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MERCER v. COMMONWEALTH



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MERCER

v.

COMMONWEALTH


January 14, 2000

Record No. 990821

BRIGITTE MERCER

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

OPINION BY JUSTICE CYNTHIA D. KINSER

Present: All the Justices

Verbena M. Askew, Judge


In this appeal, we consider the definition of
the term "[m]entally ill" in Code ? 37.1-1
in relation to the criteria set forth in Code
?? 19.2-182.3 and –182.5 for the continued commitment
of an individual found not guilty of criminal charges by reason
of insanity. Because we conclude that there is sufficient
evidence in the record to support the circuit court’s
judgment that the acquittee does not satisfy the requirements for
conditional release, we will affirm that judgment.

FACTS

Brigitte Daniele Mercer was found not guilty by
reason of insanity (NGRI) on charges of carjacking, grand
larceny, maiming, and robbery. Pursuant to Code
? 19.2-182.2,
[1]the circuit court remanded Mercer to the custody of the
Commissioner of the Department of Mental Health, Mental
Retardation and Substance Abuse Services (the Commissioner). In
January 1997, the court conditionally released her from custody
pursuant to Code ? 19.2-182.7.
[2]
However, the circuit court required Mercer to undergo a 30-day
inpatient evaluation in June 1997 after Mercer claimed that she
had been raped and had sustained a stab wound to her thigh. The
court eventually recommitted Mercer to the custody of the
Commissioner.

Mercer next appeared before the circuit court
on August 25, 1998, pursuant to Code ? 19.2-182.5,
[3] for the purpose of determining whether she continued to
need inpatient hospitalization. At that hearing, the court heard
testimony from two expert witnesses, Evan S. Nelson, Ph.D., a
licensed clinical psychologist, and Christine A. Bryant, Psy.D.,
also a licensed clinical psychologist. Both experts examined
Mercer prior to the hearing and submitted written reports to the
court pursuant to Code ? 19.2-182.5(B). Based on their
evaluations, Dr. Bryant and Dr. Nelson opined that Mercer suffers
from antisocial personality disorder (APD) and polysubstance
dependence (PSD). However, they expressed differing opinions with
regard to whether either APD or PSD falls within the definition
of a mental illness in Code ? 37.1-1.

Relying primarily on the Diagnostic and
Statistical Manual for Mental Disorders (4th ed. 1994) (DSM-IV),
Dr. Bryant testified that both APD and PSD are mental illnesses.
She described APD as being "the disregard for authority or
for social rules and mores," and defined PSD as the
addiction to multiple drugs. According to Dr. Bryant, Mercer has
been "drug free" only during her periods of
hospitalization. With regard to Mercer’s risk of harm to
other persons, Dr. Bryant stated that Mercer’s history of
aggressive behavior, demonstrated by her "extensive legal
history," was one of several risk factors requiring
continued inpatient hospitalization. Dr. Bryant believed that
Mercer "continues to be a risk for future aggressive
behavior," and that she cannot be adequately controlled as
an outpatient.

Dr. Nelson did not categorize Mercer’s APD
as a mental disease or illness. Instead, he drew a distinction
between the multiaxial diagnostic system in the DSM-IV, upon
which Dr. Bryant relied, and the conditions that courts may
consider to be mental illnesses under the Code. However, Dr.
Nelson seemingly contradicted himself because he also testified
that, under the Code, both APD and PSD are considered mental
diseases. He admitted that if the court believed Mercer is
mentally ill, continued commitment is warranted. Like Dr. Bryant,
Dr. Nelson also believed that Mercer poses a "very, very
high risk" for future dangerousness.

Based on this evidence, the circuit court found
that Mercer suffers from a mental illness because of her history
of drug abuse and addiction.
[4]
The court concluded "that Mercer does not meet the
conditions for conditional release . . . because: 1)
Mercer is mentally ill and in need of inpatient hospitalization;
2) it is highly probable that Mercer will violate the terms of
the conditional release; 3) her conditional release will present
an undue risk to public safety." We awarded Mercer this
appeal.

ANALYSIS

Mercer acknowledges on brief that the sole
issue before the Court is whether APD and PSD are mental
illnesses. She relies on Foucha v. Louisiana, 504 U.S. 71
(1992), in arguing that APD can never be classified as a mental
illness. Mercer further contends that PSD is not a mental illness
because, according to her, the definition of the term "[m]entally
ill
" in Code ? 37.1-1 expressly excludes drug
addiction and alcoholism from its purview for the purpose of
determining if an NGRI acquittee should remain in the custody of
the Commissioner. Therefore, she asserts that Dr. Bryant’s
testimony that PSD is a mental illness was insufficient, as a
matter of law, to support the circuit court’s finding that
Mercer suffers from a mental illness.

