State v. Johnson

• Decision Date: 24 May 2022
• Docket Number: 2021AP2046-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Jarrod J. Johnson, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

State of Wisconsin, Plaintiff-Respondent, v. Jarrod J. Johnson, Defendant-Appellant.

No. 2021AP2046-CR

Court of Appeals of Wisconsin, District I

May 24, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Milwaukee County No 2008CF831 MILTON L. CHILDS, SR., Judge. Reversed and cause remanded with directions.

Before Brash, C.J., Dugan and White, 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).

PER CURIAM.

¶1 Jarrod J. Johnson appeals an order entered by the trial court, in which the trial court granted a motion for his involuntary medication and treatment pursuant to Wis.Stat § 971.17(3) (2019-20).^[1] We conclude that the factors in Sell v. United States, 539 U.S. 166 (2003), were erroneously applied when the trial court granted the State's motion.^[2] We also conclude that Johnson forfeited his argument that the reports^[3] submitted by Johnson's treating psychiatrist, Dr. Odette Anderson, were erroneously considered as evidence. We further conclude that the State failed to meet its burden to show that Johnson was dangerous and that Dr. Anderson provided Johnson with a reasonable explanation of the advantages and disadvantages of, and alternatives to, treatment with the psychotropic medication Haloperidol. Accordingly, we reverse the trial court's order, and we remand this matter with directions to deny the motion for involuntary medication and treatment.

BACKGROUND

¶2 Johnson was charged with arson in 2008, after he reportedly set fire to his apartment because he believed the government had placed cameras inside his apartment and was filming and monitoring him. Johnson was found not guilty by reason of mental disease or defect (NGI) and committed for an indeterminate time, not to exceed twenty-five years. He was sent to a mental health facility for treatment from which Johnson was subsequently discharged on conditional release for the first time in 2011. His release was revoked in 2013 and Johnson was again placed at a mental health facility. Johnson was discharged on conditional release for a second time in April 2020. His second conditional release was revoked, and Johnson was placed at MMHI starting on May 11, 2021.

¶3 On September 13, 2021, MMHI, by Dr. Anderson, filed a motion for involuntary medication and treatment pursuant to Wis.Stat. § 971.17(3)(c). Dr. Anderson filed a corresponding report in which she described Johnson's treatment history, beginning from the time he was originally committed until the time of her report. She further described that, since the time of Johnson's return to MMHI, he had been declining recommendations to start medication, and Johnson's "symptoms and concerning behaviors have been increasing in frequency and severity." Dr. Anderson then provided several examples of Johnson's symptoms and concerning behaviors, including threatening letters that Johnson had written, aggressive and hostile interactions with MMHI staff, incidents involving Johnson throwing his lunch tray, and urinating on the walls, floor, and linens in his room. Ultimately, Dr. Anderson wrote, "Mr. Johnson has a chronic history of poor insight into the seriousness of his illness and the importance of treatment with psychotropic medication. He has had a history of declining his prescribed psychotropic medication." Dr. Anderson requested an order to involuntarily medicate Johnson because he "clearly has a disorder of cognition and impaired reality testing which grossly impairs his judgment." She also requested an order to involuntarily medicate Johnson because he "is not capable of repeating back information presented to him regarding the risk, benefits, and alternatives to taking medication," and she stated that Johnson "is not capable of applying this information to his current situation."

¶4 The trial court set the motion for a hearing. When the hearing was rescheduled, Dr. Anderson sent a supplemental report to the trial court on October 27, 2021, in which she requested a new hearing date as a result of her increasing concerns over what she described as Johnson's deteriorating condition. In her report, Dr. Anderson explained that Johnson had begun to decline his meals, was not eating, and had been placed on suicide watch. Thus, she requested that the court reschedule the hearing for an earlier date so that she may be able to treat Johnson as soon as possible.

