In re MH 2009-001807
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) IN RE MH 2009-001807 ) ) ) ) __________________________________) DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT No. 1 CA-MH 09-0071 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001807 The Honorable Patricia Arnold, Commissioner AFFIRMED James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix Richard M. Romley, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce P. White, Deputy County Attorney Attorneys for Appellee Phoenix D O W N I E, Judge ¶1 for Appellant seeks reversal of the superior court s order involuntary mental health treatment. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Appellant presented at a hospital emergency room with abdominal pain, which was diagnosed as acute alcohol While intoxication, liver cirrhosis, and encephalopathy. hospitalized, Urgent Psychiatric Care staff noticed appellant trying to pick things up from the floor and from out of the sky. Dr. Michael Vines filed a Petition for Court-Ordered Evaluation, stating appellant had been drinking 1 gallon of vodka per day barricading himself in his home stating he would shoot himself. 1 Dr. Vines Appellant refused voluntary treatment, which believed was necessary because appellant displayed poor insight, had made suicidal statements, and was unable to care for himself. In an Application for Involuntary Evaluation, appellant s mother reported that appellant said he was very tired and was going to shower and then kill himself . . . shoot self. She said appellant was paranoid hallucinating, believing others are out to get him, and that he had purchased a gun, which he shot once at others. 1 The first page of the petition has the patient s name handwritten into the space provided for the name of the person filing the petition. We accept appellant s assumption, stated in his opening brief, that this is a typographical error. 2 ¶3 Dr. Appellant Jacqueline was Pynn detained filed and a an evaluation Petition for completed. Court-Ordered Treatment, stating appellant was a danger to self and in need of combined inpatient and outpatient treatment unwilling to accept voluntary treatment. Pynn reported allegations, while that but waiting appellant admitted to crying every day. be denied being placed on a a because he was In her affidavit, Dr. most heavy liver of his mother s drinker, drinking transplant list, and Appellant stated that the front door to his house was shut down because police officers had kicked it in when they accompanied his wife belongings when she moved out. to retrieve her personal Appellant stated he uses the window to get in and out of his house. Dr. Pynn concluded appellant had a high risk of engaging in danger to self and impulsive behavior when intoxicated. ¶4 Dr. Richard Burton also filed an affidavit stating appellant was a danger to himself and persistently or acutely disabled. Dr. Burton reported that appellant displayed bizarre behaviors that intoxicated are such as not typical finger of someone painting his who is merely bathroom black, including the toilet, painting the floor with 16 coats of paint, being found early in the morning painting the house naked, and gouging flesh out of his arm with a Makita drill to see if the drill would cut skin. Dr. Burton expressed great concern for 3 appellant s well-being because of his mental state and the fragile state of his brain . . . as well as his poor judgment. He concluded that appellant was at risk for further emotional and physical harm to himself and possibly to others. ¶5 An Appellant s involuntary counsel commitment stipulated to hearing admitting was the physicians affidavits in lieu of their testimony. held. evaluating Petitioner presented two witnesses who testified and were cross-examined. After petitioner rested, the court denied appellant s motion for a directed verdict based on insufficient evidence. Appellant then presented one witness, but did not himself testify. ¶6 The court found by clear and convincing evidence that appellant was, as a result of a mental disorder, a danger to self and ordered a combination of inpatient and outpatient treatment not to exceed 365 days, with the period of inpatient treatment not to exceed ninety days. We have jurisdiction pursuant to Appellant timely appealed. Arizona Revised Statute ( A.R.S. ) sections 12-2101(K) (2003) and 36-546.01 (2009). DISCUSSION ¶7 failing Appellant to engage contends in a the trial colloquy to court erred determine by: whether (1) he voluntarily, knowingly and intelligently understood and agreed to waive his right to have the evaluating physicians testify at the hearing, and (2) finding he was a danger to self. 4 1. Admission of Physician Affidavits Appellant asserts A.R.S. § 36-539 2 (2009) gave him a ¶8 statutory right to have both doctors testify at the involuntary commitment hearing and that the court violated his due process rights by admitting the physician affidavits without first determining that he knowingly, intelligently agreed to the stipulation. voluntarily, and We generally review constitutional and statutory claims de novo, but appellant did not make this argument below. See In re MH 2007-001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App. 2008) (citations omitted). [W]e generally do not consider issues, even constitutional issues, raised for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (citation omitted). alleged error appellant. leads the in admitting the affidavits Additionally, the was invited by By the rule of invited error, one who deliberately court to take certain action may not upon appeal assign that action as error. Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953). See also State v. Armstrong, 208 Ariz. 345, 357 n.7, ¶ 59, 93 P.3d 1061, 1073 n.7 (2004) (stating 2 The statute describes the involuntary commitment hearing. It provides that a patient may subpoena and cross-examine witnesses and present evidence, but requires that evidence presented by the petitioner or the patient shall include the . . . testimony of the two physicians who performed examinations in the evaluation of the patient. A.R.S. § 36-539(B). 5 that the invited error doctrine exists to prevent a party from injecting error into the record and then profiting from it on appeal. ) (citation omitted). ¶9 Even if we were would find no error. to consider appellant s claim, we A hearing was held at which appellant presented evidence and cross-examined witnesses. The only right appellant waived was to confront and cross-examine two specific witnesses. Appellant s counsel had presumably affidavits, interviewed the physicians and explained appellant s rights to him. (outlining the minimal duties of reviewed the appellant, and See A.R.S. § 36-537 (2009) counsel for all hearings). Counsel was thus able to assess the effect of the evaluating physicians testimony and determine whether they should appear in person. See State v. Workman, 123 Ariz. 501, 503, 600 P.2d 1133, 1135 (1979) (distinguishing between counsel failing to act because of ignorance of the facts or the law, and failing to act despite his knowledge of the facts or law. situation, decision, counsel even is where presumed the to tactical have In the latter made advantage is an not informed readily apparent to the appellate court. ) (internal citations omitted). ¶10 This case is significantly different from other mental health cases where we have required trial courts to expressly determine whether a patient knowingly, voluntarily waived certain rights. 6 intelligently, and See, e.g., MH 2007-001275, 219 Ariz. at 220-21, ¶¶ 17-19, 196 P.3d at 823-24 (waiver of the A.R.S. § 36-539 hearing); In re MH 2006-000749, 214 Ariz. 318, 324, ¶ 27, 152 P.3d 1201, 1207 (App. 2007) patient s right to be present at a hearing). (waiver of the Here, we have a deliberate decision to forego presenting and cross-examining two physicians who presented all statutorily required information via sworn affidavit. ¶11 Whether to present and cross-examine a witness is an issue of trial strategy that is controlled, and may be waived, by counsel; it does not require intelligent waiver by the patient. a knowing, voluntary, and See State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) ( [T]he decision as to what witnesses to call is a tactical, strategic decision. Tactical decisions require the skill, training, and experience of the advocate. A criminal defendant, generally inexperienced in the workings of the adversarial process, may be unaware of the redeeming or devastating effect a proffered witness can have on his or her case. ) (internal citations omitted); State v. Rodriguez, 126 Ariz. 28, 33, 612 P.2d 484, 489 (1980) ( [T]he power to control trial strategy belongs to counsel. ) (citations omitted); Workman, 123 (finding attorney s tactical decision Ariz. decision the court at 502-03, whether was 600 to reluctant P.2d call to a at 1134-35 witness a second-guess); Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965) (holding that 7 a waiver of the right to cross examination and confrontation may be accomplished by the accused s counsel as a matter of trial tactics or strategy. ) (citations omitted). 2. Need for Inpatient Treatment ¶12 Appellant claims the court violated his due process rights by ordering inpatient treatment on less tha[n] clear and convincing evidence that he had a mental disorder which rendered him a danger to self. clear and See A.R.S. § 36-540(A) (2009) (requiring convincing evidence to support an involuntary commitment order); In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 423 (App. 2008) ( The degree of proof for court-ordered treatment (citations omitted). treatment if it is is clear and convincing evidence. ) We will affirm an order for involuntary supported by substantial evidence, In re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995) (citation omitted), including expert medical opinions expressed to a reasonable degree of certainty or probability to prove the elements of involuntary treatment. MH 2007-001236, 220 Ariz. at 169, ¶ 29, 204 P.3d at 427. a. ¶13 Danger to Self According to appellant, there was not clear and convincing evidence that he was a danger to self because the evaluating physicians relied only on family members accounts, rather than personal observations. 