COURT OF
APPEALS DECISION DATED AND
RELEASED March
12, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals pursuant to § 808.10, Stats., within 30 days hereof,
pursuant to 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. |
Nos. 94-3264
95-3433
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff‑Respondent,
v.
RAYMOND
L. MATZKER,
Defendant‑Appellant.
APPEALS
from a judgment and orders of the circuit court for Racine County: DENNIS J. BARRY, Judge. Affirmed.
Before
Snyder, P.J., Nettesheim and Anderson, JJ.
PER
CURIAM. Raymond L. Matzker has
appealed from a judgment and commitment order finding him to be a sexually
violent person pursuant to § 980.05, Stats.,
and committing him to a secure mental health facility (court of appeals case
No. 94-3264). He has also appealed from
an order denying his motion for a new trial based on ineffective assistance of
trial counsel (court of appeals case No. 95-3433). These appeals were consolidated by this court on February 28,
1996. We affirm the judgment and the
orders.
Matzker
raises multiple issues in both appeals, which we will address seriatim. The first are in case No. 94-3264, and
constitute various challenges to the constitutionality of ch. 980, Stats., also known as the sexual predator
act. He alleges that the sexual
predator act violates substantive due process, equal protection and double
jeopardy protections, and that it constitutes an ex post facto law. All of these claims have been rejected by
the Wisconsin Supreme Court. See
State v. Post, 197 Wis.2d 279, 293-94, 541 N.W.2d 115, 118
(1995); State v. Carpenter, 197 Wis.2d 252, 258-59, 541 N.W.2d
105, 107 (1995). Based on the court's
determination that the characteristics of ch. 980 are not sufficiently punitive
as to render it punishment rather than a civil commitment, Matzker's claim that
his commitment constitutes cruel and unusual punishment also fails. See Carpenter, 197
Wis.2d at 272, 541 N.W.2d at 113. We
therefore will not address these arguments further.
Matzker
also contends that ch. 980, Stats.,
is overbroad and void for vagueness.[1] He contends that the statutory definitions
set forth in § 980.01, Stats.,
are vague and ambiguous, that the definitions and statutory standards have
little or no foundation in medical science and psychology, and that the statute
contains insufficient criteria to guide the trial court and the jury. However, the definitions and standards
contained in ch. 980 have been found constitutionally sufficient by the
Wisconsin Supreme Court in rejecting a claim that the sexual predator act
violates substantive due process. The
court specifically rejected a claim that the term "mental disorder"
swept too broadly and did not adequately define who fell within its reach. See Post, 197 Wis.2d at
303-04, 541 N.W.2d at 122. It held that
the statute as drafted was narrowly tailored to permit commitment only of those
sexual offenders whose mental condition predisposed them to reoffend, see
id. at 306-07, 541 N.W.2d at 123-24, and that the statutory
definition and method for assessing future dangerousness was constitutionally
sound, see id. at 311-13, 541 N.W.2d at 126. In addition, it rejected claims that the
statute was unconstitutional because based on unsound theories regarding the
viability of treatment. See id.
at 310-11, 541 N.W.2d at 125-26. This
reasoning compels rejection of Matzker's arguments concerning overbreadth and
vagueness.[2]
Pursuant
to Post, 197 Wis.2d at 332-33, 541 N.W.2d at 134, we also reject
Matzker's contention that introduction of psychiatric testimony and medical
records in this case violated the physician-patient privilege afforded by
§ 905.04, Stats. Similarly, based on the reasoning of Post
and Carpenter, we reject his claim that the trial court
erroneously refused to conduct a Miranda-Goodchild hearing[3]
on the admissibility of statements made by him to treating physicians and
psychologists.
Neither
Miranda nor the constitutional right to remain silent is
applicable here because this is a civil proceeding whose objective is treatment
rather than punishment. See Carpenter,
197 Wis.2d at 271, 541 N.W.2d at 112‑13.
Moreover, Miranda applies to custodial interrogation. See Miranda v. Arizona,
384 U.S. 436, 444 (1966). Matzker's
objection is to the use of statements made by him to mental health
professionals after his convictions and before the filing of this petition,
related to mental health evaluations and placement decisions. Since they did not involve questioning by
the police or agents of the police in connection with a criminal investigation
or pending case, Miranda and Fifth Amendment protections are
inapplicable. See State v.
Pounds, 176 Wis.2d 315, 321, 500 N.W.2d 373, 376 (Ct. App. 1993); State
v. Knapp, 111 Wis.2d 380, 386-87, 330 N.W.2d 242, 245-46 (Ct. App.
