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References to past convictions, “supermax” and handcuffs didn’t prejudice subject of initial commitment hearing

Winnebago County v. J.D.J., 2022AP1138, 2/22/23, District 2, (1-judge opinion, ineligible for publication); case activity

Such a maddening case. J.D.J., a prisoner diagnosed with schizoaffective disorder, was going to have a hard enough time winning a jury trial regarding his ch. 51 initial commitment. But the circuit court made his uphill battle impossible through a series of highly questionable pre-trial and trial rulings. Then the court of appeals, relying on nothing beyond its gut (i.e. not case law) affirmed.

Before trial, defense counsel filed a motion in limine on 12 different issues. This appeal concerns 4 of the issues.

Prior criminal convictions. Here is the circuit court’s initial ruling on defense counsel’s motion to exclude evidence of J.D.J.’s prior convictions: “[T]he fact that someone has been convicted at one point has nothing to do with their status now so I am going to overrule their objection. I’ll allow [questions about convictions to come in.]” Opinion, ¶3. At the County’s request, the court clarified that the County could indeed ask whether J.D.J. had ever been convicted of crime, and if so, how many time. Opinion, ¶18.

So then at trial, J.D.J. admitted he had been convicted of crimes but didn’t recall how many. So the County went through each case (6) and described each offense to the jury. The court of appeals found no error. It held that the County could elicit prior convictions as “impeachment testimony.” When J.D.J. said he couldn’t recall his number of convictions that allowed the County to go through each offense. Opinion, ¶¶31-33. The court of appeals cited no authority for this ruling.

This was an initial commitment. The jury had to decide whether was J.D.J. was mentally ill, a proper subject for treatment, and dangerous under the 2nd standard of dangerousness. J.D.J.’s prior convictions (no info on what they were or how long ago they occurred) aren’t relevant to whether he recently engaged in homicidal or other violent activity or recently threatened violence or serious physical harm under §51.20(1)(a)2.b. These convictions are prejudicial on the issue of dangerousness and should have been excluded (as the circuit court seemed to rule originally).

Hearsay. J.D.J. argued that the circuit court erroneously allowed the two examiners to testify to hearsay about his recent conduct–information that they included in their reports. See S.Y. v. Eau Claire County, 156 Wis. 2d 317, 327, 457 N.W. 326 (Ct. App. 1990)(“[w]hile experts may rely on inadmissible evidence in forming opinions, [WIS. STAT. § 907.03], the underlying evidence is still inadmissible.”)

The court of appeals rejected this argument because: (1) at the pre-trial conference J.D.J. allegedly stipulated to letting the doctors testify about his statements to others for purposes of diagnosis and treatment; (2) defense counsel allegedly opened the door by eliciting some of the testimony on cross-examination; and (3) any hearsay admitted was harmless because one examiner testified that J.D.J. threatened him and two PCTs testified about J.D.J. spitting on them and observing him throwing soup and threatening others. Opinion, ¶¶20-33.

Prisoner status. The circuit court’s pre-trial order precluded testimony referring to J.D.J.’s status as a prisoner. But then at trial Dr. Bales testified that J.D.J. was in a “high security”  at WRC “almost like a supermax.” Bales said that he examined J.D.J. while J.D.J. was behind plexiglass and in handcuffs. Bales also referenced “security persons,” “guards” and “correctional officers.”

The court of appeals waived off all of these references. The term “supermax” did not imply that J.J. was in prison. It merely suggested a “level of security.” Opinion, ¶38. Mental institutions sometimes have guards, use restraints and handcuffs, and refer to patients as “inmates.” So those terms don’t imply prisoner status either. Opinion, ¶38. Furthermore, defense counsel referred to J.D.J.’s “cell,” “cell door,” “inmates,” and “the jail.” In light of defense counsel’s references, J.D.J. was not prejudiced by Dr. Bale’s testimony. Opinion, ¶¶34-43. The court of appeals cited no authority in its analysis.

Failure to exclude witnesses. Pre-trial, the circuit court ruled that the County’s witnesses were to be excluded from the courtroom until after they testified. But the two PCTs were in the courtroom and heard Dr. Bale’s testimony before they were called to the stand. The court of appeals held that this was only a “slight violation” of the pre-trial order. Plus the testimony by the PCTs did not duplicate or fill holes left by Dr. Bales’ testimony. Therefore, no error occurred. Opinion, ¶¶34-43. Again, the court of appeals cited no authority in its analysis.



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