IN THE MATTER OF J.R.

D'ANGELO, J. This appeal arises from a civil commitment of J.R. pursuant to G.L. c. 123, § 16(c). The grounds for the appeal are that: (1) the trial court erred in denying J.R.'s motion for a required finding based on clear evidence of J.R.'s stabilization and lack of harmful behavior and where the Commonwealth's expert and only witness opined that J.R. did not meet the criteria for civil commitment; (2) the evidence was legally insufficient to prove beyond a reasonable doubt that failure to hospitalize J.R. would create a likelihood of serious harm due to a mental illness, given the largely undisputed evidence of J.R's psychiatric stabilization, the lack of any clear, recent evidence to support an inference of a potential for imminent harm, as evidenced by the testimony of the various witnesses and opinions (if credited) of J.R.'s expert; and (3) the evidence was legally insufficient to prove beyond a reasonable doubt that continued commitment was the least restrictive alternative, where J.R. had a highly supportive placement plan available.

Background. On May 10, 1999, J.R. was charged in the Worcester Superior Court with crimes involving the shooting of a police officer. The officer tragically died from his injuries, and J.R. was charged with second degree murder for his homicide. After a lengthy period during which he was not competent to stand trial, J.R. was found competent to stand trial in 2009, and he was found not guilty by reason of insanity after a trial in 2009. Since that time, J.R. has been subject to orders of commitment pursuant to G.L. c. 123, §§ 16(b) and (c) to Bridgewater State Hospital and, since 2013, to the Worcester Recovery Center and Hospital ("WRCH").

In April of 2020, WRCH determined that J.R. no longer needed to be hospitalized and notified the District Attorney (hereinafter, "the Commonwealth"). On May 27, 2020, the Commonwealth filed a petition pursuant to G.L. c. 123, § 16(c) to recommit J.R. to WRCH and thereby prevent discharge. The Commonwealth alleged that J.R. "is mentally ill by reason of a 'substantial disorder,' . . . namely Schizophrenia, paranoid type" and that due to this disorder, there is a likelihood of serious harm, specifically, "a substantial risk of physical harm to other persons, which has been manifested by homicidal or other violent behavior, or by others being placed in reasonable fear of violent behavior and serious physical harm to them."

The hearing on the civil commitment petition took place over two days, on June 10 and June 26, 2020. J.R. has appealed the allowance of the petition.

Relevant facts. In reviewing the sufficiency of the evidence, the Appellate Division

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"accept[s] the findings of fact made by the hearing judge unless clearly erroneous; however, [the Division] review[s] without deference whether the legal standard for civil commitment was met." Matter of J.P., 486 Mass. 117, 118 (2020).

The Commonwealth's case-in-chief consisted of a single expert witness, Dr. Frank DiCataldo ("DiCataldo"), his report, and his curriculum vitae. The evidence submitted was that J.R. reportedly experienced his first psychotic episode in his mid-twenties, experiencing auditory hallucinations. He was involuntarily committed for three days, after which he was released with a recommendation for continued outpatient treatment. J.R. did not follow through with any treatment. J.R. steadily descended into symptoms of increasingly severe psychosis that was described as indicative of schizophrenia. J.R.'s most prominent symptoms were paranoid delusions, auditory hallucinations, and disorganized thinking. His core paranoid fear at the time of the homicide went beyond the delusion that others wanted to sexually assault him, extending to a more basic existential paranoid fear that others conspired to change his sexual orientation and his basic sexual identity.

In addition to the tragic killing of a police officer in 1999, J.R. also had prior allegations of assault and battery in 1998 for an incident involving a twenty year old woman, a 1994 charge of assault and battery with a dangerous weapon, a 1993 charge of carrying a dangerous weapon, and "a history of school-based fighting with peers resulting in school suspensions and other disciplinary sanctions." J.R. also "has a history of non-violent criminal[ity] consisting of group-based stealing and property destruction while in the company of antisocial peers."

With regard to treatment and probation history, the Commonwealth's expert noted that the respondent "has a history of probation violation and treat[ment] non-compliance in the community." The doctor also noted, with regard to the respondent's interest, possession, and use of firearms, that the respondent "has a long family history of firearm interest and possession. He was in the military where he was trained in the use of firearms and regularly carried a firearm." The gun used to kill the police officer was a weapon he stole from his father from the family home.

