Opinion
1 CA-MH 11-0072
01-31-2012
IN RE MH2011-001587
William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Cynthia Dawn Beck, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication - (Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. MH2011-001587
The Honorable Veronica Brame, Judge Pro Tem
AFFIRMED
William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender By Cynthia Dawn Beck, Deputy Public Defender Attorneys for Appellant
Phoenix GEMMILL, Judge
¶1 Appellant appeals the trial court's order requiring he undergo involuntary treatment for a period not to exceed 365 days, including inpatient treatment for a period not to exceed 180 days.
FACTS AND PROCEDURAL BACKGROUND
¶2 In June 2010, Dr. Mary Krolik filed a petition for court-ordered evaluation of Appellant. The petition indicated that Appellant was a danger to others ("DTO") and persistently or acutely disabled ("PAD") and that Appellant refused to undergo voluntary evaluation.
¶3 The petition included an application for involuntary evaluation submitted by Appellant's mother. Appellant's mother indicated that Appellant exhibited narcissistic behavior, and "he wants his mother dead, he vandalizes our home and demands new clothes[,] pajamas, body wash[,] [and] toothbrush daily." Appellant had been diagnosed as exhibiting anti-social behavior and obsessive compulsive disorder ("OCD"), and his mother believed Appellant was "dangerous and threatening to his family." Appellant's Mother indicated that Appellant was unemployed and reclusive, and he would "not go into his bedroom until certain conditions [are] done by other [f]amily members." She noted that Appellant slept on the dining room table "to punish" his mother if she did follow his requests.
¶4 Appellant's mother also submitted an application for emergency admission for evaluation. Appellant's mother indicated that Appellant threatened his family daily, made unreasonable demands, and "yell[ed] and rant[ed] at his family - calling [them] white trash." She alleged that Appellant demanded she take him out of the state and told her he wanted her to "die a slow[,] pain[ful] death." Mother noted that Appellant showered for one to four hours at a time and used two to eight bottles of bodywash if they were available. The court subsequently ordered that Appellant be detained for evaluation.
¶5 Dr. Carol Olson then submitted a petition for court-ordered treatment, indicating that Appellant was PAD and recommending combined outpatient and inpatient treatment. Accompanying the petition were the affidavits of two examining physicians, Dr. Olson and Dr. Hadziahmetovic ("Dr. H.").
¶6 Dr. Olson diagnosed Appellant as having OCD, Asperger's Disorder, and Narcissistic Personality Disorder. Dr. Olson explained to Appellant the advantages and disadvantages of accepting treatment, as well as the alternatives to treatment. Dr. Olson also indicated that "[t]he results of the physical exam performed on the proposed patient were reviewed and there are no findings in that exam that are relevant to the psychiatric presentation of the patient." Dr. Olson indicated that Appellant was opposed to court-ordered treatment, and a previous court-ordered treatment had expired in January 2011. Appellant revealed that he had previously seen a psychiatrist, but he refused to share the treatment records with his parents. Appellant acknowledged "feeling depressed a lot," and experienced "high anxiety levels," which he coped with "by washing and organizing." Appellant asserted that his mother called him names, such as "a queer and a faggot." He expressed a desire to return to college, but claimed his mother would not pay the application fee or drive him to the post office to submit the application. Dr. Olson indicated that Appellant's mood was "anxious," and he admitted "he wished [his mother] would die." She believed his "insight and judgment have been very poor," and he "minimize[d] the severity of his symptoms, and has not been able to hold a job or go to school in over a year."
