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Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review

State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply

Newly Discovered Evidence – Test – Generally

¶14      In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is, in fact, new; (2) his failure to discover the new evidence earlier was not due to his lack of diligence; (3) the evidence is material to an important issue in the case; and (4) the evidence is not cumulative.  State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997).  If the defendant proves these four elements by clear and convincing evidence, the circuit court decides whether a reasonable probability exists that a different result would be reached in a new trial.  Id.

Newly Discovered Evidence – SVP Commitment – Revised Actuarial

Post-trial revision in one of the actuarials used to support Sugden’s SVP commitment (Static 99), although resulting in lower risk percentages, didn’t satisfy newly discovered evidence requirement of reasonable probability of different result on retrial.

A newly discovered evidence inquiry is, in the nature of things, intensely fact-specific. No attempt is made here to recite the facts in any detail, except to say that 3 experts testified at trial and all disagreed with each other in fundamental respects. One thought Sugden had a mental disorder that predisposed him to sexual violence, while the other two did not think his mental disorder(s) predisposed him to commit sexual violence. Of the latter two, one didn’t assess Sugden’s risk of future violence while the other, despite finding no predisposition, performed risk assessment anyway (concluding a more-likely-than-not risk), ¶¶6-8. These witnesses used, among other instruments, the Static 99, which was revamped after Sugden’s trial so that it now reflects lowered percentage-risk of reoffending. Using the revised instrument, a 4th expert determined on re-examination that, although Sugden does have a mental disorder that predisposes him to sexual violence, he is not more likely than not to commit sexually violent acts, ¶18. Four experts, four views. You might think that this level of disagreement shows that the revised actuarial tips the balance, but if so you would be wrong. The court dismisses the opinion of the post-trial expert for reasons that are obscure, ¶19 (“The opinion of an expert who did not testify at the trial does not have a bearing on how the new risk percentages would affect the opinions of” the two experts who testified Sugden was likely to reoffend). Then, parsing the testimony of those two experts, the court perceives that: the risk instruments underestimate risk anyway, something equally true of the revised Static; the experts relied on factors beyond the actuarials, an exercise of judgment that would be unaffected by the revision; and, they relied on actuarials other than the Static 99, ¶¶25-29. In sum, because the Static revision apparently wouldn’t have altered their opinion of Sugden’s likelihood to reoffend, the revision doesn’t raise a substantial probability of different result on retrial.

Completeness Doctrine, § 901.07

The rule of completeness, § 901.07, grants discretion to the judge to admit additional otherwise-inadmissible statements from a document if necessary to provide context and prevent distortion, ¶¶33-34, citing State v. Anderson, 230 Wis. 2d 121, 140-41, 600 N.W.2d 913 (Ct. App. 1999) and State v. Eugenio, 219 Wis. 2d 391, 411-12, 579 N.W.2d 642 (1998). The statement Sugden seeks admitted here under this rule – an expert’s written observation that Sugden’s risk of reoffending would be mitigated by parole supervision in the community – falls short, because supervision is irrelevant to the issue of dangerous decided by a ch. 980 trial, ¶34, citing with approval, State v. Mark, 2006 WI 78, ¶¶37-41, 292 Wis. 2d 1, 718 N.W.2d 90.

Interest of Justice Review – Erroneous Reference to Postcommitment Events, Screening Process

Without regard to likelihood different result on retrial, the court may grant relief on the basis of unpreserved error(s) that prevented the real controversy from being fully tried, ¶37. Whether considered singly or cumulatively, erroneous references in Sugden’s trial to postcommitment annual reviews, postcommitment treatment, and the pretrial screening process, do not support interest-of-justice relief, ¶¶36-73.

Reference to postcommitment annual reviews is analogous to informing the jury of the effect of its verdict, which is generally prohibited, ¶¶41-42. The fact that Sugden would be re-evaluated every year “is irrelevant to any issue before the jury,” ¶46. And, even if the irrelevant reference was in response to defense questioning (“invited response” doctrine), something the court doesn’t reach, the court would still reach the merits of the interest-of-justice claim, which doesn’t require preserved error, ¶47. Testimonial reference to the purpose of commitment being for treatment is similarly irrelevant; again, it doesn’t matter that the reference was introduced by the defense, ¶¶51-54. Testimony of an expert that she performs “special purpose evaluations” of the “small number” of referrals from the eligible pool is relevant in itself  neither to the expert’s credentials nor “to whether a particular person referred meets the requirements,” ¶57, citing with approval, State v. Budd, 2007 WI App 245, ¶16, 306 Wis. 2d 167, 742 N.W.2d 887. None of these errors clouded the real controversy, however: no connection was drawn between postcommitment treatment and the verdict’s “signifcance”; the jury could have reasonably inferred the existence of postcommitment treatment apart from the wrongful reference; the sole reference to the small number of referrals was small potatoes.

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