State v. Cramer
| Decision Date | 30 September 1980 |
| Docket Number | No. 78-766-CR,78-766-CR |
| Citation | 98 Wis.2d 416,296 N.W.2d 921 |
| Court | Wisconsin Supreme Court |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Ronald J. CRAMER, Defendant-Appellant-Petitioner. |
Charles Bennett Vetzner, Asst. State Public Defender, Madison, argued, Thomas K. Zander, Asst. State Public Defender, Milwaukee, on brief, for defendant-appellant-petitioner.
Michael R. Klos, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.
On April 16, 1973, Ronald J. Cramer was convicted in Milwaukee County circuit court of indecent behavior with a child contrary to sec. 944.11(1), Stats. As an alternative to sentencing him to prison, the court ordered his commitment to the Department of Health and Social Services (department) under the provisions of ch. 975, Stats.
On June 6, 1978, pursuant to sec. 975.13, Stats., 1 the department ordered that its control over Cramer be extended because his discharge would be dangerous to the public. Such an extension, if confirmed by the circuit court, extends the right of the department to control the defendant for five years beyond the date of the court confirmation. Sec. 975.15(1), Stats. 2
The required hearing reviewing the order of the department was held, with a jury, on September 19, 1978. At that hearing, the state moved in limine to prohibit evidence as to the defendant's suggested terms and conditions of parole. This motion was granted. The defendant moved in limine to exclude testimony from psychologists and psychiatrists who had treated the defendant on the grounds that such evidence was privileged. This motion was denied.
At the conclusion of the hearing, the jury was instructed, over the objections of the defense, that the issue before them was whether "discharging the defendant at this time would be dangerous to the public" and the verdict was framed:
"Do you find from the evidence presented that discharging the defendant from the control of the department at this time would be dangerous to the public because of the defendant's mental or physical deficiency, disorder, or abnormality?"
The jury answered in the affirmative.
The jury was instructed that the definition of "dangerous" was "not limited to physical harm (to others), but also includes the potential that the defendant would commit psychological harm (to others)."
In accordance with the verdict, the court entered an order on November 22, 1978, confirming the department's order for an extension of commitment.
The defendant appealed the order of the circuit court to the court of appeals. On August 24, 1979, that court issued an opinion affirming the order of the circuit court.
While this appeal was pending before the court of appeals, the defendant turned to the circuit court for Dodge County asking for a conditional release. On July 19, 1979, the court in Dodge County ordered the conditional release of the defendant who was, consequently, released from Central State Hospital on July 20, 1979. These proceedings were unknown to the court of appeals and to the attorneys for the state involved in the appeal until after the defendant's release.
Subsequent to his conditional release the defendant was arrested in Milwaukee County and convicted of attempted second degree sexual assault in violation of secs. 940.225(2)(a) and 939.32, Stats. On January 12, 1980, the defendant was sentenced to the state prison at Waupun for a term not to exceed five years.
Four issues are presented on this appeal:
(1) Is this case moot due to the defendant's release obtained from the Dodge County court after the extension of control ordered by the Milwaukee County court?
(2) Was the trial court in error when it instructed the jury that the defendant's discharge from control was at issue rather than his release on parole?
(3) Did the trial court commit error by allowing the defendant's psychotherapists to testify despite an assertion of privilege?
(4) Did the trial court commit error in defining "dangerousness" to include the threat of psychological as well as physical harm to others?
While this case was pending before the court of appeals, the defendant obtained a conditional release from the circuit court for Dodge County. This release rendered this case moot, not only for purposes of the present review, but also in the appeal to the court of appeals.
This court's rulings on the issues in this case will have no practical effect on this appellant since he succeeded in gaining a release from another court in a proceeding which is not here on review. This court has previously announced that it will not ordinarily consider questions which have become moot due to a change in circumstances. State ex rel. Renner v. H&SS Dept., 71 Wis.2d 112, 116, 237 N.W.2d 699 (1976). However, there are exceptions to this rule. This court will consider questions which are otherwise moot in situations for example, where the question is one of great public importance, Ibid. at 116, 237 N.W.2d 699, or of public interest, Mueller v. Jensen, 63 Wis.2d 362, 217 N.W.2d 277 (1974); where the problem is likely to recur and is of sufficient importance to warrant a holding which will guide trial courts in similar circumstances, Oshkosh Student Asso. v. Board of Regents, 90 Wis.2d 79, 279 N.W.2d 740 (1979); where reversal would absolve appellants from payment of costs, Smith v. Whitewater, 251 Wis. 306, 29 N.W.2d 33 (1947); would alter the liability on a bond, Jefferson Gardens, Inc. v. Terzan, 216 Wis. 230, 257 N.W. 154 (1934); or where the parties by stipulation have preserved the right to proceed with a final determination. Katz v. Miller, 148 Wis. 63, 133 N.W. 1091 (1912).
