J.A.L., In Interest of

• Decision Date: 24 June 1991
• Docket Number: No. 90-0238,90-0238
• Citation: 471 N.W.2d 493,162 Wis.2d 940
• Parties: In the Interest of J.A.L. J.A.L., Appellant-Petitioner, v. STATE of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 493

471 N.W.2d 493

162 Wis.2d 940

In the Interest of J.A.L. J.A.L., Appellant-Petitioner, v. STATE of Wisconsin, Respondent.

No. 90-0238.

Supreme Court of Wisconsin.

Submitted on Briefs May 30, 1991.

Decided June 24, 1991.

Michael Tobin and Suzanne Hagopian, Asst. State Public Defenders, for appellant-petitioner.

Sally L. Wellman and Francis D. Collins, Asst. Dist. Attys., and Donald J. Hanaway, Atty. Gen., for respondent.

STEINMETZ, Justice.

There are three issues raised on appeal in this case. The first issue is whether the juvenile court, hearing an application for waiver of jurisdiction under sec. 48.18, Stats. ¹ , abused its discretion in finding that the petitioner was not "mentally ill" under the statute and when it decided, partly on that basis, to waive its jurisdiction. The second issue is whether certain evidence obtained by electronic monitoring of a conversation of the petitioner was illegally obtained under secs. 968.27-31 ² and improperly admitted at the waiver hearing so as to invalidate the waiver granted by the juvenile court. The third issue is whether the juvenile court erred when in proceeding under sec. 48.18(5) it admitted and weighed evidence as to available treatment programs within the adult correctional system.

This matter originated in the juvenile branch of the circuit court for St. Croix county, the Honorable Robert F. Pfiffner, where the petitioner, J.A.L., a juvenile, was accused of first-degree intentional homicide under sec. 940.01, Stats., for the death of his mother, K.L. Prior to trial, the state filed a petition under sec. 48.18 for the juvenile court to waive its jurisdiction in favor of the criminal court. The juvenile court granted the petition, and J.A.L. appealed. The court of appeals stayed criminal court proceedings and permitted the parties to submit briefs on the merits of the waiver. In an unpublished decision, the court of appeals affirmed the juvenile court, thus upholding the waiver determination. 157 Wis.2d 264, 459 N.W.2d 260. We affirm the court of appeals.

On December 28, 1989, the St. Croix county sheriff's department responded to a call at a home where the dead body of a woman, K.L., was found in a living room. There were obvious gunshots to the head. A subsequent autopsy indicated that the victim had suffered nine separate gunshot wounds to the back and side of the head causing death, as well as a laceration to the head caused by being struck with an instrument at or shortly before her death. The medical examiner indicated that two additional projectiles, apparently of the same caliber, but separate and distinct from the nine bullets in the victim's head, had been fired through the victim's hair and lodged in the door near the victim's body. He opined that the laceration could have been caused by being struck with a gun and that the shots were fired from varying distances and angles.

J.A.L., whose date of birth is February 5, 1974, spoke later in the evening of K.L.'s death with a St. Croix county deputy sheriff, Donald Volkert, at the St. Croix sheriff's department, at which time Volkert took a lengthy statement from J.A.L. concerning the events of the evening. J.A.L. stated that on that evening his mother had been "screaming and cussing" at him. He said that he found himself standing in the living room with a revolver in his hand and blood coming out of the head of his unconscious mother. For purposes of this review, J.A.L. has acknowledged causing K.L.'s death. J.A.L. also stated that he had previously taken the revolver from his uncle's home, without permission, and secreted the gun in the family home. He indicated that after the shooting he drove the family car to the residence of his grandmother, M.T., and advised her that he had shot his mother. He also indicated that he was worried that his motor vehicle operator's license would be revoked after the shooting.

Deputy Sheriff Volkert testified that J.A.L. was coherent, calm and willing to speak during their interview. Similarly, a social worker who interviewed J.A.L. in the early morning hours of December 29, 1989, at the St. Croix county jail, found him to be calm and relaxed. The social worker also found J.A.L. to be without any expression of remorse or sadness and "age appropriate" as to his maturity.

J.A.L. was detained at the Eau Claire juvenile detention center, a secure custody facility. At that facility, an inmate's conversations with visitors can be monitored through listening devices placed at various points including in the cell blocks and interview rooms. Monitoring, which is undertaken for security reasons, occurs pursuant to established policy based on guidelines set by the Department of Health and Social Services. Not all conversations are monitored; for example, conversations between inmates and social workers, clergy and attorneys are not monitored. The decision whether to monitor is made by the staff on duty, based upon the behavior of the individuals involved.

