State v. Spears

596 N.W.2d 375, 227 Wis. 2d 495, 1999 Wisc. LEXIS 99

• Court: Wisconsin Supreme Court
• Decided: July 7, 1999
• Docket: 97-0536-CR
• Status: Published

Opinions

DONALD W. STEINMETZ, J.

¶1. We are presented with a single issue for our review: Whether the circuit court in sentencing the defendant erroneously exercised its discretion when it ruled the victim's criminal record irrelevant to its sentencing determination.

¶ 2. The State seeks review of a published decision of the court of appeals, State v. Spears, 220 Wis. 2d 720, 585 N.W.2d 161 (Ct. App. 1998), which affirmed a judgment and reversed an order of the Circuit Court for Milwaukee County, the Honorable John A. Franke. The circuit court denied the defendant's postconviction motion for resentencing. In her motion for postconviction relief, the defendant argued that the circuit court erred by refusing to consider evidence of the victim's criminal record when determining her sentence.

¶ 3. We hold that evidence of the victim's criminal record is relevant to the defendant's sentence because it supports the defendant's view of the crime for which she has been convicted.¹

¶ 4. The events leading to the crime for which Yolanda M. Spears (Spears) was convicted are disputed and lie at the heart of the defendant's appeal. In Spears' version of the events, she and her friends were celebrating her sister's birthday in the early morning hours of July 15, 1995, when Phillip Young (Young) robbed her and a friend. According to two witness accounts, Young hit Spears twice in the face in his successful effort to take her purse. The witnesses also told police that Young stole the purse of another woman who was with Spears. Immediately following the robbery, an unknown bystander chased Young, beat him, and successfully retrieved both purses.

¶ 5. Members of Young's family cast doubts upon Spears' version of the events, questioning whether Young stole her purse, much less violently assaulted her. Of the events of July 15, 1995, whether Young physically assaulted Spears is the only disputed question for the purposes of this appeal.

¶ 6. After her purse was returned to her, Spears took the keys to a friend's car and with it chased Young, who was on foot. A witness to the ensuing crime told police that he observed Spears driving in excess of 40 miles per hour and witnessed her drive onto a sidewalk where Young was walking. Missing Young on her first pass, she turned her car around and drove back toward Young, who had remained on the sidewalk. As Young fled down the sidewalk, he was hit by Spears and was propelled into a street. Spears drove off.

¶ 7. Moments later, having driven a couple of blocks away from Young, Spears made a U-turn and returned to the scene. According to the witness, Spears accelerated to what the witness believed to be about 50 miles per hour and ran directly over Young where he lay in the street. Young died shortly thereafter from the injuries he sustained from twice being hit by Spears.

¶ 8. On September 13, 1995, pursuant to a plea agreement, Spears entered an Alford plea² to second degree intentional homicide.³ Prior to the sentencing hearing which was held on November 14, 1995, the circuit court received numerous letters from Young's family, Spears' family, and members of the community, each one offering personal sentiments regarding the high-profile crime and many suggesting to the court what the writers believed to be an appropriate sentence for Spears.

¶ 9. In anticipation of the sentencing hearing, defense counsel prepared a sentencing memorandum to which he attached a copy of the victim's criminal record. At the hearing, the prosecutor objected on grounds that the victim's criminal record was not relevant to the court's determination of Spears' sentence. The circuit court declined to formally strike the victim's criminal record, but agreed with the prosecutor that "the specific prior record of the victim [was] not relevant at all to these proceedings."

¶ 10. The circuit court then received statements from members of Young's family who generally expressed grief over his death and portrayed Young as a good-hearted person whose death at the hands of Spears required that she be given a harsh sentence. In addition, two members of Young's family questioned whether Young had violently assaulted Spears.

¶ 11. Rosie Young, one of Young's sisters, told the court that she could not "see [her] brother as doing the things that they all claim that he had done — the victim's [sic] claim that he had done I don't know, but I

cannot perceive my brother as being that type of person [who would partake in the crime of physically assaulting a woman and snatching her purse]."

¶ 12. Jennifer Young, the victim's first cousin, said, "he was a man — a good man. . . . [He] had a good heart, and I guess it took a woman to take him away from us because he would never hurt a woman. He would never hurt a woman."

