People v. Grant

Second Division
March 24, 1998


No. 1-96-4353

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

JOHNNIE GRANT,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.

Honorable
Frank DeBoni,
Judge Presiding.


JUSTICE TULLY delivered the opinion of the court:
The facility director of the Illinois Department of Mental Health and
Development Disabilities (hereinafter "DMHDD"), Nancy Staples, recommended in
writing to the trial court that defendant, Johnnie Grant, be conditionally released
pursuant to section 5-2-4(d)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1985,
ch. 38, par. 1005-2-4(d)(2) (now 730 ILCS 5/5-2-4(d)(2) (West 1996))). The trial court
denied the recommendation for defendant's conditional release. It is from this order
that defendant now appeals pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).
For the reasons which follow, we reverse and remand with directions.
The pertinent facts are as follows. Defendant was charged with murder. On
July 13, 1987, defendant killed a random person who was walking out of a grocery
store because, according to defendant, the victim was an F.B.I. agent who was after
him. It was discovered that defendant suffered from mental illnesses and was taking
antipsychotic medication. At that time of the murder, however, defendant had
stopped taking his medication, and as a consequence, suffered delusions that the
victim was out to get him and defendant had to kill him.
On September 12, 1989, after a bench trial, defendant was found not guilty of
murder by reason of insanity. The trial court determined that defendant was in need
of inpatient psychiatric care. Thus, defendant was committed to the custody of the
DMHDD as required by section 5-2-4(a) of the Unified Code of Corrections (Ill. Rev.
Stat. 1985, ch. 38, par. 1005-2-4(a) (now 730 ILCS 5/5-2-4(a) (West 1996))) and
placed at the Elgin Mental Health Center (hereinafter "Elgin"). Defendant is a NGRI
(not guilty by reason of insanity) patient. NGRI patients are also known as forensic
patients.
Defendant was diagnosed as having paranoid schizophrenia, an incurable
disease which may be controlled by medication. In November of 1993, the facility
director of the DMHDD recommended that defendant be conditionally released. The
trial court denied the recommendation after a hearing. On December 6, 1995, a new
facility director, Nancy Staples, of the DMHDD recommended that defendant be
conditionally released. However, no hearing was scheduled within the required 30
days. See Ill. Rev. Stat. 1985, ch. 38, par 1005-2-4(d) (now 730 ILCS 5/5-2-4(d) (West
1996)). Therefore, on January 24, 1996, Ms. Staples again sent a letter to the trial
court recommending that defendant be conditionally released. A hearing was then
held November 8, 1996, nine months later. The record is unclear as to why the
hearing was not scheduled within the required 30 days.
Defendant presented three witnesses - Dr. Philip Pan, Dr. Bernard Block, and
Ruby Lee Wilson - at the hearing on November 8, 1996, to show why he should be
conditionally released. The State did not present any witnesses. The first witness,
Dr. Pan, was a staff forensic psychiatrist for the Forensic Clinical Services at the
Isaac Ray Center who had been working there since August of 1996. Dr. Pan
admitted that he reviewed only some of defendant's records, specifically the records
between May 1996 and August 1996. Dr. Pan testified that he reviewed reports from
two other psychiatrists. In addition, in August of 1996, Dr. Pan conducted a single
interview which lasted less than two hours. Based upon his review of this medical
information, Dr. Pan concluded that defendant was stable, not suffering from
antipsychotic symptoms, and suitable for conditional release. Dr. Pan further
testified, within a reasonable degree of medical certainty, that defendant did not pose
a threat to himself or others.
In addition, Dr. Pan testified that if defendant were conditionally released,
defendant would reside at the Somerset House, an intermediary care facility for
psychiatric patients and other forensic patients. The Somerset staff is experienced
in dealing with forensic patients, such as defendant, and is responsible for
administering the required medication to the patients. According to Dr. Pan,
defendant would also be receiving outpatient psychiatric treatment at Isaac Ray
Center, vocational training at the Jewish Vocational Service, and other counseling at
the Community Counseling Center of Chicago.