¶7 Dr. H. diagnosed Appellant as having OCD and Narcissistic Personality Disorder and indicated that Appellant was PAD. Dr. H. explained to Appellant the advantages and disadvantages of accepting treatment, as well as the alternatives to treatment. Dr. H. also indicated that "[t]he results of the physical exam performed on the proposed patient were reviewed and there are no findings in that exam that are relevant to the psychiatric presentation of the patient." Appellant stated there was "absolutely nothing wrong with him," and that he felt "like a black sheep of the family because his parents are Evangelical Christian Conservatives and he is not and they are not getting along really well." Appellant revealed that he had stopped going to see his psychiatrist and therapist around January of 2011 "because his mother wouldn't give him a ride." Dr. H. noted that Appellant "ha[d] a history of psychiatric hospitalizations and previous court ordered treatments for [DTO] and [PAO]." Dr. H. opined that Appellant was "showing symptoms of severe [OCD], anxiety, and depression," and "[a]t the present time these symptoms appear to be acutely disabling based on these recent behaviors and current presentation." Dr. H. believed the severity of Appellant's "psychotic and mood symptoms make him unable to make an informed decision regarding treatment at this time because of severe impairment of his insight and judgment." He believed Appellant could benefit from inpatient treatment "through a reduction in OCD symptoms." The court ordered that Appellant be detained for treatment.
¶8 A hearing was held on the petition for court-ordered treatment. The two examining physicians, Appellant's mother, Appellant's father, and Appellant all testified. Both physicians' affidavits were admitted into evidence. The court found "by clear and convincing evidence that the Patient is suffering from a mental disorder and, as a result, is [PAD], is in need of treatment and is either unwilling or unable to accept voluntary treatment." The court ordered that Appellant undergo combined inpatient/outpatient treatment for a period of time not to exceed 365 days, with the inpatient treatment not to exceed 180 days.
¶9 Appellant timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-2101(A)(10) (Supp. 2011) and 36-546.01 (2009).
DISCUSSION
I. Request to Waive Counsel
¶10 Appellant argues that the trial court abused its discretion in denying his request to waive court-appointed counsel and represent himself without a finding that Appellant was unable to knowingly and intelligently waive that right.
¶11 We review the court's denial of Appellant's request de novo. In re Jesse M., 217 Ariz. 74, 76, ¶ 8, 170 P.3d 683, 685 (App. 2007). Patients may be allowed to waive court-appointed counsel in an involuntary treatment hearing as long as they can do so "knowingly, intelligently, and voluntarily." Id. at 78, ¶ 18, 170 P.3d at 687. In such instances, the trial court should:
a) advise the patient of his right to counsel;Id. at 80, ¶ 30, 170 P.3d at 689. "Once that on-the-record discussion has been completed, the trial court should make specific factual findings supporting the grant or denial of the waiver." Id.
b) advise the patient of the consequences of waiving counsel, namely, that the patient and not the lawyer will be responsible for presenting his case, cross-examining the petitioner's witnesses, calling witnesses, and presenting evidence as well as closing argument;
c) seek to discover why the patient wants to represent himself, which may involve a
dialogue with counsel or others;
d) learn whether the patient has any education, skill or training that may be important to deciding whether he has the competence to make the decision;
e) determine whether the patient has some rudimentary understanding of the proceedings and procedures to show he understands the right he is waiving; and
f) consider whether there are any other facts relevant to resolving the issue.
¶12 Appellant argues that the trial court erred because the court only inquired into Appellant's competence to conduct a hearing and did not inquire into his competence to waive his right to counsel. Appellant asserts that "[b]ecause Appellant was lucid and not subject to delusions, psychosis, auditory hallucinations or other internal stimuli, and because he demonstrated at least a rudimentary understanding of how to conduct the hearing, he was entitled to waive his right to counsel." We disagree.
¶13 The court began by asking Appellant why he wanted to represent himself, to which Appellant answered "[w]ell I feel that I know my case better than anyone." The court then asked whether Appellant understood that an Arizona statute provided that he had the right to be represented by counsel, to which Appellant replied in the affirmative. The court next inquired into whether Appellant understood that there were certain procedures necessary for the conduct of the hearing, to which Appellant again replied in the affirmative. Appellant answered, however, that he did not understand the statutes governing the rulings and order of conduct for the hearing.
¶14 Pursuant to the court's inquiry into Appellant's educational background, Appellant stated that he had received a high school education and had enrolled in eighteen hours of college course credit, but he withdrew before receiving grades in the courses. Appellant answered that he did not have an associates or bachelors degree or any paralegal training. The court asked Appellant whether he knew how to make an opening statement, and Appellant replied that he did based on "observ[ing] courtroom conduct." While Appellant answered that he did know how to call witnesses, he answered that he did not know how to produce discovery. While Appellant knew legal terms, the difference between criminal and civil law, and that he had the right to remain silent and not testify, he did not know the rules of evidence. Appellant had reviewed the physicians' affidavits and the original petition and understood the possibility of stipulation and objection to those affidavits. While Appellant claimed that he understood what would be relevant evidence, he admitted that he did not know the hearsay exceptions. In total, the court's exchange with Appellant spanned eleven pages of the trial transcript. The court stated:
One, by statute he has been advised that he as a right to counsel.
