In re MH 2009-001258

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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 2009-001258 1 CA-MH 09-0052 DIVISION ONE FILED: 03-16-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001258 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix Andrew P. Thomas, Maricopa County Attorney Civil Division by Anne C. Longo, Deputy County Attorney Davina Bressler, Deputy County Attorney Attorneys for Appellee Phoenix W E I S B E R G, Judge ¶1 T.H. superior court s outpatient ("Appellant") order treatment asks this he undergo that on two grounds, court to neither the inpatient both vacate and of which were raised in the superior court proceedings. He argues that the court intelligently, failed to ensure voluntarily waived his hearing evidence on shows he knowingly, and the right to have two physicians testify at court-ordered that the treatment two qualified as psychiatrists. ("COT") physicians and were that no sufficiently For reasons that follow, we affirm. BACKGROUND ¶2 On application May for 12, 2009, Appellant s mother completed involuntary evaluation pursuant to an Arizona Revised Statutes ("A.R.S.") section 36-520 (2009), stating that Appellant illness, refused engaged a in voluntary verbal evaluation, and physical denied violence any mental toward his parents, had been diagnosed with depression, and had attempted suicide eleven times. evaluation filed persistently and on In addition, a petition for court-ordered May acutely 14 stated disabled that ("PAD") and Appellant was reiterated his aggression toward his parents. ¶3 On May 27, Dr. Jacqueline Pynn filed a petition for COT noting that Appellant was PAD. Her affidavit stated that Appellant, aged 44, personality disorders. suffered from mood and borderline He had decided to jump out of a moving 2 car being driven by his stepfather and broke the window. He had begun psychiatric treatment at age 17, had admitted to 12 or 13 suicide attempts, and he probably had a borderline personality disorder. take He was taking two antidepressants but declined to other recommended individual counseling. labile and anxious. medications or to participate in He was cooperative but very emotional, The addendum stated that his mental disorder impaired his judgment and capacity to make a decision regarding treatment. ¶4 Dr. Esad Boskailo also filed an affidavit indicating that Appellant was probably bipolar and PAD. verbose, and expansive. obsessed his mood was irritable, He found Appellant angry, elevated, and Appellant described himself as a mystic and was with philosophy, denied any minimized his aggression toward his mother. hallucinations, and He said the outside world is a prison for him, and when you are in the prison you have to think about suicide. ¶5 After finding Appellant clearly and convincingly PAD, the court issued an order for treatment for a maximum of 365 days, with a maximum of 180 days of in-patient treatment. detention order was served on Appellant on May 28. took place on June 2, 2009. to admission of the A The hearing Counsel for both sides stipulated physician affidavit. 3 affidavits and medication ¶6 Appellant s stepfather testified that at the end of April, Appellant began getting very upset, very animated, and verbally aggressive. He stated that Appellant had tried to get out of his car while it was traveling on a highway in excess of 40 m.p.h. Later the same day, Appellant succeeded in jumping out of the car. ¶7 Appellant s mother testified that at about the end of April Appellant had become very angry, aggressive, was yelling and slamming doors, and had jumped out of the car. that she was Appellant afraid tried to of get him. into She her had house called after the She said police when locks were changed and his keys would not work; she also called police when he drove a trailer up to the house and started throwing all of his belongings onto the lawn. ¶8 Appellant testified that he had changed his name to T-om on all of his records. He explained that he was upset that his parents had packed his belongings into the trailer and was uncertain that everything that was his had been removed from the house. He said he thought it safe to jump out of a moving car because more and more extreme sports are burgeoning every day. He added that he jumped stepfather was enraged at him. 4 out because he thought his ¶9 The court found from the testimony, the medication affidavit, and the physicians affidavits that Appellant was in need of COT. Appellant timely filed a notice of appeal. DISCUSSION ¶10 Appellant first argues that