|
NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
|
|
No.
94-2639-CR
STATE OF WISCONSIN : IN SUPREME COURT
|
|
State of Wisconsin, Plaintiff-Respondent, v. Quincy Ferguson, Defendant-Appellant-Petitioner. |
FILED JUN 26, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW of a decision of the Court of
Appeals. Reversed and cause
remanded.
SHIRLEY
S. ABRAHAMSON, J. This is a review of a published decision of
the court of appeals, State v. Ferguson, 195 Wis. 2d 174, 536
N.W.2d 116 (Ct. App. 1995), affirming an order of the Circuit Court for
Milwaukee County, Lee E. Wells, Judge.
The circuit court convicted Quincy Ferguson (the defendant) of
possession of cocaine base with intent to deliver, while armed, within 1000
feet of a park; possession of THC (marijuana) with intent to deliver, while
armed; and bail jumping. The defendant
contests that portion of his sentence requiring that he pay $105 to the State
Crime Laboratory for testing related to the controlled substances found in his
possession.
The
sole issue presented for our review is the validity of the circuit court order
requiring the defendant to pay State Crime Laboratory expenses as an item of
costs under Wis. Stat. § 973.06(1)(c).
We hold that Wis. Stat. § 973.06(1)(c) does not authorize the
assessment of lab expenses against the defendant for testing controlled
substances found in his possession. We
therefore reverse the decision of the court of appeals and remand the cause to
the circuit court.
I.
For
the purposes of this review, the facts are not in dispute. The defendant's three convictions grew out
of charges that on July 28, 1993, the Milwaukee police found "30 corner
cut bags" of crack cocaine, 6 bags of marijuana and a .32-caliber revolver
under the front seat of his car, which was parked within 1000 feet of
Washington Park in Milwaukee. The
defendant was out on bond in another criminal case at the time.
Following
a two-day bench trial in October 1993, the circuit court found the defendant
guilty on three of the four counts with which he had been charged, as stated
above.[1] The circuit court sentenced the defendant to
a three-year prison term without parole on the cocaine base charge, a one-year
concurrent term on the marijuana charge, and a 49-day concurrent term,
reflecting time already served, on the bail jumping charge. In relation to the cocaine base charge, the
circuit court also imposed a $1000 fine, suspended the defendant's driver's
license for six months, ordered that $615 (the cash found on the defendant when
he was arrested) be given to the DARE program of the Milwaukee Metropolitan
Drug Enforcement Unit, and required the defendant to pay "costs, assessments
and surcharges and restitution" as a condition of his sentence. At
sentencing the prosecutor specifically asked for "restitution of $105 to
the state crime lab."
Alleging
that the lab expenses could not be assessed either as restitution or as costs
under Wis. Stat. § 973.06, the defendant filed a post-conviction motion
pursuant to Wis. Stat. § (Rule) 809.30 seeking to vacate that part of his
sentence holding him responsible for paying $105 to the State Crime Laboratory. At the defendant's post-conviction motion
hearing, the circuit court denied the defendant's motion, reasoning that the
payment of the $105 was sustainable either under Wis. Stat. § 973.06(1)(c)
or as an exercise of the court's inherent power to impose conditions of a
prison sentence. At the post-conviction
hearing, the circuit court explained its reliance on Wis. Stat.
§ 973.06(1)(c) as follows:
Wis. Stat.
§ 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,
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 of completing that test. It's
a standardized cost in most cases.
The
defendant appealed the circuit court's order and the court of appeals affirmed,
relying on Wis. Stat. § 973.06(1)(c).
The defendant then petitioned the court for review.
II.
We
turn now to the question of whether the defendant could be assessed lab
expenses as costs under Wis. Stat. § 973.06(1)(c). Interpretation of a statute is a matter of
law which we review de novo, benefitting from the analyses of the
circuit court and the court of appeals.
Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins.
Plan, 200 Wis. 2d 599, ___ N.W.2d ___ (1996); Waste Mgmt. v.
Kenosha Co. Rev. Bd., 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994).
