State v. Velez, 96-2430-CR

CourtUnited States State Supreme Court of Wisconsin
Citation224 Wis.2d 1,589 N.W.2d 9
Docket NumberNo. 96-2430-CR,96-2430-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Agustin VELEZ, Defendant-Appellant-Petitioner.
Decision Date12 February 1999

For the defendant-appellant-petitioner there were briefs by Scott B. Taylor and Lucas, Wilkoski Taylor, West Allis and oral argument by Scott B. Taylor.

For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶1 DONALD W. STEINMETZ, J

The issue in this case is whether the circuit court erred when it did not conduct a due process evidentiary hearing following the defendant's allegation that the State deliberately delayed charging him with the crime of first degree murder to avoid juvenile court jurisdiction. We hold that the circuit court did not err.

¶2 The defendant-appellant-petitioner appeals a decision of the court of appeals upholding the decision of the circuit court for Milwaukee County, the Honorable David A. Hansher, that an evidentiary hearing was unwarranted under the facts of this case.

¶3 Of the several issues the defendant raised in the court of appeals, only his claim that the circuit court erred in failing to conduct an evidentiary hearing is renewed here.

I

¶4 The relevant facts are as follows. On August 23, 1994, the defendant, Agustin Velez, was charged as an adult with first-degree intentional homicide for a crime committed on June 14, 1994, a date on which the defendant was a juvenile.

¶5 Early in their investigation, police identified the juvenile Velez as a suspect in the murder of James Lovett. The record reveals that shortly after the murder was committed, the police spoke with eye witnesses who placed Velez at the crime scene on the night of the murder and also identified Velez as the murderer.

¶6 On June 22, 1994, with the support of an affidavit describing the circumstances surrounding the June 14, 1994 murder, the Milwaukee County Assistant District Attorney requested of the Judicial Court Commissioner of the Children's Division of the Milwaukee County Circuit Court a warrant for the arrest of the juvenile Velez. The affiant, a law enforcement officer employed by the City and County of Milwaukee, State of Wisconsin Police Department, 1 and liaison between the department and the children's court, attested to familiarity with police reports stemming from the June 14 murder, which placed Velez at the murder scene the night of the crime and identified Velez as a suspect. The affiant further attested that those same police reports described the unsuccessful attempts made by the City of Milwaukee police officers to locate Velez at his mother's home and the homes of his acquaintances. Finding probable cause, the Judicial Court Commissioner issued the requested warrant for the arrest of the juvenile Velez on June 22, 1994.

¶7 The police did not locate the defendant while he was a juvenile. When the defendant became an adult on August 2, 1994, the juvenile court warrant was withdrawn, and a criminal warrant was issued in its place. Then, following an anonymous tip on an unrelated matter, the defendant was apprehended on August 19, 1994. The criminal complaint issued August 23, 1994, not quite three weeks after the defendant became an adult under the law in effect at the time. 2

¶8 On September 2, 1994, the defendant moved to dismiss the complaint against him for lack of jurisdiction. He renewed the motion on October 19, 1994, supporting it with a memorandum and affidavit. He requested the court hold an evidentiary hearing on whether the State intentionally "manipulated the system" in order to avoid juvenile court jurisdiction when it did not file a criminal complaint against Velez until more than two months after he had been identified as a suspect, and nearly three weeks after he became an adult.

¶9 With his memorandum, the defendant identified two areas of inquiry for an evidentiary hearing: first, he contended that the State should have filed a delinquency petition in Children's Court, not, as it did, a request for a warrant for the arrest of a juvenile. Second, the defendant believed that the arrest warrant, obtained on June 22, 1994, was "apparently" not entered into the Crime Information Bureau (CIB) and/or the National Crime Information Center (NCIC) computer systems, which, he further alleged, would have alerted law enforcement agencies nationwide that the defendant was being sought by the Milwaukee Police Department.

¶10 Without holding the requested evidentiary hearing, the circuit court denied the defendant's motion to dismiss. At a nonevidentiary hearing on the motion, held October 31, 1994, the circuit court determined that before a defendant was entitled to an evidentiary hearing on the question, the defendant needed to make some threshold showing of manipulative intent. The court found that the defendant had failed to make that sufficient initial showing following its examination of the defendant's motion, the defendant's counsel's affidavit and memorandum of law, as well as the prosecutor's offer of proof on the issue.

