State v. James E. Shields

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.
March 13, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP816-CR Cir. Ct. No. 2006CF682

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES E. SHIELDS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP816-CR

¶1 PER CURIAM. James E. Shields appeals an order denying his
petition for conditional release. He argues the circuit court erred by excluding
evidence at his conditional release hearing and by failing to properly assign the
State the burden of proof at the hearing. We disagree and affirm.

BACKGROUND

¶2 In 2006, the State charged Shields with first-degree intentional
homicide for killing his neighbor by stabbing him multiple times. Ultimately,
Shields pled guilty, but not guilty by mental disease/defect, to the charge. The
circuit court committed Shields to the Department of Health Services for life.
Shields has filed many petitions for conditional release, beginning in 2008. This
case involves his most recent petition, which he filed in July 2022.

¶3 After Shields filed his petition, the circuit court appointed Dr. Kevin
Miller, a licensed psychologist, to examine Shields. This was the fifth time that
Miller had evaluated Shields for conditional release. Miller filed his report in
August 2022 and concluded that Shields did not meet the criteria for conditional
release because he posed “a significant risk of bodily harm to himself or others.”

¶4 The circuit court held an evidentiary hearing on Shield’s petition,
where Miller and Shields testified. Miller testified Shields “continu[es] to be a
significant risk of harm to others and to himself.” Miller explained that Shields’
primary issue was “self-neglect.” Shields had multiple health issues for which he
was currently being treated—he had suffered a stroke, and had schizophrenia,
diabetes, kidney disease, and prostate cancer. Miller testified that Shields had no
awareness that he had these medical conditions and did not have an understanding
or an ability to manage them. If Shields was released, Miller believed that Shields
would not continue the treatment for his various medical conditions due to his lack

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of awareness. Shields told Miller that he did not believe he had any medical issues
that required treatment.

¶5 Miller also opined that Shields was a substantial risk of harm to
others. He explained that Shields killed his neighbor but that Shields no longer
believed that he killed his neighbor. Shields simply referenced a “disagreement
with a neighbor,” which Miller stated showed a “tremendous loss of memory and
insight.” Miller believed Shields may have damaged “parts of the brain that deal
with decision making and judgment.” He explained that “patients with serious
brain damage … are ... generally a high risk for aggression because they forget
what’s going on and accuse people of lying to them or trying to cause them harm.”
Also contributing to Miller’s conclusion that Shields posed a significant risk of
harm to others was a remark Shields made during his previous examination for
conditional release in October 2021. At that time, Shields was still able to talk
about his criminal case and told Miller that if he was in the community, he had the
right to kill people who were “messing or meddling with him.”

¶6 Miller also testified that Shields did not have any awareness as to
how he would live or support himself if released in the community. Miller
explained:

[Shields] stated that he would get a job and didn’t consider
it to be a problem, this finding of not guilty by reason of
mental disease or defect for a homicide, you know, being
70 years of age, diabetic, having cancer, having had a
st[r]oke. He doesn’t believe he has any residual effect from
any of his medical problems. He has talked about just
getting a job. Otherwise he would just answer I don’t know.
So, he couldn’t tell me the difference between probation
versus conditional release. And, again, he doesn’t
understand why he’s in a psychiatric hospital. He thinks
it’s because he (unintelligible) to prison basically and that
he might just do good time in order to be released from

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No. 2023AP816-CR

prison. And then he thinks if he goes out in the
community, he would just be on his own.

¶7 During cross-examination, defense counsel asked Miller to elaborate
on a statement in Miller’s report that Miller was concerned about Shields’
competency and, unless competency improved, the parties should consider
beginning guardianship/protective placement proceedings. Counsel asked,
“Doctor, you noted that you believe that we should start considering Chapter
54/55 guardianship proceedings; is that correct?” The State objected, arguing,
“[w]hether or not different options should be considered for Mr. Shields isn’t
really relevant for whether or not the Court should grant his petition for
conditional release.” The court sustained the objection.

¶8 Miller testified that if the court granted Shields’ petition, there would
be a conditional release plan proposed, which would need to be approved by the
court. The plan would address where Shields would live and the provision for his
care. Defense counsel asked Miller if Shields would still present a risk of harm to
himself if under a guardianship and protective placement, and he answered, “Yes.”
The State objected “as it relates to whether or not a guardianship is appropriate.”
The court sustained the objection.

