State v. Randall

• Decision Date: 17 September 1998
• Docket Number: No. 97-0519-CR,97-0519-CR
• Citation: 586 N.W.2d 318,222 Wis.2d 53
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alan Adin RANDALL, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 318

586 N.W.2d 318

222 Wis.2d 53

STATE of Wisconsin, Plaintiff-Respondent, v. Alan Adin RANDALL, Defendant-Appellant. ^d

No. 97-0519-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 7, 1998.

Opinion Released Sept. 17, 1998.

Opinion Filed Sept. 17, 1998.

[222 Wis.2d 55] On behalf of the defendant-appellant, the cause was submitted on the briefs of Waring R. Fincke of West Bend.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Sally L. Wellman, Assistant Attorney General.

Before EICH, VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, Judge.

Alan Randall appeals a judgment recommitting him to the custody of the Wisconsin Department of Health and Social Services at the Winnebago Mental Health Institute (WMHI) following his confinement there as an insanity acquittee. ¹ He claims: (1) that the circuit court erroneously exercised its discretion when it refused to instruct the jury that the State was required to prove a level of dangerousness that could not be managed safely in the community; (2) that the evidence adduced at trial was insufficient to establish he is currently dangerous; and (3) that he was denied due process of law because the jury was not asked to decide whether his continued confinement was medically justified. We conclude that the jury instructions properly stated the law applicable to Randall, that the evidence at trial was sufficient to meet the requisite legal standard, and that the use of the dangerousness standard comported with Randall's due process rights. Therefore, we affirm the judgment of the circuit court.

BACKGROUND

In 1974-75, while a minor, Randall committed a series of burglaries and armed car thefts. He eventually shot and killed the owner of one of the cars he stole and two police officers, whose squad car he then used to commit another burglary. As a result, Randall was charged with three counts of first-degree murder, seven counts of burglary, and two counts of operating a motor vehicle without the owner's consent.

Randall pleaded not guilty to four of the robbery counts and not guilty by reason of mental disease or defect to the remaining counts, and a bifurcated jury trial was held. In the first phase of the trial, the jury found Randall guilty of two counts of first-degree murder, four counts of burglary, and one count of operating a motor vehicle without the owner's consent. In the second phase, the State stipulated that, under § 971.15, STATS., Randall was not responsible for the homicides, one count of burglary, and operating a vehicle without the owner's consent, because he was suffering from paranoid schizophrenia at the time of the crimes. The circuit court accepted the stipulation and committed Randall to the Central State Hospital for care, custody and treatment. The court also sentenced Randall to time served on one of the burglary counts, and concurrent ten-year prison terms on the others, which were stayed subject to ten-year terms of probation, which were also stayed until his release from commitment. Randall was then transferred to WMHI.

Over the following years, Randall participated in and successfully completed the treatment programs available to him at WMHI. At the time relevant to his appeal, he had the lowest security level classification at WMHI and he had earned a number of off-grounds privileges, including signing out to attend college classes ² and working forty hours a week at a local business. He also worked unescorted on the open WMHI grounds, and never left without permission.

On January 11, 1990, Randall petitioned for a re-examination of his mental condition pursuant to § 971.17(2), STATS., 1987-88, ³ which provides:

If the court is satisfied that the defendant may be safely discharged or released without danger to himself or herself or to others, it shall order the discharge of the defendant or order his or her release on such conditions as the court determines to be necessary. If it is not so satisfied, it shall recommit him or her to the custody of the department.

On May 25, 1990, a six-person jury found that Randall should be recommitted to the custody of the department at an appropriate institution.

