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Ch. 51 Commitment – Sufficiency of Evidence -Jury of Six

Milwaukee County v. Mary F.-R., 2012AP958, District 1, 10/2/12; court of appeals (1-judge, ineligible for publication), petition for review granted 2/11/13; case activity

Ch. 51 Commitment – Sufficiency of Evidence

Evidence held sufficient to uphold commitment, on issue of “dangerousness,” State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752, (1990), applied:

 ¶12      Here, the County had to prove, as material to the evidence the jury heard, that, at the very least, Mary F.-R. made “recent threats of … suicide” that “[e]vidences a substantial probability of physical harm to … herself.”  See Wis. Stat. § 51.20(1)(a)2.a.  As seen from Part I, she not only made those “threats,” but, indeed, as Dr. Piering testified, had a “history of suicidal ideation.”  The jury was well within its discretion to return the verdict it did, finding the requisite “substantial probability of physical harm,” even though, as Mary F.-R. argues, the jury could have gone the other way.

Ch. 51 Commitment – Jury of Six

Challenge to 6-person jury, as violative of equal protection (in comparison to 12-person jury afforded by ch. 980 commitment procedure), rejected, on ground of forfeiture:

¶14      The general rule is that we do not address arguments, even of constitutional dimension unless they were raised and argued before the circuit court.  See City of Mequon v. Hess, 158 Wis. 2d 500, 506, 463 N.W.2d 687, 690 (Ct. App. 1990) (“The court of appeals will not generally consider an issue raised for the first time on appeal.  See Wirth v. Ehly, 93 Wis. 2d 433, 443–44, 287 N.W.2d 140, 145 (1980).  This is especially so for a claim that a statute is unconstitutional.  Tomah-Mauston Broadcasting Co. v. Eklund, 143 Wis.2d 648, 657–58, 422 N.W.2d 169, 173 (Ct. App. 1988).”).  At the very least, Mary F.-R. forfeited her objection to a jury of six by:  (1) not arguing that it was unconstitutional, and (2) accepting the jury of six without complaint.  See State v. Robles, 157 Wis. 2d 55, 59–60, 458 N.W.2d 818, 820–821 (Ct. App. 1990) (a party who acquiesces in the trial court’s course of action cannot later allege error because of that action), aff’d sub nomState v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991).

The argument, in a nutshell, is that “persons committed under Wis. Stat. ch. 980 and those committed under chapter 51 are ‘similarly situated’ for equal protection analysis,” State v. Williams, 2001 WI App 263, ¶10, 249 Wis. 2d 1, 637 N.W.2d 791, therefore grant of 12-person jury under ch. 980 requires the same under ch. 51. As the present result indicates, the merits of the argument might not be reached on appeal unless and until first raised in the trial court.

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