State v. Marcus Crosby

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.
September 18, 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 Nos. 2022AP924-CR Cir. Ct. Nos. 2022CM114
2022CM169
2022AP943-CR 2022CF954
2022AP1109-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARCUS CROSBY,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Waukesha County:
JENNIFER R. DOROW, 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).
Nos. 2022AP924-CR
2022AP943-CR
2022AP1109-CR

¶1 PER CURIAM. In this consolidated appeal, Marcus Crosby appeals
involuntary medication orders entered in felony and misdemeanor proceedings.
He argues the orders were based on constitutionally inadequate evidence and
therefore violated his due process rights. We conclude there was sufficient
evidence to support the order in the felony matter under the four-part test
articulated in Sell v. United States, 539 U.S. 166 (2003). We therefore need not
decide whether dangerousness in an institutional setting constitutes a separate and
independent basis for an involuntary medication order. Additionally, both the
mootness doctrine and the harmless error doctrine counsel against addressing the
constitutional validity of the misdemeanor order. Accordingly, we affirm.

BACKGROUND

¶2 The involuntary medication orders at issue in this consolidated
appeal relate to three criminal cases. As described more fully below, the first two
cases concern misdemeanor offenses that took place in January 2022. The third
case, a felony matter, relates to Crosby’s alleged conduct in June 2022 while
confined in the Waukesha County Jail.

¶3 On January 21, 2022, Crosby was charged with disorderly conduct
based on his alleged conduct the prior day at Brookfield Square Mall, where he
shouted profanities at guests and refused to leave the premises.

¶4 A few days later, Crosby allegedly violated the conditions of his
signature bond when he returned to the mall while it was closed and refused to
leave. He was taken into custody, but upon his release he allegedly engaged in
loud, disruptive conduct at two other businesses necessitating police intervention.
At the second location, Crosby refused requests by the business and by police to

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leave. Crosby began making erratic movements with his body, and officers feared
he was going to strike or fight them. They eventually decided to restrain Crosby,
at which time Crosby allegedly continued shouting and began to “violently thrash
from side to side and kick his legs.” Crosby was ultimately tased and arrested.
Based on those events, Crosby was charged with two counts of bail jumping, one
count of disorderly conduct, and one count of resisting an officer, all
misdemeanors.

¶5 At the probable cause hearing for the first mall incident, the court
commissioner ordered a competency evaluation to be completed within thirty days
and set the matter for a February 21, 2022 hearing before the circuit court. At the
February 21 hearing, the circuit court extended the competency order to the
second misdemeanor case. Thereafter, the competency proceedings occurred in
tandem for both misdemeanor matters.

¶6 Psychiatrist John Pankiewicz evaluated Crosby at the jail and opined
that Crosby lacked substantial capacity to understand court proceedings or assist in
his own defense. Pankiewicz noted Crosby’s historical diagnoses of “severe and
persistent mental illness including Schizophrenia and Schizoaffective disorder,” as
well as that Crosby was exhibiting behaviors consistent with such diagnoses in the
jail, including being “unpredictably aggressive and on occasion scream[ing] for
hours.” Pankiewicz opined that Crosby could be restored to competency within
the statutory time period if treated with medication at an inpatient institution,
which he believed was in Crosby’s best interests. Pankiewicz believed Crosby
would require an involuntary medication order if he was deemed incompetent, as
Crosby had refused treatment and had falsely denied he had any mental illness or
any history of treatment. Pankiewicz did not identify any proposed medications,

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but opined that there were no alternative treatments and the unspecified
medications were not likely to have side effects.

¶7 Crosby appeared in person at the competency hearing on June 1,
2022, but he had to be removed from the courtroom after he stated he was hearing
voices and became disruptive. Pankiewicz offered testimony consistent with his
report. At the conclusion of his testimony, the circuit court asked Pankiewicz
whether Crosby was a danger to himself or others. Relying on Pankiewicz’s
affirmative answer, the court concluded involuntary medication was warranted
because Crosby was a danger to others. The court concluded that it likely could
not order involuntary medication under the four-part due process test articulated in
Sell, as the charged offenses were only misdemeanors that did not reflect an
“important governmental interest at stake.” However, the court understood Sell to
recognize dangerousness as a separate and independent basis for an involuntary
medication order. The involuntary medication order was stayed pending appeal.

