2020 Mass. App. Div. 23

January 11, 2019 - February 21, 2020

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., McGill & D'Angelo, JJ. [Note 1]

No brief filed for the petitioner.

Melanie S. Lewis for the respondent.

D'ANGELO, J. This appeal arises from the civil commitment of a person suffering from mental illness pursuant to G.L. c. 123, §§ 7 and 8. The commitment occurred on July 12, 2017. [Note 2]

The grounds for appeal are that: (1) trial counsel provided ineffective assistance and a substantial risk of a miscarriage of justice occurred when inadmissible hearsay was admitted into evidence to explain the basis of the expert's opinion during direct examination without objection; (2) the petitioner-hospital failed to present sufficient evidence of a very substantial risk of physical impairment or injury due to judgment so affected that one is unable to protect oneself in the community; (3) trial counsel was ineffective for not moving for a directed verdict after the close of the petitioner's case where the petitioner failed to prove that there were no less restrictive alternatives to commitment in the facility; (4) the judge failed to qualify an expert properly during the G.L. c. 123, § 8B hearing; (5) the judge failed to make a sua sponte inquiry as to whether or not the Lamb warning was given and whether the respondent knowingly and voluntarily waived her privilege; and (6) the judge failed to make findings relative to the appellant's specific preferences regarding substituted judgement.

Background. The petitioner in this matter was UMass Psychiatric Treatment and Recovery Center ("petitioner"). Doctor Nawras Shukair ("Shukair"), a board certified psychiatrist, testified on behalf of the petitioner. Appellant is a fifty-one year old female with a high school education who lives in an apartment by herself.

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Prior to admittance to the hospital, she had an outpatient nurse who managed her health and medications, but the appellant terminated her because she felt the nurse was "more interested in [appellant's] plants than [appellant]." During this time (approximately one month), appellant failed to take her medications, and reported that her landlady "unjustifi[ably]" called the police on her, which led to her hospitalization on June 26, 2017. Based on Dr. Shukair's observations, examinations, review, and consultations, he formed the opinion that K.J. was suffering from a mental illness, specifically, bipolar disorder. Bipolar disorder is a substantial disorder of thought and mood. He opined that the bipolar disorder was causing gross impairment of K.J.'s behavior and judgment. When the petitioner's attorney asked him to testify as to the basis of these opinions, K.J.'s attorney objected, and the objection was sustained.

Petitioner's attorney then rephrased the question posed to Dr. Shukair about the conversations he himself had with K.J. regarding how she had come to be admitted to the hospital. Dr. Shukair testified that the appellant had reported trouble sleeping, had been hearing voices, felt unsafe, and was getting increasingly agitated. Dr. Shukair further testified, without objection, to the contents of K.J.'s medical files that were not properly admitted into evidence. Specifically, he testified that K.J.'s medical files indicated K.J. had to be escorted to the emergency room by police on June 26, 2017; that she had reported to the medical staff that she had been "blessed with super powers"; and that she had been hearing the voice of her abusive ex-husband, which made her feel unsafe.

Upon initial examination, Dr. Shukair testified that K.J. appeared disorganized, grandiose, and delusional, and was unable to hold a linear conversation. Dr. Shukair further stated K.J. needed multiple restraints for safety during her stay because she was combative with staff and needed one-to-one status for the majority of her two-week stay. Dr. Shukair testified, however, that during the entirety of her stay, the appellant fed, dressed, and bathed herself without the assistance of staff.

Dr. Shukair stated that K.J. had been refusing to take any medication, but in the past week prior to the commitment hearing, had improved and exhibited fewer delusions and less paranoia. Dr. Shukair believed the appellant no longer posed a physical threat of harm to others. Additionally, Dr. Shukair stated that a month prior to her recent hospitalization, the appellant had been discharged from the facility in a fairly stable condition. After firing her visiting nurse and failing to follow up with outpatient providers, however, K.J. seemed to grow increasingly unstable. K.J. has two supportive daughters that live close by, but, despite this, Dr. Shukair testified that due to K.J.'s failure to seek outpatient support, to recognize that she suffers from a mental illness, to take her medication, and because of her various medical illnesses, she is at risk of serious harm as defined by G.L. c. 123, § 1, prong 3.