1983); cf. Schimmel v. State, 84 Wis.2d 287, 297-98, 267
N.W.2d 271, 276 (1978) (statement made to Division of Corrections employee in
connection with treatment program did not constitute custodial interrogation,
even though defendant was incarcerated), rev'd in part on other grounds by
Steele v. State, 97 Wis.2d 72, 76, 294 N.W.2d 2, 3 (1980).
Matzker's
request for a Goodchild hearing on voluntariness was also
properly denied. Before a court may
conclude that a statement is involuntarily given, some affirmative evidence of
improper police practices must be shown.
See State v. Michels, 141 Wis.2d 81, 90-91, 414
N.W.2d 311, 314 (Ct. App. 1987).
Because there was no police involvement in the statements being
challenged by Matzker, either directly or through individuals acting as agents
for the police, and no evidence of improper or coercive practices, no basis
existed to challenge Matzker's statements as involuntary.
We
also reject Matzker's contention that this proceeding should have been
dismissed because it was not commenced by a sworn petition. Matzker admits that ch. 980, Stats., does not state that a petition
must be sworn. In addition, we
reiterate that ch. 980 proceedings are civil rather than criminal. While criminal procedures are incorporated
for certain stages of the proceedings, e.g., § 980.05(1m), Stats., nothing in the statutory
provisions indicate that criminal requirements as to sworn pleadings are
applicable. We therefore apply the
rules for civil pleadings, which need not be sworn unless required by a
particular statute. See
§ 802.05(1)(a), Stats.
Matzker's
final argument in case No. 94-3264 is that the trial court failed to adequately
advise the jury that the term "acts of sexual violence" means acts
which would constitute "sexually violent offenses." He also objects that the instructions informed
the jury of the effect of its verdict by telling jurors that if they found that
Matzker was not a sexually violent person, the petition would be dismissed and
he would be placed on parole under the supervision of the Department of
Corrections. The jurors were further
instructed that if they found Matzker to be a sexually violent person, the
court would commit him to the custody of the Department of Health and Social
Services for control, care and treatment until he was no longer sexually
violent.
Because
Matzker did not request a defining instruction on the meaning of "acts of
sexual violence" and consented to the portion of the instructions
informing the jury about the effect of its verdict, he has waived his right to
review of those issues in his direct appeal of the judgment and commitment
order. See State v.
Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988). However, these same arguments are raised in
case No. 95-3433 as a basis for claiming ineffective assistance of trial
counsel. The remainder of this decision
will deal with that appeal.
To
establish a claim of ineffective assistance, an appellant must show that
counsel's performance was deficient and that it prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove
deficient performance, an appellant must show that his or her counsel made
errors so serious that he or she was not functioning as the "counsel"
guaranteed by the Sixth Amendment. See
id. Review of counsel's
performance gives great deference to the attorney and every effort is made to
avoid determinations of ineffectiveness based on hindsight. See State v. Johnson,
153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990). The case is reviewed from counsel's perspective at the time of
trial, and the burden is placed upon the appellant to overcome a strong
presumption that counsel acted reasonably within professional norms. See id. at 127, 449
N.W.2d at 847-48. The appropriate
measure of attorney performance is reasonableness, considering all the
circumstances. See State
v. Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct. App. 1985).
Even
if deficient performance is found, a judgment will not be reversed unless the
appellant proves that the deficiency prejudiced his or her defense. See Johnson, 153
Wis.2d at 127, 449 N.W.2d at 848.
However, we need not address the prejudice prong of the test if
deficient performance is not shown. See
id. at 128, 449 N.W.2d at 848.
The
question of whether there has been ineffective assistance of counsel is a mixed
question of law and fact. See State
ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368‑69
(1994). An appellate court will not
overturn a trial court's findings of fact concerning the circumstances of the
case and counsel's conduct and strategy unless the findings are clearly
erroneous. See State v.
Knight, 168 Wis.2d 509, 514 n.2, 484 N.W.2d 540, 541 (1992). However, the final determinations of whether
counsel's performance was deficient and prejudicial are questions of law which
this court decides without deference to the trial court. See id.
While
Matzker claims that trial counsel was ineffective for failing to challenge the
jury instructions on the ground that they did not define "acts of sexual
violence," he did not question trial counsel concerning this issue at the
hearing on ineffective assistance. State
v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979),
requires the preservation of trial counsel's testimony to determine whether a
particular decision was a deliberate and reasonable trial strategy. Because Matzker did not question counsel
concerning the reasons for her lack of objection, we will not address the
matter further. See State
v. Schultz, 148 Wis.2d 370, 379 n.3, 435 N.W.2d 305, 309 (Ct. App.
1988), aff'd, 152 Wis.2d 408, 448 N.W.2d 424 (1989).
Matzker
criticizes trial counsel's consent to informing the jury of the effect of its
verdict on the ground that it runs afoul of the general rule which prohibits
providing jurors with such information.
