Compelled statements inadmissible under Ch. 980

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“We cannot readily articulate a rationale for excluding a statement in a ch. 980 trial because it would be incriminating in a future, hypothetical criminal proceeding. … We believe that courts and litigants would benefit from a Supreme Court review of our analysis.” Hon. Margaret Vergeront Wisconsin Court of Appeals

A probationer’s statement to his agent is inadmissible in a Chapter 980 proceeding only if it was both incriminating and was compelled, the Wisconsin Court of Appeals held on March 3.

Charles W. Mark was convicted in 1994 on three charges of sexual assault of a child. He was sentenced to eight years in prison on one charge and sentence was withheld on the other two, with 15 years of probation ordered on each, 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Mark was released on parole in May 1999, but his parole was revoked in June 2000, and he was returned to prison to complete his sentence.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 filed a petition alleging that Mark was a sexually violent person under ch. 980.

At the trial the State introduced statements made by Mark to his parole agent while he was on parole. The statement forms included the following standard language: "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 statement Mark gave described the contact he 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 the woman on her porch and seen her fold her underclothes and breastfeed 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.

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 10 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.

Mark’s parole was revoked because of this incident, but he was not charged with any crime.

The parole agent also testified that, on Feb. 18, 2000, Mark had denied but then admitted certain sexual activity with his stepson, one of the victims of the crimes for which Mark had been convicted.

Mark’s counsel did not object to admission of the statements, and he was adjudicated a sexually violent person. Mark appealed, and the court of appeals affirmed in part, but remanded the case for an evidentiary hearing, in a decision by Judge Margaret A. Vergeront.

The court held that the statements could not be used against Mark, even though a ch. 980 proceeding is technically civil, rather than criminal, if the statements are both "incriminating" and were "compelled," but only the statements regarding in the hotel arguably fell into this category.

For guidance, the court looked to a trilogy of cases that have considered whether various aspects of Fifth Amendment law apply in a ch. 980 trial: State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997)(Zanelli I); State v. Zanelli, 223 Wis. 2d 545, 589 N.W.2d 687 (Ct.App.1998)(Zanelli II); and State v. Lombard, 2004 WI 95, 273 Wis. 2d 538, 684 N.W.2d 103.

In Zanelli I, the court of appeals held that, under sec. 980.05(1m), the respondent had a right to remain silent in a ch. 980 proceeding, and this right was violated by the State’s introduction at trial of testimony that he had refused to participate in a prepetition psychological evaluation and by the prosecutor’s comment in closing argument on this refusal.

The statute provides: "At the trial to determine whether the person who is the subject of a petition under sec. 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."

The court found that a respondent in a ch. 980 proceeding has the same Fifth Amendment right to remain silent that a defendant would have in a criminal proceeding, and the right to remain silent during arrest or custodial interrogation whether or not he had received a Miranda warning. Thus, the court held that Zanelli’s rights were v
iolated by witnesses’ testimony on Zanelli’s silence and the prosecution’s comment on it.

In Zanelli II, the court held that probation officers could testify as to statements made by a respondent concerning the underlying conviction, reasoning, "A review of the record reveals that [probation officers] testified regarding the 1977 and 1991-92 matters for which Zanelli had already been convicted, so such statements could not subject Zanelli to future criminal prosecution. Further, any statements about Zanelli’s background, including his employment and family, could not, by themselves, incriminate Zanelli in a subsequent criminal prosecution. The fact that such statements can be used in a ch. 980, Stats., case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding See State v. Carpenter, 197 Wis. 2d 252, 270-72, 541 N.W.2d 105, 112-13 (1995). Accordingly, the statements were admissible." Zanelli II, 223 Wis.2d at 568

Finally, in Lombard, the Supreme Court held that a State psychologist interviewing a respondent is not required to give Miranda warnings, holding that, pursuant to sec. 980.05(1m), the constitutional rights extended to Chapter 980 respondents are only applicable "at the trial."

