In re Mental Health of D.V.

• Citation: 340 Mont. 319,174 P.3d 503,2007 MT 351
• Decision Date: 19 December 2007
• Docket Number: No. 05-568.,05-568.
• Parties: In the Matter of the MENTAL HEALTH OF D.V., Respondent and Appellant.
• Court: United States State Supreme Court of Montana

174 P.3d 503

2007 MT 351

340 Mont. 319

In the Matter of the MENTAL HEALTH OF D.V., Respondent and Appellant.

No. 05-568.

Supreme Court of Montana.

Argued and Submitted June 14, 2006.

Decided December 19, 2007.

For Appellant: Brian Bulger (argued), Bulger Law Offices, Great Falls, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, John Paulson (argued), Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Mary Ann Ries, Deputy County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Following a jury trial in the District Court for the Eighth Judicial District, Cascade County, D.V. was involuntarily committed to the Montana State Hospital (MSH) for 90 days. The District Court also ordered that MSH could administer medications to D.V. through injections without D.V.'s consent. D.V. appeals. We reverse and order the District Court to vacate the commitment order.

¶ 2 D.V. raises the following issues on appeal:

¶ 3 1. Whether counsel rendered ineffective assistance in violation of D.V.'s rights under the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution.

¶ 4 2. Whether the District Court erred in allowing the testimony of the appointed "friend" of D.V. when the court had earlier deemed that the "friend" had a conflict of interest.

¶ 5 3. Whether the examination and evaluation by the court-appointed professional person satisfied statutory guidelines.

¶ 6 Because we determine that Issue 2 is dispositive, we do not address Issues 1 and 3.

Factual and Procedural Background

¶ 7 On June 24, 2005, D.V., a 48-year-old man, was arrested for partner and/or family member assault and detained at the Cascade County Detention Center (the CCDC). D.V. allegedly threatened his mother when she refused to give him a checkbook which she indicated was for an account that had been closed. While incarcerated, D.V. refused to sleep, refused his medications, and was reportedly suffering a full-blown manic episode.

¶ 8 On June 30, 2005, the Cascade County Attorney filed a Petition for involuntary commitment alleging that D.V. appeared to be suffering from a serious mental illness that rendered him a danger to himself and to the community. The Petition requested that the District Court order D.V. to undergo a mental health evaluation. The Petition also requested that, if it was determined that D.V. was mentally ill, the court order that he be involuntarily committed to a mental health facility for treatment.

¶ 9 The District Court held a hearing on July 5, 2005, to determine whether D.V. should undergo a mental health evaluation. D.V. was represented at the hearing by Vince Van der Hagen of the Cascade County Public Defender's Office. D.V. interrupted the proceedings several times stating, among other things, that he wanted to act as his own attorney, and calling the judge a "jackass." At the close of the hearing, the court found that there was probable cause to believe that D.V. was seriously mentally ill, thus the court appointed Dr. Mark Mozer, a Great Falls psychiatrist, to conduct an examination. In addition, the court ordered D.V. to be transported to the psychiatric unit at MSH for detention pending further court appearances. Following the hearing, the District Court issued a written order for Dr. Mozer's evaluation and appointed D.V.'s mother to be the "friend of respondent" pursuant to § 53-21-102(8), MCA.

¶ 10 On July 11, 2005, Carl Jensen of the Cascade County Public Defender's Office filed a motion for a confidential mental health evaluation of D.V. by another professional person of D.V.'s choosing. The court granted the motion. On July 13, 2005, Matthew McKittrick of the Cascade County Public Defender's Office advised the court that he and Dr. Mozer had gone to the CCDC for the purpose of conducting the court-ordered mental health evaluation of D.V., but D.V. was uncooperative to the extent that Dr. Mozer was unable to complete the evaluation.¹ In addition, D.V. refused to communicate with McKittrick and told him that he was fired.

¶ 11 A jury trial was held on July 25, 2005, regarding D.V.'s involuntary commitment. Lawrence LaFountain of the Cascade County Public Defender's Office represented D.V. during the trial. During a conference with counsel and D.V. prior to voir dire, the court addressed several matters raised by D.V. and LaFountain. D.V. wanted a continuance of the trial claiming that he had been assaulted by the staff at MSH and that he needed to have a blood test for an alleged infection and an examination by a doctor for alleged injuries. The court noted that D.V. did not appear to have any injuries, hence the court declined D.V.'s request to be sent to the emergency room.