his hearing took place before the legislature amended A.R.S. § 36-537(D (2009) 1 to allow a patient s attorney to enter stipulations on his behalf. Therefore, he contends that the superior court erred by failing to conduct a colloquy to determine that he had voluntarily, knowingly, and intelligently waived his statutory right to present evidence and to subpoena, confront, and cross-examine witnesses at the hearing on the petition for COT. He cites In re Maricopa Count Superior Court No. MH 2007-001275, 219 Ariz. 216, 217, ¶ 1, 196 P.3d 819, 820 (App. 2008), in which we imposed an obligation on the superior court when the patient s counsel had waived the patient s right to a submitted the matter solely on the written record. hearing and Id. at 217- 18, ¶ 4, 196 P.3d at 820-21. ¶11 That is not what occurred here. Both counsel for Appellant and Appellee stipulated to the court s consideration of the physicians affidavits in 1 lieu of requiring them to After an amendment effective September 30, 2009, A.R.S. § 36-537(D) (Supp. 2009) states: At a hearing held pursuant to this article, the patient's attorney may enter stipulations on behalf of the patient. 2009 Ariz. Sess. Laws, Ch. 153, § 7 (1st Reg.Sess.). 5 personally appear and to testify at the hearing. Appellant cites no authority that bars Appellant's counsel from waiving the right to call the physicians as witnesses at the evidentiary hearing. Instead, we have allowed parties to stipulate to the admission of testimony. an affidavit in place of the physician's MH 2002-000767, 205 Ariz. 296, 301, ¶ 23, 69 P.3d 1017, 1022 (App. 2003); In re Maricopa County Superior Court No. MH 2001-001139, 203 Ariz. 351, 352, ¶ 6, 54 P.3d 380, 381 (App. 2002). ¶12 We have held that a colloquy is necessary to establish an intelligent, knowing, and voluntary waiver of the right to be present at the hearing on the petition for COT in In re MH 2006000749, 214 Ariz. 318, 324, ¶ 27, 152 P.3d 1201, 1207 (App. 2007). We also required a colloquy to establish waiver of the right to counsel at an involuntary commitment hearing. In re Jesse M., 217 Ariz. 74, 80, ¶¶ 29-30, 170 P.3d 683, 689 (App. 2007). By contrast, however, the right to call and to cross- examine particular witnesses is a tactical or strategic decision that we allow a criminal defendant s counsel to make. A criminal defendant is bound by his counsel s strategic decision to waive even constitutional rights. State v. West, 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993) (counsel may stipulate to facts without a defendant's consent), overruled on other grounds by State v. Rodriguez, 192 Ariz. 6 58, 961 P.2d 1006 (1998). Similarly, in State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984), our supreme court held that the power to decide questions of trial strategy and tactics, witnesses to call at trial, rests with including which counsel (citing Henry v. Mississippi, 379 U.S. 443, 451 (1965)). ¶13 why Although this is not a criminal case, we see no reason the same principles would not apply in this context. Accordingly, the superior court did not err in accepting the stipulation by Appellant s counsel to admit the physicians affidavits in lieu of their testimony at the hearing on COT. ¶14 Also for the first time, qualifications of the physicians. Appellant challenges the He argues that no evidence in the record establishes that they were psychiatrists as defined by A.R.S. § 36-501(38)(2009) or that they were even licensed physicians as required by A.R.S. § 36-501(12)(a) or (23). He concedes that each affidavit stated that the physician was a physician and experienced in psychiatric matters, and that each was a medical doctor, but nevertheless suggests that had they appeared for the hearing, Appellant could have cross-examined them about their qualifications. Appellant has not shown any reason whatsoever that his trial counsel could not have objected to the physicians qualifications if he had any doubts about those qualifications. We deem this contention forfeited by the 7 failure of trial counsel to timely raise it in the superior court. CONCLUSION ¶15 For the reasons stated, we find no error in the superior court s acceptance of the stipulation by Appellant s counsel address to admit the the physicians untimely affidavits. challenge to We the decline to physicians qualifications. /S/__________________________ SHELDON H. WEISBERG, Presiding Judge CONCURRING: _/S/___________________________ PHILIP HALL, Judge _/S/____________________________ JOHN C. GEMMILL, Judge 8

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