Greeno v. State, WD57517
| Decision Date | 28 November 2000 |
| Docket Number | WD57517 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Carl H. Greeno, Appellant v. State of Missouri, Respondent. Case Number: WD57517 Missouri Court of Appeals Western District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Buchanan County, Hon. James W. Roberts
Counsel for Appellant: Charles M. Rogers
Counsel for Respondent: Greg A. Perry
Opinion Summary:
Carl H. Greeno was committed to the Department of Mental Health after pleading "not guilty by reason of mental disease or defect" to the charges of assault of a police officer and armed criminal action. He was conditionally released from commitment. Two years later, he was charged with assault and armed criminal action and, thereafter, his conditional release was revoked. After a jury trial that resulted in a hung jury, the charges were dropped but Greeno remained in DMH's custody. He filed an application for conditional release that was denied, and now he appeals that decision.
REVERSED AND REMANDED.
Division holds: The trial court did not make a finding as to whether Greeno was suffering from a mental disease or defect at the time of the hearing for conditional release. This Court cannot say, from the record before us, that Greeno continues to suffer from a mental disease or defect. The cause is remanded for the trial court to make a finding on whether Greeno continues to suffer from a mental disease or defect.
Carl H. Greeno appeals the trial court's denial of a conditional release from the Department of Mental Health (DMH). He was committed to the DMH in May 1991 but was conditionally released in September 1993. While on release, Mr. Greeno was charged with second degree assault and his conditional release was revoked. Ultimately, the new charges against him were dismissed, but he remained in the custody of the DMH. Mr. Greeno contends his conditional release should be reinstated because the assault charge was dismissed. Because there was no indication in the record whether Mr. Greeno continues to suffer from a mental disease or defect, we reverse and remand the cause to the trial court to make a finding on this issue.
The offense for which Mr. Greeno was committed to the DMH occurred in 1990. Mr. Greeno drove his car into a police car while fleeing the scene of an alleged uncharged crime,1 and he was charged with assault in the second degree and armed criminal action. A trial was held on May 6, 1991, and Mr. Greeno was found "not guilty by reason of mental disease or defect." As a result, he was committed to the DMH at Fulton. Mr. Greeno was conditionally released from the DMH on September 28, 1993, by the probate division of the Circuit Court of Callaway County and he was allowed to return to his home in Kansas City.
While on conditional release, from late 1993 until late 1995, Mr. Greeno was arrested several times and he sought help on occasion by checking himself into hospitals. In April 1994, he was arrested and charged with driving while intoxicated (DWI), reckless driving, and driving without a license. After this incident, he checked himself into the Veterans Administration (V.A.) hospital for several weeks, to avoid revocation of his conditional release, but he left the hospital against medical advice. In March-April 1995, he admitted himself into the V.A. hospital after a stress attack during which he drove down the highway in the wrong lane, in an attempt to commit suicide.2
Mr. Greeno resumed his conditional release in April 1995. In December 1995, he was charged with assault and armed criminal action.3 While waiting trial on the assault and armed criminal action charges, an administrative revocation hearing was held and Mr. Greeno's conditional release was revoked. The hearing officer revoked his release based on the fact that Mr. Greeno violated a condition of his release by violating the laws of the State of Missouri and that he posed a danger to the public while in the community.4 Moreover, the Director found that Mr. Greeno required inpatient hospitalization to protect the public safety.
While the record before us is not clear, it appears that Mr. Greeno was diagnosed as early as 1980 or perhaps earlier, with Post Traumatic Stress Disorder (PTSD) caused by his experiences in the Vietnam War. The record does establish, however, that this diagnosis was confirmed in 1996 while Mr. Greeno was in the DMH in Fulton.
PTSD is an anxiety disorder which, in Mr. Greeno, manifests itself in battle flashbacks and attacks of anxiety, tearfulness, depression or memory blackouts. Dr. Parwatiker, his treating physician, linked Mr. Greeno's difficulties to as early as 1971. His attacks can be triggered by outside news events, war movies, stressful personal experiences, sudden noises, or any other events that remind him of his battle experiences or survival.
