State v. Donald L. White

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 3, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP275-CR Cir. Ct. No. 2018CF12

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD L. WHITE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Grant County:
CRAIG R. DAY, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

¶1 BLANCHARD, P.J. Donald White appeals a judgment of
conviction resulting from a jury verdict of guilty on one count of assault by a
No. 2020AP275-CR

prisoner in violation of WIS. STAT. § 946.43(2m)(a) (2019-20).1 White contends
that his conviction violated his constitutional right to due process and his statutory
rights because he was not competent to stand trial.2 Before trial, the circuit court
appointed an examiner to evaluate White’s competency to stand trial under WIS.
STAT. § 971.14(2)(a), and that examiner was the only expert to offer testimony on
White’s competency. The examiner provided “clinical findings” and “facts and
reasoning,” along with her opinion that White was competent. See § 971.14(3)(b),
(c), (e). At the same time, she took the position that she could not reach the
ultimate conclusion that he was competent “to a reasonable degree of professional
certainty.” The court concluded that the examiner’s ultimate conclusion of
competency was inadmissible because it was not offered at the required level of
certainty, but the court nonetheless determined based on all of the information
before it—including the examiner’s “clinical findings” and “facts and
reasoning”—that White was competent to stand trial.

¶2 White argues that the circuit court did not follow a requirement of
WIS. STAT. § 971.14 in reaching its competency determination. Specifically,
White contends that under § 971.14 the court was required to order additional
examinations of White’s competency because the only examiner to evaluate White

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
See State v. Byrge, 2000 WI 101, ¶27, 237 Wis. 2d 197, 614 N.W.2d 477 (“Defendants
who are tried and convicted while legally incompetent are deprived of a due process right to a fair
trial.” (citing Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 378, 378
(1966))); WIS. STAT. § 971.13(1) (“No person who lacks substantial mental capacity to
understand the proceedings or assist in his or her own defense may be tried, convicted or
sentenced for the commission of an offense so long as the incapacity endures.”).

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in this case could not testify to the ultimate conclusion to a reasonable degree of
professional certainty.

¶3 We conclude that, in these circumstances, WIS. STAT. § 971.14 does
not preclude a circuit court from ruling on a defendant’s competency in the
absence of an expert’s ultimate conclusion, offered to reasonable degree of
professional certainty, that the subject is competent. We further conclude that the
court here did not erroneously exercise its discretion or clearly err in failing to
order additional examinations. Accordingly, we affirm.

BACKGROUND

¶4 In January 2018, the State charged White with one count of assault
by a prisoner in violation of WIS. STAT. § 946.43(2m)(a), based on the allegation
that while he was confined in a state prison he expelled saliva at a corrections
officer.

¶5 We now summarize background that includes references to whether
White would be represented by counsel in the circuit court and if so who would
represent him. Although White does not challenge the court’s decisions on these
topics, these references provide context to understanding the only issue on appeal:
White’s challenge to the court’s ruling that he was competent to stand trial.

¶6 White appeared at his initial appearance by video, without counsel.
When questioned about representation by the circuit court, White said that he had
not contacted the public defender’s office. The court told White that the court
would ask the public defender’s office to “reach out to [White] given that [he was]
incarcerated.” The court adjourned the hearing to give White time to obtain
counsel.

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¶7 The public defender’s office informed the circuit court that White
was “adamant” that “he [did] not want a public defender” and “want[ed] the court
to appoint an attorney or he will represent himself.”

¶8 At the next hearing in the case, White (still incarcerated) again
appeared by video and without counsel. White asked the circuit court if the court
was “the president of the United States, Abraham Lincoln.” The court told White
it was not, and that it understood White did not want a public defender. White
agreed, and requested that Eleanor Roosevelt be appointed as his attorney. The
court indicated that it would not appoint an attorney, and told White that he was
eligible for a public defender. When White repeated the request that the court
appoint Eleanor Roosevelt, the court responded that she was deceased, and White
replied, “Well, bring her back.” When the court explained that it could not help
White with impossible requests, White hung up the phone he had been using to
verbally communicate, but remained visible via video to those in the courtroom.
The court said on the record that White’s “body language” suggested that he had
“disengage[d] from [the] conversation.” The court encouraged White to obtain a
public defender, and indicated that if he did not do so he would waive the right to
counsel for purposes of the preliminary hearing.

¶9 White appeared in person at the preliminary hearing after he was
transported to the courtroom from his place of incarceration. The court attempted
to engage with White in a colloquy about the advantages of being represented by

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counsel and the disadvantages of proceeding without counsel.3 White largely
declined to participate in this colloquy or verbally respond in general, except to
say that Eleanor Roosevelt was his “payee” and that if the court had “something to
say to [White], [it should] tell her.”

¶10 Before the circuit court ordered the matter bound over, the court
noted that, in order to allow White to proceed without counsel, the court had to
determine that he was competent to represent himself. The court noted White’s
references to deceased famous people as if they were alive. It expressed concern
as to whether White was “oriented to time and place”; the court said it had “reason
to doubt … White’s competency” to stand trial. As a result, the court ordered the
appointment of an examiner to “examine and report upon [White’s] condition,”
that is, White’s status as being competent or incompetent.4 See WIS. STAT.
§ 971.14(2)(a).

