2019 Mass. App. Div. 101

May 3, 2019 - September 25, 2019

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

Robert E. Conlon for the petitioner.

Andrew Kanter for the respondent.

FINNERTY, P.J. In 1987, D.D. stabbed his father to death and wounded his mother. He was found not guilty of the crimes by reason of mental illness and committed to Bridgewater State Hospital ("BSH") pursuant to G.L. c. 123, § 16(b), where he has been held since his initial commitment. [Note 1]

On January 3, 2018, BSH filed for the recommitment of D.D. pursuant to G.L. c. 123, § 16(c), contending that D.D. was mentally ill and that he required commitment to the strict security of BSH (as opposed to a facility of the Department of Mental Health). [Note 2] After hearing, at which the court heard from two witnesses, one an expert for the petitioner and the other an expert for the respondent, the court granted the petition. The court found on the record that D.D. is mentally ill as defined by the statute; [Note 3] that failure to retain him in a facility will create a substantial likelihood of harm; that there is no less restrictive alternative to commitment; and that D.D. requires the strict security of BSH.

D.D. has appealed the allowance of the petition. [Note 4] D.D. contends that the court erred in finding that he requires the strict security of BSH given D.D.'s behavioral history at BSH; that the court's decision was arbitrary and capricious because it sided with the opinion of BSH's expert over D.D.'s more qualified (according to D.D.) expert; and that the court's consideration of D.D.'s reported lack of insight into his mental illness was improper.

Our review of the court's decision is not de novo. We review the court's decision

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for any error of law or abuse of discretion.

An appellate court will set aside findings only if they are unsupported by the trial evidence or tainted by error of law. Such findings must be clearly erroneous and regard must be given to the opportunity of the trial judge to judge the credibility of the witnesses. Mass. R. Civ. P. 52(c). So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it. Advanced Spine Ctrs., Inc. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2012 Mass. App. Div. 117, 118. "Findings are clearly erroneous when, 'although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' The judge, with a 'firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence.' . . . 'If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous'" (citations omitted). LFS Group, Inc. v. Gutzler, 2011 Mass. App. Div. 83, 87 n.7. An abuse of discretion exists if the court's decision resulted from a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives. Commonwealth v. Ellis, 475 Mass. 459, 476 (2016), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The trial court here was presented with testimonial evidence that D.D. suffered from a major mental illness as defined in 104 Code Mass. Regs. § 27.05. [Note 5] Testimony offered by BSH and credited by the court was that D.D. had a history of auditory and olfactory hallucinations; suffers anhedonia and alogia; [Note 6] suffers delusions, both grandiose and persecutory; has a history of aggression; that he currently suffers those same symptoms, except that he had not exhibited aggressive behavior in approximately ten years. BSH's witness testified that D.D. experienced hallucinatory command voices and messages from television. He also suffers from a persistent delusion that he has an empire in Germany that he needs to run. He believes he must get to his empire to stockpile weapons and fight against aliens that are attacking his empire. According to BSH's witness, a licensed clinical social worker, D.D. has minimal insight into his illness and has not engaged in clinical treatment. D.D. has never been able to explain the precipitating factors of the index offense for which he has been committed, and he has shown no interest in finding out the cause or trigger for the events. He believes people are sniffing at him as he believes his mother was doing leading to the attack on her. In the opinion of BSH's witness, D.D. is focused, not on treatment, but on getting to his empire. He has no insight into his medications or why he takes them. In Department of Mental Health ("DMH") facilities prior to his BSH commitment, D.D. was noncompliant with treatment and had escaped from a DMH facility. In connection with her opinion that D.D. requires the strict security of BSH, BSH's expert testified as to her knowledge of the security level at Worcester

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Recovery Center and Hospital ("WRCH"), a DMH facility. [Note 7] D.D.'s expert witness, a board-certified psychiatrist, agreed that D.D. suffers from all the same symptoms of his mental illness as he did upon his first commitment to BSH. He testified as to his familiarity with DMH and WRCH. The trial court credited D.D.'s witness as "more knowledgeable" than BSH's witness as to the level of security at WRCH. D.D.'s witness opined that D.D. did not require the strict security of BSH and that D.D. would not be a danger to other DMH patients because of his long period of medication compliance; his agitation and psychosis were significantly diminished; and he has exhibited no behavioral aggression in ten years.

D.D. argues that the trial court should have given greater weight to the testimony of his expert witness because his witness was more highly credentialed than BSH's expert. "Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion . . . by an expert on either side of . . . [an] issue as conclusive. . . . The law should not, and does not, give the opinions of experts on either side of . . . [an] issue the benefit of conclusiveness, even if there are no contrary opinions introduced at the trial." Commonwealth v. Rosenberg, 410 Mass. 347, 357-358 (1991), quoting Commonwealth v. Lamb, 372 Mass. 17, 24 (1977). The fact finder may accept all, some, or none of the testimony of a witness, including an expert witness. Commonwealth v. Hinds, 450 Mass. 1, 12 n.7 (2007); Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978).

