In re Commitment of Mark

• Decision Date: 29 June 2006
• Docket Number: No. 2003AP2068.,2003AP2068.
• Parties: In re the COMMITMENT OF Charles W. MARK. State of Wisconsin, Petitioner-Respondent, v. Charles W. Mark, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 90

718 N.W.2d 90

2006 WI 78

In re the COMMITMENT OF Charles W. MARK.

State of Wisconsin, Petitioner-Respondent, v. Charles W. Mark, Respondent-Appellant-Petitioner.

No. 2003AP2068.

Supreme Court of Wisconsin.

Argued January 10, 2006.

Decided June 29, 2006.

COPYRIGHT MATERIAL OMITTED

For the respondent-appellant-petitioner there were briefs and oral argument by Glenn L. Cushing, assistant state public defender.

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

Charles W. Mark (Mark) seeks review of a court of appeals' opinion¹ affirming in part and reversing in part a circuit court decision to admit four statements Mark had made to his parole officer at his Wis. Stat. ch. 980 (2003-04)² commitment hearing. Mark challenges the court of appeals' holding that only two of the four challenged statements should have been excluded pursuant to the Fifth and Fourteenth Amendments of the United States Constitution,³ because he claims that all four statements were both compelled and incriminating, as well as being testimonial. See State v. Zanelli (Zanelli II), 223 Wis.2d 545, 589 N.W.2d 687 (Ct.App.1998). In addition, Mark challenges the court of appeals' determination that the circuit court properly excluded evidence concerning the conditions of his probation as not relevant to a determination of whether Mark is a sexually violent person pursuant to Wis. Stat. § 980.01(7).

¶2 We affirm the decision of the court of appeals and remand this case for further proceedings. In doing so, we conclude that Wis. Stat. § 980.05(1m) grants a ch. 980 respondent the same rights at his or her ch. 980 commitment trial as a defendant is entitled to in a criminal case. We hold that in order for a statement to be properly excluded under the Fifth Amendment privilege against self-incrimination, as applied to the states through the Fourteenth Amendment's due process clause, it must be testimonial, compelled, and incriminating. We further determine that while an individual has a prepetition or prearrest right against self-incrimination, that right is ordinarily not self-executing and must be invoked. Therefore, we withdraw any language to the contrary in State v. Zanelli (Zanelli I), 212 Wis.2d 358, 569 N.W.2d 301 (Ct.App.1997). Finally, we conclude that the conditions of Mark's probation are irrelevant to the determination of whether or not he is a sexually violent person pursuant to Wis. Stat. § 980.01(7) and were therefore properly excluded by the circuit court.

I

¶3 The relevant facts are not in dispute. Mark was convicted in 1994 of three counts of sexually assaulting a child, and sentenced to eight years of confinement, followed by two 15-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 and he was sent back to prison to serve the rest of his confinement. On June 28, 2002, just before his scheduled release, the State of Wisconsin (State) filed a petition alleging that Mark was a sexually violent person under Wis. Stat. § 980.01(7).

¶4 At trial, the State offered into evidence four statements made by Mark to his parole officer. The first two were handwritten, signed admissions by Mark that he had violated the terms of his parole. Each was written on a form, at the top of which provided:

PROBATIONER/PAROLEE/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.

¶5 In his first statement, dated September 8, 1999, Mark described his contact with a woman he met at church. According to the report, Mark talked with this woman on her porch, and watched her fold her underclothes and breastfeed her baby. In the statement, Mark also admitted to telephoning the woman twice. This conduct violated the rules of Mark's supervision, which prohibited him from having a relationship with a woman without permission.

¶6 In Mark's second written report, dated April 28, 2000, Mark described an incident involving a woman living next door to him in his hotel. The report began "I screwed up big," and described entering his neighbor's room without permission, and upon finding her in the bathroom, trying to forcibly gain entrance to that room for about five or ten minutes, while she yelled "get out of here" about three times. Mark's statement claimed that he only wanted to see his neighbor naked, and that he reported the incident because the woman threatened to call the police. Mark verbally reported the incident to his parole officer on April 25, 2000, after which an apprehension request was issued. Mark voluntarily turned himself into police that same day. Although his parole had not yet been revoked formally, Mark was in police custody at the time he made his written statement regarding the hotel incident. Mark's parole was subsequently revoked as a result of this incident.

