State v. KeithState v. Keith
Ronald Keith appeals a judgment concluding that he is a sexually violent person, and the subsequent order committing him to the custody of the State of Wisconsin, Department of Health
BACKGROUND
Keith was convicted of one count of first-degree sexual assault on March 8, 1984 and sentenced to fifty months in prison. On that same date, he was also convicted of one count of second-degree sexual assault for which he was placed on probation for five years. On September 7, 1989, following a probation revocation, Keith was sentenced to ten years imprisonment on the second-degree sexual assault count, with credit for 462 days served. On November 27, 1990, Keith was convicted of a fourth-degree sexual assault, and was sentenced to serve six months consecutive to the second-degree sexual assault count.
Before Keith was sentenced on the fourth-degree sexual assault count, his mandatory release date would
On July 14, 1994, the State filed the present ch. 980 petition alleging that Keith was a sexually violent person. Keith countered that the circuit court lacked jurisdiction to hear the petition because it had not been timely filed, and he moved to dismiss on both jurisdictional and constitutional grounds. The circuit court initially granted Keith's motion to dismiss on the
At the trial of the ch. 980 petition, a jury found that Keith had been convicted of a sexually violent offense, that he had a mental disorder, and that his disorder created a substantial probability that he would engage in future acts of sexual violence. The court entered judgment on the verdict and ordered Keith committed. On appeal, Keith again raises jurisdictional and constitutional challenges, in addition to several alleged evidentiary errors. Additional facts necessary for resolution of these questions will be set forth below.
DISCUSSION
Standard of Review.
Construction of a statute, or its application to undisputed facts, is a question of law, which we decide independently, without deference to the circuit court's determination.
Truttschel v. Martin,
The admission of evidence lies within the sound discretion of the circuit court.
State v. Pepin,
110 Wis.
Finally, the application of constitutional principals to a set of facts is a question of law which we decide without deference to the circuit court's ruling.
State v. Patricia A.P.,
Chapter 980 Jurisdiction.
Under § 980.02(2)(ag), Stats., a commitment petition must allege that a subject is "within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexu
When we are asked to apply a statute whose meaning is in dispute, our efforts are directed at determining legislative intent.
Truttschel,
We conclude that § 980.02(2)(ag), Stats., is ambiguous because it fails to address how consecutive sentences should be treated. Therefore, we look to the subject of consecutive sentence structures in general,
Section 302.11(3), STATS., provides that "consecutive sentences shall be computed as one continuous sentence" in the mandatory parole context.
Ashford v. Division of Hearings and Appeals,
The legislative history of § 980.02(2)(ag), Stats., also supports treating consecutive sentences as one continuous term for the purpose of determining when
In short, there is absolutely no indication that the legislature intended to predicate ch. 980 proceedings on whether a sexually violent offense was the last sentence ordered in a string of consecutive sentences. Therefore, we conclude that within the context of § 980.02(2)(ag), Stats., the phrase "a sentence that was imposed for a conviction for a sexually violent offense" includes a sentence imposed consecutively to any sentence for a sexually violent offense.
Former Testimony of Child Witness.
Prior testimony given by a witness at trial or a hearing is admissible as a hearsay exception if the declarant is unavailable as a witness for a subsequent proceeding. Section 908.045(1), Stats. Section 908.04(l)(e), Stats., defines a witness as "unavailable" when the witness is "absent from the hearing and the proponent of [his] statement has been unable to procure [his] attendance by process or other reasonable means." The Judicial Council Committee Note of 1974 indicates that the term "reasonable means" requires due diligence, or a good faith effort to produce the witness, in accordance with prior precedent such as
La Barge v. State,
The record demonstrates that the circuit court considered the question of the reasonableness of the State's efforts, and decided that using the means customary for finding witnesses was sufficient to be reasonable. The circuit court's conclusion was one which a reasonable person could reach. Therefore, we conclude it did not erroneously exercise its discretion.
Police Report.
During Detective Reinstra's trial testimony, he also reviewed a police report he, himself, had written to refresh his recollection about the investigation he had conducted eight years earlier into John's allegations against Keith. The report contained out of court statements which John had made to Reinstra. After reviewing his report, Reinstra testified about the investigation and said that Keith had denied assaulting John. The officer did not repeat John's actual statements in his testimony. The report was labeled Exhibit 11 and was subsequently admitted, over Keith's objection. However, the report was not referred to again and was not sent to the jury.