3
The circuit court also addressed the fact that correctional officers “apparently” “had to
forcibly put [White] in a transport van” to get him to the courtroom that day. The court informed
White that he had the right to be present at certain proceedings, but that the court would not order
that White be forcibly brought to court because that presented safety issues. The court repeatedly
explained that, if White did not voluntarily come to court for proceedings, he would be deemed to
have given up his right to be present. White did not respond to the court’s inquiries and prompts
on this topic. White does not raise an issue on appeal regarding his transports to court or his
presence in or absence from the courtroom for hearings.
4
The circuit court told White that an examiner would “attempt to communicate with you
to learn about you and try to help you. If you don’t respond then the competency examiner will
review your records and gain information by other means.” Just as the court told White that he
could change his decisions to reject counsel and refuse to cooperate with his transports to
hearings, the court further explained: “If you don’t talk to the competency examiner but then
change your mind and want to, you just let somebody know and I’ll send that person back to talk
to you.” The court also said:

[W]e’re not going to have the examiner spend a lot of time trying
to interview Mr. White. If Mr. White wants to interact with the
examiner, that would be good. If he does not, the examiner will
attempt to glean information from other sources.

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¶11 The examiner filed a written report indicating that she had gone to
the institution where White was incarcerated and attempted to engage with him for
one hour. The report stated that their conversation was “very unproductive,” that
White’s responses to the examiner’s questions were “outlandish,” and that he
behaved in a “theatrical” manner. According to the examiner, White refused to
cooperate with her attempts to administer standardized tests designed to assess
competency, and for that reason she ended the interview.

¶12 Turning to sources of information other than voluntary disclosures or
test-taking by White, the report summarized White’s history of prior mental health
and criminal defendant competency evaluations. Each prior examination of
White’s competency to stand trial ultimately resulted in an examiner’s opinion to a
reasonable degree of professional certainty that White was competent, and there
were previous findings of White feigning mental illness. White had been
diagnosed with antisocial personality disorder and had a history of behavioral
issues, but “ha[d] no known history of mental illness, and ha[d] never been
prescribed psychotropic medications.”

¶13 The report concluded with what might be called the examiner’s
informal opinion, which was that White “does not presently lack substantial
mental capacity to understand the pending proceedings or be of assistance in his
defense.” This informal opinion was based on the following inferences, “[g]iven
[White’s] noncooperation”: (1) in all five prior evaluations of White’s
competency, an examiner determined that he was competent, with three of these
determinations following inpatient examinations; (2) there was “no indication …
that Mr. White suffers from a major mental illness”—his “[b]ehavioral issues …
do not appear out of his control”; (3) White demonstrated an “ability to self-
advocate” “through coherent communication” to staff through request forms; and

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No. 2020AP275-CR

(4) White had “prior experience … in the role of defendant” in criminal cases.
The examiner also stated, however, that due to White’s lack of “cooperation” she
could not offer the ultimate conclusion that he was competent “to a reasonable
degree of professional certainty.” The report also noted that it is possible for
“malingering” to coexist with incompetency and that ten years had passed since
White’s most recent competency evaluation.5

¶14 The circuit court held a status conference following the filing of the
report. White took the position at the status conference that he was not competent.
This position placed the burden on the State to prove White’s competency “by the
greater weight of the credible evidence.” See WIS. STAT. § 971.14(4)(b). The
prosecutor took the position that “there[ was] a problem … proceeding directly to
a hearing” because the current examiner’s report did not reach a conclusion to a
reasonable degree of professional certainty. The court ruled that if the examiner
could not offer an ultimate conclusion about competency “to a reasonable degree
of professional certainty” then the conclusion would not be admissible. The court
further reasoned, however, that it could consider “previous evaluations” “detailed”
in the current report, in addition to “the details” of the examiner’s “observations.”

¶15 At the competency hearing, the examiner testified consistently with
the contents of her report. She repeated her informal opinion that White was
competent to proceed to trial, but that she could not offer that as an ultimate
conclusion to a reasonable degree of professional certainty. White, representing
himself, did not question the examiner but made arguments disputing the

5
See Malinger, BLACK’S LAW DICTIONARY (11th ed. 2019) (“To feign illness or
disability, esp. in an attempt to avoid an obligation ….”).

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No. 2020AP275-CR

examiner’s opinion and her qualifications. White further alleged that he had
qualified to receive Social Security insurance benefits due to mental illness at
some point after his release from prison in 2013, which he said undermined the
examiner’s testimony that he did not have a prior mental illness diagnosis. The
court asked White again if he wanted an attorney, in order to assist in retrieving
and submitting to the court records of a mental health diagnosis related to
insurance benefits, and White continued in his position of declining counsel.

¶16 The circuit court and White then engaged in a lengthy exchange
regarding the role of the prosecutor and court in his criminal case. They also
discussed topics that included the nature of the court’s task in determining White’s
competency. White said the prosecutor and the court were both “murderers.”

