Statements to defense PSI writer admissible

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Hon. Richard S. Brown

A defendant’s statements to a privately-hired presentence investigator can be introduced at a subsequent trial for perjury, the Wisconsin Court of Appeals held on Aug. 25.

In 1997, Jimmie R.R. was charged with three counts of first-degree sexual assault of a child and three counts of incest with a child for an incident involving his five-year-old daughter. At trial, he testified and denied ever having touched his daughter sexually, but the jury found him guilty.

Following the convictions, the court ordered a presentence investigation, which was prepared by Douglas Geske, a probation and parole agent. Jimmie told Geske that his daughter and her mother were framing him. At a second interview, Jimmie claimed that he was very intoxicated on the day of the assaults, and that he could not remember what happened.

Jimmie’s counsel then hired Will Swierenga, an independent presentence investigator, to prepare a defense sentencing memorandum. Swierenga met with Jimmie twice.

When Swierenga began the interview process, Jimmie denied committing the offenses. Swierenga informed Jimmie that it would be to his benefit for him to admit that he had engaged in wrongful conduct, and Jimmie ultimately admitted his involvement in the incident to Swierenga.

Following Jimmie’s admission, Swierenga called Geske and informed him that Jimmie had changed his story and would like to speak with him again. Geske then met with Jimmie a final time, and Jimmie also confessed to Geske The court sentenced Jimmie to sixty-four years in prison.

In 2001, the State filed a criminal complaint charging Jimmie with perjury, stemming from Jimmie’s testimony at his trial. The State alleged that Jimmie committed perjury when he testified on his own behalf and denied committing the assaults. Included as witnesses were Geske and Swierenga. Jimmie’s counsel did not object to the testimony of either Swierenga or Geske, both of whom testified about Jimmie’s admissions. The jury convicted Jimmie of perjury.

Jimmie then filed a postconviction motion, alleging that he was denied the effective assistance of counsel. Walworth County Circuit Court Judge James L. Carlson denied the motion, and Jimmie appealed. The court of appeals held in a decision by Judge Richard S. Brown that the testimony of Geske was confidential and inadmissible, and that counsel was deficient for failing to object. However, the court also held that the testimony of Swierenga was admissible, and therefore, the error in failing to object to Geske’s testimony was not prejudicial.

Case Law

The two leading cases on the admissibility of presentence reports are State v. Crowell, 149 Wis.2d 859, 440 N.W.2d 352 (1989), and State v. Greve, 2004 WI 69, 681 N.W.2d 479.

In Crowell, the defendant was allowed to withdraw his guilty plea after the presentence investigation had already taken place. During the ensuing jury trial, the probation and parole officer who conducted the investigation was allowed to testify about inculpatory statements Crowell made during the presentence investigation and Crowell was convicted.

On appeal, Crowell argued that confidentiality protections built into sec 972.15(4) prohibited the officer from testifying at the subsequent trial. Section 972.15(4) provides, “After sentencing, unless otherwise authorized under sub. (5) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.”

The Wisconsin Supreme Court agreed, explaining that the legislature intended to preclude a later use of presentence investigations in order to ensure the continued cooperation of defendants in the presentence investigation process. The court reasoned, “The quality and accuracy of the presentence investigation report [and therefore its helpfulness to the court] depend in large measure on the cooperation of the defendant.” The court added that, if a defendant realizes that what he or she tells the presentence investigator can be used against him or her at trial, he or she “would be reticent to reveal potentially dangerous facts, and the information gathering process for sentencing purposes would be significantly inhibited.”

In Greve, the court both reaffirmed Crowell’s holding that sec. 972.15 requires court-ordered presentence investigation reports to remain confidential, but distinguished it with respect to sentencing memoranda prepared by the defense, rather than pursuant to court order. Greve had successfully appealed his conviction, and on remand, the circuit court held the inculpatory statements inadmissible.

On interlocutory review, the Supreme Court reversed, holding Crowell inapplicable, and reasoning that Crowell was strictly a statutory interpretation case which applied only to court-ordered presentence investigations.

Application

Applying Crowell and Greve, the court of appeals held that Swierenga’s testimony was admissible, but Geske’s was not, reasoning, “The Greve court’s discussion of Crowell and Wis. Stat. sec. 972.15 makes it clear that there is no right to confidentiality of information obtained during a defense presentence investigation. Thus, Jimmie’s counsel’s failure to object to Swierenga’s testimony did not constitute deficient performance.”

The State had argued that Crowell was limited to cases in which it seeks to use information from the presentence investigation at a trial following the withdrawal of a guilty plea, and thus, the testimony of both Geske and Swierenga was admissible, but the court rejected this argument.

The court reasoned, “The rationale behind the Crowell court’s decision supports a broader application of Wis. Stat. sec. 972.15. The Crowell court was concerned that if a defendant was fearful that the information he or she provided an investigator could be used at a subsequent trial to obtain a conviction, the defendant would be less forthcoming with potentially dangerous facts, thereby jeopardizing the sentencing process. This concern is present regardless of whether that subsequent trial concerns the same or a different charge. Accordingly, we reject the State’s argument that Geske’s testimony was properly before the court and conclude that Jimmie’s counsel’s failure to object to Geske’s testimony constitutes deficient performance.”

Prejudice

Turning to the issue of prejudice, the court determined that counsel’s deficiency was not prejudicial. The court explained, “The central issue for the jury in the perjury case was one of credibility — whether to believe Jimmie’s story that he told the truth while he was on the stand at the sexual assault trial. Although Swierenga did not testify that Jimmie lied during the sexual assault trial, he did testify about the process he used with sex offenders to help them go from denial to responsibility. He testified that it was his practice to inform defendants, such as Jimmie, that it would be to their benefit to tell the truth and show remorse at the sentencing stage because it could potentially mitigate the sentence they received. His testimony demonstrated that he walked Jimmie through this process and saw Jimmie progress from blaming the victim to accepting responsibility for the crime. In light of Swierenga’s testimony, the impact of Geske’s testimony — which only served to confirm that Jimmie changed his story during the sentencing phase — on the jury’s credibility determination was minimal. Our confidence in the outcome of the trial, therefore, is not undermined by the failure of Jimmie’s counsel to object to Geske’s testimony. We reject Jimmie’s ineffective assistance of counsel claim as it pertains to Geske’s testimony.”

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Accordingly, the court affirmed Jimmie’s conviction.

Public Policy

Although the court upheld Jimmie’s conviction, the court questioned the wisdom of prosecutor’s pursuing perjury charges based on a defendant’s admission of guilt to a presentence writer. The court wrote, “As noted by counsel at oral argument, admission of criminal activity is the single most important treatment goal for sexual offenders. Moreover, in order for the trial court to make appropriate sentencing decisions, it needs to be presented with accurate and reliable information. In order to facilitate this goal, it is important for the court to foster an environment where defendants feel comfortable confessing their guilt without repercussions.”

The court added, “We are concerned that the regular use of the perjury statutes may chill free and unfettered posttrial admissions, which are so necessary for rehabilitation and sentencing. However, a misuse of prosecutorial discretion challenge is not before us and we cannot address it here. Further, should prosecutors use this decision to charge defendants who admit guilt during the sentencing phase with perjury, the propriety of such charging decision is a question best left to the Supreme Court for a later date.”

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David Ziemer can be reached by email.