On Point

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The rule of State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997) (conflict of interest where PSI author married to defendant’s prosecutor) does not extend to situation where PSI author is married to another probation agent and both are jointly supervising the defendant:

¶5       We do not believe that the same inherent bias exists in the relationship between two supervising probation agents. Suchocki stated that it was vital for the author of the report to be independent of either the prosecution or the defense. Id. at 518. This independence is crucial because the prosecution and the defense are the two parties to a criminal action, and the report’s author functions as an agent of the court which must deal impartially with both parties. Thexton’s argument is essentially that a report’s author must be independent of other probation agents, but this cannot be the case. The State correctly points out that the supervising probation agent often conducts the PSI. ^[4] If one supervising probation officer can be a neutral agent of the court, we can think of no reason why two cannot be, or why it should make any difference if the two happen to be married. The reasoning of Suchocki does not fit the facts of this case, and we affirm the circuit court on this point.

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:

¶8        Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation.  Thexton claims that Streekstra used the prior PSI as a basis for questioning him, that this tactic transformed the interview into an “accusatorial” one, and that Thexton was therefore entitled to Miranda warnings.[5]

¶9        Thexton misunderstands the meaning of the word “accusatorial” in this context.  He claims that the interview was accusatorial because Streekstra used a “classic interrogation technique whereby the investigator confronts the accused with prior statements.”  But the word “accusatorial” in this context does not relate to the style or technique of interrogation used.  As our supreme court has made clear, a presentence interview is accusatorial, and as such requires Miranda warnings, “to the extent that it seeks statements from a defendant on an element upon which the state still has the burden of proof.”  State v. Heffran, 129 Wis. 2d 156, 165, 384 N.W.2d 351 (1986).  Such was clearly not the case here, since no elements were outstanding at the time the PSI was being prepared. Thexton’s Fifth Amendment claim fails.

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The agent’s use of a prior PSI during the interview of defendant for the current case did not trigger any additional right to counsel:

¶10      Thexton further argues that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview. Thexton relies upon State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983). In that case, we rejected the argument that a defendant had the right to have an attorney present at a presentence interview. Id. at 381. We noted, however, that there are other safeguards for a defendant with regard to the presentence investigation, including the right to consult with counsel before a presentence interview and the right to have counsel dispute information contained in the report. Id. at 385. Thexton does not allege that he was prevented from consulting with counsel before the investigation. Instead, he seems to be claiming that he had a right to consult with counsel before any questions relating to his prior PSI. We disagree. The right to consultation with counsel before a presentence interview does not include a right to be apprised of all lines of questioning before the interview occurs. The other safeguards noted in Knapp, including the right to dispute information in the report, adequately protect a defendant’s Sixth Amendment rights, and Thexton’s counsel did in fact vigorously and meticulously challenge the information and conclusions in the PSI at the sentencing hearing.

City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU

Issue/Holding: 

¶53      We conclude that a circuit court may take into account cost when determining place of confinement under Wis. Stat. § 252.07(9). A court must first determine that the place of confinement is a facility where proper care and treatment will be provided, spread of the disease will be prevented, and that no less restrictive alternative to the proposed placement exists. Once the court has engaged in this analysis, and two or more placement options remain, a court may consider cost as a factor in making its determination. A party requesting that a court take into account the cost of various placements must offer some proof to support its assertions for the court to consider cost as a factor in placement.

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Evidence that SVP respondent would be under DOC supervision if not committed under ch. 980 properly excluded as irrelevant, ¶¶8-14 (“the fact of supervision is irrelevant to whether Budd is a sexually violent person under § 980.01(7),” ¶14).The court in essence follows its statement in State v. Charles W. Mark, 2005 WI App 62, ¶47, affirmed 2006 WI 78, that mere fact of supervision is irrelevant, against challenge to that statement as dicta.

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court erred in admitting evidence as to the “screening process” for referring SVP cases, which had the effect of informing the jury that fewer than 5% of eligible sex offenders are selected for commitment proceedings.

