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COURT OF APPEALS DECISION DATED AND RELEASED MARCH 18, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0696
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
RUVEN SEIBERT,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
DEE R. DYER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Ruven Seibert appeals a judgment of
commitment and an order for placement in a secure mental health facility under
ch. 980, Stats. Seibert argues that the trial court erred
because (1) ch. 980 is unconstitutional; (2) it refused his evidence impeaching
his underlying conviction, and (3) he was denied due process because the
psychologist who prepared the predisposition report had testified on behalf of
the State at trial and did not present evidence of any less restrictive
placement options. We reject these
arguments and affirm the conviction.
Seibert was convicted in
1986 after a jury trial of two counts of second-degree sexual assault. In 1995, when he was scheduled for mandatory
release from prison, the State filed a petition under ch. 980, Stats., alleging that he was a sexually
violent person. After the jury found
Seibert to be a sexually violent person as alleged in the petition, the trial
court ordered commitment to the Department of Health and Social Services. It ordered a predisposition investigation
and, after the dispositional hearing, ordered that Seibert be placed in a
secure mental health facility because the public could not be adequately protected
without a secure placement.
1. CONSTITUTIONAL CLAIMS
Seibert argues that ch.
980, Stats., is unconstitutional,
while acknowledging that his constitutional challenges have been considered and
rejected by the Wisconsin Supreme Court in State v. Carpenter,
197 Wis.2d 252, 541 N.W.2d 105 (1995), and State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995). We are bound by supreme court decisions. State
v. Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159, 163, (1984).
2. EVIDENTIARY RULING
Next, Seibert argues
that the trial court erroneously refused evidence to impeach his underlying
sexual assault conviction. Seibert
offered exculpatory evidence to show that the underlying sexual assault
convictions were "faulty." He
argues that the evidence was relevant to the third element of the sexual
predator law, whether there is a substantial probability that the person will
engage in acts of sexual violence. See
§ 980.01(7), Stats. He argues that he was denied the opportunity
to diffuse the element of dangerousness implied by his conviction and show that
there was significant evidence indicating he did not in fact commit the crime.
Seibert's offer of proof
was insufficient. Before the trial
court, and also on appeal, Seibert does not identify the claimed exculpatory
evidence. Error may not be predicated
upon a ruling excluding evidence unless the substance of the evidence was made
known to the judge. Section 901.03(1)(b),
Stats. Because his offer of proof was insufficient, Seibert failed to
preserve his claim of error.[1]
Also, the record
suggests Seibert offered the evidence to challenge the first element, that the
person must have been previously convicted of a sexually violent offense. Section 980.01(7), Stats. Seibert's
counsel stated that "there would be witnesses that could testify that the
underlying conviction was not a fair conviction. It was not a true conviction in that there is quite a bit of
exculpatory evidence." He further
stated that he was "not asking to be in front of the jury on that
impeachment of that judgment of conviction," but that the trial court
should consider the issue before the sexual predator trial took place. To the extent his motion was to
"impeach" the underlying conviction before the trial court, it was
properly denied. Chapter 980 does not
contemplate a retrial of the underlying conviction. See § 980.05, Stats. Seibert does not challenge the trial court's
ruling that the prior conviction is res judicata.
3. PREDISPOSITION REPORT
Finally, Seibert argues
that he was denied due process to a fair disposition hearing because the
predisposition investigation and report was prepared by a psychologist who
testified on behalf of the State at trial and did not consider a less
restrictive placement option. We disagree.
A predisposition report
may be ordered to provide the court with sufficient information to make a
determination for commitment, and the report shall be prepared in accordance
with the procedure used for presentence investigations for criminal cases under
§§ 972.15 and 980.06(2)(a), Stats.
The trial court ordered
that DHSS perform the investigation.
Craig Monroe, Ph.D., who testified at trial, conducted the investigation
and prepared the report.
Seibert presented evidence of a less
restrictive placement through testimony of an individual who would employ
Seibert and provide him a place to live in his trailer park if Seibert were
granted supervised release. The
probation and parole agent testified that he attempted to find community based
placements at halfway houses, but that the staff at the halfway houses had
rejected the placements. The agent said
that a motel room was also considered, but that it was not a secure placement. He stated that a secure placement was
advisable to protect the community.
We conclude that the
report's lack of discussion of less restrictive placements did not deprive
Seibert his due process rights. Seibert
cites no authority that the report itself must contain a discussion of a less restrictive
placement. Our review of the applicable
statutory sections reveals no such requirement.
We note that §
980.06(2)(b), Stats.,
provides: "The department shall
arrange for control, care and treatment of the person in the least restrictive
manner consistent with the requirements of the person and in accordance with
the court's commitment order."
This section, however, does not require that the predisposition report
under § 980.06(1) contain the arrangements.
Further, the trial court heard testimony concerning availability of less
restrictive placements, including halfway house placement, and placement at a
friend's trailer park. Consequently,
information concerning less restrictive placements was before the court to
consider in making the commitment order.
Finally, our review of
the record discloses that Seibert objected to Monroe's report because it was
based on unsupported information and did not consider a less restrictive
placement. He did not object on the
basis that Monroe had previously testified for the State. A reviewing court will not address an issue
when "the appellant has failed to give the trial court fair notice that it
is raising a particular issue and seeks a particular ruling." State v. Gilles, 173 Wis.2d
101, 115, 496 N.W.2d 133, 139 (Ct. App. 1992).
As a result, Seibert failed to preserve the claim that he was denied due
process because Monroe had previously testified on behalf of the State.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.