State v. Joseph A. Lombard
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2004 WI 95 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 00-3318 In re the Commitment of Joseph Lombard: State of Wisconsin, Petitioner-Respondent, v. Joseph A. Lombard, Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 163 Reported at: 266 Wis. 2d 887, 669 N.W.2d 157 (Ct. App. 2003-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 12, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Robert DeChambeau JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 1, 2004 ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins dissent. SYKES, J., did not participate. ATTORNEYS: For the respondent-appellant-petitioner there were briefs by David R. Karpe, Madison, and oral argument by David R. Karpe. For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. 2004 WI 95 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-3318 (L.C. No. 00 CI 1) STATE OF WISCONSIN : IN SUPREME COURT In re the Commitment of Joseph Lombard: State of Wisconsin, FILED Petitioner-Respondent, JUL 1, 2004 v. Cornelia G. Clark Clerk of Supreme Court Joseph A. Lombard, Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Affirmed. Petitioner Joseph A. Lombard (Lombard) seeks review of a court of appeals' decision, State v. Lombard, 2003 affirming a WI App circuit 163, court 266 Wis. 2d 887, decision that 669 rejected N.W.2d 157, Lombard's contention that his Fifth Amendment1 rights were violated. 1 The The Fifth Amendment to the United States Constitution states, in relevant part, "[no person] shall be compelled in any criminal case to be a witness against himself . . . ." Correspondingly, Article I, § 8(1) of the Wisconsin Constitution states, in relevant part, "[no person] may be compelled in any criminal case to be a witness against himself or herself." No. 00-3318 circuit court rejected Lombard's motion for a new trial, stating that the pre-petition explained to evaluator. ¶2 v. him interview prior to his process was interview sufficiently with the State Lombard appealed, and the court of appeals affirmed. We conclude that Lombard was not entitled to Miranda Arizona, 384 U.S. 436 (1966) warnings prior to his pre- petition evaluation with the State's psychologist in regard to whether a ch. 980 petition (1999-2000)2 Wisconsin Stat. § 980.05(1m) language "at the trial." should plainly be filed. contains the The plain language of the statute leads to the conclusion that the legislature intended that such constitutional rights would apply at Lombard's ch. 980 trial. Thus, Lombard did not have the right to Miranda warnings during his pre-petition interview with a State psychologist. Lombard was counsel's not entitled performance to was the not warnings,3 deficient, we Because conclude and, that therefore, Lombard's claim for ineffective assistance of counsel fails. 2 All references to Wisconsin Statutes are to the 1999-2000 edition. Wisconsin Stat. § 980.05(1m) provides, in relevant part: "At the trial to determine whether the person who is the subject of a petition under s. 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." 3 While Lombard appears to insist that all of the Miranda v. Arizona, 384 U.S. 436 (1966) rights are applicable to ch. 980 respondents, he chiefly focuses on the right to remain silent. 2 No. 00-3318 I ¶3 On March 4, 1981, Lombard was convicted of one count of first-degree sexual assault with concealed identity and five counts of assaults second-degree of eight sexual women in assault the between July 1978 and March 1980. arising Cumberland, out of Wisconsin his area Lombard was sentenced to a total of 40 years in prison for five sexual assaults and 20 years of probation for a sixth sexual assault. Lombard was imprisoned from 1980 until March 1992, at which time he was released on parole. However, Lombard's parole was revoked two and one-half years later, and he was returned to prison. ¶4 date. In late 1999, Lombard neared his mandatory release In order to determine whether a ch. 980 petition should be filed in Lombard's case, the State sent Anthony Jurek Ph.D., a psychologist from the Wisconsin Department of Corrections, to interview Lombard. Jurek interviewed Lombard from December 1-3, 1999, Correctional at Columbia serving his sentence. advised Lombard evaluation and, of Institution where Lombard was On the first day of the interview, Jurek the after procedures engaging in involved discourse in the with ensuing Lombard in order to ascertain his comprehension of the evaluation process, presented Lombard Participation. with a form entitled Chapter The form stated as follows: The purpose of this examination is to assess your appropriateness for commitment under Chapter 980 of the Wisconsin State Statutes concerning the commitment of sexually violent persons. You have the right not 3 980 No. 00-3318 to participate in the examination or to answer any of the questions posed to you, but this refusal to answer will be used as part of the evaluation. Nothing during the evaluation will be confidential and it may be repeated in testimony or written reports. A report will be written concerning your potential commitment based on whatever relevant information may be obtained from your records, psychological testing and clinical interview, whether or not you choose to participate in the process. By signing below, you hereby acknowledge that the above information has been fully explained to you.4 4 We note that, as indicated by the State at oral argument, the abovementioned form is no longer used during pre-petition interviews. Without objection, members of the court were provided with the Wisconsin Department of Corrections form presently being utilized. The applicable form states, in relevant part: Prior to conducting a psychological assessment and evaluation, including an interview, Dr. [insert name] advised me of the following: The purpose of the evaluation is to assess whether or not I meet the requirements for commitment under Chapter 980, the Sexually Violent Persons Law, which provides for potential lifelong commitment for treatment. I have the right to not participate in the examination and assessment. I may refuse to answer any questions posed to me in the form of direct interview or through the administration of psychological testing. Your decision regarding participation in the interview cannot be used against you. Nothing said during confidential and might written report. the evaluation would be repeated in testimony be or The examiner would be writing a report concerning potential commitment under WSS Chapter 980 based on whatever relevant information the examiner could obtain through review of any and all records pertaining to my sexual offense history, whether or 4 No. 00-3318 ¶5 Lombard signed and dated the form on December 1, 1999. ¶6 During the interview with Jurek, Lombard discussed the sexual assaults that he had committed, including his thoughts on them at the time of the interview. Lombard also talked about the different treatment programs he had participated in while imprisoned. ¶7 violent sadism. Jurek ultimately concluded that Lombard was a sexually person who fit the diagnostic criteria for sexual Jurek also concluded that Lombard had a personality disorder with antisocial features. Based on his assessment of Lombard, Jurek recommended that ch. 980 proceedings be commenced in Lombard's case. The State began ch. 980 proceedings and, at the probable cause hearing before the circuit court, the court found that there was probable cause to believe that Lombard was suffering from a mental disorder. The court also found that there was a substantial likelihood that he would engage in acts of sexual violence in the future. ¶8 The issue of whether Lombard should be committed as a sexually violent person was tried before a jury beginning on October 16, 2000. At the trial, three expert witnesses not I agree to participate in the evaluation process. This includes any and all Presentence Investigations completed as part of my criminal offense history. We agree with the dissent that the new form correctly explains an individual's decision regarding participation in a pre-petition evaluation interview. It clearly states that the decision regarding participation cannot be used against the individual. See dissent, ¶74. 