¶8 On June 3, 2022, the circuit court held a hearing to clarify its
findings related to the involuntary medication. After that hearing, Crosby was
returned to the jail and allegedly spat in the face of a jail employee. A new felony
case was opened charging Crosby with assault by prisoner and disorderly conduct.

¶9 The circuit court ordered a competency evaluation in the felony
matter, which was completed by Dr. Andressa Medrado Dias Silveira, under the
supervision of psychologist Thomas DeBoer. Medrado Dias Silveira diagnosed
Crosby with schizophrenia and opined that he lacked substantial mental capacity
to understand the proceedings and assist in his defense. She concluded Crosby

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would likely be restored to competency with treatment, including psychotropic
medication, within the statutory period.

¶10 Doctor Michelle Hume submitted an accompanying request for
involuntary medication. Hume prepared an individualized treatment plan that
identified possible drugs to be administered and allowed Crosby to pick from
among the offered antipsychotic medications. If Crosby refused to select one,
Hume stated she would prescribe risperidone, as Crosby had responded to similar
medication in the past. Hume’s report discussed dosage information, delivery
method, possible side effects, and monitoring efforts. Hume’s report offered a
number of conclusions supporting her overall opinion that involuntary medication
was necessary to restore Crosby to competency.

¶11 The circuit court held an evidentiary hearing, at which Medrado Dias
Silveira and Hume testified.1 During Medrado Dias Silveira’s testimony, the court
again inquired about Crosby’s dangerousness, and Medrado Dias Silveira
responded that he seemed “labile and threatening and poses a risk for other
people.” Hume likewise offered the opinion that Crosby posed a danger to himself
or others based on his aggressive behavior and diagnosis.

¶12 Hume also elaborated upon her report. Crosby had been
successfully treated previously using paliperidone. If Crosby refused to select a
medication, Hume proposed to treat him with risperidone, which metabolizes to
paliperidone and is “really the same medication.” Risperidone had the added
benefit of being available in a drinkable liquid form, which Hume hoped could

1
Crosby refused to participate in the hearing.

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avoid forced medication. Hume discussed three categories of possible side effects
to risperidone and noted that if monitoring revealed any serious side effects that
affected Crosby’s cognition, his treatment plan would be modified accordingly.

¶13 As it did with the misdemeanor cases, the circuit court determined
Crosby was not competent to understand the proceedings or assist in his defense
but was likely to become competent within the statutory time period. In ordering
involuntary medication, the court chronicled Crosby’s behavior demonstrating he
was in the throes of a psychiatric crisis, including his aggressive and combative
conduct. And, once again, the court concluded that Crosby’s dangerousness
warranted involuntary medication, independently of the four-part Sell test.

¶14 Unlike the misdemeanor cases, however, the circuit court concluded
the Sell test was also satisfied in the felony matter. The more severe charge
increased the governmental interest at stake, and the court determined involuntary
medication would significantly further the governmental interest in prosecution.
The court next found that the treatment plan was appropriate and that the
medication was substantially unlikely to have side effects that undermined the
fairness of the trial. It also determined involuntary medication was both medically
appropriate in light of Crosby’s condition and necessary in the sense that there
were no alternative, less intrusive treatments likely to achieve substantially the
same results.

¶15 Crosby filed a notice of appeal and a motion to stay the involuntary
medication order in the felony matter pending appeal. The circuit court denied the
motion, and by order we concluded the circuit court did not erroneously exercise
its discretion in doing so. The appeals from the involuntary medication orders in

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the two misdemeanor cases and in the felony case were consolidated for briefing
and disposition by a three-judge panel.

DISCUSSION

¶16 Crosby brings constitutional challenges to the involuntary
medication orders entered in connection with his three cases. We decide de novo
whether an involuntary medication order violates a person’s constitutional right to
due process. State v. Silverstein, 2017 WI App 64, ¶27, 378 Wis. 2d 42, 902
N.W.2d 550. To the extent our review implicates the circuit court’s findings of
historical fact, we review those findings using the “clearly erroneous” standard.2
Marathon County. v. D.K., 2020 WI 8, ¶18, 390 Wis. 2d 50, 937 N.W.2d 901.

