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In re Commitment of Franklin4/1/2004
tted or excluded evidence to the prosecution's or defense's case, the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence, whether the erroneously admitted evidence duplicates the untainted evidence, and the overall strength of the prosecution's case.
. The error in the present case was the circuit court's admission of evidence of the defendant's prior non-sexual misconduct. Although the defendant's prior non-sexual misconduct was plentiful, it played a relatively insignificant role in the case.
. At trial, the jury heard testimony from four witnesses: the parole and probation agent who introduced the evidence of the defendant's prior non-sexual misconduct; an employee from the Department of Corrections who testified that the defendant was within 90 days of his release at the time the chapter 980 petition was filed; Dr. Doren, the State's expert witness; and Dr. Lodl, the defendant's expert witness.
. The probation and parole officer testified first, consuming approximately 50 pages of the transcript, about one-half of which related to the defendant's prior non-sexual misconduct. The agent's testimony was followed by the very brief testimony of the Department of Corrections employee . The remaining 200 pages of testimony were evenly divided between Drs. Doren and Lodl.
. In his testimony, Dr. Doren did not rely on the defendant's prior non-sexual misconduct. Dr. Doren's testimony dealt with the defendant's prior sexual misconduct and the fact that all of the defendant's most recent crimes were sexual in nature. Dr. Doren testified that it was his opinion that the defendant had the mental disorder paraphilia not-otherwise-specified and that it was substantially probable that the defendant would engage in future sexual violence.
. Dr. Lodl's testimony primarily sought to refute Dr. Doren's diagnosis of paraphilia. According to Dr. Lodl, the defendant's prior history suggested schizophrenia. Although Dr. Lodl referred generally to the defendant's background, he did not identify specific instances of the defendant's prior misconduct. Dr. Lodl asserted that the defendant's schizophrenia is not a disorder that predisposes an individual to future sexually violent behavior.
. Thus, this case was largely a battle of the experts. The State argues that there was no dispute between these experts that the defendant suffered from a mental disorder. The only dispute, according to the State, was whether the defendant's mental disorder made it substantially probable that he would engage in acts of sexual violence.
. In closing argument, the State focused exclusively on the competing testimony of the two expert witnesses and did not mention the defendant's prior non-sexual misconduct. The State focused on the three violent sexual acts that the defendant concedes are admissible and sought to discredit Dr. Lodl's testimony.
. Defense counsel in closing argument explained that in the defendant's long history of treatment, he had repeatedly been diagnosed with schizophrenia and that the schizophrenia involved hearing voices that had a sexual content. Defense counsel conceded that the defendant had had some other criminal convictions and criminal problems going back to his adolescence but argued that those related to the onset of the defendant's schizophrenia. Defense counsel did not discuss the defendant's prior non-sexual misconduct; he argued that the defendant was confounded by the disease of schizophrenia and that it was not substantially probable that he would commit acts of sexual violence in the future.
. Between the time that the probation and paro
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