COURT OF APPEALS
DECISION
DATED AND FILED
November 13, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Bryan J. Stanley,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for La Crosse County: Ramona
A. Gonzalez, Judge. Reversed
and cause remanded.
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 BRIDGE, J. Bryan J. Stanley appeals from an
order following a bench trial denying his petition for conditional release
under Wis. Stat. § 971.17(4)
(2005-06)
from Mendota Mental Health Institute. Stanley was committed to
institutional care after he was found not guilty of three counts of first-degree
murder by reason of mental disease or defect.
Stanley
contends that the circuit court erred in denying his petition because the
evidence did not clearly and convincingly establish that he would pose a
significant danger to himself or others if conditionally released. We conclude that the evidence in the record
and the reasonable inferences drawn therefrom do not support the circuit
court’s determination of Stanley’s
dangerousness. We therefore reverse and
remand the matter.
Background
¶2 The following facts are taken from testimony and reports
introduced at Stanley’s
hearing and are undisputed. In 1985, Stanley was found not
guilty by reason of mental disease or defect of three counts of first-degree
intentional homicide stemming from the murder of a priest and two parishioners
at an Onalaska church. He was committed
to Mendota on October 30, 1985, and has remained there for the past
twenty-three years. Stanley filed petitions over the years
seeking conditional release, the most recent of which was denied in 1999.
¶3 The hearing on his most recent petition, conducted pursuant
to Wis. Stat. § 971.17(4),
was held on October 4, 2007. At the
hearing, Stanley
called four witnesses and offered one exhibit into evidence. The State called no witnesses and offered no
exhibits.
¶4 Stanley’s
mental illness dates back to approximately 1981. Stanley
experienced active symptoms of psychosis from schizophrenia which resulted in
four psychiatric hospitalizations from 1981 to 1983. Beginning with his first hospitalization, Stanley was prescribed the
antipsychotic drug Navane. Between 1981
and 1985, Stanley
stopped taking Navane on three occasions. On the last occasion, he experienced a
psychotic state that resulted in the commission of his index offense in 1985.
¶5 Prior to his trial and following his admission to Mendota in
1985, Stanley
was prescribed Prolixin. This medication
caused side effects of undue daytime sedation, tremors, pain in his feet and
lower legs, and akathisia. In 1993, Stanley refused to take Prolixin for one
day. His medication was then changed
from Prolixin to Clozaril, and he has remained on Clozaril since 1993. The side effects were relieved with the
change in medication, and Stanley
improved significantly, both mentally and in terms of his ability to function
on a daily basis.
¶6 Stanley
has lived on minimum security since 1993.
In January 2006, he was transferred to the Forensic Transition Unit, an
unlocked, minimum security unit which is set up in the style of a group home. Stanley has
been permitted to leave the Mendota grounds unescorted to take computer courses
at Madison Area Technical
College. He also works part time in a clerical
position he has held since January 2001.
This position requires him to independently travel to and from Mendota
by city bus. For purposes of
verification, he participates in a phone check-in system and is subject to periodic
unannounced staff visits. In addition, Stanley has been granted
the ability to travel independently to a local library branch to study a
correspondence course. In 2005, Stanley began going on
overnight visits to family members’ homes.
His participation in all of these activities has been successful and without
incident.
¶7 Dr. Castillo, the psychiatrist who treated Stanley
at Mendota from 2001 to 2007, reported that Stanley is compliant with his medication and
understands that he will decompensate if he ceases taking it. He testified that for the duration of the
time he treated Stanley, Stanley never expressed any desire to stop
taking Clozaril. Dr. Castillo testified
that the dosage of Clozaril which Stanley
is currently on has been steady, that it has made a dramatic difference for
him, and that he has tolerated the medication very well.
¶8 Dr. Castillo noted that Clozaril has the potential to cause a
drop in the body’s white blood cell count, but that this has not happened with
Stanley and is not likely to happen in the future. As a result of the possibility of causing a
reduction in his white blood cell count, Clozaril cannot be administered to Stanley unless he submits
to a monthly blood draw. Dr. Castillo
testified that, in his experience, individuals who decompensate generally do so
between one and six months after they stop taking their medication. Further, Dr. Castillo testified that if Stanley stopped taking Clozaril,
“we would know or whoever is monitoring would know about it.”
