State Of Wis. v. Kleser
| Decision Date | 16 July 2010 |
| Docket Number | No. 2007AP2827-CRAC.,2007AP2827-CRAC. |
| Citation | 786 N.W.2d 144,2010 WI 88 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant,v.Corey KLESER, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
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For the defendant-respondent-petitioner there were briefs and oral argument by Devon M. Lee, assistant state public defender.
For the plaintiff-appellant there was a brief by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
This is a review of a published decision of the court of appeals State v. Kleser, 2009 WI App 43, 316 Wis.2d 825, 768 N.W.2d 230, which reversed an order of the Milwaukee County Circuit Court, Mary E. Triggiano, Judge. The case concerns the “reverse waiver” procedure for a juvenile who is subject to the exclusive original jurisdiction of the adult criminal court. See Wis. Stat. §§ 938.183(1) and 970.032(1) and (2) (2005-06).1
¶ 2 The defendant, Corey Kleser (Kleser), then 15, was charged in adult court with first-degree intentional homicide. He waived his right to a preliminary examination under § 970.032(1).
¶ 3 Approximately ten months later, the court conducted a reverse waiver hearing under § 970.032(2) to determine whether the criminal court should transfer jurisdiction of Kleser's case to juvenile court. At the conclusion of a five-day hearing, Judge Triggiano entered an order transferring the case to juvenile court.
¶ 4 As noted, the court of appeals reversed. The court of appeals complimented the circuit court on its “comprehensive and thoughtful decision,” Kleser, 316 Wis.2d 825, ¶ 3, 768 N.W.2d 230, but it pointedly differed in its interpretation of the reverse waiver statute and took issue with several discretionary rulings made by the circuit court. The court of appeals remanded with directions for a new reverse waiver hearing.
¶ 5 Kleser filed a petition for review raising two issues:
¶ 6 In granting review, this court directed the parties to address two additional issues:
¶ 7 We conclude, first, that a juvenile has a right to a reverse waiver hearing after the criminal court finds probable cause to believe that the juvenile has committed the exclusive original jurisdiction violation or violations of which he is accused. In a reverse waiver hearing, the juvenile must prove all elements set out in § 970.032(2)(a), (b), and (c) by a preponderance of the evidence. If the juvenile fails to meet his burden of proof, he shall be retained for prosecution in the criminal court. Thus, the juvenile must be given reasonable latitude to offer admissible evidence to satisfy his burden on the three elements. This includes evidence about the offense, supplementing the facts used to establish probable cause, to put the offense in context. The juvenile may not offer evidence in the reverse waiver hearing for the purpose of contradicting the offense charged. The place to offer evidence for the purpose of contradicting the offense charged is the preliminary examination.
¶ 8 Second, we conclude that the circuit court erred in granting reverse waiver here, for three reasons: (1) the court substantively relied on inadmissible hearsay testimony from Dr. Beyer describing the events of the offense; (2) the court allowed Dr. Beyer to offer inadmissible opinion testimony regarding Kleser's truthfulness; and (3) the court erroneously prohibited the State's psychologist from interviewing Kleser regarding the facts of the offense while permitting Dr. Beyer to testify as a conduit for Kleser's account of the facts of the offense.
¶ 9 Finally, we conclude that remand for a new reverse waiver hearing would not be appropriate under the facts of this case.
¶ 10 Consequently, we affirm the decision of the court of appeals reversing the circuit court order transferring jurisdiction of this case to the juvenile court, but we reverse the court of appeals' order remanding the case for a new reverse waiver hearing, and remand the case to adult criminal court for trial.
¶ 11 On November 3, 2006, Ronald Adams (Adams) was found dead in his apartment in the City of Milwaukee. He was in a fetal position, covered with blood, and naked except for a pair of long underwear around his ankles and a pair of socks. Adams had a large wound on his head with brain matter exposed. His blood was splattered on the walls of the apartment and in a trail out of his back bedroom. The sink in Adams' bathroom contained a hammer, a pair of scissors, and standing water that was tainted pink. The head of the hammer carried remnants of human skin and brain tissue.
