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In re Commitment of Talley

Supreme Court of Wisconsin

March 9, 2017

In re the commitment of Thornon F. Talley:
v.
Thornon F. Talley, Respondent-Appellant-Petitioner. State of Wisconsin, Petitioner-Respondent,

          Submitted on Briefs: November 10, 2016

         Circuit Court Dane county L.C. No. 2004CI01 Sarah B. O'Brien Judge

         REVIEW of a decision of the Court of Appeals. Affirmed.

          For the respondent-appellant-petitioner, there was a brief by David R. Karpe, Elliot M. Fink and Karpe Law Office, Madison, and oral argument by David R. Karpe

          For the petitioner-respondent the cause was argued by Daniel J. 0'Brien, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general

          REBECCA GRASSL BRADLEY, J.

         ¶1 In this review of a Chapter 980 petition for discharge, we consider whether "socializing more with peers, " "join[ing] a fitness group, " and increased communication from family members are changes from which a factfinder could determine Thornon F. Talley is no longer a sexually violent person. We conclude that these facts, which resulted in no change to the evaluating psychologist's ultimate conclusion or overall risk assessment, are not enough to satisfy the statutory threshold for a discharge hearing set forth in Wis.Stat. § 980.09(2) (2011-12).[1] We affirm the unpublished court of appeals decision, [2] which affirmed the circuit court order[3] denying Talley's petition for a discharge hearing.

         I. BACKGROUND

         A. Initial Commitment and Early Discharge Petitions

         ¶2 Talley has been adjudicated delinquent or convicted of sexually violent offenses three times, resulting in his incarceration. As Talley's release date approached on his last offense, the State filed a petition for Chapter 980 commitment. Talley did not contest the petition, and in 2005, the circuit court ordered Talley committed "to the Department of Health and Family Services for control, care and treatment until such time as [he] is no longer a sexually violent person."

         ¶3 Since being committed, Talley received annual reexaminations under Wis.Stat. § 980.07, and he filed several petitions seeking discharge. Talley's 2005 and 2006 discharge petitions were dismissed at Talley's request. The circuit court terminated his 2007 discharge petition because the psychologist who conducted the reexamination of Talley never filed a report.

         B. The 2008 Discharge Petition

         ¶4 Talley's 2008 discharge petition was tried to a court in May 2009. At trial, the State's expert, Dr. William Schmitt, testified that Talley did not satisfy the criteria for discharge because: (1) Talley had Paraphilia Not Otherwise Specified (NOS), Exhibitionism, [4] and Antisocial Personality Disorder, each of which is a mental disorder that affected his emotional or volitional capacity and predisposed Talley to commit sexually violent acts; and (2) Talley fell into the risk category of being more likely than not to commit another sexually violent offense if discharged. Dr. Schmitt explained that, as recently as February 2009, Talley exposed his erections and talked about them with female staff; those exhibitionistic actions amounted, in essence, to "engaging in sexual behavior with a nonconsenting person." By "continu[ing] to expose himself within an institution, " Talley showed ongoing "difficulty managing his sexual urges and behaviors." Dr. Schmitt opined that Talley's high psychopathy and sexual deviance, evidenced by his behaviors, made him more likely than not to commit a sexually violent offense if discharged.

         ¶5 Talley's expert, Dr. Hollida Wakefield, agreed that Talley had Antisocial Personality Disorder and Exhibitionism, but she opined that neither disorder predisposed Talley to acts of sexual violence. She testified that Exhibitionism is not a sexually violent act, and although Antisocial Personality Disorder may cause an individual to be sexually violent, it requires the presence of both high psychopathy and sexual deviance. Dr. Wakefield agreed Talley had high psychopathy, but she did not find sexual deviance; therefore, she concluded, Talley was not more likely than not to commit a sexually violent offense.