¶7 In addition to his two written statements, two oral statements Mark made to his parole officer were also entered into evidence at his ch. 980 commitment trial. In the first, made approximately two weeks after his written description of the hotel incident with his neighbor in her bathroom, Mark admitted that his real motivation had been to have sex with his neighbor. In the second, in a Violation Investigation Report dated February 18, 2000, Mark's parole officer noted that Mark had orally admitted to prior sexual activity with his stepson—conduct for which Mark had already been charged and convicted in 1994.

¶8 At Mark's ch. 980 hearing, the circuit court allowed into evidence the four statements Mark made to his parole officer.

¶9 At the time of his commitment hearing, Mark had begun to serve his concurrent 15-year terms of probation. At trial, Mark sought to introduce evidence regarding the conditions of his probation, including the rules of supervision to which he would be subjected. The circuit court denied Mark's request and, instead, granted the State's motion in limine asking the court to prohibit "any evidence, direct or indirect, concerning any probation or parole supervision, conditions of confinement, or other restrictions, which could be imposed on the respondent in the future, on the grounds that such evidence is irrelevant and inadmissible under Wis. Stat. § 904.02." At trial, Mark was allowed to establish that he was on probation and would be for 15 years, but was not permitted to produce evidence as to the conditions of his probation supervision. A jury found Mark to be a sexually violent person under Wis. Stat. § 980.01(7).

¶10 On appeal, Mark challenged the admission of the four statements, and the exclusion of the conditions of his probation supervision. The court of appeals determined that the statements concerning the woman on her porch and the sexual activity with his stepson were properly admitted into evidence at Mark's ch. 980 commitment trial, as they were not incriminating under the definition employed in Zanelli II, and therefore did not properly fall within the Fifth Amendment privilege. The court of appeals further concluded that the written and oral statements regarding the incident in the hotel room were incriminating under the Zanelli II definition, and remanded the case to the circuit court for a determination of whether the statements were also compelled, and should therefore be properly excluded under the Fifth Amendment, and also for a harmless error analysis if there was compulsion. The court of appeals also held that the circuit court properly excluded evidence of the conditions of Mark's probation as not relevant to the determination of whether or not Mark was a sexually violent person under Wis. Stat. § 980.01(7). Mark petitioned this court for review.

II

¶ 11 The State argued at the court of appeals that Mark waived the right to raise the issue of the admissibility of his statements, since he did not object at the circuit court to the admission of such statements. See State v. Mark, 2005 WI App 62, ¶ 13, 280 Wis.2d 436, 701 N.W.2d 598. Although we generally decline to address issues raised for the first time on appeal, we have the authority to do so. See State v. Moran, 2005 WI 115, ¶ 31, 284 Wis.2d 24, 700 N.W.2d 884. Because both the State and the defendant have asked us to clarify the issues raised on appeal, we will address them here.

A

¶ 12 Whether Mark's statements to his parole officer should have been excluded from his ch. 980 commitment trial, pursuant to Mark's Fifth Amendment and Fourteenth Amendment rights against self-incrimination, involves the meaning of Wis. Stat. § 980.05(1m). Statutory interpretation is a question of law which this court reviews de novo, although benefiting from the analysis of the circuit court and the court of appeals. State v. Lombard (Lombard I), 2004 WI 95, ¶ 17, 273 Wis.2d 538, 684 N.W.2d 103. We also review, de novo, the application of constitutional principles to established facts. See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827 (1987).

¶ 13 Mark reasons that Wis. Stat. § 980.05(1m) grants individuals who are the subject of a ch. 980 petition the same rights as those available to a defendant in a criminal case. Therefore, it is Mark's position that, just as criminal defendants are protected by the Fifth Amendment privilege against compelled self-incrimination, the statements Mark made to his parole officer are prohibited from being introduced at his ch. 980 trial. Mark urges this court to adopt a rule that a compelled statement may never be used against a defendant at a ch. 980 commitment trial.⁴

¶14 It is the State's position that the court of appeals...