State v. Flakes
| Decision Date | 12 June 1987 |
| Docket Number | No. 86,86 |
| Citation | 140 Wis.2d 411,410 N.W.2d 614 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Joel S. FLAKES, Defendant-Appellant. 1248 CR. |
| Court | Wisconsin Court of Appeals |
Review Denied.
Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.
Crawford Law Firm (Robert C. Crawford, Milwaukee, Wis., of counsel), for defendant-appellant.
Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.
Joel S. Flakes appeals from a judgment of conviction and an order denying postconviction relief. Flakes was found guilty of second-degree murder and second-degree sexual assault, contrary to secs. 940.02(1) and 940.225(2)(e), Stats. Flakes raises three issues on appeal: (1) the trial court erred when it allowed the state to amend Flakes, a parolee, was arrested for selling marijuana to an undercover police officer. Police sought permission to search his apartment but he denied such permission. Two days later the police told Flakes' parole agent of the new arrest. The agent searched Flakes' apartment and discovered the nude body of a fourteen-year-old boy in the closet.
the information to conform to the proof; (2) there was insufficient evidence to convict on second-degree murder; and (3) the warrantless search by his parole agent was illegal. We affirm on all three issues because we conclude that the trial court did not misuse its discretion when it amended the information, there was sufficient evidence to convict on second-degree murder and the search was not illegal.
Flakes made an oral and written confession in which he admitted killing the boy while the two were engaged in anal intercourse. The case was tried to the court. A verdict of guilty of second-degree murder and second-degree sexual assault and not guilty on three other counts was returned. Flakes was sentenced to forty-six years. All relief sought through a post conviction motion was denied.
Flakes first contends that the amendment to the information was error. After the close of the state's evidence, the defense moved to dismiss the entire information. Flakes explained that the state had failed to prove second-degree sexual assault with a person whom Flakes knew to be unconscious, contrary to sec. 940.225(2)(d), Stats. The state then moved to amend the information to charge second-degree sexual assault, sexual contact or sexual intercourse with a person over twelve years of age and under sixteen years of age, contrary to sec. 940.225(2)(e), Stats., to conform to the proof and the statutory language used in the charging documents. 1 The court ruled that the state could amend to charge sec. 940.225(2)(e).
Under sec. 971.29(2), Stats., the court may allow amendment of the information to conform to the proof where such amendment is not prejudicial to the defendant. It is within the trial court's discretion to allow such an amendment to the information. See State v. Wickstrom, 118 Wis.2d 339, 347 49, 348 N.W.2d 183, 188 89 (Ct.App.1984). A trial court's decision to allow an amendment will not be reversed in the absence of a clear or manifest misuse of discretion. See J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis.2d 69, 85, 336 N.W.2d 679, 686 (Ct.App.1983). If the record shows that discretion was exercised and a reasonable basis exists for trial court's ruling, we will sustain it. Id., 336 N.W.2d at 686 87.
Flakes contends that the amendment did not conform to the proof and that the amendment was prejudicial. We first consider Flakes' argument that the amendment did not conform to the proof. Flakes claims that the entire thrust of the evidence offered by the state was to prove a violation of sec. 940.225(2)(d), Stats. We disagree. The trial court found that:
The State has proven beyond a reasonable doubt based on all the evidence in this case and especially upon the defendant's own statement corroborated by the physical evidence on [the victim's] body, that the defendant did have sexual intercourse, penis to anus, with [the victim] who was 14 years of age at the time of sexual intercourse.
The proof in the case included evidence of the victim's age, and that the defendant had sexual intercourse with him. Therefore we conclude as a matter of law that the amendment conformed to the proof.