5 No. testified for Lombard. the State. 00-3318 Jurek was the sole expert witness for Jurek was the only witness to diagnose Lombard as a sexual sadist and conclude that Lombard was substantially likely to reoffend. On October 20, 2000, the jury found Lombard to be a sexually violent person. As a result of the jury's finding, Lombard was committed to an institution. ¶9 Lombard filed a notice of motions and motions after verdict relating to the State's during Jurek's interview. use of Lombard's statements Lombard contended that his cross- examination of Jurek was improperly restricted. Lombard further asserted that he should have been allowed to cross-examine Jurek regarding the inconsistencies between the statements attributed to Lombard in Jurek's report and victim testimony regarding their interactions with Lombard during the assaults. also contended interviewed by that he Jurek did not during give the informed Lombard consent pre-petition to be evaluation. Lombard requested that the court set aside that jury's verdict and, in the interest of justice, order a new trial. After a hearing, the court denied these motions. ¶10 Lombard then appealed from the finding that he was a sexually violent person, from the order committing him, and from the denial of his post-verdict motions. At Lombard's request, the court of appeals remanded the matter to the circuit court for a determination of whether Lombard received ineffective assistance of counsel at trial. Lombard then filed a motion for a he new trial, alleging that had received ineffective assistance of counsel at trial, because his counsel had failed 6 No. 00-3318 to object to the admission of Lombard's statements to Jurek, and because his counsel had stipulated that no police reports or transcripts of victim statements would be allowed in the jury room during deliberations. Lombard also requested an evidentiary hearing. ¶11 The Dane County Circuit DeChambeau presiding, denied evidentiary hearing his and Court, Lombard's request for Judge request a new Robert for trial. A. an The circuit court concluded that Lombard's Fifth Amendment rights were not violated because he was presented with, and signed, an advisement form prior to the interview. The court noted that the evaluation process was explained to Lombard, and Lombard was told that he had a right not to participate in the evaluation if he so chose. that Jurek The court noted that Lombard was also informed would consider a refusal to participate when reviewing the evaluation. ¶12 sexually Lombard motions. Lombard appealed the judgment declaring him to be a violent also person appealed and two committing orders him denying under his ch. 980. post-judgment Lombard asserted that his Fifth Amendment rights were 7 No. 00-3318 violated because the State used, at trial, statements Lombard made to Jurek during the pre-petition psychological evaluation.5 ¶13 Fifth With respect to the issue involving Lombard's alleged Amendment violation, Court of Appeals Judges David G. Deininger, Charles P. Dykman, and Paul Lundsten concluded that Lombard was not entitled to a Miranda warning before being evaluated by a State psychologist, since any statements Lombard made about prosecution. his past crimes could not subject him to future The court of appeals relied on a portion of the State v. Zanelli (Zanelli II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998) opinion, which stated: The fact that such statements can be used in a ch. 980 . . . 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. Accordingly, the statements were admissible. Lombard, 266 Wis. 2d 887, ¶26 (citation omitted). ¶14 The court of appeals noted that its holding in this case may appear to conflict with State v. Zanelli (Zanelli I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997) and Zanelli II. The court explained: 5 Lombard asserted other errors on appeal to the court of appeals, including: (1) the circuit court failed to give the jury his requested instruction regarding "volitional control;" (2) the unconstitutionality of 1999 Wis. Act 9, which removed the court's authority to grant immediate supervised release; (3) the circuit court's instruction to the jury that sexually violent persons are eligible for supervised release; and (4) lack of sufficient evidence to establish grounds for his commitment. However, we do not discuss these issues further since they are not the subject of this review. 8 No. 00-3318 We acknowledge that our present conclusion and those in Zanelli I and II regarding a Wis. Stat. ch. 980 respondent's rights under the Fifth Amendment and Miranda may appear contradictory. It is clear that a "person who is the subject of [a ch. 980] petition" has a statutory right to "[r]emain silent," Wis. Stat. § 980.03(2)(b), but we have concluded that this right "plainly does not apply" to a pre-petition examination. Zanelli I, 212 Wis. 2d at 370. We have also concluded, however, that the State may not comment at a ch. 980 trial upon a respondent's "refus[al] to participate in [a] formal evaluation made prior to the filing of a [ch. 980] petition." Id. at 369. Lombard, 266 Wis. 2d 887, ¶28. ¶15 The regardless of court of whether appeals the ultimately respondent was concluded warned that, that his statements could be used by the State at his ch. 980 trial, the State could introduce statements a respondent made to a State psychologist during a pre-petition interview provided that such statements would not subject the respondent to future criminal prosecutions. Id. Since the court concluded that a Miranda warning was not required, it held that Lombard did not suffer any prejudice as a result of his counsel's failure to object to the psychologist's testimony and report. Id., ¶23, n. 4. the assistance court denied Lombard's ineffective of Thus, counsel claim. II ¶16 We now consider whether a person such as Lombard is entitled to receive Miranda warnings prior to being interviewed by a State evaluator in regard to whether a ch. 980 petition should be filed. We recognize that the crux of Lombard's claim rests on his assertion that he received ineffective assistance 9 No. of counsel. 