IN THE MATTER OF D.F.

D'ANGELO, J. This appeal arises from an August 3, 2018, order of the Fitchburg District Court allowing a petition for involuntary civil commitment filed by Worcester Recovery Center and Hospital ("petitioner" or "WRCH") pursuant to G.L. c. 123, § 16(b).

D.F., the respondent-appellant, makes several claims on appeal: (1) the hearing judge abused her discretion by admitting a medical record that was not disclosed before the hearing and that was not properly authenticated; (2) the hearing judge impermissibly allowed the petitioner's expert to testify on direct examination to prejudicial hearsay contained in the medical record; (3) the hearing judge's order of commitment was erroneous as a matter of law because the admissible evidence was legally insufficient; and (4) the petitioner misstated the evidence on a central issue in the case during closing argument and created a substantial risk of a miscarriage of justice.

Background. In April, 2017, D.F. was charged with two counts of assault and battery on a household or family member, specifically his sister. The following month, he was charged with violating an abuse prevention order that was issued to protect his sister and that arose from the alleged assault and battery. In June, 2018, the appellant was arrested on a warrant stemming from these charges, and on June 26, 2018, he was committed to WRCH for an evaluation pursuant to G.L. c. 123, § 15(a).

On July 16, 2018, a judge in the Fitchburg District Court found that the appellant was not competent to stand trial, and on the same day, WRCH filed a petition for the appellant's civil commitment pursuant to G.L. c. 123, § 16(b). A hearing was held on July 25, 2018. The judge found that D.F. was mentally ill; that failure to retain him in a facility would create a likelihood of serious harm; and that there was no less restrictive alternative. Consequently, the petition was allowed and D.F. was committed to WRCH for a period not to exceed six months. This appeal followed.

The hearing. The petition filed by WRCH alleged that the appellant was mentally ill within the meaning of Department of Mental Health regulations and that failure to hospitalize him would create a likelihood of serious harm by reason of mental illness. The petitioner asserted that the appellant posed a substantial risk of harm to others as those terms are defined under the second prong of G.L. c. 123, § 1. Dr. Lara Guzman-Hosta ("Guzman-Hosta"), a designated forensic psychologist working

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at WRCH, testified for the petitioner at the July 25, 2018 hearing. She reported that she had examined the appellant on July 6 with regard to the questions of competency and criminal responsibility that had been raised in the criminal cases brought against D.F. She identified the medical records and other documents she had reviewed prior to the hearing. She informed the judge that she had reached a diagnosis based on her discussions with D.F. about his ideas and the alleged criminal offenses, as well as her review of court documents, police reports, WRCH records, and records from Arbour Hospital.

Dr. Guzman-Hosta further testified that she had spoken with members of the community, as well as members of the appellant's treatment team at WRCH, which included two doctors and a social worker who had interacted with D.F. Based on all this information, Dr. Guzman-Hosta opined that D.F. suffered from a schizoaffective disorder and was acutely symptomatic.

Dr. Guzman-Hosta reported that the appellant was a forty-one year old homeless man who was talking to himself, and who was paranoid and irritable. D.F. was presenting with disorders of mood, thought, and perception. She reported that D.F. was currently demonstrating persecutory delusional beliefs, had disorganized thoughts, and was tangentially mumbling and rambling. The doctor disclosed that D.F. had told her that he was concerned that his treatment providers were trying to harm him. He had also expressed paranoid ideas about family members, the community, and the court. Dr. Guzman-Hosta testified that the appellant's sister, the alleged victim in the criminal cases, was one of the individuals about whom the appellant expressed paranoid delusions. D.F. told the doctor that he had an insect lodged in his throat, and that he believed his sister had something to do with this. He reported that the insect bothered him nightly, and he described the various sensations he was experiencing that made him believe this delusion was true.

The doctor further testified that the appellant had both depressive and manic-like symptoms and that he exhibited substantial irritability, mood lability, anxiety, psychomotor agitation, and constant pacing. In addition, Dr. Guzman-Hosta stated that D.F.'s disorder was also one of impaired perception and that he had been observed responding to internal stimuli, while pacing around the unit and talking to himself.

