Winnebago County v. J.D.J.

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.
February 22, 2023
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. 2022AP1138 Cir. Ct. No. 2021ME311

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE CONDITION OF J.D.J.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

J.D.J.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Affirmed.
No. 2022AP1138

¶1 LAZAR, J.1 J.D.J.2 appeals from orders of the trial court, entered
pursuant to WIS. STAT. § 51.20, for his civil commitment and for involuntary
medication and treatment. J.D.J. asserts that he received an unfair trial because
the trial court did not uphold a pretrial ruling in several respects. In particular he
asserts that, over the objection of J.D.J.’s trial counsel, experts were permitted to
reference hearsay, witnesses were not properly excluded from the courtroom, and
the jury was allowed to hear prejudicial and irrelevant testimony including details
of J.D.J.’s prior convictions. This court disagrees and affirms.

BACKGROUND

¶2 J.D.J. is serving a prison sentence at the Wisconsin Resource Center
(WRC), a psychiatric facility that treats Department of Corrections inmates. On
July 22, 2021, Dr. George Monese, staff psychiatrist at the WRC, on behalf of
Winnebago County, filed a formal petition for J.D.J.’s civil commitment and
involuntary medication and treatment pursuant to WIS. STAT. § 51.20. The circuit
court3 found probable cause and appointed two doctors—Dr. Marshall Bales, a
psychiatrist and physician, and Dr. Kevin Miller, a psychologist—to examine
J.D.J. and prepare written reports on his condition.

¶3 Before the jury trial on this petition, J.D.J. filed a motion in limine
seeking, among other things, an order prohibiting the County from mentioning

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court refers to Appellant by his initials to protect his confidentiality.
3
The Honorable Daniel J. Bissett presided over a de novo probable cause hearing on
August 5, 2021.

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J.D.J.’s criminal convictions, excluding witnesses from the courtroom before they
testified, and prohibiting experts from offering hearsay testimony or expert
opinion regarding recent dangerousness. The County did not object to those
particular requests; it did object to others and sought permission to ask J.D.J.
whether he had been convicted of a crime (and the number of convictions) for
impeachment purposes and to offer expert testimony on statements written or
heard so long as they were being offered for medical diagnosis or treatment as
permitted by WIS. STAT. § 908.03(4). Rather than addressing each of the issues in
J.D.J.’s motion, the trial court4 asked counsel at the start of the jury trial if they
had anything to address. J.D.J.’s attorney argued that prior convictions should not
be used for any reason. The court sided with the County, saying, “the fact that
someone has been convicted at one point has nothing to do with their status now
so I am going to overrule the objection. I’ll allow [questions about convictions] to
come in.”

¶4 Outside the presence of the jury, the County called Bales to testify
regarding its request for involuntary medication. Bales testified that J.D.J. “was
psychotic, he was manic” and not “reality based” during his examination,
concluding that J.D.J. was not competent to refuse medication that would treat his
mental illness. Then, in the presence of the jury, Bales testified about J.D.J.’s
schizoaffective disorder and his opinion that J.D.J. was a danger to others because
he caused them to fear for their safety. Bales acknowledged that the “Plexiglass
wall” between them and J.D.J.’s handcuffs eased his own fear during his
examination of J.D.J., but discussed threats of sexual assault J.D.J. had made to
staff and his threats of harm to “other inmates.” The court overruled J.D.J.’s
4
The Honorable Scott C. Woldt presided over the jury trial on September 14, 2021.

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objection to “hearsay being used as a factual basis for dangerousness,” but J.D.J.
did not object to the County’s mention of handcuffs, other inmates, or other
indicia of J.D.J.’s status as a prisoner. Bales also testified that the records
reflected an incident in which J.D.J. spit at someone as well as “extremely violent
threatening behavior day after day” toward “everyone in [J.D.J.’s] surroundings.”

¶5 After Bales testified, the trial court held a sidebar during which it
appears that J.D.J.’s counsel objected that two County witnesses were present in
the courtroom during Bales’s testimony contrary to the pretrial motion in limine
ruling. Unfortunately, that sidebar was not recorded. It appears that the two
witnesses left the courtroom at that time.

¶6 Miller testified next and opined that J.D.J. was suffering from mental
illness and that he was at “a significant risk of doing harm to others.” His opinion
was based on reports of alleged threats made and assaults committed by J.D.J.
against others at WRC as well as on J.D.J.’s threats toward him during the
evaluation.

