Hill v. State

• Decision Date: 31 March 1978
• Docket Number: No. EE-403,EE-403
• Citation: 358 So.2d 190
• Parties: Thomas HILL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 190

358 So.2d 190

Thomas HILL, Jr., Appellant, v. STATE of Florida, Appellee.

No. EE-403.

District Court of Appeal of Florida,First District.

March 31, 1978.

As Corrected On Denial of Rehearing May 10, 1978.

Michael J. Minerva, Public Defender, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and Richard A. Hixson, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge:

In 1965 Thomas Hill, Jr. was indicted for first degree murder in a particularly repulsive slaying of a Liberty County woman. His psychosis rendered him unfit for trial, so Circuit Judge Ben C. Willis whose familiarity with the case and with Hill extends from 1965 to the present committed Hill to the Florida State Hospital at Chattahoochee. In 1972 Hill had recovered sufficiently for trial and, on his waiver of a jury, Judge Willis found him not guilty by reason of insanity and recommitted him to Chattahoochee. Fla.R.Crim.P. 3.460. In December 1976, by the order here appealed, the court denied Hill's petition for release.

Hill's psychosis is now in remission and under medicinal control in the protected environment to which Hill is involuntarily confined. The evidence shows, and Judge Willis found, that Hill if released would probably engage in "nothing but peaceful conduct" if he continued to take his medicine and regularly saw a doctor at Chattahoochee or a community mental health center. A testifying psychiatrist believes that sufficient day-to-day supervision could be provided by Hill's family, who with family friends have offered to assure insofar as they have power to assure that Hill will take his medicine and keep his medical appointments. Members of the victim's family and other Liberty Countians testified that they have no objection to Hill's release under the circumstances. Nevertheless, Judge Willis denied Hill's petition for release, stating:

It is not enough that the defendant is not likely to engage in violence or destruction. It is insufficient that the probabilities of peaceful conduct outweigh, even substantially, the contrary.

In this case the defendant, while in a psychotic condition, perpetrated a most brutal homicide and his actions were of such depravity as to exhibit violent, destructive and bestial qualities with no inhibitions whatsoever. That such psychosis existed was confirmed by medical experts and was the basis of his commitment to the hospital for treatment rather than to be convicted as a murderer. Now, this psychotic condition is merely in remission, held there by regular medication and constant supervision. A loss of remission, either by failure of the medication to continue effective, by failure to properly administer it, or by any other factor which would produce that result would expose the members of the public to unspeakable horrors, death and destruction. Though the probabilities are that his release will result in nothing but peaceful conduct, the possibilities that it will be tragic are more than merely speculative. The Court feels that these possibilities are of sufficient gravity to dictate that the defendant be retained in institutional care and control. (Emphasis added.)

This case thus renews the debate over standards for the release to society of the once criminally insane: those who for insanity alone were acquitted of violent crimes, who were judicially committed to hospitalization until the danger of their being at liberty shall have passed, and who eventually progress in confinement until psychotic symptoms are remitted. The probabilities are that, if released, Hill can and would live among his family and friends in Liberty County, work in his father's sawmill, take his medicine, regularly visit the community mental health center in Panama City, and so pass his life peaceably. The broad question is, Who shall bear the small but potentially grave risk that Hill's remission is dependent on the constancy of his present regime, or on medication which Hill at liberty may neglect? Characteristically, the law does not address such a question all at once, but separates it into manageable parts, which are:

First, is the determinative standard whether Hill if released would be manifestly dangerous to others, or is it rather whether he would be likely to injure another? Compare Fla.R.Crim.P. 3.460 with Section 394.467(1)(a), Florida Statutes (1977), and Fla.R.Crim.P. 3.210(e)(9). There was confusion in the law at the time of Judge Willis' order; and it is not clear which of these standards he employed to deny Hill release, if indeed he employed either. ¹ Since then, State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978) has made the likely-to-injure test determinative. Under the law thus clarified, which would apply to Hill in any event if we were to affirm and he reapplied for release, it was incorrect for the circuit court to have held, "It is not enough that the (insanity acquitee) is not likely to engage in violence or destruction." We find that further proceedings, rather than an order for Hill's outright release, are appropriate.