The issues in this case are of public interest and a resolution of these issues will serve as a useful guide to trial courts in similar situations. This case also provides the court with a sufficient record on the issues so the court can rule.
The defendant claims the trial court was in error by submitting the issue of whether the defendant was dangerous to the public and therefore should not be discharged from the control of the department. The defendant alleges the issue that should have been submitted to the jury was whether the defendant would be dangerous to the public if released on parole.
On April 16, 1973, Ronald J. Cramer, the defendant-appellant (defendant) plead guilty to and was convicted of one count of indecent behavior with a child, a violation of sec. 944.11(1), (2). On June 6, 1973, the defendant was committed to the custody of the state Department of Health and Social Services (department) pursuant to sec. 975.06, Stats., by order of Milwaukee County Circuit Judge Hugh R. O'Connell.
On June 6, 1978, the secretary of the department ordered that the defendant remain subject to the department's control beyond his mandatory release date, i. e., the date by which he would have been paroled by operation of secs. 975.12, 3, 53.11 and 53.12, Stats. On the same date, the department applied to the Milwaukee County circuit court for a review of this order of extension, pursuant to sec. 975.12, Stats.
At the time the department petitioned the trial court for a review of its order extending control over the defendant, the defendant was approximately three months short of his mandatory release (MR) date. For a sex crime committee, the MR date is computed as being the maximum sentence for the offense for which the committee was convicted (in the defendant's case, 10 years) minus "good time" provided by the operation of secs. 975.12(2), 53.11 and 53.12, Stats., and minus credit for precommitment confinement, sec. 973.155, Stats. If it had not been for the action of the department in ordering an extension of control over the defendant and seeking a review thereof, the defendant would have been placed on MR parole on August 7, 1978.
Sec. 975.12(2), Stats., gave the department two choices as the defendant's MR date for parole was imminent and if the department was "of the opinion that release on parole pursuant to s. 53.11(7)(a) would be dangerous to the public." 4 The choices of the department in that event were:
"(1) (I)t shall either make an order directing that the person remain subject to its control or (2) make an order suspending the provisions of s. 53.11(7)(a) and in either case shall make application to the committing court for a review of that order proceeding as provided in this chapter." (Emphasis supplied.)
The department in this case chose to issue an order directing that the defendant remain subject to its control. This is the issue tried properly by the jury and the jury's verdict agreed with the department's determination that discharging the defendant from the control of the department was dangerous to the public based on the evidence received on the trial as to the defendant's mental or physical deficiency, disorder or abnormality.
Contrary to the defendant's interpretation of sec. 975.12(2), Stats., the jury was not trying whether the defendant would be dangerous to the public on parole release, but whether discharge of the defendant from control of the department would be dangerous to the public.
The correct issue was tried by the jury on the verdict form submitted which was appropriate under the statute.
Therefore, the defendant's proposed evidence as to his relative lack of dangerousness to the public on parole was irrelevant to the issue of discharge from control of the department. The trial court was correct in granting the state's motion in limine in respect to such offered testimony.
Given the option in sec. 975.12(2), Stats., as the defendant's MR date approached, the department chose to have the confirmation of its order regarding the discharge issue considered rather than set aside the sections involving parole. The legislature evidently realized the problems of a jury determining the...
To continue reading
Request your trial
-
State v. Post
...within the statutory exception to privilege as "proceedings for hospitalization." Wis.Stat. § 905.04(4)(a). See State v. Cramer, 98 Wis.2d 416, 425, 296 N.W.2d 921 (1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1377, 67 L.Ed.2d 354 (1981). We conclude that both initial commitment and dischar......
-
State Ex Rel. Ismael R. Ozanne v. Fitzgerald
...and also because it appears necessary to confirm that Goodland remains the law that all courts must follow. State v. Cramer, 98 Wis.2d 416, 420, 296 N.W.2d 921 (1980) (noting that we consider questions that have become moot “where the question is one of great public importance ... or of pub......
-
State v. Fitzgerald
...and also because it appears necessary to confirm that Goodlandremains the law that all courts must follow. State v. Cramer, 98 Wis. 2d 416, 420, 296 N.W.2d 921 (1980) (noting that we consider questions that have become moot "where the question is one of great public importance . . . or of p......
-
J. M. S. v. Benson
... ... The defendant moved to dismiss this claim on the grounds that it fails to state a claim upon which relief [98 Wis.2d 408] may be granted. In particular, Benson argued that under the common law in Wisconsin a father owes no duty ... ...