¶ 12 D.V. also claimed that the presiding Judge, the Hon. Julie Macek, had a conflict of interest because she had prosecuted a prior involuntary commitment case against him. Judge Macek stated for the record that she had no recollection of D.V., and LaFountain agreed that there was no legal conflict of interest.

¶ 13 In addition, D.V. complained that he did not know who LaFountain was, that LaFountain had not called him during the previous week, that he was firing LaFountain, and that he wanted to represent himself. D.V. also complained about LaFountain's failure to subpoena any witnesses, but LaFountain responded that after reviewing the file, there were no witnesses he wished to subpoena for D.V. LaFountain also stated that he would not be calling the doctor who had conducted the independent evaluation of D.V.

¶ 14 LaFountain informed the court that D.V. wanted to act as co-counsel and that LaFountain believed it would be detrimental to D.V.'s case, especially if D.V. could not refrain from interrupting the proceedings. LaFountain also advised the court that D.V. was behaving toward him in the same manner as he had behaved toward the other attorneys in LaFountain's office. LaFountain stated his belief that D.V.'s detrimental behavior would continue and that D.V. should be removed from the courtroom during the trial.

¶ 15 The District Court determined that it was in D.V.'s best interests to have LaFountain represent him as LaFountain had a considerable amount of experience in such cases. Consequently, the court denied D.V.'s request to fire LaFountain and represent himself. The court advised D.V. that the trial would proceed in an orderly fashion, that D.V. had a right to be present during the proceedings, and that if D.V. disrupted the proceedings, the court would admonish him outside the presence of the jury, but would not remove him unless D.V. refused to behave and follow the court's rules.

¶ 16 During voir dire, D.V. repeatedly interrupted the proceedings with questions, comments, and accusations. D.V. attempted to dismiss the entire jury panel at the conclusion of voir dire and made several remarks about certain prospective jurors. The District Court declared a recess and engaged D.V. in a lengthy discussion, outside the presence of the jury, in an effort to reduce D.V.'s outbursts and to allow him to remain in the courtroom.

¶ 17 When the trial resumed, Dr. Mozer testified that his mental evaluation of D.V. was limited by D.V.'s refusal to cooperate, which Dr. Mozer attributed to D.V.'s mental illness. Dr. Mozer further testified that he had provided care for D.V. since November 2004 and was familiar with D.V.'s mental health history. Dr. Mozer stated that D.V. suffered from a schizoaffective disorder, a mental illness with features of both a mood disorder and a psychotic mental illness. Dr. Mozer described D.V.'s symptoms and the recent progression of his illness, opining that in his present state of mind, D.V. posed a danger to himself and to others. Dr. Mozer recommended that D.V. be committed for mental health treatment. He testified that he considered local outpatient and inpatient programs and rejected them as unsuitable to D.V.'s needs, especially since D.V. failed to participate in the past and refuses to participate at the present time.

¶ 18 The State attempted to call D.V.'s mother to testify about the incident which led to the assault charge and subsequent petition against D.V. LaFountain moved to disqualify her because she was serving as the court-appointed "friend" pursuant to § 53-21-102(8), MCA. The court agreed that as both the complaining witness and the "friend," D.V.'s mother had an inherent conflict of interest. Consequently, the court granted LaFountain's motion to preclude her from testifying.

¶ 19 Thereafter, the State asked the court to appoint a different "friend" for D.V. so that D.V.'s mother could testify, but the court refused. The court did grant the State's motion for a short recess so that it could locate additional witnesses.

¶ 20 In addition, LaFountain informed the court that D.V. wanted to put himself on the witness stand against LaFountain's advice and LaFountain inquired of the court whether D.V. could be kept from testifying if LaFountain and the "friend" agreed that he should not. The court noted that § 53-21-119, MCA, provides that if the respondent is not capable of making an intentional and knowing decision about waiving his rights, those rights may be waived by respondent's counsel and the "friend" of respondent, acting together, as long as a record is made of the reasons for the waiver.

¶ 21 After trial resumed, the State called Robert Neal, a detention officer at the CCDC. Neal testified that when he attempted to assist one of the nurses at the CCDC in giving D.V. his medications, D.V. threw a bag of feces at him. The State also called Kathy Ann English, a social worker at CCDC, and Laurel Andercheck, a nurse practitioner at CCDC. They both testified to D.V.'s manic behavior while at CCDC describing D.V. as being agitated, angry, aggressive, hostile, abusive, and out of control. Andercheck also stated that D.V....