Interest of G.B.K. v. State
Interest of G.B.K. v. State
Opinion of the Court
G.B.K., who was charged with first degree murder, appeals from an order waiving juvenile court
I. WAIVER
Before juvenile court jurisdiction may be waived, it must appear, by clear and convincing evidence, that it would be contrary to the best interests of the child or the public for the case to remain in the juvenile system. Sec. 48.18(6), Stats. In making the waiver determination, the court must consider the several criteria listed in sec. 48.18(5).
The trial court met this requirement. It heard extensive testimony from a variety of professionals regarding available facilities and treatment options in the juvenile, criminal and mental health systems. In addition, two psychiatrists and a psychologist testified
After hearing evidence on these and other matters, the trial court referred to the statutory criteria and discussed the expert testimony bearing on the various factors, commenting on the thoroughness of the record in that regard. In the course of its seven-page discussion, the court found that appellant suffered from a borderline personality disorder and exhibited other symptoms of diminished self-control. The court stated: “The amount of time the defendant will be under juvenile jurisdiction is going to be an extremely short amount of time. And in listening to the mental health professionals that [sic] testified, I think that is just probably inadequate to cure the defendant or to place [him] in a situation where he would have the adequate internal controls to prevent difficulties. . . . I’m very pessimistic about his chances of being rehabilitated under any set of circumstances.” The court concluded: “The facilities, services and procedures available for treatment of the child and protection of the public within the juvenile justice system are inadequate and unsuitable in view of the child’s age, to-wit: 16 years,
Appellant focuses his argument on the fact that the juvenile court declined to allow him to invoke the commitment procedures of the Mental Health Act, ch. 51, Stats., as an alternative to waiver. On the fourth day of testimony at the waiver hearing, defense counsel submitted a petition for involuntary commitment for treatment under sec. 51.20, Stats., and an application for voluntary admission to an inpatient treatment facility under sec. 51.13. The trial court denied the applications.
Appellant contends that by suggesting involuntary (or voluntary) commitment he was “attempting to establish the availability of salient treatment options as alternatives to waiver.” He maintains that the court’s refusal to stay the waiver proceedings pending resolution of his commitment petitions somehow violated his right to due process — e.g., his right to be heard on the petitions. In support of his argument, appellant offers only a bare citation to In re Barker, 305 A.2d 211 (Md. Ct. Spec. App. 1973), a case that had nothing to do with constitutional claims. The trial court’s refusal to allow appellant to file the petitions did not deprive him of his right to present evidence nor did it preclude the court from considering his mental health needs. We find no merit in the due process argument.
Appellant also contends that it was error to deny the petitions because Dr. Roberts’ testimony established the availability and propriety of involuntary commitment under ch. 51, Stats., as a reasonable alternative to waiver. Our review of the record, however, indicates that, at most, Roberts speculated that appellant might barely or marginally fit the definition of mental illness required for placement under ch. 51. The efficacy of a ch. 51 commitment is inconclusive, at best. Moreover, even if appellant eventually might be found to meet the
While there may be cases where the juvenile court might properly consider commitment under ch. 51 as an alternative to waiver, there is insufficient evidence as to whether such a commitment would be available to appellant, much less whether it would offer adequate or suitable alternatives for “treatment of the child and protection of the public” as contemplated by sec. 48.18 (5)(c), Stats. The trial court did not err in refusing to stay the waiver hearing and accept the ch. 51 petitions.
Appellant next argues that the court gave undue weight to the seriousness of the offense in its assessment of the statutory criteria. The weight to be accorded each of the enumerated factors is discretionary with the trial court. In re Interest of F.R.W. (a minor), 61 Wis. 2d 193, 204, 212 N.W.2d 130, 135 (1973), cert. denied, 416 U.S. 974 (1974). We will not find an abuse of discretion if there is a reasonable basis for the court’s determination. Wisconsin Public Service Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624, 631 (1981).
That appellant allegedly committed a murder is certainly worthy of weight. The court considered other factors as well: appellant’s past acts demonstrating a desire to kill or hurt; his past and continuing use of
Appellant contends that before waiver is ordered, the court must make specific findings that: (1) his previous juvenile dispositions were “rehabilitatively ineffective” beyond a reasonable doubt; and (2) waiver is the “last resort.” He has not persuaded us that the law requires such findings.
He next argues that the testimony of a probation officer seriously compromised his rights to due process and a fair waiver hearing. The officer testified that if a juvenile was found mentally incompetent to proceed under ch. 48, Stats., the juvenile proceedings would be dismissed and could not be reinstituted. Appellant claims this is not true and that the presence of such a misstatement in the record somehow prejudiced the court’s decision. First, we have considerable difficulty conceiving how the opinion of a non-lawyer on an issue of statutory interpretation could unfairly prejudice an experienced trial judge. Second, sec. 48.295(2), Stats., which outlines the procedures to be used when a child is not competent to proceed, is inconclusive on the question of whether juvenile proceedings must be dismissed upon a finding of incompetency. It is an open question, and appellant has offered no authority which would contradict the officer’s characterization. In any event, the testimony could not have prejudiced appellant for his competency to proceed was never at issue in the case.
We conclude that the juvenile court did not abuse its discretion in waiving jurisdiction over appellant.
