Opinion
No. WD55481
Opinion Filed: April 13, 1999 Opinion Modified: June 1, 1999
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, HONORABLE JON R. GRAY, JUDGE.
Before: Ulrich, P.J., and Smart and Smith, JJ.
Frederick L. Revels appeals the judgment of the circuit court denying his § 552.040.5 application for unconditional release from the custody of the Missouri Department of Mental Health (the DMH). On August 20, 1992, the appellant was found not guilty by reason of mental disease or defect, pursuant to § 552.030.1, of one count of first degree murder, § 565.020, and two counts of second degree murder, § 565.021, and committed.
All references to § 552.040 are to RSMo Supp. 1997. All other statutory references are to RSMo 1994, unless otherwise indicated.
The appellant raises two points on appeal. In Point I, he claims that the trial court erred in denying his application for unconditional release because, in denying his application, it was required by law to make an express finding that he was still suffering from a mental disease or defect and failed to do so. In Point II, he claims that, even if the trial court is found to have made the required finding, such a finding was not supported by the evidence and did not reflect a consideration of the factors required to be considered by § 552.040.7 in determining whether to grant an application for unconditional release.
We reverse and remand.
Facts
On August 20, 1992, the appellant was found not guilty by reason of mental disease or defect, pursuant to § 552.030.1, of one count of first degree murder, § 565.020, and two counts of second degree murder, § 565.021. He was committed to the custody of the DMH and delivered to the Fulton State Hospital. On October 31, 1997, he filed in the Circuit Court of Jackson County an application for unconditional or conditional release, pursuant to §§ 552.040.5 and 552.040.10. On December 18, 1997, a hearing was held on his application. At the hearing, the appellant dismissed that portion of his application seeking conditional release and proceeded only with unconditional release.
The appellant testified at his hearing that in June 1988, he killed his grandmother, sister, and nephew. He testified that he was hearing voices at the time, which he continued to hear until sometime in 1993 or 1994. He explained that, at the time, he was abusing a controlled substance and that if he were released from the DMH's custody, he would not abuse a controlled substance in the future. He further testified that he would not harm anyone if released.
The appellant testified that since being initially committed to the DMH's custody, he had been granted two conditional releases. The first conditional release, granted sometime in 1993, was revoked sometime in 1994 when he spent the night at his girlfriend's house and put his hand through a window while arguing with her. Sometime in 1995, the appellant was granted a second conditional release, which was revoked on March 1, 1997, partly because he failed to attend Alcoholics and Narcotics Anonymous meetings as required.
The staff psychiatrist for the Fulton State Hospital, Dr. David Hunter, testified at the hearing that he first evaluated the appellant in March 1997 and diagnosed him at that time as having poly-substance dependence, specifically alcohol and cocaine, and anti-social personality disorder. He further testified that in March and April 1997, the appellant sporadically attended counseling meetings at the hospital, but subsequently refused to participate in such meetings.
Dr. Hunter testified that in July 1997 he examined the appellant and found that he was not suffering from any psychotic or mood disorder. He further testified that he again examined the appellant in September 1997 and again found no evidence of thought disturbances. He testified that he did not find, at that time, any evidence of hallucinations, delusions, paranoia, or defects in memory and thought that the appellant's insight and judgment appeared to be reasonably intact. Dr. Hunter testified that at the time of the hearing, he no longer thought that the appellant's judgment and insight were intact but instead thought that they were impaired. He testified that he believed that the appellant would be a danger to others if unconditionally released from the DMH's custody and that there would be a greater than ninety-percent chance that he would relapse into substance abuse if released. Dr. Hunter was not specifically asked whether the appellant was suffering from any mental disease or defect at the time of the hearing.
On January 5, 1998, the trial court entered an order denying the appellant's application for unconditional release. The court did not make an express finding as to whether the appellant was suffering from a mental disease or defect at that time. On June 3, 1998, the trial court entered a judgment nunc pro tunc, pursuant to Rule 74.06.1, correcting the designation of its January 5, 1998, ruling to that of "judgment" rather than "order."