The Commonwealth argues that Mercer
misconstrues the decision in Foucha as well as Code
? 37.1-1, and that, at any rate, this Court’s focus
should be on PSD, not APD, since the circuit court did not base
its decision on Mercer’s APD. The Commonwealth finally
asserts that the question whether an individual suffers from a
mental illness is a factual determination to be made by the court
after hearing the testimony of mental health experts. We agree
with the Commonwealth.

As a preliminary matter, we note that the
Supreme Court of the United States in Foucha did not, as
Mercer argues, state that APD can never, as a matter of law, be
classified as a mental illness. Rather, the Court held that a
finding of both mental illness and future dangerousness must be
present in order to continue the confinement of an NGRI
acquittee. Foucha, 504 U.S. at 80. In that case, there was
no medical evidence that Foucha was mentally ill at the time of
his hearing, although the testimony regarding his future
dangerousness was uncontested. Id. at 74-75. The
government in Foucha did not argue that Foucha’s APD
was a mental illness; rather, it relied on the trial court’s
finding that the APD made Foucha a danger "to himself or
others." Id. at 78. Thus, the Supreme Court did not
decide in Foucha whether APD is a mental illness, but
simply affirmed the principle that a state cannot confine an
individual with a mental illness absent a showing by clear and
convincing evidence "that the individual is mentally ill and
dangerous." Id. at 80 (quoting Jones v. United
States
, 463 U.S. 354, 362 (1983)).

However, as the Commonwealth points out, the
circuit court in the present case did not rest its decision on
Mercer’s APD, but instead focused on her PSD. Accordingly,
we will now address that diagnosis and the circuit court’s
analysis of it.

As already noted, Mercer argues that Code
? 37.1-1 expressly excludes drug addicts,
[5] and thus individuals with PSD, from the definition of
"[m]entally ill" when deciding whether to
continue the confinement of an NGRI acquittee. That Code section
provides, in pertinent part, "that for the purposes of
Chapter 2 (? 37.1-63 et seq.) of this title,
the term ‘mentally ill’ shall be deemed to include any
person who is a drug addict or alcoholic." According to
Mercer, this language means that neither drug addiction nor
alcoholism can serve as the basis for a finding of mental illness
except for the purposes of Chapter 2.
[6] We disagree.

The language of Code ? 37.1-1 does not
squarely address the question whether PSD qualifies as a mental
illness for purposes other than Chapter 2, such as satisfying the
standard for Mercer’s continued commitment as an NGRI
acquittee. In other words, it neither compels nor forbids a
finding of mental illness based on PSD in situations that are not
covered by Chapter 2. However, we believe that it would strain
credulity to say, as Mercer suggests, that PSD qualifies as a
mental illness when deciding whether to voluntarily or
involuntarily admit an individual who has not committed an
unlawful act to a hospital for treatment, but is never a mental
illness when determining whether to continue the inpatient
hospitalization of an NGRI acquittee.

Instead of focusing solely on the definition of
"[m]entally ill" in Code ? 37.1-1, we
believe that the analysis should include the provisions of Code
?? 19.2-182.3 and -182.5, which set forth the criteria
that must be satisfied in order to continue Mercer’s
commitment to the custody of the Commissioner. Specifically, Code
? 19.2-182.5 provides that the court can retain an NGRI
acquittee in the custody of the Commissioner if the acquittee
"continues to require inpatient hospitalization based on
consideration of the factors set forth in
? 19.2-182.3." Under Code ? 19.2-182.3,
"mental illness includes any mental illness, as this term is
defined in ? 37.1-1, in a state of remission
when the illness may, with reasonable probability, become
active." (Emphasis added.) In contrast, the definition of
"[m]entally ill" in Code ? 37.1-1 does not
include the phrase "in a state of remission." Thus the
term "mental illness" in Code ? 19.2-182.3 is not
limited solely to the definition of "[m]entally ill"
in Code ? 37.1-1.

Code ? 19.2-182.3 also establishes four
factors that the circuit court had to consider in determining
whether to continue Mercer’s commitment:

1. To what extent the acquittee is mentally ill
or mentally retarded, as those terms are defined in
? 37.1-1;

2. The likelihood that the acquittee will
engage in conduct presenting a substantial risk of bodily harm to
other persons or to himself in the foreseeable future;

3. The likelihood that the acquittee can be
adequately controlled with supervision and treatment on an
outpatient basis; and

4. Such other factors as the court deems
relevant.

In Kansas v. Hendricks, 521 U.S. 346
(1997), the Supreme Court of the United States acknowledged that
it had never "required State legislatures to adopt any
particular nomenclature in drafting civil commitment
statutes." Id. at 359. Instead, the Court "left
to legislators the task of defining terms of a medical nature
that have legal significance." Id. Consequently, the
Court recognized that states have "developed numerous
specialized terms to define mental health concepts" and that
those "definitions do not fit precisely with the definitions
employed by the medical community." Id.