00-3318 However, it is first necessary to determine whether Lombard was entitled to receive such warnings, before we may evaluate whether counsel's assistance was ineffective due to his failure to object at trial to the statements to the State evaluator. admission of Lombard's We will address the issue of whether Lombard received ineffective assistance of counsel in a subsequent section of this opinion. ¶17 In considering whether a ch. 980 respondent is entitled to receive Miranda warnings prior to a pre-petition interview with a state Wis. Stat. § 980.05(1m). of law, which Wis. 2d 516, we 525, we must analyze Statutory interpretation is a question review 544 evaluator, de novo. N.W.2d 406 State (1996). v. Williams, Nevertheless, 198 this court benefits from the analyses of the circuit court and the court of appeals. Landis v. Physicians Ins. Co., 2001 WI 86, ¶13, 245 Wis. 2d 1, 628 N.W.2d 893. ¶18 The purpose of statutory interpretation is to effect to the plain meaning of the words in the statute. give State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, __ Wis. 2d __, __N.W.2d __. "We assume that the expressed in the statutory language." ¶19 legislature's intent is Id., ¶44. When interpreting a statute, we first must examine its plain language. Id., ¶45. State v. Delaney, 2003 WI 9, ¶13, 259 Wis. 2d 77, 658 N.W.2d 416. If the statute's language is clear apply and unambiguous, we will that language to the present case using intrinsic sources such as scope, context, and purpose, if necessary. "(S)cope, 10 context, and purpose are No. perfectly relevant to a plain-meaning 00-3318 interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather history." than extrinsic sources, Kalal, __ Wis. 2d __, ¶47. such as legislative Extrinsic sources are not consulted unless the language of a statute is determined to be ambiguous. Id., ¶49. A statute is ambiguous when reasonable persons can interpret a statute in multiple ways. Williams, 198 Wis. 2d at 526. ¶20 Lombard asserts that, pursuant to Wis. Stat. § 980.05(1m), all constitutional rights available to criminal defendants are available to ch. 980 respondents. The only exception, Lombard contends, is where the legislature has made a specific provision that conflicts with the constitutional rights of criminal defendants. In that scenario, Lombard concedes that the dictates of ch. 980 would control the scope of a respondent's rights. ¶21 Lombard contends that the United States Supreme Court in Dickerson v. United States, 530 U.S. 428 (2000), stated that Miranda was a constitutional defendants in custody. that criminal defendants rule applicable to criminal Since these are constitutional rights possess, Lombard asserts that this court should conclude that ch. 980 respondents have these rights pursuant to Wis. Stat. § 980.05(1m). While other jurisdictions may not require suppression for Miranda violations under sex predator laws, Lombard points out that this is because those jurisdictions do not have the equivalent to § 980.05(1m), which 11 No. 00-3318 guarantees that respondents have the same rights as criminal defendants, unless specified by the legislature. ¶22 Lombard asserts that criminal defendants have a right to remain silent when interviewed by doctors on behalf of the State, and Zanelli I established that a ch. 980 respondent has a right to remain silent. II does not control in Moreover, Lombard states that Zanelli this case because Lombard, Zanelli, was in custody when he gave his statement. Zanelli Lombard II, asserts that there would unlike Thus, in have been no grounds for suppression under Miranda or Dickerson, even if it were a criminal matter. ¶23 Lombard Finally, Lombard asserts that Jurek's interaction with was incriminating interrogation, under Miranda. and Lombard's Lombard responses states that the were Fifth Amendment applies when a psychiatrist interviews an in-custody defendant; thus, a different rule should not apply simply because Lombard was a ch. 980 respondent who was interviewed by a state psychologist. Lombard contends that he was compelled to speak to Jurek, because Jurek told him that if he failed to do so it would be used against him during the evaluation process. This was Lombard worse than argues, failing because to Jurek's provide a Miranda statement was without statute warning, inherently coercive. ¶24 The State contends that, a stating otherwise, the Fifth Amendment does not apply in the context of civil commitments. The State posits that two questions must be answered to determine if the Fifth Amendment is applicable in 12 No. this case: criminal (1) or compelled? is civil the statement proceeding? offered and (2) in 00-3318 subsequent the was a testimony With respect to the first prong, the State asserts that, in Allen v. Illinois, 478 U.S. 364 (1986), the United States Supreme Court held that the Fifth Amendment did not apply to commitment proceedings,6 and statements admitted in a subsequent criminal proceeding are permissible as long as they are not compelled. With respect to the second prong, the State contends that, unless some type of compulsion is uncovered, a person subject to a state examination must affirmatively assert his or her Fifth Amendment rights. ¶25 not The State contends that Wis. Stat. § 980.05(1m) does require psychological that Miranda evaluations. warnings The be State given for asserts pre-petition that ch. 980 proceedings are civil in nature; thus, to claim that respondents have the same constitutional protections as those afforded to criminal defendants, pursuant to § 980.05(1m), would be to convert the commitment process into a criminal proceeding and frustrate the entire purpose of ch. 980. The State contends that this proposition was recognized in several Wisconsin cases, including State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), and in the United States Supreme Court's decision in 6 In Allen v. Illinois, 478 U.S. 364 (1986), the petitioner in that case was found to be a sexually dangerous person under the Illinois Sexually Dangerous Persons Act. Although the dissent cites to Allen for support, we note that the only support it gathers for its position is from the dissenters in Allen. See dissent, ¶71. 13 No. Allen. Moreover, the State § 980.05(1m) supports the asserts proposition that that the the 00-3318 text of constitutional rights afforded to respondents are available only at trial, as every subsection deals with some aspect of the commitment trial. ¶26 The State contends that Zanelli I is inapposite, as it involved a person's exercise of his right to silence, and did not involve statements made with or without warning. The State further contends that Zanelli II applied Miranda because the individual made statements in two settings, during a pre- sentence investigation and to investigating detectives, when he was a suspect in a criminal case. Since there is no ongoing criminal investigation here, the State contends that Zanelli II is inapplicable. ¶27 decides Finally, the State asserts that, even if this court that evaluations Miranda under warnings are required Wis. Stat. § 980.05(1m), in pre-petition they were not necessary here because, although Lombard was in custody, he was not interrogated by Jurek. because Jurek was required The to State note if contends Lombard that, simply declined to participate in the interview, it was not a sufficient penalty so