         ¶6 At the end of the trial, the circuit court determined "the evidence clearly and convincingly show[ed] that Mr. Talley [was] still a sexually violent person." The circuit court made several findings about Talley: (1) he had been convicted three times of sexually violent offenses; (2) he had a mental disorder that predisposed him to committing sexually violent acts; (3) his Exhibitionism replaced sexual violence because of his confinement; (4) he "clearly enjoy[ed] exposing himself to others"; (5) he had not completed treatment; and (6) he remained a danger to others because his mental disorder made "it more likely than not that he will engage in future acts of sexual violence." Although the circuit court agreed with Dr. Wakefield that Talley's Exhibitionism is not a violent sexual act, it accepted the explanation that Exhibitionism likely replaced sexual assault because Talley "ha[d] not had an opportunity to sexually assault" while confined. Ultimately, the circuit court placed greater weight on Talley's history of sexual violence and his "antisocial conduct in custody, " which was "largely sexual in nature. "

         C. The 2010 Discharge Petition

         ¶7 In 2010, Dr. Richard Elwood conducted Talley's annual reexamination and concluded Talley was not a sexually violent person and not more likely than not to re-offend. He diagnosed Talley with Antisocial Personality Disorder and Borderline Personality Disorder but did not find Exhibitionism or Paraphilia NOS. In Dr. Elwood's opinion, Exhibitionism required exposure to strangers, and Talley's exposures were to treatment center workers, who were not strangers to him. Dr. Elwood also expressed doubt about Talley's continued predisposition to sexual violence, noting the record lacked sufficient evidence to prove Talley engaged in the Exhibitionism for sexual arousal purposes. Observing that Exhibitionism is not a sexually violent offense, Dr. Elwood added that Talley's exposures to women he knew "may not even have been sexually motivated." Despite Talley's "moderate to very-high range" of psychopathy, Dr. Elwood could not conclude that Talley's "offenses . . . clearly establish sexual deviance." In his static risk assessment, Dr. Elwood concluded that, "Talley poses a high risk of committing another sex offense but not that he poses a high risk of committing a sexually violent offense." The doctor's dynamic risk assessment did not alter that conclusion. His report acknowledged that Talley had not made significant progress in treatment, but Dr. Elwood nevertheless concluded "Talley is not a sexually violent person" because "Talley would not more likely than not commit another sexually violent offense if he were released and given the opportunity."

         ¶8 Talley's 2010 discharge petition based on Dr. Elwood's report asserted a "significant change in diagnoses, " which Talley contended warranted a discharge hearing. Based on a comprehensive review of the court record, the circuit court rejected Talley's request and denied the petition without a hearing. The court's review included the "dozen" evaluations dating back to Talley's initial confinement. Given Talley's consistent diagnosis "with antisocial personality disorder and borderline personality disorder, " the court assigned significance to the fact that most experts found Talley predisposed to "future acts of sexual violence."

         ¶9 Also important to the circuit court was the fact that Dr. Elwood, like Dr. Wakefield, agreed that Talley had both personality disorders, and the circuit court had already rejected Dr. Elwood's opinion that the disorders do not make Talley a likely violent re-offender. As the court explained:

All experts agree that when there is a combination of high psychopathy and sexual deviance, the risk of future acts of sexual violence is increased. At the 2009 trial Dr. Schmitt opined that Mr. Talley had both high psychopathy and sexual deviance; Dr. Wakefield was not sure that sexual deviance was present. I concluded that this combination is present in Mr. Talley, thus increasing his risk of re-offense. In the present report Dr. Elwood disagrees, concluding that Mr. Talley's sex offenses do not clearly establish sexual deviance. However this is the same evidence I rejected at the discharge trial.

         Because Dr. Elwood's report "contain[ed] no new evidence" and the circuit court had already "considered and rejected" the opinion that Talley's "personality disorders do not predispose him to violent sexual offending, " the circuit court denied Talley's petition on the grounds that it did "not allege facts from which the court or jury might conclude that Mr. Talley's condition has changed since the date of his initial commitment so that he no longer meets the criteria for commitment."

         D. The 2011 Discharge Petition

         ¶10 In 2011, Talley filed another petition for discharge based on Dr. Elwood's 2011 reexamination report. Dr. Elwood's risk assessment and conclusion were unchanged from his 2010 report. The circuit court nevertheless decided to hold a discharge hearing because it had been two years since Talley's last hearing, it appeared from Dr. Elwood's report that Talley had stopped publicly masturbating, and the "'science' of predicting risk has continued to evolve."