However, this general rule does not apply in insanity defense cases
which, with ch. 51, Stats.,
constituted the model for the instructions used in this case.[4] Wisconsin
J I—Criminal 605 instructs the jury that if it finds a defendant
not guilty by reason of mental disease or defect, he or she will be committed
to the Department of Health and Social Services and will be placed in an
appropriate institution until he or she is no longer a danger to self or
others. This instruction reduces the
risk that a jury will decline to return an insanity verdict, even though
warranted by the evidence, because it is concerned that the defendant will be
released to the endangerment of the public.
Trial
counsel testified that she was similarly concerned that the jury would be
reluctant to find that Matzker was not sexually violent if it believed that he
would be released without supervision.
She testified that she believed the jury would feel more secure in
returning a finding that he was not a sexually violent person if it knew he
would remain subject to supervision, as he would on parole. Because this was a reasonable tactic for
counsel to choose in light of the jury's undoubted concern about the effect of
finding that Matzker was not sexually violent, her actions did not constitute
deficient performance. See State
v. Felton, 110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983).[5]
Matzker
next contends that trial counsel was ineffective because she failed to
challenge the admissibility of testimony by the State's expert witnesses regarding
the predictability of future dangerousness.
He also contends that her performance was deficient because she failed
to present expert witnesses on the reliability of the underlying science of
predicting future dangerousness and failed to rely on learned treatises to
challenge the State's experts on cross-examination.
Trial
counsel did not render deficient performance by failing to challenge the
admissibility of testimony by the State's experts. Admissibility of scientific evidence in Wisconsin is not
conditioned upon its reliability. See
State v. Peters, 192 Wis.2d 674, 687, 534 N.W.2d 867, 872 (Ct.
App. 1995). With some exceptions which
are inapplicable here, scientific evidence is admissible if it is relevant, the
witness is qualified as an expert, and the evidence will assist the trier of
fact in determining an issue of fact. See
id. at 687-88, 534 N.W.2d at 872. Because these tests were satisfied, no basis existed for trial
counsel to challenge the admissibility of testimony by the State's experts.
We
also reject Matzker's claim that trial counsel was ineffective for failing to
present an expert witness to challenge the State's expert testimony. Trial counsel testified that she utilized
the services of the State Public Defender's Client Services Coordinator, who is
a member of the Wisconsin Sexual Offender Treatment Network, and a client
services worker in the public defender's office to search for experts on the
predictability of dangerousness and possible dispositional placements for Matzker. She testified that they were not able to
find anyone to assist Matzker's case.
She further testified that Dr. Charles Lodl, a psychologist described by
counsel as defense-oriented, examined Matzker for purposes of the dispositional
hearing, but that his testimony would not have been helpful to the defense
because he believed that Matzker required inpatient treatment.
Matzker's
complaint is that trial counsel did not sufficiently investigate to find the
right expert. However, trial counsel's
investigatory duty was to make a reasonable investigation or to make a
reasonable decision that a particular investigation was unnecessary. See State v. Hubert,
181 Wis.2d 333, 343-44, 510 N.W.2d 799, 803 (Ct. App. 1993). In light of the dead ends reached in searching
for an expert who could offer useful testimony, trial counsel's failure to
present an expert cannot be deemed unreasonable.[6] The fact that Matzker presented an expert at
the Machner hearing does not alter this conclusion because
counsel's activities must be judged at the time of trial, and Matzker has not
shown that her efforts and conclusions were unreasonable.
Similarly,
Matzker has failed to establish that trial counsel acted unreasonably by
neglecting to use learned treatises directly or in cross-examination of the
State's experts. Matzker's own expert
testified at the Machner hearing that such treatises would
contain information both helpful and harmful to Matzker's defense. Moreover, trial counsel testified that she
was aware that a dispute existed as to the reliability and ethics of predicting
future dangerousness, but that she chose not to pursue this issue in
cross-examination or through the use of learned treatises. She testified that she did not believe that
challenging the research upon which the State's experts relied to conclude that
Matzker was substantially probable to reoffend would be fruitful in light of
the fact that Matzker had seven prior convictions for sexual offenses against
young boys. Because counsel could
reasonably conclude, based upon Matzker's history, that challenging the
underlying science of predictability would not have diminished the credibility
of the State's witnesses, her decision not to pursue these matters cannot be
deemed unreasonable even if another lawyer would have chosen to do so.
We
also reject Matzker's claim that trial counsel was ineffective for failing to
pursue and uncover witness bias.
Matzker premises this argument on the fact that using falsified
credentials and an assumed identity, he previously served as director of the
Winnebago Mental Health Institute. He
contends that two of the witnesses who testified against him at trial were
working at the institute during his masquerade, and therefore should have been
questioned concerning bias toward him.
