Winnebago Cnty. v. J.M. (In re Mental Commitment of J.M.)

381 Wis.2d 28

911 N.W.2d 41

2018 WI 37

In the MATTER OF the Mental COMMITMENT OF J.M.:

Winnebago County, Petitioner–Respondent,

v.J.M., Respondent–Appellant–Petitioner.

No. 2016AP619

Supreme Court of Wisconsin.

Oral Argument: November 7, 2017

Opinion Filed: April 18, 2018

For the respondent-appellant-petitioner, there were briefs and an oral argument by Colleen D. Ball, assistant state public defender.

For the petitioner-respondent, there was a brief and oral argument by James A. Kearney, assistant corporation counsel.

An amicus curiae brief was filed on behalf of National Disability Rights Network by Kendall W. Harrison, Bryan J. Cahill, Allison W. Reimann, and Godfrey & Kahn, S.C., Madison.

SHIRLEY S. ABRAHAMSON, J.

¶ 1 This review involves a Chapter 51 commitment-extension proceeding. The unpublished decision of the court of appeals affirmed an order of the circuit court for Winnebago County, Karen L. Seifert, Judge, denying J.M.'s motion for post-disposition relief.¹ J.M. seeks relief, claiming ineffective assistance of counsel.

¶ 2 Three questions are presented to this court:

¶ 3 First, does J.M. have a statutory right to effective assistance of counsel at a Chapter 51 commitment-extension proceeding, and if so, what standard should apply in evaluating a claim of ineffective assistance of counsel?

¶ 4 Second, did the failure of J.M.'s trial counsel to object to, prevent the admission of, or request a curative instruction regarding evidence presented to the jury of J.M.'s status as a prisoner (including J.M.'s wearing prison garb) constitute ineffective assistance of counsel?

¶ 5 Third, is J.M. entitled to a new Chapter 51 commitment-extension proceeding in the interest of justice because the jury was repeatedly exposed to evidence of J.M.'s status as a prisoner and the circuit court gave conflicting jury instructions?

¶ 6 We respond as follows to these questions:

¶ 7 First, J.M. had a statutory right to effective assistance of counsel in his Chapter 51 commitment-extension hearing. The legislature has provided that the subject of every civil commitment proceeding is entitled to be "represented by adversary counsel." Wis. Stat. § 51.20(3) (2015–16).² When the legislature provides the right to be "represented by counsel," the legislature intends that right to include effective assistance of counsel. In re M.D.(S)., 168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992). The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the correct standard for evaluating a claim of ineffective assistance of counsel in a commitment-extension hearing.

¶ 8 Second, given the overwhelming evidence presented by Winnebago County at the commitment-extension proceeding, J.M. has not shown that a reasonable probability exists that the result of the proceeding would have been different had his trial counsel's performance not been allegedly deficient regarding J.M.'s appearance in prison garb.

¶ 9 Third, J.M. has not established that he is entitled to a new trial under Wis. Stat. § 751.06 on the ground that his wearing of prison garb during the trial so distracted the jury "that the real controversy [was] not [ ] fully tried," and justice was miscarried. Moreover, the circuit court's conflicting jury instructions likewise do not entitle J.M. to a new trial in the interest of justice.

¶ 10 Accordingly, we affirm the decision of the court of appeals.

I

¶ 11 The facts are undisputed for purposes of this review.³ On November 20, 2014, J.M. was involuntarily committed for a period of one year pursuant to Wis. Stat. § 51.20. In 2015, Winnebago County filed a petition to extend J.M.'s commitment. J.M. requested and received a jury trial on the petition.

¶ 12 Prior to trial, J.M.'s counsel asked the Wisconsin Resource Center (where J.M. was being held) to ensure that J.M. wore civilian clothes on the day of the trial on his petition. Despite his counsel's request and for reasons not in the record, J.M. appeared at his jury trial dressed in prison garb, shackled, and accompanied by two uniformed guards from the Department of Corrections. J.M.'s trial counsel did not seek a continuance when J.M. appeared in his prison garb but did persuade the circuit court to have J.M.'s shackles removed.⁴

¶ 13 During voir dire, J.M.'s trial counsel drew attention to J.M.'s prison garb:

The kind of apparel that [J.M.'s] wearing, he's an inmate of the Wisconsin Correctional system, but this isn't a criminal case, as the judge had advised you, this is one involving a mental commitment for him.

Does anyone feel because of the fact that he's an inmate with the correctional system that they wouldn't be able to give a fair opinion or evaluate things fairly?