¶7 Next, the County called two psychiatric care technicians (PCTs) who
had worked with J.D.J. at WRC (and who had been in the courtroom when Bales
testified). J.D.J.’s counsel again attempted to raise the issue of their violation of
the pretrial ruling with the court outside the presence of the jury before the first
PCT testified, but the court stated, “[w]e will [address the issue] after. I know
what your arguments are and I know what my findings would be.” Both PCTs
testified about interactions they had with J.D.J., including the incident Bales had
mentioned during which J.D.J. allegedly spat (or attempted to spit) at one PCT
over concerns that pepperoni had pork (and was not acceptable under J.D.J.’s

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religion), threats J.D.J. made against various staff members, and another incident
in which J.D.J. threw warm soup at a staff member.

¶8 Again outside the presence of the jury, the trial court addressed
J.D.J.’s objections to testimony from the County’s witnesses at the conclusion of
the County’s case. It stated that it permitted the testimony of the PCTs because
their presence in the courtroom during Bales’s testimony was not prejudicial to
J.D.J.; in essence, the court concluded that the PCTs “talked about different
issues” than Bales. Moreover, the court said, J.D.J.’s counsel could have seen
these witnesses earlier and brought up the issue; the court addressed it (by having
the PCTs leave prior to Miller’s testimony) as soon as it was brought to its
attention. The court also overruled J.D.J.’s request to have Bales’s testimony
excluded for referencing J.D.J.’s criminal history and comparing the WRC to a
“supermax,” reasoning that Bales “is just describing what it is like being there and
it is a situation where [J.D.J.]’s being supervised closely.”

¶9 Finally, J.D.J. testified on his own behalf. He denied threatening
anyone, responding to a question about the comments others were characterizing
as threats as follows:

They are just jokes. Well, sometimes I get mad and I
say -- you know, we all get mad and say things we don’t
mean, but even if I said it, when I come out of my cell they
bring me out of my cell the next day, and I’m not attacking
them so how am I dangerous.

J.D.J. could not recall attempting to spit on anyone or throwing soup on anyone.
He admitted that he had a tendency to “talk aggressive.” In addition to many
references to his “cell,” some of which appear above, J.D.J. (or his counsel)
mentioned other aspects of WRC that could suggest his incarcerated status: “the
hole,” jail, handcuffs, and other “inmates” at WRC. On cross-examination, the

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No. 2022AP1138

County asked J.D.J. whether he had ever been convicted of a crime. When J.D.J.
admitted that he had but couldn’t remember how many times, the County asked
specifically about each of J.D.J.’s six prior convictions. In summarizing J.D.J.’s
case during closing argument, J.D.J.’s counsel described J.D.J.’s living situation at
WRC (as he did in his opening statement) as one in which J.D.J. “cannot leave,”
has very few “liberties,” and “is every day at this facility, every day is
supervised.”

¶10 Ultimately, the jury found that J.D.J. was mentally ill, dangerous,
and a proper subject for treatment. After the jury was released, the trial court
issued an order for a six-month5 civil commitment and a corresponding order for
involuntary medication and treatment during that same time period. J.D.J.
appeals.

DISCUSSION

¶11 J.D.J. contends that he was deprived of a fair trial and that the trial
court refused to hold the County responsible for various violations of a pretrial
order. He further contends the jury was allowed to hear prejudicial and irrelevant
testimony, allegedly to his detriment. The County asserts there was no pretrial

5
The six-month commitment was to expire in March, 2022. Prior to that date, the
County filed a formal petition to extend J.D.J.’s commitment, and a hearing was held on that
petition on February 24, 2022, at which time the circuit court (the Honorable Barbara H. Key)
ordered J.D.J. recommitted for twelve months. J.D.J.’s appeal of that recommitment was fast-
tracked and this court (in a one-judge decision on November 23, 2022) affirmed the
recommitment. Winnebago County v. J.D.J., No. 2022AP1357-FT, unpublished slip op. (WI
App Nov. 23, 2022). That opinion does not render this appeal moot at least for the reason that
J.D.J. is still subject to the collateral consequence of the firearms ban as a result of his initial
commitment. See Marathon County v. D.K., 2020 WI 8, ¶25, 390 Wis. 2d 50, 937 N.W.2d 901
(holding that, despite the fact that subject individual’s initial commitment was expired, the
commitment was not a moot issue because it still subjected him to the collateral consequence of a
firearms ban, which would be voided in the event of a decision in his favor on appeal).

6
No. 2022AP1138

order and, regardless, the court properly exercised its discretion regarding
exclusion of witnesses, potential hearsay, and questioning J.D.J. about his prior
convictions. Any errors, says the County, were harmless. Except for the issuance
of the pretrial order, this court agrees with the County.

