State v. Michael T. Spencer

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.
December 19, 2023
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 No. 2021AP1987-CR Cir. Ct. No. 1985CF1242

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL T. SPENCER,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
KENDALL M. KELLEY, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Michael Spencer appeals from an order denying
his petition to discharge his commitment as a person adjudged not guilty of a
No. 2021AP1987-CR

criminal offense by reason of mental disease or defect (NGI). Spencer challenges
the circuit court’s determination that he meets the standard for dangerousness
required to continue his NGI commitment. We conclude that the record contains
sufficient evidence to support the dangerousness determination, and therefore we
affirm.

BACKGROUND

¶2 In 1985, Spencer shot and killed his wife and seriously injured his
father-in-law. The following year, a jury acquitted Spencer of murder and
attempted murder charges on NGI grounds. The circuit court consequently
committed Spencer to the custody of the Department of Health and Social Services
for institutionalized treatment.

¶3 The circuit court ordered Spencer to be conditionally released from
his NGI commitment in 1988. The court revoked Spencer’s conditional release in
1993, however, after Spencer assaulted a woman with whom he was then in a
relationship. The court again granted Spencer’s conditional release in 1995. The
court then denied petitions to discharge Spencer’s NGI commitment in 2008 and
2016. It is the court’s denial of Spencer’s second discharge petition that is the
subject of this appeal.1

¶4 The record before the circuit court at the 2016 discharge hearing
included all of Spencer’s prior proceedings and psychological reports. In addition,
the parties each presented expert testimony regarding Spencer’s current status.

This court reinstated Spencer’s time to appeal the 2016 decision after determining that
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he had been abandoned by his counsel. We subsequently directed the circuit court to issue a
written order memorializing its oral decision from the hearing.

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No. 2021AP1987-CR

¶5 Doctor Frank Cummings testified for the defense. Cummings
opined that Spencer had a personality disorder with some narcissistic and
obsessive-compulsive components, as well as an elevated score on the “histrionic
scale” dealing with emotional presentation, but that he was not currently suffering
from any “acute diagnosable mental health disorder that … typically would
prompt some kind of treatment or some kind of medication.” Cummings noted
that Spencer had been “relatively symptom free” for at least the past seven years,
during which time he was not taking any medications or receiving any psychiatric
treatment. Cummings further noted that neither Spencer’s case manager nor his
probation officer recommended further therapy, and Cummings himself did not
see any compelling need for additional mental health services. Cummings
concluded that Spencer did not present a substantial risk of harm to himself or
others.

¶6 When asked about Spencer’s prior diagnosis of paranoid
schizophrenia, Cummings observed that symptoms of mental illness “can wax and
wane depending upon situational stressors.” Cummings agreed that if Spencer’s
prior schizophrenia diagnosis was correct, then there was a risk that symptoms
could reappear with stress from future situations, such as Spencer being involved
in domestic relationships or trying to make a living as an artist displaying his work
at traveling shows—a potential career option mentioned by Spencer.

¶7 Doctor Deborah Collins testified for the State. Collins also
diagnosed Spencer as having an “unspecified personality disorder with a history of
narcissistic, histrionic and obsessive-compulsive features.” In Collins’ opinion,
people with personality traits such as Spencer’s tend to lack insight into their own
shortcomings, making them less likely to seek help when they need it. In that
respect, Collins was concerned that Spencer rated his own risk of committing

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No. 2021AP1987-CR

future acts of violence to be zero. Collins was also concerned that Spencer had
demonstrated a pattern of “boundary issues” while on conditional release.

¶8 Collins further noted that although Spencer had been diagnosed as
suffering from a psychotic spectrum disorder at the time of the offenses, he had
never been treated with psychotropic medications. Collins observed that
schizophrenia is an enduring psychiatric condition that does not spontaneously
remit. Given Spencer’s personality disorder and the fact that he had committed
violent offenses when not on supervision, Collins concluded that Spencer’s
“capacity to navigate stressors independently and adaptively [was] compromised.”
In Collins’ opinion, without the accountability and support structure of Spencer’s
conditional release, there was a significant risk that Spencer would harm himself
or others if stressors caused his symptoms to re-emerge in the future.

¶9 In considering Spencer’s petition for discharge, the circuit court first
noted that, because schizophrenia can wax and wane but cannot be cured, and
because aspects of Spencer’s enduring personality disorder also contributed to him
shooting his wife and father-in-law, Spencer still possessed the characteristics that
led to the offenses. The court next observed that the shootings demonstrated
Spencer had the capacity for violence when subjected to stressors. The court
agreed with Collins’ opinion that Spencer’s lack of insight into his capacity for
violence created a risk that he would not recognize or seek help for problems
associated with future stressors, and that Spencer’s travel and art business created
the potential for stressful circumstances. The court concluded that Spencer’s
“dangerousness to others persists,” and it denied the petition for discharge.