¶ 12 A doctor from the Milwaukee County Medical Examiner's Office determined that Adams had been dead for more than three days. He also determined that Adams suffered at least 20 blows to the head with a blunt object, 30 stab wounds to the neck, and various other wounds, including a defense wound on the finger. The doctor ruled Adams' death a homicide.
¶ 13 Video surveillance from the hallway outside Adams' apartment showed that Adams last entered his apartment on October 29, 2006, at 1:49 a.m. The video showed that he entered the apartment with Kleser. It also showed Kleser leaving the apartment at 2:48 a.m., while talking on a cell phone. A witness later confirmed seeing Kleser in the hallway around 1:50 a.m. on October 29, 2006.
¶ 14 Two days after the body was found, a detective spoke with Kleser's father, Charles, who said that he had received a phone call from Kleser between 3:00 and 5:00 a.m. the weekend of the homicide. According to Charles, Kleser had called and asked him for a ride home. When he came to pick up Kleser, he observed bloodstains on Kleser's clothes, and Kleser admitted that the blood was not his. Charles asked if he had killed someone, and Kleser responded yes, that he hit the victim in the head with a hammer and that the victim owed him money.
¶ 15 When questioned by police, Kleser admitted that he killed Adams. He said that he had hit him in the head with a hammer and stabbed him with scissors. He then attempted to wash the scissors and hammer in the sink to clean them. He said that he had gone to Adams' apartment to “display,” or pose nude, while Adams masturbated, for which Adams would pay Kleser $40 to $50. He said that Adams then wanted to have anal or oral sex with Kleser, which Kleser did not want to do. A physical altercation ensued, during which Kleser hit Adams in the head with a hammer and continued to hit him after he fell to the floor. Kleser stated that he stabbed Adams in the neck multiple times with a pair of scissors after he realized that Adams was still alive.
¶ 16 On November 7, 2006, the Milwaukee County District Attorney's office filed a criminal complaint alleging the facts outlined above. The complaint charged Kleser with first-degree intentional homicide.2 Kleser was held in the Milwaukee County Children's Court Center. The Milwaukee County Circuit Court scheduled a preliminary hearing for November 29. Kleser ultimately submitted a Preliminary Hearing Questionnaire and Waiver form, signed by himself and his attorney. In this form, Kleser declared that he wished to waive the preliminary examination. The form states, in part: “I understand that by waiving the preliminary hearing, I am conceding that the State can establish probable cause, and that I will be ordered to stand trial.” At the November 29 hearing, Kleser acknowledged that he had signed the form and understood that he was giving up the right to a preliminary examination.
¶ 17 Kleser was later charged with substantial battery3 and battery by a prisoner4 as a result of an assault he committed in the Children's Court detention center against another inmate on January 20, 2007. Kleser also waived his right to a preliminary examination on these charges.
¶ 18 On October 29, 2006, Kleser was 15 years old. On January 20, 2007, the date of the battery, he was 16 years old. Courts of criminal jurisdiction have exclusive original jurisdiction over juveniles alleged to have committed a violation of Wis. Stat. § 940.01, first-degree intentional homicide, on or after the juvenile's tenth birthday. See Wis. Stat. § 938.183(1)(am). Courts of criminal jurisdiction also have exclusive original jurisdiction over juveniles who have been adjudicated delinquent and are charged with a violation of Wis. Stat. § 940.20(1), battery by a prisoner. See Wis. Stat. § 938.183(1)(a).5
¶ 19 Juveniles whose cases are charged originally in courts of criminal jurisdiction have a statutory right to a reverse waiver hearing after the criminal court finds probable cause. In late February 2007, Judge Triggiano scheduled a reverse waiver hearing for May 24 to determine whether Kleser's case should be transferred to juvenile court. This hearing was rescheduled twice to mid-September. On February 28, Kleser was transferred to the Ethan Allen detention center.
¶ 20 On March 27, 2007, the circuit court ordered Kleser to undergo a psychological examination by the State's expert, Dr. Deborah L. Collins, in preparation for the reverse waiver hearing, inasmuch as Kleser had engaged his own psychologist, Dr. Beyer, and met...
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