Appellant now argues that Dr. Shukair's testimony was inadmissible hearsay in that he testified to other doctors' medical diagnoses, their orders for treatment, and appellant's compliance or noncompliance with their alleged treatment orders. The appellant asserts that Dr. Shukair was not qualified to provide expert testimony based on these opinions. Furthermore, appellant asserts there was no testimony to substantiate the harm appellant would face in regard to her decisions about her medical diagnoses. Appellant argues the civil commitment under G.L. c. 123, §§ 7 and 8 was unlawful because without the inadmissible expert testimony, petitioner

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would have failed to prove beyond a reasonable doubt K.J. posed a threat of serious harm as defined by G.L. c. 123, § 1, prong 3, and no less restrictive alternative was available to her.

Discussion. We find that the two-part inquiry established in Strickland v. Washington, 466 U.S. 668 (1984), is the proper basis to begin the analysis of appellant's claim. The two-part inquiry requires appellant to carry the burden of proving that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) as a result of that shortcoming by counsel, prejudice resulted. [Note 3] Id. at 687-688. Indeed, most errors made by counsel are harmless, and it is not enough that appellant prove the error had some effect on the outcome, but rather without the error there is a reasonable probability the result would have been different. Such a probability is established when the evidence of error is "sufficient to undermine confidence in the outcome." Id. at 694.

The substance of the legal inquiry, then, is not whether an unreasonable error of counsel occurred, but the magnitude of alleged error and the influence it had in reaching the end result. Thus, a failure of showing prong 1 or 2 is sufficient to defeat an ineffective assistance of counsel claim. Id. at 700. Accordingly, Strickland held that "[a]n error by counsel, even if professionally unreasonable, [will] not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. Prejudice in the result must be shown. Id. at 692. See also Commonwealth v. Saferian, 366 Mass. 89 (1974). As such, a court need not decide the question of inadequacy of counsel prior to evaluating prejudice if it is easier to dispose of an ineffective assistance of counsel claim on the ground that no sufficient prejudice tainted the result. Id. at 700.

The Supreme Judicial Court has also recognized this two-part inquiry in Commonwealth v. Saferian, 366 Mass. 89 (1974). The Court held that the proper analysis of an ineffective assistance of counsel claim is: (1) a discerning examination and appraisal of specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel falling measurably below that which might be expected from an ordinary fallible lawyer; and (2) if so, whether it has likely deprived the defendant of an otherwise substantial ground of defense. Id. at 96. For purposes of our analysis, we recognize that counsel's failure to object to the improper admission of hearsay in evidence during direct testimony of the expert witness does indeed amount to something short of effective representation. However, serious shortcomings of counsel alone do not satisfy the burden warranting relief. The appellant bears the burden of showing that "better work might have accomplished something material" for her. Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

After careful analysis, we are not persuaded that better work by counsel would have established something material for appellant, or that she was deprived of a substantial ground of defense. Therefore, we decline to focus our analysis on whether the conduct of counsel for appellant fell below the "reasonable standard" of the ordinary fallible attorney. Instead, we assume that is the case and address the prejudice

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requirement, which appellant has failed to substantiate adequately. [Note 4]

We first address the magnitude of impact the inadmissible hearsay by the expert witness rendered on the result, and whether it was capable of prejudicing the result. We find Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986), instructive on this issue. Department of Youth Servs. expanded the permissible basis of expert testimony to "facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." [Note 5] Id. at 531. However, while an expert witness may formulate an opinion from these facts or data, he or she may not testify to the contents of that information on direct examination. Id. But this does not preclude the opposing party on cross-examination, as a matter of trial strategy, from eliciting the facts or data not introduced into evidence from the expert witness that aided the expert in forming the opinion. Commonwealth v. Barbosa, 457 Mass. 773, 784 (2010). See also Commonwealth v. Markvart, 437 Mass. 331, 338 (2002). Once the door is opened by the opposing party during cross-examination, the expert witness may introduce details surrounding the source of the expert's opinion on redirect examination into evidence. [Note 6] Commonwealth v. Chappell, 473 Mass. 191, 203-204 (2015). See Mass. G. Evid. § 705 (2017).

We therefore acknowledge that counsel could have objected more than once during direct examination, but find the appellant has not carried the burden of proving prejudice. The evidence provided by the trial record during cross-examination reflects that such testimony would have been correctly admitted into evidence on redirect examination by counsel for the hospital under the rules of evidence. During cross-examination, counsel for appellant questioned the expert witness on whether appellant had "inform[ed] the hospital staff of the various medications that she'[d] been taking for [her] assorted medical problems." Consequently, the door was opened by counsel for appellant, allowing details surrounding the source of Dr.