¶17 A defendant who is incompetent to stand trial may be, within
constitutional boundaries, subjected to an involuntary medication order as part of
efforts to restore him or her to competency. State v. Fitzgerald, 2019 WI 69, ¶13,
387 Wis. 2d 384, 929 N.W.2d 165. A restoration-to-competency order under WIS.
STAT. § 971.14 (2021-22)3 may include involuntary medication only when the

2
Having concluded that Wisconsin law adequately sets forth the standard of review on
the constitutional issue Crosby raises (and because such review consists of a de novo
consideration of the issue, the most favorable standard for Crosby’s position), we leave for
another day the State’s assertion that the court should adopt separate standards of review for each
of the Sell factors, as articulated in United States v. Diaz, 630 F.3d 1314, 1330-31 (11th Cir.
2011). See State v. Green, 2021 WI App 18, ¶¶19-20, 396 Wis. 2d 658, 957 N.W.2d 583, aff’d in
part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770 (similarly declining to offer a definitive
determination of the standard of review).
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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order complies with the four-factor Sell test. Fitzgerald, 387 Wis. 2d 384,
¶¶26-29.

¶18 Under Sell, to comport with due process, a court desiring to order
involuntary medication must find that: (1) there is an important governmental
interest at stake; (2) the involuntary medication will significantly further that
interest, i.e., the medication will be substantially likely to render the defendant
competent to stand trial and unlikely to have side effects that will compromise the
assistance he or she can provide with the trial defense; (3) the involuntary
medication is necessary to further that interest, in that alternative, less intrusive
treatments are unlikely to achieve substantially the same result; and (4) the
administration of drugs is medically appropriate, i.e., in the patient’s best medical
interest. Fitzgerald, 387 Wis. 2d 384, ¶¶14-17.

¶19 As it relates to Crosby’s felony matter, Crosby challenges only the
circuit court’s findings on the second and fourth factors. Crosby argues that the
second and fourth factors “taken together require a treatment plan tailored to the
defendant that provides the ‘medically informed record’ needed for the court to
evaluate whether involuntary medication is constitutional.” He argues Hume
offered only “non-committal statements regarding medication and dosage” that
amounted to only a general—not individualized—treatment plan. Crosby further
argues Hume’s analysis of risk factors, side effects, and basic health information
was lacking.

¶20 We agree with the State that the evidence was sufficient to support
the circuit court’s findings on the second and fourth Sell factors. As an initial
matter, Crosby concedes Hume identified Crosby’s prior response to treatment, his

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known medical illnesses or drug allergies, and the typical side effects of
risperidone, which was Hume’s preferred medication should Crosby decline to
select his own. Hume also expressed a desire for Crosby to take risperidone
orally, in an expected dosage ranging from four to eight milligrams, or higher
depending on the effectiveness of the drug if some was already in his bloodstream.

¶21 In asserting that the proposed treatment plan fell short of Sell,
Crosby emphasizes that Hume provided detailed information regarding only one
medication, risperidone, and even then discussed only the general side effects of
that drug. But the focus on risperidone was a function of Hume’s recognition that
Crosby had previously been successfully treated with that medication. The other
proposed medications were only to be used conditionally: five milligrams of
short-acting haloperidol, to be injected if Crosby refused an oral antipsychotic
agent, with a maximum of ten milligrams daily; and a long-term injectable version
if Crosby continued his refusals even with short-term treatment. Hume did not
note that Crosby was particularly likely to suffer from any potential side effects of
his preferred drug, and Crosby is unclear as to what more Hume could have done
absent such susceptibility beyond identifying some risk of the side effects
occurring and create an alternative plan should the need arise—both of which she
did.