All rule references are to the Missouri Rules of Civil Procedure (1998), unless otherwise indicated.
This appeal follows.
Standard of Review
The denial of an application, filed pursuant to § 552.040.5, for unconditional release from the custody of the DMH is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). State v. Dudley, 903 S.W.2d 581, 585 (Mo.App. 1995). The trial court's decision will not be reversed 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. Id. at 584.
I.
In Point I, the appellant claims that the trial court erred in denying his application for unconditional release because, in denying his application, it was required by law to make an express finding that he was still suffering from a mental disease or defect and failed to do so. The State contends that the trial court did not err in denying the appellant's application for unconditional release in that: (1) he failed to carry his burden to show that he was not suffering from a mental disease or defect rendering him a danger to himself or others; and (2) in denying his application, the trial court was not required to make an express finding as to whether he was suffering from a mental disease or defect.
Section 552.040 governs, inter alia, applications for unconditional release from DMH custody of those acquitted of criminal charges by reason of mental disease or defect and provides, in pertinent part, as follows:
3. . . . Notwithstanding any other provision of law to the contrary, no person committed to the department of mental health who has been tried and acquitted by reason of mental disease or defect as provided in section 552.030 shall be conditionally or unconditionally released unless the procedures set out in this section are followed . . .
. . .
5. The committed person . . . may file an application in the court that committed the person seeking an order releasing the committed person unconditionally . . .
. . .
7. At a hearing to determine if the committed person should be unconditionally released, the court shall consider the following factors in addition to any other relevant evidence:
(1) Whether or not the committed person presently has a mental disease or defect;
(2) The nature of the offense for which the committed person was committed;
(3) The committed person's behavior while confined in a mental health facility;
(4) The elapsed time between the hearing and the last reported unlawful or dangerous act;
(5) Whether the person has had conditional releases without incident; and
(6) Whether the determination that the committed person is not dangerous to himself or others is dependent on the person's taking drugs, medicine or narcotics.
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 unconditional release to prove by clear and convincing evidence that the person for whom unconditional release is sought does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others.
8. The court shall enter an order either denying the application for unconditional release or granting an unconditional release . . .
9. No committed person shall be unconditionally released unless it is determined through the procedures in this section that the person does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others.
. . .
20. 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 for a dangerous felony as defined in section 556.061, RSMo, murder in the first degree pursuant to section 556.020, RSMo, or sexual assault pursuant to section 556.040, RSMo, shall not be eligible for conditional or unconditional release under the provisions of this section unless, in addition to the requirements of this section, the court finds that the following criteria are met:
(1) Such person is not now and is not likely in the reasonable future to commit another violent crime against another person because of his mental illness; and
(2) Such person is aware of the nature of the violent crime committed against another person and presently possesses the capacity to appreciate the criminality of the violent crime against another person and the capacity to conform his conduct to the requirements of law in the future.
This section places the burden of persuasion on the committed acquittee seeking release to prove by clear and convincing evidence that he does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering him dangerous to the safety of himself or others. State v. Tooley, 875 S.W.2d 110, 113 (Mo. banc 1994). Placing the burden of persuasion on the committed acquittee has been held by the Missouri Supreme Court to be constitutional. Id. at 113. This burden does not shift to the State unless the presumption of the continuing mental illness of a committed acquittee established in Jones v. United States, 463 U.S. 354, 366 (1983) is rebutted. Tooley, 875 S.W.2d at 113 . While the appellant does not dispute the fact that he had the burden to prove his entitlement to unconditional release, he claims that the trial court, in denying his application, was required to make an express finding that he was suffering from a mental disease or defect. The record reflects that no such finding was made. The question is whether the trial court's failure to do so was reversible error.