¶ 13. Following the statements, the prosecutor acknowledged that there was no dispute that Young had initiated the confrontation. However, she believed that the known facts left uncertain whether that confrontation involved physical force. The circuit court sought clarification on that point:

The Court: I agree that any prior record the victim might have had is irrelevant here, but I would like to achieve as best an understanding as I can of what caused this to happen.

Other than the people that were with this Yolanda Spears, is there any witness reporting a physical assault by the victim on Ms. Spears beyond the purse snatching?

Ms. Heard: No. Other than the people that are with her?

The Court: Yes.

Ms. Heard: No, there was no one else.

The Court: Any objective evidence of that? When she was arrested in Nebraska, was there a black guy [sic]? Was there a broken nose?

Ms. Heard: No broken nose, no.

¶ 14. Defense counsel provided the court with the following comments from Spears' friends, the witnesses who told police they had seen Young's crime:

Mr. Ksicinski: Ms. Austin stated to the police that she looked up and observed .— Young punching Yolanda in the face, break the strap, and take Yolanda's purse. She states Young came after her, carrying Yolanda's purse. Then Ms. Winters states that Necole put — meaning Ms. Winters — put the key in the door. The black male who had taken her seat in the tavern ran up to her and Yolanda and stated, quote, this is a stick up, unquote. Necole states that this black male grabbed Yolanda's purse and Yolanda pulled it back. Necole states that the black male then hit Yolanda in the face twice with his fist, and the strap broke, and he got Yolanda's purse. Necole states that the black male suspect then came at her to take her purse and she hit him with it....

¶ 15. The court, after setting forth those facts it believed relevant to Spears' sentence, made the following comments, which reveal that the statements made by Young's family created for the court a factual uncertainty with respect to Young's alleged assault on Spears:

I didn't realize until just a few days ago that there were some potential considerable factual disputes here. It was clear from the very beginning of this case, it was clear at the plea hearing that this was going to be a difficult case, that there was a considerable amount of information which would come to bare on all of those factors, the nature of this particular crime, the character of this particular defendant, and the particular interests that the community has in this — in this sentence. But I've received letters claiming that you didn't do this, that you're taking the fall for somebody else. I've received letters and heard from the victim's family indicating that they challenge at least some of the provocation that was more or less assumed at the — at the plea hearing in this case.

I am comfortable — even though we have not had an evidentiary hearing, we have not had a trial in this matter, I'm comfortable with a reasonable view of the facts here, what I believe is what happened. I don't think there's any question that you did this. If there's any evidence that you didn't do it, then that should be — should have been or should be presented to the Court. But I'm satisfied that you did it, and there's been no claim from you specifically that you didn't do it.

There appears to be some question about the degree of provocation, but I'm satisfied that the victim in this case engaged in an assaultive offense against you and your friends. I'm satisfied that he set about, with whatever intent or particular motives he may have had, to snatch your purse, snatch more than one purse, and that this was done with some violence or at least some threat of violence.

There is some unresolved issue here about whether there was an actual physical assault on you. There's some witnesses who claim that there was. There's a family of the victim here that doesn't believe that there was.

[I]n sentencing you, I do have to try to understand what it was you did and why you did it, and whether or not a physical blow was struck. It's quite clear that you were subject to some assault, either by violence or the threat of violence, and it's on that basis — those bases that I am proceeding to decide upon a sentence that is hopefully fair to you, and fair to the victim's family in this case, and fair to the community.

After further discussion of the factors upon which it was relying for its decision, the circuit court sentenced Spears to 20 years in prison.

¶ 16. Subsequently, Spears filed a motion for postconviction relief, asserting first that given the facts of the case, the circuit court erroneously exercised its discretion in sentencing her to 20 years, five more than the prosecutor's recommendation. Second, Spears asserted that the circuit court erred as a matter of law when it refused to consider the victim's prior criminal record as her rebuttal to the "good" character evidence his relatives provided the court in their statements at her sentencing hearing.

¶ 17. The circuit court denied Spears' postconviction motion, concluding that while the criminal record

would have been relevant on the issue of whether the victim was a model citizen, it was not specifically offered for that purpose nor was there any material issue in that regard. Similarly, [ ] if there had been a dispute as to whether the victim had in fact attempted to snatch the defendant's purse, his prior record would have had some relevance. Here, however there was no such dispute. I accepted that the victim provoked the incident by committing an assaultive offense against the defendant and her friend. While the victim's bad conduct and character on the night of his death was an important mitigating factor in this sentencing, the victim's general character was not a sentencing factor, and there was simply no reason to give his prior record any weight.