¶9 Dr. Castillo stated that if Stanley continues to take his
medication; continues to participate in treatment; continues to have contact
with his family, his psychiatrist and his case manager; and continues to be
actively involved in structured activities such as employment, his “chances of …
continuing success in the community are good.” Dr. Castillo supported Stanley’s conditional release.
¶10 Dr. Smail, who was appointed by the court to examine Stanley, also supported Stanley’s conditional release. Dr. Smail testified that Stanley’s schizophrenia is in remission, and
stated that “in my judgment he is ready for a next step which is a community
placement.” He proffered a list of
conditions for Stanley’s release that he
asserted would monitor Stanley’s
adjustment if he were to re-enter the community.
¶11 Tori Sebranek, a forensic case manager, testified about the
components of Stanley’s
aftercare plan
if his petition for conditional release was granted. She testified that the conditions would
include secure housing; supervision by staff twenty-four hours a day; an ankle
bracelet to monitor Stanley’s whereabouts; an assignment to a community
psychiatrist who would determine the frequency of contact; monitoring of
Stanley’s adherence to the prescribed medication regimen; and, at least
initially, weekly meetings with his case manager and probation agent. She testified that there is a protocol in
place to protect the community, and if Stanley
decompensated to a point where he posed a significant risk to the public, he
would be taken into custody.
¶12 For reasons discussed more fully below, the circuit court
denied Stanley’s
petition. Stanley appeals.
Analysis
¶13 Pursuant to Wis. Stat. § 971.17(4)(d),
a circuit court “shall grant the petition [for conditional release] unless it
finds by clear and convincing evidence that the person would pose a significant
risk of bodily harm to himself … or to others or of serious property damage if
conditionally released.” The State has the burden to prove by clear
and convincing evidence that Stanley
would pose a significant risk of harm if conditionally released. See State v. Randall, 192 Wis. 2d 800, 823, 532 N.W.2d 94 (1995).
¶14 The circuit court’s findings of fact will not be overturned
unless clearly erroneous. See State v. Jefferson, 163 Wis. 2d 332, 338, 471
N.W.2d 274 (Ct. App. 1991). The circuit court’s application of those
facts to the law, that is, whether Stanley
presently poses a significant risk of harm to himself or others, is a question
of law which we review independently. Id. We review the evidence supporting a finding of
dangerousness in the light most favorable to the finding, and will affirm the
finding if there is any credible evidence or inference on which the finding
could be based. State v. Randall, 222 Wis. 2d 53, 60, 586
N.W.2d 318 (Ct. App. 1998).
¶15 In making a determination of dangerousness, the court may
consider the following non-exclusive factors:
the nature and circumstances of the crime, the person’s
mental history and present mental condition, where the person will live, how
the person will support himself or herself, what arrangements are available to
ensure that the person has access to and will take necessary medication, and what
arrangements are [available] for treatment beyond medication.
Wisconsin
Stat. § 971.17(4)(d).
¶16 The circuit court found that at the time the underlying crimes
were committed, Stanley
suffered from a severe mental illness, and that three people lost their lives
as a result of his being in a psychotic state.
The court also found that Stanley
continues to suffer from the same mental illness, which is being managed by
medication. It found that Stanley has had his mental
illness managed for a significant period of time in the structured setting of
Mendota, but that over the past twenty-two years of his treatment at Mendota,
“there have been instances of him refusing his medications or getting off his
medications.” The court referenced
Stanley’s risk of dangerous behavior when not on medications,
and concluded that, “Where I may be willing to take the risk had his crime not
been what it is, based upon his current treatment plan, I am not willing to
take that risk based upon what this crime was all about.”
¶17 Stanley challenges the court’s finding that there have been “instances”
of Stanley refusing or going off his medications since his commitment to
Mendota. We agree that the court’s
finding is not supported by the record. The
record demonstrates, and the State does not dispute, that Stanley refused to take Prolixin for one day
in 1993. Since his medication was
changed to Clozaril in 1993, Stanley
has not again refused to take his medication.
