In the Matter of the Civil Commitment of: David Frank Salzl.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-428

 

 

In the Matter of the Civil Commitment of:

David Frank Salzl

 

 

Filed August 31, 2004

Affirmed

Toussaint, Chief Judge

 

Stearns County District Court

File No. P8-03-5731

  Cynthia J. Vermeulen, Vermeulen Law Office, 26 North 7th Avenue, St. Cloud, MN 56303 (for appellant David Salzl)

 

Janelle Kendall, Stearns County Attorney, David Peterson, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Harten, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

             Appellant challenges his commitment as mentally ill and chemically dependent, arguing that the district court failed to analyze his case in the manner prescribed by the Minnesota Civil Commitment Act and that he received ineffective assistance of counsel throughout the commitment process.  Because (1) the court properly analyzed appellant's case according to statute, and (2) appellant has failed to overcome the presumption that the acts or omissions by his counsel were sound trial tactics, we affirm.

D E C I S I O N

I.

Scope of Review

As a preliminary matter, respondent Stearns County notes that appellant David Frank Salzl failed to bring a motion for a new trial after the commitment hearing.  It argues that this court's scope of review should therefore "be limited to only whether the evidence supports the trial court's findings and the findings support the conclusions of law." 

In In re Gonzalez, 456 N.W.2d 724 (Minn. App. 1990), this court considered and rejected the arguments now being made by the county.  We noted that in civil commitment proceedings, requiring a motion for a new trial "would prolong a proceeding which the legislature meant to expedite."  Id. at 727.  We then added that allowing parties to raise issues on appeal from the commitment order without requiring that all such appeals be taken from a post-trial order "lend[s] finality to the proceeding and allow[s] speedier review."  Id.

            In light of Gonzalez and its reasoning, we cannot agree that the scope of our review should be limited merely because Salzl failed to move for a new commitment hearing.  Though we recognize that an aggrieved party in a proceeding under the Minnesota Civil Commitment Act appeals from an order "as in other civil cases," Minn. Stat. § 253B.23, subd. 7 (2002), the special nature of commitment proceedings, coupled with the deprivation of liberty, compels a broader scope of review encompassing review of all issues raised in this appeal.  Gonzalez, 456 N.W.2d at 727. 

II.

Court's Adherence to Minnesota Civil Commitment Act

            Salzl first challenges the district court's determination that he should be committed, arguing that the court failed to apply the requisite standards for civil commitment under chapter 253B of the Minnesota Statutes.  He further argues that, in so failing, the court did not properly determine whether he was mentally ill or chemically dependent.  He also contends that the court failed to consider less restrictive alternatives to civil commitment, also mandated by statute.

            An appellate court's review of a judicial commitment is limited to determining whether the district court complied with the civil commitment act and whether the commitment is "justified by findings based upon evidence" submitted at the hearing.  In re Shaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  The district court's findings will not be overturned unless they are found to be clearly erroneous and "due regard shall be given to the opportunity of the district court to judge the credibility of the witness."  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  This court reviews the record in the light most favorable to the district court's decision, but whether the evidence is sufficient to warrant commitment is a question of law, which is reviewed de novo.  Id.

A.     Mental Illness

Minn. Stat. § 253B.02, subd. 13(a) (2002) defines "a person who is mentally ill" as

any person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which is manifested by instances of grossly disturbed behavior or faulty perceptions and poses a substantial likelihood of physical harm to self or others as demonstrated by:

…

 

(3) a recent attempt or threat to physically harm self or others;

…

 

Subdivision 13(b) of that same section, however, provides that a person is not mentally ill if the aforementioned impairment is solely due to "brief periods of intoxication caused by alcohol, drugs, or other mind-altering substances" or "dependence upon or addiction to any alcohol, drugs, or other mind-altering substances."  Minn. Stat. § 253B.02, subd. 13(b) (3), (4).

Salzl argues that the diagnosis of the court-appointed independent examiner and ultimately the determination of the district court is flawed because it fails to "apply the requisite statutory analysis prior to reaching [an] opinion regarding both mental illness and chemical dependency."  Specifically, he asserts, "neither Dr. Pucel nor the district court examined the distinction between Subdivision 13(a) and Subdivision 13(b) of Minn. Stat. § 253B-02."  An examination of the record, however, shows that Salzl's assertions are without merit.

The record is replete with evidence indicating "a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment."  Minn. Stat. § 253B.02, subd. 13(a).  Medical documentation from a November 2003 psychiatric evaluation shows that Salzl had auditory hallucinations, hearing voices telling him that people including officers in the local police department and the FBI were conspiring against him; he had suicidal ideations; and he believed saline that was used in his medical treatment was contaminated with HIV.  The record also reflects that he believed that helicopters were circling his home, that someone was bugging his phone and leather jacket, and that the police intended to plant a methamphetamine lab in his house. 

