IN RE COMMITMENT OF KAMINSKI

• Decision Date: 17 November 2009
• Docket Number: No. 2008AP2439.,2008AP2439.
• Citation: 777 N.W.2d 654,2009 WI App 175
• Parties: In re the COMMITMENT OF Carl KAMINSKI. State of Wisconsin, Petitioner-Respondent, v. Carl Kaminski, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

777 N.W.2d 654

2009 WI App 175

In re the COMMITMENT OF Carl KAMINSKI State of Wisconsin, Petitioner-Respondent, v. Carl Kaminski, Respondent-Appellant.

No. 2008AP2439.

Court of Appeals of Wisconsin.

Submitted on Briefs April 14, 2009.

Opinion Filed November 17, 2009.

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

On behalf of the petitioner-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., PETERSON and BRUNNER, JJ.

¶ 1 BRUNNER, J

Carl Kaminski appeals from a judgment and an order of commitment under WIS. STAT. ch. 980 and an order denying his motion for a new trial.¹ Following a jury trial, Kaminski was found a "sexually violent person" subject to involuntary commitment.² He filed a postverdict motion for a new trial in the interest of justice on the ground that the jury heard improper expert testimony that prevented the real controversy from being fully tried. The circuit court denied the motion. We affirm.

BACKGROUND

¶ 2 On May 21, 2007, the State filed a petition alleging that Carl Kaminski was a sexually violent person subject to commitment under Wis. STAT. ch. 980. A jury found Kaminski sexually violent as alleged in the petition, and a judgment was entered involuntarily committing him to the Department of Health and Family Services for control, care and treatment.

¶ 3 At the commitment trial, the jury heard testimony from two psychologists called by the State. Dr. Janet Hill from the Department of Corrections diagnosed Kaminski with an antisocial personality disorder that predisposed Kaminski to engage in sexual offenses. Hill noted that Kaminski scored high in psychopathy, but acknowledged he was not sexually deviant. Hill concluded Kaminski's mental disorder made it more likely than not that he would engage in acts of sexual violence in the future. Dr. Richard Elwood from DHFS agreed with Hill's assessment in all material respects.

¶ 4 In formulating their opinions, the State's experts used three actuarial instruments, each sensitive to different types of sex offenses, to assess the risk Kaminski presented. Hill explained that each instrument yields a score based on the input information, and that score is compared to the recidivism rates of other individuals with the same score. Although Hill and Elwood obtained slightly different scores on two of the actuarials, the instruments generally considered the same information about Kaminski's past offense history. The psychologists considered all relevant conduct, including offenses for which the defendant was acquitted or the charges dismissed. Hill made clear the actuarial scales did not involve the use of independent professional judgment, as the rules governing their application were strict. According to Hill, "these are the rules that you have to use, otherwise you don't use the instrument."

¶ 5 Hill and Elwood relied upon four incidents of sexual assault when scoring the actuarial assessments. The first incident was drawn from a 1995 presentence report indicating that, in 1984, Kaminski was taken to jail for the alleged sexual assault of a female resident at the juvenile group home in which he was living. Although no charging document accompanied the report, the psychologists considered it valuable because Kaminski was detained and transferred to a more secure environment as a result of the incident. The experts also used a 1996 conviction for second-degree sexual assault of a child. A third incident stemmed from allegations that in 1998 Kaminski sexually assaulted K.B., a twenty-seven-year-old female. An administrative law judge at Kaminski's probation revocation hearing determined K.B.'s allegation was not credible, and sexual assault charges against Kaminski were subsequently dismissed. Finally, the psychologists relied upon a 2003 charge alleging Kaminski had sexual intercourse with J.S., a fifteen-year-old girl. An administrative law judge found the allegation was proven by a preponderance of the evidence, although Kaminski was ultimately acquitted at trial.

¶ 6 Dr. Luis Rosell provided expert testimony on behalf of Kaminski. Rosell agreed with the State's experts that Kaminski suffered from antisocial personality disorder, but disagreed that Kaminski was predisposed to engage in acts of sexual violence. According to Rosell, the State's experts improperly scored the actuarial instruments, although he agreed prior arrests or charges should be counted according to the actuarials' scoring rules. Rosell also testified he did not use those instruments because they inflated the rate of recidivism. Instead, Rosell relied upon a list of thirty dynamic factors in reaching his conclusion that Kaminski was unlikely to reoffend in a sexually violent way.

