Opinion
No. 57517
Opinion filed: November 28, 2000
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, HONORABLE JAMES W. ROBERTS, JUDGE.
Charles M. Rogers, Kansas City, Missouri for appellant[s]
Greg A. Perry, Asst. Attorney General, Jefferson City, Missouri for respondent[s].
Before Edwin H. Smith, Presiding Judge, Robert G. Ulrich, Judge and Joseph M. Ellis, Judge
Carl H. Greeno appeals the trial court's denial of a conditional release from the Department of Mental Health (DMH). He was committed to the DMH in May 1991 but was conditionally released in September 1993. While on release, Mr. Greeno was charged with second degree assault and his conditional release was revoked. Ultimately, the new charges against him were dismissed, but he remained in the custody of the DMH. Mr. Greeno contends his conditional release should be reinstated because the assault charge was dismissed. Because there was no indication in the record whether Mr. Greeno continues to suffer from a mental disease or defect, we reverse and remand the cause to the trial court to make a finding on this issue.
The offense for which Mr. Greeno was committed to the DMH occurred in 1990. Mr. Greeno drove his car into a police car while fleeing the scene of an alleged uncharged crime, and he was charged with assault in the second degree and armed criminal action. A trial was held on May 6, 1991, and Mr. Greeno was found "not guilty by reason of mental disease or defect." As a result, he was committed to the DMH at Fulton. Mr. Greeno was conditionally released from the DMH on September 28, 1993, by the probate division of the Circuit Court of Callaway County and he was allowed to return to his home in Kansas City.
The police report summarized the incident as follows: Mr. Greeno entered a lady friend's house at night, uninvited, and found his way into her thirteen year-old daughter's room where he sat on the edge of her bed with his pants pulled down. The girl awoke and screamed. Mr. Greeno fled from the house and drove away in his car. The police were called and a car chase ensued. Mr. Greeno ran his car into a police car while being chased. Mr. Greeno had a different version of the incident: He had been feeling bad for 24 hours prior to the offense. He watched a war movie the night before and became upset and tearful. The next morning, he watched the movie again and became upset. He began to hear helicopter noises later that night and recognized that as a warning sign and he went to the lady friend's house and perpetrated the alleged crime. He claims there was a sign on the door welcoming him in the house. When he entered, he was disoriented because he was upset, and he walked into the girl's room and was trying to wake her, she screamed, and he had a flashback to his war days. He claims he does not remember any other part of the evening except waking up in jail.
While on conditional release, from late 1993 until late 1995, Mr. Greeno was arrested several times and he sought help on occasion by checking himself into hospitals. In April 1994, he was arrested and charged with driving while intoxicated (DWI), reckless driving, and driving without a license. After this incident, he checked himself into the Veterans Administration (V.A.) hospital for several weeks, to avoid revocation of his conditional release, but he left the hospital against medical advice. In March-April 1995, he admitted himself into the V.A. hospital after a stress attack during which he drove down the highway in the wrong lane, in an attempt to commit suicide.
This suicide attempt was a reaction to the Oklahoma City bombing.
Mr. Greeno resumed his conditional release in April 1995. In December 1995, he was charged with assault and armed criminal action. While waiting trial on the assault and armed criminal action charges, an administrative revocation hearing was held and Mr. Greeno's conditional release was revoked. The hearing officer revoked his release based on the fact that Mr. Greeno violated a condition of his release by violating the laws of the State of Missouri and that he posed a danger to the public while in the community. Moreover, the Director found that Mr. Greeno required inpatient hospitalization to protect the public safety.
He allegedly assaulted a woman with a hammer over some money. She suffered injuries to her head and body that were treated at the hospital. A couple of months after the alleged assault, she reported the incident. She said she did not report the incident earlier because Mr. Greeno was threatening her. She produced an audio tape of threatening language.
Section 552.040.16, RSMo 1994, states, "The director of the department of mental health may revoke the conditional release and request the return of the committed person if such director has reasonable cause to believe that the person has violated the conditions of his release."
While the record before us is not clear, it appears that Mr. Greeno was diagnosed as early as 1980 or perhaps earlier, with Post Traumatic Stress Disorder (PTSD) caused by his experiences in the Vietnam War. The record does establish, however, that this diagnosis was confirmed in 1996 while Mr. Greeno was in the DMH in Fulton.
PTSD is an anxiety disorder which, in Mr. Greeno, manifests itself in battle flashbacks and attacks of anxiety, tearfulness, depression or memory blackouts. Dr. Parwatiker, his treating physician, linked Mr. Greeno's difficulties to as early as 1971. His attacks can be triggered by outside news events, war movies, stressful personal experiences, sudden noises, or any other events that remind him of his battle experiences or survival.
