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COURT OF APPEALS DECISION DATED AND RELEASED August
10, 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. 95-1179
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF MOSES SEAN P.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
MOSES
SEAN P.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Columbia County: LEWIS W. CHARLES, Judge. Affirmed.
VERGERONT,
J.[1] Moses
Sean P., a juvenile, appeals from an order waiving juvenile court jurisdiction
over him. The only issue on appeal is
whether the trial court erred in determining that the delinquency petition
demonstrated prosecutive merit. We
affirm the trial court's determination that the matter has prosecutive merit.
The
delinquency petition alleges that Moses, as a party to a crime, intentionally
damaged the DeWaide residence by means of fire in violation of
§ 943.02(1)(a), Stats.,
which would be a Class B felony if committed by an adult; and that he, as a
party to a crime, intentionally caused damage to the physical property of the
Poynette-Dekorra Fire Department in violation of § 943.01(1), Stats., which would be a Class A
misdemeanor if committed by an adult.
The State petitioned for the court to waive its juvenile court
jurisdiction under § 48.12, Stats. Moses objected on the ground that the
delinquency petition did not show prosecutive merit. Following the waiver hearing, the trial court entered an order
waiving juvenile court jurisdiction.
The trial court determined pursuant to § 48.18(4), Stats., that there was prosecutive
merit regarding the two charges and made findings regarding the criteria for
waiver under § 48.18(5).
The
petition incorporates details of a report prepared by Michael J. Van Kueren, a
special agent with the Division of Criminal Investigation of the Wisconsin
Department of Justice. The pertinent
parts of the petition are as follows.
On
November 14, 1993, at approximately 3:03 a.m., the Poynette Fire Department
received a report of a fire at the DeWaide residence at 730 South Main Street
in Poynette. Emergency personnel
arrived at the scene while the fire was in progress. Based on an interview with K.L. DeWaide and an inspection of the
fire scene, Van Kueren concluded the cause was arson.
The
Poynette Police Department reported that during the evening of November 13,
1993, or the early morning of November 14, 1993, a bottle was thrown against
the front glass door of the Poynette Fire Department. Pieces of the broken bottle were gathered and tested by the State
Crime Laboratory. The report of the
state crime examiner concluded that bottle fragments contained the latent
fingerprint of Moses and the latent fingerprint of Mark O. based on comparison
with fingerprint cards submitted by the Poynette Police Department bearing the
names of Mark O. and Moses.
Van
Kueren interviewed Rae Buss on January 7, 1994, who told him that around 2:00
a.m. on the morning of November 14, 1993, she saw Moses and Mark walking
along South Main Street, about one-half block south of the fire department. Buss also told Van Kueren that sometime
between the fire and Thanksgiving, her nephew, who knows Moses and Mark, told
her that he had talked to Moses and Mark on the telephone and Mark had told him
that he and Moses were responsible for the fire at the DeWaide residence.
On
January 14, 1994, Poynette Police Chief Dale McConkey interviewed Jessica
Rankin. Rankin told him that about a
week before December 17, 1993, Mark and Moses were at her house and she
kiddingly said to them "You guys burned that house down, didn't
you?" She then called them
arsonists and said "Don't burn down my house." Moses and Mark then said something to the
effect of, "They can't prove anything.
They will never know." Mark
said that if law enforcement officers talked to them about the fire, they would
deny it.
On
January 14, 1994, Treavor McGonigle testified at a fire marshall hearing
conducted at the Poynette Police Department that sometime in the middle of
December 1993, he had a conversation with Moses in which he, McGonigle, asked
"What's going on with the fire?"
Moses answered that he and Mark "went up there and that Mark lit a
piece of paper or something on fire" in the garage; the purpose of being
in the garage, Moses told McGonigle, was to look around. McGonigle also stated that he received a
telephone call from Mark and told Mark that he had already talked to Moses
about the fire. According to McGonigle,
Mark said, "Well, don't tell anyone." McGonigle also stated that Moses told him that he and Mark had
broken out the windows at the Poynette Fire Department in a conversation that
took place several months before the fire marshall hearing on January 14, 1994.