¶ 18. The court of appeals reversed and remanded for a new sentencing hearing, holding that a victim's criminal record was relevant to sentencing when members of the victim's family recommended sentences that were in part based upon the victim's virtuous nature. Spears, 220 Wis. 2d at 728. The court of appeals also believed that Young's criminal record was relevant because it supported the defendant's view of the circumstances surrounding her crime. Id. at 728 n.6. We affirm on the narrow grounds that Young's criminal record should have been admitted as evidence because it tends to support the defendant's view of the circumstances surrounding her crime, the gravity of which was a sentencing factor considered by the sentencing court.

¶ 19. Sentencing decisions are left to the sound discretion of the circuit court and our review of a sentencing decision is limited to determining whether the circuit court erroneously exercised its discretion. State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984). "A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." State v. Canedy, 161 Wis. 2d 565, 579-80, 469 N.W.2d 163 (1991)(quoting Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)). We recognize a "strong public policy against interference with the sentencing discretion of the trial court and sentences are afforded the presumption that the trial court acted reasonably." Harris, 119 Wis. 2d at 622. We are reluctant to interfere with the sentence the circuit court has imposed, for the circuit court is in the best position to consider the relevant factors and the demeanor of the defendant. State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993) (citing Harris, 119 Wis. 2d at 622).

¶ 20. We have explained that a sentencing court, when fashioning a sentence, should consider all relevant and available information. State v. Carter, 208 Wis. 2d 142, 156, 560 N.W.2d 256 (1997). At the very least, the sentencing court must consider the following three primary factors: (1) the gravity and nature of the offense, including the effect on the victim, (2) the character and rehabilitative needs of the offender, and (3) the need to protect the public. Id.; Echols, 175 Wis. 2d 653 at 682.

¶ 21. In addition, we have identified a number of factors related to the primary factors which a circuit court might use in considering the appropriate sentence:

'(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.'

Harris, 119 Wis. 2d at 623-24; see also Echols, 175 Wis. 2d at 682. A circuit court need not specifically address on the record each of these "secondary" factors; we leave to the circuit court the determination of which factors are relevant to its sentencing decision in the particular case. Echols, 175 Wis. 2d at 683. Imposition of a sentence may be based on one or more of the three primary factors after all relevant factors have been considered. Anderson v. State, 76 Wis. 2d 361, 366-67, 251 N.W.2d 768 (1977).

¶ 22. The question on appeal is quite narrow in scope. The defendant does not challenge the reasoning process the circuit court used in determining her sentence. Her single point of error alleges that the circuit court erroneously exercised its discretion in refusing to consider the victim's criminal record.

¶ 23. We agree. In considering the gravity of Spears' offense, the circuit court made quite clear that it believed that the circumstances leading to her crime were relevant to its sentencing decision. Information that would have tended to clarify the events leading to that crime should have been considered relevant by the court. See State v. Richardson, 210 Wis. 2d 694, 705, 563 N.W.2d 899 (1997) ("Relevant evidence is evidence that has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable."). The victim's criminal record is such evidence.

¶ 24. "It is well-settled that a criminal defendant has a due process right to be sentenced only upon materially accurate information." State v. Lechner, 217 Wis. 2d 392, 419, 576 N.W.2d 912 (1998)(citing United States v. Tucker, 404 U.S. 443 (1972); Bruneau v. State, 77 Wis. 2d 166, 174-75, 252 N.W.2d 347 (1977)). As part of the guarantee that he or she be sentenced on reliable information, a defendant has the right to rebut evidence that is admitted by a sentencing court. See Handel v. State, 74 Wis. 2d 699, 704, 247 N.W.2d 711 (1976)(circuit court does not abuse its discretion in sentencing the defendant when facts contained in a presentence report are not challenged or disputed by the defendant); State v. Damaske, 212 Wis. 2d 169, 196, 567 N.W.2d 905 (Ct. App. 1997)(at a sentencing hearing, a defendant need not be afforded an opportunity to cross-examine witnesses who present evidence of the defendant's prior criminal offenses "as long as the defendant has an opportunity to rebut the evidence."); United States v. Lawrence, 934 F.2d 868, 874 (7th Cir. 1991)(a sentencing court may consider uncorroborated hearsay so long as the defendant has had an opportunity to rebut it).

