State v. McCarty

State v. McCarty (2004-486); 179 Vt. 593; 892 A.2d 250

2006 VT 4

[Filed 10-Jan-2006]

                                 ENTRY ORDER

                                  2006 VT 4

                      SUPREME COURT DOCKET NO. 2004-486

                               JUNE TERM, 2005

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }	District Court of Vermont,
       v.	                           }	Unit No. 3, Caledonia Circuit
                                       }	
  Barbara McCarty	                     }
                                       }	DOCKET NO. 261-4-04 Cacr	
                                          Trial Judge: Walter M.                                                                                                            									 Morris, Jr.

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant appeals an order of the Caledonia District Court
  directing her hospitalization for ninety days at the Vermont State Hospital
  to obtain psychiatric treatment.  Defendant argues the district court erred
  for two reasons: (1) the evidence was insufficient to support an order of
  involuntary hospitalization; and (2) statements she made during a
  court-ordered psychiatric evaluation were used to support the court's
  decision in violation of her constitutional privilege against
  self-incrimination.  We reject both arguments and affirm.

       ¶  2.  In April 2004, the State charged defendant with truancy for
  failing to send her child to school.  After defendant failed to appear at
  her arraignment, the court issued a warrant for her arrest.  She was
  arrested on May 3, 2004.  Because of her actions during the arrest, the
  State added a charge of resisting arrest.  Following a May 17 hearing, the
  court ordered a psychiatric evaluation, over defendant's objection, on her
  competency to stand trial.  Defendant moved for reconsideration, and, on
  June 15 and 16, the court held a hearing on the motion and denied
  defendant's request. The court issued a second examination order, this time
  as to both competency and sanity.  Defendant failed to appear for the
  evaluation, resulting in another arrest warrant.  On September 2, she was
  arrested and arraigned on a charge of violating her conditions of release. 
  On September 8, the court issued a third examination order-like the second
  one, as to both competency and sanity-and set a hearing for October 18,
  2004.  Each of the three orders bears the following warning: "A Notice of
  Hearing on the results of the examination will be sent to all parties.  If
  the defendant is found incompetent, a hospitalization hearing will be held
  immediately following the competency exam."  Dr. Paul Cotton examined
  defendant on September 16 and issued a written report, concluding that she
  was not competent to stand trial and that, at the time of the offense, she
  was insane. 
   
       ¶  3.  At the October 18 hearing, the State called Dr. Cotton and
  two Vermont State Police officers.  The court also received Dr. Cotton's
  report into evidence.  The section of his report entitled
  "Non-Confidentiality Warning" states that before starting the evaluation
  Dr. Cotton told defendant that he was a psychiatrist retained by the court
  to gather information regarding the circumstances of the charges against
  her.  The report continues:

    I informed her that what she said could be used to determine her
    competency to stand trial and her criminal responsibility for the
    offense charged.  Anything she said could be included in my
    written report or in oral testimony.  She was informed that her
    participation was voluntary.  She understood and wished to
    proceed.

  In his testimony, Dr. Cotton reiterated that when he met with defendant he
  informed her that the examination was not confidential and she was free to
  decline to answer any questions.  He testified that she indicated she was
  willing to go ahead with the examination.

       ¶  4.  In concluding that defendant was not competent to stand
  trial, Dr. Cotton wrote in his report that while defendant could become
  competent if she took anti-psychotic medication, "[g]iven her deficient
  insight and judgment, it is unlikely that she would do so without a Court
  order for involuntary treatment."  In the section entitled "Observations
  Regarding Criminal Responsibility," he wrote that defendant's "mental
  illness is severe.  Her paranoid delusional beliefs interfere with her
  capacity to . . . accept and respect the regulation of both the schools and
  the Court."  

       ¶  5.  At the hearing, Dr. Cotton further explained his conclusions
  that defendant was neither competent to stand trial nor sane at the time of
  the charged offenses.  He testified that defendant was delusional and
  paranoid, and that her mental illness made her dangerous, causing her to
  act in an assaultive manner at times.  He stated that her delusional belief
  system was pervasive and growing stronger, making her quick to view any
  person as either incompetent or aligned against her and thus to treat that
  person as an adversary.

