In this appeal, we decide that evidence of a conviction expunged under sec. 973.015(1), Stats., is not admissible under sec. (Rule) 906.09(1), Stats., to attack the credibility of a witnеss. We therefore conclude that the fact that a state witness had been convicted of a crime which had been expunged was not material evidenсe which the state was required to disclose to the defendant. We affirm the circuit court's denial of defendant's motion for postconviction relief based on the state's failure to disclose and affirm defendant's conviction.
Grady Anderson was charged with intermediate battery, contrary to sec. 940.19(lm), Stats. His first trial resulted in a hung jury. Anothеr jury found him guilty and judgment was entered on the verdict.
After trial, Anderson's counsel discovered in the state's case file, evidence that a state witness had been convicted of a misdemeanor. The file also revealed that the conviction had been expunged, pursuant to sec. 973.015(1), Stats. Anderson moved for a new trial because the state failed to disclose to him material evidence which he could have used to impeach the witness. The state argues that because the witness's conviction had been expunged under sec. 973.015(1), it was no longer a conviction which could be used to impeach the witness and, therefore, the state was not obliged to disclose the witness's conviction to the defendant. We agree.
Section (Rule) 906.09(1), Stats., provides that "[f]or the purpose of attacking the credibility оf a witness, evidence that he has been convicted of a crime is admissible . . .."
Section 973.015(1), Stats., provides:
*438 When a person [is] under the age of 21 at the time of the commission of an offensе for which the person has been found guilty in a court for violation of a law for which the maximum penalty is imprisonment for one year or less in the county jail, the cоurt may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the pеrson will benefit and society will not be harmed by this disposition.
Apparently the state's witness was under the age of twenty-one when he committed the misdemeanor which was later expunged.
Anderson argues that expunction of a conviction does not render it automatically inadmissible for impeachment purposes, but rather, is simply a factor which the trial court may consider in deciding under sec. (Rule) 906.09(2), Stats., whether the probative value of evidence of a conviction is substantially outwеighed by the danger of unfair prejudice.
Anderson compares sec. (Rule) 906.09, Stats., with its federal analogue, Rule 609, Federal Rules of Evidence. Wisconsin's rule bears little resemblance to its federal counterpart. Judicial Council Committee's Note, Wisconsin Rules of Evidence, 59 Wis. 2d at R177. The Wisconsin Supreme Court rejected federal rule 609(c), which excludes evidence of a conviction which has been the subject of a pardon, annulment, certificate of rehabilitation, or other еquivalent procedure. The Judicial Council Committee's note includes the following:
The Federal Rule by placing strict limitations upon the use of a criminal conviction makes the Rule administratively impractical. The limitations are appropriate but they should be considered by the judge in applying sub. (2).
*439 The state acknowledges that the Judicial Council Committee's note supports a construction of sec. (Rule) 906.09(1), Stats., which allows a trial court to permit impeachment of a witness with an expunged conviction. The state argues, however, that because the rule was adopted by the supreme court before sec. 973.015(1), Stats., was enactеd, the court could not have had the legislature's intent in mind. The state asserts that that intent must be gleaned from the language of the statute because there is no legislаtive history. We find that there is a helpful legislative history of sec. 973.015(1), if we may resort to it.
We examine the legislative history of a statute only if the statute is ambiguous.
State ex rel. Girouard v. Jackson County Circuit Ct.,
Section 973.015(1), Stats., was created in the act which created the Youthful Offenders Act. 1 Section *440 972.13(1), (2) and (6) were amended in the same act. 2 Section 972.13(1) was amended to add the following language: "[I]f the defendant is under the age of 21 a determination under s. 54.03 [of the Youthful Offenders Act] shаll be made prior to the entry of judgment and if the defendant is found to be a youthful offender under that section, a judgment of conviction shall not be entered but rather the judgment shall be for disposition as a youthful offendеr." (Emphasis added.)
Thus, a determination of guilt of a youthful offender was not admissible under sec. (Rule) 906.09(1), Stats., because a youthful offender was not "convicted of a crime." The purpose of the Youthful Offenders Act was to shield qualified youthful offenders from some of the harsh consequences of criminal convictions. Section 54.01(2), Stats. (1975), рrovided in part: "It is the intent of this chapter to provide an alternative to procedures in the criminal code relating to conviction and sentencing. This сhapter is to be liberally construed to effect its objectives."
It can be argued that the legislature intended to remove this shield when it repealed the Youthful Offеnders Act. 3 Had that been the legislature's intent, however, it would also have repealed, or substantially amended, sec. 973.015(1), Stats. There is no evidence that the legislature intended, by repealing the Youthful Offenders Act, to give sec. 973.015(1) a meaning different from that which it had at the time of its enactment. We conclude that the statute prоvides a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions, *441 inсluding the use of criminal convictions for impeachment purposes under sec. (Rule) 906.09(1), Stats.
We are also persuaded by the circuit court's logic. The court stated: "Clearly, the purpose of expungement is just that — to, in effect, obliterate the record of the individual. In fact, had the State followed it to the letter, what should have been done, their record should also have been destroyed regarding [the witness] . . .." If we interpret the statute and rule as Anderson urges, the result in each cаse will depend on whether court personnel have complied with the court's expunction order.
We are further persuaded by the legislature's failure to amend sec. 973.015(1), Stats., after the attorney general's opinion in
The attornеy general concluded: "The practice employed in your county . . . does not comply with the common and ordinary meaning of the word 'expunge' nor doеs it comply with the requirements of [sec. 973.015(1), Stats.]" The attorney general concluded that the word "expunge" was to be construed according to its common and approved usage. Black's Law Dictionary 582 (6th ed. 1990) defines "expunge" as follows: "To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information — including criminal records — in files, computers, or other depositories."
Since 1978, the legislature has acquiesced in the attorney general's interpretation of the statute and that acquiescence is to be given considerable weight.
See
*442
Staples v. Glienke,
By the Court. — Judgment and order affirmed.