I. General legal principles and standards of review.

¶12 It is correct that individuals—all individuals—are entitled to fair
trials where their liberty interests are properly protected. This is particularly true
in civil commitment cases that may uniquely deprive citizens of their personal
liberty (with supervised commitment in the community or an inpatient stay in a
mental health facility or the WRC) and may also restrict their rights by curtailing
their ability to select or refuse certain medications and treatment. Both aspects are
significant restrictions of personal liberty and must be reasonable and able to
withstand constitutional scrutiny. “It is clear that ‘commitment for any purpose
constitutes a significant deprivation of liberty that requires due process
protection.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting
Addington v. Texas, 441 U.S. 418, 425 (1979)).

¶13 To issue a civil commitment order, a trial court must find that a
petitioner established, by clear and convincing evidence, that the subject
individual is mentally ill, a proper subject for treatment, and dangerous to
him/herself or others under at least one of five statutory standards. Langlade
County v. D.J.W., 2020 WI 41, ¶29, 391 Wis. 2d 231, 942 N.W.2d 277; WIS.
STAT. § 51.20(1)(a)1.-2., (13)(e). This is especially critical because “[i]t may be
true that an erroneous commitment is sometimes as undesirable as an erroneous
conviction.” Addington, 441 U.S. at 428. Involuntary medication orders may
only be issued, under the same clear and convincing burden of proof, with expert
opinion that an individual is incompetent to refuse medication. Outagamie
County v. Melanie L., 2013 WI 67, ¶37, 349 Wis. 2d 148, 833 N.W.2d 607; WIS.

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No. 2022AP1138

STAT. §§ 971.17(3)(b) and 971.16(3). So, courts are to take special care in this
area of law.

¶14 Pursuant to WIS. STAT. § 51.20(1)(a)2.b., the relevant standard at
issue for J.D.J., an individual is dangerous when he

[e]vidences a substantial probability of physical harm to
other individuals as manifested by evidence of recent
homicidal or other violent behavior, or by evidence that
others are placed in reasonable fear of violent behavior and
serious physical harm to them, as evidenced by a recent
overt act, attempt or threat to do serious physical harm.

The statute clearly references “recent” behavior, acts, attempts, or threats.

¶15 The review of a civil commitment order and an order for involuntary
medication and treatment—determining whether the petitioner has met the burden
of proof—both present a mixed question of law and fact. Waukesha County v.
J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783; Melanie L., 349
Wis. 2d 148, ¶¶37-39. Findings of fact are upheld unless they are clearly
erroneous, J.W.J., 375 Wis. 2d 542, ¶15, Melanie L., 349 Wis. 2d 148, ¶38, and
an appellate court will “accept reasonable inferences from the facts.” Winnebago
County v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109
(citation omitted). Whether those facts satisfy the statutory standards, however, is
a question of law that is reviewed de novo. Marathon County v. D.K., 2020 WI 8,
¶18, 390 Wis. 2d 50, 937 N.W.2d 901.

¶16 Finally, the decisions of the trial court to admit certain evidence,
some alleged to be hearsay, are reviewed by this court under the erroneous
exercise of discretion standard. See Morden v. Continental AG, 2000 WI 51, ¶81,
235 Wis. 2d 325, 611 N.W.2d 659. That standard is succinctly set forth in
Kenosha Hospital & Medical Center v. Garcia, 2004 WI 105, ¶15 , 274 Wis. 2d
338, 683 N.W.2d 425, clarified 2004 WI 137, 276 Wis. 2d 359, 688 N.W.2d 462
as follows:

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No. 2022AP1138

This court has often said that “a discretionary
determination must be the product of a rational mental
process by which the facts of record and law relied upon
are stated and are considered together for the purposes of
achieving a reasonable determination.” An appellate court
will affirm a [trial] court’s discretionary decision as long as
the [trial] court “examined the relevant facts, applied a
proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could
reach.” Therefore, the record on appeal must “reflect the
[trial] court’s reasoned application of the appropriate legal
standard to the relevant facts in the case.” “If a judge bases
the exercise of his discretion upon an error of law, his
conduct is beyond the limits of discretion.”

(citations omitted); see also Associated Bank N.A. v. Collier, 2014 WI 62, ¶22,
355 Wis. 2d 343, 852 N.W.2d 443; J.L. Phillips & Assocs., Inc. v. E & H Plastic
Corp., 217 Wis. 2d 348, 364-65, 577 N.W.2d 13 (1998).

