State v. Matzker, s. 94-3264
| Decision Date | 12 March 1997 |
| Docket Number | 95-3433,Nos. 94-3264,s. 94-3264 |
| Citation | 209 Wis.2d 599,568 N.W.2d 37 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Raymond L. MATZKER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEALS from a judgment and orders of the circuit court for Racine County: DENNIS J. BARRY, Judge. Affirmed.
Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.
Raymond L. Matzker has appealed from a judgment and commitment order finding him to be a sexually violent person pursuant to § 980.05, STATS., and committing him to a secure mental health facility (court of appeals case No. 94-3264). He has also appealed from an order denying his motion for a new trial based on ineffective assistance of trial counsel (court of appeals case No. 95-3433). These appeals were consolidated by this court on February 28, 1996. We affirm the judgment and the orders.
Matzker raises multiple issues in both appeals, which we will address seriatim. The first are in case No. 94-3264, and constitute various challenges to the constitutionality of ch. 980, STATS., also known as the sexual predator act. He alleges that the sexual predator act violates substantive due process, equal protection and double jeopardy protections, and that it constitutes an ex post facto law. All of these claims have been rejected by the Wisconsin Supreme Court. See State v. Post, 197 Wis.2d 279, 293-94, 541 N.W.2d 115, 118 (1995); State v. Carpenter, 197 Wis.2d 252, 258-59, 541 N.W.2d 105, 107 (1995). Based on the court's determination that the characteristics of ch. 980 are not sufficiently punitive as to render it punishment rather than a civil commitment, Matzker's claim that his commitment constitutes cruel and unusual punishment also fails. See Carpenter, 197 Wis.2d at 272, 541 N.W.2d at 113. We therefore will not address these arguments further.
Matzker also contends that ch. 980, STATS., is overbroad and void for vagueness. 1 He contends that the statutory definitions set forth in § 980.01, STATS., are vague and ambiguous, that the definitions and statutory standards have little or no foundation in medical science and psychology, and that the statute contains insufficient criteria to guide the trial court and the jury. However, the definitions and standards contained in ch. 980 have been found constitutionally sufficient by the Wisconsin Supreme Court in rejecting a claim that the sexual predator act violates substantive due process. The court specifically rejected a claim that the term "mental disorder" swept too broadly and did not adequately define who fell within its reach. See Post, 197 Wis.2d at 303-04, 541 N.W.2d at 122. It held that the statute as drafted was narrowly tailored to permit commitment only of those sexual offenders whose mental condition predisposed them to reoffend, see id. at 306-07, 541 N.W.2d at 123-24, and that the statutory definition and method for assessing future dangerousness was constitutionally sound, see id. at 311-13, 541 N.W.2d at 126. In addition, it rejected claims that the statute was unconstitutional because based on unsound theories regarding the viability of treatment. See id. at 310-11, 541 N.W.2d at 125-26. This reasoning compels rejection of Matzker's arguments concerning overbreadth and vagueness. 2
Pursuant to Post, 197 Wis.2d at 332-33, 541 N.W.2d at 134, we also reject Matzker's contention that introduction of psychiatric testimony and medical records in this case violated the physician-patient privilege afforded by § 905.04, STATS. Similarly, based on the reasoning of Post and Carpenter, we reject his claim that the trial court erroneously refused to conduct a Miranda-Goodchild hearing 3 on the admissibility of statements made by him to treating physicians and psychologists.