¶17 In the discussion below, we provide additional details regarding the
examiner’s report and testimony, in addition to the circuit court’s opportunities to
observe and interact with White in hearings leading up to the court’s competency
ruling.

¶18 The court explained that it would operate from the assumption that
White suffered from some kind of mental illness, but that it nonetheless
determined that White was competent to stand trial. The court reasoned as
follows, addressing its remarks directly to White:

You are clearly oriented to time and place and person. You
are clearly intelligent. You are clearly articulate. You
clearly have a grasp of history and culture and sociology
and a grasp of a lot of things you need to know.[6]…

6
Related to this finding, earlier in the hearing, during the court’s exchange with White
on a variety of topics, the court said:

(continued)

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No. 2020AP275-CR

You may well have a mental illness, but … not such
[that it] prevents you from standing trial in this case. I find
that you know that [the prosecutor] is not a murderer. You
use that, perhaps, in a colorful sense. But you understand
the criminal justice system and who does what and you
understand, based upon your comments to me, my role to
make decisions for better or for worse.

The court also noted that White would have become at least “a little bit familiar”
with criminal trials, given that he had participated as a defendant in at least two
criminal trials, including one resulting in an acquittal on a charge alleging a
violation of the same statute as the charge in the underlying case here. Earlier in
the hearing, the court clarified that it could not “accept” the examiner’s informal
opinion as to White’s competency, in effect reaffirming its earlier ruling that the
opinion was inadmissible and clarifying the court’s position that it would place no
weight on the opinion itself.

¶19 On the day of trial, White appeared in person in court, but said that
he did so only to deliver a letter that he had composed to the court which
demanded that he again be evaluated for competency on an inpatient basis during
a 30-day commitment to a mental health institution. The court reminded White
that, though it “accept[ed] that [White] had mental health difficulties,” the court
had found him competent.

I can tell from the storehouse of knowledge that you
keep in your head that you are not an un-bright fellow. I can tell
by the way that you think about appropriate examples of how to
quiz me that you are a bright man.

Explaining the “quiz me” reference, White had asked the court whether Charles Manson, Saddam
Hussein, Adolf Hitler, and John Wayne Gacy were “normal,” “rational,” or “sick” people.

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No. 2020AP275-CR

¶20 White asked to be “excused” from being present during the trial.
The court explained to White that he had a constitutional right to be present and
that failing to exercise that right would be disadvantageous to his defense. White
persisted in his request to leave and he was removed from the courtroom.

¶21 The court proceeded to empanel a jury and a trial was held. The
State presented testimony from two correctional officers. The jury reached a
guilty verdict. White appeals.

DISCUSSION

¶22 White argues that the circuit court violated his right to due process
and WIS. STAT. § 971.14 in deciding that he was competent without the benefit of
an admissible expert opinion. The State argues that the examiner’s informal
opinion that White was competent qualified as an opinion under the requirements
of § 971.14(3), even though the ultimate conclusion was not rendered to a
reasonable degree of certainty. The State further argues that interpreting § 971.14
to require an expert opinion to a particular level of certainty would “offend[]
principles of statutory construction.”

¶23 We conclude that, in these circumstances, WIS. STAT. § 971.14 does
not require a circuit court resolving a competency issue to rely on an ultimate
conclusion from an examiner that reaches a particular level of certainty and that

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the court here did not err in failing to order additional examinations.7 Before
explaining these conclusions further and addressing White’s arguments to the
contrary, we summarize pertinent standards.

Legal Standards

¶24 Although determinations of competency to stand trial involve the
application of law to facts, these determinations are “functionally factual
inquiries.” See State v. Byrge, 2000 WI 101, ¶¶33, 45, 237 Wis. 2d 197, 614
N.W.2d 477. We uphold a circuit court’s determination of a defendant’s
competency unless it is clearly erroneous. See id., ¶45. In the context of
competency to stand trial, the determination is clearly erroneous only if it is
“‘totally unsupported by the facts apparent in the record.’” See State v. Garfoot,
207 Wis. 2d 214, 224-25, 558 N.W.2d 626 (1997) (quoted source omitted).8

7
The State separately makes forfeiture arguments, but we do not address these in detail.
Explaining further, the State argues that White forfeited the ability to argue on appeal that the
circuit court erred in following WIS. STAT. § 971.14 procedures because he failed to timely object
to the court’s approach. We assume without deciding that White preserved the issue he raises on
appeal, taking into account the following. On the day of trial, but before the trial began, White
disputed the court’s ability to make a determination regarding White’s competency, particularly
given the court’s decision not to “accept the doctor’s opinion.” Although the court had already
rendered a ruling on competency, the court was presented with an objection that is at least
conceptually similar to White’s position on appeal and at a time when the court could have
considered reopening the issue. Further, the issue raised by White implicates well-established
constitutional rights to due process, which could justify overlooking potential forfeiture. See
Byrge, 237 Wis. 2d 197, ¶27 (“Defendants who are tried and convicted while legally incompetent
are deprived of a due process right to a fair trial.”).
8
As we explain below, we understand White’s argument to focus on the proper
interpretation of WIS. STAT. § 971.14, and that he does not make a direct challenge to the
sufficiency of the evidence to sustain the circuit court’s decision. Nonetheless, we include the
deferential standard to sustaining the circuit court’s competency ruling because it is relevant to
our analysis.

