In re Commitment of Mark

• Decision Date: 31 January 2008
• Docket Number: No. 2007AP522.,2007AP522.
• Parties: In re the COMMITMENT OF Charles W. MARK: State of Wisconsin, Petitioner-respondent, v. Charles W. Mark, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

747 N.W.2d 727

2008 WI App 44

In re the COMMITMENT OF Charles W. MARK State of Wisconsin, Petitioner-respondent, v. Charles W. Mark, Respondent-Appellant.

No. 2007AP522.

Court of Appeals of Wisconsin.

Oral Argument November 20, 2007.

Opinion Filed January 31, 2008.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Glenn L. Cushing, Assistant State Public Defender, Madison. for Appellant. There was oral argument by Glenn L. Cushing.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, Assistant Attorney General, and J.B. Van Hollen, Attorney General. There was oral argument by Warren D. Weinstein.

Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.

¶ 1 VERGERONT, J

This appeal concerns the use at a trial under WIS. STAT. ch. 980 of a written and an oral statement made by the respondent, Charles W. Mark, to his parole officer. In State v. Mark, 2006 WI 78, ¶ 34, 292 Wis.2d 1, 718 N.W.2d 90, on Mark's first appeal concerning the use of these statements at trial, the supreme court remanded to the circuit court for a determination whether the two statements were compelled. On remand, the circuit court determined that the written statement was compelled but nonetheless admissible in spite of the Fifth Amendment privilege¹ against self-incrimination because the statement was rendered non-incriminating by the grant of immunity on the preprinted form. As to the oral statement, the court concluded that it, too, was compelled and, because there was not a grant of immunity for this statement, it was incriminating and should have been excluded under the Fifth Amendment. However, the court concluded, its admission was harmless error.

¶ 2 Mark's primary contention on appeal is that both the written and oral statements were compelled and their use at trial, as well as any derivative use, violated his Fifth Amendment privilege against self-incrimination. These errors, he asserts, are not harmless.

¶ 3 We conclude that Mark's written and oral statements were compelled and, because they were also testimonial and incriminating, their admission at trial violated Mark's Fifth Amendment privilege against self-incrimination, made applicable to him by WIS. STAT. § 980.05(1m).² We further conclude that, under Fifth Amendment case law, testimony referring to the hotel incident described in the statements and the two experts' opinions that Mark was much more likely than not to reoffend should have been excluded because that evidence was derived from the two statements. Finally, we conclude these errors were not harmless. We therefore reverse the circuit court's order on remand, reverse the judgment that Mark is a sexually violent person, and remand for a new trial.

BACKGROUND

¶ 4 Mark was convicted in 1994 on three counts of first-degree sexual assault of a child based on his guilty pleas. He was sentenced to eight years of confinement, followed by two fifteen-year terms of probation, to be served consecutively to the confinement but concurrently to one another. Mark was released on parole in May 1999, but his parole was revoked in June 2000 because of an incident involving a woman in the residential hotel where Mark lived. Mark was sent back to prison to serve the rest of his confinement. In June 2002, just before his scheduled release, the State filed a petition alleging that Mark was a sexually violent person under WIS. STAT. § 980.01(7).³

¶ 5 At the WIS. STAT. ch. 980 trial, the State offered into evidence and the circuit court admitted a written statement and an oral statement made by Mark to his parole agent concerning the hotel incident.⁴ The written statement, signed by Mark, was on a form at the top of which was printed:

PROBATION/PAROLE/OFFENDER I have been advised that I must account in a truthful and accurate manner for my whereabouts and activities, and that failure to do so is a violation for which I could be revoked. I have also been advised that none of this information can be used against me in criminal proceedings....

¶ 6 In this written statement, Mark described the hotel incident as entering the room of a woman who lived next to him at his residential hotel and, upon finding her in the bathroom, trying to forcibly gain entrance to the bathroom while she yelled for him to get out. This written statement claims that Mark wanted only to see her naked and he reported the incident to his parole agent because the woman threatened to call the police.

¶ 7 Mark's oral statement was recorded on the parole agent's log about two weeks after the written statement. In this statement Mark admitted that his motivation for wanting to break into the bathroom was to have sex with the woman.