Neither Miranda nor the constitutional right to remain silent is applicable here because this is a civil proceeding whose objective is treatment rather than punishment. See Carpenter, 197 Wis.2d at 271, 541 N.W.2d at 112-13. Moreover, Miranda applies to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Matzker's objection is to the use of statements made by him to mental health professionals after his convictions and before the filing of this petition, related to mental health evaluations and placement decisions. Since they did not involve questioning by the police or agents of the police in connection with a criminal investigation or pending case, Miranda and Fifth Amendment protections are inapplicable. See State v. Pounds, 176 Wis.2d 315, 321, 500 N.W.2d 373, 376 (Ct.App.1993); State v. Knapp, 111 Wis.2d 380, 386-87, 330 N.W.2d 242, 245-46 (Ct.App.1983); cf. Schimmel v. State, 84 Wis.2d 287, 297-98, 267 N.W.2d 271, 276 (1978) (), rev'd in part on other grounds by Steele v. State, 97 Wis.2d 72, 76, 294 N.W.2d 2, 3 (1980).
Matzker's request for a Goodchild hearing on voluntariness was also properly denied. Before a court may conclude that a statement is involuntarily given, some affirmative evidence of improper police practices must be shown. See State v. Michels, 141 Wis.2d 81, 90-91, 414 N.W.2d 311, 314 (Ct.App.1987). Because there was no police involvement in the statements being challenged by Matzker, either directly or through individuals acting as agents for the police, and no evidence of improper or coercive practices, no basis existed to challenge Matzker's statements as involuntary.
We also reject Matzker's contention that this proceeding should have been dismissed because it was not commenced by a sworn petition. Matzker admits that ch. 980, STATS., does not state that a petition must be sworn. In addition, we reiterate that ch. 980 proceedings are civil rather than criminal. While criminal procedures are incorporated for certain stages of the proceedings, e.g., § 980.05(1m), STATS., nothing in the statutory provisions indicate that criminal requirements as to sworn pleadings are applicable. We therefore apply the rules for civil pleadings, which need not be sworn unless required by a particular statute. See § 802.05(1)(a), STATS.
Matzker's final argument in case No. 94-3264 is that the trial court failed to adequately advise the jury that the term "acts of sexual violence" means acts which would constitute "sexually violent offenses." He also objects that the instructions informed the jury of the effect of its verdict by telling jurors that if they found that Matzker was not a sexually violent person, the petition would be dismissed and he would be placed on parole under the supervision of the Department of Corrections. The jurors were further instructed that if they found Matzker to be a sexually violent person, the court would commit him to the custody of the Department of Health and Social Services for control, care and treatment until he was no longer sexually violent.
Because Matzker did not request a defining instruction on the meaning of "acts of sexual violence" and consented to the portion of the instructions informing the jury about the effect of its verdict, he has waived his right to review of those issues in his direct appeal of the judgment and commitment order. See State v. Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988). However, these same arguments are raised in case No. 95-3433 as a basis for claiming ineffective assistance of trial counsel. The remainder of this decision will deal with that appeal.
To establish a claim of ineffective assistance, an appellant must show that counsel's performance was deficient and that it prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, an appellant must show that his or her counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight. See State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990). The case is reviewed from counsel's perspective at the time of trial, and the burden is placed upon the appellant to overcome a strong presumption that counsel acted reasonably within professional norms. See id. at 127, 449 N.W.2d at 847-48. The appropriate measure of attorney performance is reasonableness, considering all the circumstances. See State v. Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct.App.1985).
Even if deficient performance is found, a judgment will not be reversed unless the appellant proves that the deficiency prejudiced his or her defense. See Johnson, 153 Wis.2d at 127, 449 N.W.2d at 848. However, we need not address the prejudice prong of the test if deficient performance is not shown. See id. at 128, 449 N.W.2d at 848.
The question of whether there has been ineffective assistance of counsel is a mixed question of law and fact. See State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994). An appellate court will not overturn a trial court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy unless the findings are clearly erroneous. See State v. Knight, 168 Wis.2d 509, 514 n. 2, 484 N.W.2d 540, 541 (1992). However, the final determinations of whether counsel's performance was deficient and prejudicial are questions of law which this court decides without deference to the trial court. See id.
While Matzker claims that trial counsel was ineffective for failing to challenge the jury instructions on the ground that they did not...
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