¶ 25. The transcript from the sentencing hearing reveals that there was quite clearly a dispute as to whether Young physically assaulted Spears, as the sentencing judge repeated on a number of occasions that he recognized that such a dispute existed. This factual dispute was brought to the court's attention by Young's sister and cousin in statements that the court did not exclude as irrelevant to its decision. The court's consideration of Young's criminal record may have helped it resolve this dispute for the purposes of sentencing Spears. Certainly the criminal record was relevant as evidence for the purpose of rebutting the statements made by Young's family that Young would not have hurt a woman or have partaken in a crime that involved physically assaulting a woman.

¶ 26. Our review of Young's criminal record reveals that he was arrested between 1984 and 1993 on 18 separate occasions. Among the misdemeanor and felony offenses for which he was arrested are robbery, burglary, party to battery, resisting arrest and obstructing an officer, theft, attempted theft, retail theft, bail jumping, and attempted first-degree homicide. He was not prosecuted in the case involving attempted first-degree homicide. For many of the other crimes for which he was arrested, it is not entirely clear which cases were and which were not prosecuted. However, it is evident that he was convicted of burglary on at least three occasions, and was once convicted of robbery. He received a sentence of five years prison for the latter conviction. This criminal record reveals a history of violent crimes.

¶ 27. In finding Young's criminal record irrelevant, the circuit court erroneously exercised its discretion. Because the court admitted statements which cast doubts on the question of whether Young physically assaulted Spears, Spears should have had an opportunity to present evidence of the criminal record to rebut those statements.

¶ 28. Further, a resolution of the disputed question may have had an effect on the sentence Spears received. The circuit court purposefully left unresolved the issue of whether there was an actual physical assault on Spears. However, as the circuit court explicitly acknowledged, the events precipitating Spears' crime was relevant to its determination of the gravity of her crime. The court explained that it did "have to try to understand what it was [Spears] did and why [she] did it, and whether or not a physical blow was struck." It then sentenced Spears without as full an understanding as it might have had following consideration of Young's record. The circuit court's failure to consider the criminal record for the purposes of determining the series of events culminating in Young's death was error given that the court considered "the victim's bad conduct and character on the night of his death [ ] an important mitigating factor in this sentencing."

¶ 29. On this record, we cannot know whether the circuit court would have considered a robbery involving physical assault a greater mitigating factor than a robbery involving a non-physical assault. But it may have. And the circuit court did not explain that its determination of whether a physical assault had in fact occurred was irrelevant to its decision. In fact, it explicitly stated that the circumstances of the crime were relevant. Therefore, Young's criminal record should have been considered in assessing whether Young's assault on Spears was likely to have been physical or non-physical, for that would reflect upon his conduct and character on the night of Spears' crime, and, perhaps, may then have had some effect on the sentence Spears received.

¶ 30. In conclusion, we hold that where a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, it should be admitted as evidence at the defendant's sentencing hearing. Of course, once such evidence is admitted, the weight to be given any of the factors the circuit court considers in sentencing is fully within its discretion. See Cunningham v. State, 76 Wis. 2d 277, 282, 251 N.W.2d 65, 67-68 (1977).

By the Court. — The decision of the court of appeals is affirmed.

1 Because we hold that a defendant has the right to present evidence supporting her view of the crime, we decline to address the defendant's additional arguments that the victim's criminal record was relevant to rebut "good" character evidence with evidence of the victim's "bad" character and that the record was relevant to the three sentencing factors that a circuit court must consider when making its sentencing determination. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938).

2 Spears entered a plea of guilty pursuant to Alford. North Carolina v. Alford, 400 U.S. 25 (1970); State v. Garcia, 192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995). With an Alford plea a defendant accepts conviction but either maintains his or her innocence or declines to admit having committed the crime. See Garcia, 192 Wis. 2d at 856. In this case, defense counsel indicated that Spears accepted conviction but had premised her plea more upon her inability to remember her crime than upon her affirmative denial that she committed the crime.

3 Wis. Stat. § 940.05(1)(b)(1993-94).