At the time of Dr. DiCataldo's interview of J.R., some twenty-one years after the homicide, J.R. continued to experience auditory hallucinations, often a female voice calling his name. J.R. told Dr. DiCataldo that this occurs once or twice a month, and that he "hears the voice of an identified woman" calling his name or "request[ing] he perform mundane behaviors, like brush his teeth."

J.R. reported to the Commonwealth's expert that if released, he would first live in a group home and spend his days at a Department of Mental Health clubhouse "where he will participate in therapeutic groups and hopes to be employed as a worker." "His long-term goal is to live independently and to work," he reported, and "to be involved in a committed intimate relationship in the future."

Dr. DiCataldo assessed the respondent, in part, with the use of the "Personality Assessment Inventory" ("PAI"), "a 344-itemed self-report inventory." The doctor noted that J.R. posed a low risk for future violence -- his "risk rating indicates that in the community he will require routine management strategies, including at the very least, monitoring for compliance with medication and regular and random screenings for abstinence from substance use." Dr. DiCataldo opined that the respondent does not pose a substantial risk of harm to others by reason of mental illness and does

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not require continued care and treatment in an inpatient setting. As an aftercare plan, Dr. DiCataldo recommended that the respondent be monitored and tested for substance use relapse and that he participate in support groups like Alcoholics Anonymous and/or Dual Recovery Anonymous.

Dr. DiCataldo noted J.R.'s gains in treatment, but he opined that "[w]hat remains less developed is his insight about how his past insecurity about his sexuality as an adolescent and a young man informed the themes of his delusions and hallucinations at the time of his commitment offense." "These issues," the doctor noted, "do not appear in any meaningful way in his mental health records, the Independent Forensic Risk Assessments, or in his [relapse prevention plan]." Dr. DiCataldo believed that if released, the respondent's support network would have the chance to detect changes in his mental status if they occurred.

J.R. has participated in twice daily independent grounds passes since February, 2018. He has begun the process of preparing for discharge to the community that includes supervised visits to a community residence that has been identified for him, but because of COVID-19 his visits were suspended in March, 2020. He was planning to have a few overnight stays at the program, hoping to "have that data for the court," but was not been able to achieve this.

According to the Commonwealth's expert's opinion, if the respondent's mental health deteriorated while he was in the community, it would likely unfold over weeks or months, allowing time for intervention. Dr. DiCataldo acknowledged, however, that the respondent's compliance with his recommendations, his staying in the group home environment, and his accepting any other services would all be fully voluntary if the respondent was released from the WRCH. He further stated that, twenty years earlier, prior to entering the hospital, the respondent "had opportunities for community treatment in the past and discontinued them. So it's a concern, I think, to watch for."

At the time of the hearing, substantial evidence was presented that J.R. had achieved long-term psychiatric stability and insight into his mental illness and need for treatment (to include continued compliance with medication). This evidence in support of J.R. came from multiple witnesses who had significant contact and interaction with him in the years prior to the hearing. For example, Crystal Hollenkamp, LICSW ("Hollenkamp"), testified that she had worked with J.R. for seven years. She testified as to J.R.'s successes to include his (1) thriving in the demanding Dialectical Behavior Therapy ("DBT") program, even serving as a group leader, (2) serving on the patient advocacy council, (3) serving as a speaker at various conferences, and (4) providing peer support training. Hollenkamp also had firsthand knowledge of how well J.R. had done with his independent, full-day passes, and how he managed setbacks out of his control, for instance, COVID-19 related. According to Hollenkamp, J.R. showed admirable coping mechanisms and resilience considering these challenging circumstances.

Dr. John Terry ("Terry") offered further support for J.R.'s recovery and stability. While Dr. Terry first encountered J.R. in the DBT program, he became his treating therapist, meeting weekly, from 2015 through the time of the hearing. In forming his opinions concerning J.R., Dr. Terry not only relied on his interactions with J.R. but also reviewed J.R.'s records, and he regularly consulted with members of the hospital as to J.R. In summary, Dr. Terry placed clinical significance on factors to include

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his observations/conclusions of J.R. (1) being "totally committed" to remaining on his medication, (2) having a high-level of insight into his mental illness, and further had committed to a relapse prevention plan, and (3) committing to his recovery and treatment as shown by his diligent approach in the hospital and insight into his preparedness for release. Finally, Dr. Terry testified as to the significance to J.R's recovery that he had expressed genuine sadness, remorse, and regret for committing the index offense.

