State v. Darrell Aferon Morrow

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.
August 2, 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. 2020AP1637 Cir. Ct. No. 1996CF961629

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DARRELL AFERON MORROW,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
T. CHRISTOPHER DEE, Judge. Affirmed.

Before Donald, P.J., White and Gundrum, 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. 2020AP1637

¶1 PER CURIAM. Darrell Aferon Morrow appeals the order denying
his petition for discharge from WIS. STAT. ch. 980 (2019-20)1 commitment.
Morrow argues that the trial court admitted hearsay treatment progress notes
without a valid exception. We conclude that the statements were generally
admissible as public records and reports pursuant to WIS. STAT. § 908.03(8).
Further, any statements admitted in error were harmless. Accordingly, we affirm.

BACKGROUND

¶2 In 1990, Morrow was convicted of first-degree sexual assault, armed
robbery, false imprisonment, second-degree recklessly endangering safety, and
carrying a concealed weapon. In 1996, the State petitioned the trial court to detain
Morrow as a sexually violent person within the meaning of WIS. STAT.
§ 980.01(7) (1995-96). The trial court found Morrow was a sexually violent
person and committed him to the custody of the Department of Health and Social
Services, the predecessor agency to the Department of Health Services (DHS). He
was placed at Sand Ridge Secure Treatment Center (Sand Ridge) in 2001 and
remains detained there.

¶3 In April 2018, Morrow filed a pro se petition for discharge from ch.
980 commitment.2 In November 2018, the trial court received the Chapter 980
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Morrow has previously appealed his ch. 980 commitment. See e.g. State v. Morrow,
No. 2005AP672, unpublished slip op. (WI App Aug. 22, 2006); State v. Morrow, No.
2014AP1150-NM, unpublished slip op. (WI App Dec. 17, 2015); State v Morrow, No.
2017AP990-NM (WI App Jan. 12, 2018); State v. Morrow, No. 2018AP327-NM, unpublished
slip op. (WI App Jul. 23, 2018); State v. Morrow, No. 2018AP681-NM, unpublished slip op. (WI
App Dec. 7, 2018). None of the appeals resulted in a change of his status under the ch. 980
commitment order; further, they are not relevant to the question before us and we address them
no further.

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Re-examination Report from Dr. Charles Lodl, who interviewed Morrow and
reviewed historical documents provided by his attorney and current treatment
records from Sand Ridge. Dr. Lodl opined that “[g]iven his age … physical
condition, and his current assessment of risk…he no longer meets the criterion that
he is ‘more likely than not’ to commit a future violent sexual offense. Therefore, I
recommend … Mr. Morrow be considered for discharge from his Chapter 980
commitment.” Dr. Lodl reaffirmed his recommendation in a Chapter 980 Re-
examination Report - Update to the court submitted in January 2020.

¶4 In March 2019, the court received the Department of Health Services
(DHS) Chapter 980.07 and Treatment Progress Report, which included the opinion
of Dr. William Merrick, a licensed psychologist employed by the State of
Wisconsin as a Chapter 980 evaluator. Dr. Merrick determined that Morrow did
“not meet the requirement for supervised release under 980.08(4).” He further
opined that Morrow’s “risk to commit a sexually violent act as defined by the
Chapter 980 statute is more likely than not should he be discharged from his
commitment.” Dr. Merrick concluded that the treatment progress notes showed
that Morrow was “not making significant progress in treatment at this time.”

¶5 The court conducted a trial on Morrow’s petition in January 2020.
Dr. Merrick testified that he was assigned by DHS to conduct the annual
evaluation of Morrow pursuant to WIS. STAT. § 980.07. He first evaluated
Morrow in 2016 and he reviewed the available records including those from DHS,
Department of Corrections (DOC), medical record notes, treatment progress notes,
case notes, and social work therapeutic services records. He concluded that
Morrow continued to meet the qualifications for ch. 980 commitment in 2016,
2017, 2018, and 2019.

