D.S.A., Matter of
| Decision Date | 21 July 1988 |
| Docket Number | 87-1991,Nos. 87-0148,s. 87-0148 |
| Citation | 145 Wis.2d 904,430 N.W.2d 379 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of D.S.A., a person under the age of 18 years: D.S.A., Appellant, v. STATE of Wisconsin, Respondent. |
| Court | Wisconsin Court of Appeals |
Appeals from orders of the circuit court for Rock county: Mark J. Farnum, Judge.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
D.S.A., born June 18, 1974, has appealed in Case No. 87-0148 from an order denying her a new trial in a proceeding resulting in an adjudication that she is a child in need of protection or services [CHIPS proceedings] under the Children's Code, ch. 48, Stats. 1 The ground for that adjudication is that D.S.A., being under twelve years of age, committed a delinquent act, first-degree murder, sec. 940.01, Stats., party to the crime. D.S.A. contends that the trial court should have changed venue and struck two jurors for cause, insufficient evidence supports the verdict, that an eye witness is incompetent and her testimony is incredible, that evidentiary errors were committed regarding that witness's out-of-court statements, that she was denied her right to present a meaningful defense, and that she is entitled to a new trial because of newly-discovered evidence and in the interests of justice. We find that the trial court did not abuse its discretion when it denied her a new trial. We therefore affirm the order.
After D.S.A. appealed in Case No. 87-0148, she filed a second motion for a new trial. This motion is based on the confession by another juvenile, R.E.W., who purportedly exculpated D.S.A. Because it found that the confession was incredible, the trial court denied D.S.A.'s second motion. She has appealed from that order in Case No. 87-1991. We consolidate the two appeals on our own motion.
In the latter appeal D.S.A. attacks the trial court's finding that R.E.W.'s confession is incredible. She contends that a jury should decide R.E.W.'s credibility. She also contends that the trial court applied an incorrect standard for granting new hearings in juvenile cases and denied her right to present a defense. She repeats her contention that she is entitled to a new hearing in the interests of justice. We reject D.S.A.'s contentions in her second appeal, conclude that the trial court did not abuse its discretion by denying the motion, and therefore affirm the second order denying her a new hearing.
Proceedings under the Children's Code are civil rather than criminal. Winburn v. State, 32 Wis.2d 152, 158, 145 N.W.2d 178, 180-81 (1966). Our review of the orders appealed from, viewed either as made under the provisions of sec. 805.15, Stats., which authorizes new trials in civil cases, or as made under sec. 48.46, Stats., authorizing a rehearing for newly-discovered evidence in juvenile proceedings, is limited to determining whether the trial court abused its discretion. Erickson v. Clifton, 265 Wis. 236, 240, 61 N.W.2d 329, 331 (1953); Schroud v. Milw. County Dept. of Pub. Welfare, 53 Wis.2d 650, 654, 193 N.W.2d 671, 673 (1972). If we find that the trial court used a logical rationale applying the correct law to the facts of record, we must sustain the decision. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).
We emphasize that if the trial court did not abuse its discretion when it entered either order denying a new trial, we are not at liberty to overturn the decision. This is true even if we would have independently rendered a different decision. State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225, 228 (1979).
On July 27, 1985, between 9:00 and 9:30 A.M. the body of nine-year-old Anthony Darnell Wilson was found in a residential garden in the Town of Beloit, Rock County. The body bore multiple stab wounds to the front chest, one stab wound to the back, and head and neck wounds. The head wounds included a massive cut which began near the left eye and extended to the back of the head, crushing the skull and entering the brain. Darnell's pants were down and his shirt was up, but there was no physical evidence that he had been sexually assaulted. His body was marked with shoeprints. Two knives were found, one near the body and another on the other side of the garden. One knife bore R.E.W.'s fingerprint. None of the physical evidence connected D.S.A. to the crime.
The murder resulted in ch. 48 proceedings against D.S.A., age 11; R.E.W., age 14; and D.S.C., age 12. The three proceedings were tried separately and before different trial judges. In each proceeding, the jury found the juvenile involved had committed a delinquent act of first-degree murder.