¶ 8 These two statements were introduced at trial through Mark's current probation agent⁵ and the agent read them. The State also presented two expert witnesses⁶ who opined that Mark had pedophilia, meaning that he is sexually attracted to prepubescent children, and as a result it was much more likely than not that he would reoffend. Both of these experts considered the hotel incident in arriving at their opinions on Mark's future dangerousness. The defense expert presented her opinion that the actuarial instruments are inadequate to predict future behavior. She did not perform an evaluation on Mark and did not offer an opinion on his future dangerousness.

¶ 9 The jury found that Mark was a sexually violent person under WIS. STAT. § 980.01(7) and the court entered a judgment and commitment order based on the verdict. Mark appealed to this court. He contended, among other issues, that the statements used against him were compelled and, because under WIS. STAT. § 980.05(1m) he was entitled at his trial to "[a]ll constitutional rights available to a defendant in a criminal proceeding,"⁷ the admission of his statements violated his Fifth Amendment privilege against self-incrimination. We concluded that these statements were incriminating and we remanded to the circuit court to determine if the statements were compelled, and, if so, whether their admission was harmless. State v. Mark, 2005 WI App 62, ¶ 2, 280 Wis.2d 436, 701 N.W.2d 598.

¶ 10 The supreme court affirmed our decision and remanded for further proceedings in the circuit court. Mark, 292 Wis.2d 1, ¶ 2, 718 N.W.2d 90. The supreme court held that WIS. STAT. § 980.05(1m) grants a WIS. STAT. ch. 980 respondent the same rights at the commitment trial as a defendant in a criminal case and, therefore, a respondent's statement is properly excluded under the Fifth Amendment privilege against self-incrimination if it is testimonial, compelled, and incriminating. Id. Both parties conceded Mark's written statement and oral statement about the hotel incident were testimonial. Id., ¶ 28 n. 10, 718 N.W.2d 90. The supreme court agreed with this court that both statements were incriminating because they could subject Mark to future criminal prosecution, at a minimum disorderly conduct. Id., ¶ 33, 718 N.W.2d 90. The supreme court remanded to the circuit court for a determination whether the statements were compelled. Id., ¶ 34, 718 N.W.2d 90. If the circuit court determined that either or both statements were compelled and thus should have been excluded under the Fifth Amendment, the court was to engage in a harmless error analysis.⁸ Id.

¶ 11 On remand the circuit court held an evidentiary hearing at which the only witness was Mark's parole agent at the time the statements were made. The court found that the agent had no independent recollection of meeting with Mark on the date on which either statement was made. The court found it was the parole officer's practice to explain the warning on the top of the written statement and that the box next to the warning was marked to show compliance with this requirement; if the person was unwilling to make a statement, she would remind the person of the obligation to make a statement and the possible penalty of revocation for failing to do so. The court further found that Mark was in custody under the agent's authority in the Jefferson County Jail at the time both statements were made to the agent. Based on these findings, the court determined that, although the written statement was compelled, it was nonetheless admissible because it was rendered non-incriminating by the grant of immunity on the preprinted form. The oral statement was also compelled, the court concluded, but there was no grant of immunity and therefore it was incriminating and should have been excluded. However the court decided that its admission was harmless error.

DISCUSSION

¶ 12 On appeal, Mark contends the circuit court erred in concluding that the written statement was admissible because of the grant of immunity and, thus, admission of both statements violated his Fifth Amendment privilege against self-incrimination. Mark asserts that, because he is entitled under WIS. STAT. § 980.05(1m) to the same rights at trial that a criminal defendant has, any use or derivative use of his compelled statements was error under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), and the error was not harmless.⁹

¶ 13 The State agrees with Mark that the circuit court erred in concluding that the written statement was admissible, but, it contends, the court erred in determining that the oral statement was compelled. In the State's view only the written statement itself should have been excluded; it does not agree with Mark that he is entitled to the protection of Kastigar and Portash — that is, that no derivative use may be made of the compelled written statement. According to the State, admission of the written statement was harmless error.¹⁰

¶ 14 We discuss the issues in this order: (1) Was the written statement erroneously admitted? (2) Was the oral statement erroneously admitted? (3) Do Kastigar and...