¶22 Crosby contends the circuit court here did nothing more than
“delegate [the court’s] responsibility [under Sell] to a treating provider,” which is
prohibited under State v. Green, 2021 WI App 18, ¶44, 396 Wis. 2d 658, 957
N.W.2d 583, aff’d in part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770.
Though the quoted language has bite, it is not a contextually appropriate statement
of what occurred here. The Green court chastised the lower court for its “pro-

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forma review” of a treatment plan that was not signed by any physician. Id., ¶44.
The plan in Green consisted of merely “matching a general treatment plan for a
condition to the defendant’s diagnosed condition,” which was insufficient. Id.,
¶34. Moreover, the involuntary medication order at issue in Green had the
sequencing backwards, leaving the medical soundness of the court-ordered
involuntary medication as a determination for the treatment providers to make
after the competency proceedings were done. Id., ¶44.

¶23 Though due process demands much, Crosby’s argument holds the
circuit court to an even more rigorous standard than is supported by Sell,
Fitzgerald, and Green. Crosby suggests the constitutional validity of the
involuntary medication order turns on the treatment plan setting forth exhaustive
details about the defendant, such that the omission of a basic fact like the
defendant’s age or weight could sink an otherwise valid order. Involuntary
medication proceedings are necessarily fact-specific and detailed, but the legal
granularity Crosby suggests is necessary is not supported by the relevant
authorities. More may be required if the defendant has never received medication;
less in a case like this, where Crosby has been successfully treated in the recent
past. And while a treatment plan should certainly take into account a defendant’s
basic medical information—which includes, under Green, age and weight, illness
duration, past responses to psychotropic medications, cognitive abilities, other
medications, etc.—in not every case will these need to be extensively chronicled
to satisfy due process.

¶24 Having concluded that the evidence was sufficient in the felony
matter to satisfy the Sell factors, we have no need to also consider Crosby’s
argument that an individual’s dangerousness does not provide a separate basis for

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the involuntary administration of medication. See Turner v. Taylor, 2003 WI App
256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (observing we need not address all
issues raised by the parties if one is dispositive).

¶25 We also need not consider whether the misdemeanor involuntary
medication order is constitutionally deficient. The State argues that the issues
surrounding the misdemeanor order are moot, since that order (and the
concomitant commitment order) has expired. Crosby concedes the orders in the
misdemeanor matters have expired, but argues the orders might be resurrected at
some future time and have some collateral financial consequences that make the
mootness doctrine inapt.

¶26 Both the mootness and the harmless error doctrines counsel against
our review. The harmless error doctrine instructs that in every stage of an action,
courts shall disregard errors or defects that do not affect the substantial rights of
the adverse party. WIS. STAT. § 805.18; State v. Nieves, 2017 WI 69, ¶60, 376
Wis. 2d 300, 897 N.W.2d 363. An error affects the substantial rights of a party if
there is a reasonable probability of a different outcome absent the error. Id., ¶17.
The mootness doctrine applies if the resolution of an issue will have no practical
effect on the underlying controversy. Portage County. v. J.W.K., 2019 WI 54,
¶11, 386 Wis. 2d 672, 927 N.W.2d 509. Both harmless error and mootness
present questions of law. Id., ¶10; State v. Jackson, 2014 WI 4, ¶44, 352 Wis. 2d
249, 841 N.W.2d 791.

¶27 Ascertaining whether there was error associated with the
misdemeanor cases would not, as a practical matter, benefit Crosby, and
moreover, even if there was error it would not have affected Crosby’s substantial

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rights. The misdemeanor involuntary medication order was stayed almost
immediately and has never been enforced. By Crosby’s own admission, it is now
expired and cannot be enforced in the future. Although Crosby argues he might be
liable for the cost of his commitment under WIS. STAT. ch. 46, he does not explain
how that liability could extend to the cost of administering involuntary medication
under an order that, as a practical matter, has never been active.

¶28 Crosby also emphasizes the “stigmatizing consequences of a transfer
to a mental hospital for involuntary psychiatric treatment,” Vitek v. Jones, 445
U.S. 480, 494 (1980), as demonstrating continuing harm if the misdemeanor
involuntary medication order is not vacated. But in light of our affirming the
felony involuntary medication order, a reversal of the misdemeanor order would
not remove any stigmatizing effect. It would be a perfunctory gesture that would
not obtain Crosby any meaningful benefit.

By the Court.—Orders affirmed.

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

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