In re Commitment of Lombard, 00-3318.

• Decision Date: 01 July 2004
• Docket Number: No. 00-3318.,00-3318.
• Citation: 273 Wis.2d 538,684 N.W.2d 103,2004 WI 95
• Parties: IN RE the Commitment of Joseph LOMBARD: STATE OF WISCONSIN, Petitioner-Respondent, v. Joseph A. LOMBARD, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

273 Wis.2d 538

2004 WI 95

684 N.W.2d 103

IN RE the Commitment of Joseph LOMBARD:

STATE OF WISCONSIN, Petitioner-Respondent, v. Joseph A. LOMBARD, Respondent-Appellant-Petitioner.

No. 00-3318.

Supreme Court of Wisconsin.

Oral argument March 12, 2004.

Decided July 1, 2004.

For the respondent-appellant-petitioner there were briefs by David R. Karpe, Madison, and oral argument by David R. Karpe.

For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. N. PATRICK CROOKS, J

Petitioner Joseph A. Lombard (Lombard) seeks review of a court of appeals' decision, State v. Lombard, 2003 WI App 163, 266 Wis. 2d 887, 669 N.W.2d 157, affirming a circuit court decision that rejected Lombard's contention that his Fifth Amendment¹ rights were violated. The circuit court rejected Lombard's motion for a new trial, stating that the pre-petition interview process was sufficiently explained to him prior to his interview with the State evaluator. Lombard appealed, and the court of appeals affirmed.

¶ 2. We conclude that Lombard was not entitled to Miranda v. Arizona, 384 U.S. 436 (1966) warnings prior to his pre-petition evaluation with the State's psychologist in regard to whether a ch. 980 petition should be filed. Wisconsin Stat. § 980.05(1m) (1999-2000)² plainly contains the language "at the trial." The plain language of the statute leads to the conclusion that the legislature intended that such constitutional rights would apply at Lombard's ch. 980 trial. Thus, Lombard did not have the right to Miranda warnings during his pre-petition interview with a State psychologist. Because Lombard was not entitled to the warnings,³ we conclude that counsel's performance was not deficient, and, therefore, Lombard's claim for ineffective assistance of counsel fails.

I

¶ 3. On March 4, 1981, Lombard was convicted of one count of first-degree sexual assault with concealed identity and five counts of second-degree sexual assault arising out of his assaults of eight women in the Cumberland, Wisconsin area between July 1978 and March 1980. Lombard was sentenced to a total of 40 years in prison for five sexual assaults and 20 years of probation for a sixth sexual assault. Lombard was imprisoned from 1980 until March 1992, at which time he was released on parole. However, Lombard's parole was revoked two and one-half years later, and he was returned to prison.

¶ 4. In late 1999, Lombard neared his mandatory release date. In order to determine whether a ch. 980 petition should be filed in Lombard's case, the State sent Anthony Jurek Ph.D., a psychologist from the Wisconsin Department of Corrections, to interview Lombard. Jurek interviewed Lombard from December 1-3, 1999, at Columbia Correctional Institution where Lombard was serving his sentence. On the first day of the interview, Jurek advised Lombard of the procedures involved in the ensuing evaluation and, after engaging in discourse with Lombard in order to ascertain his comprehension of the evaluation process, presented Lombard with a form entitled Chapter 980 Participation. The form stated as follows:

The purpose of this examination is to assess your appropriateness for commitment under Chapter 980 of the Wisconsin State Statutes concerning the commitment of sexually violent persons. You have the right not to participate in the examination or to answer any of the questions posed to you, but this refusal to answer will be used as part of the evaluation. Nothing during the evaluation will be confidential and it may be repeated in testimony or written reports. A report will be written concerning your potential commitment based on whatever relevant information may be obtained from your records, psychological testing and clinical interview, whether or not you choose to participate in the process.

By signing below, you hereby acknowledge that the above information has been fully explained to you.⁴

¶ 5. Lombard signed and dated the form on December 1, 1999.

¶ 6. During the interview with Jurek, Lombard discussed the sexual assaults that he had committed, including his thoughts on them at the time of the interview. Lombard also talked about the different treatment programs he had participated in while imprisoned.