         ¶11 At the jury trial in January 2012, Lloyd Sinclair, the program director for the detention center where Talley resided, described the treatment program available to Talley, who was assigned to the program for patients with normal or high intelligence who have high psychopathy. The program consists of three phases. Phase One addresses self-management and how to live a responsible life in day-to-day functioning. Once a patient completes Phase One, he moves to Phase Two, which focuses on the specific sex offense component of treatment. When a patient completes Phase Two, he moves to Phase Three, which combines lessons from the first two phases to ensure the patient will not re-offend when released. Sinclair testified that Talley remained in Phase One, and at times refused treatment altogether. Talley's "continue[d] . . . sexual misbehavior" "raise[d] alarms" at the treatment center. For example, Talley had repeatedly exposed his erect penis to female staff, and "if a male [came] into the room, Mr. Talley cover[ed] up." Sinclair explained that if Talley wants to be discharged he needs "to make progress [in treatment] and show that he's managing himself better."

         ¶12 Dr. Anthony Jurek testified for the State. He told the jury that Talley had Exhibitionism, Paraphilia NOS, and Antisocial Personality disorder with Borderline features. He testified:

• Talley has three mental disorders that impair his emotional or volitional capacity and predispose him to commit acts of sexual violence.
• "[A] person's history of sexual offenses is important because if an individual is caught for the sexual behavior and they're sanctioned for it, they should learn from that experience. It should be less likely that they engage in behavior that can cause them sanctions in the future."
• When a person "continues to offend over and over again" it indicates the person is unable "to change that behavior, and it's a critical element of the diagnostic formulation but also plays into the risk assessment." Successful participation in treatment, in contrast, can suggest a reduced risk of re-offending. But Talley had not successfully participated in treatment, and he committed dozens of sexual misconduct offenses while confined.
• Talley's exhibitionistic behavior has a sexual overtone to it. He exposes himself for sexual gratification.
• "[T]he deviance underl[ying] the Exhibitionism is the same deviance that underlies the earlier sexual offenses of record."

         ¶13 Moreover, Dr. Jurek expected that, if no longer confined, Talley would go beyond Exhibitionism and return to committing sexually violent offenses. According to actuarial risk instruments, Talley was more likely than not to commit acts of sexual violence if discharged. In response to Dr. Elwood's opinion that Exhibitionism is inapplicable because Talley's exposures are not to strangers, Dr. Jurek explained the only reason Talley is not exposing to strangers is because he is confined: "So if he has the opportunity to expose himself to strangers, he certainly will. But where no strangers are available, he will expose himself to unsuspecting staff."

         ¶14 Dr. Elwood testified for Talley. On direct examination, he indicated that he diagnosed Talley with Antisocial Personality Disorder and Borderline Personality Disorder, but unlike Dr. Jurek, did not diagnose Talley with Paraphilia NOS or Exhibitionism. Although Dr. Elwood explained his strict application of the DSM-IV definition for Exhibitionism as "expos[ing] one's self to unsuspecting strangers, " he also acknowledged that, in light of Talley's "difficulty with sexual activities and sexual urges, " "Dr. Jurek ma[d]e a good point that it may be better to make a broader interpretation of [Exhibitionism] in penal situations or when they're incarcerated" because when an individual is confined, "all of the residential staff are known to you, so there can't be a stranger."

         ¶15 When asked about Dr. Jurek's opinion that Talley exposed himself for sexual gratification, Dr. Elwood answered, "I just don't think I have sufficient evidence to determine" whether Talley's arousal was tied to the exposure or his self-manipulation. Dr. Elwood could not "say for sure that [Talley] was being aroused specifically by the exposing itself." When asked whether Talley was sexually deviant, Dr. Elwood responded:

I couldn't say. I'm not saying he's not sexually deviant. I don't have evidence to say that. But I do not think I have sufficient evidence to say that he meets the usual criteria for sexual deviance as identified in the literature. ... He certainly has some evidence of something.

         ¶16 Talley's attorney then asked Dr. Elwood to assess Talley's risk of engaging in future sexually violent acts: "So without that deviance finding and what you found in the actuarial tables, do you feel Mr. Talley presents a risk of sexual violence in the future? I guess [to] what degree do you feel he presents a sexual risk-a risk of sexual violence?" Dr. Elwood answered, "I think I can best say I don't know." When Talley's lawyer asked, "And why is that?", Dr. Elwood responded, "I just don't think that the evidence to me is clear enough to say that." Dr. Elwood talked about Talley's risk of re-offending being "well over 51 percent." Talley's lawyer then tried to clarify:

Q [Talley's attorney:] So clearly there's a risk of re-offense, but the risk of deviance is not more likely than not in your opinion?
A [Dr. Elwood:] I think it's important to distinguish between my saying that it's not over 51 percent and saying I do not have enough evidence to ...

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