¶5 The trial court held a hearing on November 9, 2021, at which Dr. Anderson testified. Dr. Anderson testified that she began treating Johnson in August 2021 and they had been meeting "sometimes on a monthly basis" but "usually on a weekly or more frequent basis." In all, she estimated that she had met with Johnson approximately twenty times. Based on these meetings and a review of Johnson's treatment records, Dr. Anderson diagnosed Johnson with schizoaffective disorder, bipolar type.

¶6 She further testified that although she had prescribed a psychotropic medication-Haloperidol-to treat Johnson's condition, ^[4] he had not been on medication since he arrived back at MMHI in May. She testified that Johnson had refused to take the medication that she had prescribed. Dr. Anderson acknowledged that Johnson was currently being treated with certain alternatives to medication; however, she anticipated that Johnson would not demonstrate any improvement without taking a medication.

¶7 Some of the alternatives that Dr. Anderson described included using restraints and seclusion in order to control Johnson's behaviors and calm him down over an eighteen hour period in August 2021. She also described a method she called "show of force," in which staff make their presence known to a patient in order to de-escalate a situation before other methods, such as restraints or seclusion, would become necessary. She similarly described another method called "chill time" where staff would send a patient to his or her room to calm down and de-escalate a situation. She further testified that it had been months since Johnson had been restrained and secluded because staff were able to successfully intervene using "show of force" and "chill time" methods before Johnson's behavior escalated. Despite these methods, Dr. Anderson was of the opinion that there was not any other less intrusive means than medication to restore Johnson to where he was before, and she testified that Johnson "has required a lot of these types of interventions."

¶8 Overall, she described Johnson's mental state as declining, and she based her description of Johnson's mental state on Johnson's symptoms of psychosis and significant mood symptoms. She also testified that Johnson had recently been "declining oral intake" and, even though the situation had improved, that has been one of her primary concerns. She further acknowledged the threatening letters Johnson had written, but she testified that there was little risk that those letters posed a harm to others as a result of Johnson's current placement at MMHI.

¶9 At the conclusion of Dr. Anderson's testimony, both parties argued their respective positions under the Sell factors, and the trial court summarized the testimony from Dr. Anderson and granted the motion for involuntary medication.^[5]In the amended order for placement filed after the hearing, the trial court additionally checked the box on the form that it found that the involuntary administration of medication was needed because Johnson was not competent to refuse medication or treatment as a result of his mental illness, which rendered him "incapable of expressing an understanding of the advantages and disadvantages of accepting psychotropic medication or treatment and the alternatives." Johnson now appeals.^[6]

DISCUSSION

I. Application of the Sell Factors to Johnson's Case

¶10 As a threshold matter, we address the application of the Sell factors to the motion for involuntary medication and treatment that were applied below. On appeal, the State argues that the Sell factors do not apply to a motion for involuntary medication and treatment within the context of a commitment following a NGI finding, but rather, the analysis in this case must proceed under Wis. Stat. § 971.17(3). We agree, and we conclude that the application of the Sell factors to Johnson's case, as an individual under a commitment order entered under a finding of NGI, was in error.

¶11 Johnson was found not guilty by reason of mental disease or defect, and Johnson has been at MMHI as the subject of a commitment order entered under Wis.Stat. § 971.17(3). "After the person has been committed to an institution, it sometimes becomes necessary to make a decision about forcibly medicating him or her." State v. Wood, 2010 WI 17, ¶31, 323 Wis.2d 321, 780 N.W.2d 63. When confronted with this situation, "[i]f the [S]tate proves by clear and convincing evidence that the committed person is not competent to refuse medication, the court may issue an order permitting the institution to administer medication and treatment without the person's consent." Id.; see also § 971.17(3)(b)-(c). The standard set forth in Wis.Stat. § 971.16(3) applies for determining if a committed person is not competent to refuse medication and treatment. Wood, 323 Wis.2d 321, ¶31. The standard set forth in § 971.16(3) provides:

The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:

(a) The

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