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Appellate Procedure – Harmless Error: SVP Trial

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶57      In summary, while the termination from the community treatment program and the rule violation were presented as conduct that, along with the hotel incident, showed Mark was at risk to reoffend, their significance without the hotel incident is not clear. The hotel incident was the dominant focus, in argument and testimony, of the conduct Mark engaged in after release on parole that showed he was still dangerous. Given the ambiguity of the conduct underlying the rule violation and the lack of testimony explaining how the community treatment termination related to Mark’ future dangerousness, particularly in view of the treatment he earlier successfully completed, we think it is speculative whether a rational jury would have decided, without the hotel incident and the experts’ opinions on dangerousness, that Mark was much more likely than not to reoffend.¶58      We conclude that the State has not demonstrated beyond a reasonable doubt that the errors—the admission of Mark’s two statements on the hotel incident, references to the statements and to the hotel incident, and the experts’ opinions that Mark was much more likely than not to reoffend—were harmless.

Also see: State v. Danny G. Harrell, 2008 WI App 37, ¶43.

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