that Lombard was compelled or coerced to speak to Jurek. ¶28 We conclude that Wis. Stat. § 980.05(1m) does not require that ch. 980 respondents be given Miranda warnings prior to pre-petition interviews with state evaluators. ¶29 We believe it is necessary to begin our analysis by discussing the Miranda decision in some detail. The Miranda decision was in response to what the majority characterized as 14 No. "the nature and setting interrogation . . . ." Miranda, of 384 [the] U.S. at 00-3318 in-custody 445. In its opinion, the United States Supreme Court cited numerous reports, cases, and even law enforcement manuals, which demonstrated that law enforcement tactics used on criminal suspects during custodial interrogation had, in certain instances, resulted in confessions from suspects psychological coercion. subjected to Id. at 445-50. physical and The Court noted that while physical tactics are employed less frequently today in the interrogation setting, the modern interrogation focuses on Id. at 448. psychologically coercing the suspect to confess. Thus, the Court sought, with its opinion, to alleviate some of the pressures associated with incommunicado interrogation and noted that such tactics were "at odds with one of our Nation's most cherished principles that the compelled to incriminate himself." ¶30 individual may not be Id. at 457-58. In Miranda, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming defendant unless safeguards effective incrimination." from it custodial demonstrates to secure Id. at 444. the interrogation the use privilege of of the procedural against self- The Court concluded that "there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant incriminate themselves." way Id. at 467. 15 from being compelled to No. ¶31 suspect The devised informed was Court of several these safeguards rights, which, should coercive element of custodial interrogation. 00-3318 when alleviate a the First, the Court concluded that every suspect should be advised that he or she has the right to remain silent. Id. at 467-68. Second, the suspect must be warned that anything he or she does say can and will be used against him or her in court. Id. at 469. Finally, the suspect must be informed that he or she has a right to counsel during interrogation and, if indigent, counsel will be appointed. ¶32 Id. at 471-73. After discussing the appropriate warning suspects should receive prior to interrogation, the Court then proceeded to discuss how a suspect could waive his or her rights under the Fifth Amendment. As an initial matter, the Court noted that if the suspect indicated that he or she wishes to remain silent either prior to or during questioning, such honored and the interrogation must cease. request must Id. at 473-74. be The Court stated that while mere silence after the suspect has been warned will not constitute a waiver, an express statement by the suspect that he or she is willing to make a statement and declines an attorney, followed closely by a statement, may be enough to show waiver. ¶33 United Thirty-four Miranda States was a Supreme Id. at 475. years Court constitutional after Miranda announced rule. was that In decided, its the decision Dickerson, the in Court concluded that Miranda announced a constitutional rule, which could not be superseded by an 16 act of Congress that made No. 00-3318 admission of incriminating statements at trial turn solely on whether those statements were made voluntarily. U.S. at 432. Dickerson, 530 The Court noted that while it has supervisory power over the federal courts, it does not have such power over the states. Id. at 438. The Court stated that it had routinely applied Miranda to state court cases, and pointed to the fact that the Miranda opinion itself stated that the Court granted certiorari in constitutional courts to that case, guidelines follow." Id. in for part, law at 439 "to give enforcement (emphasis concrete agencies and omitted)(citation omitted). ¶34 the Wisconsin courts have had numerous occasions to apply Miranda Fernier, 37 decision since Wis. 2d 365, its issuance. 375-78, 155 In N.W.2d 93 State v. (1967), La this court applied the Miranda decision to preclude the admission of a suspect's statements to police when an investigator did not give the suspect his Miranda warnings, and the suspect confessed to the crime. In State v. Armstrong, 223 Wis. 2d 331, 359, 588 N.W.2d 606 (1999), we concluded that the incarcerated suspect was subjected to interrogation "from the moment he became a potential suspect" when the police were questioning him in a prison interview room, concerning the crime of homicide. Because he was not given Miranda warnings until after he made his incriminating oral statements, we concluded that the statements made prior to such warnings should be suppressed. Id. But we held that the circuit court properly admitted the suspect's written statements because 17 they were voluntary and No. 00-3318 given after he was properly advised of his Miranda rights.7 at 365. Id. More recently, in State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881, we held that a defendant was entitled to have the physical evidence against him suppressed at trial, because the officer who came to the defendant's home asked the defendant what clothes he had been wearing on the night of defendant the of crime his in question Miranda without rights. The first officer advising the intentionally omitted Miranda warnings, fearing if he gave them, he would not get the desired evidence. had numerous decision in occasions the many Id., ¶73. to interpret cases between Certainly, we also have and the apply the LaFernier Miranda and Knapp cases. ¶35 While the discourses on the Miranda decision and its implications are voluminous, we provide the brief abovementioned history simply to emphasize our recognition of the importance of the Miranda decision and its progeny in guaranteeing that suspects' Fifth Amendment and Article I, § 8 rights will not be rendered ineffectual. 7 At first blush, it may be tempting to liken the circumstances in State v. Armstrong, 223 Wis. 2d 331, 359, 588 N.W.2d 606 (1999), to those in the present case and conclude that Lombard was entitled to receive Miranda warnings. Unlike the suspect in Armstrong, however, Lombard was not a suspect in a criminal investigation. None of the statements Lombard made could subject him to a future criminal prosecution. Lombard had already been convicted and sentenced for the crimes discussed during the evaluation. The examiner's goal was to evaluate Lombard for a civil commitment proceeding, not to determine if he should be charged with a crime and subjected to a criminal prosecution. 