicago.
In the juvenile court's
view, the record shows a two-to-three year history where, although the juvenile
was not in the court system, he had the benefit of everything the court system
could have offered him. The court
system can offer him nothing which he has not had, in the sense of a good home,
a good school program and counseling.
The court found that given the seriousness of his offenses and the time
that would be available under juvenile court jurisdiction—about two-and-one-half
years maximum—the time is insufficient to assure his rehabilitation and the
safety of the public by dealing with him in juvenile court.
After noting that this
is a terrible tragedy, the court stated it had no choice but to waive juvenile
court jurisdiction. The court declared
that clear and convincing evidence established it would be contrary to the
juvenile's best interests and contrary to the interests of the public to retain
jurisdiction. The court therefore
waived jurisdiction.
We reject the claim that
the evidence is insufficient for the court to waive jurisdiction. The court had found prosecutive merit, and
we have sustained that finding.
Contrary to the juvenile's contention, the court's findings are not
contrary to the great weight of the evidence.
The court did not give undue emphasis to the seriousness of the
charges. While several persons who
dealt with the juvenile testified to his potential to respond to treatment and
that placement in the adult system would be harmful both to him and to the
public, the ultimate decision in that regard is left to the juvenile court, and
its decision on this record is reasonable.
The court emphasized the
seriousness of the offense. We cannot
say, however, that the court improperly emphasized that criterion over all
others. It is by no means clear that
the juvenile's best interest will be served by refusal to waive him into adult
court. Indeed, the court found that
waiver is in his best interest. He had
the benefit of not only a good family but good experiences in the educational
system. In spite of that, probable
cause exists to believe he participated in a premeditated attempt to kill one
person and in reckless endangerment of three other persons under circumstances
showing an utter disregard for human life.
Section 48.18, Stats., does not require a finding
against the juvenile on every criterion before waiver is warranted. The court has discretion regarding the
weight it assigns to each criterion. It
may find that the public's best interest outweighs all other factors and the
juvenile's best interests. In
Interest of B.B., 166 Wis.2d 202, 209-10, 479 N.W.2d 205, 207-08 (Ct.
App. 1991).
This leaves one
issue: whether the court should have
granted the juvenile's motion to prevent the State from using a prior
delinquency allegation against the juvenile on which a jury found him not
guilty. That the juvenile was found not
guilty on the previous charges is immaterial.
Just as a sentencing court may consider conduct for which an adult
defendant has been acquitted, State v. Marhal, 172 Wis.2d 491,
503, 493 N.W.2d 758, 764 (Ct. App. 1992), so may a juvenile court consider a
juvenile's conduct which resulted in a not-guilty verdict.
When it admitted the
acquittal evidence, the court declared it did not "think it is going to be
persuasive one way or the other in my decision." When giving its reasons for waiver, the court simply noted that
the juvenile had been "acquitted on the only previous juvenile court
delinquency petition that was filed."
Nothing in the court's waiver decision suggests that it drew inferences
from the acquittal adverse to the juvenile.
Consequently, admission of the evidence did not prejudice the juvenile.
D. Conclusion
We conclude that the
juvenile court properly exercised its discretion. For that reason, we affirm the order waiving the juvenile court's
jurisdiction over the juvenile.
By the Court.--Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[4] It
is worth noting that § 48.255(1)(e), Stats.,
also requires the petition to set forth with specificity:
If the child is alleged to come within the
provisions of s. 48.13(1) to (11) or 48.14, reliable and credible information
which forms the basis of the allegations necessary to invoke the jurisdiction
of the court and to provide reasonable notice of the conduct or circumstances
to be considered by the court together with a statement that the child is in
need of supervision, services, care or rehabilitation.
The child is not alleged to come within the provisions of § 48.13(1) to (11) or § 48.14. The parties assume that the "reasonable and credible information" requirement applies here.