Upon cross-examination, Dr. Pan testified that he was unaware that in 1993
a prior conditional release recommendation for defendant was denied by the trial
court. Dr. Pan acknowledged that defendant may have continuing problems with
ineffective coping skills, wherein he may not deal well with stress and other
problems, but noted upon redirect examination that this is not unusual. When
questioned by the court as to the type of conduct a person may exhibit if he or she is
unable to deal with stress, Dr. Pan responded that defendant could become violent
or catatonic. Defendant's counsel inquired about defendant's decompensation in early
1994. Dr. Pan explained that defendant suffered from a decompensation as a result
of acute stress caused by his involvement with a woman patient at Elgin.
Consequently, his off-ground privileges were suspended and his medication doses
were increased, of which Dr. Pan was unaware. Dr. Pan acknowledged that
defendant desires to be released and is motivated by his desire, but all the
documentation demonstrates that defendant has been compliant with treatment.
Defendant then presented his second witness, Dr. Bernard Block, a staff
forensic psychiatrist who treated defendant for the past five and one-half years. Dr.
Block agreed with Dr. Pan that defendant should be conditionally released and that
defendant is not a danger to himself or others. In his testimony, Dr. Block explained
that defendant suffered a "distortion in thought process marked primarily by
delusions of paranoia with the fantasy that the government was seeking to harm him
or arrest him." In essence, defendant was diagnosed as a paranoid schizophrenic, in
remission since May of 1994. Defendant had been taking his medications since the
1970's, and had been taking injectable medication, Haldol, every 28 days since he
came to Elgin. Dr. Block mentioned that defendant "ha[d] been a very good, very
cooperative patient," emphasizing that defendant had been compliant in taking his
treatment.
Defendant met with Dr. Block twice a month for approximately 40 to 60
minutes. Defendant also received treatment from the Isaac Ray Center, and had
never missed an individual or a group session. Dr. Block testified that defendant had
not experienced a severe behavioral problem in the previous five and one-half years,
other than the decompensation in 1994 precipitated by a romantic involvement with
a female patient, which Dr. Block considered a mild incident. In Dr. Block's opinion,
any situation with anxiety for a paranoid schizophrenic is referred to as a
"decompensation." As a result of this non-serious decompensation, defendant's
unsupervised off-grounds privileges were suspended, his dosages of medication were
increased, and he was counseled for impulsive judgment and suspiciousness. Dr.
Block opined that this incident was not evidence that defendant's relationship to
women would lead to violence. Dr. Block maintained that defendant should be
conditionally released.
On cross-examination, Dr. Block was questioned about the defendant's act of
smuggling drugs into Elgin prior to 1993. He explained that he did not believe this
incident should affect the outcome of whether defendant should be conditionally
released, although Dr. Block acknowledged it was a problem. Dr. Block was also
asked whether he recommended defendant's conditional release in 1993 knowing that
defendant's symptoms were not in remission, even though defendant was on
medication. Responding that he knew defendant's symptoms were not in remission,
Dr. Block emphasized that defendant's problems "were treated even though they
[were] not currently active" and did not believe defendant to be a danger to himself
or others. In addition, Dr. Block testified on cross-examination that defendant had
no coping problems with staff or other patients, just with certain women who "press
attentions on him." Dr. Block stated that he did not agree with a nurse's notes from
June 1996 which stated that defendant had an ongoing problem with ineffective
coping skills, and also disagreed with a May 6, 1994, report from another doctor
stating that defendant had "numerous indications of cognitive slippage and
distortions of thinking." According to Dr. Block, these were not the judgment or
prognosis of the treatment teams. In fact, he noted that defendant's degree of anxiety
or depression was a common symptom, not significantly different from the anxiety
and depressions that ordinary non-psychotic people have. Dr. Block also stated that
although he believed that defendant's motivation in complying with his treatment
came from his desire to be released conditionally, his motivation also stemmed from
wanting to be a "non-mentally ill person."