The court reasoned, "Here, Lombard was already convicted for the underlying sexual assault offenses that led to his ch. 980 commitment as a sexually violent person.

Thus, any statements Lombard made to Jurek regarding those assaults could not be used against him in future prosecutions. We agree with the court of appeals in this case that ‘[t]he purpose of the examiner’s interview was to evaluate Lombard for the purposes of a potential "civil commitment proceeding, not a criminal proceeding," and the examiner was not required to comply with Miranda’s dictates.’" Lombard, at par. 42.

The State offered two interpretations of Lombard: that a ch. 980 proceeding is a civil proceeding, not a criminal proceeding, and there are therefore no Fifth Amendment rights in a ch. 980 proceeding; and that, because Mark’s statements were made prepetition, he is not protected from their use at trial, even if the statements are incriminating and were compelled.

The court rejected the first argument as inconsistent with sec. 980.05(1m), and found the second incompatible with both Zanelli I and Zanelli II, neither of which was overruled in Lombard.

The court concluded, "the better reading of Lombard I is that it holds a ch. 980 respondent is not entitled to prepetition Miranda warnings and leaves intact our rulings in Zanelli I and Zanelli II. Because Mark’s appeal concerns allegedly compelled statements, not a respondent’s silence (Zanelli I) and not a challenge based on lack of Miranda warnings (Lombard I), the applicable case is Zanelli II."

Nevertheless, the court acknowledged two practical difficulties in applying Zanelli II that were not present in that case. First, it must decide whether a statement is admissible in one proceeding (under ch. 980) based on whether it would be incriminating in another proceeding — a future, hypothetical criminal proceeding. Second, it may not always be apparent what would be "incriminating" in a hypothetical criminal proceeding.

The court expressed reservations about its holding, remarking that, "We cannot readily articulate a rationale for excluding a statement in a ch. 980 trial because it would be incriminating in a future, hypothetical criminal proceeding," adding that, though it is bound by its prior decision in Zanelli II, "We believe that courts and litigants would benefit from a Supreme Court review of our analysis in that case, as well as a clarification of the related paragraphs in Lombard I."

Applying the standard, nonetheless, the court turned to whether the statements were "incriminating."

Addressing the statements concerning his stepson, the court found that the statements concerned the underlying convictions, could not subject him to a future criminal proceeding, and thus, were not incriminating. As for the statements concerning the woman from church, the court found there was nothing criminal in the conduct, and thus, these statements were not incriminating either.

However, the statements concerning the woman at the residential hotel could provide a basis for a charge of attempted sexual assault, and at a minimum, disorderly conduct. Thus, these statements are incriminating, and are inadmissible if they were also "compelled."

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However, the court found itself unable to determine from the record whether the statements were compelled. Mark argued that, because he made the statement while in custody, and must make a truthful account of his activities to his probation agent, or be revoked, therefore, the statements were compelled.

The State argued that, because Mark voluntarily turned himself into police, thus initiating the contact and subsequent confession, the statements were voluntary.

Declining to resolve the issue, the court wrote, "We conclude that the present record permits competing reasonable inferences on whether Mark’s statements on the incident with the woman who lived at his hotel were compelled within the meaning of Murphy, Evans, and Thompson. Because it is not our role to find facts, and because the record in any event is not well developed on this issue, we conclude that a remand is necessary. A remand will pe
rmit the circuit court to take evidence on the issue of the voluntariness of these statements and to make findings of fact based on that evidence. Because a harmless error analysis applies to compelled confessions, Arizona v. Fulminante, 499 U.S. 279, 295 (1991), the circuit court will also need to undertake that analysis if it determines that any statement on the incident with the woman who lived at Mark’s hotel was compelled."

Accordingly, the court remanded the case to the circuit court, after first holding that the Fourteenth Amendment Due Process Clause provides no additional protections beyond the Fifth Amendment, and that Mark’s probation rules were not admissible evidence.

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David Ziemer can be reached by email.