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COURT OF
APPEALS DECISION DATED AND
RELEASED April
25, 1996 |
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. 95-2997
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
In the
Interest of Skylar V.,
A
Person Under the Age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
JENNIFER
V.,
Respondent-Appellant.
APPEAL
from orders of the circuit court for Monroe County: MICHAEL J. ROSBOROUGH, Judge.
Affirmed.
EICH,
C.J.[1] Jennifer V. appeals from an order finding
her child, Skylar V., to be in need of protection or services and placing her
with her paternal grandmother. The
order was based on § 48.13(3m), Stats.,
which, among other things, defines a child in need of protection or services as
one
[w]ho is at substantial risk of becoming the victim of
... physical abuse, including injury that is ... inflicted by another by other
than accidental means, based on reliable and credible information that another
child in the home has been the victim of ... physical abuse.
Jennifer
V. appeals from the order, and from a subsequent order denying her motion for
postjudgment relief. She argues that:
(1) the trial court lacked jurisdiction to enter the order because the facts
upon which it was based occurred prior to the effective date of
§ 48.13(3m), Stats.; (2) the
trial court erroneously exercised its discretion when it declined to strike a
prospective juror for cause, requiring Jennifer V. to use one of her preemptive
strikes to do so; and (3) the court improperly took judicial notice of other
judgments involving Jennifer V. We
reject her arguments and affirm the order.
The
facts are not in serious dispute and will be discussed as they relate to the
individual issues.
I.
Jurisdiction
In
January 1994, Monroe County filed a petition alleging that Jennifer V. had
neglected Skylar. The petition referred
to a contemporaneous, but as-yet-unresolved CHIPS proceeding involving Skylar's
younger brother, Kody, based on charges of abuse and failure to provide medical
care. The petition also alleged that,
in the opinion of the social worker assigned to the family, Skylar was at risk
of harm due to a past history of abuse and neglect, and also due to the events
involving Kody, who was then hospitalized as a result of abuse. Skylar was temporarily placed with her
paternal grandmother.
On
May 4, 1994, § 48.13(3m), Stats.,
became effective, creating a new basis for CHIPS jurisdiction on grounds that
another child in the home had been abused or neglected.
On
May 10, 1994, Jennifer V. and her husband filed their own CHIPS petition,
alleging that they were unable to care for Kody and provide for his medical needs. The following day the county moved to
dismiss the CHIPS petition it had filed regarding Kody, and he was found to be
in need of protection or services pursuant to his parents' petition. On the same day, the parties entered into a
consent decree in Skylar's case, continuing her placement with her grandmother.
On
November 12, 1994, Jennifer V. was convicted of three counts of felony abuse of
her children--two involving abuse of Skylar in 1991 and 1992, and one involving
abuse of Kody in 1993-94. The count
involving Kody was based on the facts that had been mentioned in the earlier
CHIPS proceeding, which had been resolved by the consent decree.
Following
Jennifer V.'s convictions, the county filed the petition that is the subject of
this appeal, alleging that Skylar was at risk of abuse in the home on the basis
of information that her younger brother, Kody, had been abused. The factual basis for the petition was
Jennifer V.'s conviction for abusing Kody.
The
jury found Skylar to be in need of protection or services within the meaning of
§ 48.13(3m), Stats., and, as
indicated, the court entered a dispositional order placing Skylar under the
supervision of the Department of Human Services, with placement continuing with
her paternal grandmother.
Jennifer
V., claiming that the county's petition was based on facts occurring prior to
the enactment of § 48.13(3m), Stats.,
argues that because the statute may not be applied retroactively, the court
lacked jurisdiction to proceed with the petition.
We
agree with the county, however, that the petition was based not on allegations
of abuse of Kody occurring prior to the effective date of the statute but on
Jennifer V.'s conviction of abuse in November 1994. We conclude that, while the injuries suffered by Kody (and
Skylar) which were the subject of those convictions occurred prior to that
date, the convictions themselves--the actual determination that the abuse had
in fact occurred--constitute a separate and distinct determination which may be
utilized as a separate factual basis for a petition under the statute. Taking that view, the trial court did not
apply the statute retroactively and did not lack jurisdiction to proceed in the
case.
II. Impartial Jury
During
the voir dire, Jennifer V.'s attorney explained to the jury panel that she had
been convicted of three counts of child abuse and described the facts giving
rise to those convictions, which included injuries causing brain damage to
Kody, who was approximately one year old at the time. The following exchange then occurred between counsel and one of
the prospective jurors, Calvin Oium:
MR.
BEATTY (defense counsel): Hearing that, how many of you have your minds made
up? Mr. Oium?
JUROR:
Yes.
MR.
BEATTY: And can you say how your mind
is made up?
JUROR: Guilty.
MR.
BEATTY: Would you like me to ask the Judge to excuse you?
THE
COURT: I'm not going to excuse him, Mr. Beatty. You have strikes for that purpose.