8 Appellant asserts that A.R.S. § 36-501(6) (2009) requires that there be a reasonable expectation of imminent danger, that the threat to oneself be serious and real, and implies that Dr. Pynn s conclusion, based on warning signs of self-harm, is speculative insufficient basis for involuntary commitment. and an We disagree with this characterization of the evidence and find the petitions, physician affidavits, and support the court s order. witness testimony sufficient to Section 36-501(6) defines danger to self as: (a) (b) ¶14 regarding Behavior that, as a result of a mental disorder, constitutes a danger of inflicting serious physical harm upon oneself, including attempted suicide or the serious threat thereof, if the threat is such that, when considered in the light of its context and in light of the individual s previous acts, it is substantially supportive of an expectation that the threat will be carried out. Behavior that, as a result of a mental disorder, will, without hospitalization, result in serious physical harm or serious illness to the person, except that this definition shall not include behavior that establishes only the condition of gravely disabled. The trial the risk court of had self multiple harm. See sources A.R.S. of § evidence 36-501(12) (defining an evaluation as a professional multidisciplinary analysis based biography and on data medical, describing psychological 9 the and person s social identity, conditions ). Petitions alleged appellant had purchased a gun and threatened to shoot himself. family members. He made multiple suicidal statements to Appellant told Dr. Pynn he had just recently cashed in his 401K, and would rather spend all my money before I die. based Dr. Pynn believed appellant was a danger to himself on his statements; disorder ; and high symptoms risk factors, of major including depressive loss of a significant relationship, excessive alcohol use, and impulsive behavior when intoxicated. ¶15 Dr. Burton believed appellant was a danger to self because of his erratic and impulsive behavior, poor judgment, symptoms of depression, and multiple suicidal statements. Appellant s mother testified appellant had purchased a shotgun approximately six weeks earlier and that he sawed it off . . . [b]ecause it was cool. Appellant s mother also testified that, when he was pretty drunk, he d say that he didn t want to live any more or that . . . maybe he would just go off and kill himself. She admitted that, as soon as the alcohol would wane off, appellant would say, I really don t want to die, but she feared he would do it without realizing he was doing it. Although conflicting evidence was presented, the trial court is in the parties, best position judge the to weigh the credibility of 10 evidence, witnesses, observe the and make appropriate findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). b. ¶16 Mental Disorder to Appellant also asserts there was insufficient evidence support the conclusion that he suffered from a mental disorder, rather than a condition primarily related to alcohol abuse. Once again, we disagree. ¶17 A mental disorder is a substantial disorder of the person s emotional processes, thought, cognition or memory that is distinguished from [c]onditions that are primarily those of drug abuse, alcoholism or mental retardation, unless, in addition to one or more of these conditions, the person has a mental disorder. A.R.S. § 36-501(26) (emphasis added). Both physicians were aware of appellant s alcohol consumption, yet both concluded he suffered from a mental disorder. Dr. Burton noted that appellant s behaviors are not typical of someone who is merely ongoing engaging intoxicated. depressive in self Dr. symptoms harming Pynn put him behavior stated at and that appellant s increased risk concluded of inpatient treatment was necessary to address his depression. ¶18 A psychiatric mental health nurse practitioner who testified for appellant disagreed with the physicians opinions. 3 3 The nurse testified that a mental health nurse practitioner is an advanced practice nurse with a minimum of 11 She believed appellant suffered only from a substance abuse disorder and that his symptoms were not unusual at all when somebody is coming off of either alcohol or drugs. The nurse testified she discussed her opinions with Dr. Pynn and that she and Dr. Pynn had come to different conclusions in other cases. In some of those cases, Dr. Pynn had dismissed the petition after discussing the case with the nurse; in this case, she did not. ¶19 Although conflicting evidence was presented, as we stated supra, the trial court was in the best position to weigh the evidence. 205. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at Substantial evidence supports the trial court s a master s degree in nursing and who completes the nurse practitioner course, and who cannot, under Arizona law, complete the physician affidavits that accompany a petition for court-ordered treatment. See A.R.S. §§ 36-501(12)(a) (requiring the evaluation to be completed by [t]wo licensed physicians, who shall be qualified psychiatrists, if possible, or at least experienced in psychiatric matters ), -533 (2009) (requiring the petition for court-ordered treatment to be accompanied by the affidavits of the two physicians who conducted the examinations during the evaluation period ). 12 determination that appellant suffered from a mental disorder. CONCLUSION ¶20 For the foregoing reasons, we affirm the involuntary commitment order. /S/ MARGARET H. DOWNIE, Judge CONCURRING: /S/ MAURICE PORTLEY, Presiding Judge /S/ LAWRENCE F. WINTHROP, Judge 13
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