II. There was a pretrial ruling by the trial court.

¶17 After probable cause was found at the de novo hearing, J.D.J.
demanded a jury trial and filed a “Motion in Limine” that actually consisted of
twelve different motions for orders on twelve different (mostly evidentiary) issues.
The County responded, stating that it had no objection to seven of the twelve
motions and putting its own position on the remaining five motions before the trial
court. The court started the jury trial by acknowledging that the motion and a
response had been filed. J.D.J.’s counsel asked to address two of the County’s
responses but only actually raised concerns over the first motion, which sought to
exclude references to J.D.J.’s prior criminal convictions.

¶18 The trial court, somewhat confusingly, said that it would “overrule
the objection” and “allow it to come in.” After the County sought clarification, the
court ruled that the following questions about convictions were permissible:
“Have you ever been convicted of a crime? How many times?” Thus, the court

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No. 2022AP1138

denied J.D.J.’s first motion in limine. After hearing that both counsel had no other
concerns and that J.D.J.’s counsel “agree[ed] with the responses for the remainder
items,” the court ruled “All right,” implicitly granting the motions in limine to
which the County had stipulated (motions 2-5, 7-8, and 12), and denying the
remaining motions (6, 9, 10-11). The view that a pretrial ruling on the motions in
limine was made is further bolstered by the fact that, towards the end of the jury
trial, the court referenced “the pretrial motion that the County agreed to that said
witnesses would be sequestered.” That was a reference to J.D.J.’s seventh motion
in limine to which the County had not objected; it was not a motion that the trial
court addressed in oral argument. But, it clearly was one that the trial court had
granted (by stipulation if not by actual order) for the jury trial.

¶19 Accordingly, this court concludes there was a pretrial ruling on all of
J.D.J.’s motions in limine, and the parties were both bound6 by the trial court’s
ruling and/or by their stipulations. It is with that understanding that this court
reviews the matters at issue in this appeal.

III. The admission of hearsay testimony regarding dangerousness, if
any, does not warrant reversal.

¶20 J.D.J. contends that the trial court erred when, over his objections, it
allowed the two doctors to testify with hearsay regarding J.D.J.’s recent conduct
reflected in their reports that was either prejudicial (because it went to
dangerousness) or was irrelevant and stigmatized J.D.J. in the eyes of the jury.
6
This court need not address whether the County had forfeited its right to challenge that
the trial court had issued a pretrial ruling on all requests made in J.D.J.’s motion in limine or that
the County had stipulated to portions thereof. See Miesen v. DOT, 226 Wis. 2d 298, 309, 594
N.W.2d 821 (Ct. App. 1999) (court of appeals “should decide cases on the narrowest possible
grounds”); Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court
of appeals need not address all issues raised by the parties if one is dispositive).

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No. 2022AP1138

The County had asked in its response to J.D.J.’s tenth and eleventh motions in
limine that “the physicians be permitted to testify to statements, written or heard,
so long as they’re being offered for medical diagnosis or treatment purposes,
pursuant to [WIS. STAT. § 908.03(4)].” J.D.J.’s counsel “agree[ed] with the
[County’s] responses for the remainder [of the motion in limine] items.” That
narrows the topics upon which J.D.J. could object during trial or in this appeal.

¶21 First, hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” WIS. STAT. § 908.01(3). The rules of evidence, including those
on hearsay, apply to Chapter 51 trials. WIS. STAT. § 51.20(10)(c). J.D.J. asserts
that the trial court erroneously exercised its discretion when it overruled his
hearsay objection. He relies primarily on S.Y. v. Eau Claire County, 156 Wis. 2d
317, 457 N.W. 326 (Ct. App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836
(1991), in which this court stated, “[w]hile experts may rely on inadmissible
evidence in forming opinions, [WIS. STAT. § 907.03], the underlying evidence is
still inadmissible.” S.Y., 156 Wis. 2d at 327.

¶22 In response, the County relies upon the stipulation that the doctors
were allowed to provide opinions and testify as to J.D.J.’s statements to others for
purposes of treatment or diagnosis. It further asserts that statements made by
J.D.J. were not even hearsay as they are admissions by a party opponent under
WIS. STAT. § 908.01(4)(b). Moreover, it asserts that some of the testimony by the
doctors was elicited during cross-examination when J.D.J.’s counsel tried to
minimize the threats made to staff, thereby opening the door to the testimony. It
also asserts that Miller testified, in part, about a threat J.D.J. specifically made to

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No. 2022AP1138

him7 during the examination: clearly that was not hearsay. This court agrees that
those statements, at least, were properly admitted.