¶11 In reaching its decision, the circuit court placed a fair degree of significance upon the prosecutor's offer of proof, which included the following: first, after identifying Velez as a suspect, the police were initially unable to locate him; second, because the defendant could not be located, the prosecutor requested of the Children's Court a warrant for his arrest--under circumstances where a suspect cannot be located, a warrant as issued here, not a delinquency petition, is the appropriate course of action; third, following the issuance of the warrant, police continued to search for the defendant but were unsuccessful; finally, police in other cities did make attempts to locate Velez--for instance, following anonymous tips that Velez was located outside Milwaukee, the police contacted the Gang Crimes Units in at least two other cities, which in turn made their own attempts to find him.

¶12 After accepting the prosecutor's offer of proof, the circuit court asked the defendant to make his own offer of proof. The defendant's counsel repeated the allegations contained in the motion but was not prepared to offer additional facts in support of his position, nor any evidence tending to contradict the State's offer. The circuit court stated that without more, the allegations offered by the defense were insufficient to support the holding of an evidentiary hearing. The court twice offered the defendant an opportunity for his requested evidentiary hearing at a later date if he could "come up any time prior to trial and submit affidavits showing manipulative intent by the District Attorney's Office or police department." The court entered an order denying the defendant's motion to dismiss on November 4, 1994.

¶13 Following the hearing and prior to the defendant's trial, the circuit court issued an order to the Milwaukee Police Department to provide the defendant's counsel with any documentation that would verify the entering of the warrant issued by the Children's Court into the CIB or NCIC systems. On December 12, 1994, the Milwaukee Police Department responded to the court order with a departmental memorandum and attachments from the NCIC and the CIB verifying that the warrant was entered into both computer systems on June 22, 1994, the same date the warrant issued.

¶14 Despite the circuit court's invitation, the defendant did not bring forward any additional evidence that the State or the police department intentionally manipulated the system in order to charge him as an adult. An evidentiary hearing was never held.

¶15 At his subsequent jury trial in January 1995, the defendant was convicted of one count of First Degree Intentional Homicide, contrary to Wis. Stat. § 940.01(1). He was sentenced to a term of life imprisonment in the Wisconsin prison system.

¶16 The defendant appealed. With respect to the circuit court's denial of his request for an evidentiary hearing, the court of appeals, in an unpublished opinion, concluded that because the State had refuted the defendant's claim of a manipulative intent at the nonevidentiary hearing, an evidentiary hearing was not required.

II

¶17 "[W]hen the charging authorities have reason to believe that a child has committed an offense which, if committed by an adult, constitutes a crime, jurisdiction in a criminal court cannot be maintained on a charge brought after the child becomes eighteen, unless it is affirmatively shown that the delay was not for the purpose of manipulating the system to avoid juvenile court jurisdiction." State v. Becker, 74 Wis.2d 675, 678, 247 N.W.2d 495 (1976); see also State v. Avery, 80 Wis.2d 305, 310, 259 N.W.2d 63 (1977), overruled in part on other grounds by State v. Montgomery, 148 Wis.2d 593, 436 N.W.2d 303 (1989); Montgomery, 148 Wis.2d 593, 436 N.W.2d 303. The State bears the burden of proving that it did not intentionally delay charging the defendant in order to avoid juvenile jurisdiction. Montgomery, 148 Wis.2d at 604, 436 N.W.2d 303; see also Becker, 74 Wis.2d at 678, 247 N.W.2d 495.

¶18 The issue presented for our review requires us to determine whether a defendant is entitled to an evidentiary hearing as a matter of right whenever he or she makes the mere allegation that the State intentionally "manipulated the system" to avoid juvenile court jurisdiction.

¶19 The defendant's argument is essentially two-fold. First, relying upon our decisions in Becker, Avery, and Montgomery, the defendant argues that a motion to dismiss that no more than alleges that the State intentionally manipulated the system in order to avoid juvenile court jurisdiction automatically triggers his right to an evidentiary hearing on the issue. Therefore, because he did make that allegation in his motion, he was entitled to his hearing. Second, if, in addition...

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