The record demonstrates that the circuit court received the police report "for the purpose of refreshing Detective Reinstra's recollection," and considered it an exception to hearsay in that regard. Section 908.03(5), Stats., excepts from the hearsay rule recorded recollections such as:
A memorandum or record concerning a matter about which a witness once had knowledge but nowhas insufficient recollection to enable the witness to testify fully and accurately, shown to have been made when the matter was fresh in the witness's memory and to reflect that knowledge correctly.
Thus, a document reviewed by a witness may be independently admissible as a past recollection recorded only if it
fails
to refresh the witness's recollection.
State ex rel. Huser v. Rasmussen,
However, our analysis does not end there. Eviden-tiary errors are subject to a harmless error analysis. Generally, an error is harmless if there is no reasonable possibility that it contributed to the conviction.
State v. Dyess,
The State easily meets its burden in this case. The erroneously admitted report never went to the jury, and the hearsay statements contained within it were not read to the jury by either Reinstra in his testimony
Department of Corrections Files.
Sandra Reno, a former DOC employee, testified that she had been Keith's assigned parole agent from 1987 to 1990 or 1991, while she was working at the DOC. In the course of her employment, Reno regularly consulted DOC probation and parole files. On direct examination, the State asked Reno whether Keith's files reflected any investigations for juvenile contacts that occurred prior to her assignment to his case. Keith objected, based on Reno's lack of personal knowledge. The objection was overruled on the ground that the files were documents kept in the ordinary course of business by the DOC. Reno then testified that Keith's files indicated fifteen prior investigations for contacts with minors. The files themselves were not offered as evidence.
Keith argues that the testimony was improperly admitted because it does not come within § 908.03(6), STATS., as a regularly-conducted-activity exception. The State, on the other hand, maintains that the circuit court's reference to the DOC files indicates that the testimony was admitted pursuant to the § 908.03(8) public-records exception. We need not resolve this dispute over the circuit court's ground for admission because we may affirm the admission of evidence so long as there is a proper basis for it in the law.
State v. Amrine,
Expert's Past Predictions.
The State elicited expert testimony from Dr. Rodney Miller, a clinical psychologist, that it was substantially probable that Keith would engage in future acts of sexual violence. On cross-examination, defense counsel attempted to ask Miller whether his past predictions of future dangerousness had been tested for accuracy and validity. The circuit court sustained a relevancy objection.
Keith argues on appeal that Miller's past track record in predicting sexually violent behavior was relevant to the doctor's credibility. However, Keith failed to make an offer of proof as to Miller's past predictions. The record does not disclose whether Miller had been
Statement to Psychologist.
Keith placed forensic psychologist E. Rick Beebe on the stand to discuss whether it was his opinion that Keith suffered from a mental disorder, based partly on information which he gathered in an interview with Keith. Keith's claim of error arises from the following exchange:
[Keith's counsel] Did you get a sexual history from Mr. Keith?
[State's attorney] Objection.
[Court] Sustained.
[Keith's counsel] Judge, I am going to have to make an offer of proof on this at some point. I think this is relevant.
[Court] An offer of proof on what? It is hearsay. If the answer to that question was, yes, the answer presupposes hearsay, counsel. It's inadmissible period. There is no need for an offer of proof on something which on its face is inadmissible. If you wish to point out to me one of the 24 exceptions, which I'm aware of — I don't think there are any more — I will take that into consideration.
[Keith's attorney] Again, I'm not attempting to elicit any specific statements from my client, but only to show what areas the doctor covered during his interview. I'm not trying to get in Mr. Keith'sstatements and offer them for the truth of whatever was said, but rather just to show what measures that the doctor took during the course of the interview.
[Court] I will allow testimony on the — in the subject areas, with this caution to the jury. It is hearsay, because these — this information comes from — from Mr. Keith, so it is hearsay and is by definition inadmissible, so you cannot consider it for the truth of the matter asserted, that is, that he did tell Dr. Beebe something or didn't, or for that matter that these things he said were true, only that the doctor covered certain subject areas with Mr. Keith and furnished him some information, the veracity of which we don't know. So go ahead.