18 No. ¶36 receive 00-3318 In this case, Lombard contends that he was entitled to Miranda warnings with the State evaluator. prior to his pre-petition interview Although Lombard locates this right as flowing from Wis. Stat. § 980.05(1m), we conclude that the statute does not support such an interpretation. conclude that Lombard's attempt to find Moreover, we support for his arguments in Wisconsin case law misses its mark. ¶37 The plain language of Wis. Stat. § 980.05(1m) contains the words "at the trial" at the beginning of the subsection. We agree with the State that, although those words did not begin the sentence referring to constitutional rights, a reasonable interpretation of the plain language of the statute leads to the conclusion that the legislature intended that such constitutional rights would apply at respondent's trial. context also supports that conclusion. question during the The Here, Lombard gave the statements in pre-petition phase of the process. Certainly, there is nothing within § 980.05(1m) to indicate that such constitutional protections must be afforded to potential respondents during the pre-petition phase, well before trial. ¶38 State This interpretation is bolstered by our decision in ex rel. Seibert v. Macht, 2001 WI 67, ¶12, 244 Wis. 2d 378, 627 N.W.2d 881, as revised in State ex rel. Seibert v. Macht, 2002 WI 12, ¶2, 249 Wis. 2d 702, 639 N.W.2d 707. In Macht, we concluded that "[a]n alleged sexually violent person, subject to defendant. commitment under Chapter 980, is not a criminal However, such a person has the same constitutional 19 No. rights as a criminal defendant at Wis. 2d 378, ¶12 (emphasis added). trial." 00-3318 Macht, 244 See also State v. Burris, 2004 WI 91, ¶22, __Wis. 2d __, __ N.W.2d __. ¶39 Moreover, we agree with the court of appeals' harmonization of several applicable cases with the facts of this case. In Zanelli I, the defendant appealed from an order that committed him as a sexually violent person. performed a pre-petition evaluation on A State evaluator the respondent based solely on his medical and corrections records, as the respondent chose to exercise Wis. 2d at 364. his right to silence. Zanelli I, 212 At the respondent's trial, both the prosecutor and the state evaluator commented on the respondent's choice to remain silent during the evaluation. Id. at 369. The court of appeals concluded that the state improperly commented on the respondent's choice to remain silent. stated that the incrimination Fifth extends Amendment to Id. at 372. guarantee pre-arrest The court against self- and, since silence Wis. Stat. § 980.05(1m) provides that ch. 980 respondents share the same constitutional rights as criminal defendants, Zanelli possessed a constitutional right to remain silent. Id. at 371- 72. ¶40 While we recognize that Zanelli I stands for the proposition that a person subject to a pre-petition evaluation has the right to Wis. Stat. § 980.05(1m), Zanelli required I supports prior to his a remain we silent pursuant think that Lombard's position that Miranda pre-petition 20 interview is to claim that warnings are too great a No. stretch. 00-3318 We agree with the court of appeals' conclusion: "It does not necessarily follow, however, that a person who is being evaluated for the potential filing of a ch. 980 petition is entitled to a Miranda warning before being interviewed." Lombard, 266 Wis. 2d 887, ¶26. ¶41 Moreover, we agree treatment of Zanelli II. with the court Id., ¶¶26-28. of appeals' In Zanelli II, the respondent contended that his statements to probation officers and a police investigator were "compelled by the threat of loss of liberty" and should not have been admitted at the trial. Zanelli II, 223 Wis. 2d at 567. The court concluded that the statements to his probation officers were properly admitted, as the statements already criminal been made were convicted; prosecutions. regarding thus, Id. he at crimes was not 568. for which subject With to respect he had future to the statements made to the police investigator, the court concluded that he was not entitled to a Miranda warning because he could leave the police station whenever he desired and was not in custody for Miranda purposes. ¶42 We conclude that Id. at 571. the reasoning in Zanelli II, concerning crimes for which Zanelli had already been convicted, is directly applicable to this case. 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 21 No. 00-3318 examiner's interview was to evaluate Lombard for the purpose of a potential 'civil commitment proceeding, not a criminal proceeding,' and the examiner was not required to comply with Miranda's dictates." Lombard, 266 Wis. 2d 887, ¶27 (citation omitted). ¶43 In Carpenter, we rejected the assertion that primary purpose of ch. 980 was criminal punishment. 197 Wis. 2d at 270. Supreme Court's legislature's applicable proceedings decision in 'to criminal into Carpenter, In doing so, we drew from the United States decision in the provide trials criminal We Allen. stated some cannot of the itself prosecutions.'" that "the safeguards turn these Carpenter, Wis. 2d at 270 (quoting Allen, 478 U.S. at 372.). 197 We continue to emphasize that since ch. 980 proceedings are civil in nature, Lombard was not in danger of being subjected to another criminal prosecution. ¶44 neither It bears emphasis constitutionally nor that, even statutorily though entitled Lombard to was receive Miranda warnings, the State evaluator went to great lengths to ensure that evaluation Lombard process. was In informed fact, Jurek about stated the that pre-petition nearly the entire first day of the three-day evaluation was spent educating Lombard about the ch. 980 process, including the pre-petition evaluation that Jurek would be conducting. Jurek testified about how he acclimates a person to the pre-petition evaluation process: 22 No. 00-3318 There is an initial introduction where I tell the person hello, here is who I am, here is what I'm here to do, and enter into a discussion with them asking them what do you know about Chapter 980, what have you heard, what is your understanding of the process, and after that kind of discussion that they know what this is all about and what my role is and what I'm going to be doing, looking at the records, giving them an MMPI8 and then having an interview with them. The next step is to introduce the idea that this is voluntary, that this is something they can do or they can choose not to do. I emphasize they are able to participate in the entire process, that they can decide not to participate at any point, they can change their mind, that if they don t want to do the MMPI, in particular, they can refuse to do that portion. If there are any questions that are asked that they don t want to answer, they can refuse to answer specific questions. And then the third thing that happens is the form is introduced and then I literally read what is in the form. ¶45 Jurek further testified that Lombard indicated that he "was willing to participate and was willing to share whatever information he could." was not entitled to Thus, we feel that even though Lombard a Miranda warning, the State evaluator attempted to create an environment where Lombard understood that it was entirely his choice to decide if he wanted to participate 8 The MMPI, or Minnesota Multiphasic Personality Inventory, is an objective psychological test designed to reveal any psychopathologies or personality disorders that a subject may possess. The most recent version of the MMPI was introduced in 1989 and is referred to as the MMPI-2. 