In March 1997, Dr. Bruce Harry, a physician at the DMH, also diagnosed Mr. Greeno with PTSD, but he found that Mr. Greeno was free of threatening conduct for the one year that he had been at the DMH. Mr. Greeno applied for a conditional release, pursuant to § 552.040.10, that was denied in May 1997 by the Circuit Court of Callaway County. In January 1998, Mr. Greeno stood trial on the charges of assault and armed criminal action. On January 26, 1998, the jury was unable to reach a unanimous verdict and was discharged. The prosecutor dismissed the charges against Mr. Greeno on February 5, 1998, but he remained in the custody of the DMH. Mr. Greeno was transferred to the Northwest Missouri Psychiatric Rehabilitation Center (Northwest) in July 1998. Dr. Khan, a medical doctor, examined Mr. Greeno upon his admission to Northwest and found him to be suffering from "post-traumatic stress disorder, alcohol abuse in remission, cannabis abuse in remission and personality disorder not otherwise specified with dependent and histrionic features."
RSMo Cum. Supp. (1996).
The jury deliberations ended in a hung jury 11-1 for acquittal.
On January 7, 1999, Dr. Suthikant became Mr. Greeno's treating physician and he found Mr. Greeno to be disruptive, agitated, and threatening. He was described as exhibiting a minor combative behavior including slapping, yelling, pushing, verbal threats and verbal aggression.
Mr. Greeno filed another application for conditional release, pursuant to § 552.040.10, and again, conditional release was denied. A hearing on his application began on May 17, 1999. At the conclusion of all the evidence, on May 19, 1999, the case was taken under advisement and the court entered a judgment and memorandum opinion on June 11, 1999, denying the conditional release. Mr. Greeno appeals this determination.
This and all subsequent statutory references are to RSMo Cum. Supp. (1998) unless otherwise indicated.
Mr. Greeno raises three points on appeal. First, he contends the trial court erred in denying his application for conditional release by failing to make a finding that he was currently suffering from a mental disease or defect. Second, he claims the trial court erred in requiring him to prove by clear and convincing evidence that he would not be dangerous to others if he was released. Finally, he argues that the trial court's determination that he did not sufficiently prove his "non-dangerousness" was against the weight of the evidence. Appellate review of the denial of an application for a conditional release from commitment at the DMH is governed by Murphy v. Carron , 536 S.W.2d 30 (Mo.banc 1976). Styles v. State , 877 S.W.2d 113, 115 (Mo.banc 1994); see also State v. Zingre , 980 S.W.2d 355, 356 (Mo.App.S.D. 1998). Thus, we will affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy , 536 S.W.2d at 32.
In his first point, Mr. Greeno asserts that the trial court could not deny his application for conditional release without first finding that he is currently suffering from a mental disease or defect. He points out that the court made no such finding and therefore contends the trial court erred in denying his application.
Chapter 552 governs commitment and release of persons tried and acquitted of crimes by reason of mental disease or defect excluding responsibility. Section 552.040.12 sets forth factors the court should consider when making a determination on an application for conditional release:
At a hearing to determine if the committed person should be conditionally released, the court shall consider the following factors in addition to any other relevant evidence:
(1) The nature of the offense for which the committed person was committed;
(2) The person's behavior while confined in a mental health facility;
(3) The elapsed time between the hearing and the last reported unlawful or dangerous act;
(4) The nature of the person's proposed release plan;
(5) The presence or absence in the community of family or others willing to take responsibility to help the defendant adhere to the conditions of the release; and
(6) Whether the person has had previous conditional releases without incident.
The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility shall be on the party seeking release to prove by clear and convincing evidence that the person for whom release is sought is not likely to be dangerous to others while on conditional release.
Section 552.040.14 provides that "[n]o committed person shall be conditionally released until it is determined that the committed person is not likely to be dangerous to others while on conditional release." There is no requirement in the statute that a trial court must make a specific finding as to whether the committed person seeking release is suffering from a mental disease or defect prior to denying a conditional release.
Mr. Greeno, however, relies on Foucha v. Louisiana , 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) and our decision in Styles v. State , 838 S.W.2d 10 (Mo.App.W.D. 1992) (hereinafter referred to as Styles I as support for his contention.) Like the case at bar, Foucha involved an application for a conditional release. Foucha , 504 U.S. at 73, 112 S.Ct. at 1782. But unlike Mr. Greeno's case, all the parties in Foucha agreed that Terry Foucha was not mentally ill at the time of the hearing. Foucha , 504 U.S. at 74, 112 S.Ct. at 1782. The trial court denied the conditional release, and the Supreme Court of Louisiana affirmed this determination, based solely on the fact that Mr. Foucha was dangerous to himself and others. Foucha , 504 U.S. at 75, 112 S.Ct. at 1782-83. The Supreme Court of Louisiana affirmed the trial court decision on the basis that Mr. Foucha did not prove he was not dangerous. Foucha , 504 U.S. at 75, 112 S.Ct. at 1783. The United States Supreme Court granted certiorari and reversed the decision of the Louisiana Supreme Court. Foucha , 504 U.S. at 86, 112 S.Ct. at 1789. The Court found that if it is established that the insanity acquittee is not "mentally ill at the time of the trial court's hearing[,] the basis for holding [him] in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis." Foucha , 504 U.S. at 78, 112 S.Ct. at 1784. Thus, an insanity acquittee can remain committed only as long as his mental illness continues.