¶23 Finally, the County argues that if any hearsay evidence was admitted
in error, it was harmless error and, pursuant to WIS. STAT. § 51.20(10)(c), it should
be disregarded because it “does not affect the substantial rights of either party.”
J.D.J. counters that “harmless error” analysis is not appropriate when considering
hearsay. That is inaccurate. This court addressed inadmissible hearsay in expert
reports a la S.Y. in State v. Weber, 174 Wis. 2d 98, 109, 496 N.W.2d 762 (Ct.
App. 1993), and concluded that appellate courts “are not to order a new trial for
the improper admission of evidence unless an examination of the entire
proceeding leads us to conclude that the error affected the substantial rights of the
party seeking relief on appeal.” The Weber court further elaborated that “[t]o
determine whether the ‘substantial rights’ of a party have been affected, [this court
is to] use the harmless error test” and that an “error is harmless and does not
justify reversal if we can be sure that the error did not contribute to the guilty
verdict.” Id. This is applicable in the case of a civil commitment jury trial.

¶24 To begin, Miller’s recounting of the threat J.D.J. made to him,8 the
testimony of PCTs Scott Cooke and Zach Zuhse as to conduct they observed, and

7
J.D.J. told Dr. Miller “something to the effect of you’re lucky you’re on the other side
of that glass” and Miller “took that to mean a direct threat to [his] safety.” Miller further
explained that:

Even though there is a plastic partition, there is an opening and
the desk as if I am sitting now, the opening is perhaps at arm’s
length so I pulled all my stuff back from the opening and then
slid my chair back at that point because I have seen people get
yanked through the traps in the past.

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No. 2022AP1138

J.D.J.’s corroborating statements during his examination are not hearsay. That
evidence was admissible. So, the only issue on appeal lies with the statements
Bales and Miller made about the conduct and threats of J.D.J. observed by others
that were contained in their reports—and only to the extent that testimony related
to dangerousness as opposed to their diagnoses.

¶25 When Bales was asked to give an example of J.D.J. scaring people
or putting people in fear, he described a female guard’s report that J.D.J.
threatened to sexually assault her. J.D.J.’s immediate hearsay objection was
summarily overruled. But, in the same line of examination questions, Bales
indicated that he asked J.D.J. about the threats and that J.D.J. “confirmed some of
them.” J.D.J. also told Bales that he was going to act on his threats and that “when
[he] get[s] to general population or a less secure setting [he’s] going to, so to
speak, get even.” To the extent Bales’s testimony was based on J.D.J.’s
confirmation of threats such as the one to the female guard, it is not hearsay; like
Miller’s testimony about the threat J.D.J. made to him, it concerns J.D.J.’s out of
court statements but is not offered for the truth of whether he actually intended to
assault the threatened person, only whether or not he made the threats.

¶26 Bales also discussed the alleged spitting incident, a threat to kill
psychiatrist Monese, and threats to harm staff and other “inmates” that were

8
J.D.J. appropriately conceded in his motion in limine that “[i]f any expert also has
personal knowledge of any alleged facts that the County may wish to offer for dangerousness,
that is a different issue than [J.D.J.] presents here.”

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No. 2022AP1138

reported to him. J.D.J.’s counsel did not object to that testimony.9 On cross-
examination, his counsel delved further into the details of the spitting incident and
inquired whether it was related to J.D.J.’s religion; Bales did not agree with that
correlation. J.D.J.’s counsel also solicited additional salacious details about the
threat to the female guard, implying that it was a request for consensual sex. He
did the same when cross-examining Miller, seeking specific details about the
spitting incident that Miller had testified about based on the “printed routine staff
records” he reviewed. Without the cross-examination, none of these details would
have been heard by the jury. J.D.J. cannot complain about questions asked by his
own counsel.

¶27 Given that this court must examine “the entire proceeding” to
determine whether any possibly improper admission of evidence affected J.D.J.’s
substantial rights, the testimony of PCTs Cooke and Zuhse is relevant. See Weber,
174 Wis. 2d at 109. They testified about several of the incidents described by
Bales and Miller that they had personally observed. Cooke, who was personally
involved in the spitting incident, stated that he feared for his safety when J.D.J.
attempted to spit at him. Zuhse said he feared the same when J.D.J. threatened to
“beat [his] ass” and he took seriously threats to other staff that he heard J.D.J.
make from his cell. Zuhse also saw J.D.J. throw warm soup at another member of
the staff after stating, “you think I’m not a killer, all right then ….” Finally, Zuhse
testified that when he asked J.D.J. why he assaulted staff, J.D.J. replied:

9
Typically, a “failure to object constitutes a forfeiture of the right on appellate review.”
State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612. This rule “enable[s] the
[trial] court to avoid or correct any error as it comes up, with minimal disruption of the judicial
process and maximum efficiency.” State v. Counihan, 2020 WI 12, ¶26, 390 Wis. 2d 172, 938
N.W.2d 530. This forfeiture rule “encourages timely objections and obviates the need for
appeal.” Id. In this case, this court will review the statements regardless.

