State v. Mark

• Decision Date: 03 March 2005
• Docket Number: No. 03-2068.,03-2068.
• Citation: 280 Wis.2d 436,701 N.W.2d 598,2005 WI App 62
• Parties: In re the Commitment of Charles W. Mark: STATE of Wisconsin, Petitioner-Respondent, v. Charles W. MARK, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

280 Wis.2d 436

2005 WI App 62

701 N.W.2d 598

In re the Commitment of Charles W. Mark:

STATE of Wisconsin, Petitioner-Respondent, v. Charles W. MARK, Respondent-Appellant.¹

No. 03-2068.

Court of Appeals of Wisconsin.

Oral argument November 29, 2004.

Decided March 3, 2005.

On behalf of the respondent-appellant, the cause was orally argued by and submitted on the briefs of Glenn L. Cushing, assistant state public defender, of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and brief and oral argument by Sally L. Wellman, assistant attorney general.

Before Vergeront, Lundsten and Higginbotham, JJ.

¶ 1. VERGERONT, J.

Charles W. Mark appeals a judgment following a jury trial finding him to be a sexually violent person under WIS. STAT. ch. 980² and ordering his commitment. Mark contends the judgment and order should be reversed and the matter remanded for a new trial on two grounds. ¶ 2. First, Mark asserts that statements to his parole agent that were used against him at trial were compelled and therefore violated the constitutional rights accorded him under WIS. STAT. § 980.05(1m),³ specifically, the Fifth Amendment right criminal defendants have not to be compelled to testify against themselves and a due process right not to have his involuntary statements admitted. We conclude that certain of the statements—those relating to the woman living next door in his hotel—are incriminating under the definition we employed in State v. Zanelli (Zanelli II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). We therefore remand to the circuit court for a determination whether these statements were compelled, and, if so, whether their admission was harmless error. As for the remaining statements, we conclude they are not incriminating under Zanelli II and therefore the Fifth Amendment, as existing precedent has applied it under § 980.05(1m), does not bar their admission in a trial under ch. 980. We also conclude that Mark's argument on the due process clause of the Fourteenth Amendment does not provide a basis for excluding statements that are admissible under our Fifth Amendment analysis.

¶ 3. Second, Mark argues that the circuit court erroneously exercised its discretion in excluding evidence concerning the rules of his probation. We conclude, as a matter of law, that this evidence is not relevant to the issue whether Mark was a sexually violent person as defined in WIS. STAT. § 980.01(7). The court therefore did not err in excluding this evidence. ¶ 4. Accordingly, we affirm in part and remand to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

¶ 5. Mark was convicted in 1994 on three charges of sexual assault of a child contrary to WIS. STAT. § 948.02(1). He was sentenced to eight years in prison on one charge and sentence was withheld on the other two, with fifteen years of probation ordered on each of these two, consecutive to the prison term and concurrent to each other. Mark was released on parole in May 1999, but his parole was revoked in June 2000, and he was returned to prison to complete his sentence. Shortly before his release date, the State initiated this petition alleging that Mark was a sexually violent person under WIS. STAT. § 980.01(07).

¶ 6. At the trial the State introduced statements made by Mark to his parole agent while he was on parole. Two were written on a form and signed by Mark. At the top of each is the following paragraph preceded by a box with an "X" in it and followed by Mark's initials:

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.

The first of these written statements, dated September 8, 1999, described the contact Mark had with a woman at his church, which, he acknowledged he had not told the truth about because he knew his agent would disapprove. He stated that he had talked to this woman on her porch and seen her fold her underclothes and breast feed her baby, and he imagined her naked. This was a violation of the rule of Mark's supervision on parole that he not enter into a relationship with a woman without prior approval. Mark's parole was not revoked as a result of this incident, but he was given a warning and the rules of his supervision were modified.