(continued)

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¶25 Thus, for example, in Garfoot our supreme court held that the circuit
court’s “decision that the State failed to meet its burden of proof” by the greater
weight of the credible evidence “was not clearly erroneous.” See Garfoot, 207
Wis. 2d at 227-28 (The circuit “court was faced with testimony from one expert
that Garfoot was not competent and testimony from another expert that Garfoot
was only marginally competent” and the “court was in the best position to
determine if the State’s evidence was more convincing than the evidence
presented by Garfoot.”).

¶26 However, as noted, we do not understand White to challenge the
evidentiary basis for the court’s determination. Rather, White argues that the
circuit court failed to properly follow the procedures in WIS. STAT. § 971.14. We
review the interpretation and application of § 971.14 de novo. See Kieninger v.
Crown Equip. Corp., 2019 WI 27, ¶12, 386 Wis. 2d 1, 924 N.W.2d 172.

While on the topic of the standard of review for competency decisions, the formulation of
the clearly erroneous standard articulated in Garfoot remains good law, see State v. Garfoot, 207
Wis. 2d 214, 558 N.W.2d 626 (1997), but we pause to make the following further observations.
In Byrge, our supreme court refers to the Garfoot standard as applying a “clear error” analysis,
but does not explicitly reaffirm the “totally unsupported” formulation. See generally Byrge, 237
Wis. 2d 197. Later, in State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135, three
justices interpreted Garfoot as adopting a clear error standard “particularized to competency
determinations” and reaffirmed the “totally unsupported” formulation of that standard. See
Smith, 367 Wis. 2d 483, ¶¶27-29, 49 (lead opinion). But this position failed to garner the support
of a majority. See id., ¶59 (explaining that one justice did not participate); id., ¶61 (Ziegler, J.,
concurring) (ruling that it was unnecessary in that case to “decide the question of the proper
formulation of the clearly erroneous standard in this specific context” of determining competency
to stand trial); id., ¶¶67-68, 138 (Abrahamson, J., dissenting) (“‘A finding is clearly erroneous
when although there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed’”; “findings of fact are
clearly erroneous when ‘they are against the great weight and clear preponderance of the
evidence’” (quoted sources omitted)).

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¶27 Constitutional and statutory law provides that no person shall be
tried and convicted of a crime while incompetent. Byrge, 237 Wis. 2d 197, ¶¶26-
27. Under WIS. STAT. § 971.13(1), “[n]o person who lacks substantial mental
capacity to understand the proceedings or assist in his or her own defense may be
tried, convicted or sentenced for the commission of an offense so long as the
incapacity endures.” See also Byrge, 237 Wis. 2d 197, ¶¶27-28 (explaining that
§ 971.13(1) codifies the due process test from Dusky v. United States, 362 U.S.
402 (1960) (per curiam)).

¶28 WISCONSIN STAT. § 971.14 lays out the procedures to be followed
“whenever there is reason to doubt a defendant’s competency to proceed.” See
§ 971.14(1r). Provided that the circuit court has found probable cause that the
defendant committed the offense charged, see § 971.14(1r)(b)-(c), the court “shall
appoint one or more examiners having the specialized knowledge determined by
the court to be appropriate to examine and report upon the condition of the
defendant.” Sec. 971.14(2)(a). The court may determine that a proper evaluation
requires the court to commit the defendant “to a suitable mental health facility” for
an “inpatient examination” or order that the defendant be “examined by [a]
department [of health services] or a department facility” “on an inpatient or
outpatient basis.” Sec. 971.14(a)-(am); see also § 971.14(2)(c) (inpatient
examinations may last up to 15 days with potential for only one 15-day extension;
outpatient examinations to last no more than 30 days). The defendant and the
prosecutor may each make their own arrangements to have the defendant
examined by additional experts. Sec. 971.14(2)(g); see also § 971.14(4)(b)
(allowing prosecutor and defendant to present evidence on the issue of
competency).

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¶29 Continuing with pertinent procedures, the court-appointed examiner
“shall personally observe and examine the defendant and shall have access to his
or her past or present treatment records.” WIS. STAT. § 971.14(2)(e); see also
Garfoot, 207 Wis. 2d at 227 (“[E]xpert testimony regarding a particular
defendant’s mental capabilities is necessary” for the reason that “the determination
of competence is an individualized, fact-specific decision.”). The examiner must
then prepare and submit to the court “a written report which shall include,” in
pertinent part, the following:

(b) The clinical findings of the examiner.

(c) The examiner’s opinion regarding the defendant’s
present mental capacity to understand the proceedings and
assist in his or her defense.

….

(e) The facts and reasoning, in reasonable detail, upon
which the findings and opinions under pars. (b) to (dm) are
based.

Sec. 971.14(3) (emphasis added). Thus, one requirement is that the report contain
the examiner’s ultimate conclusion regarding whether the elements of competency
under WIS. STAT. § 971.13 (and the constitutionally based “Dusky standard”) are
met. This is evident in light of how the examiner’s “opinion” in § 971.14(3)(c) is
required separately, that is, in addition to, the requirements that the report contain
the examiner’s particular “clinical findings” and detailed “facts and reasoning” in
§ 971.14(3)(b) and (e).