While § 552.040 does not explicitly require the trial court to make a finding that a committed acquittee is suffering from a mental disease or defect before denying his or her application for unconditional release, Jensen v. State, 926 S.W.2d 925, 928 (Mo. App. 1996), in making his claim, the appellant relies on Foucha v. Louisiana, 504 U.S. 71 (1992) and Styles v. State, 838 S.W.2d 10 (Mo.App. 1992) ( Styles I ). In Foucha , the insanity acquittee was found not guilty, by reason of insanity, of the charges of aggravated burglary and illegal discharge of a firearm and committed to a state mental facility. 504 U.S. at 73-74. After his commitment, his treating physicians recommended that he be conditionally released from the facility, reporting that there had been no evidence of mental illness since his admission, although he did suffer from anti-social personality, and they could not certify that he would not be dangerous to himself or others, if released. 504 U.S. at 74-75. Although the State conceded that the acquittee was no longer mentally ill, the trial court denied his application for release because it found that he was dangerous to himself and others. The Louisiana Supreme Court upheld its decision. 504 U.S. at 75. The United States Supreme Court reversed, holding that a criminal defendant found not guilty by reason of insanity, who is committed to a mental facility, "may be held as long as he [or she] is both mentally ill and dangerous, but no longer," without violating his or her due process rights. 504 U.S. at 77. In other words, unless the committed acquittee is still mentally ill, he or she cannot be held further, even if dangerous to himself, herself, or others.
In Styles I , the defendant, Styles, filed an application for conditional release, alleging that he no longer suffered from a mental disease or defect rendering him dangerous to himself or others. Styles [ I ], 838 S.W.2d at 10. The appellant's treating psychologist testified at his release hearing that he was in remission from a previously diagnosed schizo-affective disorder, but suffered from poly-substance abuse, paranoid personality disorder, and anti-social personality disorder. Id. at 11. The trial court denied Styles' application for conditional release, finding that he still presented a substantial likelihood of harm to others, but not expressly finding that he was suffering from a mental disease or defect. Id. at 11.
This court held in Styles I that, while § 552.040 did not expressly require a court, in denying an application for conditional release, to make a finding as to whether the applicant was still suffering from a mental disease or defect, the holding in Foucha did. Id. at 11. In this respect, this court stated that "[u]nder 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." Id. at 11. "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. at 11 (emphasis added). With this as a given, this court found that, based on the record before it, it was unclear as to whether Styles was suffering from a mental disease or defect, requiring the case to be remanded back to the circuit court to determine if such a finding was supported by the evidence. Id. at 11-12.
Although Styles I dealt with an application for a conditional release, not an unconditional release, as in the instant case, we believe that the requirement that the trial court make an express finding that a committed acquittee is suffering from a mental disease or defect before it can deny an application for conditional release is equally applicable to the denial of an application for unconditional release. Logically, we see no reason to distinguish between the two. Both § 552.040.5, governing applications for unconditional release, and § 552.040.10, governing applications for conditional release, impliedly recognize that "a person seeking . . . release is a person who is still suffering from a mental disease or defect." Styles [ I ], 838 S.W.2d at 11 . The fact remains that the State cannot continue to restrain the liberty of an insanity acquittee, in whole or in part, unless he or she suffers from a mental illness. As such, we find that the trial court here was required, in denying the appellant's application for unconditional release, to expressly find under § 552.040.5 that he had, or in the reasonable future was likely to have, a mental illness or defect rendering him dangerous to the safety of himself or others. The record demonstrates that no such finding was made.
Here, as in Styles I , the treating psychiatrist, Dr. Hunter, was never specifically asked whether the appellant was suffering from a mental disease or defect at the time of the hearing. However, when asked his diagnosis of the appellant, Dr. Hunter testified that he first evaluated the appellant in March 1997 and diagnosed him at that time as having poly-substance dependence, specifically alcohol and cocaine, and anti-social personality disorder. Under § 552.010, a mental disease or defect for the purposes of § 552.040 does not include an abnormality manifested only by anti-social conduct. Alcoholism or drug abuse without psychosis is also not included within the definition of a mental disease or defect. § 552.010; Bainter v. State, 752 S.W.2d 933, 936 (Mo.App. 1988).
