IN THE MATTER OF D.P.

CUNIS, J. This appeal arises from orders of involuntary civil commitment and the administration of antipsychotic medication pursuant to G.L. c. 123, §§ 7, 8, and 8B. [Note 2] The respondent, D.P., puts forth two arguments on appeal. First, relying on Matter of a Minor, 484 Mass. 295, 306-308 (2020), he argues that the trial judge did not state on the record the evidentiary basis for his decision to commit D.P. Second, he argues that the petitioner's attorney argued in closing information that was not in evidence, resulting in a substantial risk of a miscarriage of justice when the judge decided to commit D.P., presumably based in part upon this nonevidence.

Dr. Gerard Hoffman ("Hoffman"), [Note 3] D.P.'s treating psychiatrist at Pembroke Hospital ("Pembroke"), was the sole witness for the petitioner. The petition for commitment named schizophrenia as D.P.'s mental illness and alleged only that she posed a "very substantial risk of physical impairment or injury" to herself if not hospitalized --the third of the so-called three prongs defining "likelihood of serious harm." G.L. c. 123, § 1. [Note 4]

Evidence at the G.L. c. 123, §§ 7 and 8 hearing was as follows. Dr. Hoffman testified that D.P. suffered from a mental illness that he characterized as "acute psychosis of paranoid ideas." Prior to her hospitalization at Pembroke, D.P. had worked security for many years at the Plymouth Power Station. She had a history of only one prior psychiatric hospitalization in 2017. Just prior to her commitment here, D.P. had been living alone in an apartment, but had been feeling "harassed"

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there, and believed that someone had come into her apartment and put holes in the walls. Dr. Hoffman was equivocal on whether D.P. had a place to stay after she left Pembroke. He testified that D.P. had a "supportive" father in the community and a primary care physician. There was no evidence that D.P. could not return to her apartment upon discharge from Pembroke, or that she did not have access to less restrictive medical care.

During their conversations, Dr. Hoffman described D.P.'s responses to his questions as germane but "vague." He also noted that she appeared at times to be talking to herself "under her breath" during these conversations. Other times when she was alone, she was observed to be talking out loud to herself. When Dr. Hoffman asked her about this, D.P. replied that she was "merely thinking out loud." By all accounts, D.P. was in good physical health, was well nourished, and did not have a history of drug or alcohol use.

Much of Dr. Hoffman's testimony focused on D.P.'s aggressive behavior while at Pembroke. He testified that D.P. was involved in multiple confrontations with staff and other patients. Many of these confrontations involved arguments and threats, and physically striking others but not causing serious harm to anyone. Dr. Hoffman read verbatim lengthy passages from hospital records, in which hospital staff described incidents where D.P. became enraged, yelling at and spitting upon others. On four occasions, staff had to restrain her, either physically or chemically. On other occasions, she had to be "redirected." Throughout her stay at Pembroke, D.P. never agreed to take medication.

D.P.'s attorney repeatedly objected to testimony about D.P.'s aggressive behavior while hospitalized, on grounds that it was relevant only to the second prong of the "likelihood of serious harm" definition [Note 5] -- which Pembroke did not plead in its petition -- and not to the third prong. Counsel for Pembroke argued that the evidence was relevant to the third prong -- that D.P.'s aggressive behavior put her at risk of harm from others, thereby endangering her in the community. The judge overruled the objections.

Lack of oral or written findings. D.P.'s primary argument is that the order of commitment should be vacated because the trial judge did not state on the record the evidentiary basis for the order. In support of this argument, D.P. relies upon Matter of a Minor, which requires a judge, in a hearing pursuant to G.L. c. 123, § 35, to "make clear, in writing or orally on the record, the evidence he or she credited in support of the legal conclusion that the respondent had a substance or alcohol use disorder, as well as the evidence supporting an imminent likelihood of serious harm stemming from that disorder." Id. at 307. The Supreme Judicial Court has since ruled, however, that this requirement does not apply in hearings pursuant to G.L. c. 123, §§ 7 and 8, because of the greater procedural protections afforded to respondents in such hearings. Matter of P.R., 488 Mass. 136, 148-149 (2021). There was no error.

Closing argument. D.P. next argues that the closing argument of Pembroke's attorney was largely based upon emergency department medical records that were never

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admitted into evidence. Where there was no objection to the closing argument, we review to determine whether any error caused a substantial risk of a miscarriage of justice. Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018).

We perceive no such risk here. The medical records here were most likely admissible in evidence, see G.L. c. 233, § 79 ("Records kept by hospitals . . . shall be admissible . . . as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases . . . ."), but Pembroke never sought to introduce them, and thus the judge never passed on the question of their admissibility. [Note 6] Instead, on direct examination, Dr. Hoffman read liberally from these medical records, which contained accounts of D.P.'s aggressive and hostile behavior with hospital staff. Because the medical records were never introduced into evidence, the portions of them that Dr. Hoffman testified to were hearsay. See Matter of J.P., 486 Mass. 117, 122 (2020) (statements in emergency room records are hearsay where records themselves were not admitted into evidence).

D.P.'s attorney, however, did not object on hearsay grounds, but rather that this evidence was not relevant to the third-prong definition of "likelihood of serious harm," G.L. c. 123, § 1, the only one of the three prongs at issue. In response, Pembroke's attorney explained his view of the relevance of this information to the third prong. The judge evidently accepted counsel's argument and overruled the objection. Thereafter, in her cross-examination of Dr. Hoffman and in her subsequent required finding motion, D.P.'s attorney proceeded to use the contents of these same medical records to make a case -- indeed, a plausible one -- that D.P. did not meet third-prong criteria for commitment. Where D.P.'s counsel did not object to this evidence on hearsay grounds, but rather attempted to use the statements contained in these medical records to D.P.'s advantage, she cannot now complain that Pembroke used this same hearsay evidence in support of D.P.'s commitment, or to argue it in closing. [Note 7]

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Moreover, we note that, regardless of the evidentiary status of the medical records, this was a bench trial, and we must presume that the judge as trier of fact understood the legal principles and applied them correctly. Commonwealth v. Milo M., 433 Mass. 149, 152 (2001). "In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions." Harris v. Rivera, 454 U.S. 339, 346 (1981). The closing argument of Pembroke's attorney did not create a substantial risk of a miscarriage of justice, and the decision of the trial court is affirmed.

So ordered.