Two, he does not know, in the [c]ourt's opinion, all the information that's necessary to conduct a hearing and it will be in the best interest for him.
So, therefore, the [c]ourt is going to deny [the request] for those reasons.
He explains that he has some knowledge regarding opening and closings, cross examining witness and presenting evidence and closing arguments, however, when the [c]ourt asked him specific questions about those things, he could not convince the [c]ourt that he knew what he was doing.
When we talk about the education of him, he indicates that he has a high school diploma. He was in college, he had about 18 hours and of those 18 hours, he got no credit for any of those. He does not have any training or degrees in law or paralegal or any experience dealing with the law or the rules of conducting a hearing for this civil matter.
So based on all of those reasons as stated in the case law In re: Jesse, the [c]ourt is going to deny his request to represent himself.
¶15 In addition, the court noted in a minute entry that it had "considered, inter alia, [ In re Jesse M. ], 203 Ariz 278, 53 P.3d 203 (App. 2007) and [In re Maricopa County Superior Court], 1-CA-MH 03-0006, in reaching a decision regarding the patient's request to represent himself." In denying Appellant's request, the court found "that based upon the totality of the record the patient is unable to knowingly and intelligently understand the request to waive counsel, what he would be required to do and the attendant consequences thereto."
Although the trial court provided an incorrect citation to In re Jesse in the minute entry, the year of the case - 2007 -- is correct for the In re Jesse opinion addressing this subject. The citation provided identifies another case, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 53 P.3d 203 (App. 2002), which does not deal with waiver of counsel and self-representation. We are confident, therefore, that the trial court intended to cite the 2007 case of In re Jesse M. , 217 Ariz. 74, 76, ¶ 8, 170 P.3d 683, 685 (App. 2007).
¶16 Upon this record, we find that the court engaged in a sufficient discussion of Appellant's ability to waive counsel pursuant to In re Jesse M. , 217 Ariz. at 80, ¶ 30, 170 P.3d at 689, and we conclude that the court did not abuse its discretion in denying Appellant's request to waive counsel and represent himself.
II. Physical Examination
¶17 Appellant further argues that the hospital did not strictly comply with the applicable statutes. Specifically, Appellant asserts that "the record is devoid of information regarding whether a proper examination was conducted." ¶18 A petition for court-ordered treatment must be supported by the affidavits of two physicians who have conducted examinations of the patient. A.R.S. § 36-533(B) (2009). An examination is defined as "an exploration of the person's past psychiatric history and of the circumstances leading up to the person's presentation, a psychiatric exploration of the person's present mental condition and a complete physical examination." A.R.S. § 36-501(14) (Supp. 2010).
¶19 Appellant argues that "[n]either physician testified regarding how the required physical examination was conducted, or by whom or whether the person conducting the physical examination was properly licensed." Appellant concedes on appeal that the affidavits of both evaluating physicians were admitted into evidence without objection. Appellant's counsel was also given the opportunity to cross-examine both physicians. We conclude that this issue Appellant now wants to raise on appeal has been waived because the issue was not asserted to the trial court. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) ("Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."); see also In re MH 2007-001895, 221 Ariz. 346, 350, ¶ 15, 212 P.3d 38, 42 (App. 2009) (finding appellant waived the argument that she did not receive a continuous simultaneous translation of the hearing because she failed to object at trial). By not objecting to the physicians' affidavits and by not objecting to the physicians' opinions and conclusions on the basis that adequate physical examinations had not been proven, Appellant has waived appellate review of this issue.
CONCLUSION
¶20 For the foregoing reasons, we affirm the trial court's order.
_____________________
JOHN C. GEMMILL, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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MARGARET H. DOWNIE, Judge