¶ 7 Following the jury verdict, Kaminski filed a postjudgment motion for a new trial in the interest of justice, arguing the evidence of the 1984 and 1998 incidents was unreliable and should have been excluded. The State disagreed, claiming the evidence was properly admitted, and noting Kaminski vigorously attacked the State experts' reliance on the 1984 and 1998 incidents during cross-examination and in his closing argument. The court denied Kaminski's motion. Kaminski appeals.

DISCUSSION

¶ 8 Kaminski requests that we exercise our authority under Wis. STAT. § 752.35³ and order a new trial in the interest of justice based on three testimonial events that he argues "so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried." State v. Wyss, 124 Wis.2d 681, 735, 370 N.W.2d 745 (1985), overruled on other grounds by State v. Poellinger, 153 Wis.2d 493, 505, 451 N.W.2d 752 (1990). First, Kaminski argues evidence of the 1984 and 1998 incidents does not satisfy the preliminary relevancy requirement established in State v. Gray, 225 Wis.2d 39, 590 N.W.2d 918 (1999), and should have been excluded. Second, Kaminski claims Hill inappropriately testified that sexually violent persons committed under WIS. STAT. ch. 980 are reevaluated annually. Finally, he argues Hill introduced an extraneous consideration to the jury—whether commitment was in Kaminski's best interests and that of society—when she testified that Sand Ridge is the only treatment facility in Wisconsin for psychopaths. We consider each claimed error separately, reviewing discretionary acts of the trial court, such as the admission of evidence, according to the erroneous exercise of discretion standard. State v. LaCount, 2008 WI 59, ¶ 15, 310 Wis.2d 85, 750 N.W.2d 780.

1. Other Acts Evidence in a WIS. STAT. ch. 980 Commitment Hearing

¶ 9 Kaminski analogizes a WIS. STAT. ch. 980 commitment hearing to a criminal trial in arguing that the trial court erroneously admitted evidence of past misconduct during his hearing. In an ordinary criminal trial, the admissibility of other acts evidence is strictly circumscribed by a three-step analytical framework grounded in the rules of evidence. This tripartite analysis, adopted in State v. Sullivan, 216 Wis.2d 768, 771-73, 576 N.W.2d 30 (1998), operates as an exception to WIS. STAT. § 904.04(2)(a)'s general prohibition of the use of other acts evidence. Under Sullivan, other acts evidence is admissible only if the proponent can provide satisfactory answers to the following three questions:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?

(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.

(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03.

Sullivan, 216 Wis.2d at 771-73, 576 N.W.2d 30 (footnote omitted).

¶ 10 As noted in Sullivan, Wis. Stat. § 904.04 regulates the threshold admissibility inquiry for other acts evidence. Sullivan requires that a court ascertain the proponent's substantive rationale for submitting other acts evidence before considering whether that evidence is relevant under WIS. STAT. § 904.01. However, subsection 904.04(2) also contains a relevance component independent of that found in section 904.01. "Under § 904.04(2) ... other act evidence is relevant if a reasonable jury could find by a preponderance of the evidence that the defendant committed the other act." State v. Landrum, 191 Wis.2d 107, 119-20, 528 N.W.2d 36 (Ct. App.1995); see also Gray, 225 Wis.2d at 59, 590 N.W.2d 918; State v. Schindler, 146 Wis.2d 47, 52-54, 429 N.W.2d 110 (Ct. App.1988). In Gray, our supreme court noted the symmetry between § 904.04(2)'s preliminary relevancy requirement and WIS. STAT. § 901.04(2), which acknowledges that for some evidence the relevance necessary for admissibility will be conditioned upon the proponent's demonstration of a foundational fact. Gray, 225 Wis.2d at 59-61 and n. 6, 590 N.W.2d 918. For example, in Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the admissibility of other acts evidence indicating the defendant sold stolen televisions, used for the purpose of demonstrating intent, was...