¶9 Shields also testified. He testified that, “I wouldn’t hurt myself or
nobody else. And I’m willing to have a guardian.”

¶10 In closing statements, the State argued that it had proven by clear
and convincing evidence that Shields would be a significant risk of harm to
himself and others. The State emphasized Miller’s testimony that Shields did not
have any internal understanding of his medical needs and would not follow
through with treatment and medication if released in the community. The State

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argued that “in terms of clear and convincing evidence, that Dr. Miller’s testimony
satisfies the State’s burden and the State would ask the Court to deny the petition
for conditional release.”

¶11 Defense counsel argued that Shields would not pose a significant
risk of bodily harm to himself because “a plan could address where he could live
and support himself and what arrangements are available in the community, such
as guardianships and protective placements.” Defense counsel ended her closing
remarks by arguing that the State failed to meet its burden of proof and the petition
should be granted.

¶12 The circuit court began its comments by observing that the statute
did not specifically assign the burden of proof to either party. The court stated:

As indicated under [WIS. STAT. §] 971.17(4)(d) [(2021-
22)1], it does provide for the burden. It doesn’t specifically
say in the statute who bears that burden, but it says, the
Court shall grant the petition unless it finds by clear and
convincing evidence that the person would pose a
significant risk of bodily harm to himself or herself or to
others or of serious property damage if conditionally
released.

¶13 The court then determined that the factors showed by clear and
convincing evidence that Shields would pose a significant risk of bodily harm to
himself and others if conditional release was granted. The court relied on the
seriousness of the underlying offense, noting Shields killed a person by stabbing
him to death. The court also relied on Shields’ lack of awareness of his medical
conditions, noting that Miller opined Shields would not follow through with

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP816-CR

treatment for his various conditions if released. The court believed Shields’
schizophrenia was currently being managed but expressed concern about Shields’
mental health history, significantly during the time period where he killed the
victim. The court also noted there was a lack of evidence about where Shields
would live or how he would support himself, elaborating:

There’s really no indication of where he would live, how he
would support himself, doesn’t appear that he would
generally cooperate with support personnel if he were
conditionally released. There would be difficulties to the
fact of ensuring his access to and compliance with
medication that is absolutely necessary not only for his
physical conditions but his mental health conditions. And
what arrangements are possible for treatment beyond
medication, again, with regards to his physical conditions,
it appears there’s fairly significant treatment that is ongoing
and necessary for him.

¶14 The court then found “by clear and convincing evidence that he
would pose a significant risk of bodily harm to both himself and to others if the
conditional release petition was granted.” It entered an order denying the petition
for conditional release. Shields appeals.

ANALYSIS

I. Evidentiary determinations

¶15 On appeal, Shields first argues the circuit court erred by excluding
testimony about the suitability of a guardianship or protective placement. Shields
emphasizes that pursuant to WIS. STAT. § 971.17(4)(d), the court shall grant the
petition for release unless the court finds “by clear and convincing evidence that
the person would pose a significant risk of bodily harm to himself or herself or to
others or of serious property damage if conditionally released.” The statute then
provides a list of factors the court may consider, including:

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No. 2023AP816-CR

[T]he 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 possible for treatment beyond
medication.

Id. Shields argues the evidence about the suitability of a guardianship or
protective placement was relevant to these statutory factors and the circuit court
erred by excluding this evidence.

¶16 The State responds that the circuit court did not erroneously exclude
the evidence, but if it did, the error was harmless. State v. Hunt, 2014 WI 102,
¶26, 360 Wis. 2d 576, 851 N.W.2d 434 (“The erroneous exclusion of testimony is
subject to the harmless error rule.”). An “error is harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error.’” In re Commitment of Burris, 2002 WI App 262, ¶16, 258 Wis. 2d
454, 466, 654 N.W.2d 866 (citation omitted). “When determining whether error is
harmless, the reviewing court considers the entire record.” Id. The State bears the
burden of proof. Hunt, 360 Wis. 2d 576, ¶26.

¶17 We conclude that any error in the exclusion of testimony about the
suitability of a guardianship or protective placement was harmless because it is
clear beyond a reasonable doubt that the circuit court would have denied Shields’
conditional release petition even if evidence of his suitability for a guardianship or
protective placement was admitted. See Burris, 258 Wis. 2d 454, ¶16. The record
overwhelmingly establishes that Shields would pose a significant risk of harm to
himself or others if conditionally released.