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No. 2021AP1987-CR

DISCUSSION

¶10 Pursuant to WIS. STAT. § 971.17(8) (2021-22),2 the commitment,
release, and discharge of persons adjudged NGI prior to January 1, 1991, is
governed by the 1987-88 version of the Wisconsin Statutes, as affected by 1989
Wis. Act 31. A circuit court shall discharge an NGI commitment made prior to
1991 if the court is “satisfied” that the committed person may be “safely
discharged … without danger to himself or herself or to others.”
Sec. 971.17(2) (1987-88).3 In making its discharge decision, the court may
consider subsequently enacted statutory criteria regarding dangerousness,
including “the nature and circumstances of the crime, the person’s mental history
and current mental condition, the person’s behavior while on conditional release,
and plans for the person’s living arrangements, support, treatment and other
required services after termination of the commitment order.” Sec. 971.17(5);
State v. Randall (Randall II), 222 Wis. 2d 53, 60-61, 586 N.W.2d 318 (1998).
An NGI acquittee who is no longer mentally ill may be recommitted based upon
dangerousness alone without violating due process as long as the commitment
continues to serve the goal of “reduc[ing], to an acceptable level, the risk of
danger which the individual poses” by, for instance, providing treatment for a

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
We note that the circuit court erroneously applied the test set forth in the current
version of the statutes—namely, that the court “shall terminate the order of commitment unless it
finds by clear and convincing evidence that further supervision is necessary to prevent a
significant risk of bodily harm to the person or to others or of serious property damage.” See
WIS. STAT. § 971.17(5). However, if the court was satisfied by clear and convincing evidence
that further supervision was necessary to prevent a significant risk of harm to Spencer or others, it
necessarily follows that the court was not satisfied that Spencer could be safely released without
danger to himself or others.

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No. 2021AP1987-CR

behavioral disorder. State v. Randall (Randall I), 192 Wis. 2d 800, 837-41, 532
N.W.2d 94 (1995).

¶11 As a threshold matter, the parties dispute the applicable standard of
review. The State contends that we must affirm the denial of a petition to
discharge an NGI commitment as long as there is any credible evidence in the
record to support the circuit court’s decision, even if contrary evidence was also
produced. The State relies on State v. Randall (Randall III), 2011 WI App 102,
¶17, 336 Wis. 2d 399, 802 N.W.2d 194, in which this court applied that deferential
standard for evaluating the sufficiency of the evidence to support the denial of a
petition for conditional release from an NGI commitment.

¶12 Spencer asserts that Randall III deviates from the mixed standard of
review used by the Supreme Court of Wisconsin to evaluate determinations of
dangerousness in other types of civil commitment cases. See, e.g., Langlade
County v. D.J.W., 2020 WI 41, ¶¶24-25, 391 Wis. 2d 231, 942 N.W.2d 277
(applying a mixed standard to review the sufficiency of the evidence to support a
dangerousness determination in a WIS. STAT. ch. 51 recommitment). Spencer
contends that this court should uphold any findings of fact made by the circuit
court unless they are clearly erroneous, but we should then independently
determine whether those facts satisfy the statutory standard for a continued NGI
commitment.

¶13 We see no principled distinction between the review of an order
denying conditional release from an NGI commitment and one denying discharge
from an NGI commitment. Nevertheless, “[NGI] acquittees constitute a special
class that should be treated differently from other candidates for commitment.”
Randall I, 192 Wis. 2d at 817 (citation omitted). Therefore, while we recognize

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No. 2021AP1987-CR

that the standard of review set forth in Randall III may deviate from that used in
other types of civil commitment cases, we conclude that we are bound by
Randall III in a WIS. STAT. § 971.17 case. See Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997).

¶14 Spencer contends that the evidence was insufficient to establish that
he is presently a danger to himself or others because he is not currently diagnosed
with a major mental illness and he has functioned well in the community for years
without mental health treatment. It is not, however, our job to reweigh the
evidence supporting discharge against the evidence against it.

¶15 Applying a deferential standard of review, we conclude that the
circuit court’s decision to deny Spencer’s discharge from his NGI commitment
was supported by credible evidence. The court could properly determine that
Spencer could not be safely released from his commitment without danger to
himself or others because: (1) the shooting of his wife and father-in-law evinced a
capacity for violence toward others; (2) Spencer still possessed the personality
disorder that contributed to the shootings; (3) the paranoid or delusional symptoms
Spencer had previously experienced could recur if he were subjected to stressors
in the future; and (4) Spencer lacked the necessary insight to seek help if he
experienced future stressors. Meanwhile, the NGI commitment continued to serve
the goal of reducing Spencer’s dangerousness because the supervision structure
provided an opportunity to recognize and address the effect of future stressors on
Spencer’s behavior. We therefore affirm.

By the Court.—Order affirmed.

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

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