State v. Denman (In re Commitment of Denman)
| Decision Date | 09 July 2015 |
| Docket Number | No. 2014AP2133.,2014AP2133. |
| Citation | 364 Wis.2d 759,869 N.W.2d 170 (Table) |
| Parties | In re the COMMITMENT Of Kerby G. DENMAN. State of Wisconsin, Petitioner–Respondent, v. Kerby G. Denman, Respondent–Appellant. |
| Court | Wisconsin Court of Appeals |
Kerby Denman appeals a circuit court order denying without a hearing his 2013 petition for discharge from his commitment as a sexually violent person under Wis. Stat. ch. 980 (2011–12).1 The court concluded that the psychological report that Denman submitted in support of his 2013 petition did not allege, as required at the time under Wis. Stat. § 980.09(1), “facts from which the court or jury may conclude” that Denman “has changed since the date of his ... initial commitment order so that [he] does not meet the criteria for commitment as a sexually violent person.”2 More specifically, the court concluded that the psychological report contains no new facts or psychological research that could not have been considered at the 2012 discharge hearing at which a prior petition for discharge filed by Denman was denied. In support of his 2013 petition, Denman argues that the 2013 psychological report reflects use of a new risk assessment scale that no expert relied on at the 2012 discharge hearing, and that use of the new risk assessment scale constitutes a change that could persuade a fact finder that his condition has improved since commitment such that he no longer meets the criteria for commitment.
¶ 2 We agree with Denman that a fact finder at a new discharge hearing could conclude, based on an expert opinion accompanying his 2013 petition, that the new risk assessment scale yields a more accurate, and reduced, prediction of Denman's lifetime risk to reoffend if discharged, and thus could make a difference in determining whether he still meets the standard of dangerousness required for continued commitment. Accordingly, we reverse.
¶ 3 While the substance of our prior opinion is not pertinent to any issue presented in this appeal, this court has previously provided the following history in this ongoing Chapter 980 case:
See State v. Denman, 2001 WI App 96, ¶ 3, 243 Wis.2d 14, 626 N.W.2d 296.
¶ 4 In December 2011, Denman filed a petition for discharge. The 2011 petition was supported by an evaluation report prepared by psychologist Lakshmi Subramanian. Denman called Subramanian as a witness at the subsequent April 2012 discharge hearing. The parties do not dispute that Subramanian's testimony at the 2012 discharge hearing was consistent in all pertinent aspects with her 2011 evaluation report. Therefore, for ease of reference we use the phrase “Subramanian's 2011–12 evaluation” to refer to information or opinions reflected in her 2011 report, in her corresponding testimony at the 2012 discharge hearing, or in both.
¶ 5 Subramanian's 2011–12 evaluation diagnosed Denman with a mental disorder, pedophilia, which she concluded predisposed Denman to commit sexually violent acts as defined in Chapter 980. However, Subramanian also concluded in her 2011–12 evaluation that, “to a reasonable degree of psychological certainty,” “Denman's degree of risk does not exceed the legal threshold of ‘more likely than not’ that he will commit another sexually violent offense should he be discharged.”
¶ 6 Subramanian's conclusion in her 2011–12 evaluation about the risk that Denman would be convicted of another sexually violent offense during his lifetime if discharged rested in part on her use of the Static–99 Revised test, or Static–99R. The Static–99R test is an actuarial instrument used by mental health professionals to estimate the expected likelihood of recidivism by sex offenders. In this context, actuarial instruments are “statistical research-based instruments that are created using data obtained by studying various factors associated with recidivism in groups of people who were convicted for sexual offenses, released, and followed over time.” State v. Combs, 2006 WI App 137, ¶ 4, 295 Wis.2d 457, 720 N.W.2d 684. As the name “Static” implies, psychologists who rely on the Static–99R have traditionally used it to predict recidivism rates based on static or unchanging factors, such as age at first sex offense and prior sex offenses.