The
pertinent statute, Wis. Stat. § 973.06 (1993-94),[2]
limits the costs taxable against a defendant to those set forth therein. It provides as follows:
973.06 Costs.
(1) Except as provided in s.93.20, the costs taxable
against the defendant shall consist of the following items and no others:
(a)
The necessary disbursements and fees of officers allowed by law and
incurred in connection with the arrest, preliminary examination and trial of
the defendant, including, in the discretion of the court, the fees, and
disbursements of the agent appointed to return a defendant from another state
or country.
(b)
Fees and travel allowance of witnesses for the state at the preliminary
examination and the trial.
(c)
Fees and disbursements allowed by the court to expert witnesses. Section 814.04(2) shall not apply in
criminal cases.[3]
(d)
Fees and travel allowance of witnesses for the defense incurred by the
county at the request of the defendant, at the preliminary hearing and the
trial.
(e) Attorney fees payable to the defense attorney by the county or the
state. If the court determines at the
time of sentencing that the defendant's financial circumstances are changed,
the court may adjust the amount in accordance with s.977.07(1)(a) and (2)(a).
(f)
An amount determined by the court to make a reasonable contribution to a
crime prevention organization, if the court determines that the person has the
financial ability to make the contribution and the contribution is
appropriate.
(g)
An amount equal to 10% of any restitution ordered under s.973.20,
payable to the county treasurer for use by the county.
(h)
The cost of performance of a test under s.968.38, if ordered by the
court.
Emphasis added.[4]
By
its plain language, then, the costs taxable against a defendant under Wis.
Stat. § 973.06(1)(c) are limited to the items enumerated therein. The State argues that the lab expenses fall
within Wis. Stat. § 973.06(1)(c), which refers to fees and disbursements
allowed to expert witnesses. The State
has not suggested that the defendant might be taxed costs for the lab expenses
under any other statutory provision.
At
the outset of the defendant's trial, the prosecutor submitted a witness list
including "Gregory Popovich," describing him as "a chemical
analyst for the Regional Crime Lab."
Popovich was prepared to testify regarding his findings that the
substances found in the defendant's possession contained cocaine base and THC
(marijuana).[5] Because Popovich was an expert witness,
argues the State, the expenses he incurred in analyzing these substances could
properly be taxed against the defendant as costs under Wis. Stat.
§ 973.06(1)(c).
The
defendant contends that the expenses incurred by the State Crime Laboratory in
testing the controlled substances found in his possession were neither fees nor
disbursements as those terms are used in Wis. Stat. § 973.06(1)(c).
In
support of his position, the defendant cites State v. Peterson, 163
Wis. 2d 800, 804, 472 N.W.2d 571 (Ct. App. 1991). In Peterson, the court of appeals
held that general and unspecified law enforcement expenses of
"approximately $200" incurred by the Shawano County Sheriff's
Department while using an electronic wire surveillance device were not among
those expenses that might be included under Wis. Stat. § 973.06(1)(a) as
"disbursements and fees of officers allowed by law." Peterson, 163 Wis. 2d at
802. The Peterson court reasoned
that "[a] fee is 'a fixed charge' (e.g., for a professional service) and
disbursement means 'funds paid out.'
Both terms contemplate the payment of funds to another. Neither term encompasses general internal
operating expenses." Id. at
804. The court of appeals concluded
that because the "approximately $200" in expenses incurred by the
county was neither a fee nor a disbursement, it could not be taxed as costs
under Wis. Stat. § 973.06(1)(a). Id. "While law enforcement departments
expend money in the investigation of criminal offenses and in discharging other
responsibilities that our society assigns to law enforcement officers,"
wrote the court of appeals, "the statute does not authorize imposition of
these expenses on the defendant." Id.
Analogizing
the lab expenses at issue in this case to the sheriff's wiretap expenses at
issue in Peterson, the defendant argues that the monies spent in
conducting lab tests are operating expenses internal to the State Crime
Laboratory and are associated with the investigation and prosecution of drug
cases. Accordingly the defendant
insists that such lab expenses are neither fees nor disbursements allowed to
expert witnesses as those terms are used in Wis. Stat. § 973.06(1)(c) and
are therefore not costs that can be taxed against him. The defendant is apparently asserting that
because the State Crime Laboratory does not bill the district attorney's
office, the county or a local law enforcement agency for the expenses of drug
analyses, because the Laboratory did not pay out funds to another entity to
conduct such analyses, and because the prosecutor did not pay out funds to the
Laboratory, the expenses incurred by the Laboratory in conducting its drug
analyses are not fixed charges (fees) or disbursements under
§ 973.06(1)(c).