¶30 Under WIS. STAT. § 971.14(4)(b), the circuit court “shall hold an
evidentiary hearing on the issue,” unless the prosecutor, the defendant, and (if
applicable) defense counsel “waive their respective opportunities to present”
evidence in addition to the examiner’s report. “At the commencement of the

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No. 2020AP275-CR

hearing, the judge shall ask the defendant whether he or she claims to be
competent or incompetent.” Sec. 971.14(4)(b). Pertinent here, “[i]f the defendant
stands mute or claims to be incompetent, the defendant shall be found incompetent
unless the state proves by the greater weight of the credible evidence that the
defendant is competent.” Id. If the court, after considering the evidence,
“determines that the defendant is competent, the criminal proceeding shall be
resumed.” See § 971.14(4)(c).

¶31 As is evident in this last provision, “the inquiry whether a defendant
is competent to stand trial is a judicial, not a medical, determination.” See State v.
Smith, 2016 WI 23, ¶37, 367 Wis. 2d 483, 878 N.W.2d 135; see also Byrge, 237
Wis. 2d 197, ¶48 & n.21 (“‘Competency is a judicial rather than a medical
determination.’” (quoting Judicial Council Committee Note, 1981, WIS. STAT.
§ 971.13(1)). As our supreme court has further explained:

The aims of a competency hearing are modest,
seeking to verify that the defendant can satisfy the
understand-and-assist test. See [Godinez v. Moran, 509
U.S. 389, 402 (1993)]. The hearing need not establish a
psychiatric classification of the defendant’s condition. Id.
Section 971.13(1) contemplates a judicial, not a clinical,
inquiry, and our courts treat competency to stand trial as a
legal standard, not a medical determination. See [State ex
rel. Haskins v. County Ct. of Dodge Cnty., 62 Wis. 2d 250,
265, 214 N.W.2d 575 (1974)]. Elaborate psychiatric
evaluations sometimes introduce a clinical diagnosis that
may not speak to competency to proceed. Id. at 264-65. A
history of irrational behavior and prior medical opinions
about a defendant’s condition, like a defendant’s demeanor,
can serve as indicia in the competency determination.
[Drope v. Missouri, 420 U.S. 162, 180 (1975)] But clinical
reports occasionally state that a defendant is incompetent
“when what really was meant was merely that the
defendant had some mental illness which required
treatment.” Haskins, 62 Wis. 2d at 265.

Byrge, 237 Wis. 2d 197, ¶48 (footnote omitted).

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No. 2020AP275-CR

¶32 To recap, the required evidence before a circuit court weighing
competency will include at least one expert report as contemplated by WIS. STAT.
§ 971.14(2)-(3). But the court may also take into consideration all information
that is provided by the examiner, as well as the testimony of other witness and the
court’s own observations of and interactions with the defendant. See Smith, 367
Wis. 2d 483, ¶¶51, 53, 60 (upholding postconviction court’s finding of
competency based on testimony of trial counsel and defendant’s colloquies with
trial court); see also Garfoot, 207 Wis. 2d at 224 (circuit court’s competency
determination “‘must necessarily rest to a large extent upon the judgment and
experience of the trial judge and his [or her] own observation of the defendant’”
(quoted source omitted)).

Analysis

¶33 The issue raised by White boils down to whether WIS. STAT.
§ 971.14(3)(c) required the circuit court to order additional examinations of White
until an examiner could reach an ultimate conclusion to a reasonable degree of
professional certainty. Put differently, the issue is whether a circuit court can
proceed to a proper competency determination even if the “examiner’s opinion
regarding the defendant’s present mental capacity to understand the proceedings
and assist in his or her defense” required by § 971.14(3)(c) does not include an
ultimate conclusion stated to a reasonable degree of professional certainty. In
addressing the issue, we assume without deciding that the court properly ruled
that, as an evidentiary matter, the examiner’s ultimate conclusion regarding
competency was inadmissible, with the result that the court placed no weight on

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No. 2020AP275-CR

the ultimate conclusion in itself.9 Although the procedures of § 971.14 are closely
related to due process rights, we now briefly explain why the constitutional issue
as framed by White is primarily one of statutory interpretation.

¶34 White may intend to argue that, if WIS. STAT. § 971.14 is construed
so that circuit courts do not need an ultimate conclusion of at least one examiner
rendered to a reasonable degree of professional certainty, then the statute
unconstitutionally infringes on due process rights. If intended as an argument,
however, it is undeveloped in light of the steep burden that White would face in
making it. See Medina v. California, 505 U.S. 437, 445 (1992) (a state-imposed
criminal procedure is “‘not subject to proscription under the Due Process Clause
unless it offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental’” (quoted source
omitted)). No doubt, the right to be tried only when one is competent is
fundamental. But White does not explain how the failure of § 971.14 to mandate
additional examinations until an ultimate conclusion to a reasonable degree of
professional certainty is obtained from an expert is sufficiently rooted in the
nation’s traditions to render the statute unconstitutional for failure to require that
particular form of evidence.