When
a juvenile contests the prosecutive merit of a delinquency petition, it is
within the juvenile court's discretion whether to hold a hearing to take
testimony or consider evidence in addition to the petition. In re P.A.K., 119 Wis.2d 871,
887, 350 N.W.2d 677, 685 (1984). If
there is a challenge by the juvenile accompanied by a showing that his or her confession
is unreliable, the juvenile court must set the confession aside and determine
whether the petition is sufficient, without the challenged confession, to show
prosecutive merit. In re J.G.,
119 Wis.2d 748, 763, 350 N.W.2d 668, 676 (1984); In re Curtis W.,
192 Wis.2d 719, 725, 531 N.W.2d 633, 635 (Ct. App. 1995). If the remainder of the petition is not
sufficient for a finding of prosecutive merit, the juvenile court must conduct
a hearing at which the State must prove that the confession is reliable by a
preponderance of the evidence. In
re J.G., 119 Wis.2d at 763-64, 350 N.W.2d at 676.
Moses
is not challenging the failure of the trial court to hold an evidentiary
hearing on the issue of prosecutive merit.
He is not contending, nor has he made a showing, that the statements he
reportedly made to others were involuntary or unreliable. Although the State appears to consider
otherwise, we do not understand Moses to claim that the statements he made to
others that are reported in the petition are confessions and cannot be
considered. Rather, we understand
Moses's only claim to be that the petition does not show that the hearsay
statements of McGonigle contain adequate guarantees of trustworthiness to
sustain the trial court's finding of prosecutive merit based on the
petition. It was therefore proper for
the trial court, as Moses apparently concedes, to look solely at the petition
in determining prosecutive merit.
In
order to be the basis for a finding of prosecutive merit, the petition must
contain adequate and detailed information of the juvenile's alleged violation
of state criminal law and have demonstrable circumstantial guarantees of
trustworthiness. In re P.A.K.,
119 Wis.2d at 886, 350 N.W.2d at 685.
Hearsay evidence may be considered if it has demonstrable guarantees of
trustworthiness. Id. at
885, 350 N.W.2d at 685. Prosecutive
merit under both § 48.18(4) and (5), Stats.,
involves the same standard as probable cause at the preliminary hearing stage
in an adult criminal proceeding--a reasonable probability that the alleged
crime has been committed and that the juvenile has probably committed it. Id. at 884, 350 N.W.2d at
684. Whether a petition shows
prosecutive merit presents a question of law that we review de novo. Cf. Nottelson v. DILHR,
94 Wis.2d 106, 116, 287 N.W.2d 763, 768 (1980) (whether facts fulfill a
particular legal standard is a question of law).
With
respect to the charge of criminal damage to property, we conclude the petition
shows prosecutive merit. Moses does not
argue otherwise. The petition states
that Moses was seen in the vicinity of the fire department during the time
period when the bottle was reportedly thrown against the door of the fire
department. A state crime lab report
shows his fingerprint was found on a fragment of the bottle.
With
respect to the arson charge, Moses does not challenge the information in the
petition that the cause of the fire was arson.
We therefore focus on the information that ties Moses to the fire. He was seen walking on the street (South
Main Street) on which the DeWaide residence was located approximately an hour
before the fire was reported at a time of night when presumably not many people
are out walking. There are then
statements by three separate witnesses that either Mark or Moses or both made
statements indicating that Moses took part in setting the fire--Buss (based on
statements made by her nephew), Rankin and McGonigle. Since Moses makes a claim of lack of trustworthiness only with
respect to McGonigle's testimony, we consider his testimony first.
Moses
claims that McGonigle's testimony was not sufficiently trustworthy because it
was not a statement against interest and did not contain enough detail about
the circumstances of his conversations with Moses. There is no requirement that a statement be against interest to
be considered sufficiently trustworthy for finding prosecutive merit, although
that may be one indicium of trustworthiness.
McGonigle's statements were made as testimony at a fire marshall
hearing. He did testify in specific
terms as to what Moses told him about the fire. We conclude McGonigle's testimony possessed sufficient guarantees
of trustworthiness to justify its consideration as a basis for finding
prosecutive merit. We further conclude
that McGonigle's testimony about Moses's statements to him, in conjunction with
Buss's statement about seeing Moses an hour before the fire, show prosecutive
merit for charging Moses with setting fire to the DeWaide residence. We therefore need not address Rankin's
statement or Buss's statement about her nephew's conversation with Moses and
Mark.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.