Dr. Hunter testified that he also examined the appellant in June 1997 and found that he was not suffering from any psychotic or mood disorder. He further testified that he again examined the appellant in September 1997 and found no evidence of thought disturbances in the appellant. He also did not find, at that time, any evidence of hallucinations, delusions, paranoia, or defects in memory and believed that the appellant's insight and judgment appeared to reasonably be intact. He did testify that at the time of the hearing, he no longer believed that the appellant's judgment and insight were intact, but were impaired. He stated that he believed that the appellant would be a danger to others if unconditionally released from the DMH's custody and that there would be a greater than ninety-percent chance that he would relapse into substance abuse. Dr. Hunter was never asked directly whether, in his opinion, the appellant's poly-substance dependence, anti-social personality disorder, or impaired judgment constituted a mental disease or defect for the purposes of § 552.040. And, like in Styles I , the trial court failed to make an express finding that the appellant was still suffering from a mental disease or defect.
The State argues that in denying the appellant's application for unconditional release, the trial court made an implicit finding that he was suffering from a mental disease or defect, rendering him dangerous to himself or others and that such a finding was sufficient to satisfy § 552.040. However, this is contrary to the holding in Styles I . In Styles I , the trial court denied Styles' application for conditional release, finding that he presented a substantial likelihood of harm to others if released, without finding that he was suffering from a mental disease or defect. Styles [ I ], 838 S.W.2d at 11 . Conceivably the State could have argued in Styles I , as the State does here, that because the trial court denied Styles' application for conditional release, it implicitly found that he was suffering, or in the reasonable future was likely to suffer, from a mental disease or defect. However, this court held, in spite of the trial court's denial of his application for conditional release, it was still required to make such an express finding rejecting the notion that the mere denial of an application for release was tantamount to a finding of mental disease or defect sufficient to satisfy Foucha . Styles [ I ], 838 S.W.2d at 11 .
The dissent asserts that in holding as we do we err. In making this assertion, the dissent relies on its interpretation of the holding in Styles II, Styles v. State, 877 S.W.2d 113 (Mo. banc 1994). Styles II involved the appeal of Styles I to the Missouri Supreme Court after its remand to the trial court by this court and the grant of the applicant's conditional release. In Styles II , the court held that the trial court, in granting the release, had improperly shifted the burden of persuasion from the applicant to the State. Styles [ II ], 877 S.W.2d at 115 . The dissent misreads the holding in Styles II and its effect on the case at bar.
In order for the dissent to argue as it does, it necessarily must contend that Styles I was either overruled by Styles II or should be overruled in the instant appeal. This is so in that if it is not overruled, it would control the disposition of this appeal, supporting the majority's position. This court, in Styles I , while clearly recognizing the issues raised by the dissent here, held that "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." Styles [ I ], 838 S.W.2d at 11 (emphasis added). In so holding, this court recognized, inter alia, that the burden of persuasion was on the applicant for release and that the statute controlling releases did not explicitly require the court to make a finding as to whether he or she was suffering from a mental disease or defect. Id. at 11.
Our reading of Styles II reveals that it did not expressly or impliedly overrule Styles I . In concluding this fact, we note that the issues presented in the two were different. In Styles I, the issue was whether, in denying the application for release, the trial court was required to make an express finding that the applicant no longer suffered from a mental disease or defect. In Styles II , the issue was whether the holding in Foucha would apply to shift the burden of persuasion from the applicant to the State.
Regardless of the dissent's argument, the fact remains that Foucha prohibits a state from continuing to hold an insanity acquittee, unless he or she still suffers from a mental illness or defect. Consequently, a trial court cannot deny an application for release, conditional or unconditional, by finding simply that the applicant was dangerous. And, where, as here, the issue of whether the applicant was suffering from a mental disease or defect is in dispute, requiring a specific finding on this issue does not upset the burden of persuasion under the statute or destroy the Jones presumption of a continuing mental illness. The finding insures only that an insanity acquittee is not being held in violation of the Constitution where he no longer suffers from a mental disease or defect. Without the required finding, we are forced to presume from a trial court's silence that, in denying the acquittee's application, it did so because it found that the applicant was still suffering from a mental disease or defect and was dangerous to himself or others, as required by the statute, when, in fact, it may have done so after finding that he did not suffer and was not in the near future likely to suffer from a mental disease or defect, but was dangerous, which is contrary to Foucha and the Constitution.
