court of appeals decision (3-judge, not recommended for publication); for Oliver: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.
SVP – Evidence
1. Unobjected-to testimony by a state evaluator that DHS psychologists are more “conservative” in their conclusions than other SVP experts did not “cloud” the issue and therefore did not support new trial in the interest of justice, ¶¶12-14.
2. Unobjected-to testimony by one state expert that commitment was supported in 27% of evaluations, and by another state expert that the figure was 70%, did not “cloud” the issue and therefore did not support new trial in the interest of justice, ¶¶15-18.
3. Unobjected-to testimony by a state expert’s expert that after DOC referral of Oliver’s case to the AG for a petition, probable cause was found to keep him detained for further evaluation was inadmissible, “because it suggested, without explaining why, that Oliver was more likely to be sexually dangerous because of the screening process described.” However, “the bulk of the expert testimony cut against Oliver, and there was no neutral, court-appointed expert who testified in Oliver’s favor,” and new trial in the interest of justice wasn’t supported, ¶¶19-23.
SVP – Jury Instructions – “Acts of Sexual Violence”
Unobjected-to instruction – that “[a]cts of sexual violence means acts which would constitute sexually violent offenses as defined by the Wisconsin Statutes. Enticing a child for immoral purposes and first degree sexual assault of a child are sexually violent offenses.” – did not “cloud” issue and therefore did not support new trial in interest of justice, ¶¶25-27.
SVP – Closing Argument
Prosecutor’s closing argument, to the effect that “most” perpetrators do not get caught, was not improper but, rather, made the point “that the evidence showed that reconviction rates underestimate reoffense rates,” ¶¶29-33.