Holding:

¶16   We need not conclude, as Budd urges, that the DOC’s screening process for potential Wis. Stat. ch. 980 cases is irrelevant as to the determination of whether a defendant is a sexually violent person as a matter of law. The problem with the screening evidence admitted in this case is that it did not establish why Budd was selected for ch. 980 proceedings. ^[6] The evidence only explained that most sex offenders scheduled for release are not selected for ch. 980 proceedings, without explaining why a select few are so chosen. ^[7] There was no testimony as to the qualification of the ECRB or its chairman, or explanation of the evaluation process used by either. From the record, the ECRB’s process could be random, or based on irrelevant criteria. As Budd points out, all the evidence served to do in this case was to inform the jury that Budd was selected as one of the 4.5% of sex offenders recommended for ch. 980 proceedings. Without explaining why, we do not see how that information is relevant to whether Budd is a sexually violent person under our analysis inMark. ^[8]…

¶18   Here, the State’s expert testified that Budd was among only 4.5% of sex offenders selected for Wis. Stat. ch. 980 proceedings, stating that the chairman of the ECRB screens 75% of sex offenders out of the potential ch. 980 pool, the ECRB screens out another 50%, and that she refers only about a third of the cases she receives. The State referenced that testimony in closing to rebut the defense’s implication that Marsh was biased, stating that her recommendations are conservative. One expert testified that Budd met the criteria of a sexually violent person and three experts testified that he did not. The screening evidence did not duplicate any properly admitted evidence. This is a close case. We conclude that the impact of telling the jury that the respondent was one of only 4.5% of sex offenders selected for ch. 980 proceedings, where three of the four experts testified that the respondent did not meet the criteria of a sexually violent person, contributed to the jury’s finding that Budd is a sexually violent person. Accordingly, we reverse and remand for proceedings consistent with this opinion.

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 ^[6] The “screening evidence” at issue is Marsh’s testimony as to the process the DOC uses to screen sex offenders scheduled for release before referring certain sex offenders to her for special evaluations. We recognize that Marsh explained the methodology she uses to select certain sex offenders for Wis. Stat. ch. 980 proceedings from the group referred to her. ^[7] Budd argues that the percentage of sex offenders referred for Wis. Stat. ch. 980 proceedings is in itself irrelevant to the issue of whether the respondent is a sexually violent person. He asserts that the outcome for other sex offenders has no bearing on whether he is a sexually violent person. However, because we conclude that the evidence presented in this case was irrelevant due to the lack of explanation as to the screening process used to refer Budd for ch. 980 proceedings, we need not reach the question of whether the percentage of sex offenders referred would ever be relevant.

 ^[8] The State argues that the screening evidence is admissible under Wis. Stat. § 907.02 as specialized knowledge necessary to assist the jury in understanding the expert testimony. Again, we fail to see how the mere fact that a screening process takes place, without explaining the basis for the screening, provides specialized knowledge for the jury.

Thus, the court doesn’t hold that the screening process can never be relevant, it’s just that it’s irrelevant in this particular case because it wasn’t specifically linked to Budd. Once the “experts” figure out the right mumbo-jumbo they’ll be talking up a linkage festival. Great. Still: it’s not as if the actuarials themselves are linked in any meaningful way to the particular subject; just a thought — see, though, In the Matter of Murrell, MO SCt No. SC87804, 2/13/07 (admissibility of Static-99 and MnSOST-R upheld against argument they relect only results of group analysis and are therefore irrelevant on whether this particular respondent is likely to reoffend).

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: “(T)he phrase ‘more likely than not’ in the statute means what it says: that an event is more likely to occur than not to occur; that is, has a greater than 50% chance of happening. Thus, in order to find Smalley a sexually violent person, the jury had to conclude that, due to a mental disorder, there was more than a 50% chance that Smalley would commit a sexually violent offense in the future,” ¶6.