In re Commitment of Smalley

• Decision Date: 19 September 2007
• Docket Number: No. 2006AP1475.,2006AP1475.
• Citation: 741 N.W.2d 286,2007 WI App 219
• Parties: In re the COMMITMENT OF Barry L. SMALLEY. State of Wisconsin, Petitioner-Respondent, v. Barry L. Smalley, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

741 N.W.2d 286

2007 WI App 219

In re the COMMITMENT OF Barry L. SMALLEY.

State of Wisconsin, Petitioner-Respondent, v. Barry L. Smalley, Respondent-Appellant.^†

No. 2006AP1475.

Court of Appeals of Wisconsin.

Submitted on Briefs August 14, 2007.

Opinion Filed September 19, 2007.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Warren D. Weinstein, assistant attorney general.

Before BROWN, C.J., ANDERSON, P.J., NETTESHEIM, J.

¶ 1 BROWN, C.J

This is an appeal from a WIS. STAT. ch. 980 (2005-06)¹ commitment. Barry L. Smalley claims that certain trial testimony obscured the central issue of his dangerousness due to mental disorder. Smalley's counsel did not object to the testimony he now complains of, but Smalley nevertheless asks us to reverse and order a new trial in the interest of justice.

¶ 2 Smalley first argues that one of the experts misstated the required risk of reoffense for commitment. We agree that the standard was misstated, but we decline to reverse on this ground because we conclude that the expert's isolated misstep did not prevent the real controversy from being tried. Smalley also claims that testimony about actuarial instruments was irrelevant because the instruments predict dangerousness without regard to a particular person's mental disorder. We reject Smalley's argument on this point because a showing of dangerousness, though itself insufficient for commitment, is clearly relevant to a showing of dangerousness due to mental disorder. We therefore affirm the trial court.

¶ 3 A WIS. STAT. ch. 980 commitment requires the petitioner to prove beyond a reasonable doubt that the person sought to be committed is a sexually violent person. WIS. STAT. § 980.05(3) and (5). "Sexually violent person" is defined as one who has been convicted of a sexually violent offense and "is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence."² WIS. STAT. § 980.01(7). "Likely" in this context means "more likely than not." Sec. 980.01(1m).

¶ 4 The State petitioned to commit Smalley in March 2005, when he was approaching his date of release from prison, and in March 2006, a jury trial was held. At the trial, the State called as a witness Dr. Anthony Jurek, a DOC psychologist. Dr. Jurek ultimately testified as to his opinion that Smalley was more likely than not to commit a future act of sexual violence. Before he gave this opinion, the following exchange occurred on direct examination:

Q. When you say more likely than not, does that mean it has to be over 50 percent?

A. Well, no. It means that it has to be more likely than not. You know, not, in my mind, means zero. So it has to be a rate of ... potential for reoffense that is significantly more than the rate that they won't reoffend. Fifty percent is not a number that I would use as any kind of a standard.

Q. Is there ... even any sort of realistic kind of measure? I mean, can you say 50 percent?

A. The problem with picking any specific number is it implies that we are able to say with a very high degree of accuracy this person is a 50 percent but this person's at 49 percent. I don't know that the science available to us is that good yet. I know that it can give me a ballpark figure. It can give me a number of different rates at which I could expect reoffense under different circumstances.

But there are always individual issues that need to be taken into consideration. So to say that you can pick a number I don't think accurately represents the state of the science we have right now.

¶ 5 Later, on cross-examination, Smalley's attorney revisited Dr. Jurek's understanding of "more likely than not":

Q. You testified that it's more likely than not, when you were asked on direct examination, it means any risk greater than zero. Did I hear that right?

A. Yes.

¶ 6 Smalley first posits (and the State implicitly agrees) that the 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. Smalley argues that Dr. Jurek's testimony presented the jury with an alternative, incorrect standard, and that the jury may well have used that standard to find Smalley a sexually violent person. That is, the jury may have decided that Smalley was "more likely than not" to commit a sexually violent offense because there was a chance greater than zero, i.e., any chance at all, that he would do so.