¶ 7. Jurek ultimately concluded that Lombard was a sexually violent person who fit the diagnostic criteria for sexual sadism. Jurek also concluded that Lombard had a personality disorder with antisocial features. Based on his assessment of Lombard, Jurek recommended that ch. 980 proceedings be commenced in Lombard's case. The State began ch. 980 proceedings and, at the probable cause hearing before the circuit court, the court found that there was probable cause to believe that Lombard was suffering from a mental disorder. The court also found that there was a substantial likelihood that he would engage in acts of sexual violence in the future.

¶ 8. The issue of whether Lombard should be committed as a sexually violent person was tried before a jury beginning on October 16, 2000. At the trial, three expert witnesses testified for Lombard. Jurek was the sole expert witness for the State. Jurek was the only witness to diagnose Lombard as a sexual sadist and conclude that Lombard was substantially likely to reoffend. On October 20, 2000, the jury found Lombard to be a sexually violent person. As a result of the jury's finding, Lombard was committed to an institution.

¶ 9. Lombard filed a notice of motions and motions after verdict relating to the State's use of Lombard's statements during Jurek's interview. Lombard contended that his cross-examination of Jurek was improperly restricted. Lombard further asserted that he should have been allowed to cross-examine Jurek regarding the inconsistencies between the statements attributed to Lombard in Jurek's report and victim testimony regarding their interactions with Lombard during the assaults. Lombard also contended that he did not give informed consent to be interviewed by Jurek during the pre-petition evaluation. Lombard requested that the court set aside that jury's verdict and, in the interest of justice, order a new trial. After a hearing, the court denied these motions.

¶ 10. Lombard then appealed from the finding that he was a sexually violent person, from the order committing him, and from the denial of his post-verdict motions. At Lombard's request, the court of appeals remanded the matter to the circuit court for a determination of whether Lombard received ineffective assistance of counsel at trial. Lombard then filed a motion for a new trial, alleging that he had received ineffective assistance of counsel at trial, because his counsel had failed to object to the admission of Lombard's statements to Jurek, and because his counsel had stipulated that no police reports or transcripts of victim statements would be allowed in the jury room during deliberations. Lombard also requested an evidentiary hearing.

¶ 11. The Dane County Circuit Court, Judge Robert A. DeChambeau presiding, denied Lombard's request for an evidentiary hearing and his request for a new trial. The circuit court concluded that Lombard's Fifth Amendment rights were not violated because he was presented with, and signed, an advisement form prior to the interview. The court noted that the evaluation process was explained to Lombard, and Lombard was told that he had a right not to participate in the evaluation if he so chose. The court noted that Lombard was also informed that Jurek would consider a refusal to participate when reviewing the evaluation.

¶ 12. Lombard appealed the judgment declaring him to be a sexually violent person and committing him under ch. 980. Lombard also appealed two orders denying his post-judgment motions. Lombard asserted that his Fifth Amendment rights were violated because the State used, at trial, statements Lombard made to Jurek during the pre-petition psychological evaluation.⁵ ¶ 13. With respect to the issue involving Lombard's alleged Fifth Amendment violation, Court of Appeals Judges David G. Deininger, Charles P. Dykman, and Paul Lundsten concluded that Lombard was not entitled to a Miranda warning before being evaluated by a State psychologist, since any statements Lombard made about his past crimes could not subject him to future prosecution. The court of appeals relied on a portion of the State v. Zanelli (Zanelli II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998) opinion, which stated:

The fact that such statements can be used in a ch. 980 . . . case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding. Accordingly, the statements were admissible.

Lombard, 266 Wis. 2d 887, ¶ 26 (citation omitted).

¶ 14. The court of appeals noted that its holding in this case may appear to conflict with State v. Zanelli (Zanelli I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997) and Zanelli II. The court explained:

We acknowledge that our present conclusion and those in Zanelli I and II regarding a Wis. Stat. ch. 980 respondent's rights under the Fifth Amendment and Miranda may appear contradictory. It is clear that a "person who is the subject of [a ch. 980] petition" has a statutory right to "[r]emain silent," Wis. Stat. § 980.03(2)(b), but we have concluded that this right "plainly does not apply" to a pre-petition examination. Zanelli I, 212 Wis. 2d at 370. We have also concluded, however, that the State may not comment at a ch. 980 trial upon a respondent's "refus[al] to participate in [a] formal evaluation made prior to the filing of a [ch. 980] petition." Id. at 369.

Lombard, 266 Wis. 2d 887, ¶ 28.

¶ 15. The court of appeals ultimately concluded that, regardless of whether the respondent was warned that his statements could be used by the State at his ch. 980 trial, the...