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Shukair's opinion to be properly admitted into evidence on redirect examination. As a result, Dr. Shukair's testimony in regard to how appellant's impaired judgment (due to mental illness) impacted her medical conditions and ability to care for herself would have been properly admitted to the record. We find this persuasive in establishing that better work by counsel would not have elicited a more favorable result for appellant, and the hearing resulted in a just outcome.

Although Matter of G.P., 473 Mass. 112 (2015), involved a civil commitment under G.L. c. 123, § 35, its holding is equally applicable to commitments under G.L. c. 123, §§ 7 and 8, because the three-prong definition of "likelihood of serious harm," see G.L. c. 123, § 1, is applicable to each type of commitment. See Matter of R.H., 2019 Mass. App. Div. 16, 18. In this case, the third prong is the issue.

Under the third prong, the "likelihood of serious harm" is defined as "a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." G.L. c. 123, § 1. On the one hand, mental illness, by itself, is insufficient; on the other hand, it is not required that a commitment order be based upon "proof that an individual is unable to sustain himself or herself even marginally in society." Matter of G.P., supra at 128. Rather, as stated in Matter of G.P., the harm is "'physical impairment or injury' to the respondent, and the 'very substantial risk' of such harm is to be shown by evidence that: (1) the respondent's judgment is so adversely affected by [mental illness] that the respondent cannot protect himself or herself from physical harm; and (2) the respondent's community does not include any reasonably available external source of adequate protection. G.L. c. 123, § 1." Id. at 128-129.

"The focus of the evidence, then, must be on the respondent's degree of impaired judgment due to [mental illness]; the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by [mental illness], or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks. Finally, because a 'very substantial' risk of harm must be shown in connection with this third prong, G.L. c. 123, § 1, the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

In Matter of S.J., 2018 Mass. App. Div. 128, evidence of prior hospitalizations, subsequent rapid decompensations, and risk of failing to take care of an existing medical condition provided sufficient grounds to show that respondent posed a very substantial risk of physical impairment or injury from respondent's inability to protect himself in the community. Id. at 130. In the case at bar, the appellant admitted to multiple medical illnesses in her testimony. Appellant expressly acknowledged her refusal to take medications relating to both her medical illnesses and mental illnesses, and continued to deny expressly that she suffers from a mental illness. Appellant further freely admitted her refusal to seek support in the community via outside resources because she did not believe such outside support was necessary. The refusal to utilize such outpatient support services is evidenced by appellant's firing of her visiting nurse, and her refusal to hire someone else to help her manage

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her agitations and delusions if released.

Dr. Shukair provided credible expert testimony that these support systems were crucial in appellant's improvement in her psychosis and delusions during the two weeks leading up to the commitment hearing, and because of the hospital support system she no longer posed a danger to others.

Appellant's refusal to seek and utilize outside support systems that would allow her to assimilate, successfully and safely, in the community, a less restrictive setting, demonstrates the evidence was sufficient that commitment was the only viable option for appellant. There is no reasonable probability that absent the errors of counsel the fact finder would have had a reasonable doubt as to whether respondent posed a very substantial risk of physical injury or impairment to herself and a less restrictive alternative was safely available to her.

While mental illness alone may not warrant a commitment order, on the facts presented here, it is a common sense inference that the appellant's inability to recognize the seriousness of these conditions (medical and mental) and address them appropriately represented an imminent threat of serious harm to appellant. The appellant lives in seclusion, refuses to accept outside aid, and quickly became unstable, agitated, and delusional after refusing consistent community support. The evidence supported a finding that without commitment, the circumstances that led to appellant's hospitalization simply would have manifested a third time due to appellant's refusal to take preventative measures. Without such supports and medications in place, there was sufficient evidence to support a determination that not only would appellant pose a very substantial risk to others in quickly reverting back to an agitated and delusional state of psychosis, but her condition would also pose a very substantial threat to her of serious medical complications due to her compromised and grandiose thinking.

In reviewing the record, we find there is nothing to suggest that, absent counsel's error, the fact finder would have issued a different result more favorable to appellant. The essence of the Sixth Amendment right to representation is the right to a fair and just result that can be relied upon. After review of the record, we find no violation of that right, and we have determined that the argument that the shortcoming of counsel led to a prejudiced result is without merit.