       ¶  6.  When asked whether treatment could make defendant competent
  to stand trial, Dr. Cotton responded that in his opinion "the only safe
  place to treat her would be at the Vermont State Hospital because she's got
  fixed delusional beliefs."  He explained that the Hospital provides a
  "safe, secure and clinically excellent treatment environment" where "staff
  can petition for involuntary medication since it's highly unlikely she
  would accept medication."  He also testified that treatment resources in
  the community short of hospitalization would not be appropriate, because
  her "treatment would only be successful if she had a secure, well-organized
  system of care that's used to dealing with people that have her degree of
  mental illness."  Dr. Cotton opined that without adequate treatment
  defendant's condition would worsen over time and she would have difficulty
  managing in the community at large. 
   
       ¶  7.  The two police officers who testified described the
  circumstances of defendant's arrests.  First, Trooper Gordon Lambert, who
  arrested defendant in May 2004, testified that she told him he would have
  to "break every bone in her body" to arrest her.  When Trooper Lambert made
  the arrest, defendant began to "violently kick and flail her arms," and
  tried to scratch the officers.  The State then called Trooper Eugene
  Duplissis, who arrested defendant on September 2, 2004.  He testified that
  defendant vigorously resisted the arrest and that, at one point during the
  struggle, he sprayed her with capsicum pepper spray, with no apparent
  effect.

       ¶  8.  After completing the evidentiary portion of the hearing, the
  court had a discussion with counsel about the topics to be covered in
  counsel's legal arguments.  After the court noted that "typically we have a
  treatment hearing at another date if there is a finding of incompetency or
  sanity," the prosecutor replied that he had called the court to verify that
  the hearing would also include a hospitalization hearing and was advised
  that it would.  The court responded: "If that's the parties' understanding,
  we'll proceed on that basis.  We'll hear arguments as to both issues." 
  Defense counsel did not object.

       ¶  9.  After counsel's arguments, the court made its findings on the
  record, acknowledging that its findings had to be supported by clear and
  convincing evidence.  The court found that defendant suffered from a mental
  illness and, as a result, lacked a rational understanding of the
  proceedings and would not be able to communicate with and assist her
  attorney.  Thus, the court concluded she was not competent to stand trial. 
  The court also found that defendant's illness impaired her judgment and
  self-control to an extent that it put others in danger of harm, as
  demonstrated by her two arrests.  The court thus determined defendant was a
  person in need of treatment.  

       ¶  10.  The court went on to find that the "credible testimony of Dr.
  Cotton establishes that [defendant] is resistant to treatment" and that "in
  the absence of close supervision, continuity of care, monitoring of
  treatment which may or may not include administration of medications, . . .
  treatment efforts would not be productive or successful."  The court found
  and concluded that "there is no less restrictive alternative to treatment
  within a . . . residential mental health facility."  The court then issued
  an order of hospitalization for a period of ninety days, which defendant
  now appeals.

       ¶  11.  Defendant makes two arguments on appeal: (1) the evidence
  does not support the court's hospitalization order; and (2) her statements
  to Dr. Cotton during her examination could not be used to support a
  hospitalization order.  We reject both arguments and affirm the
  hospitalization order.

       ¶  12.  First, the evidence amply supported the court's findings.  By
  statute, the State had to prove its case by clear and convincing evidence. 
  18 V.S.A. § 7616(b).  We have explained that the
  clear-and-convincing-evidence standard is "generally said to require proof
  that the existence of the contested fact is highly probable rather than
  merely more probable than not."  In re N.H., 168 Vt. 508, 512, 724 A.2d 467, 470 (1998) (quotations omitted).  The standard "does not mean,
  however, that the State's evidence must be wholly uncontradicted or
  unimpeached."  Id.  Thus, "[t]he test on review is not whether this Court
  is persuaded that there was clear and convincing evidence, but whether the
  factfinder could reasonably have concluded that the required factual
  predicate was highly probable."  Id. at 512-13, 724 A.2d  at 470.  In making
  that determination, we take the evidence in the light most favorable to the
  State.  Id. at 513, 724 A.2d  at 470.
        
