2010AP781 In re the commitment of Jesse D. Williams

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Sexually Violent Persons
Jury instructions; new trials

Jesse D. Williams appeals an order committing him to a secure mental health facility on a jury finding that he is a sexually violent person under Wis. Stat. ch. 980 (2007-08). He also appeals an order denying his postcommitment motion. Williams contends that the standard jury instruction used in his case was misleading and resulted in the real controversy not being fully tried. He concedes that the jury instruction issue was not preserved at trial, but explicitly declines to argue ineffective assistance of counsel, explaining that the jury instruction issue is novel. See State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994) (“[I]neffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”).

The State contends that Williams’ proper avenue of relief is a claim of ineffective assistance of counsel rather than whether the real controversy was fully tried. The State also contends that the jury instruction as a whole is not misleading and that the real controversy was fully tried.

While we agree with Williams that the jury instruction is internally inconsistent, we conclude that the instruction, as a whole, properly states the requirements for a finding that a person is a sexually violent person. Thus, under either of the parties’ proposed approaches, we would affirm. Because Williams declines to argue ineffective assistance of counsel, and the parties’ arguments are framed in terms of the interest of justice, we will address whether a new trial is required in the interest of justice rather than based on ineffective assistance of counsel. We reject Williams’ contention that the real controversy was not fully tried. We affirm. This opinion will not be published.

2010AP781 In re the commitment of Jesse D. Williams

Dist III, Outagamie County, Krueger, J., Per Curiam

Attorneys: For Appellant: Olsen, Jefren E., Madison; For Respondent: Schneider, Carrie A., Appleton; Remington, Christine A., Madison

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