As a rule, where the parties do not request, under the rules, findings of fact and conclusions of law, we presume the trial court has made findings in accordance with the ruling of the trial court. Basso v. Manlin, 865 S.W.2d 431, 433 (Mo.App. 1993). However, there is an exception to this rule. As to this exception, this court, in Gant v. Gant, 892 S.W.2d 342 (Mo.App. 1995), recognized that "the presumption of findings in accordance with the result reached is defeated when the implicit findings present irreconcilable conflicts and inconsistencies." Id. at 346-47 ( citing Basso, 865 S.W.2d at 433 ).
In Gant, this court was confronted with the issue of whether under § 452.375.11, now § 452.375.12, RSMo Supp. 1995, dealing with the award of child custody and requiring certain specific findings where the trial court first found a recurring pattern of domestic violence, the trial court was required to make a specific finding as to a pattern of domestic violence or whether its silence and a lack of a finding on this issue was sufficient for this court to presume that it did so find. This court, including the dissent, although recognizing that the statute did not expressly require a specific finding as to a pattern of domestic violence, nonetheless held that such a finding was required. Id. at 346. In holding as the court did, it indicated that it was influenced by the gravity of the issue presented, the overarching concern shown by the legislature for the issue, and the evidence of the issue in the case. Id. at 347. In the instant case, clearly the issue of whether the applicant was still mentally ill and dangerous, requiring further confinement in a mental institution, was a grave issue for all involved, regardless of one's perspective. Certainly, the State would not want to release an individual who was still mentally ill and posed a danger to society. Equally true, however, is the fact that the State would not want to be a party to the Constitutional violation of confining a citizen in a mental hospital who had not been convicted of any crime, albeit by reason of mental disease or defect, and no longer suffered therefrom.
In the instant case, given the law, the record, the uncertainty of the basis for the trial court's denial of the appellant's application, and the lack of a specific finding by the trial court as to whether the applicant continued to suffer from a mental illness or defect, we fail to see how we can conduct meaningful appellate review. In such circumstance, it is appropriate to remand for further specific findings by the trial court, even though not expressly mandated by statute or rule. Woolridge v. Woolridge, 915 S.W.2d 372, 380 (Mo.App. 1996) ( citing Myers-Geiger v. Geiger, 878 S.W.2d 925, 927 (Mo.App. 1994)). And, in our view, given the circumstances of this case, the need for certainty, as to the basis for the trial court's ruling to insure that the State does not violate a Constitutional right of the appellant, clearly outweighs any procedural concerns that may have been raised by the dissent.
Because the trial court failed to make an express finding as to the mental health of the appellant, then, as in Styles I , we must reverse the circuit court's judgment and remand the case to the court to make an express finding on the question of whether the appellant still has, or in the reasonable future is likely to have, a mental disease or defect, while recognizing that the burden of proof is on the appellant and that there is a continuing presumption of mental illness. In doing so, the trial court may, in its discretion, reopen the case and take additional evidence to resolve this issue. If it finds that the appellant does not have, and in the reasonable future is not likely to have, a mental disease or defect, it shall order him discharged. § 552.040.9. If the court finds to the contrary, it shall proceed under § 552.040.7.
Because we are remanding the case to the circuit court to consider the question of whether the appellant suffers or is likely in the reasonable future to suffer from a mental disease or defect, we need not address his second point wherein he claims that even if the trial court made the required finding of mental illness, the finding was not supported by the evidence and did not reflect a consideration of the factors required to be considered by § 552.040.7 in determining whether to grant an application for unconditional release.
Conclusion
For the foregoing reasons, the judgment of the circuit court denying the appellant's § 552.040.5 application for unconditional release from the custody of the DMH is reversed and the cause is remanded for further proceedings consistent with this opinion.
Ulrich, P.J, concurs.
Smart, J., dissents in separate dissenting opinion.