¶35 What remains are arguments of statutory interpretation.

9
Based on this assumption, we need not address the State’s argument that the examiner’s
lack of certainty to a reasonable professional degree related to the evidentiary weight of the
ultimate opinion and not its admissibility, which if true would undermine White’s position that
the requirement of an “opinion” under WIS. STAT. § 971.14(3)(c) cannot be satisfied without an
admissible ultimate conclusion by an examiner.

Separately, we note for context that the only part of competency proceedings that is
exempt from the applicability of the rules of evidence is the determination of probable cause
under WIS. STAT. § 971.14(1r)(c). See WIS. STAT. § 911.01(2), (4)(c).

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¶36 “Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Further,
statutes are interpreted to avoid absurd or unreasonable results. State v. West,
2011 WI 83, ¶53, 336 Wis. 2d 578, 800 N.W.2d 929. The “scope, context,
structure, and purpose” of a statute, as reflected in its text and the text of closely
related statutes, are also relevant to its plain-meaning, see State v. Williams, 2014
WI 64, ¶17, 355 Wis. 2d 581, 852 N.W.2d 467 (citing Kalal, 271 Wis. 2d 633,
¶¶45-46, 49), and “a plain-meaning interpretation cannot contravene a textually or
contextually manifest … purpose,” see Kalal, 271 Wis. 2d 633, ¶49.

¶37 White acknowledges that WIS. STAT. § 971.14 does not explicitly
preclude a circuit court from addressing competency unless the examiner provides
an ultimate conclusion that is reached to a particular level of certainty. This is a
necessary concession. Section 971.14(3)(c) specifically requires only that the
examiner’s written report contain the “examiner’s opinion regarding the
defendant’s present mental capacity to understand the proceedings and assist in his
or her defense,” and contains no reference to a level of certainty or more generally
a requirement that the “opinion” must be admissible under the rules of evidence.

¶38 White’s contention is that interpreting WIS. STAT. § 971.14 to allow
the circuit court to proceed without an ultimate conclusion reached to a reasonable
degree of professional certainty would produce an absurd result that is equivalent
to the court having never appointed an examiner at all. We disagree that
§ 971.14(3)(c) requires, in all cases, that an appointed examiner render an ultimate
conclusion to a particular degree of certainty.

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¶39 It is true that, as our supreme court has explained, WIS. STAT.
§ 971.14 “clearly recognizes the legislature’s belief that psychiatric testimony is
highly relevant” to determining whether a defendant is competent. See Haskins,
62 Wis. 2d at 266. As shown above, the statute requires the court to appoint an
examiner if there is a reason to doubt competency, and the examiner must submit a
written report that “include[s]” “[t]he examiner’s opinion” regarding competency.
See § 971.14(1r), (3)(c).

¶40 But to elevate to the level of a statutory requirement that an
examiner must render an ultimate conclusion at a particular level of certainty
would be unreasonable in light of the judicial nature of the determination. See
WIS. STAT. § 971.14(4)(c); Byrge, 237 Wis. 2d 197, ¶48 & n.21. Indeed, as
further illustrated by Smith, a circuit court is free to completely reject the opinion
of one or more expert examiners, reached to a reasonable degree of professional
certainty, when such a determination can be supported by other evidence. See
Smith, 367 Wis. 2d 483, ¶¶17, 52-55, 60. It is difficult to see how the legislature
could have intended an expert conclusion at a particular level of certainty as a
requirement when a circuit court could, based on the preponderance of other
information available to the court, treat an expert’s conclusion as erroneous.

¶41 White’s argument confuses the requirements of WIS. STAT.
§ 971.14(3) regarding the generation of examiner reports with the requirements of
§ 971.14(4) regarding the State’s burden of proof. Instead of imposing a
requirement based on the level of certainty of an expert opinion, § 971.14
explicitly imposes the burden on the State to establish competency (when it is
denied by the defendant) by a mere preponderance of evidence, based on all
relevant evidence deemed credible by the circuit court. See § 971.14(4).

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¶42 Of course, the two subsections of the statute are related. In some
cases, depending on the totality of the evidence, the absence of a reasonably
certain expert opinion generated pursuant to WIS. STAT. § 971.14(3) could heavily
influence a circuit court’s determination of whether the State has met its burden
pursuant to § 971.14(4). But the facts here illustrate how a court may have ample
evidence to support a competency determination, regardless of the ultimate
conclusion reached by the examiner or in the absence of a reasonably certain
ultimate conclusion.

¶43 The evidence here included the testimony of the examiner, which
provided support for the circuit court’s determination, even setting aside the
examiner’s informal opinion as the court did. White does not argue that the court
erred in considering all of the relevant evidence contained in the report and
testified to by the examiner. This included, in the words of the statute, “the
specific records reviewed,” the examiner’s “clinical findings,” and the “facts and
reasoning … upon which the [examiner’s] findings and opinions” are based. See
WIS. STAT. § 971.14(3)(a)-(b), (e). As noted above, the examiner testified that
White had a history of being evaluated for competency, which included occasions
on which prior examiners opined that White was competent and, relatedly,
malingering. See Byrge, 237 Wis. 2d 197, ¶48 (noting that, among other things,
“prior medical opinions about a defendant’s condition … can serve as indicia in
the competency determination” (citing Drope, 420 U.S. at 180)). Similarly, the
examiner observed that White’s history of competency evaluations did not point to
his having a “major mental illness” and opined that White’s failure to cooperate
with her examination was not due to his failure to understand her questioning.
The examiner further testified that White’s records contained “only small
indications that he has reported self-harm behavior or suicidal ideations.”