Matzker's
argument fails because the evidence in the record does not establish that Dr.
Thomas Michlowski, one of the witnesses apparently referred to by Matzker, was
working at the institute during the time in question, or that he met Matzker
before 1992. The other witness, Dr. Gay
Anderson, testified that he was in training as a resident at the time, and that
while Matzker was his boss, Anderson was under the control of the resident
training program director and met Matzker very briefly on only one occasion.
It
would be pure speculation to conclude from these simple facts that either
expert was biased against Matzker.
Because Matzker never identifies what additional evidence should have
been uncovered or how it would have shown bias, a finding of ineffective
assistance of trial counsel cannot be premised on this argument.
Matzker's
final argument is that trial counsel rendered ineffective assistance when she
conceded at the final commitment hearing that Matzker was a proper subject for
commitment and failed to argue for supervised release. The record indicates that at the commitment
hearing, counsel stated that Matzker would cooperate with parole conditions and
treatment if released, that he had cooperated with the predisposition
examination, that he had not committed any new crimes while previously on
parole, and that the defense believed supervised release would work out. However, she further stated that Matzker
realized that the trial court would be reluctant to release him because of his
past record and was therefore willing to agree to inpatient commitment, to
cooperate with that treatment and to seek release in six months. Counsel testified at the Machner
hearing that she made this concession after discussing the matter with Matzker
and obtaining his agreement. She
testified that she recommended this action to him based on the predisposition report, his mental condition and his
prior record, which was replete with instances of failing to cooperate with
treatment and parole and absconding while on parole.
It
thus is apparent that trial counsel's concession at the final commitment
hearing was tactical and strategic, in effect making the best of a bad
situation. A trial attorney may select
a particular defense from the available alternative defenses. See State v. Hubanks,
173 Wis.2d 1, 28, 496 N.W.2d 96, 106 (Ct. App. 1992). Based on Matzker's record, showing a willingness to cooperate
with inpatient treatment could be deemed necessary to establish that in the
future he would be able to comply with the conditions of supervised release. Counsel's decision therefore was reasonable
and provides no basis for relief on appeal.[7]
By
the Court.—Judgment and orders
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] In his brief, Matzker does not differentiate
the contentions that underlie his claims of vagueness and overbreadth. We therefore treat these claims as one.
[2] Matzker also appears to contend that the
State's burden of proof in the commitment proceedings is ambiguous. We disagree. The statute merely sets a likelihood or degree of risk which must
be shown as a prerequisite to commitment, namely, a substantial probability
that the person will engage in acts of sexual violence. Sections 980.01(7) and 980.05(5), Stats.
It further requires that the State establish this substantial probability
beyond a reasonable doubt. Section
980.05(3)(a). Matzker cites no
authority for the proposition that this burden somehow renders the statute
unconstitutionally vague.
Similarly, we reject
his claim that the statute is vague as to what constitutes "acts of sexual
violence" as used in the definition of "mental disorder" and
"sexually violent person." We
understand that standard to refer to sexually violent offenses as defined in
§ 980.01(6), Stats. See Wis
J I—Criminal 2502.
[3] Miranda v. Arizona, 384
U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis.2d 244,
133 N.W.2d 753 (1965).
[4] At the time of this trial, Wis J I—Criminal 2501-2503, dealing with ch. 980, Stats., had not yet been drafted and
published. Currently, Wis J I—Criminal 2501 informs the jury in a ch. 980 case that
"Wisconsin law provides that a person may be committed to the custody of
the Department of Health and Social Services if the person is found to be a
sexually violent person."
[5] Matzker contends that counsel's decision
could never be reasonable under the facts of his case because the evidence
indicated that his prior adjustment on parole was poor. However, counsel emphasized in her closing
argument that while Matzker had some adjustment problems while on parole, he
had not reoffended when released. In
any event, Matzker's parole adjustment does not render counsel's decision
deficient because she could reasonably conclude that, based on his history, the
jury would be even less likely to find that he was not sexually violent if they
feared he would be released without supervision.
[6] Matzker criticizes counsel's lack of
personal knowledge of the steps taken by the public defender's staff to obtain
an expert witness. However, reliance on
the efforts and conclusions of qualified staff does not constitute deficient
performance by an attorney absent a showing that the staff's efforts were
unreasonable and inadequate.
[7] After counsel spoke at the final commitment
hearing, Matzker spoke on his own behalf and requested immediate release. This fact did not render counsel's actions
unreasonable, since it occurred after Matzker consented to her
recommendation. Moreover, nothing in
the record indicates that Matzker told her that he objected to her argument or
that he asked her to alter her argument at the hearing.