¶18 With respect to the risk he poses to himself, the evidence showed
that Shields has many serious medical issues that he neither recognizes nor can

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No. 2023AP816-CR

treat on his own. The evidence also demonstrated that supervision in the
community would not eliminate this risk of harm because Shields is not willing to
cooperate with people trying to help him. Miller testified that Shields “has limited
frustration tolerance” and if he were released “he would need to have numerous
contacts with medical providers …. And I don’t see any evidence that he would
be willing to cooperate with that across time and situation and his normal response
has been to just stop cooperating.”

¶19 As for the risk of harm Shields poses to others, the nature of his
crime—killing his neighbor by stabbing him to death—shows a high level of
dangerousness. See State v. Randall (Randall III), 2011 WI App 102, ¶¶19-21,
336 Wis. 2d 399, 802 N.W.2d 194 (“Such brutal criminal acts, for which [the
defendant] was found guilty, are evidence of dangerousness.”). Miller explained
that Shields has “paranoid type of schizophrenia where he believes … people are
messing or meddling with him,” and Miller did not believe Shields would continue
to control his schizophrenia if released in the community. Shields previously told
Miller that if he was in the community and somebody was “messing or meddling
with him” that Shields believed he had the right to kill that person. Although the
evidence established that Shields did not currently remember the homicide, Miller
testified that patients with serious brain damage like Shields are “generally a high
risk for aggression because they forget what’s going on and accuse people of lying
to them or trying to cause them harm.” Additionally, although Miller testified that
Shields’ level of aggression has “reduced a bit” given his current treatment for
prostate cancer; Miller testified that Shields’ aggression will increase if he stopped
cancer treatment in the community, which Miller believed was a likely scenario.

¶20 Further, even if the circuit court had permitted defense counsel to
question Miller about whether a guardianship/protective placement should be

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No. 2023AP816-CR

considered for Shields, Miller still explicitly testified that, under either scenario,
Shields would still be a harm to himself. In short, the record establishes beyond a
reasonable doubt that the circuit court would have denied Shields’ conditional
release petition even if evidence of his suitability for a guardianship or protective
placement was admitted. See Burris, 258 Wis. 2d 454, ¶16.

II. Burden of proof

¶21 Shields next argues the circuit court erred by failing to properly
assign the burden of proof to the State at the hearing on his petition. On appeal,
the parties agree that although WIS. STAT. § 971.17(4)(d) is silent as to who bears
the burden of proof, it is the State who bears the burden of proof at a conditional
release hearing. See Randall III, 336 Wis. 2d 399, ¶15.

¶22 In support of his argument that the circuit court failed to assign the
burden of proof to the State, Shields emphasizes that defense counsel ended her
closing remarks by arguing the State failed to meet its burden of proof and the
court immediately responded by saying the statute did not specifically state who
bore the burden of proof. Shields suggests the circuit court’s statement meant that
it did not assign the burden of proof to the State.

¶23 The State responds that Shields’ reading of the record is
unreasonable. The State asserts that the fact the circuit court accurately noted that
WIS. STAT. § 971.17(4)(d) did not assign the burden of proof does not mean the
court neglected to hold the State to its burden. The State points out that, in
context, not only did defense counsel assign the burden of proof to the State in her
closing argument but the State also repeatedly assigned the burden to itself in its
own closing argument. The State argued that “the State has proven by clear and
convincing evidence that Mr. Shields continues to present a substantial risk of

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No. 2023AP816-CR

harm not only to himself but to others” and also that the evidence presented
“satisfies the State’s burden and the State would ask the Court to deny the petition
for conditional release.” The State also emphasizes that the court recounted and
detailed the State’s proof as support for its finding of clear and convincing
evidence of dangerousness.

¶24 We agree with the State. The record establishes that the circuit court
applied the correct burden of proof—clear and convincing—and assigned that
burden to the State. Both parties advised the court that the State had the burden
and, when making its clear and convincing dangerousness determination, the
circuit court relied on and detailed the evidence that had been presented by the
State.

¶25 Moreover, Shields does not argue, and nothing in the record
suggests, that the circuit court improperly assigned the burden of proof to Shields.
Rather, any error was that the circuit court did not explicitly assign the burden to
the State on the record. To the extent this was error, it was harmless. As detailed
above, the State offered clear and convincing evidence of dangerousness. The
circuit court relied on this evidence when making its determination. Nothing
would have changed had the circuit court stated on the record that it assigned the
burden to the State.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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