II. IN CAMERA INSPECTION
Appellant argues that the trial court erred by failing to convene in camera proceedings to determine whether the state had complied with earlier discovery orders.
The juvenile court ordered the state to turn over to appellant all records and reports relating to the waiver criteria in sec. 48.18(5), Stats. Appellant then requested the court to examine in camera all police reports in the state’s possession for the purpose of ascertaining the state’s compliance with the court’s order to disclose. The request was denied.
Juvenile waiver proceedings consider two primary questions: (1) whether the state’s allegations show “prosecutive merit”; and (2) if so, whether juvenile court jurisdiction should be waived. The prosecutive merit stage is similar to a preliminary hearing in felony cases, and the. defendant’s discovery rights are strictly limited. In Interest of T.M.J., 110 Wis. 2d 7, 12-14, 327 N.W.2d 198, 201-02 (Ct. App. 1982). In considering whether to waive jurisdiction, however, the juvenile court must consider, among other things, factors re
Appellant has not suggested that there are police reports in existence which contain information relating to his “personality . . . motives and attitudes . . . physical and mental maturity . . . pattern of living . . . prior treatment history and apparent potential for responding to future treatment.” Sec. 48.18(5), Stats. He argues only that he has an absolute right to an in camera judicial “determination ... of the state’s compliance with the court’s orders.” The juvenile court is a creature of statute and derives its jurisdiction and powers from the statutes. State ex rel Koopman v. Waukesha Co. Ct. Judges, 38 Wis. 2d 492, 497, 157 N.W. 2d 623, 626 (1968). While sec. 48.293, Stats., authorizes limited discovery, there is nothing in that section or any other part of the juvenile code supporting the position advanced by appellant. State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982), appellant’s sole authority on the point, is inapposite. There the issue concerned the application of a special statutory procedure (which included producing evidence in camera) in cases where testimony is sought from confidential police informants. No similar procedure exists in the juvenile code.
We recognize that waiver proceedings are “critically important.” Kent v. United States, 383 U.S. 541, 556 (1966). They determine whether a juvenile will be treated as a delinquent child or as an adult criminal defendant. T.M.J., 110 Wis. 2d at 11, 327 N.W.2d at 201. We do not doubt that instances may arise in waiver
By the Court. — Order affirmed.
Orders waiving juvenile court jurisdiction are not appealable by right because they are not “final orders” under sec. 808.03(1), Stats., or sec. 48.47, Stats. State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis. 2d 98, 105a, 292 N.W.2d 114, 114 (1980) (on motion for reconsideration). G.B.K. has petitioned for leave to appeal a nonfinal order, and we grant that petition. See sec. 808.03(2).
Section 48.18(5), Stats., provides:
If prosecutive merit is found, the judge, after taking relevant testimony which the district attorney shall present and considering other relevant evidence, shall base its decision whether to waive jurisdiction on the following criteria:
(a) The personality and prior record of the child, including whether the child is mentally ill or developmentally disabled, whether the child has been previously found delinquent, whether such delinquency involved the infliction of serious bodily injury, the child’s motives and attitudes, the child's physical and mental maturity, the child’s pattern of living, prior offenses, prior treatment history and apparent potential for responding to future treatment.
(c) The adequacy and suitability of facilities, services and procedures available for treatment of the child and protection of the public within the juvenile justice system, and, where applicable, the mental health system.
(d) The desirability of trial and disposition of the entire offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged with a crime in circuit court.
Dissenting Opinion
(dissenting). Although I agree with the result on the information before the trial court, I would retain jurisdiction and remand to the court for an in camera inspection of the police reports and for reconsideration, if appropriate. Whether material in the reports is relevant to the sec. 48.18(5) waiver criteria is a matter of discretion and judgment. The prosecutor, the juvenile, and the court may have different views on whether material in the reports is relevant to the criteria. If the juvenile cannot have access to the report before the waiver hearing, the court should review the state’s compliance with the court’s order.
I would not condition the court’s review on a showing or positive assertion that the discovery order is in fact being violated. Counsel for the juvenile can seldom know that such is the case. That inability is the very reason for the requested review.
To leave the juvenile to unspecified remedies should it ultimately appear that the prosecutor violated the discovery order is unsatisfactory. Once the trial court waives a juvenile into adult court, the juvenile’s remedies are to petition for leave to appeal the waiver order or obtain review of the waiver order on an appeal from the conviction. State ex rel. A.E. v. Green Lake County
The first alternative provides no remedy. A failure to comply with the order is unlikely to surface by the time the petition for leave is filed. Only if the juvenile is not waived into adult court can the juvenile obtain copies of the police reports as a matter of right. Sec. 48.293(1), Stats. The second alternative, appeal from the conviction, is also an unsatisfactory remedy. A defendant in adult court has no automatic right to police reports. Secs. 971.23 to 971.25, Stats. A failure to disclose may not come to light during the trial. Even if it does, the juvenile will have been put through criminal proceedings which might have been prevented had the trial court made an in camera inspection.
The inadequacy of these remedies weighs in favor of requiring an in camera inspection. If other remedies exist, we should weigh their value now.
Reference
- Full Case Name
- In the Interest of G.B.K., a Person Under the Age of 18, G.B.K., Appellant, v. State of Wisconsin, Respondent
- Cited By
- 14 cases
- Status
- Published