COURT OF APPEALS DECISION DATED AND FILED October 27, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Matthew A. Bailey appeals from a judgment and an order committing him, after a jury trial, as a “sexually violent person” under Wis. Stat. ch. 980 (2007-08).[1] He also appeals from an order denying his postverdict motion for a new trial on the ground that revisions to an actuarial risk assessment tool constitutes newly discovered evidence. In the alternative, he requests a new trial in the interest of justice. We affirm the circuit court rulings.
¶2 Bailey was convicted in 1997 of a sexually violent
offense. Shortly before his release from
prison in 2008, the State filed a petition alleging that he was eligible for
commitment under Wis. Stat. ch.
980. The element in dispute at Bailey’s
jury trial was whether his mental
disorder, pedophilia, made it more likely than not that he would engage in
future sexual violence. See
¶3 Two psychologists, Drs. William Merrick and Richard McKee, rendered expert opinions that Bailey should be committed. Both used the Rapid Risk Assessment of Sexual Offense Recidivism (“RRASOR”), the Static-99 and the Psychopathy Checklist—Revised (“PCL-R”) to assess Bailey’s risk for reoffending.[2] Dr. McKee also used two additional actuarial instruments.
¶4 Bailey’s RRASOR test scores indicated that he posed a twenty-one to twenty-five percent chance of reoffending within ten years; his Static-99 score of “5” indicated a thirty-eight percent chance. Dr. Merrick testified that Bailey’s PCL-R score indicated a higher degree of psychopathic traits than in the average prisoner and, combined with his pedophilia, placed Bailey within “the highest group of recidivists.” Dr. McKee similarly testified that the combination of Bailey’s high PCL-R score with his pedophilia indicates a “much more serious risk of reoffending[] sexually. Much higher.”
¶5 Finally, Dr. Merrick and Dr. McKee considered other risk factors, including that Bailey has a serious alcohol problem; performed poorly on supervision; got drunk and committed another assault on the same day he got out of an alcohol treatment program; continued to “hang around” children unsupervised; quit the sex offender treatment program twice because he did not think he needed it; and his minimalization and denial interfered with effective treatment. These factors, their clinical judgment and the information gleaned from the assessment tools led both to opine that Bailey was more likely than not to reoffend in the future.
¶6 A few months before trial, the court had appointed a third psychologist, Dr. Diane Lytton, as Bailey’s consulting expert. Dr. Lytton advised Bailey’s counsel shortly before trial that calling her as a witness would be ill-advised because the information she reviewed left her unable to counter the opinions of the State’s experts. The court denied Bailey’s motion for a continuance. No expert testified in Bailey’s favor. The jury found Bailey to be sexually violent and the court ordered his commitment.
¶7 Postcommitment, Dr. Lytton indicated in a letter to Bailey’s
postcommitment counsel that a revised Static-99, the “Static-99R,” had come out
around the time of Bailey’s trial. She
stated that new research showed that the original version overpredicted
recidivism among older sexual offenders.
Evaluated under the new norms, fifty-year-old Bailey’s score is
associated with a twenty-four percent risk of reoffending in ten years,
compared to thirty-eight percent. She
stated that since twenty-four percent is “obviously far less than ‘more likely
than not,’” this research altered her earlier opinion, there was “a likelihood”
that it also would alter the opinions of the State’s experts and, with the
revised data, she would have testified as a witness for Bailey. Bailey moved for a new trial on the basis of
new evidence or in the interest of justice, a copy of
Dr. Lytton’s letter attached. The trial court
denied the motion on briefs. It
concluded that, despite being new
empirical data, the Static-99R was not newly discovered evidence sufficient to
warrant a new trial because it was cumulative and not material. Bailey appeals.
¶8 A new trial will be granted on grounds of newly discovered
evidence only if the defendant clearly and convincingly establishes that: (1) the evidence was discovered after conviction;
(2) the defendant was not negligent in seeking to discover it; (3) the evidence
is material to an issue in the case; (4) the evidence is not merely cumulative
to the testimony introduced at trial; and (5) it is reasonably probable that,
with the evidence, a different result would be reached at a new trial. State v. McCallum, 208
¶9 It is true that Bailey’s score on the Static-99 indicated a thirty-eight percent risk of sexually reoffending within ten years and the revised norms indicate a twenty-four percent risk. Even thirty-eight percent does not establish “more likely than not.” Reasonably, then, the jury must have pinned its decision on evidence other than the Static-99. Both psychologists testified, for instance, that Bailey’s mental disorder and degree of psychopathy made him a high recidivism risk and about various factors that have thwarted effective treatment. Even as interpreted under the revised norms, Bailey’s score would not diminish his scores on the other psychometrics or mitigate the evidence of his failures in treatment and on supervision. We agree the Static-99R is not material.
¶10 We also agree it is cumulative. The Static-99 was but one of several tools relied upon to evaluate Bailey’s risk of reoffending. The Static-99R simply changes the weight a jury would give to one score in assessing that risk. The parties sparred in closing arguments over whether to rely solely on the assessment tools, which indicated Bailey’s risk to be between eight and thirty-eight percent. Defense counsel argued that the jury should embrace them, as the percentages were hardly “more likely than not.” The jury plainly heeded the prosecutor’s urging to consider the full array of evidence presented. We agree with the trial court that the revised tool is “hardly transformational” of the evidence presented. There is no reasonable probability that the Static-99R would lead a new jury to reject the proposition that Bailey is more likely than not to reoffend.
¶11 Bailey argues that the verdict would have been different if an
expert had testified in his favor. The
jury was not required to accept the testimonies of the State’s experts, even
though they were uncontradicted.
¶12 Bailey requests in the alternative that we exercise our
authority under Wis. Stat. § 752.35
to order a new trial in the interest of justice because the real controversy
was not fully tried. The real
controversy is not fully tried when the jury either erroneously was not given
the opportunity to hear important testimony bearing on an important issue of
the case or had before it improperly admitted evidence that clouded a crucial
issue in the case. State v. Hicks, 202
¶13 We disagree. The jury
had before it numerous facts aside from Bailey’s Static-99 score regarding his likelihood
to reoffend. The revised norms, and Dr.
Lytton’s testimony about them, would have altered only the weight to be given
to one piece of the evidence. The
Static-99R would not change Bailey’s other scores, his psychopathy, his
pedophilia, his poor performance while on supervision—including committing
other sexual assaults—or his having quit treatment twice. This is not one of the “exceptional cases” for
the exercise of our power of discretionary reversal.
By the Court.—Judgment and order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.