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No. 2020AP275-CR

Consistent with the findings of her written report, the self-harm behavior or
suicidal ideations were deemed by previous evaluators to be the results of White’s
“boredom” and desire to manipulate staff, noting that incidents of self-harm
reported by White turned out to be “unfounded.”

¶44 Further, the evidence included the circuit court’s multiple
opportunities to observe and interact with White. See Garfoot, 207 Wis. 2d at 224
(competency determinations “‘must necessarily rest to a large extent upon … [the
circuit court’s] own observation of the defendant’” (quoted source omitted)).
Based on these observations and interactions, the court found that White was an
intelligent, articulate, and broadly knowledgeable person who had prior experience
in the criminal justice system and who was oriented as to time and place. Implied
in these findings was the further finding that White’s more outlandish references
to deceased famous people, made to the court and the examiner, were examples of
malingering. White does not make the specific argument that a finding was
clearly erroneous because it lacked support in the record.

¶45 White notes that, in cases in which the parties waive the right to
present evidence, the circuit court “shall promptly determine the defendant’s
competency … on the basis of” the examiner’s report. WIS. STAT. § 971.14(4)(b).
Based on this language, White contends that the statute “anticipates the use of the
expert report to determine competency.” But paragraph (b) merely reinforces a
point noted above: the legislature intends that circuit courts make competency
determinations with the benefit of information provided by at least one expert.
White fails to show that § 971.14(4)(b) informs how the court must weigh

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particular aspects of an examiner’s report, or that it provides meaningful context
for the interpretation of the “opinion” requirement in § 971.14(3)(c).10

¶46 White argues that interpreting WIS. STAT. § 971.14 to allow a
competency determination in any case in which the examiner has not stated an
ultimate conclusion to a reasonable degree of professional certainty would lead
absurd results. He contends that this would be equivalent to a circuit court ruling
on competency without appointing an examiner at all. We disagree. The
circumstances here illustrate the point. As noted, the examiner’s report provided
the circuit court with findings that included descriptions of White’s past
competency evaluations and the court also had several exchanges with White that
could be reasonably interpreted to have demonstrated White’s ability to
understand criminal proceedings and aid in his defense.

¶47 White notes that in State v. Green, we contrasted the requirement
that the examiner’s report include an opinion on competency with the less strict
requirement that there be an opinion as to whether the defendant needs medication
or treatment. See State v. Green, 2021 WI App 18, ¶¶49-50, 396 Wis. 2d 658, 957
N.W.2d 583, aff’d in part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770; WIS.
STAT. § 971.14(3)(c), (dm). The examiner’s opinion on medication is required

10
To be clear, White does not argue that he and the State both “waive[d] their respective
opportunities to present other evidence on the issue.” See WIS. STAT. § 971.14(4)(b); Wegner v.
West Bend Mut. Ins. Co., 2007 WI App 18, ¶25, 298 Wis. 2d 420, 728 N.W.2d 30 (“Waiver is
the intentional relinquishment of a right, either expressly or by conduct inconsistent with an intent
to enforce that right.”). Neither party objected to the circuit court holding a hearing as directed
by statute “[i]n the absence of these waivers,” § 971.14(4)(b). And, both parties made references
to evidence, even beyond the additional opportunity for the circuit court to observe and interact
with White. Specifically, White asserted as fact that he was mentally ill based on his allegedly
receiving social insurance benefits and the State directed the court’s attention to White’s criminal
history.

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No. 2020AP275-CR

only “if sufficient information is available … to reach an opinion.”
Sec. 971.14(3)(dm). White may mean to suggest that this demonstrates that in the
context of a determination regarding competency the legislature could have, but
deliberately chose not to, permit examiners to omit from their reports ultimate
conclusions stated to a reasonable degree of professional certainty as a result of
insufficient information. However, this just recycles the same argument that we
reject above: the argument that an examiner’s failure to include an ultimate
conclusion stated to a reasonable degree of professional certainty is equivalent to
failure to provide the court with professionally informed data. Put another way,
the language of § 971.14 does not tie the requirement of a competency “opinion”
to a particular level of certainty. Indeed, the absence of a qualifier relating to the
potential for insufficient information suggests that the legislature intended for
examiners to reach opinions to the best of their abilities, even if the information
available was insufficient to form an ultimate conclusion stated to a reasonable
degree of professional certainty.