23 No. in the interview.9 Under such circumstances, there 00-3318 was no coercion. III ¶46 We ineffective next address assistance of Lombard's counsel claim at that trial. he received Ineffective assistance of counsel claims present a mixed question of fact and law. State v. Trawitzki, 2001 WI 77, ¶19, 244 Wis. 2d 523, 628 N.W.2d 801 (citing State v. Johnson, 153 Wis. 2d 121, 12728, 449 N.W.2d 845 (1990)). The circuit court's findings of fact are upheld unless clearly erroneous. Id. The issue of whether counsel's performance was ineffective is a question of law that we review de novo. ¶47 Id. Lombard contends that because his counsel failed to challenge the use of Lombard's statements at trial until after the jury verdict, his counsel's performance fell below the range of competence. case, this performance Lombard asserts that, had this been a criminal court was would easily ineffective. have concluded Lombard claims that that counsel's without Jurek's testimony that Lombard made certain statements to him at the interview, and without Jurek's use of Lombard's statements to reach his conclusions, there was insufficient evidence to prove that Lombard was a sexually violent person. 9 Thus, had the Although Lombard claims that he felt compelled to speak because his failure to do so could be used against him, Jurek periodically reminded Lombard that it was his decision whether he wanted to participate in the evaluation. Lombard explicitly stated that he was willing to continue the evaluation and also continued to respond to Jurek's questions. 24 No. 00-3318 statements not been admitted, Lombard contends that the outcome certainly would have been different. ¶48 The State asserts that Lombard cannot establish that he received ineffective assistance of counsel. Since the State contends that Miranda warnings are either inapplicable or not required in this scenario, it argues that Lombard's counsel was not deficient for failing to Lombard's statements at trial. object to the admission of The State further contends that Lombard cannot establish that he was prejudiced by counsel's failure to object because, even without a diagnosis of sexual sadism, a diagnosis of paraphilia not otherwise specified is enough to support a mental disorder that requires commitment under ch. 980. The State asserts that the jury could also look at the fact that Lombard committed eight sexual assaults in 20 months. Moreover, the State contends that the evidence would have likely come before the jury even if Lombard's counsel had objected to its admission, because the State could use such evidence to impeach his testimony that the victim's suffering did not sexually excite him. More specifically, Lombard told Jurek during his evaluation that, during the last sexual assault he committed before going to prison, he threatened the victim with a knife, struck her numerous times, and became enraged when she passed out during the assault. ¶49 In order to demonstrate ineffective counsel, two prongs must be satisfied. 25 of First, a defendant must show that counsel's performance was deficient. Washington, 466 U.S. 668, 687 (1984). assistance Strickland v. The errors contemplated No. 00-3318 under this standard must be so egregious that the attorney was not functioning as the defendant's counsel as guaranteed by the Sixth Amendment. Johnson, 153 Wis. 2d at 127. In evaluating ineffective assistance of counsel claims, the burden is on the defendant court to gives counsel. demonstrate considerable such deficient deference to performance, the Strickland, 466 U.S. at 688-89. decisions and the made by Second, the defendant must demonstrate that such deficient performance prejudiced his or her defense. Id. at 692. In order to satisfy this prong, counsel's errors must be so serious that, as a result of such errors, the defendant was deprived of a fair, reliable trial. Johnson, 153 Wis. 2d at 127. More specifically, the defendant must show that, but for counsel's errors, the outcome of the trial would have been different. ¶50 Strickland, 466 U.S. at 694. Because we earlier concluded that persons subject to ch. 980 pre-petition evaluations do not have a right to receive Miranda warnings, we must now conclude that Lombard's counsel did not render a deficient performance by failing to object to the admission of Lombard's pre-petition evaluation statements at trial. The United States Supreme Court has stated that when an ineffective assistance of counsel claim may be resolved on one prong, courts need not discuss, in every case, both counsel's performance and prejudice to the defendant. Id. at 697. However, we also agree with the court of appeals' conclusion that Lombard suffered no prejudice as a result of his counsel's failure to object to the psychologist's testimony. Because Lombard was not entitled to such Miranda warnings, he could not 26 No. 00-3318 have been prejudiced by his counsel's failure to object to the admission of his testimony on grounds that his Miranda rights had been violated.10 IV ¶51 In summary, we conclude that Lombard was not entitled to Miranda warnings prior to his pre-petition evaluation with the State's psychologist in regard to whether a ch. 980 petition should be filed. Wisconsin Stat. § 980.05(1m) plainly contains the language "at the trial." The plain language of the statute leads to the conclusion that the legislature intended that such constitutional rights would apply at Lombard's ch. 980 trial. Thus, since the constitutional rights referred to are those within the trial context, Lombard did not have the right to Miranda warnings during State psychologist. warnings, we deficient, and his pre-petition interview with the Because Lombard was not entitled to the conclude that Lombard's counsel's claim for performance ineffective was assistance not of counsel fails. By the Court. The decision of the court of appeals is affirmed. ¶52 DIANE S. SYKES, J., did not participate. 10 We strongly disagree with the dissent that counsel's performance was ineffective. See dissent, ¶78. We also strongly disagree with the dissent, for the reasons noted, that counsel's performance was prejudicial per se. Id. 27 No. ¶53 SHIRLEY S. ABRAHAMSON, C.J. 00-3318.ssa (dissenting). I conclude that ch. 980 individuals are entitled to be advised at the pre-petition examination (1) that they have the right to remain silent, and (2) that their silence will not be used against then at any stage of the ch. 980 commitment proceeding. ¶54 Lombard was advised that he had the right to remain silent (that is, that he had the right not to participate in the examination). He was not advised that his silence could not be used him. against I psychologist should not therefore have been conclude allowed that to the testify state to the conclusions he reached based on Lombard's statements. Even more startling that the refusal to and psychologist prejudicial incorrectly in the advised present Lombard case that is his answer would be used as part of the evaluation and could be repeated in testimony at trial. ¶55 I conclude that Lombard should ineffective assistance of counsel claim. prevail on his Lombard should get a new trial on the issue of his ch. 980 commitment. ¶56 The parties and the majority opinion frame the issue as involving Miranda11 rights because at issue in the present case is the right of an individual in custody to remain silent and the right of the individual to be advised that the State may not use his proceedings. 11 or her silence or statements in subsequent These rights are derived from the Miranda case Miranda v. Arizona, 384 U.S. 436 (1966). 