The
State suggests, however, that the defendant's reading of Wis. Stat.
§ 973.06(1)(c) assigns the meaning of "monies paid out" to both
fees and disbursements. If fees must be
monies paid out to another, the State contends, then they are also
disbursements and the statute need not have used both terms. Therefore, claims the State, the fact that
Wis. Stat. § 973.06(1)(c) refers to "fees and disbursements"
suggests that fees must refer to something other than disbursements because a
"construction of a statute that would result in any portion of the statute
being superfluous should be avoided wherever possible." Ann M.M. v. Rob S., 176 Wis. 2d
673, 680, 500 N.W.2d 649 (1993) (citation omitted).
While
we agree with the State that the words "fees" and
"disbursements" must be given different meanings, we nevertheless
conclude that as used in Wis. Stat. § 973.06(1)(c), fees and disbursements
do not include lab expenses. The word
"fees" in § 973.06(1)(c) describes a fixed charge for a
professional service rendered by an expert witness, a sum which is ordinarily
charged to and payable by another. The
word "disbursements" in § 973.06(1)(c) describes those
incidental and out-of-pocket expenses which an expert witness may incur in the
course of providing professional services; again, such out of pocket expenses
are ordinarily charged to and payable by another.
In
short, the issue for the court is how to characterize the lab expenses at issue
in this case under § 973.06(1)(c).
Should the lab expenses be characterized as fixed charges for the
professional services of an expert witness (fees) or out-of-pocket expenses
(disbursements) paid by the State Crime Laboratory in the course of providing
the professional services of an expert witness? Conversely, should the lab expenses be characterized as internal
operating expenses of the State Crime Laboratory itself?
In
its brief to the court, the State contends that because the lab expenses at
issue are fixed, they are fees under Wis. Stat. § 973.06(1)(c).[6] We disagree with the State's argument. The fact that the cost of performing a
governmental service can be established (fixed) does not ipso facto make
the cost of performing that service a fee under Wis. Stat.
§ 973.06(1)(c). To constitute a
fee under § 973.06(1)(c), the cost of performing a service must be more
than an internal operating expense of a governmental unit which has been
prorated or costed out; it must be chargeable to and payable by another.
The
legislature did not intend that the lab expenses be paid by another. As the State pointed out both in its brief
and during oral argument before the court, from 1955 to 1969 the State Crime
Laboratory was required by statute to estimate the cost of and fix charges for
its services, which were then collected annually from local units of government
at the rate of fifty percent of the cost of services performed. Wis. Stat. § 165.01(8) (1955-56). From 1969 to 1973, the statute itself fixed
these charges. Wis. Stat.
§ 165.76(3) (1971-72). However, the
legislature subsequently repealed this provision, Laws of 1971, ch. 215,
§ 131. Therefore the State Crime
Laboratory no longer bills local units of government for the services that it
provides, apparently absorbing the cost of such services as internal operating
expenses.
We
fail to see how what have become routine operating expenses incurred by the
State Crime Laboratory during the course of criminal investigations can now be
transformed into fees or disbursements.
Those expenses, regardless of whether they are fixed or represent
estimates, have not been charged to or paid by another unit of government since
1973. Accordingly, we conclude that the
expenses incurred by the State Crime Laboratory in the course of a criminal
investigation are not fees or disbursements under Wis. Stat.
§ 973.06(1)(c), and the State may not assess these lab expenses as
costs.
Were
we to accept the State's argument that these lab expenses are fees taxable
against defendants as costs under § 973.06(1)(c), a whole panoply of expenses
for services rendered by expert witnesses who are state employees, including
expenses for polygraph tests, blood tests, handwriting analyses, and physical
and mental examinations might also be construed as fees and taxed against
defendants.
We
are not aware that any of these expenses are now being viewed as costs taxable
against defendants. Under the State's
interpretation of the statute, all of them might be. Neither the language nor the legislative history of Wis. Stat.