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No. 2022AP1138

[O]nce I get to GP [General Population] I’ll show you a
real assault and the next time you go to court you can tell
the Judge I’m going to kill you and Dr. Monese.

¶28 The trial court did not explain the basis for its decision to allow the
testimony of Bales and Miller to remain in the record, but that is not surprising
given the heat and fast pace of a jury trial. It is not uncommon for a court to give
short, non-explanatory rulings in front of a jury; in fact, it is preferred. That
failure to elaborate its rationale is not necessarily fatal to the decision because “if a
[trial] court does not explicitly engage in balancing on the record, an appellate
court can nevertheless affirm, if the record indicates that balancing is implicit from
the [trial] court’s determination.” State v. Gary M.B., 2004 WI 33, ¶26, 270
Wis. 2d 62, 676 N.W.2d 475; State v. Pharr, 115 Wis. 2d 334, 347, 340 N.W.2d
498 (1983). This court is to review the record to ascertain reasons to uphold
discretionary decisions by the trial court. State v. Hunt, 2003 WI 81, ¶52, 263
Wis. 2d 1, 666 N.W.2d 771, reconsideration granted, 2003 WI 140, 266 Wis. 2d
68, 671 N.W.2d 853; Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282
Wis. 2d 46, 698 N.W.2d 610. “We cannot search the record to find reasons to
overturn [a court’s] discretionary decisions.” State v. X.S., 2022 WI 49, ¶53, 402
Wis. 2d 481, 976 N.W.2d 425. The record indicates that the majority of the
incidents or threats described by the two doctors were corroborated by the
admissible testimony of the two PCTs who had personal knowledge of them, if not
by J.D.J. himself. Thus, S.Y. is clearly distinguishable for those parts of the
doctors’ testimony, and the trial court had a reasonable rationale for not striking
that testimony.

¶29 Even if the remaining testimony that was not corroborated was, in
fact, inadmissible, reversal is still not warranted because it was harmless error by
the trial court that did not affect J.D.J.’s substantial rights. See Martindale v.

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No. 2022AP1138

Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698. Any inadmissible
testimony did not reasonably contribute to the outcome of the proceedings, see id.,
¶32, because the remainder of the record very strongly supports the verdict on
dangerousness. There was significant admissible testimony as to threats by J.D.J.
that caused Miller, Cooke, and Zuhse to fear for their personal safety. The
admission of the potential hearsay does not undermine this court’s confidence in
the outcome of the jury trial as to dangerousness because they were “strongly
supported by evidence untainted by error.” See id.

¶30 Given the volume of untainted evidence showing that J.D.J. was
dangerous and the limited amount of hearsay, the potentially erroneous admission
of that hearsay testimony by the trial court was harmless error and does not
provide a sufficient basis upon which to reverse the jury’s verdict. See State v.
Moore, 2002 WI App 245, ¶16, 257 Wis. 2d 670, 653 N.W.2d 276.

IV. J.D.J.’s prior convictions were properly used as impeachment.

¶31 J.D.J. raises two concerns about his prior convictions. First, he
contends that while the trial court only allowed the two standard questions (have
you been convicted in the past, and how many times) the County went case-by-
case and described each offense. He further contends that Miller, on his own,
raised J.D.J.’s prior “conviction for throwing or expelling bodily fluids on people
in the past” in his testimony. The trial court overruled J.D.J.’s motion to strike
Miller’s statement. J.D.J. complains that the lack of further explanation for the
court’s ruling necessitates reversal.

¶32 J.D.J. fails to acknowledge that the trial court’s limitation to two
questions about his prior convictions only applied if he correctly answered the
questions. He did not. He admitted he had previously been convicted of a crime,

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No. 2022AP1138

but he then said he did not “keep count” of the convictions and was not able to
state how many times he had been convicted. Pursuant to WIS. STAT. § 906.09(1)
and the court’s pretrial ruling, that nonanswer allowed the County to delve more
deeply into the convictions. That was proper impeachment and not a basis for
reversal. See Nicholas v. State, 49 Wis. 2d 683, 689, 183 N.W.2d 11 (1971).