1 No. and other cases. 00-3318.ssa The present case does not involve any other "Miranda-like" right. ¶57 ch. 980 This is a ch. 980 commitment case. individual constitutional has rights). statutory The The prospective rights statute in (as issue, well Wis. as Stat. § 980.05(1m), provides that "all constitutional rights available to a defendant in a criminal proceeding are available to the person." ¶58 As the majority recognizes, this case raises the following three issues: A. Does a right prospective to ch. remain 980 silent individual in a have the pre-petition examination? B. May a prospective ch. 980 individual's silence during a pre-petition examination be used against him or her at trial? and C. Is the State required to advise a prospective ch. 980 individual at the beginning of the pre-petition examination about the right to remain silent and that silence cannot be used against the individual? ¶59 I decide each of these issues as follows: ¶60 A. I agree with the majority opinion that a prospective ch. 980 individual has a right to remain silent at the pre-petition § 980.05(1m).12 examination to Zanelli I established this right.13 opinion adheres to Zanelli I. 12 pursuant Majority op., ¶39. 2 Wis. Stat. The majority No. ¶61 B. I agree with the majority 00-3318.ssa opinion that a prospective ch. 980 individual's silence during a pre-petition examination may not be used against the individual during trial.14 ¶62 This case does not involve silence. Lombard spoke. The State used Lombard's speech against him at trial. ¶63 C. I disagree with the majority opinion that a prospective ch. 980 individual need not be advised that he or she has a right to remain silent and that his or her silence will not be used against him or her at trial.15 I discuss this aspect of the case below. 13 State v. Zanelli, 212 Wis. 2d 358, 372, 569 N.W.2d 301 (Ct. App. 1997) (Zanelli I). Zanelli I protects the respondent's right to silence at the ch. 980 trial, and bars testimony about or reference to the individual's silence during or before the trial. At the ch. 980 trial in Zanelli I both the prosecutor and the psychologist commented on Zanelli's silence during a pre-petition interview.13 Zanelli I, 212 Wis. 2d at 369. Zanelli argued that by commenting on his silence the State violated his constitutional The right to remain silent. Zanelli I, 212 Wis. 2d at 370. court of appeals concluded that when a witness and the prosecutor commented on Zanelli's silence, they violated the rule of State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982), made applicable to Zanelli by virtue of § 980.05(1m). Zanelli I, 212 Wis. 2d at 372. 14 Majority op., ¶39; Zanelli I, 212 Wis. 2d at 371-72. 15 I confess that I find it difficult to follow the reasoning of the majority opinion, much of which seems more applicable to the first two issues rather than this third issue. The majority opinion seems to rely on the "constitutional rights" granted by Wis. Stat. § 980.05(1m) as being limited to the trial. Section 980.05(1m) provides in full as follows: "At the trial to determine whether the person who is the subject of a petition under § 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional 3 No. 00-3318.ssa I ¶64 As I see it, implicit in the legislature's grant of the right to remain silent (a constitutional right of a criminal rights available to a defendant in a criminal proceeding are available to the person." The first sentence of the provision refers to trial and evidence. Evidence is a trial matter. The second sentence does not refer to trial. It addresses all constitutional rights in a "criminal proceeding." Constitutional rights arise before, during, and after trial. Thus the words "criminal proceeding" denote more than rights at trial. To read the words "at the trial" from the first sentence into the second sentence conflicts with the words "criminal proceeding" in the second sentence. Reading Wis. Stat. § 980.05(1m) as limited to trials appears to make it redundant. Wisconsin Stat. § 980.03 (2)(b) states the rights of a prospective ch. 980 individual, including the right to remain silent, at all hearings. Therefore § 980.05(1m) must provide more than simply a right to silence at trial. The majority opinion relies on State ex rel. Seibert v. Macht, 2001 WI 67, ¶12, 244 Wis. 2d 378, 627 N.W.2d 881, as revised by 2002 WI 12, ¶2, 249 Wis. 2d 702, 639 N.W.2d 707, to support its interpretation of Wis. Stat. § 980.05(1m). In a motion for reconsideration in that case, the State asked the court to amend its decision because "the last sentence in § 980.05(1m) may, but need not, be interpreted as applicable only to trial." The State requested the court to refrain from defining the scope of § 980.05(1m) without discussing all the possible interpretations of the section and explaining why one interpretation is preferred. The court in Macht did not heed the state's warning and did not explain why it added the words "at trial." The case at bar is the first case in which it has the opportunity to examine the statute closely and it does not. In other cases this court has treated Wis. Stat. § 980.05(1m) as applying throughout the ch. 980 proceeding. See State v. Sorenson, 2002 WI 78, ¶19, 254 Wis. 2d 54, 646 N.W.2d 354; State v. Thiel, 2001 WI App 32, ¶15, 241 Wis. 2d 465, 626 N.W.2d 787. 4 No. 00-3318.ssa defendant) is the individual's right to be advised of the right to remain silent. If an individual does not know of the right, the individual's right to pre-petition silence is meaningless. "[I]f a person in custody is to be subjected to questioning, 'he must first be informed in clear and unequivocal terms that he has the right to remain silent,' so the ignorant may learn of this right and so that the pressures of the interrogation atmosphere will be overcome for those previously aware of the right."16 ¶65 The State "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation . . . unless it demonstrates the use of procedural safeguards effective incrimination."17 person of opportunity his to to Unless or her exercise secure the procedural right are against safeguards to of it privilege silence in and place, self- inform the a continued "no statement obtained . . . can truly be the product of [the person's] free choice."18 In sum, "the privilege [against self-incrimination] is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.'"19 16 2 Wayne R. LaFave et al., Criminal Procedure § 6.5(b), at 509 (2d ed. 1999) (quoting Miranda v. Arizona, 384 U.S. 436 (1966)). 17 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 18 Miranda, 384 U.S. at 458. 19 Miranda, 384 U.S. at 460 (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)). See also Fencl, 109 Wis. 2d at 236. 