The third witness defendant presented was Ruby Lee Wilson, the program
director at Isaac Ray Center, a licensed registered nurse, and an ordained minister.
Isaac Ray Center is an organization affiliated with the Department of Psychiatry at
Rush Presbyterian - St. Luke's Medical Center. In her testimony, Wilson stated that
Isaac Ray Center's function is to evaluate and treat the NGRI patients, act as a
barrier between the patients and the community and to ensure that a patient
remains on the path of recovery from mental illnesses.
Wilson testified that since January of 1995, she met with defendant twice a
month in individual therapy and twice a month in group therapy. According to
Wilson, she was responsible for monitoring defendant, and any violations of the
conditional release would be reported to the court. She explained that the Somerset
House was responsible for administering defendant's medication. At the time she
gave her testimony, Wilson worked with 46 other patients who had been charged with
murder but were acquitted by reason of insanity. According to Wilson, defendant "is
extremely conscientious and is always very compliant *** and comes to Isaac Ray
Center now unsupervised and unescorted." She further stated that defendant
demonstrated concern for the family of his victim and regularly expressed a desire
to someday return to work.
Wilson further testified that the Isaac Ray team, which was comprised of one
psychiatrist, one psychologist, and herself, believed defendant was ready for
conditional release. Wilson stated that defendant came to Isaac Ray unaccompanied
and had never missed or been late for a counseling session, never had any type of
complaint against him, and was not a problematic patient. She emphasized that it
is not often that a patient does not take his medication. However, if that were to
happen, Wilson explained the procedures and action she would take. She also
testified as to her duties to defendant and the court, both legally and ethically.
At the conclusion of the hearing, the trial court denied the recommendation for
defendant's conditional release. The trial court believed that the recommendation
was brought forth by defendant himself, although it stated that it would hold the
State to the burden of proof. The trial court was convinced that defendant still had
problems, still had ineffective coping skills, had possible problems with stress, and
found the staff's observations more reliable than defendant's own doctors and
treatment teams. The trial court stated that it wanted assurances that defendant
would not act violently if faced with a stressful situation, essentially switching the
burden from the State to defendant. It also stated "they [the State] have not met
their burden by clear and convincing evidence, but I think by a preponderance of the
evidence, if not more. This court is going to deny Mr. Grant's request for conditional
release." Subsequently, defendant filed a motion for reconsideration, which was also
denied.
On appeal, defendant argues that the trial court erred by shifting the burden
of proof to defendant, thereby contradicting the statute, which explicitly calls for the
State to bear the burden of proof. Defendant further argues that the trial court
improperly denied defendant's conditional release, in light of explicit medical opinion
supporting conditional release and no evidence presented by the State. Finally,
defendant maintains that the trial court improperly asked for reassurances from
defendant's witnesses that he would be able to handle stressful situations if
conditionally released.
Defendant first argues that the trial court applied the wrong burden to the
wrong party. At the end of the hearing, the trial judge said "they [the State] have
not met their burden by clear and convincing evidence, but I think by a
preponderance of the evidence, if not more. This court is going to deny Mr. Grant's
request for conditional release." Thus, defendant claims that the trial judge applied
a preponderance of evidence standard, instead of a clear and convincing standard,
and essentially placed the burden on defendant instead of the State.
Section 5-2-4(g) of the Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par.
1005-2-4(g) (now 730 ILCS 5/5-2-4(g) (West 1996))), states, in pertinent part:
"The findings of the court shall be established by clear and
convincing evidence. The burden of proof and the burden
of going forth with the evidence rest with the State when
a hearing is held to review the determination of the facility
director that the defendant should be transferred to a non-
secure setting, discharged or conditionally released. The
burden of proof and the burden of going forth with the
evidence rest on the defendant when a hearing is held to
review a petition filed by or on behalf of such defendant."