¶33 The prior conviction mentioned in Miller’s statement was properly
explored in J.D.J.’s impeachment testimony. Therefore, even though it was
arguably inappropriate—and could potentially have been struck from the record—
the trial court’s decision to allow it to remain is harmless error. Miller apparently
mentioned the prior conviction because he was confused by the questions asked by
J.D.J.’s counsel. He stopped his testimony once the objection was made and he
did not elaborate any further. It, like the other hearsay testimony, did not
substantially affect the outcome of the trial.

V. The other alleged violations of the pretrial ruling were, likewise,
harmless.

¶34 J.D.J. also argues that the County violated several uncontested
portions of his motion in limine. These include the following:

3. Inmate status: That the Respondent [J.D.J.] not be
referred to as an inmate or prisoner. That the
Respondent may be referred to as a patient.

4. Prison setting: That the Wisconsin Resource Center
not be referred to as a prison. That Wisconsin
Resource Center may be referred to as a facility.

****

7. Sequestration of witnesses: That all witnesses be
excluded from the courtroom and be admonished
not to discuss their proposed testimony with any
other witnesses.

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No. 2022AP1138

¶35 Each is addressed below. None of the arguments or purported
violations rise to the level of warranting a new trial or otherwise provide a basis
upon which to reverse the discretionary decisions of the trial court.

A. Bales’s references to WRC, prison, inmates, and more were
harmless and were also routinely made by J.D.J. and his
counsel.

¶36 J.D.J. contends that the County’s “expert witness routinely violated
the pre-trial ruling to exclude testimony that referred to WRC as a prison [and]
referred to [J.D.J.]’s status as an inmate or prisoner.” J.D.J. did move to strike
Bales’s entire testimony “for repeat violations of the motion in limine discussing
correctional officers, [J.D.J.’s] criminal history, as well as being placed in a
supermax.” The trial court overruled the objection, stating that Bales was “just
describing what it is like being there and it is a situation where he’s being
supervised closely so I’ll deny the request -- overruled.” J.D.J. asserts that the
court did not make “a reasonable conclusion” because Bales “made several
prejudicial statements that did more than just describe his experience at WRC.”
This court disagrees.

¶37 Contrary to J.D.J.’s assertions that Bales called WRC a prison, Bales
actually started his testimony by stating that he met with J.D.J. at WRC “where he
is a patient.” This was clear, nonprejudicial, and carried no “prison stigma.” The
other references by Bales to which J.D.J. points likewise do not imply prison
versus a highly secured mental institution: (1) mention of a “security person”;
(2) a comment that J.D.J. was behind “a Plexiglass wall and he was in handcuffs”;
(3) reference to staff as guards and correctional officers; (4) characterizations of
J.D.J.’s peers as “inmates;” and (5) a comment that J.D.J. was “kept on a high

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No. 2022AP1138

security unit.” In addition, J.D.J. complains that Bales said his unit was “almost a
supermax.”

¶38 Simply saying that WRC has security similar to a “supermax” is not
the equivalent of saying it is a supermax prison or that J.D.J. is a prisoner. The
trial court aptly noted that Bales was describing the level of security and not
saying or even implying that WRC was a prison. This discretionary decision is
not clearly erroneous—especially given the numerous references (or perhaps more
apt, slips of the tongue) made by J.D.J. and his counsel, as noted below.

¶39 Nor do the other terms—except, arguably, “correctional officers”—
necessarily imply a prison setting. Mental institutions may have security or other
guards, may use restraints or handcuffs on unruly patients, may have high- and
low-security units, and may call patients inmates. True the reference to
correctional officers is not the best turn of phrase, but when taken into
consideration with all the references made and terms used by J.D.J.’s counsel and
J.D.J. himself, it pales in comparison.

¶40 J.D.J.’s counsel routinely made references that could imply a prison
setting as opposed to a mental institution. First, in his opening statement, he
painted a grim picture—grimmer than that described by the County or its
witnesses:

Every day [J.D.J.] resides at a facility that he cannot
leave. Every day [J.D.J.] is supervised around the clock.
Every day simple decisions like what to wear, what to
watch on TV and what to eat are made by others, but today
the government wants to take even more of his liberties
away. The government wants to force an involuntary
mental commitment on [J.D.J.] that he does not want.

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No. 2022AP1138

¶41 In addition, J.D.J.’s counsel asked witnesses about “asking the staff
member to come to [J.D.J.]’s cell” or “cell door;” “other times he has assaulted
staff or other inmates;” whether he would “feel comfortable meeting up with
[J.D.J.] on the jail -- excuse me, the WRC grounds?;” and, in questioning J.D.J.,
whether he has “attacked or attempted to attack any inmates or any patients or
staff since June?”