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¶6 During Dr. Merrick’s testimony, the State introduced and reviewed
records of treatment progress notes from Sand Ridge staff, exhibits eight through
twenty-six.3 Morrow’s counsel raised a concern about hearsay statements within
the exhibits containing treatment progress notes, particularly for statements
attributed to anyone other than Morrow. The State argued that treatment progress
notes were admissible as treatment records “among many, many other reasons.”
Morrow’s counsel did not object to exhibits eight through twelve and those
exhibits were received by the court. During the discussion over the admission of
exhibit thirteen, Morrow’s counsel asked for a “standing objection to records
admitted for treatment purposes,” which the court allowed. From that point on,
the court acknowledged Morrow’s hearsay objection to the remaining progress
treatment note exhibits, a total of fourteen exhibits in all. The exhibits and the
statements Morrow challenges on appeal are detailed below.

¶7 Dr. Merrick testified that exhibit thirteen contained progress
treatment notes from Alan Tripp, LCSW, Morrow’s personal individual treatment
provider at Sand Ridge, from April 14 through 19, 2019. Counsel noted that it
contained two types of statements, first statements by Morrow that included
“earlier in his life that his sex drive is out of control” and recalling his time in the
community, saying “crime was fun,” and “[t]he money was fun.” Second, there
was a comment from the note author, Tripp, who observed “that Mr. Morrow

3
We note that the record reflects that exhibits eight, ten, seventeen through twenty-one,
twenty-three, and twenty-four were treatment progress notes from Sand Ridge unit staff; exhibits
eleven through thirteen, fifteen, sixteen, twenty-two, twenty-five, and twenty-six were individual
treatment progress notes from Alan Tripp, LCSW, at Sand Ridge; exhibit nine was treatment
progress notes from another DHS provider; and exhibit fourteen contained progress notes from a
psychiatric assessment, which also contained comments attributed to other staff members or
providers. We note that exhibit ten was received without objection at trial, but the exhibit itself
was not included in the appellate record.

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would benefit from developing a more realistic vision of his community living
environment.” Morrow’s counsel objected that conclusions by Sand Ridge staff
members were hearsay. The State responded that the first was Morrow’s own
statement, admissible as statements against penal interest. The State argued that
the second was “treatment records and they certainly are admissible in 980 trials
for the purposes of illustrating the elements.” The court agreed that the statement
appeared to be “a statement of treatment, or treatment needs or observation for
diagnosis, or prognosis … so I will receive it.”

¶8 Next, Dr. Merrick testified about exhibit 14,4 which contained the
psychiatry assessment and progress notes from Dr. [Brigitte] Espinoza, a
Sand Ridge psychiatrist, in June 2019. Dr. Merrick commented about a note
within the report that stated: “After being referred for a chest x-ray because
[Morrow] was coughing up blood … they put a tube down his throat and pulled
out a seven-inch toothbrush that he said he didn’t know how it got there.” Within
the same report, Morrow reported that the toothbrush “must have been there for
twenty years because in the past he would also eat these strange things in a
possible suicide attempt, things like a bottle cap, a Styrofoam cup, and in the
remote past a toothbrush again.” In addition to the comments regarding the
suicide attempt, Dr. Espinoza noted a “fixed delusion” that Morrow believed he

4
For ease of reading, we note in this and the following footnotes the statements that
Morrow challenges in the relevant exhibits. Although he challenges the progress treatment notes
in general, and a total of fourteen exhibits had objections noted at trial, Morrow identifies on
appeal ten statements within seven exhibits as erroneously admitted. From exhibit fourteen, Dr.
Espinoza’s June 2019 psychiatric assessment included a patient history and a statement from a
social worker dated 5/30/2003: “1-24-97- cut electrical cord, grabbed bare wire and plugged into
socket … Attempted to eat objects like a bottle cap, toothbrush and styrofoam cup. He tried to
hang himself in 1990[.]”

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would “make millions of dollars as the result of a lawsuit for being unlawfully
committed.”