            Further, the record supports the district court's finding that Salzl "poses a substantial likelihood of physical harm to himself or others."  Id.  During his November evaluation, Salzl admitted "he was so depressed that he thought that he would not mind if the police were to shoot him" and that he had suicidal ideations.  Interviews conducted by the local police chief during the December investigation that ultimately led to Salzl's apprehension revealed that Salzl intended to kill the chief and then himself.  These threats, coupled with Salzl's well-documented belief that the local police intended to "frame" him, clearly demonstrate a "substantial likelihood of physical harm as shown by a recent attempt or threat to physically harm self or others."  Minn. Stat. § 253B.02, subd. 13(a)(3).

Once more, the record supports the district court's conclusion that subdivision 13(b) does not protect Salzl from its determination that he is mentally ill.  Dr. Pucel's diagnosis included not only methamphetamine-induced psychotic disorder, but also "psychosis disorder NOS," which does not include symptoms related to substance-induced psychosis.[1]  See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 274, 315 (4th ed. 1994) (DSM IV).  Dr. Pucel later clarified this broad diagnosis by stating that he could not yet fully assess whether Salzl's condition stemmed solely from drug use, or whether his drug use "set[] in motion a psychiatric disorder that was already present but not dealt with, or not apparent."

            Minn. Stat. § 253B.02, subds. 13(b) (3) and (4), require findings that the impairment is solely due to either "brief periods of intoxication caused by alcohol, drugs, or other mind-altering substances" or "dependence upon or addiction to any alcohol, drugs, or other mind-altering substances."  The expert here could not affirmatively assert that Salzl's condition was caused solely by intoxication instead of "something that's underneath."  The district court, therefore, did not err in determining that Salzl was mentally ill under the statute.

B.     Chemical Dependency

Minn. Stat. § 253B.02, subd. 2, defines a "chemically dependent person" as

 

any person (a) determined as being incapable of self-management or management of personal affairs by reason of the habitual and excessive use of alcohol, drugs, or other mind-altering substances; and (b) whose recent conduct as a result of habitual and excessive use of alcohol, drugs, or other mind-altering substances poses a substantial likelihood of physical harm to self or others as demonstrated by (i) a recent attempt or threat to physically harm self or others, (ii) evidence of recent serious physical problems, or (iii) a failure to obtain necessary food, clothing, shelter, or medical care….

 

Salzl now claims that because he "successfully completed a Christmas shopping trip on his own and was in a positive state of mind prior to his arrest," the district court could not have properly determined that he was incapable of self-management.  Both caselaw and the record here indicate otherwise.

            Though self-management is not statutorily defined, this court has held that a finding that an individual "cannot adequately function" is sufficient evidence that he is incapable of managing himself.  In re Heurung, 446 N.W.2d 694, 696 (Minn. App. 1989).  Inability to "adequately function," in turn, has been found where an individual cannot control his substance abuse, control his behavior, or care for himself.  In re Galusha, 372 N.W.2d 843, 847 (Minn. App. 1985).

            Here, the record reflects that Salzl has been using methamphetamine for years and that his usage substantially increased after he lost his job in January 2003.  The record also clearly reflects that his mental condition has been deteriorating and that he has been having auditory hallucinations and delusional thoughts.  He has resisted treatment for his addiction, claiming that he can stop whenever he wishes, yet admits that he has continued to abuse drugs in the absence of supervision.  

The evidence, when taken as a whole, supports the district court's finding that Salzl is incapable of self-management.  Because he cannot control his addiction, refuses to seek treatment (or even appreciate that he needs treatment) and continues to have delusional thoughts because of his substance abuse, Salzl clearly is chemically dependent under the statute.

            There is also no merit to Salzl's claim that there is insufficient evidence of "a substantial likelihood of physical harm to self or others."  The record, as previously noted, clearly demonstrates delusional thoughts leading to suicidal and homicidal ideations.  Once more, Salzl's claim that the court failed to consider whether his threatening behavior was "a result of habitual and excessive use of . . . drugs" is equally unmeritorious after an examination of the record; Dr. Pucel's diagnosis was that Salzl's psychotic condition was likely precipitated by his substance abuse. 

C. Less Restrictive Alternatives

Salzl next contends that the district court failed to consider "reasonable alternative dispositions," as required under Minn. Stat. § 253B.09, subd. 2 (2002).  To the contrary, the record makes clear that the court carefully considered alternatives before determining that commitment was proper.  In the pre-petition screening report, a Stearns County social worker listed several less-restrictive alternatives that were considered and rejected, and provided explanations for each.  Dr. Pucel, in both the commitment hearing and his psychiatric report, opined that outpatient treatment would not be proper because of Salzl's inability to recognize or control his substance abuse problems.  The court accepted these recommendations, noting that the situation was very "explosive," and specifically adopted the social worker's findings in its commitment order.  It is therefore clear from the record that the court fully complied with the statute by providing in its findings the alternatives that it considered and rejected and the reasons for doing so.  Minn. Stat. § 253B.09, subd. 2.   

