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COA rejects hearsay arguments, affirms recommitment under 2nd standard of dangerousness

Rock Count v. H.V., 2022AP1585-FT, 1/20/23, District 4; (1-judge opinion, ineligible for publication); case activity

This is an appeal from a ch. 51 recommitment under the 2nd standard– dangerousness to others. H.V.’s main argument was that the circuit court erroneously relied on hearsay to find that he is dangerous when not committed. The court of appeals disagreed and further found the county’s evidence sufficient to support the commitment.

At H.V.’s recommitment hearing, the county presented just two witnesses, both doctors. They diagnosed him with schizophrenia and agreed that if treatment were withdrawn he would stop his medication and become delusional and paranoid. One of the doctors further said that the paranoid thinking that led to H.V.’s felony charge for assault in 2016 would recur. “Objection, hearsay!”  “Overruled,” said the circuit court.

Experts may form opinions based on hearsay evidence, however the underlying evidence remains inadmissible under S.Y. v. Eau Claire County, 156 Wis. 2d 317, 457 N.W. 326 (Ct. App. 1990) and § 908.01(3).

The court of appeals held that the circuit court appropriately relied on H.V.’s felony conviction for two reasons, the first being § 908.03(22).

This provision provides a hearsay exception for “[e]vidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a felony as defined in [WIS. STAT. §§] 939.60 and 939.62(3)(b), to prove any fact essential to sustain the judgment ….” Sec. 908.03(22). Opinion, ¶18.

Second, the circuit court could and did take judicial notice of the following facts concerning that conviction:

(1) H.V.’s June 21, 2018 judgment of conviction, based on a guilty plea of aggravated battery with intent to do bodily harm; (2) the criminal complaint in that case; (3) that the Information shows that the offense took place on February 5, 2016; (4) that in the plea questionnaire and waiver of rights form, signed by H.V., H.V. states that the elements were explained to him and that he is aware of the elements of the offense; and (5) the plea hearing, at which H.V. stated that he did not agree with every statement in the criminal complaint but agreed that there was an altercation. Opinion, ¶19.

One of the doctors further testified that H.V. committed the 2016 assault because he believed a man at the bar was having sex with his ex-wife. This belief was a delusion, a symptom of his mental illness.  Opinion, ¶22, ¶25.

Under S.Y., this testimony appears to be inadmissible. Rather than address the point, the court of appeals scolds H.V. for presenting an undeveloped argument that the doctor lacked firsthand knowledge of the event. Opinion, ¶23. It says:

H.V. makes no attempt to describe what the source of Dr. Taylor’s information was or why her testimony on these points is hearsay. Dr. Taylor testified that she did not recall whether she discussed the 2016 assault with H.V. when she met with him in 2020. She did not testify further regarding the source for her information about the 2016 assault, nor did H.V.’s counsel seek to elicit such information. (In fact, H.V.’s counsel did not question Dr. Taylor at all, declining to cross-examine her.) Without such information, this court is unable to determine whether the testimony at issue constitutes hearsay, or, assuming it is hearsay, whether a hearsay exception might apply. Opinion, ¶24.

Take a look at § 908.01(3), the hearsay statute. It prohibits the admission of “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” It doesn’t require H.V. to prove the source of the hearsay. It requires him to prove that the doctor lacked personal knowledge of the information he testified to. It was undisputed that the doctors weren’t at the bar when 2016 assault occurred.

Once all of that evidence came in, H.V.’s sufficiency of evidence argument didn’t stand much chance. Both doctors made “absolutely clear” that without medication, H.V. would become more delusional and the same conduct would recur.  Opinion, ¶¶26-33.

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