MR.
BEATTY: Mr. Oium, do you think you can
be an impartial juror in this case given your view on that?
JUROR:
Not from what I know.
MR.
BEATTY: Your Honor, I'm --
THE COURT: That's going to be part of the evidence in
the case. If the evidence in the case
persuades him, then I don't think that he's indicated that he can't be
impartial. He indicated that the
evidence that you suggest [is going to be offered] then he's likely to find
that the child is in need of protection or services. I don't think it's a bias.
Jennifer
V. then used one of her peremptory strikes to eliminate the juror from the
panel.
Jennifer
V. correctly cites the admonition of § 805.08(1), Stats., that "[i]f a juror is not indifferent in the
case, the juror shall be excused."
It is equally true, we think, that Mr. Oium was not
"indifferent."
She
does not, however, discuss the line of cases, culminating in State v.
Traylor, 170 Wis.2d 393, 400, 489 N.W.2d 626, 629 (Ct. App. 1992),
recognizing "Wisconsin's longstanding rule ... that where a fair and
impartial jury is impaneled, there is no basis for concluding that a defendant
was wrongly required to use peremptory challenges." As we noted in Traylor,
"There is no constitutional right to peremptory challenges; there is only
a constitutional right to an impartial jury." Id. (citing Ross v. Oklahoma, 487
U.S. 81, 85, 88 (1988)). Thus,
[w]here there is no showing that any of the actual
jurors were biased, it would be speculative for a court to conclude that the
jury would have been fairer if counsel had been allowed to preserve peremptory
challenges on other, unspecified members of the jury venire. Moreover, there would be no stopping point
if the deprivation of such speculative benefit, standing by itself, could
establish prejudice.
Id.
A
claim, such as that made by Jennifer V. in this case, that a jury is not
impartial must focus not on the jurors who were removed by peremptory
challenges but on the jury that actually heard the case. Ross, 487 U.S. at 85-86. Jennifer V. neither argues nor offers any
evidence that the jury, as empaneled--or any of its members--was biased. We thus reject her argument.
III. Judicial
Notice
Prior
to trial, the court took judicial notice of the verdicts and information in
Jennifer V.'s felony abuse case. It
also noticed the 1991 CHIPS proceeding and the fact that Skylar had been
adjudged in need of protection or services.
The documents were read to the jury and the court instructed the jurors
that they were to accept those facts as having been established.
In
Perkins v. State, 61 Wis.2d 341, 346, 212 N.W.2d 141, 144 (1973),
the supreme court, without discussion, noted the existence of an earlier
rule--stemming, apparently, from McCormick v. Herndon, 67 Wis.
648, 652-53, 31 N.W. 303, 306 (1887)[2]--that
"a circuit court cannot take judicial notice of its own records in another
case." We need not decide whether
that rule, considered in context, would apply here so as to render erroneous
the trial court's action because (a) defense counsel never offered a specific
objection to the court's taking notice of the documents, and (b) even if it
could be considered error under Perkins to notice them, we are
satisfied that any such error would be harmless.
At
the time the county attorney asked the court to take notice of the convictions
and other documents, defense counsel made no objection, asking only clarifying
questions about the judgments and petitions.
Then, just before the jury was brought in, counsel made the following
general statement: "Judge, I would like to preserve an ongoing objection
to the admission of all the evidence that's been discussed here at this
time."
Objections
must be specific. "In order to
preserve his [or her] right to appeal on a question of admissibility of
evidence, a defendant must apprise the trial court of the specific grounds upon
which the objection is based." State
v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200 (Ct. App. 1991)
(citation omitted). The purpose of the
rule is, of course, to allow the trial court to remedy any possible error and
thus avoid creation of an issue for appeal.
State v. Barthels, 166 Wis.2d 876, 884, 480 N.W.2d 814,
818 (Ct. App. 1992), aff'd, 174 Wis.2d 173, 495 N.W.2d 341 (1993). Defense counsel never made the type of
specific objection that would entitle Jennifer V. to review of the court's
decision to take judicial notice of the documents.[3]
Even
if the objection was not waived, the test for harmless error is whether the
result of the proceeding would have been otherwise had the error not been
committed. State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). The social worker, Ann Garrity, testified that she was aware of
Jennifer V.'s convictions and began to discuss her knowledge of the conviction
relating to Kody--only to be cut off by defense counsel, who stated: "Your
Honor, this is already in evidence."
The court directed Garrity to continue and she went on to tell how she
had discussed the convictions with Jennifer V.'s husband and with Jennifer V.
herself. Defense counsel then
cross-examined Garrity about the convictions and the facts upon which they were
based.
We
cannot say on this record that there is any reasonable possibility that, had
the judgments of conviction themselves not been judicially noticed, the result
of the proceeding would have been different. Dyess, 124 Wis.2d at
543, 370 N.W.2d at 231-32.
By
the Court.—Orders affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.