¶48 As part of his interpretation of WIS. STAT. § 971.14, White argues
that, when an ultimate conclusion stated to a reasonable degree of professional
certainty is lacking, the circuit court should order the appointment of another
examiner and potentially have the subject examined on an inpatient basis (i.e.,
“committed to a suitable mental health facility”) or order the department of health
services to conduct either inpatient (at a department facility) or outpatient (in a
locked unit or jail) examination. See § 971.14(2)(a), (am), (c) (court may appoint
more than one examiner and determine that inpatient examination is necessary or
order department of health services to determine how to examine competency,
with examinations lasting no longer than 15 or 30 days). The logical consequence
of White’s argument would be that WIS. STAT. § 971.14 requires a court to order

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No. 2020AP275-CR

new evaluations, one after another, until an examiner is able to provide an ultimate
conclusion stated to a reasonable degree of professional certainty, regardless of the
other relevant evidence available to the court. Even beyond our earlier point that
the evidence to sustain a finding of competency was sufficient here, another
problem with this argument is that the decision whether to order additional
competency evaluations is left to the sound discretion of the circuit court. See
State v. Meeks, 2002 WI App 65, ¶¶44-46, 251 Wis. 2d 361, 643 N.W.2d 526,
rev’d on other grounds, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859. 11 Here,
the court did not appear to explicitly contemplate at the competency hearing that it
would order further evaluations of White. But at the prior hearing, in discussing
with the prosecutor the topic of the examiner’s competency opinion, the court said
that it “didn’t understand [the examiner] to think that any more evaluation was

11
To the extent that our supreme court’s reversal of Meeks deprived that decision of all
precedential value, we would still consider persuasive the discussion in Meeks regarding the issue
not specifically repudiated by our supreme court. See State v. Meeks, 2002 WI App 65, ¶¶44-46,
251 Wis. 2d 361, 643 N.W.2d 526; see also Barricade Flasher Serv., Inc. v. Wind Lake Auto
Parts, Inc., 2011 WI App 162, ¶9, 338 Wis. 2d 144, 807 N.W.2d 697 (applying, as persuasive but
non-controlling precedent, reasoning from court of appeals opinion overruled by supreme court
on other grounds though supreme court did not expressly identify for preservation any portion of
court of appeals opinion); Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶44, 326 Wis. 2d 729,
786 N.W.2d 78 (the “‘general rule is that holdings not specifically reversed on appeal retain
precedential value’” (emphasis added; quoted source omitted)); State v. Jackson, 2011 WI App
63, ¶15 n.3, 333 Wis. 2d 665, 799 N.W.2d 461 (“‘[o]nly when a case is overruled does [the court
of appeals opinion] lose all of its precedential value’” (quoting State v. Harris, 2010 WI 79, ¶34
n.12, 326 Wis. 2d 685, 786 N.W.2d 409) (emphasis added)); but see Talley v. Mustafa, 2018 WI
47, ¶14 n.9, 381 Wis. 2d 393, 911 N.W.2d 55 (stating that its reversal of court of appeals
removed all precedential value from its opinion (citing Blum, 326 Wis. 2d 729, ¶42 (“when the
supreme court overrules a court of appeals decision, the court of appeals decision no longer
possesses any precedential value, unless this court expressly states otherwise” (emphasis
added)))).

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No. 2020AP275-CR

going to be helpful.”12 The court also said that “competency proceedings are not a
venue for playing games with the system,” underscoring the court’s finding based
on all of the available evidence that White was malingering. In light of this
additional background and the record before it, the court did not erroneously
exercise its discretion or clearly err in implicitly deciding that further examination
would be unhelpful. The court could have considered the examiner’s inability to
reach an ultimate conclusion stated to a reasonable degree of professional certainty
as grounds to exercise its discretion in favor of ordering further evaluations. But,
given the court’s extensive interactions with White and the examiner’s testimony
regarding White’s history of such evaluations consistently pointing to his feigning
incompetence, the court could reasonably conclude that further evaluation in this
case would not offer new insights.

¶49 White alludes to the Due Process Clause, but he fails to persuade us
that there was a constitutional violation. He contends that the circuit court’s
decision to proceed to a competency determination in the absence of an
examiner’s ultimate conclusion stated to a reasonable degree of professional
certainty constituted a “failure to observe procedures adequate to protect [his]
right not to be tried or convicted while incompetent.” See Drope, 420 U.S. at 172.
However, the requirement “that a criminal defendant be competent has a modest
aim,” which is “to ensure that [the defendant] has the capacity to understand the
proceedings and to assist counsel.” See Moran, 509 U.S. at 402; see also WIS.

12
It is true that, after summarizing why the examiner could not reach an ultimate
conclusion to a reasonable degree of professional certainty, the report stated that “it might be
prudent to continue examination on an inpatient basis.” At the same time, the report emphasized
White’s lack of cooperation both in the examination underlying this appeal and in prior
examinations.

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No. 2020AP275-CR

STAT. § 971.13(1). The legislature is free to adopt “more elaborate” standards, but
is not required to do so by the Due Process Clause. See Moran, 509 U.S. at 402.
We have explained why we conclude that the legislature has not adopted the
particular more elaborate standard that White argues in this appeal. Further, as
noted above, White does not develop an argument that such a standard is imposed
through operation of the Due Process Clause.

CONCLUSION

¶50 For all of these reasons, the judgment of conviction is affirmed.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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