Keith claims on appeal that the court's limiting instruction was erroneous because, under § 908.03(4), Stats., and
State v. Nelson,
However, Keith did not specifically object to the court's instruction at the time it was made. His only objection was to the exclusion of testimony regarding the topics which Beebe had discussed with Keith, exclusive of Keith's actual statements — an issue on which he prevailed. At no time, including when he was
Comments on Keith's Refusal to Be Interviewed.
Every defendant in a criminal case has a constitutional right to remain silent. U.S. CONST, amend. V;
Miranda v. Arizona,
The prosecution's comment constituted no more than a pertinent and measured reply to defendant's calling attention to his own failure to testify. As such, the comment did not violate constitutional prohibitions safeguarding defendant's right to remain silent.
Edwardsen,
Keith contends, that based on Zanelli, his constitutional right to remain silent was violated when the prosecutor commented on his refusal to be interviewed by the State's clinical psychologist, Dr. Miller. He points out that during the course of Miller's testimony, the State established that he asked Keith, on at least two occasions, to meet with him, but Keith "chose to exercise his option to refuse to be evaluated and declined invitations to meet with me." Additionally, during the State's closing arguments, counsel commented that Miller "tried to interview Mr. Keith, gave him several opportunities to give them some input, and Mr. Keith declined on every opportunity."
However, Keith relates only part of what happened at trial. Reference to Keith's refusal to be interviewed by Miller was first made by defense counsel, in his opening statement, where he brought into question the quality of Miller's opinion because he had not conducted a clinical interview with Keith or performed psychological tests on him. He told the jury:
Dr. Miller did not conduct a clinical interview with Ronald Keith and find out from Ron himself about Ron's own sex history and his sexual arousal patterns. Dr. Miller did not do any psychological testing on Mr. Keith. ..
He also alerted the jury to the fact that Keith's expert, Dr. Beebe, had interviewed Keith and had performed psychological tests on him. Later, when he presented Beebe's testimony, Keith attempted to discredit Miller's opinion through Beebe's remarks about the detailed clinical interviews and psychological tests Beebe had conducted on Keith and their importance to a reliable prediction of future sexual violence.
Q. Of those different areas is the personal interview with the subject of the evaluation the most important?
A. . . .(W)hen it comes to a sexual case, the fact that you haven't talked to a client and taken a sexual history is an absolute absence. It is like a doctor giving you pain medication and setting your leg without taking a medical history and an x-ray.
We review Keith's contention that his constitutional right was violated in the context in which the claimed violation occurred. And, just as the constitutional right to remain silent operates within established parameters in a criminal trial, we conclude that it stands on the same footings in a § 980.05, Stats., trial. Here, it was Keith who repeatedly alerted the jury to the lack of personal interactions between him and Miller. The State merely responded. Therefore, based on the tack Keith chose for trial, we conclude that Keith opened the door for the State to comment on his refusal to meet with or be tested by Miller and that
Constitutionality of Chapter 980.
Finally, Keith claims that ch. 980 violates due process, equal protection, double jeopardy and ex
post facto
principles. However, the constitutionality of ch. 980 in each of these regards had been resolved by
Carpenter,
CONCLUSION
The State's commitment petition was timely filed because Keith was still imprisoned on a sentence consecutive to a term imposed for a sexually violent offense. The circuit court's evidentiary rulings were all proper and/or harmless error, the constitutional right to remain silent was not violated by the State, and the statute itself is constitutional.
By the Court. — Judgment and order affirmed.
Notes
Keith argues that he finished serving the second-degree sexual assault sentence on approximately January 8,1994. This discrepancy is apparently explained by the affidavit of a Green Bay Correctional Institution employee which states that Keith's mandatory release date was modified several times due to misconduct.
This case will be referred to below as Turner II.
This case will be referred to below as Turner I.
The DOC recalculated Keith's mandatory release date as June 3, 1994, rather than April 11, 1994. Again, this discrepancy presumably resulted from intervening infractions of prison regulations.
State v. Post,
Ashford
was decided on May 5,1993. Therefore, the legislature is presumed to have been aware of the continuous sentence computation analysis when it enacted ch. 980 a year later on May 26, 1994.
See State v. Neumann,