After the commitment order was entered, the court moved to the hearing as to substituted judgment for treatment. The petitioner called Dr. Shukair as a witness. Previously, during the commitment portion of the proceedings, appellant's counsel stipulated to Dr. Shukair's qualifications. Appellant's counsel did not contest Dr. Shukair's qualifications during the G.L. c. 123, § 8B portion of the proceedings. Nor was there any objection to the doctor providing expert testimony. After review of the record of the § 8B hearing, we find no error, and we have determined that the argument that the shortcoming of counsel led to a prejudiced result is without merit.

Appellant also claims it was error to allow the psychiatrist to testify to privileged communications during the hearing as to substituted judgment for treatment. Appellant's counsel did not object to any of the communications testified to by the doctor during this hearing and, therefore, the appellant argues that the failure of any introduction of a Lamb warning caused a substantial risk of a miscarriage of justice. See Commonwealth v. Lamb, 365 Mass. 265 (1974). In this regard, the respondent correctly points out that pursuant to the plain language of G.L. c. 123, § 8B(h), the patient-psychotherapist privilege applies to hearings of this type. In addition, in

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Matter of Laura L., 54 Mass. App. Ct. 853 (2002), the Appeals Court indicated that if there is no evidence of a waiver of the privilege, and there is evidence that a respondent may not have understood a Lamb warning, then a judge should make a sua sponte inquiry in this regard. However, the respondent testified during both the commitment portion of the hearing and during the hearing as to substituted judgment for treatment. After her testimony, both as to her belief that she was not suffering from a mental illness and her belief that she did not need any medication, it is doubtful in these circumstances that the judge needed to make a sua sponte inquiry. The testimony of the appellant herself, along with the nonprivileged evidence provided by the petitioner, was enough to support the judge's finding of substituted judgment. Therefore, in the circumstances of this case, we do not find that a substantial risk of a miscarriage of justice was created. [Note 7]

Appellant further argues that the judge's extensive written findings were clearly erroneous because she did "not give proper weight to K.J.'s expressed preferences." Appellant ignores the fact that the judge in her findings specifically referenced K.J.'s preferences, but did not accept them because she believed that they were not "informed due to her mental illness." There is nothing in the record that would lead us to overturn the judge's carefully considered and worded findings.

For the foregoing reasons, the trial court's orders of commitment and treatment are affirmed.


[Note 1] The Honorable Paul L. McGill participated in the review of this case but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] Although the respondent's commitment order has ended, this appeal is not moot. The Supreme Judicial Court has recently stated, "Appeals from expired or terminated commitment . . . orders . . ., like appeals from expired harassment prevention orders (G.L. c. 258E) or expired abuse prevention orders (G.L. c. 209A), 'should not be dismissed as moot where the parties have a continuing interest in the case.' At the very least, a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued . . .'" (citations omitted). Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).

[Note 3] "[B]ut for" counsel's errors, the result of the proceeding would have been different. Strickland, supra at 694. See also Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

[Note 4] The preferred method for raising a claim of ineffective assistance of counsel is through a motion for new trial. The recommended course for raising an ineffectiveness claim is making a motion for a new trial accompanied by affidavits, with the potential for an evidentiary hearing and findings. "An ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).

[Note 5] The petitioner could have properly introduced all records on direct pursuant to G.L. c. 233, § 79. Hospitals might be well advised to admit such records at all G.L. c. 123, §§ 7 and 8 hearings. (The records could perhaps be admitted on a thumb drive so that they could all be made "part of the record" and available for appellate review.) In addition, if there was a discrete part of the hospital record to which the opponent objected, the issue could be raised through a motion in limine and decided by the judge.

[Note 6] See generally Commonwealth v. Garcia, 470 Mass. 24, 36 (2014), quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978) (purpose of redirect examination is to "explain or rebut adverse testimony or inferences developed during cross-examination").

[Note 7] In future cases, if the petitioner intends on introducing any evidence regarding statements of the patient during the hearing as to substituted judgment for treatment, the issue of the giving of the § 8B(h) warning and the waiver should be addressed. If it is not addressed by either party, judges should inquire sua sponte whether the warnings were provided, understood, and waived by the patient.