¶ 7 Smalley's trial counsel did not object to Dr. Jurek's testimony, and so Smalley asks this court to exercise its discretionary reversal power and order a new trial in the interest of justice. See WIS. STAT. § 752.35. We may order a new trial regardless of the lack of timely objection where we conclude that the real controversy has not been tried or that it is probable that justice has miscarried. Id. Smalley submits that the real issue in the case has not been fully tried.³ There are two distinct situations in which appellate courts may reverse on this ground: when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried. State v. Hicks, 202 Wis.2d 150, 160, 549 N.W.2d 435 (1996). Smalley argues that this case presents the latter situation, because the jury, presented with Dr. Jurek's incorrect definition of "more likely than not," may have adopted it.⁴ Thus, Smalley argues, the jury may have concluded that he was a sexually violent person without making the requisite finding that there was a better than 50% chance that he would commit another sexually violent offense.

¶ 8 The trial court determined, in response to Smalley's postconviction motion, that Dr. Jurek did not, in fact, testify that "more likely than not" means "any risk greater than zero." We cannot agree with this conclusion; the testimony as a whole is at least ambiguous. At some points, Dr. Jurek seems to be saying only that a precise, accurate prediction about the likelihood of reoffense is not possible. On the other hand, the statement that "not, in my mind, means zero" and the "yes" answer to the point-blank cross-examination question provide strong support for Smalley's interpretation of what Dr. Jurek said.

¶ 9 But even if Dr. Jurek did say that he believed "more likely than not" means "any chance greater than zero" we will only reverse on this basis if Dr. Jurek's statement "so clouded a crucial issue" that the real controversy was not tried. For two basic reasons, we are unconvinced this is the case.

¶ 10 First, Dr. Jurek's statement was an isolated occurrence in a three-day trial. During the course of that trial, the issue of whether Smalley was "more likely than not" to reoffend was a main point of contention, and there was a great deal of testimony on it. For example, another of the state's witnesses, also a psychologist, testified that "more likely than not" means more than 50% chance of reoffense. Smalley's counsel focused on the 50% standard in his attack on the basis for this psychologist's conclusion that Smalley was more likely than not to reoffend. In both opening statement and closing argument, Smalley's counsel referred to a 50% likelihood of reoffense, and at no time did the State's attorney argue that the standard was otherwise. So the jury heard the correct standard several times over the course of the trial, and it never heard the incorrect standard from anyone besides Dr. Jurek.

¶ 11 Smalley argues, however, that his attorney's statement of the proper standard could not correct Dr. Jurek's erroneous statement because the jury was instructed that the attorneys' arguments are not evidence. Further, Smalley argues, the jury of laypersons may have been predisposed to accept Dr. Jurek's opinion on the issue because he is an expert on psychology and on WIS. STAT. ch. 980 proceedings. This brings us to the second reason that we conclude Dr. Jurek's testimony did not cloud the true controversy such that we should order a new trial: it is patently obvious, to the expert and non-expert alike, what "more likely than not" means.

¶ 12 "More likely than not" is not an obscure or specialized term of art, but a commonly-used expression. It is hard to think of a clearer definition of the term than the term itself; though perhaps its expansion to "more likely to happen than not to happen" is more explicit. We find it difficult to imagine that any juror was without an understanding of the phrase's meaning before, during or after the trial, or that any juror thought that the phrase meant something other than "more likely to happen than not to happen." Given that Dr. Jurek is a psychologist with much experience related to WIS. STAT. ch. 980, a juror might have been willing to take his word on psychological testing, mental disorders, and the like. This does not mean, however, that the same juror would believe Dr. Jurek if he said that the phrase "more likely than not" means "any chance greater than zero" or "at all possible." Everyone would readily agree that a person who buys a state lottery ticket has a chance greater than zero of winning the jackpot — that is, that winning the lottery, however unlikely, is possible. But no reasonable person would say that it is "more likely than not." We simply cannot believe that Dr. Jurek's ambiguous and...