730 ILCS 5/5-2-4(g) (West 1996).
In this case, the facility director for the DMHDD, Nancy Staples, had sent a
letter to the trial judge on December 6, 1995, pursuant to section 5-2-4(d),
recommending that Johnnie Grant be conditionally released, as he was no longer
subject to involuntary admission or in need of inpatient treatment. The record on
appeal shows that no hearing was scheduled. The facility director sent a second
letter to the trial judge on January 24, 1996, again requesting a hearing for
defendant for a conditional release. The hearing was scheduled for November 8,
1996. At the hearing, the burden was on the State to prove, by clear and convincing
evidence, that defendant should not be conditionally released.
The State erroneously argued in its appellate brief that defendant had the
burden since defendant brought forth a petition for conditional release on July 24,
1996, pursuant to section 5-2-4(e). We note that Nancy Staples' letter was not
initially in the record on appeal filed on February 21, 1997; however, the letter was
filed in a supplemental record on April 1, 1997. The State overlooked the
supplemental record on appeal, and conceded during oral arguments on December 2,
1997 that it was in error, whereupon the State filed another supplemental record,
which included both letters and defendant's petition for conditional release, on
December 16, 1997. The State requested that this court grant a new hearing. The
State claimed it was confused as to who had the burden at the November 8, 1996
hearing and believed defendant had the burden since defendant filed a petition for
conditional release, not the facility director. The record is unclear as to what type of
hearing it was; nevertheless, we believe that two separate hearings should have
taken place, one on the basis of Staples' recommendation and one for defendant's
petition. However, the transcripts reveal that the trial judge initially placed the
burden on the State to prove by clear and convincing evidence that defendant should
not be discharged. Therefore, we can assume that the trial judge held the hearing
based on the facility director's recommendation. Moreover, the record clearly shows
that the State assumed the burden, where the prosecutor told the trial judge "I
assume the burden." Accordingly, we believe that there was no question as to who
had the burden of proof nor can the State now claim that it did not know it had the
burden. We are not persuaded by the State's reliance on People v. Cross, to support
its argument that if the State knew it had the burden, the State would have put forth
different evidence or trial strategy. See People v. Cross, 289 Ill. App. 3d 876, 891
(1997) (where the trial court remanded the case for a new hearing because the
defendant was not aware that he had the burden of proof and would have put forth
different evidence or trial strategy had he been so apprised). We find no reason to
remand this case for a new hearing. We further find that the trial judge was initially
correct in applying the clear and convincing standard on the State, but later relied
on the wrong standard in its conclusion.
Having determined that, we now examine whether the State showed that
defendant should not be conditionally released by clear and convincing evidence.
Under section 5-2-4(h), the State needs to show that defendant (1) was subject to
involuntary admission, or (2) in need of mental health services on an inpatient basis.
Section 5-2-4(h) provides, in pertinent part, that:
"If the court finds that the defendant is in need of mental
health services, and no longer in need of inpatient care, it
shall order the facility director to release the defendant
under such conditions as the court deems appropriate[.] If
the court finds that the defendant is subject to involuntary
admission or in need of mental health services on an
inpatient basis, it shall order the facility director not to
discharge or release the defendant[.]" 730 ILCS 5/5-2-4(h)
(West 1996).
"Subject to involuntary admission" means that the party who has the burden of proof
must show that the defendant is mentally ill and because of his mental illness is
either reasonably expected to inflict serious physical harm upon himself or another
in the near future or is unable to provide for his basic physical needs. 730 ILCS 5/5-
2-4(a)(1)(A) (West 1996). "In need of mental health services on an inpatient basis"
means a defendant who is not subject to involuntary admission but who is reasonably
expected to inflict serious physical harm upon himself or another and who would
benefit from inpatient care or is in need of inpatient care. 730 ILCS 5/5-2-4 (a)(1)(B)
(West 1996). The State must prove that defendant is subject to involuntary admission
or is in need of mental health services on an inpatient basis by clear and convincing
evidence. 730 ILCS 5/5-2-4(g) (West 1996). Furthermore, the finding must be based
upon an explicit medical opinion regarding the defendant's future conduct, and cannot
be based upon a mere finding of mental illness. See People v. Smith, 126 Ill. App. 3d
5, 9 (1984).