Dr. Guzman-Hosta also opined that the appellant's current disorder impaired his behavior and judgment and that he was isolative, secondary to his paranoid ideas, and was not engaging with his peers or providers. In her opinion, he did not seem to have insight into his delusional thought process and how it impacted his ability to seek out help and support. He refused to accept medication, declined to meet with providers, and would not engage in group therapy.

Dr. Guzman-Hosta stated her opinion that the appellant's disorder was causing a gross impairment of his ability to recognize reality and that he appeared to believe people were out to get him and that he was being persecuted. Dr. Guzman-Hosta further opined that, secondary to his paranoia, if D.F. were out in the community he would pose a significant risk of harm to others by reason of his mental illness.

After this testimony was given, the petitioner asked Dr. Guzman-Hosta whether her review of any records of the appellant's prior hospitalizations had contributed to her opinion on the risk D.F. presented to others. She said it had. She was then asked what records of prior hospitalizations she reviewed, and she referred to records of the appellant's hospitalization at Arbour Hospital from June 7, 2018 to June 20, 2018.

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When the doctor was asked to explain how D.F. came to be hospitalized at Arbour Hospital, the appellant's attorney objected, asserting that the answer would be inadmissible hearsay. The petitioner argued that the witness should be allowed to answer because she would be providing information contained in Arbour Hospital's records, which came directly from that hospital; were made for the purpose of diagnosis and treatment there; and were part of the record of a commitment to Arbour Hospital under G.L. c. 123, § 12.

The petitioner's attorney then sought to introduce a single page that she represented came from records provided to WRCH by Arbour Hospital in relation to the appellant's June, 2018 hospitalization at Arbour Hospital. That document bore the name Arbour Hospital and the appellant's name, in addition to other information concerning the appellant's psychiatric and criminal history. Regarding the June, 2018 admission, the document contained the following statement:

"Yesterday, the pt appeared at 01:00 pm at the North End Waterfront Health Center for a 09:30 am Appt and told Staff he was going to blow himself up at the Federal Court House. BPD, Federal Marshalls Service and Homeland Security became involved after the pt bolted from the Clinic - a Sec 12 was issued by Police."

The appellant's attorney objected to this document, asserting that it was being offered for the truth of the matter asserted and was inadmissible as prejudicial and unreliable hearsay. She pointed out that the report of a threat was purportedly based on an alleged representation by an unidentified third party, referred to as "Staff" at a clinic, not Arbour Hospital. The appellant also raised objections to the lack of authentication of the document, and the fact that it was not a complete record, and argued that it should not be introduced on direct examination. The appellant's objection was overruled and the document was admitted, but the judge stated she would not consider the unverified information that the appellant alleged was in the records. The hearing judge stated that it would be given "the weight it's due."

Dr. Guzman-Hosta went on to testify that the statements in the document regarding an alleged bomb threat had assisted her in forming her opinion on the risk the appellant's release would present. She stated that she was concerned about the allegations of a bomb threat and an assessment that he was extremely paranoid and agitated at the time he was admitted to Arbour Hospital. She explained that those two pieces of information, "put in the context of the other information," had made her concerned about the risk of harm to others D.F. presented.

Dr. Guzman-Hosta also opined that hospitalization at WRCH was the least restrictive alternative for D.F. because he refused to utilize outpatient care or to meet with his social worker, and had stated that he was not interested in receiving DMH services.

On cross-examination, Dr. Guzman-Hosta testified that she did not receive any records from the clinic where D.F. had allegedly made a bomb threat. She further testified that D.F.'s hospitalization at WRCH was unremarkable for violence; he had not had any "behavioral incidents"; nurses described him as "quiet and low profile"; and he was not a "management issue." Dr. Guzman-Hosta further acknowledged that the alleged offenses involving the appellant's sister occurred more than fifteen

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months prior to the WRCH hospitalization, and that although the appellant had been homeless since his initial arrest in May, 2017 when he attempted to collect his belongings from his sister's home, no additional criminal charges had been brought against him. She understood that federal authorities had been notified about the alleged bomb threat and had come to assess the situation, but did not pursue any charges against D.F. and that the D.F. was released from Arbour Hospital just days after the alleged threat. Dr. Guzman-Hosta acknowledged that when clinicians at Arbour Hospital confronted D.F. about the alleged bomb threat, he denied the accusation.