¶42 In his own testimony, J.D.J. as well made five references to his
“cell,” denied that he had “any intention to attack any inmate,” and said that “in
the hole we come out once a day or depending on what level you are on. If you
are on a high level, you come out twice a day.”

¶43 In fact, the closest reference to WRC as a prison was when J.D.J.’s
counsel apparently slipped and called it a jail. In response to the only objection to
these types of statements, the trial court concluded that the supermax
characterization did not unfairly stigmatize J.D.J. in the eyes of the jury. The
court apparently concluded that there was no intentional violation of its order.
This court agrees. The references to inmates and guards by the County’s
witnesses were not prejudicial, especially in view of J.D.J.’s own references to
indicia of imprisonment, and does not appear to have been intentional. The
court’s discretionary decision to deny the motion to strike testimony was
supported by the record and, thus, was not clearly erroneous.

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No. 2022AP1138

B. The failure to exclude10 witnesses from the courtroom was
not prejudicial.

¶44 There is no question that the County’s witnesses were to be excluded
from and not present in the courtroom until after they testified. There is also no
question that PCTs Cooke and Zuhse were present for at least part of Bales’s
testimony. After this issue was brought to its attention, the trial court immediately
ordered the two PCTs to leave the courtroom until they were called to testify.
J.D.J. contends that the trial court made two errors with respect to this situation:
(1) it allowed the PCTs to testify without immediately addressing his objection;
and (2) it refused to strike the PCTs’ testimony “after determining that the
violation was not prejudicial and it was trial counsel’s fault.” The County asserts
that Bales (the only witness the two PCTs could have heard testify) was not asked
on direct examination detailed questions on the spitting incident; it was J.D.J.’s
counsel who delved more into the facts, to his possible detriment. The County
also argues that no one—not even the court—noticed the witnesses in the
courtroom, and when they did, they were asked to promptly leave. Then, the
County asserts, the court made a thoughtful and reasoned decision when it refused
to strike their testimony.

10
Parties (and courts) commonly—and mistakenly—refer to the “sequestration” of
parties, witnesses, or others, when the statute at issue addresses the “Exclusion of witnesses.”
WISCONSIN STAT. § 906.15(1) states that “[a]t the request of a party, the judge or a circuit court
commissioner shall order witnesses excluded so that they cannot hear the testimony of other
witnesses.” Section 906.15(3) provides that “[t]he judge or circuit court commissioner may direct
that all excluded and non-excluded witnesses be kept separate until called and may prevent them
from communicating with one another until they have been examined or the hearing is ended.”
Those are appropriate legislative directives given that the definition of “exclude” means “to
prevent or restrict the entrance of” and “to bar from participation, consideration, or inclusion”
while “sequester” means “to set apart.” Exclude, THE MERRIAM-WEBSTER.COM DICTIONARY,
https://www.merriam-webster.com/exclude (Feb. 16, 2023); Sequester, id., https://www.merriam-
webster.com/sequester (Feb. 5, 2023). Sequestration is more appropriately used when witnesses
or jurors are not allowed to return to their homes, but are instead “set apart” at a hotel or other
lodging. Accordingly, this court will use exclusion order in lieu of sequestration order.

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No. 2022AP1138

¶45 The trial court did not inappropriately cut off discussion when it
allowed the sidebar that resulted in the PCTs leaving the courtroom. The court did
not “blame” defense counsel for not objecting earlier; it merely explained that no
one had noticed the men entering the room. The court did conduct a thorough
review of the testimony the men likely heard and determined that it was not
duplicative of Cooke’s testimony because Bales mentioned the spitting incident
almost in passing in direct examination. This court concludes that the trial court
did not erroneously conclude that there was limited peril by the slight violation of
the order of exclusion. Cooke was a primary witness to the spitting incident. He
was not filling in the holes of Bales’s testimony, but rather testifying about his
first-hand observations. There was no error here, and J.D.J.’s final argument is
without merit.

CONCLUSION

¶46 Based upon the foregoing, this court concludes that none of J.D.J.’s
arguments on appeal warrant reversal. J.D.J. received a fair trial on his initial
commitment. The trial court did not erroneously exercise its discretion when it
refused to strike hearsay testimony of Bales and Miller regarding J.D.J.’s
dangerousness; or the admission thereof was harmless error. The County properly
impeached J.D.J. with his prior convictions. The court also reasonably exercised
its discretion when it refused to strike testimony that J.D.J. argues was suggestive
of his status as a prisoner and when it allowed the PCTs to testify despite their
violation of the pretrial ruling on exclusion.

¶48 Accordingly, this court affirms both the civil commitment order and
the order for involuntary medication and treatment.

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No. 2022AP1138

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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