5 No. ¶66 00-3318.ssa Fundamental fairness and protection of the privilege against self-incrimination require a pre-examination warning of the right to remain silent. in custody.20 The The potential ch. 980 individual is interview is conducted in psychologist acting on behalf of the state. prison by a The interview is mandatory. The prisoner's freedom, his liberty interest, is on the line. Although a ch. 980 individual's potentially-for-life commitment is not, according to the legislature and this court, punishment for past criminal sexual conduct, but rather is treatment, the individual will feel compelled to speak unless advised that his silence will not be used against him. ¶67 silent Without and individual, a warning that this the that silence individual's the cannot free individual be used choice compulsion is inherent in the circumstances. about the right to remain silent the is can remain against the eviscerated; Without advice prospective ch. 980 individual cannot make a free and deliberate choice whether to exercise his statutory (a criminal defendant's constitutional) right to remain silent. ¶68 Relinquishment of a statutory right to remain silent (which is, according to the statute, comparable to a criminal accused's relinquishment of the constitutional right to remain silent) should be the product of free choice rather than the result of intimidation, coercion, or deception. A valid waiver of a right to remain silent must be made with the awareness of 20 See State v. Armstrong, 223 Wis. 2d 331, 355, 588 N.W.2d 606 (1999) (persons incarcerated are per se in custody). 6 No. both the decision privilege right to being abandon of abandoned and right.21 that the This self-incrimination, 00-3318.ssa consequences rule regardless of the safeguards the of whether the individual will incriminate himself.22 ¶69 This interpretation of Wis. Stat. § 980.05(1m) is supported by Wis. Stat. § 51.20(9)(a)4., which specifies that prior to examination for civil commitment the individual shall be informed that his or statements can be used as a basis for commitment and that he or she has the right to remain silent. The issuance of such a warning establishes, by statute, a presumption that the individual understands that he or she need not speak to the examiner. ¶70 This interpretation of Wis. Stat. § 980.05(1m) is further supported by Allen v. Illinois, 478 U.S. 364 (1986). In Allen the court held that admissions obtained in an Illinois sexually-dangerous properly received. proceeding without Miranda warnings were The court's conclusion was grounded on the civil label (although the label is not determinative) and the civil attributes of the statute and the fact that "[i]n short, the State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in confinement."23 Release "after the briefest of time in confinement" are not words that can be used to describe ch. 980 21 See Miranda, 384 U.S. at 460. 22 Id. at 444. 23 Allen v. Illinois, 478 U.S. 364, 370 (1986). 7 No. or the practice thereunder. 00-3318.ssa Wisconsin's ch. 980 committees have waited years before they were released on supervised release even though a court declared them eligible for such release. Thus one of the major grounds underlying the Allen majority is missing in the present case, and therefore the majority opinion in Allen does not, in my opinion, support the majority opinion in the present case. ¶71 I conclude, as did the four dissenters in Allen, that the criminal law "casts so long a shadow on a putatively civil proceeding . . . that the procedure must be deemed a 'criminal case' within the meaning of the Amendment"24 Fifth Miranda warnings about silence must be given. heavily on the criminal justice system: triggered by a criminal and the Chapter 980 relies The proceedings are conviction; the proceedings are prosecuted by the state; the burden of proof is that applicable to the criminal law; the constitutional rights of a criminal defendant apply; the institutionalization Justice Stevens consequences for in his an of indefinite dissent the proceedings time, wrote: possibly "In my are life. opinion, permitting a State to create a shadow criminal law without the fundamental protection of the Fifth Amendment conflicts with the respect for characterized, liberty and and that individual continues to dignity that has long characterize, our free society."25 24 Id. at 376 (Stevens, J., dissenting). 25 Id. at 384 (Stevens, J., dissenting). 8 No. 00-3318.ssa II ¶72 Even if a ch. 980 individual does not have a right to be warned that he or she has a right to remain silent and that silence cannot be used against him or her at any stage of the ch. 980 proceeding, as the majority opinion holds, an incorrect and misleading warning is unacceptable. And that's what the state happened in this case. ¶73 The majority opinion emphasizes that psychologist "went to great lengths to ensure that Lombard was informed about the pre-petition evaluation process,"26 and that "Lombard understood that it was entirely his choice to decide if he wanted to participate . . . ."27 Yet the majority opinion ignores the fact that the psychologist misstated the law about the use to which Lombard's silence may be put and thus misled Lombard. ¶74 be used The psychologist advised Lombard that his silence will as erroneous. part of his evaluation. This information was The new form the State supplied the court correctly explains that the individual's decision regarding participation in the interview "cannot be used against [the individual]."28 ¶75 The psychologist also advised Lombard that "nothing during the evaluation will be confidential and may be repeated 26 Majority op., ¶44. 27 Id., ¶45. 28 Id., ¶4 n.4. 9 No. in testimony advised or response."29 written Lombard that even Lombard's evaluation would not be confidential. erroneous. explains The 00-3318.ssa psychologist silence thus during the This information too was The new form the State supplied the court correctly that "nothing said during the evaluation would be advise a confidential."30 ¶76 It is one thing for the State not to prospective ch. 980 individual about his right to remain silent and about the use to which the silence may (or may not) be put. It is another thing for the State to give the individual erroneous advice and then use the information the State obtains through this erroneous advice against the individual. ¶77 This case can be boiled down to these important facts: Lombard was not advised of his statutory right to remain silent. In fact, Lombard received erroneous advice, advice contrary to the law of Wisconsin: used against him. He was advised that his silence would be The State thus misled Lombard into speaking. The state's misleading Lombard was, in my opinion, prejudicial error. ¶78 I conclude that counsel should have, at a minimum, objected to the psychologist's Lombard was incorrectly silent, that this testimony advised incorrect about advice was on his the ground right to misleading, that remain and that Lombard's agreement to participate in the examination based on 29 The full written form Lombard signed, including statements, appears in the majority opinion, ¶4. 30 Majority op., ¶4 n.4 (emphasis added). 10 these No. 00-3318.ssa this erroneous advice was invalid as a matter of law. Trial counsel's failure to object to the psychologist's testimony was, I conclude, ineffective assistance of counsel and prejudicial per se. ¶79 As a result of the majority opinion, a state agent (the psychologist) is individual examination to believe can be individual to speak. ¶80 I am free to that used mislead a his silence against him prospective at and the ch. 980 pre-petition thus induce Justice ANN the I dissent. authorized to state BRADLEY joins this opinion. 11 that WALSH No. 1 00-3318.ssa
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