On redirect examination, Dr. Guzman-Hosta added that she did not have any records from the clinic where the alleged threat occurred because she did not have a signed release from the appellant and was unable to access those records.

Finally, in her closing argument, the petitioner's attorney referenced the Arbour Hospital record and asserted that Dr. Guzman-Hosta believed that the appellant was a "continued threat to his sister."

At the conclusion of the hearing, the judge took the matter under advisement and subsequently issued the order of commitment under G.L. c. 123, § 16(b).

Discussion. We begin by addressing the appellant's objections to the introduction of a page from the records the petitioner received from Arbour Hospital and the hearsay statements on that page. On this subject, it is important to note at the outset that the law of evidence applies in civil commitment hearings conducted pursuant to G.L. c. 123, §§ 7 and 8. Mass. G. Evid. § 1117(b) (2018).

Under Massachusetts law, in order for a record kept by a hospital to be admitted in evidence in a judicial proceeding, pursuant to G.L. c. 233, § 79, the record must "be certified by the affidavit of the person in custody thereof to be a true and complete record." Similarly, under G.L. c. 233, § 79G, "hospital medical records subscribed and sworn to under the penalties of perjury by the . . . authorized agent of a hospital" can be introduced if at least ten days' written notice of the intention to introduce the records is provided. "The admissibility of statements in medical records is limited by the provisions in G.L. c. 233 relating to hospital records, including §§ 79 and 79G." Commonwealth v. Irene, 462 Mass. 600, 616 (2012).

Neither of these statutes were complied with in this case. WRCH, however, relies on § 1117(f) of the Guide for the proposition that G.L. c. 233, §§ 79 and 79G do not apply to civil commitment hearings. That section states that "[r]ecords kept by hospitals pursuant to G.L. c. 111, § 70, and by mental health facilities pursuant to G.L. c. 123, § 36, shall be admissible as evidence if such records relate to the treatment and medical history of such cases." The petitioner's reliance on this language is misplaced, as this provision mirrors the language of both G.L. c. 233, §§ 79 and 79G and simply removes the first layer of hearsay -- the failure of the writer to appear and testify. It does not relieve the proponent of a hospital record or a record of a mental health facility from the obligation to comply with the procedural requirements for the admission of these records in evidence.

In short, although short statutorily mandated time frames may arguably make compliance with G.L. c.233, §§ 79 and 79G difficult in cases such as this, the law does not require a petitioner in a civil commitment proceeding to do the impossible. An expert can simply state her opinion, without stating facts or data that have not been admitted in evidence, as long as the facts or data relied upon would be

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admissible with the proper witness or foundation. As explained in Commonwealth v. Piantedosi, 478 Mass. 536 (2017), this rule of evidence prevents a party from introducing inadmissible hearsay on direct examination, and allows the party's expert to explain the factual basis for her opinion if the opposing party opens the door on cross-examination. Id. at 543-544.

For the above reasons, we find that the Arbour Hospital record should not have been admitted in evidence and its expert should not have been allowed to testify on direct examination about the allegation of a purported bomb threat.

Because we find that it was error to admit the Arbour Hospital document in evidence and to allow the petitioner's expert to testify to its contents on direct examination, we must consider whether the introduction of this evidence, after an objection by the appellant, created prejudice to D.F. In doing so, we must examine whether there was sufficient evidence to support the commitment order without the admission of this record or any testimony about its contents.

We are guided here by Matter of G.P., 473 Mass. 112 (2015). Matter of G.P. concerned a civil commitment under G.L. c. 123, § 35. The principles set out in that decision, however, are applicable to commitments under G.L. c. 123, § 16(b), because the three-prong definition of "likelihood of serious harm," see G.L. c. 123, § 1, applies to G.L. c. 123, § 8(a), which is the standard for this type of commitment. See Matter of R.H., 2019 Mass. App. Div. 16, 18.