¶9 Dr. Merrick then testified about exhibit fifteen,5 which contained
Tripp’s treatment progress summary from September 2019. Morrow was engaged
in individual therapy as opposed to group therapy for sex offenders because of
“the limitations with his mental disorder … and he had some difficulties getting
along with other patients and sometimes staff members.” Dr. Merrick testified
that Morrow received three of the least serious type of conduct sanctions, which
are called “counsels” at Sand Ridge, during July 2019 and August 2019. Dr.
Merrick agreed with Tripp’s observation that Morrow’s periods of increased
irritability appeared to coincide with an increase in positive symptoms of his
mental illness. Dr. Merrick also agreed with Tripp’s observation that Morrow is
not able to question or effectively engage in reality testing.

¶10 Dr. Merrick next addressed exhibit sixteen, which contained Tripp’s
individual treatment progress notes from September 2019. Tripp memorialized
two of Morrow’s fixed delusions: rampant sexual activity among the staff and
concerns about making money from the publication of his autobiography. Dr.
Merrick agreed with Tripp’s observation that Morrow demonstrated no insight into
the nature of his beliefs about the staff.

5
From exhibit fifteen, Morrow identifies as hearsay three statements from Tripp: (1) “It
appears Mr. Morrow’s mental illness impacted the expression of his sexual behavior and
impulsivity”; (2) “Mr. Morrow’s major mental illness interferes with his ability to benefit from
traditional sex offender programming”; and (3) “In mid to late July [2019], unit staff noted what
appeared to be an increase in Mr. Morrow’s irritability as evidenced by arguments and critical
comments toward peers and staff[.]”

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¶11 Next, Dr. Merrick testified about exhibit seventeen,6 which
contained unit treatment progress notes from September 2019 referencing two of
Morrow’s statements. First, Morrow stated, “I am sick of you telling me the
rules” referring to another patient speaking to him. Second, he stated, “I do what I
want, all you staff break all the rules here anyway so what is the fucking
difference if I do.”

¶12 Dr. Merrick testified that exhibit eighteen7 contained unit treatment
progress notes from October 2019, which stated that Morrow refused to take his
medication on October 3, 2019. Morrow eventually complied and took his
medication.

¶13 Dr. Merrick next discussed exhibit nineteen,8 which contained unit
treatment progress notes from October 14, 2019. Morrow was notified by staff
members, that Morrow should not be sitting and watching the staff members and
other patients coming and going to “seeming to keep an eye on them.” The notes
record Morrow’s response as “you can tell me that all the time, I don’t care, I am
going to do what I do. I have been here eighteen years and I deserve special
treatment.”

6
From exhibit seventeen: “[Patient] Morrow brought the food tray cart … into the
hallway …. [Morrow] could be heard yelling in the Hallway. [Morrow] when he returned to his
unit writer stated to Morrow there is no yelling in the hallway.”
7
From exhibit eighteen: Morrow “sat at the patient phone station after dinner staring out
the window. After dinner, at [5:00 p.m.] medication pass arrived on unit. Patient was asked to go
to the dayroom[.]”
8
From exhibit nineteen: “This [unit] writer peeked into the [multi-purpose room] and
noticed that [Patient] Morrow was not reading or even looking at the papers. [Morrow] would
stare out into the hall and watch for other patients and staff coming through the sally ports and
into the other units.”

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¶14 Dr. Merrick testified about unit treatment progress notes in exhibit
twenty, from October 21, 2019, when Morrow was again told not to watch staff.
The notes recorded his response (without quotation marks) as I am tired of being
harassed from staff every fucking day. Dr. Merrick opined that his insistence on
watching staff despite being told not to do so may possibly be “a combination of
the personality disorder and … some micro-decompensation of his mental status
due to the schizoaffective disorder.”

¶15 Dr. Merrick next addressed exhibit twenty-one,9 unit treatment
progress notes from October 23, 2019, which included comments from a female
psychiatric care technician, who stated that Morrow asked her if any of the “higher
ups” asked the technician for sexual favors. The technician told him no and that
his thought might be part of his delusions and he admitted that might be true.

¶16 Dr. Merrick testified about exhibit twenty-two, which contained
Tripp’s individual treatment progress notes from November 13, 2019. Morrow
commented that “you ain’t hearing me crossing women’s boundaries, it is because
I ain’t doing that.” And he also stated that he continued to believe that women
staff members were engaging in sexual contact with other patients and that
bedtime was a challenge every night because women staff members came into the
unit and may ask him for sex.