¶ 7. The second written statement begins "I screwed up big" and describes an incident at his residential hotel in which he walked into the room of the woman next door, after getting no response to his knock. He then knocked on her bathroom door, which was closed, and heard her say "I'll be out in a minute." When he heard bowel movements, he started pushing on the door to get in because he wanted to see her naked. She pushed from the inside to keep the door closed and yelled "get out of here" about three times. He pushed on the door for five to ten minutes but did not succeed in getting in and he left. Mark stated that he reported this incident to his agent because the woman threatened to call the police.

¶ 8. The State also introduced records of the parole agent relating oral statements made to him by Mark. One was a log kept by the agent noting that about two weeks after Mark signed the written statement on the bathroom incident, he admitted that his motivation was to have sex with the woman. Mark's parole was revoked after this incident, but he was not charged with any crime based on it.

¶ 9. In a second oral statement, contained in a Violation Investigation Report dated February 18, 2000, the officer wrote that Mark had denied and then admitted certain sexual activity with his stepson, one of the victims of the crimes for which Mark had been convicted.⁴

¶ 10. Mark's current probation agent testified at the trial and read Mark's statements. The two psychologists called by the State testified that they considered the statements, particularly the bathroom incident, in reaching their conclusions that Mark was a pedophile and there was a substantial probability he would reoffend.⁵ In his closing argument, the prosecutor referred to Mark's statements and pointed out the critical role the bathroom incident played in the State's experts' opinions.

¶ 11. At the time of the trial, Mark was beginning to serve the concurrent fifteen-year terms of probation. Mark wanted to introduce the fact of his probation as well as the rules of his supervision at trial. In response to the State's motion in limine, the court ruled that the evidence was not relevant, although it did allow Mark to establish that he would be on probation for fifteen years.

DISCUSSION

I. Admissibility of Mark's Statements

¶ 12. Mark contends on appeal that the admission of his statements violates the rights accorded him under WIS. STAT. § 980.05(1m), which provides:

(1m) At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.

According to Mark, the statements were incriminating and compelled and, thus, both the Fifth Amendment and the due process clause of the Fourteenth Amendment would have prohibited the State from introducing statements against Mark in a criminal proceeding.

A. Waiver

[1, 2]

¶ 13. The State first responds that Mark has waived the right to raise this issue on appeal because his counsel did not object to the admission of these statements before or at trial.⁶ Although we do not generally decide issues that are raised for the first time on appeal, we have the authority to do so. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (superseded on other grounds by WIS. STAT. § 895.52). We choose to address Mark's challenge to the admission of his statements because it raises issues significant to ch. 980 proceedings and the parties have fully briefed and argued the issues on appeal.

B. Fifth Amendment

¶ 14. By virtue of WIS. STAT. § 980.05(1m), Mark contends, he has the same right under the Fifth Amendment that a criminal defendant has not to be compelled to testify against himself.⁷ The Fifth Amendment case law he relies on establishes the principle that if probationers are required to choose between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent, the statements are compelled. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); State v. Evans, 77 Wis. 2d 225, 232-35, 252 N.W.2d 664 (1977). Such statements are inadmissible for any evidentiary use in criminal proceedings. State v. Thompson, 142 Wis. 2d 821, 833-34, 419 N.W.2d 564 (Ct. App. 1987). Mark relies on the definition of incriminating in Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980): "any response — whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial."

¶ 15. The State responds that, because ch. 980 is a civil not a criminal proceeding and the Fifth Amendment by its terms applies only to criminal proceedings, neither WIS. STAT. § 980.05(1m) nor the Fifth Amendment requires suppression of Mark's statements in this ch. 980 trial. What he is entitled to, the State asserts, is not to have the statements used against him in a criminal trial, and that has not happened.

¶ 16. The parties' arguments depend in large part on their views of three cases that have considered whether various aspects of Fifth Amendment law apply in a ch. 980 trial by virtue of WIS. STAT. § 980.05(1m): State v. Zanelli (Zanelli I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997); Zanelli II, 223 Wis. 2d 545; and State v. Lombard (Lombard I),...