State v. Scott Maher, 2010AP460, District 4, 5/26/11
court of appeals decision (not recommended for publication); for Maher: Donald T. Lang, SPD, Madison Appellate; case activity
Testimony from a State’s expert witness describing the ch. 980 screening process was irrelevant.
¶11 We addressed the issue of the admissibility of this same type of evidence in State v. Sugden, 2010 WI App 166, 330 Wis 2d 628, 795 N.W.2d 456. As in the present case, Sugden addressed whether testimony regarding the pre-petition screening process in a Wis. Stat. ch. 980 proceeding was relevant. In Sugden, we concluded that, although the witness’s “experience in doing evaluations under Wis. Stat. ch 980 is relevant to [his or] her expertise, [] the existence of a screening process before a referral is made to [him or] her or the relative size of the group selected for evaluations is not.” Id., ¶58. The testimony in the present case discusses the screening process in greater detail than the testimony in Sugden and we hold, as we did in Sugden, that this is not relevant testimony and should not have come before the jury.
Testimony (and prosecutorial argument) about treatment programs available upon commitment was similarly irrelevant.
¶14 [T]his court has recently ruled that testimony regarding postcommitment treatment in a ch. 980 proceeding is not relevant testimony. See Sugden, 330 Wis. 2d 628, ¶58. In concluding that such testimony was not relevant, we explainedthat “[i]t does not bear on [the witness’s] credentials or expertise and we can identify no other fact of consequence that this evidence makes more or less probable.” Id., ¶51.
¶15 We conclude that the same is true of the testimony regarding postcommitment treatment in this case. The consequences of the jury’s verdict are not relevant to any of the three elements of whether Maher is a sexually violent person and, therefore, should not have been placed before the jury.
¶16 The State’s experts’ opinions that Maher was more likely than not to reoffend were based in part on his failure to complete offered treatment while serving his prison sentence. The State’s theory was that such treatment decreases the risk that a person with Maher’s history will commit future sexually violent acts. We agree that testimony that Maher had failed to complete treatment while incarcerated was relevant to whether Maher was more likely than not to reoffend. However, testimony that similar treatment would be offered after commitment was not. The prosecutor’s conflation of Maher’s failure to complete treatment during incarceration with the availability of postcommitment treatment did not render the otherwise irrelevant testimony admissible.
Nonetheless, Maher isn’t entitled to a new trial in the interest of justice. The only issue in controversy was likelihood to reoffend, something that wasn’t clouded by the inadmissible testimony and argument, ¶¶17-26.