Thus, since his commitment to Mendota, there has been only one instance
when Stanley has
declined to take his medication, rather than the multiple instances the court
found. Further, the one instance
occurred approximately fifteen years ago and involved a medication he no longer
takes.
¶18 The State argues that the court’s reference to “instances” was
harmless because the record nevertheless supports the finding that Stanley has stopped taking
his medication several times during his lifetime, including while at Mendota. Although this is true, the record establishes
that Stanley’s
responses to the various medications he has been prescribed have differed
significantly. When Stanley discontinued his medication before
his crimes, he was taking Navane.
Following his institutionalization at Mendota, Stanley
was initially prescribed Prolixin, which caused deleterious side effects and Stanley refused to take this
medication for one day. Since then, and
for the past fifteen years, Stanley
has been on Clozaril and he has neither refused to take his medication nor displayed
an interest in doing so.
¶19 The court’s erroneous reference to multiple instances when Stanley refused his medication since his commitment to
Mendota is important because it, coupled with the heinous nature of Stanley’s crimes,
provided the sole factual bases for the court’s denial of the petition. We agree that the nature of the crime is one
factor that may be considered under Wis. Stat. § 971.17(4)(d). However, “[a]lthough past conduct may be a
significant indicator of future behavior, evidence of dangerousness should not
rely solely on the acquittee’s past conduct.” Randall, 192 Wis. 2d at 838. The only other factor considered under
§ 971.17(4)(d), whether Stanley
would take necessary medication, was based on an inference drawn from an erroneous
statement of fact. Apart from this
erroneous statement, there is no evidence in the record to support the court’s
apparent inference that Stanley
would not voluntarily continue to take his medication upon his conditional
release.
¶20 The uncontroverted testimony by both physicians at the hearing
was that Stanley’s situation has stabilized since he has begun taking Clozaril;
he does not experience the harsh side effects with this medication that he
experienced with his prior medication; the dosage remains constant; Stanley
understands the necessity that he continue to take the medication and the
consequences if he does not; conditions attached to his release would include
close monitoring; if decompensation were to occur, it would occur over a period
of time conducive to detection by monitoring staff; and if Stanley were to
begin to show signs of decompensation, monitoring staff would be in a position
to recognize the symptoms early and respond appropriately.
¶21 We are mindful that the circuit court is the ultimate arbiter
of the credibility of the witnesses and the weight to be given their testimony.
State v. Peppertree Resort Villas, Inc.,
2002 WI App 207, ¶19, 257 Wis. 2d
421, 651 N.W.2d 345. We are also mindful
that the circuit court was not required to accept the experts’ conclusions,
even if they were uncontroverted. See State v. Brown, 2005 WI 29, ¶88, 279 Wis. 2d 102, 693 N.W.2d
715. In this instance, however, the
circuit court did not explicitly reject the experts’ conclusions. Instead, it apparently discounted the experts’
assessment of the likelihood of Stanley going
off his medication in the future based on the court’s erroneous belief that Stanley had gone off his
medication a number of times while at Mendota.
¶22 In sum, the uncontroverted evidence presented at Stanley’s conditional release hearing establishes that for
the fifteen years Stanley
has been on Clozaril, his use of the medication has been continuous and
voluntary. He has been slowly integrated
into the community with success. The
only physicians to testify at the hearing both supported Stanley’s conditional placement. To the extent the circuit court apparently
discounted this testimony, the only articulated reason for doing so was based
on an apparent inference drawn from an erroneous fact not supported by evidence
in the record.
¶23 The standard under Wis.
Stat. § 971.17(4) provides that, in order to deny conditional
release, the evidence must demonstrate the acquittee’s dangerousness by clear
and convincing evidence. We conclude
that the evidence in the present case did not meet that threshold. Accordingly, we reverse and remand the matter
with directions to provide notice to DHFS under § 971.17(4), which will in
turn require DHFS to present to the circuit court for its approval a plan that
sets out the conditions that will attach to Stanley’s release.
By the Court.—Order reversed and cause
remanded.
Not
recommended for publication in the official reports.