In re MH 2009-001204
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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 2009-001204 ) ) ) ) _______________________________________ ) DIVISION ONE FILED: 06-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0047 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001204 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED Richard M. Romley, Acting Maricopa County Attorney By Anne C. Longo, Deputy County Attorney and Bruce P. White, Deputy County Attorney Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 court After conducting an evidentiary hearing, the superior found by clear and convincing evidence appellant was suffering from a mental disorder and, as a result, was a danger to others, psychiatric persistently treatment, voluntary treatment. or and acutely disabled, unwilling or in unable need to of accept Accordingly, on May 20, 2009, the court entered an order requiring appellant to undergo a combination of inpatient and outpatient treatment not to exceed a total of 365 days ( treatment order ). ¶2 On appeal, appellant asks us to vacate the treatment order because the evaluating physicians did not testify in person and the parties failed to enter into a valid stipulation to use the evaluating physicians affidavits in lieu of their testimony and, even if there was a valid stipulation, the court failed to conduct a colloquy with appellant personally to decide whether he had knowingly, voluntarily, and intelligently waived his right to have the evaluating physicians testify in person. Appellant asserts the court s failure to engage in this colloquy violated statutory requirements and deprived him of due process. ¶3 As an initial matter, this appeal is moot because appellant is appealing from a treatment order that has expired. Even if not moot, we decline to vacate the treatment order. ¶4 not First, we reject appellant s argument the record does reflect the parties stipulated physicians affidavits at trial. to admit the evaluating When there is a discrepancy or conflict between the minutes and a reporter s transcript, the 2 circumstances govern. 623, of the particular case determine which shall State v. Rockerfeller, 9 Ariz. App. 265, 267, 451 P.2d 625 (1969). In that situation, we have a duty to interpret all parts of the record together, giving effect, if possible, to all and a deficiency in one place may be supplied by what appears in another. ¶5 Id. Here, although the hearing transcript fails to reflect the stipulation, the hearing minute entry does. Consistent with the minute entry, in responding to appellant s motion to dismiss the petition at the close of the petitioner s case-in-chief, petitioner s move counsel forward witnesses doctors. and argued based what on is Further, there the the sufficient testimony contained at was in the of conclusion the evidence acquaintance affidavits of the to from hearing, the in announcing its decision, the court stated it had reviewed and considered the affidavits of the evaluating physicians as well as the medication affidavit submitted by one of the physicians. Based clear on and the evidence convincing presented, evidence, the court appellant then was in found, by need of psychiatric treatment as a result of a mental disorder. At no time did appellant s counsel raise any objection to the court s reliance on the evaluating physicians affidavits or assert the parties had not reached an agreement regarding their use at the 3 hearing. See Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d 314, 317 (2000) (objection to proffered testimony must be made either prior to or at the time it is given, Accordingly, admission and the of the failure record to reflects evaluating do so constitutes appellant physicians stipulated affidavits waiver). to the and the superior court was entitled to rely on those affidavits in lieu of their testimony at the hearing. ¶6 Next, for the reasons stated in In re MH 2009-001264, ___ Ariz. ___, ___, ¶¶ 7-11, 229 P.3d 1012, 1014-15 (App. 2010), we reject appellant s argument the court was required to engage in a colloquy with him personally to decide whether he had knowingly, voluntarily, and intelligently waived his right to have the evaluating physicians testify in person. ¶7 Finally, appellant suggests petitioner failed to satisfactorily establish the evaluating physicians credentials. We disagree. Not only did appellant fail to object on this basis in the superior court and thus waived this argument, see Reinen, 198 Ariz. at 286, ¶ 9, 9 P.3d at 317, but the record includes sufficient proof of the physicians credentials. Each physician s affidavit was signed, dated, subscribed and sworn before a notary public and stated the affiant is a physician and is experienced in psychiatric matters. 4 The affidavits also identified the evaluating physicians as M.D. and D.O. In In re MH 2009-001264, appellant raised virtually the same argument regarding the physicians qualifications. We rejected that argument there and we reject it here. CONCLUSION ¶8 For the foregoing reasons, we affirm the treatment order. /s/ ___________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ PHILIP HALL, Judge 5
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