III. Ineffective Assistance of Counsel

            Salzl next contends that his statutory right to have the same attorney represent him throughout the proceedings was violated and that his counsel's failure to "be a vigorous advocate" on his behalf "fell below the objective standards of reasonableness." In deciding whether an individual received ineffective assistance of counsel in a commitment proceeding, this court applies the same standards set forth in criminal proceedings.  In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. March 25, 1987).  Representation is inadequate "if counsel fails to exercise the diligence of a reasonably competent attorney under similar circumstances."  Id.  "Even if counsel's representation is less than perfect, the result of a hearing or trial will be set aside only if counsel's actions so undermine the hearing process that the result is prejudiced."  In re Cordie, 372 N.W.2d 24, 29 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).  The claimant must "demonstrate that counsel's representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors."  State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003).

A.     Right to the same counsel

Salzl notes that the language of Minn. Stat. § 253B.07, subd. 2c(3) (2002), expressly provides that the attorney appointed at the time a petition for commitment is filed shall "continue to represent the person throughout any proceedings under this chapter unless released as counsel by the court."  He claims that this statutory right was violated because different attorneys appeared at the probable cause hearing and the commitment hearing. 

The record is silent as to why Salzl's first counsel was replaced by his second counsel.  There is no documentation regarding the substitution of counsel, and nothing in the commitment hearing transcript explaining the substitution.  We are thus unable to determine whether first counsel was properly "released as counsel by the court," as required under the section.

However, even if this substitution did violate the statute, there is no evidence that this substitution, in and of itself, caused prejudice.  And without any substantial prejudice, Salzl cannot now claim that he is entitled to new proceedings.  See State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991) (finding harmless error when judge erroneously instructed defendant he was not entitled to substitute counsel, but counsel representing defendant did not represent him ineffectively), review denied (Minn. Sept. 13, 1991).

B.     Vigorous advocacy

            Salzl notes several acts or omissions by his counsel that he claims demonstrate ineffective advocacy, including his attorney's failure to (1) request appointment of a second examiner; (2) object to, or to challenge the contents of, exhibits submitted into evidence at the hearing; (3) challenge Dr. Pucel's analysis of the statutory factors necessary for a diagnosis of mental illness or chemical dependency; and (4) contest the district court's statutory analysis, dispute the proposed commitment, or suggest "a variety of less restrictive alternatives, including dismissal of the commitment proceeding." 

The reviewing court assesses counsel's competence using an objective standard of reasonableness.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  Generally, matters involving trial tactics, including defenses to be raised at trial and which witnesses to call, lie within trial counsel's discretion and are not reviewed for competence.  Id.  The reviewing court must consider the totality of evidence and must avoid relying on hindsight when evaluating the effectiveness of trial tactics.  State v. Bergerson, 671 N.W.2d 197, 205 (Minn. App. 2003).

Reviewing the totality of the evidence in this case, we cannot conclude that Salzl's counsel was ineffective.  In addition to Dr. Pucel's diagnosis, doctors both before and after the civil commitment hearing also concluded that Salzl was both mentally ill and chemically dependent.  A second examiner for the commitment hearing might well have come to the same conclusion, and Salzl would then be forced to defend both diagnoses.  See In re Picataci, 367 N.W.2d 609, 612 (Minn. App. 1985); In re Skarsten, 350 N.W.2d 455, 457 (Minn. App. 1984) (doctor-patient privilege does not apply to second examiner appointed pursuant to Minn. Stat. § 253B.07, subd. 3, and examiners records may be used at trial).  It therefore appears from the record that this omission was an intentional trial tactic designed to minimize focus on Salzl's condition. 

Likewise, we cannot conclude that counsel's failure to object to certain evidence, to question Dr. Pucel on certain matters, or to raise certain issues in closing argument is ineffective assistance of counsel under the circumstances.  Considering the totality of evidence (i.e., a diagnosis of mental illness and chemical dependency from several doctors, documentation clearly stating his delusional thoughts, his conduct leading up to his arrest), these omissions also appear to be trial tactics, which on review are presumed to be sound.  State v. Strodtman, 399 N.W.2d 610, 616 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987); see also State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003) (questions a trial attorney asks are a matter of trial strategy and are not reviewable); Dukes v. State, 660 N.W.2d 804, 811 (Minn. 2003) (closing arguments are part of trial strategy); State v. Moseng, 379 N.W.2d 154 (Minn. App. 1985) (failure to object is part of trial strategy under circumstances of the case).  Since Salzl has failed to overcome this substantial presumption, we decline to address the matter further.

Affirmed.

[1] The designation "NOS" (not otherwise specified) is used when the mental disorder appears to fall within the larger category but does not meet the criteria of any specific disorder within that category.  American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 274 (4th ed. 1994) (DSM IV).