After a careful review of the record, we find that Dr. Pan's testimony,
corroborated by Dr. Block's testimony, clearly showed that defendant was not a
danger to himself or to others, nor was their testimony contradicted by the State. Dr.
Block's testimony consisted of explicit medical opinions that defendant's mental
illnesses had been in remission since 1994. Dr. Block had been defendant's
psychiatrist for over five and one-half years, and defendant had no physical
altercations or behavioral problems during that time. According to the doctor,
defendant suffered a decompensation in 1994, but it was minor and not an unusual
symptom for a paranoid schizophrenic. Dr. Block stressed that defendant had never
missed his medication or any therapy session and had been compliant with his
treatment program. Defendant continued to improve through his individual and
group sessions. The record demonstrated that defendant was a good and cooperative
patient and quite capable of providing for his basic physical needs. For instance,
defendant went to counseling at Isaac Ray Center unaccompanied. Most importantly,
the State did not exercise its right to request an independent psychiatric evaluation,
nor did it call any qualified expert witnesses. No one disputed that defendant needed
counseling and guidance to continually improve his coping skills; however, the
witnesses explained that he did not need inpatient mental health services. In sum,
there was no clear and convincing evidence that proves there is a reasonable
expectation that defendant would inflict serious harm upon himself or others. All
three witnesses testified that defendant was suitable for conditional release. Thus,
we believe the State failed to meet its burden in proving defendant was not suitable
for conditional release.
A case directly on point is People v. Nelson, 244 Ill. App. 3d 356 (1993). In the
Nelson case, the defendant, while suffering from paranoid schizophrenia exacerbated
by substance abuse, killed his girlfriend. After a trial, the defendant was found not
guilty of murder by reason of insanity on June 24, 1981. Nelson, 244 Ill. App. 3d at
357. The defendant received more than 10 years of psychological treatment on an
inpatient basis. In 1991, the facility director recommended that the defendant be
conditionally released. Nelson, 244 Ill. App. 3d at 357. The trial court denied the
director's recommendation because it erroneously believed that is was the defendant's
burden to prove by clear and convincing evidence that he was not a danger to others,
which the defendant failed to do. Nelson, 244 Ill. App. 3d at 357. The appellate
court reversed the trial court after finding that section 5-2-4(g) explicitly states that
it is the State's burden, not the defendant's, to bring forth clear and convincing
evidence that the facility director's recommendation for conditional release is
inappropriate. Nelson, 244 Ill. App. 3d at 357.
The appellate court in Nelson was not persuaded by the State's arguments.
Although the defendant previously threatened staff members verbally, physically
injured a patient and allegedly had a physical altercation with a staff member, the
witnesses, who were qualified experts who evaluated the defendant, testified that the
defendant was not a danger to himself or others as long as he took his medication.
The defendant had not acted violently or been involved in any physical altercation for
more than seven years, and had not made verbal threats for more than two years
prior to the hearing. The qualified expert witnesses testified that when the hospital
tried taking the defendant off his medication it resulted in the defendant verbally
threatening a staff member. Nelson, 244 Ill. App. 3d at 359-60, 363-4. The State
presented no evidence to substantiate the report, no evidence of physical altercation
within seven years of the hearing, and no evidence of verbal altercations within two
years of the hearing. Nelson, 244 Ill. App. 3d at 364. Similarly, in our case, three
witnesses testified that defendant was suitable for conditional release and was not
a danger to himself or others. The State did not present clear and convincing
evidence to the contrary. Accordingly, we find that the State failed to meet its
burden.