Accordingly, we conclude that the determination
with regard to whether Mercer suffers from a mental illness, and
therefore should continue to be committed to the custody of the
Commissioner, is a question of fact to be resolved by the trial
court based upon consideration of the relevant Code provisions,
and the report and testimony of mental health experts. The
circuit court in this case heard testimony from Dr. Bryant and
Dr. Nelson, and also had the benefit of their written reports.
While the experts agreed that Mercer still presents a high risk
of engaging in aggressive behavior and harming others, they
disagreed about whether Mercer is mentally ill. Thus, the circuit
court had to resolve that conflict in the testimony.

There are several established principles that
guide our review of the circuit court’s resolution of the
conflict in the testimony of the two witnesses. "Conflicting
expert opinions constitute a question of fact
. . . ." McCaskey v. Patrick Henry
Hospital
, 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983). It is
within the province of the finder of fact "to assess the
credibility of the witnesses and the probative value to be given
their testimony." Richardson v. Richardson, 242 Va.
242, 246, 409 S.E.2d 148, 151 (1991). The factual determinations
of the trial court, like those of a jury, are binding on this
Court, and we will reverse such findings "only if they are
plainly wrong or without evidence to support them." Id.

Considering the evidence in this case in light
of these established principles, we conclude that the circuit
court correctly determined that Mercer continues to need
inpatient hospitalization in accordance with the terms of Code
?? 19.2-182.3 and –182.5. There is evidence in the
record to support the court’s conclusion that Mercer suffers
from a mental illness and presents a substantial risk of bodily
harm to other persons because of her long history of drug abuse,
drug addiction, and violence. Although not dispositive of the
issue before us, it is significant that the circuit court also
found that Mercer meets the definition of the term "[d]rug
addict
" in Code ? 37.1-1. Finally, Dr. Bryant and
Dr. Nelson disagreed only with regard to whether PSD is a mental
illness. In resolving that conflict, the circuit court is not
necessarily bound by the definitions employed by the medical
profession. See Hendricks, 521 U.S. at 359.

For these reasons, we will affirm the judgment
of the circuit court.

Affirmed.

 

 

FOOTNOTES:

[1] Code ? 19.2-182.2 requires,
in pertinent part, that a person acquitted by reason of insanity
shall be placed in the temporary custody of the Commissioner of
Mental Health, Mental Retardation and Substance Abuse Services
"for evaluation as to whether the acquittee may be released
with or without conditions or requires commitment."

[2] Code ? 19.2-182.7 provides
that upon consideration of an NGRI acquittee’s need for
inpatient hospitalization, the acquittee must be conditionally
released if the court finds that

(i) based on consideration of the factors which
the court must consider in its commitment decision, he does not
need inpatient hospitalization but needs outpatient treatment or
monitoring to prevent his condition from deteriorating to a
degree that he would need inpatient hospitalization; (ii)
appropriate outpatient supervision and treatment are reasonably
available; (iii) there is significant reason to believe that the
acquittee, if conditionally released, would comply with the
conditions specified; and (iv) conditional release will not
present an undue risk to public safety.

[3] Code ? 19.2-182.5(A)
requires that a "committing court shall conduct a hearing
twelve months after the date of commitment to assess each
confined acquittee’s need for inpatient
hospitalization."

[4] The circuit court did not rest
its decision on Mercer’s APD. The court stated that
"the case does not rise and fall on whether the Court finds
that Mercer’s [APD] is a mental illness." Instead, the
court focused on "the last portion of [Code] ? 37.1-1
which indicates that the term ‘mentally ill’ shall be
deemed to include any person who is a drug addict or
alcoholic."

[5] The term "[d]rug addict"
is defined in Code ? 37.1-1 as "a person who: (i)
through use of habit-forming drugs or other drugs enumerated in
the Virginia Drug Control Act (? 54.1-3400 et seq.)
as controlled drugs, has become dangerous to the public or
himself; or (ii) because of such drug use, is medically
determined to be in need of medical or psychiatric care,
treatment, rehabilitation or counseling."

[6] Chapter 2 of Title 37.1 deals primarily with the
voluntary and involuntary admission of a person with a mental
illness to a hospital for treatment of such illness.

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