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In re Commitment of Franklin4/1/2004
he established propositions in the case.
. The State responds that none of the evidence that was admitted in this case was of such a hideous or horrible nature that the jury would have been provoked to punish the defendant for that conduct. The State misses the point. The probation and parole agent testified about the defendant's juvenile offenses, his adult criminal behavior, and his 126 incidences of misconduct while incarcerated. That no one of these offenses was, in itself, hideous or horrible is not significant. A piece of evidence need not be hideous or horrible to fail the unfair prejudice test.
. The concern is that testimony about the defendant's repeated repulsive conduct has a cumulative effect. This evidence creates the danger that a jury might be provoked to conclude that the defendant is a bad individual and a repeat criminal who should be institutionalized. This evidence of misconduct is precisely the kind of evidence that can create unfair prejudice because the jury's task is to determine whether it was substantially probable that the defendant would engage in sexual misconduct, not whether he would commit a crime if released into the community. The evidence distracts the jury from its task.
. The State's further argument that the defendant is essentially estopped from arguing unfair prejudice because defense counsel urged the jury to look at the defendant's "whole picture" is not compelling. After defense counsel objected, was overruled, and lodged a continuing objection to the introduction of the probation and parole agent's testimony, what further option did defense counsel have? The fact that defense counsel surmised that his objection might be overruled and developed a legal defense in light of that expectation is good lawyering.
. I cannot agree with the majority opinion that the circuit court properly exercised its discretion in this case.
III.
. Despite my conclusion that the defendant's non-sexual prior misconduct was not probative and was unfairly prejudicial and that the circuit court erroneously exercised its discretion in admitting the evidence, I nevertheless agree with the majority opinion's conclusion that the commitment need not be reversed. I agree with the State that the defendant's juvenile record, institutional misconduct record, and adult non-sexual criminal record "pale in comparison to the unchallenged evidence of his sexual offense history." Furthermore, the effect of the evidence of misconduct was mitigated by the testimony of the expert witnesses and the restraint of the State in its closing arguments. I conclude that the circuit court's errors were harmless and the commitment should stand.
. The test for harmless error is that an error is not harmless when it appears beyond a reasonable doubt that the error complained of "contributed to the verdict obtained." The harmless error test is not a test for the sufficiency of evidence; it does not ask whether there is evidence in the record apart from the erroneously admitted evidence that could support a conviction.
. The question in harmless error analysis is whether the admission of the defendant's non-sexual misconduct contributed to the jury verdict. The impact of the erroneously admitted evidence cannot be assessed either by looking at the erroneously admitted evidence in isolation or by looking at the evidence unaffected by the error.
. The court has posited several guidelines for assessing whether an error was harmless, including but not limited to the nature of the error, the frequency of the error, the nature of the state's case, the nature of the defense, the importance of the erroneously admi
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