¶ 14 J.M.'s trial counsel once again addressed J.M.'s prison garb during opening statements:

As I mentioned earlier, [J.M.] is an inmate of the Wisconsin correctional system. He was transferred to the Wisconsin Resource Center right next to the Winnebago Mental Health Institute and he's receiving treatment and care there. It's my understanding that he's likely or they developed plans to try to transfer him back into the regular community of prisoners in one of the facilities here in the state, that's the goal they try to reach and that's what he's in prison for or what he's involved in, that's really not our affair, but should commitment be imposed upon [J.M.]

¶ 15 After opening statements, the County called two expert witnesses to testify. Both had met with and evaluated J.M.

¶ 16 First, the County called Dr. Marshall Bales, a medical doctor board certified in general psychiatry. Dr. Bales based his testimony on the following: (1) an examination of J.M. that took place on November 11, 2015; (2) a review of J.M.'s treatment records; and (3) a discussion with correctional officers who had interacted with J.M.

¶ 17 Dr. Bales testified at trial that J.M.'s diagnoses were schizophrenia and antisocial personality disorder. Further, Dr. Bales testified that "[i]t was abundantly clear" after meeting J.M. for a brief time that J.M. is severely mentally ill.

¶ 18 During his testimony, Dr. Bales twice reiterated that he terminated the evaluation of J.M. early because J.M.'s behavior made Dr. Bales fear for his safety. Dr. Bales also testified that it was his opinion, based upon J.M.'s treatment records, that if J.M.'s involuntary commitment expires, J.M. will stop taking his medication and will become more delusional and dangerous.

¶ 19 Second, the County called Dr. Barbara Waedekin, a psychiatrist employed by the Wisconsin Resource Center. Dr. Waedekin had served as J.M.'s treating psychiatrist since March 28, 2014, and saw J.M. approximately 19 to 20 times before the instant Chapter 51 commitment-extension proceeding. Dr. Waedekin based her opinions on the following: (1) her interactions with J.M.; (2) a review of his treatment records; and (3) communications with other staff at Wisconsin Resource Center who interacted with him.

¶ 20 Dr. Waedekin testified that J.M. has a substantial disorder of thought, mood, and perception that grossly impairs his behavior, judgment, and capacity to recognize reality. She testified that J.M. believes that he is the "Lord God Jesus Christ Omnipotent" and that he wants his records at the Department of Corrections to reflect that identity. Dr. Waedekin further testified that J.M. denies having hepatitis despite a positive blood test because he claims his blood is mixed with Jeffrey Dahmer's.

¶ 21 Dr. Waedekin offered several examples of J.M.'s violent behavior, including charging doors, attempting to grab staff through the trap door in his cell, spitting at staff, and throwing things. She described one particular instance when she met with J.M. to advise him that an extension of his commitment was being requested. When she brought up J.M.'s medication during that meeting, he became agitated and began yelling at her:

He stated that he was my Lord, God Jesus Christ, he addressed me by my first name and he kept saying he was damming [sic] me. He also was yelling that I was lying.

He continued to get more and more agitated, stood up, and was approaching me such that the PCT [patient care technician] told him he had to leave, that he had to go through the door with him and out of the office.

¶ 22 Dr. Waedekin further testified that during this interaction, J.M. was very menacing and threatening towards her and that J.M. had been deemed one of the most dangerous individuals at the facility by one of the guards because he had a volatile anger that could erupt without warning. Dr. Waedekin explained that although J.M. was responding well to treatment, he would "become more violent" if he did not take his medication and that J.M. was unlikely to take his medication without an order to do so.

¶ 23 In contrast, J.M. testified that he had calmed down and that the instances Dr. Waedekin described had happened when he was "still very angry." J.M. stated his belief that he was not mentally ill or dangerous and that the experts' conclusions were "opinions, not facts." Furthermore, J.M. confirmed on the stand that he was "Jesus the Lord" and elaborated on this belief, claiming, "I was born from the house of the Lord, it's the house that I came from and that's who I am." He also testified that he had the ability to damn people.

¶ 24 Pursuant to Wis. Stat. § 51.20(1)(a), the jury was instructed to determine (1) whether J.M. was mentally ill; (2) whether J.M. was a danger to himself or others; and (3) whether J.M. was a proper subject for treatment by "clear, satisfactory and convincing evidence."⁵ Following deliberation, the jury unanimously found that J.M. was mentally ill, a danger to himself or others, and a proper subject for treatment. Based upon these findings, the circuit court ordered a 12–month extension to J.M.'s commitment.

¶ 25 J.M. then filed a post-disposition motion for a new commitment-extension hearing based on ineffective assistance of counsel, or alternatively, in the interest...