On January 7, 1990, a juvenile corrections worker monitored a visit between J.A.L. and his father and brother because she believed there was reason to suspect that J.A.L. was planning an escape. The monitored conversation revealed that J.A.L. and his father and brother were discussing J.A.L.'s upcoming court appearance. The father suggested that, were an opportunity to present itself, the three should "take off and run" to Mexico. J.A.L. agreed, and also indicated that if he received a sentence to Lincoln Hills juvenile detention center, he would flee to Mexico. J.A.L. also said that he would have fled when he was taken to his mother's wake but did not do so because he was handcuffed at the time. Throughout the conversation, J.A.L.'s father referred to K.L. as "the bitch."

The waiver hearing commenced on January 23, 1990, and lasted for five days. Among those testifying was the principal of the high school J.A.L. attended. The principal detailed numerous school disciplinary violations for which J.A.L. was cited in the preceding three years. A school psychologist testified that J.A.L. was not learning disabled, but suffered from a severe motivational problem and was secretive. He indicated that J.A.L. spent 30 percent of his school time in classes for emotionally disabled students and 70 percent of his time in "mainstream" classes. Another witness, a teacher and tutor for J.A.L., testified that J.A.L. had advised him that he did not like his mother. This witness also testified that J.A.L. resented authority and had trouble controlling his temper.

J.K., a juvenile friend of J.A.L., testified that shortly before Christmas 1989, J.A.L. showed J.K. a handgun while on the school bus and stated that he wished somebody would kill his mother, whom he called a "bitch." J.A.L. said to J.K. that perhaps J.A.L. should kill K.L. himself. J.V., another juvenile friend of J.A.L., testified that "fairly recently" prior to the waiver hearing J.A.L. had shown J.V. a gun at school. J.V. described an incident in which J.A.L. said he had left a loaded gun with a hair trigger on his bed at home such that if K.L. or anybody moved the gun it would fire.

Also at the waiver hearing, two employees of the Eau Claire juvenile detention center, one of them being the person who actually monitored the conversation, testified as to the conversation between J.A.L. and his father and brother on January 7, 1990. The other detention center worker who testified spoke as to what he had learned about the conversation by reading a report on it prepared by his colleague. An objection to this testimony alleging it was hearsay and that its use might violate some undefined expectation of privacy was overruled by the court, and no other objection was made at the time.

J.A.L.'s main defense witnesses were his family members, each of whom testified to having had a personal dislike of K.L. They also testified that in their view K.L. had treated J.A.L. badly. Specifically, J.A.L.'s father described K.L. as having been very "harsh" with and generally unsupportive of J.A.L. He indicated that K.L. frequently complained about the condition of the house; at the same time, he said, "she would not work, but she told everybody else she did." J.A.L.'s father and J.A.L. spent weekends away from home at a cabin, where they could talk with each other without being intruded upon by the "shrill hollering" of K.L. J.A.L. often complained about his mother "picking on him." When talk arose as to the possibility of J.A.L.'s father divorcing K.L., he told J.A.L. to "just hang tough for a couple more years." J.A.L.'s father testified that K.L. on a number of occasions told J.A.L. that he should be placed in a foster home. Overall, J.A.L.'s father found K.L. "worse [during] the last couple of months." He found J.A.L. and K.L. "arguing a lot" shortly prior to her death.

A half-brother of J.A.L. testified that K.L. "always found something wrong" with what the other family members were doing. He described having been hit by K.L.; a brother described K.L. as "constantly hollering" and "bitching" at home. "She was really good for [criticizing a person in front of others]." A half-sister also testified as to having had personal difficulties with K.L. One family member testified that he had once prepared to kill K.L. himself but then decided not to do so. There also was testimony that there had been no physical altercations between J.A.L. and K.L. prior to December 28, 1989. However, there was testimony that J.A.L. had begun "talking back" to and "hollering" at K.L. in the months before her death; that J.A.L. sometimes was "rough" with younger children of a sibling; and that no extremely unusual behavior was noted in J.A.L. prior to the shooting.

Dr. Kenneth Smail, a psychologist who examined J.A.L. for the defense, testified that J.A.L. was of average intelligence. He found him to be nonpsychotic and had no concern that J.A.L. was "out of touch" with reality. H...