9
From exhibit twenty-one: “It was approximately [8:25 p.m.], before the evening
medication pass. [] Morrow waited to approach the PCT desk until [the report] writer[] was alone
sitting at the desk. Patient asked me ‘have any higher ups asked you for sexual favors.’”

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¶17 Dr. Merrick testified about exhibit twenty-three,10 which included
unit treatment progress notes from November 11 to 13, 2019. The notes detail
Morrow’s troublesome behaviors in the unit including a sing-song voice, rhyming
in almost every verbal interaction, and turning up the volume on music in the day
room and leaving. Dr. Merrick opined that these behaviors could be a sign that
Morrow has been a resident of Sand Ridge for almost two decades and he is bored,
but may also indicate “rabble rousing or causing upset.”

¶18 Dr. Merrick testified about unit treatment progress notes from
November 18, 2019, in exhibit twenty-four. Morrow asked a female employee
how many personalities she thought Morrow had. Dr. Merrick opined that based
on his review, he did not believe Morrow had a diagnostic issue with multiple
personalities.

¶19 Dr. Merrick testified about exhibit twenty-five, which contained
Tripp’s individual treatment progress notes from November 25 through 29, 2019.
Morrow told Tripp that he was not ready to leave Sand Ridge.

¶20 Dr. Merrick testified about exhibit twenty-six, which contained
Tripp’s treatment progress summary from December 9 through 13, 2019. Morrow
stated that he was preoccupied with sex. Tripp made a note that “Mr. Morrow has
caught himself before soliciting women’s staff even though he is experiencing
more symptoms and is not able to consistently question or effectively engage in
reality testing.” Dr. Merrick agreed with Tripp’s assessment.

10
From exhibit twenty-three: “Morrow has been antsy on the unit. [Morrow] will sit in
the [multi-purpose room] and stare at patients and staff[.]” Additionally, in Morrow’s appeal, he
objected that the exhibit contained “13 bullet points of observations of Morrow’s behavior on the
unit[.]”

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¶21 Finally, Dr. Merrick testified about his evaluation of Morrow and the
reasoning behind his opinion that Morrow’s mental disorders predisposed him to
engage in future acts of sexual violence and that it was more likely than not that
Morrow would engage in future acts of sexual violence. Dr. Merrick testified
about discerning the future risk of Morrow committing an act of sexual violence
using assessment tools including the STATIC-99 and calculations to extrapolate
lifetime risk, and the results of prior administration of the Psychopathy Checklist,
Revised. Dr. Merrick did not recommend granting the petition for discharge.

¶22 Morrow then called Dr. Lodl, who testified that he maintained his
opinion that Morrow no longer fit the criteria for continued commitment, with a
risk of less than 50%. Dr. Lodl testified about the assessment tools he employed
in reaching his conclusions, tools which included the Structured Risk
Assessment—Forensic Version, STATIC-99R and the Violence Risk Scale Sex
Offender version. Additionally, Morrow testified on his own behalf.

¶23 The court reviewed the case in its oral ruling, stating that there was
no dispute that Morrow had a previous conviction for a sexually violent offense as
defined by WIS. STAT. § 980.01(6), and that Morrow was diagnosed with a mental
disorder predisposing him to commit acts of sexual violence as defined by WIS.
STAT. § 980.01(2). The dispute was whether Morrow satisfied the third factor in
ch. 980 commitment or discharge, whether Morrow was more likely than not—
which the court stated is more than a 50% chance—to commit sexual violent acts
in his lifetime. The court considered the expert opinions of Dr. Merrick and Dr.
Lodl, noting the different risk assessment tools each employed in analyzing
Morrow.

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¶24 The circuit court noted that “there was one fact in this case … I
would term it a big needle mover.” The court stated that the testimony of both
doctors showed “perhaps in different terms and perhaps with different emphasis
… that Mr. Morrow hasn’t come to grips with, hasn’t fully admitted, hasn’t fully
acknowledged what it is that resulted in his first-degree sexual assault conviction.”
Because of Morrow’s inability to accept the nature of his previous crime, the court
found “that a great deal more weight should be afforded to Dr. Merrick’s
testimony and assessments.” The court found that the State proved this third
element by clear and convincing evidence. Accordingly, the court denied Morrow
petition for discharge, and issued a written decision finding that Morrow was still
a sexually violent person.