Defendant next contends that the trial court erred in denying his conditional
release and to ask defendant's witnesses for guarantees or assurances that defendant
would not act in a violent manner when faced with stressful situations. The trial
judge specifically said:
"Nobody could tell me that if the stress was there the
Haldol at this level is enough to keep him from acting
violent. This is the assurance that I need to determine
whether or not he is at risk to be put back into an
environment without controls, without an inpatient
controlled situation. * * * And when he stops taking his
medication he suffers from paranoia. * * * What I'm really
concerned about is what can happen while he is on
medication? And nobody has given me any degree of
assurance of any reasonable degree of medical scientific
certainty what would happen if he is faced with a stressful
situation while, if, he is on a conditional release situation
even though he is on Haldol. * * * Until there is [sic] no
episodes of decompensation, until there is [sic] no episodes
of him not being able to cope with stress, until I feel that
he is a safety risk to then filter back into society where he
will be facing stressful situations every day, the stress of
standing in line in a grocery store, the stress of traffic, the
stress of being denied something that he feels he is entitled
to, stress of having a curfew, stress of dealing with the
opposite sex in which we know he has a problem. Those
are all things that this court cannot deny. All of this was
developed by the State on cross-examination of these
doctors. They have not met their burden by clear and
convincing evidence, but I think by a preponderance of the
evidence, if not more. This court is going to deny Mr.
Grant's request for conditional release."
We again turn to the Nelson case. The trial court, whose decision was later
reversed, relied heavily on the expert's statements that they could not guarantee that
the defendant would continue to take his medication or that he would not resume the
use of illegal drugs. The appellate court quoted People v. Smith, 126 Ill. App. 3d 5,
9 (1984), in its opinion:
"Expert testimony that defendant may have difficulty
adjusting to the stresses of noninstitutional life is not
sufficient to sustain a finding requiring involuntary
commitment. [Citation.] Neither is the possibility that
defendant may not comply with the prescribed regimen of
treatment [citation], nor that defendant may resume abuse
of alcohol." Smith, 126 Ill. App. 3d at 9.
We agree with this reasoning. A court should not postulate that the safety of others
cannot be assured because defendant might violate certain conditions of his discharge.
The trial judge may not place "greater emphasis on his own determination that the
proposed conditions would not or could not be complied with satisfactorily, to the
exclusion of adequate consideration of expert testimony." People v. Blumenshine, 72
Ill. App. 3d 949, 953-4 (1979). The proposed release plan and treatment plan should
provide sufficient assurances for defendant's further treatment and progress.
The trial court improperly requested assurances from defendant's counsel and
defendant's witnesses that defendant would not harm himself or others if confronted
with stressful situations. We do not find that the possibility of defendant having
difficulty adjusting to the stresses of noninstitutional life is sufficient to sustain a
denial of conditional discharge. Everyone faces stress on a daily basis. Defendant
has been learning to deal with stress and other emotions through the therapy
sessions and counseling programs. In addition, he continued to be on medication that
was proven to be successful in keeping his mental illness in remission. Furthermore,
there was no evidence that defendant could be reasonably expected to harm himself
or others. Defendant's doctors and treatment team all agreed that defendant should
be conditionally released. In light of all of this evidence and none to the contrary, we
find all this testimony and evidence to be sufficient to grant defendant's conditional
release.
On a final note, we requested information and a report of defendant's current
condition during oral arguments. We received the most recent 60-day reports (August
1997 and October 1997) and find that defendant is stable, has greater coping skills,
and ready for conditional release. He participates in weekly individual and group
psychotherapy sessions in order to further enhance his coping skills. The report does
not state that defendant has suffered any decompensation or has exhibited any
problems. If defendant is conditionally released, he will be placed at the Somerset
House and receive outpatient mental health services at the Isaac Ray Center. We
remand for the entry of an order permitting the hospital to conditionally release
defendant "under such conditions *** as will reasonably assure the defendant's
satisfactory progress in treatment *** and the safety of the defendant or others."
(720 ILCS 5-2-4-(a) (West 1996)).
For the reasons stated above, we reverse the trial court's denial of defendant's
conditional release and order the trial court to conditionally release defendant and
further remand this cause for proceedings consistent with the views contained herein.
Reversed and remanded with directions.
COUSINS, J., concurring.
RAKOWSKI, J., specially concurring:
I do not join in the findings of the majority that "defendant is stable, has
greater coping skills, and ready for conditional release". Rather, I concur based upon
the unrebutted opinions of Doctors Block and Pan.
I concur in all other respects.