       ¶  13.  Here, the court reasonably concluded that defendant posed a
  danger of harm to others because of her mental illness.  The testimony of
  the two arresting officers showed that defendant struggled violently during
  her two arrests.  The report and testimony of Dr. Cotton established that
  this violent behavior resulted from her mental illness.  His testimony also
  supported the court's finding that defendant would not voluntarily accept
  treatment for her mental illness.  In synthesizing these valid findings,
  the court properly concluded that hospitalization was required because,
  outside of a hospital setting, defendant posed a danger to others and would
  not be able to remedy the situation by acknowledging, let alone treating,
  her mental illness.  

       ¶  14.  Contrary to defendant's claim in her brief, the testimony and
  conclusions of Dr. Cotton were not conclusory or speculative.  They were
  based on his observations of and interactions with defendant during the
  examination, filtered through his years of experience.  Further, we agree
  with the State that the court considered the possibility of
  less-restrictive alternatives and properly rejected them, based on the
  evidence of the extent of defendant's mental illness and the fact that it
  made her a danger to others.  In sum, we hold that the hospitalization
  order was properly supported by the evidence.

       ¶  15.  Next, we reject defendant's argument that her statements
  during her examination were improperly used against her to support the
  hospitalization order.  Defendant contends that her Fifth Amendment
  privilege against self-incrimination was violated when the results of the
  examination were used to support the hospitalization order.  She cites
  Estelle v. Smith for the proposition that a "criminal defendant, who
  neither initiates a psychiatric evaluation nor attempts to introduce any
  psychiatric evidence, may not be compelled to respond to a psychiatrist if
  his statement can be used against him at a capital sentencing proceeding." 
  451 U.S. 454, 468 (1981).  She then argues that her Fifth Amendment rights
  were violated because "[t]here is no practical distinction" between being
  involuntarily hospitalized and being incarcerated.  We disagree.  

       ¶  16.  While defendant is correct that the privilege is
  theoretically available in the context of any pretrial psychiatric
  examination, State v. Bushey, 147 Vt. 140, 144, 513 A.2d 1177, 1180 (1986),
  its applicability in a given case depends on the "nature of the statement
  or admission and the exposure which it invites."  Estelle, 451 U.S.  at 462
  (quotations omitted).  Focusing on the nature of the exposure invited by a
  psychiatric examination, Justice Souter, as a member of the New Hampshire
  Supreme Court, noted that "Estelle did not hold that the fifth amendment
  would be implicated by an order directed to elicit testimonial evidence
  bearing on purely protective, non-punitive commitment."  State v. Mercier,
  509 A.2d 1246, 1250 (N.H. 1986).  The Mercier court rejected the
  defendant's argument-namely, that his constitutional rights were violated
  by a psychiatric examination that resulted in his hospitalization after a
  jury found him not guilty by reason of insanity-because it viewed the
  hospitalization proceeding as a "non-incriminating use of testimonial
  evidence derived from the examination."  Id.  

       ¶  17.  In this case, once the court found defendant to be
  incompetent, she was no longer at risk of conviction and punishment.  See
  Heller v. Doe, 509 U.S. 312, 325 (1993) (observing that "confinement in
  prison is punitive and hence more onerous than confinement in a mental
  hospital").  Thus, as in Mercier, the hospitalization portion of the
  proceeding entailed a non-incriminating use of the evidence derived from
  Dr. Cotton's examination and did not implicate defendant's privilege
  against self-incrimination.  
        
       ¶  18.  Further, we note that if statements made in a psychiatric
  examination surface in a later proceeding in a manner that would expose the
  speaker to conviction or punishment, the speaker could at that point invoke
  the privilege and have the statements excluded.  Mercier, 509 A.2d  at 1250. 
  Here, defendant can point to no such statements, because the court's
  competency decision removed the possibility of conviction or punishment. 
  In sum, we perceive no error in the court's use of the examination in
  support of its hospitalization order.

       ¶  19.  Finally, defendant suggests that she lacked notice that the
  court would address the question of hospitalization at the October 18
  hearing.  We note, however, that the three examination orders all state
  that if defendant were found incompetent a hospitalization hearing would
  follow immediately.  Moreover, when the court stated that it would hear
  argument on both competency and hospitalization, the defense did not
  object.  Thus, reversal is not warranted based on a purported lack of
  notice to defendant.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.), 
                                       Specially Assigned