¶25 This appeal follows.

DISCUSSION

¶26 Morrow argues that the trial court erred when it admitted exhibits
containing Morrow’s treatment progress notes from Sand Ridge. Morrow argues
that the treatment progress notes do not fall within an exception to the prohibition
on hearsay, rejecting claims that the notes would fall within the exception for
“statements for purposes of medical diagnosis or treatment” under WIS. STAT.
§ 908.03(4) or as records of regularly conducted activity under § 908.03(6).
Conversely, the State contends that the treatment notes fall under the exception for
public record and reports under § 908.03(8).

¶27 Out-of-court statements offered to prove the truth of the matters
asserts within them constitute hearsay and are excludable under WIS. STAT.
§ 908.02 unless the statements are admissible under a hearsay exception under
WIS. STAT. §§ 908.03, 908.04, 908.045. See State v. Sorenson, 143 Wis. 2d 226,

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240, 421 N.W.2d 77 (1988). “The admission of out-of-court statements pursuant
to an exception to the hearsay rule is a determination left to the discretion of the
circuit court.” State v. Huntington, 216 Wis. 2d 671, 680, 575 N.W.2d 268
(1998). This court “may review the record to determine if a statement is
admissible under a particular hearsay exception even though the [circuit] court did
not admit the statement on that basis.” State v. Kutz, 2003 WI App 205, ¶33, 267
Wis. 2d 531, 671 N.W.2d 660. “Furthermore, if evidence has been erroneously
admitted or excluded, we will independently determine whether that error was
harmless or prejudicial.” State v. Keith, 216 Wis. 2d 61, 69, 573 N.W.2d 888 (Ct.
App. 1997).

¶28 As a threshold matter, Morrow posits that the treatment progress
notes constituted inadmissible hearsay and he provided a “representative sample”
of his concerns.11 There were fourteen exhibits for which trial counsel’s objection
was noted as the circuit court received the exhibit. The State asserts that Morrow
has failed to specify what within the fourteen objected-to exhibits he is asking the
court to review on appeal and the State objects to having to speculate. Here, we
note that Morrow only identifies specific issues with seven exhibits: a statement
by a social worker within the psychiatric assessment, three observations by Tripp,
and five statements within unit treatment progress notes. While Morrow offers
some specific instances of hearsay, ultimately, we review his contention that the
treatment progress notes were inadmissible overall.

11
We noted Morrow’s “representative sample” of challenged statements in the relevant
testimony from Dr. Merrick in the background above, paragraphs seven through twenty.

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¶29 Morrow’s first argument is that the treatment progress notes do not
comply with the strictures of WIS. STAT. § 908.03(4) for medical diagnosis or
treatment.12 When exhibit thirteen was introduced, trial counsel objected that
Tripp’s observations about Morrow were hearsay. The court stated, “It does
appear to be a statement of treatment, or treatment needs or observation for
diagnosis, or prognosis or under any of that, so I will receive it.” However, under
Wisconsin law, “the hearsay exception for statements made for medical diagnosis
or treatment, []§ 908.03(4),” does not apply “to statements made to counselors or
social workers.” Huntington, 216 Wis. 2d at 695. Arguably, with an exception
for exhibit fourteen, which was prepared by a psychiatrist—and for which Morrow
raises a double hearsay objection—the challenged exhibits are all treatment
progress notes prepared by a social worker or unit notes prepared by various staff
members. Therefore, subsection (4) is not a proper exception for exhibits thirteen
and fifteen through twenty-six. Although the record suggests the State considered
admissibility under this exception at trial, the State does not renew or argue this
exception on appeal.