In this case, the petitioner sought commitment under the second prong of G.L. c. 123, § 1. Under the second prong, the "likelihood of serious harm" is defined as "a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." Id. As to likelihood of serious harm to others, "the Legislature's use of the word 'homicidal,' and phrases such as 'violent behavior' and 'serious physical harm' signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Matter of G.P., supra at 126.

Imminence of the risk of serious harm an individual presents is an important consideration in this regard, as the farther removed the anticipated threat is, the more the reliability of the forecasted threat diminishes. Imminent means "the harm will materialize in the reasonably short term -- in days or weeks rather than months." Id. at 128. This threat must be proved beyond a reasonable doubt, as a person committed under G.L. c. 123, §§ 7 and 8 can be subject to petitions for recommitment indefinitely.

Evidence of past violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm is required to establish a substantial risk of serious physical harm to others. With regard to the temporal relationship between a respondent's past violent behavior and the assessment of his risk of harm to others, there is no "establish[ed] . . . set of definite temporal boundaries," id. at 125, but, as a matter of common sense, the more recent the act, the more weight it carries in the assessment. Id. at 126.

In our review of matters such as this, we do not determine whether the evidence compelled an order of commitment. We look to see whether there was sufficient competent evidence to support the order. After reviewing the record below, and excluding evidence of a purported report of a bomb threat, we find the evidence was

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sufficient for the judge to find that the petitioner had proved, beyond a reasonable doubt, the criteria for commitment in this case.

D.F. stipulated that he had been charged with two counts of assault and battery on his sister, a household or family member, as well as a violation of an abuse prevention order secured by his sister. As noted above, the judge heard testimony that the appellant's current symptoms included paranoia, persecutory paranoid beliefs that were delusional, and disorganized thoughts. She also heard that D.F.'s sister, the named victim in the criminal charges, was one of the individuals about whom D.F. expressed paranoid delusions. There was expert testimony that D.F. was agitated, irritable, anxious, angry, and constantly pacing, and responsive secondary only to his paranoid internal stimuli. There was also expert testimony that D.F. was not engaging with peers or staff and that he lacked insight into his delusional thought process; that he had a gross impairment when it came to recognizing reality; and that he believed people were out to get him.

Even though the criminal cases were based on allegations of violent acts committed fifteen months before the commitment hearing, the totality of the evidence, including the appellant's behavior, his continuing symptoms, his ongoing paranoid persecutory delusions concerning his sister, and his inability to recognize reality or engage with treatment providers, were sufficient for the judge to determine that without treatment D.F. posed a serious risk of harm to others due to his mental illness and that there was no less restrictive alternative to hospitalization available at the time of the hearing. Consequently, we find that the introduction of the Arbour Hospital record was not reversible error.

Finally, we have considered the appellant's assertion that the petitioner's misstatement of the evidence on a central issue in the case during closing argument created a substantial risk of a miscarriage of justice. Section 1113(b)(3)(A) of the Mass. G. Evid. provides that a misstatement of evidence occurs when statements are made that go beyond inferences that might reasonably be drawn from the evidence. Commonwealth v. Coren, 437 Mass. 723, 731 (2002).

In light of our determination that the evidence was sufficient to find that D.F. posed a risk of serious harm under the second prong of G.L. c. 123, § 1, it was not unreasonable for the petitioner to argue that its expert witness felt that D.F. was a "continued threat to his sister." We have determined that the petitioner's statement did not create a substantial risk of a miscarriage of justice.

In summary, we find it was error to admit the Arbour Hospital record, but the remaining evidence was sufficient to support the decision to issue an order of commitment. The judge's ruling was not reversible error. We also find that the petitioner's closing argument did not create a substantial risk of a miscarriage of justice. For these reasons, the order of civil commitment issued pursuant to G.L. c. 123, § 16(b) in this case is affirmed.