¶ 7 In Subramanian's 2011–12 evaluation, she scored Denman as a “5” on the Static–99R, which Subramanian described as “a moderate to high score,” corresponding to “sexual recidivism rates of 25 percent in five years and 36 percent in 10 years.” Subramanian explained that this risk prediction of 36 percent over the course of 10 years was based on her categorization of Denman as belonging in a particular “reference” group, namely, the “High Risk/Need” reference group. The logic of this approach, as we explained in State v. Richard, 2014 WI App 28, ¶ 4 n. 4, 353 Wis.2d 219, 844 N.W.2d 370,3 is that “if an offender can be matched on relevant factors to a subsample composed of offenders most like him or her, the psychologist can give a more accurate risk assessment.”
¶ 8 In considering the ultimate question, namely, whether Denman was more likely than not over his lifetime to be convicted of another crime of sexual violence if discharged, Subramanian based her 2011–12 evaluation on his Static–99R score and interpreted that score in light of “dynamic risk factors,” such as psychopathy, sexual deviance, impulsivity, and treatment completion. Subramanian opined, for example, that Denman's participation in “extensive and comprehensive sex offender treatment” while he had been committed “serves as a protective factor, which alters his static risk.”
¶ 9 In contrast, the State during the 2011–12 proceedings relied on a November 2011 evaluation report by psychologist William Merrick and Merrick's testimony at the discharge hearing. Like Subramanian, Merrick diagnosed Denman with pedophilia that predisposes him to commit sexually violent acts, but, unlike Subramanian, Merrick concluded that Denman was “more likely than not to commit another sexually violent offense should he be discharged from his commitment.” Merrick did not rely on the Static–99R, but instead used what he called the Static–99 Update test, or Static–99U, and did not place Denman in one of the Static–99R reference groups, as Subramanian had. Merrick testified that Denman presented a recidivism risk of 22 percent within 5 years and 32 percent within 10 years (which was 4 percent points lower than Subramanian's estimate for the 10 year period).
¶ 10 At the close of the 2012 discharge hearing, the circuit court denied the petition on the grounds that, based on all evidence in the record, Denman had a mental disorder that predisposed him to, and made it more likely than not that he would, commit additional sexually violent offenses if discharged from commitment.
¶ 11 At issue in this appeal is Denman's new petition for discharge, filed in November 2013 and supported by a September 2013 report from Subramanian.4 In this 2013 evaluation report, Subramanian explained that she had again diagnosed Denman with pedophilia, which still “predisposes him to commit sexually violent acts as defined by Chapter 980.” Subramanian concluded in the 2013 report, as she had during the 2011–12 proceedings, “to a reasonable degree of psychological certainty,” that “Denman's degree of risk does not exceed the legal threshold of ‘more likely than not’ that he will commit another sexually violent offense should he be discharged.” However, in reaching this conclusion, Subramanian used a new risk assessment scale that she had not used during the 2011–12 proceedings, which she opines lowers his predicted risk of reoffending. We now briefly describe the new risk assessment scale used by Subramanian in 2013, reserving for the Discussion section below some additional pertinent details.
¶ 12 The new risk assessment scale is called the Violence Risk Scale–Sex Offender version. While Subramanian in 2013 used the Static–99R statistical test, as she had in 2011–12, and again scored Denman as a “5” on that test, in 2013, for the first time she relied on this new risk assessment scale to determine which “reference group,” or subgroup of sex offenders, Denman should be placed in. The subject groups were now defined as: “Routine” (11 percent risk over 5 years); “Nonroutine,” (20 percent risk over 5 years and 28 percent over 10 years); “Treatment Need” (16 percent over 5 years and 23 percent over 10 years); and “High Risk/High Need” (25 percent over 5 years and 36 percent over 10 years). Based on her use of the new risk assessment scale, Subramanian determined that Denman belonged in the “Nonroutine” reference group, which would lower Denman's predicted recidivism rate from 36 percent to 28 percent over 10 years.
¶ 13 The State moved for denial of the 2013 petition for discharge, on the grounds that the 2013 petition was based solely on the same evidence that had been considered, and found lacking, during the 2011–12 proceedings. The State acknowledged that Subramanian was expressly relying on the new risk assessment scale. However, the State argued that the result was still a “rehash” of her 2011–12 conclusions because she could have used the new risk assessment scale in her 2011–12 evaluation, but did not do so. Denman responded that an expert opinion “need only be based in part on new...
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