¶30 Morrow’s next objection is that the treatment progress notes did not
fall within the exception for regularly conducted business activities, under WIS.
STAT. § 908.03(6)13 or patient health care records, under § 908.03(6m).14

12
“WISCONSIN STAT. § 908.03(4) provides an exception for “[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain or sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.”
13
The regularly conducted activities exception applies to

(continued)

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Subsection (6) requires testimony by the records custodian or certification of the
notes, neither of which were provided, Morrow argues. The notes were introduced
by Dr. Merrick, who was not the custodian of the records. Subsection (6m) makes
a records custodian unnecessary if the records were either submitted or made
available to all parties at least forty days prior to trial. The State does not argue it
timely provided the records as patient health records and it does not assert it relied
upon this exception. We conclude that neither the exceptions under subsection (6)
nor subsection (6m) are applicable under the record before us.

¶31 The State argues on appeal that the records are admissible as public
records and reports. This exception allows the court to admit:

Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (a) the
activities of the office or agency, or (b) matters observed
pursuant to duty imposed by law, or (c) in civil cases and
against the state in criminal cases, factual findings resulting
from an investigation made pursuant to authority granted
by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.

A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted by, a person
with knowledge, all in the course of a regularly conducted
activity, as shown by the testimony of the custodian or other
qualified witness, or by certification that complies with s. 909.02
(12) or (13), or a statute permitting certification, unless the
sources of information or other circumstances indicate lack of
trustworthiness.

WIS. STAT. § 908.03(6).
14
The patient health care records exception applies to statutorily defined patient health
care record by health care providers. A custodian of the records is unnecessary if at least forty
days prior to trial, “the party who intends to offer patient health care records into evidence”
serves or offers for inspection “accurate, legible, and complete duplicate” of the records to all
parties. WIS. STAT. § 908.03(6m).

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WIS. STAT. § 908.03(8). Here, the state agency at issue is DHS, which is required
to “operate a secure mental health facility for the detention, evaluation and
institutional care of persons under ch. 980.” WIS. STAT. § 46.055. Sand Ridge,
where Morrow is a patient, is operated as a result of that requirement. City of
Madison v. DHS, 2017 WI App 25, ¶16, 375 Wis. 2d 203, 895 N.W.2d 844. DHS
has a statutory obligation to “appoint an examiner to conduct a reexamination of
the person’s mental condition” within twelve months of the initial commitment
and at least every twelve months after that “to determine whether the person has
made sufficient progress for the court to consider whether the person should be
placed on supervised release or discharged.” WIS. STAT. § 908.07(1). As part of
that reexamination, the “treating professional shall prepare a treatment progress
report. The treating professional shall provide a copy of the treatment progress
report” to DHS. § 908.07(4). The report shall include:

(a) The specific factors associated with the person’s risk for
committing another sexually violent offense.

(b) Whether the person is making significant progress in
treatment or has refused treatment.

(c) The ongoing treatment needs of the person.

(d) Any specialized needs or conditions associated with the
person that must be considered in future treatment
planning.

Sec. 908.07(4). The treatment progress notes relate regularly-recorded, dated,
first-hand accounts on Morrow’s behavior, both positive and negative, by staff
members and his individual treatment provider, Tripp.

¶32 The State argues that the treatment progress notes fall under the
public records exception because they were made by DHS staff observing Morrow
pursuant to the duty imposed by WIS. STAT. § 908.07, satisfying WIS. STAT.

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§ 908.03(8)(b). Further, ch. 980 is a civil commitment, which means that if the
records are used to establish factual findings during an investigation, the records
would also satisfy § 908.03(8)(c).15 Additionally, the treatment of custodianship
of public records differs from § 908.03(6) and (6m). Any competent witness,
which Dr. Merrick would undoubtedly qualify as, may provide the identification
of the records and establish the required foundation. See Keith, 216 Wis. 2d at 77.
Further, all of the declarants within the treatment progress notes are part of DHS, a
required rule in assessing this exception. See State v. Gilles, 173 Wis. 2d 101,
113-14, 496 N.W.2d 133 (Ct. App. 1992) (concluding that a proponent of a
hearsay exception under § 908.03(8) would need to qualify the statement of a non-
employee of the organization under a different exception for the statement to be
admissible). Finally, Morrow has not alleged that the treatment progress notes
“indicate [a] lack of trustworthiness.” See § 908.03(8).16 We conclude that the
treatment progress notes in exhibits thirteen through twenty-six satisfy the
requirements of this exception.

