Deja v. State

• Decision Date: 27 June 1969
• Docket Number: Nos. 141,142,s. 141
• Citation: Deja v. State, 43 Wis.2d 488, 168 N.W.2d 856 (Wis. 1969)
• Parties: Roger DEJA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases). St.
• Court: Wisconsin Supreme Court

Page 856

168 N.W.2d 856

43 Wis.2d 488

Roger DEJA, Plaintiff in Error, v.STATE of Wisconsin, Defendant in Error(two cases).

St. Nos. 141, 142.

Supreme Court of Wisconsin.

June 27, 1969.

Plaintiff-in-error, Roger Deja, (hereinafter referred to as the 'defendant') was convicted of operating a motor vehicle without the owner's consent.Testimony at the time of trial established that the yellow 1962 Chevrolet four-door sedan of Eugene Helminski was stolen from a south side parking lot in Milwaukee, Wisconsin, on the morning of March 5, 1968.Helminski reported the theft, took the bus home, spotted his car with more than one person in it when he got off the bus.Harry Daroszewski, the police officer who located the car, found only one person in the car, a juvenile, sitting behind the wheel.The juvenile testified that the defendant had been driving the car, had stopped and asked the juvenile if he wanted to go for a ride.At the trial the defendant testified that the juvenile had been driving the car, had stopped and asked the defendant if he wanted to go for a ride.The defendant left the car at the Herl Company employment office where he went to apply for a job.It was there he was arrested.While in the police squad car, the defendant threw a key onto the floor of the squad car, which key fitted the stolen automobile.Defendant stated that was a key to his sister's car which defendant was to give to her son.

Peter N. Flessas, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee Co. Dist. Atty., G. George Lawrence, Asst. Dist. Atty., Milwaukee, for defendant in error.

ROBERT W. HANSEN, Justice.

Of the half-dozen or so points raised by defendant, two relate to the admissibility and use of juvenile records in trial proceedings.

Was it error for the trial court to refuse to permit cross-examination of the state's juvenile witness as to his criminal record?

The question was asked of the juvenile witness: How many times have you been arrested and convicted of a crime?Objection was made to the question on the ground the witness was a juvenile.The objection was sustained.

Juvenile records are not admissible into evidence in this state.¹An adjudication of delinquency in the juvenile court is not a criminal conviction that can be used for impeachment of a state juvenile witness in a subsequent trial.²

At the time of the motion for a new trial, defense counsel argued the question was proper since the 17-year old witness could have an adult record if the juvenile court had ever waived its jurisdiction over him.There was no offer of proof in this regard at the time of the ruling on the objection.It was incumbent upon counsel to make such offer of proof as to the rejected testimony, not only for the purpose of advising the trial court so that it might know exactly what was being offered, but also to preserve the exception to the exclusion of the offered evidence on appeal.³Such offer of proof must be so specific as to leave no doubt as to what is intended.⁴Here there was no offer of proof making the point now pressed.

Was the defendant's juvenile record barred from consideration by the court at the time of sentencing?

There is a clear distinction between what is admissible as evidence in a trial and what may be considered as part of a pre-sentence investigation made after a judgment of guilt has been entered.The disposition of any child's case in the juvenile court is not admissible as evidence against the child in a trial.However, the very purpose of a pre-sentence report is to give as complete as possible a history and background of the convicted defendant in order that the sentencing court may fairly decided the appropriate disposition of the case.

This court has upheld a trial court's use in a pre-sentence report of information that numerous complaints charging that the convicted defendant had obtained property through fraudulent representations had been recently made by various persons.⁵Of such complaints, and their materiality to the sentencing alternatives, this court said, 'These complaints are evidence of a pattern of behavior which, in turn, is an index of the defendant's character, a critical factor in the sentencing,' also saying as to pre-sentence examinations, 'Typically, such reports contain pertinent information relating to the defendant's personality, social circumstances, and his prior criminal record (if any).'⁶At the time of sentencing, prior involvements of a defendant with juvenile authorities are properly before the court, not as part of a prior criminal record, but as evidence '* * * of a pattern of behavior which, in turn, is an index of the defendant's character * * *.'⁷

Was the evidence adduced at the trial sufficient to support the conviction of defendant beyond a reasonable doubt?

Except for the defendant's throwing away a key that fit the stolen car after his arrest, the issue is entirely one of the credibility of witnesses.The juvenile witness testified that the defendant came along in the stolen car, picked him up and they went for a ride.The defendant testified that the juvenile came along in the stolen car, picked him up and they went for a ride.The dispute is entirely and exactly who took the car.The issue is that of which account is to be believed.Under this set of facts, "The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true."⁸We conclude that the trier of facts acting reasonably, was so convinced by such evidence.

Did reference by a witness to a 'stolen car' constitute prejudicial error?

The police officer who testified at the trial referred to the juvenile witness sitting behind the wheel of a 'car which was stolen' and to his (the police officer's) driving 'the stolen car, the 1962 Chevrolet,' to the police station.The area of dispute in this case does not include whether the automobile involved was stolen.The only dispute is as to who did the stealing.The description of the Helminski auto as a 'stolen car' is not erroneous, misleading or prejudicial.It is entirely accurate.

Did remarks of the prosecutor constitute prejudicial error?

The assistant district attorney in arguing the case to the court, this being a trial before the court, commented 'Yet, when he(the defendant) is arrested and questioned by the officers, he refuses to make any statement.Under the circumstances, there is strong indication of a guilty mind.'The defendant's attorney in his argument to the court responded, 'Certainly the District Attorney knows that no inference at all can be drawn from this man by not making any statement.'The district attorney was wrong, defense counsel...