§ 973.06(1)(c) indicates that the legislature intended defendants to bear
a pro rata share of the operating expenses of the State Crime Laboratory or any
other law enforcement unit. Nor has the
legislature indicated that the cost statute allows the State to recover investigative
or litigation expenses. State v.
Amato, 126 Wis. 2d 212, 215, 375 N.W.2d 75 (Ct. App. 1985) (the
imposition of special prosecutor fees as an item of costs under Wis. Stat.
§ 973.06 "is clearly prohibited"). This court has long held that "in this state costs are
regulated exclusively by statute as a matter of legislative
discretion." State ex rel.
Korne v. Wolke, 79 Wis. 2d 22, 24-25, 255 N.W.2d 446 (1977) (quoting Milwaukee
v. Leschke, 57 Wis. 2d 159, 161, 203 N.W.2d 669 (1973)). The legislature has given no indication that
it intended to exercise this discretion to impose the costs sought by the
State, and we will not exercise this discretion on the legislature's behalf.
For
the reasons set forth, we hold that the expenses of the State Crime Laboratory
at issue in this case do not constitute fees or disbursements allowed to an
expert witness under Wis. Stat. § 973.06(1)(c). Accordingly we reverse the decision of the court of appeals and
remand the cause to the circuit court for proceedings consistent with this
opinion.[7]
By
the Court.—The decision of the court of appeals is reversed and the
cause remanded.
SUPREME COURT OF WISCONSIN
Case No.: 94-2639-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff‑Respondent,
v.
Quincy Ferguson,
Defendant‑Appellant‑Petitioner.
___________________________________
ON REVIEW OF A DECISION OF THE COURT OF
APPEALS
Reported at: 195 Wis. 2d 174, 536 N.W.2d 116
(Ct. App. 1995)
PUBLISHED
Opinion Filed: June 26, 1996
Submitted on Briefs:
Oral Argument: May 31, 1996
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: LEE E. WELLS
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the defendant-appellant-petitioner
there was a brief and oral argument by Marla J. Stephens, first
assistant state public defender.
For the plaintiff-respondent there was a
brief by James M. Freimuth, assistant attorney general, and James E.
Doyle, attorney general, with oral argument by Warren Weinstein,
assistant attorney general.
[1] A fourth count, charging the defendant with
the failure to pay a controlled substance tax, was dismissed.
[2] Unless otherwise noted, all further
references are to the 1993-94 volume of the Wisconsin Statutes.
[3] Wis. Stat. § 814.04(2) provides for
witness fees not exceeding #200 for each expert witness who testifies.
[4] The legislature has recently revised Wis.
Stat. § 973.06, expanding the number of items that might be assessed
against the defendant as costs. See
1995 Wis. Act 53. The 1995 Act is not
before this court.
[5] Because the defense stipulated to Popovich's
testimony, he did not testify. The
parties dispute whether one who does not testify can be considered an expert
witness under Wis. Stat. § 973.06(1)(c).
Because we conclude on other grounds that the lab expenses are neither
fees nor disbursements as those words are used in Wis. Stat.
§ 973.06(1)(c), we do not address this issue.
[6] Both parties agree that the record leaves
unclear how the sum of $105 was determined.
The State submits that the State Crime Laboratory has established fixed
charges of $30 for marijuana analysis and $75 for cocaine analysis, and the
defendant does not dispute this fact.
We hold that even assuming arguendo that the expenses at issue
are "fixed" by the State Crime Laboratory, they are not fees under
Wis. Stat. § 973.06(1)(c).
[7] The defendant attempts to bolster his
argument with citations to two recent decisions of the court of appeals that
reversed circuit court orders assessing costs against a defendant for lab
expenses. See State v. Aukes,
192 Wis. 2d 338, 531 N.W.2d 382 (Ct. App. 1995); State v. Evans,
181 Wis. 2d 978, 512 N.W.2d 259 (Ct. App. 1994). Because both decisions are primarily concerned with other issues
while neither decision offers any analysis regarding the issue before us today,
we conclude that they are not persuasive or controlling regarding the
interpretation of Wis. Stat. § 973.06(1)(c).