¶33 Additionally, Morrow objects to double hearsay in the form of a
comment attributed to a social worker in 2003 in the psychiatric assessment
completed by Dr. Espinoza in exhibit fourteen, dated June 2019. Morrow objects

15
We consider the treatment progress reports produced by DHS for ch 980 commitment
to fall into the definition of public records for the same reasoning applied to “[p]robation and
parole files compiled by the DOC [that] fall within the definition of public records,” under WIS.
STAT. § 908.03(8). State v. Keith, 216 Wis. 2d 61, 77, 573 N.W.2d 888 (Ct. App. 1997). Both
types of records involve persons supervised by a state agency, contain regular updates on a
person’s conduct, and occur in civil proceedings after criminal judgments. See id.
16
The trustworthiness inquiry is the “primary safeguard against the admission of
unreliable evidence, and it is important to note that it applies to all elements of the report.” Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 167 (1988) (discussing the substantially identical
provision in the Federal Rules of Evidence, Rule 803(8)).

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to the social worker’s reference to a suicide attempt in 1990, before Morrow was a
patient at Sand Ridge or even under ch. 980 commitment. As noted above, while
Dr. Espinoza’s report would most likely satisfy WIS. STAT. § 908.03(4) for
medical diagnosis or treatment, and the social worker’s general comments would
fall under the public records exception under § 908.03(8), the hearsay within her
comment most likely would be inadmissible.17 “To be admissible, each prong of a
double hearsay statement must conform with an individual exception to the
hearsay rule.” Huntington, 216 Wis. 2d at 691-92; WIS. STAT. § 908.05.
Therefore, without an exception to hearsay, the reference to the 1990 suicide
attempt was admitted in error. “Furthermore, if evidence has been erroneously
admitted or excluded, we will independently determine whether that error was
harmless or prejudicial.” Keith, 216 Wis. 2d at 69.

¶34 We conclude that the erroneous admission of the double hearsay
statement was harmless error because the record does not reflect that the 1990
suicide attempt was a substantial basis for the court’s decision. The record reflects
that the circuit court heard evidence to support its findings that the State proved
that Morrow was more likely than not to commit an act of sexual violence in the
future. That evidence included Morrow’s lack of significant progress in his
treatment, his ongoing struggles to manage his mental disorders, his troublesome
conduct at Sand Ridge toward staff and other patients, and his own statements that
he did not feel ready to leave Sand Ridge. It is clear beyond a reasonable doubt
that any error in the admission of this double hearsay did not affect the outcome of

The social worker’s reference to the 1990 suicide attempt did not identify the reporter
17

of the information. Because this incident predates Morrow’s placement at Sand Ridge by about
eleven years, by inference, the social worker could not have personal knowledge of the incident.
Therefore, we analyze it under the concern for double hearsay. See WIS. STAT. § 908.05.

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the trial. See State v. Nelson, 2014 WI 70, ¶44, 355 Wis. 2d 722, 849 N.W.2d
317.

¶35 Ultimately, we conclude that the fourteen exhibits of objected-to
treatment progress notes were admissible as public records under the WIS. STAT.
§ 908.03(8) hearsay exception. Although the State argues this was the basis by
which the circuit court admitted the evidence, our examination of the record does
not show which exception the court applied. It referenced a medical diagnosis at
one point, but it did not make a specific ruling. As we concluded in Keith, “[w]e
need not resolve this dispute over the circuit court’s ground for admission because
we may affirm the admission of evidence so long as there is a proper basis for it in
the law.” Id., 216 Wis. 2d at 76. Moreover, “[i]f we can discern a reasonable
basis for its evidentiary decision, then the circuit court has not committed an
erroneous exercise of discretion.” Huntington, 216 Wis. 2d at 681. Therefore, we
conclude the circuit court’s admission of the treatment progress reports in exhibits
thirteen through twenty-six was not an erroneous exercise of discretion.

CONCLUSION

¶36 For the reasons stated above, we conclude that the circuit court’s
exercise of discretion admitting the treatment progress notes was not erroneous.

By the Court.—Order affirmed.

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

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