The trial court properly allowed the information to be amended to state the correct statutory citation after it found that Flakes had actual notice of the crime In this case, the trial court stated that:
charged from the description of the offense contained in the complaint and the information. An amendment to correct an incorrect statutory citation is permissible if the original information enables the defendant to understand the offense charged, so that he can prepare his defense. Wagner v. State, 60 Wis.2d 722, 728 29, 211 N.W.2d 449, 453 (1973). An information which miscited the statutory reference was sufficient[140 Wis.2d 418] where it verbally described the violation and the defendant could not have been misled or prejudiced by the incorrect statutory reference. Id. at 729, 211 N.W.2d at 453. The rule in Wisconsin is that the trial court may allow amendment of an information at any time in the absence of prejudice to the defendant. Id. at 726, 211 N.W.2d at 452.
It is clear from reading the information and complaint that the State intended to charge the defendant with the crime of sexual intercourse with the person under the age of 16 years, contrary to Wisconsin Statutes section 940.225 sub. (2) sub. (e). Although defense counsel argues the prosecutors add all sorts of surplusage to charging documents, that is not this Court's experience. In addition, it is clear the State in no way alleged the defendant had sexual intercourse with a person who the defendant knew to be unconscious. The State never used that language in the complaint or in the information. There is no doubt that the State charged the defendant with having sexual intercourse with a child under the age of 16 and that the statutory reference was either a typographical or drafting error.
....
The Court finds that everyone, including the defense, knew the State intended to proceed under the subsection that charges the defendant with having sexual intercourse with a child under the age of 16, but the defense is not, quote, unquote, "surprised" by the State's motion to amend now, now that it's aware of the typing error and that the defense has not relied to its detriment in any way upon the State's error.
We agree with the trial court's conclusion that Flakes had notice of the actual charge and that it was a typographical or drafting error. The trial court correctly exercised its discretion when it allowed the amendment.
Flakes asserts that he was prejudiced by the amendment. We disagree.
The trial court found that:
there was no prejudice to the defense in the amendment of that particular typing error at the close of the trial. The defense cites as prejudice the rejection of the plea bargain that was offered. I'm not sure that rejection of a plea bargain was in fact prejudice, but even if it was prejudice, the exposure the defendant faced after the trial was less than the plea bargain offered, so the defendant benefited by having tried the case despite the Court's refusal to find for the defendant on count two. There is no showing by the defense that the trial would have been handled in any different way under sub. (e) than sub. (d), that there would have been any other witnesses, any other defenses, any other strategic decisions that would have been made during the course of the trial other than the ones that were made.
The purpose of a charging document is to inform the defendant of the acts he allegedly committed and to allow him to understand the offense charged so that he can prepare a defense. Wickstrom, 118 Wis.2d at 348, 348 N.W.2d at 188. The key factor in determining whether an amended charging document prejudiced the defendant is whether the defendant had notice of the nature and cause of the accusations against him. Id. at 349, 348 N.W.2d at 189. There is no prejudice when the defendant has such notice. Id.
Flakes has never claimed that he had a viable defense against the charge of sexual contact or intercourse with a minor or that he failed to present such a defense because he did not realize age was an issue. The only prejudice he has asserted is the fact that he rejected a plea bargain because he believed the state would not be able to Flakes further contends that the application of sec. 971.29(2), Stats., is unconstitutional under both the state and federal constitutions. We disagree. We hold that he had actual notice of the charge of sexual contact or intercourse with a person over twelve and under sixteen years of age and that he was not denied any constitutional rights.
prove the unconsciousness element of the sexual assault charge. In Wickstrom the court rejected the defendant's argument that an amendment prejudiced him because it doubled the maximum penalty he faced. The court concluded that Wickstrom's ability to defend himself was not adversely affected. Id. at 348 49, 348 N.W.2d at 188 89. Similarly in this case, Flakes' ability to defend himself was not prejudiced by the amendment. Therefore we conclude as a matter of law that Flakes was not prejudiced by the amendment. Since there was no error of law, the trial court properly exercised its discretion when it allowed the amendment to the information.
The determination of whether Flakes was deprived of his constitutional rights presents a question of constitutional fact: whether Flakes had actual notice of the charge so as to comport with constitutional guarantees. Deference is given to the trial court's findings of evidentiary or historical facts, but not to the ultimate conclusion of constitutionality. State v. Wo...
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