Second, on whom, Hill or the state, is the burden of proof; and what is the necessary quality of proof? The risk of nonpersuasion falls on the acquitee; and grounds for his release must be shown by a preponderance of the evidence. A criminal acquitee is not denied equal protection by allocating the burden of proof differently than in civil commitment cases where, arguably, grounds for continued commitment must be shown by clear and convincing evidence. See In re Beverly, 342 So.2d 481, 488 (Fla.1977).

Third, wherein was the proof lacking that Hill is not likely to injure others and is entitled to release? We find that the quality of proof on the issue was inadequate, but that, given its apparent effect, the proof lacked only an impossible guaranty that Hill's illness would remain in remission.

And fourth, what medical or legal remedy can relieve Hill of the impossibility of his guaranteeing, from a condition of confinement, that he would not lose remission in a condition of liberty, and therefore that he is unlikely to injure others? We offer one procedural standard and one substantive remedy conditional release to assist committing judges in accomplishing their difficult task in these cases.

Standard for release

Rule 3.460 authorizes commitment of one acquitted for insanity if his release would be "manifestly dangerous to the peace and safety of the people." ² But the Baker Act, Section 394.467(1)(a), authorizes commitment of one who, by reason of mental illness, is "(l)ikely to injure himself or others if allowed to remain at liberty." ³ The difference is more than semantic. In two respects the likely-to-injure standard is more particular, tending to produce fewer commitments and more releases, than the manifestly dangerous standard:

First, likely-to-injure contemplates physical or emotional injury, ⁴ whereas manifestly dangerous may include also threatened injury to property or other societal interests. ⁵ Considering types of dangerousness alone, and disregarding probabilities of it, as many as ten substandards can comfortably be housed under the expansive roof of dangerousness. ⁶

Second, likely-to-injure requires a more exact prediction of harm; it connotes a probability of injury. Manifestly dangerous does not. One who is likely to injure another is surely dangerous; but one who is not likely to injure another may yet be dangerous, if the possibility of injury is more than speculative and the injury that is possible is also grave. Likely-to-injure emphasizes the dimension of probability. Manifestly dangerous, on the other hand, is a mixed question of "(t)he likelihood of future misconduct, the type of misconduct to be expected, and its probable frequency . . . ." Dixon v. Jacobs, 138 U.S.App.D.C. 319, 325 n. 17, 427 F.2d 589, 595 n. 17 (1970); State v. Krol, 68 N.J. 236, 260, 344 A.2d 289, 302 (1975) (dangerousness is "a product of the likelihood of such conduct and the degree of harm which may ensue"); Proctor v. Butler, 380 A.2d 673, 677 (N.H.1977).

The District of Columbia Code contains the same dichotomy dangerousness versus likely-to-injure that is created by criminal Rule 3.460 and Section 394.467(1) (a). ⁷ There the difference has not been particularly troublesome, because likely-to-injure is applicable specifically to civil commitees and dangerousness to criminal acquitees; because there is no overlay of jurisdictional conflict between a rule and statute; and because no case seems to have been controlled by the difference. But the United States Court of Appeals for the District of Columbia has recognized the difference. After some initial conflict, compare Hough v. United States, 106 U.S.App.D.C. 192, 271 F.2d 458 (1959), with Bolton v. Harris, 130 U.S.App.D.C. 1, 12, 395 F.2d 642, 653 (1968), the court held in United States v. Ecker, 177 U.S.App.D.C. 31, 40, 543 F.2d 178, 187 (1976), that "it is not technically sufficient," when applying the dangerousness standard to an acquitee's release petition, "merely to find that the patient 'is no longer likely to injure himself or other persons because of mental illness.' " Approving Judge Leventhal's concurring view in Dixon, 138 U.S.App.D.C. at 328, 427 F.2d at 598, the court held that dangerousness may result in continued commitment even though it cannot be said that injury is likely.

In spite of its relative vagueness, or perhaps because of its flexibility, the dangerousness test, including minor variations such as a likelihood of danger (not injury ), ⁸ is commonly used by the other states for the commitment and release of insanity acquitees. ⁹

In Florida proceedings for the commitment or release of insanity acquitees, the Baker Act's likely-to-injure standard now prevails over the manifestly dangerous standard of Rule 3.460. That may not be the final choice; but it is the current choice, and it seems to have been made by the Supreme Court when concentrating on other...