It is clear from the record that the trial court thoughtfully weighed the testimony of the two witnesses. He considered the fact that D.D. has all of the symptoms he came to BSH with thirty-one years ago except that he has been less aggressive. He considered whether D.D.'s medication compliance and behavioral compliance are the result of the structure of BSH (i.e., external controls as opposed to D.D.'s self-control). Illustrative of this deliberation are the following comments of the court during closing arguments:

"All of the same things that triggered the index events, or index offense are still present and [D.D.] has no insight into how to control those things. . . . But what do you have to say about the fact that the reason he is at least stabilized is a function of where he is and not what's going on with him? So, it's basically the structure of this environment, period, provides [sic] the stability for [D.D.] so that he is not . . . a further danger to other people."

See also Doe v. Gaughan, 808 F.2d 871, 878 (1st Cir. 1986) (noting evidence of therapeutic benefit of strict security of BSH in addition to public safety).

D.D. argues that the court improperly considered D.D.'s lack of insight into his mental illness in determining that he required the strict security of BSH because such insight is not a criteria specifically set forth in G.L. c. 123. D.D.'s insight, or lack thereof, was certainly a proper factor for the court to consider in conjunction with all of the other factors presented to the court and forming the bases for the opinions of each of the witnesses and the court's ultimate decision. The court did not suggest

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that D.D.'s insight into his mental illness was a sine qua non of his commitment to a DMH facility. Omission of the specific term from the statute, as with the omission of any other specific factors in the analysis of a need for strict security, is of no moment.

Furthermore, there is also no requirement of a recent overt act as a basis for finding a likelihood of serious harm. "[T]o 'the degree that the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of "imminence" seems justified.' There is no requirement that a 'likelihood of serious harm' be established by evidence of a recent overt act. Nor does the statutory definition of 'likelihood of serious harm' require a recent overt act" (citations omitted). Rosenberg, supra at 363. As the Court reasoned in Matter of G.P., 473 Mass. 112 (2015), "It is neither possible nor appropriate to try to establish a set of definite temporal boundaries for such evidence; the assessment of risk is a probabilistic one, and necessarily must be made on the basis of the specific facts and circumstances presented." Id. at 125, citing Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). The Court in Matter of G.P. also acknowledged the lessening of the requirement of imminence when the anticipated physical harm approaches death. Id. at 128, citing Commonwealth v. Nassar, 380 Mass. 908, 917 (1980).

We are not persuaded that any error of law or abuse of discretion was committed by the trial court or that its decision was arbitrary and capricious. See Commonwealth v. Batchelder, 1997 Mass. App. Div. 112, 114 (affirming trial court recommitment order to BSH where expert witness testified that he "could find no clear evidence that the delusions that [respondent] had around the time of the crime are any different from the type of paranoia beliefs he harbors today").

D.D.'s brief and appendix and reply brief contain references to materials that were not part of the trial record and are not properly before this Division. Corcoran Mgt. Co. v. Withers, 24 Mass. App. Ct. 736, 747 (1987).

The decision of the trial court is affirmed.


[Note 1] A period of thirty-one years according to the record in this case.

[Note 2] See G.L. c. 123, § 16(b), referring to the findings the court may make pursuant to G.L. c. 123, § 8(b), which reads: "After hearing, . . . the district court . . . shall not order the commitment of a person at the Bridgewater state hospital or shall not renew such order unless it finds that (1) such person is mentally ill; (2) such person is not a proper subject for commitment to any facility of the department; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm. If the court is unable to make the findings required by this paragraph, but makes the findings required by paragraph (a), the court shall order the commitment of the person to a facility designated by the department."

[Note 3] See G.L. c. 123, § 2 and 104 Code Mass. Regs. § 27.05.

[Note 4] D.D. also appealed the grant of the petition under G.L. c. 123, § 8B allowing treatment with antipsychotic medication, but has presented no appellate argument on that issue, and it is deemed waived. Dist./Mun. Cts. R. A. D. A. 16(a)(4).

[Note 5] See note 3, supra.

[Note 6] Anhedonia is the inability to gain pleasure from normally pleasurable experiences. Alogia is difficulty in speaking. See Webster's Third New International Dictionary 60, 84 (2002).

[Note 7] If committed to a DMH facility, there is no guarantee that WRCH would be the facility at which DMH placed D.D. See G.L. c. 123, § 8(b), excerpted in note 2, supra, and G.L. c. 123, § 3.