On June 7, 1991, Randall filed a petition for re-examination and conditional release. The circuit court ordered the original court-appointed psychiatrists to re-examine Randall and file updated reports. The matter was initially scheduled for trial on June 22, 1992. On May 18, 1992, the United States Supreme Court decided Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Thereafter, Randall filed a motion for immediate release based on his view that § 971.17(2), STATS., 1987-88, was unconstitutional under Foucha. The circuit court denied Randall's motion and the Wisconsin Supreme Court determined, on an appeal of that decision of the circuit court, that Wisconsin's statutory scheme was constitutional and distinguishable from that of Louisiana, which was examined in Foucha. ⁴ The supreme court remanded for further proceedings.

In November of 1995, Randall requested another re-examination in light of the standard established in Randall I, which explained that he should be treated in a manner consistent with his commitment. The same doctors who had examined him earlier concluded that he was not mentally ill and could be released on specified conditions.

The matter proceeded to trial. The State presented evidence about the brutality of Randall's initial crimes. ⁵ It presented evidence that in 1994, while at WMHI, Randall hid a phone book, empty plastic jars, old magazines, junk mail addressed to him, firecrackers and tent poles above the ceiling tiles in the institution's bicycle shop, where he worked and that Randall denied some of the articles were his. Secreting objects for no apparent reason is conduct repetitive of similar acts that occurred prior to his arrest, when he hid a CPR dummy above the ceiling tiles of a local high school he burglarized. There was also testimony that an April 21, 1995 progress note said Randall had shown increased anger and that his anger increased further when he was questioned about it. Randall presented evidence that the WMHI staff had discontinued program services in 1992, after concluding that he was stable.

Randall requested jury instructions which would require the jury to find that he could not be safely released into the community under any conditions, and that the State was required to prove a medical justification for his continued confinement. The circuit court refused to give either instruction. The jury found that Randall was still dangerous and the court recommitted him.

DISCUSSION

Standard of Review.

Our review of a request for a jury instruction is limited to whether the trial court acted within its discretion when it refused to give the requested instruction. State v. Wilson, 180 Wis.2d 414, 420, 509 N.W.2d 128, 130 (Ct.App.1993). We will reverse and order a new trial only if the instructions, taken as a whole, communicated an incorrect statement of the law or otherwise probably misled the jury. Miller v. Kim, 191 Wis.2d 187, 194, 528 N.W.2d 72, 75 (Ct.App.1995).

We review the evidence supporting a jury verdict finding dangerousness in the light most favorable to the verdict, and we will affirm, if there is any credible evidence, or reasonable inference therefrom, upon which the jury could have based its decision. State v. Gladney, 120 Wis.2d 486, 490, 355 N.W.2d 547, 549 (Ct.App.1984). However, we consider de novo whether the constitutional principles of due process have been violated. See State v. Garcia, 192 Wis.2d 845, 864-65, 532 N.W.2d 111, 118 (1995).

Jury Instruction on Dangerousness.

In State v. Randall, 192 Wis.2d 800, 532 N.W.2d 94 (1995) (Randall I ), the supreme court implied that the dangerousness factors set forth in § 971.17(4)(d), STATS., 1993-94, which apply to persons adjudicated not guilty by reasons of mental disease or defect for offenses committed after January 1, 1991, may be useful in evaluating Randall's dangerousness, on remand. Randall I, 192 Wis.2d at 838, 532 N.W.2d at 109. Section 971.17(4)(d), 1993-94, provides in relevant part:

The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

Based on the supreme court's statements, Randall asked the circuit court to instruct the jury:

The burden of proving that Alan Randall cannot be safely released to the community on conditions to be set by this Court is on the State.

That burden of proof does not require the State to prove just some minimal or insubstantial present danger, but requires proof of a level of present danger which cannot be managed safely in the community under any set of reasonable conditions which this Court might impose.

If the evidence which you have heard clearly convinces you that there are no conditions under which Alan Randall can live safely in the community, then you should find that he should be recommitted to the department. Otherwise you should find that he can be safely released on such conditions as this Court might find appropriate.

The court denied Randall's request and instead instructed the jury:

The burden is on the State to prove that Alan A. Randall cannot be safely discharged or released without danger to himself or to others.

Alan A....