We refer to the case as Styles I because, as is explained infra, we reversed and remanded the case to the trial court. After decision on remand, the case was again appealed and was decided on constitutional grounds by our Supreme Court in Styles v. State , 877 S.W.2d 113 (Mo.banc 1994), hereafter referred to as Styles II .
Styles I also involved an application for conditional release. 838 S.W.2d at 10. In the application, Styles alleged that he did not then and in the reasonable future was not likely to have a mental disease or defect rendering him dangerous to the safety of himself or to others. Id . At the hearing, Styles testified that he was not suffering from a mental disease or defect. Id . Styles' treating physician, Dr. Singh, testified that Styles was diagnosed as suffering from schizo-affective disorder which was in remission without medication, polysubstance abuse, paranoid personality disorder and antisocial personality disorder. Id . at 11. Dr. Singh was not questioned, however, as to whether Styles was suffering from a mental disease or defect at the time of the hearing. Id . The trial court denied conditional release on the basis that Mr. Styles presented a substantial likelihood of harm to others. Id .
On appeal, we noted that § 552.040.9, which authorizes conditional releases, "impliedly recognizes that a person seeking conditional release is a person who is still suffering from a mental disease or defect." Styles I , 838 S.W.2d at 11. We went on to observe that because of this, the question is whether the person is likely to be dangerous to others by virtue of conditional release and whether such person is likely to commit another crime in the reasonable future because of the mental illness. Id . But we also acknowledged Foucha's holding that "the due process rights of a person are violated if the state holds a person in a psychiatric facility when the person is no longer suffering from a mental disease or defect." Id. We then stated:
RSMo Cum. Supp. (1991). The version of the statute applicable to this case, § 552.040.10, RSMo Cum. Supp. (1998), contains the identical language found in § 552.040.9, RSMo Cum. Supp. (1991).
Under Foucha , it is necessary for a court to make a finding that an insanity acquittee is suffering from a mental illness or defect before it can order that such person shall remain in a mental institution. Thus, a denial of a conditional release must be based on a finding that the person is suffering from a mental disease or defect to justify the denial of release.
Id . After a careful review of the record, we concluded that the trial court made no finding whether Styles was suffering from a mental disease or defect at the time of the hearing and that the record was "not clear as to whether or not Styles was suffering from a mental disease or defect at the time of the hearing because Dr. Singh was never asked that specific question. . . . Thus, on the record presented, this court can not make a finding of whether or not Styles was suffering from a mental disease or defect at the time of the hearing." Id . Therefore, we reversed the trial court's decision and remanded for the court to make a finding on the question of whether Styles was suffering from a mental disease or defect. Styles I , 838 S.W.2d at 12. We further directed the trial court to re-open the case and take additional evidence if needed to resolve that question. Id.
The Missouri Supreme Court recently addressed the same issue raised in Styles I in the context of unconditional releases pursuant to § 552.040.5. In State v. Revels , 13 S.W.3d 293 (Mo. banc 2000), Revels argued that the trial court erred by denying his application for unconditional release without making a specific finding as to whether he suffered from a mental disease or defect, relying on Styles I and Foucha as support. Id. at 295-96. The Court rejected the argument, holding that "[t]here is no requirement that before denying an unconditional release, the circuit court make specific findings that an insanity acquittee is suffering from a mental disease or defect, unless findings are requested in accordance with Rule 73.01(c)." Id. at 296. In doing so, however, the Court did not overrule the holding in Styles I . Rather, it seemingly approved of it, distinguishing it on the basis that it involved a conditional release, when it stated "[t]he Styles I opinion does not control Revels' case because it addressed a conditional release, which is governed by subsections 10 through 18, and 20 of section 552.040." Id. Accordingly, it appears there is a requirement for a specific finding as to whether an insanity acquittee is suffering from a mental disease or defect in conditional release cases, but there is no such requirement in unconditional release cases.
The instant appeal is from the denial of an application for conditional release. Therefore, Styles I is controlling and we are confronted with the same problem that existed in that case. The trial court made no finding on the question whether Mr. Greeno was suffering from a mental disease or defect at the time of the hearing. Likewise, none of the doctors who testified were asked whether Mr. Greeno was suffering from a mental disease or defect. While there was testimony that Mr. Greeno suffers from post-traumatic stress disorder, alcohol abuse in remission, cannabis abuse in remission, and personality disorder, there was no evidence as to whether any of the conditions constitute a mental disease or defect, and there was conflicting evidence regarding the impact of those conditions on Mr. Greeno. As in Styles I , we cannot say, based on the record before us, that Mr. Greeno was suffering from a mental disease or defect at the time of the hearing.
For this reason, we conclude that the trial court's judgment must be reversed and the cause remanded for the court to make a finding on the question of whether Mr. Greeno is suffering from a mental disease or defect. The court may reopen the case and take additional evidence to resolve that question. If the court finds that Mr. Greeno is not suffering from a mental disease or defect, it shall order him discharged. If the court finds that he is suffering from a mental disease or defect, the court shall proceed under § 552.040.12. Because of our disposition of Mr. Greeno's point I, we need not address the other points raised on appeal.
All concur.