D.S.A. and R.E.W. appealed to the Court of Appeals. In an unpublished decision, In the Interest of R.E.W., No. 86-0471 slip op. (Wis.Ct.App. Oct. 16, 1986), we reversed the disposition order as to that juvenile and remanded the matter for a new trial. We did so on grounds that the trial court should have suppressed certain statements R.E.W. had made to the police. Before the second hearing could be held, R.E.W. confessed to having killed Darnell. The ultimate disposition as to R.E.W. following his confession is not of record in this appeal. We are advised that the trial judge before whom D.S.C. has been tried has ordered a new hearing for him, but that order is not of record in this appeal. We do not have the findings, conclusions and decisions of the trial judges who entered the orders as to R.E.W. and D.S.C. We therefore do not have the benefit of their opinions as to the proper course of action as to those juveniles.
We turn to the merits of D.S.A.'s appeal.
On September 3, 1985, the trial court heard D.S.A.'s motion to change venue on grounds that an impartial trial could not be had in Rock county. Attached to the motion were newspaper accounts concerning the murder. Some stated that an 11-year-old Beloit girl and two boys, ages 12 and 14, had been taken into custody and that a CHIPS petition had been filed as to the girl. At the hearing, D.S.A. submitted additional articles and the testimony of a minister and of a member of the Beloit school board, who stated that they believed the juveniles were guilty, they were uncertain they could be impartial if they were on the jury, and the news media accounts were inflammatory.
At the conclusion of the hearing, the trial court ruled that because this was a civil matter, sec. 801.52, Stats., controls and allows a change of venue in the interest of justice. The court recognized that the pretrial publicity had been substantial but concluded that the reporting was basically factual and objective and did not, in the court's view, amount to editorializing. The court was not satisfied it was reasonably likely that a fair trial could not be held in Rock county and denied the motion. The court added that if as the result of the jury voir dire it appeared that the probability of prejudice existed, D.S.A. could renew her motion.
When ruling on D.S.A.'s motion for a new trial, the court characterized the jury selection process as containing nothing to indicate a problem in securing a fair and impartial jury. D.S.A.'s counsel did not renew the motion to change venue after the jury was selected.
A motion for a change of venue is addressed to the discretion of the trial court. Venue should be changed if there is a reasonable likelihood the defendant cannot get a fair trial in the county in which the charge was brought. Turner v. State, 76 Wis.2d 1, 26, 250 N.W.2d 706, 719 (1977). A "reasonable likelihood" is a "reasonable probability of prejudice inherent in the situation." Thomas v. State, 53 Wis.2d 483, 491, 192 N.W.2d 864, 868 (1972).
Although an appellate court must give deference to the trial court's decision on a motion to change venue, we independently evaluate the record to determine whether discretion was properly exercised. Turner, 76 Wis.2d at 26-27, 250 N.W.2d at 719. That evaluation is divided between the community generally and the jury in particular. We first determine whether a reasonable likelihood of community prejudice existed before and at the time of trial. We then determine whether the procedures for choosing the jury showed prejudice. Hoppe v. State, 74 Wis.2d 107, 111, 246 N.W.2d 122, 125-26 (1976).
As to community prejudice, we are to evaluate "the nature of publicity, the degree to which the publicity permeated the community, the timing and specificity of the coverage in relationship to the time of trial, the degree of state participation in the dissemination of the publicity, and the publication of information that was not admissible at trial." Hoppe, 74 Wis.2d at 111, 246 N.W.2d at 126.
Publicity alone does not establish community prejudice. State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 594, 215 N.W.2d 390, 400 (1974). If the news coverage is objective, informational and not editorial, it is not considered prejudicial. Briggs v. State, 76 Wis.2d 313, 327, 251 N.W.2d 12, 18 (1977). We cannot conclude that the trial court should have found a reasonable likelihood of community prejudice. Pretrial publicity was substantial, but the media accounts which are of record were primarily informational.
Moreover, the lapse of time until trial may mitigate the effects of adverse publicity. Jones v. State, 66 Wis.2d 105, 111, 223 N.W.2d 889, 892 (1974) (four months); Schenk v. State, 51 Wis.2d 600, 609-10, 187 N.W.2d 853, 858 (1971) (about three months). Here the trial began on December 9, 1985, almost three months after the hearing on D.S.A.'s motion for a change of venue.
However, the ultimate issue is the quality of the jury which heard the case. The trial court was satisfied with the jury. Trial counsel must also have...
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