Finally, Dr. Mark Rudolph ("Rudolph"), retained by J.R. to provide an independent opinion as to whether further hospitalization was necessary, also had an extensive history of involvement with J.R., to include serving as his treating psychiatrist from 2005 through 2007. Dr. Rudolph emphasized the extent to which he has observed over the years (1) the improvement in J.R's mental illness, (2) J.R.'s remarkable commitment to treatment and recovery, and (3) J.R.'s insight into his mental illness and treatment (including medication), and relapse prevention.

This Appellate Division does not adopt any witnesses' opinion as to the legal criteria lacking to commit J.R. contrary to the finding of the trial court. We do, however, emphasize the observations the witnesses presented of J.R., and their respective bases of knowledge from which they interpreted the various observations and which were uncontested.

Analysis. When reviewing a motion for a required finding for insufficiency of the evidence, an appellate court must view the evidence in light most favorable to the petitioner to determine whether that evidence is sufficient to satisfy a rational trier of fact that each "element" could be found beyond a reasonable doubt. Commonwealth v. Lopez, 484 Mass. 211, 215 (2020). It is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element for commitment; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Id. at 216. Further, although the fact finder is permitted to draw rational inferences from the evidence, no essential element may rest in surmise, conjecture, or guesswork. Id.

The respondent argues that the hearing judge erred in failing to grant his motion for required finding. We disagree. "'[T]he law "does not give the opinion of experts . . . the benefit of conclusiveness, even if there is no contrary opinion introduced at the trial."' Commonwealth v. DelVerde, 401 Mass. 447, 450-452 (1998), quoting Commonwealth v. Lunde, 390 Mass. 42, 47 (1983)." Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020). The hearing judge did not err in denying the respondent's motion for a required finding.

The respondent next argues that, at the close of all the evidence, the record of undisputed evidence was legally insufficient to prove beyond a reasonable doubt that failure to hospitalize J.R. would create a likelihood of serious harm due to a mental illness. We agree. It is unconstitutional to confine a non-dangerous person against his or her will merely to provide treatment. "That a person may benefit from mental health treatment is not alone a sufficient basis to restrict his or her liberty." Garcia v. Commonwealth, 487 Mass. 97, 104 (2021). "Although the United States Supreme Court has noted that a not guilty by reason of insanity verdict certainly indicates dangerousness, . . . a not guilty by reason of insanity verdict is backward-looking, focusing on one moment in the past, while commitment requires a judgment as to

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the present and future. Thus, the constitutional basis to detain an insanity acquittee evaporates when he or she is no longer dangerous"(citations and quotations omitted). Id.

For an order of continued commitment to be issued, the petitioner is required to prove beyond a reasonable doubt that (1) the respondent is mentally ill; [Note 1] (2) that his discharge from the facility will create a likelihood of serious harm; and (3) there is no less restrictive alternative to hospitalization. Matter of J.P., supra at 118; Matter of J.D., supra at 18; Matter of C.O., 2020 Mass. App. Div. __ (No. 19-ADMH-72WE, issued June 26, 2020). Relevant to the Commonwealth's petition, Chapter 123 defines "likelihood of serious harm" 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." G.L. c. 123, § 1. The harm must also be shown to be imminent, that is, it will materialize "in days or weeks rather than in months." Matter of J.P., supra at 119, quoting Matter of G.P., 473 Mass. 112, 128 (2015). The Supreme Judicial Court has recognized that "in the degree that the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of 'imminence' seems justified." Matter of G.P., supra, quoting Commonwealth v. Nassar, 380 Mass. 908, 917 (1980).

When considering the sufficiency of the evidence at the end of a defendant's case, the court must look at all the evidence presented. Deterioration occurs only where the defendant had presented "contrary evidence . . . so overwhelming that no rational jury could conclude that the defendant was guilty" (citation omitted). Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017). In the case at bar, however, the respondent's evidence actually bolstered the evidence presented by the Commonwealth in support of the respondent's discharge -- i.e., all of the respondent's witnesses presented a picture of a stable, compliant, model patient; a witness further opined that J.R. did not meet the criteria for civil commitment. "'The law "does not give the opinion of experts . . . the benefit of conclusiveness, even if there is no contrary opinion introduced at the trial."' Commonwealth v. DelVerde, 401 Mass. 447, 450-452 (1998), quoting Commonwealth v. Lunde, 390 Mass. 42, 47 (1983)." Matter of J.D., supra at 21. The hearing judge found that J.R. posed a "substantial risk of harm to other persons" because while his condition was acute -- and untreated -- he shot and killed a police officer. The court further found that J.R. continued to pose a substantial risk to others because if he failed to comply with his community treatment plan, he was "at risk for paranoid delusions and disturbing auditory hallucinations [that] heightens or potentiates his risk of violence." "When considering a challenge to the sufficiency of the evidence at an evidentiary hearing, we 'scrutinize without deference the propriety of the legal criteria employed by the [motion] judge and the manner in which those criteria were applied to the facts.' Matter of A.M., [ 94 Mass. App. Ct. 399, 401 (2018)], quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005)." Matter of a Minor, 484 Mass. 295, 302 (2020).