In March 1997, Dr. Bruce Harry, a physician at the DMH, also diagnosed Mr. Greeno with PTSD, but he found that Mr. Greeno was free of threatening conduct for the one year that he had been at the DMH. Mr. Greeno applied for a conditional release, pursuant to section 552.040.10,5 that was denied in May 1997 by the Circuit Court of Callaway County. In January 1998, Mr. Greeno stood trial on the charges of assault and armed criminal action. On January 26, 1998, the jury was unable to reach a unanimous verdict and was discharged.6 The prosecutor dismissed the charges against Mr. Greeno on February 5, 1998, but he remained in the custody of the DMH.
Mr. Greeno was transferred to the Northwest Missouri Psychiatric Rehabilitation Center (Northwest) in July 1998. Dr. Khan, a medical doctor, examined Mr. Greeno upon his admission to Northwest and found him to be suffering from "post-traumatic stress disorder, alcohol abuse in remission, cannabis abuse in remission and personality disorder not otherwise specified with dependent and histrionic features."
On January 7, 1999, Dr. Suthikant became Mr. Greeno's treating physician and he found Mr. Greeno to be disruptive, agitated, and threatening. He was described as exhibiting a minor combative behavior including slapping, yelling, pushing, verbal threats and verbal aggression.
Mr. Greeno filed another application for conditional release, pursuant to section 552.040.10,7 and again, conditional release was denied. A hearing on his application began on May 17, 1999. At the conclusion of all the evidence, on May 19, 1999, the case was taken under advisement and the court entered a judgment and memorandum opinion on June 11, 1999, denying the conditional release. Mr. Greeno appeals this determination.
Mr. Greeno raises three points on appeal. First, he contends the trial court erred in denying his application for conditional release by failing to make a finding that he was currently suffering from a mental disease or defect. Second, he claims the trial court erred in requiring him to prove by clear and convincing evidence that he would not be dangerous to others if he was released. Finally, he argues that the trial court's determination that he did not sufficiently prove his "non-dangerousness" was against the weight of the evidence.
Appellate review of the denial of an application for a conditional release from commitment at the DMH is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Styles v. State, 877 S.W.2d 113, 115 (Mo. banc 1994); see also State v. Zingre, 980 S.W.2d 355, 356 (Mo. App. S.D. 1998). Thus, we will affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.
In his first point, Mr. Greeno asserts that the trial court could not deny his application for conditional release without first finding that he is currently suffering from a mental disease or defect. He points out that the court made no such finding and therefore contends the trial court erred in denying his application.
Chapter 552 governs commitment and release of persons tried and acquitted of crimes by reason of mental disease or defect excluding responsibility. Section 552.040.12 sets forth factors the court should consider when making a determination on an application for conditional release:
At a hearing to determine if the committed person should be conditionally released, the court shall consider the following factors in addition to any other relevant evidence:
(1) The nature of the offense for which the committed person was committed;
(2) The person's behavior while confined in a mental health facility;
(3) The elapsed time between the hearing and the last reported unlawful or dangerous act;
(4) The nature of the person's proposed release plan;
(5) The presence or absence in the community of family or others willing to take responsibility to help the defendant adhere to the conditions of the release; and
(6) Whether the person has had previous conditional releases without incident.
The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility shall be on the party seeking release to prove by clear and convincing evidence that the person for whom release is sought is not likely to be dangerous to others while on conditional release.
Section 552.040.14 provides that "[n]o committed person shall be conditionally released until it is determined that the committed person is not likely to be dangerous to others while on conditional release." There is no requirement in the statute that a trial court must make a specific finding as to whether the committed person seeking release is suffering from a mental disease or defect prior to denying a conditional release.
Mr. Greeno, however,...
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