Commitment criteria must be considered at the time of the hearing. The hearing judge's concerns about what could occur once J.R. was released from the hospital were legitimate. If unmedicated and uncounseled, J.R. could become dangerous

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again. This concern is heightened because the offense -- the killing of a police officer -- was so serious and tragic. See Commonwealth v. Nassar, supra at 917. The Commonwealth, in its argument on respondent's motion for a required finding, asked the hearing judge to order that J.R. implement the recommendations of Dr. DiCataldo upon release. When pressed by the court, the Commonwealth conceded that the court had no authority to order J.R. to follow through with the recommendations if released. At that point, the Commonwealth argued that J.R. should not be released. [Note 2]

The evidence, both opinion and factual, presented during the hearing was overwhelming that J.R. was not at risk of committing any harm to anyone while medicated. The factual evidence supporting this conclusion was unrebutted and consistent. All of the witnesses agreed on this point. For at least the last seven years (since being transferred from Bridgewater State Hospital to WRCH), there were no violent episodes committed by J.R. In addition, Dr. DiCataldo reports that "[J.R.'s] clinical rating as posing a low risk for future violence are based on his having several empirically validated historical risk factors and few current clinical and risk management risk factors." J.R., at the time of the hearing at issue, had demonstrated insight into his illness and the need for medication, and furthermore, had been compliant with medication and treatment for a lengthy period of time. Contrast Matter of D.D., 2019 Mass. App. Div. 101 (court found continued structure of secure hospitalization necessary for respondent who suffered from persistent delusions with minimal insight into illness or need for medication or treatment).

Here, J.R. has been an engaged and active participant in individual and group treatment. Although J.R. has reported the presence of auditory hallucinations of a female voice that calls his name about once every two weeks, the symptom was not described as intense or subjectively distressing and he has been able to cope and manage the psychotic symptom. J.R. has participated in twice daily independent grounds passes since February, 2018 without incident. During passes off the hospital grounds, J.R. also regularly attended therapeutic programming in the community and independent passes into the community to have lunch with his father and for other activities. He also used several home passes to attend holiday celebrations with his family. There were no reported issues on any visits or off hospital property.

Even if the imminence requirement is lessened because J.R.'s index offense was a tragic killing, [Note 3] the anticipated harm must still have a real prospect of occurring and it cannot be speculative and it cannot be far into the future. See Matter of S.L.,

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2020 Mass. App. Div. 64, 65 (2020). All of the evidence presented, including by the Commonwealth, was that J.R. was not a risk to anyone unless (1) he stopped attending counseling; (2) he stopped taking his medication; and (3) his support network or counselors failed to notice changes in his mental status. Lastly, if any such symptoms did come into being, the witnesses speculated J.R. may have the potential to become violent again after "weeks to a few months."

As stated above, the Commonwealth had the burden to prove beyond a reasonable doubt that J.R.'s discharge from the hospital would create a likelihood of serious harm. Against this constellation of undisputed facts, we find that the evidence was legally insufficient to establish beyond a reasonable doubt that failure to hospitalize J.R. would create a likelihood of serious harm due to his mental illness. He had demonstrated seven years of stability and compliance while at WRCH. He is cognizant of his illness and accepting of treatment. He has not exhibited any violent tendencies while at WRCH or when released unsupervised in the community. There was no evidence of alcohol or illicit drug use during his time away from the facility. The clinicians who have had years of experience treating him describe him as a model patient, so trusted as to be allowed input on the hiring of hospital staff. While a judge is free to reject expert opinion, the court's independent conclusions regarding the likelihood of serious harm must be supported by sufficient evidence. In this extraordinary case, sufficient evidence to support the court's conclusion was lacking. After reviewing all the unrebutted evidence presented at the hearing, we conclude that the totality of the unrebutted evidence did not support a finding of a likelihood of serious harm to the high standard of proof beyond a reasonable doubt.

For these reasons, the commitment order is vacated. [Note 4]