In re Morrow

• Decision Date: 12 July 1983
• Docket Number: No. 80-114.,80-114.
• Citation: 463 A.2d 689
• Parties: In re Rhea B.A. MORROW, Appellant.
• Court: D.C. Court of Appeals

463 A.2d 689

In re Rhea B.A. MORROW, Appellant.

No. 80-114.

District of Columbia Court of Appeals.

Argued February 17, 1983.

Decided July 12, 1983.

Gregory B. Macaulay, Washington, D.C., appointed by this court, for appellant.

Wendy Bebie, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and NEBEKER and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Pursuant to D.C.Code §§ 21-541, -551 (1981), on November 21, 1979, a jury found appellant mentally ill and likely to injure herself or others as a result of her mental illness. On December 17, 1979, she was committed indefinitely to St. Elizabeths Hospital. On appeal she raises two issues: (1) whether the trial court abused its discretion and prejudiced appellant's defense when it denied, pretrial,¹ appellant's request for a second psychiatric expert; and (2) whether the trial court should have declared a mistrial when a member of the Commission on Mental Health testified as to reexaminations of appellant conducted after the statutorily prescribed examination (D.C.Code § 21-542(a) (1981)) and without notice to appellant's counsel. Finding no error, we affirm.

I

The facts pertinent to this appeal are that the trial court² found appellant incompetent to stand trial on charges of petit larceny and a violation of the bail laws (for failure to appear on the petit larceny charge). It was therefore ordered that the government initiate civil commitment proceedings. D.C.Code § 21-541 (1981). On June 20, 1979, a petition was filed with the court. Pursuant thereto, the Mental Health Commission³ conducted a hearing, taking the testimony of appellant's treating psychiatrist and appellant herself. Thereafter, the Commission found that appellant was mentally ill and likely to pose a danger to herself or others. D.C.Code § 21-545(b) (1981). On August 8, 1979, a report containing the Commission's findings and the recommendation that appellant be committed for an indeterminate period to St. Elizabeths Hospital was submitted to the court.

On August 28, 1979, in an ex parte hearing, appellant's attorney asked the trial court to authorize payment for two psychiatric experts.⁴ The court granted the motion with respect to a Dr. Ratner. However, the court denied authorization for the services of a Dr. Rappaport. As reasons, the court stated, inter alia, that one expert was adequate, that the cost of Dr. Rappaport's services was excessive, and that counsel could submit a written statement of the doctor's anticipated testimony, in the form of a stipulation, for the jury.

On October 31, 1979, the day before the trial, appellant's counsel again sought authorization for payment for Dr. Rappaport's services. The trial court denied counsel's request,⁵ noting that counsel sought only to introduce the doctor's theory of dangerousness,⁶ and not testimony based upon a personal examination of appellant. The court did however propose several alternative methods for getting the doctor's theory before the jury.⁷ Appellant's counsel made no objection.

II

At trial, Dr. Legler, one of the psychiatric experts for the Mental Health Commission, testified for the petitioner as to his own diagnosis of appellant. In addition to his observation of appellant during the statutorily prescribed Commission examination, Dr. Legler related that he had visited appellant on two other occasions prior to trial. He testified that he had also spoken with appellant's mother and examined appellant's complete hospital records.

At the conclusion of Dr. Legler's testimony on direct examination, appellant's counsel moved for a mistrial urging that Dr. Legler, by interviewing appellant after the Commission hearing, had exceeded his statutory authority and violated appellant's statutory and constitutional right to the effective assistance of counsel.⁸ The trial court took the matter under advisement, and invited counsel to submit a memorandum in support of his argument. Counsel chose instead to first cross-examine the doctor and then voir dire him on the follow-up examinations. Based on this testimony, counsel again moved for a mistrial. The motion was denied.

III

Appellant claims that the trial court's failure to authorize payment for a second psychiatric expert, until the day of trial, was an abuse of discretion and unfairly prejudiced appellant's defense at trial. We disagree.

A respondent in a civil commitment case is certainly entitled to the services of a psychiatric expert upon a showing of financial inability to obtain the expert and a demonstration that the service is "necessary to an adequate defense." See D.C.Code § 11-2605(a) (1981). Deference must be given to the judgment of counsel, but this does not prevent the trial court from exercising its discretion. Moreover, the court appropriately denies a request for expert services when the respondent has received adequate psychiatric assistance from other sources. See Dobson v. United States, 426 A.2d 361, 368 (D.C. 1981).

Here, during the requisite pretrial hearing, counsel for respondent sought authorization for two psychiatric experts. After some discussion on the motion, the trial court authorized payment for one expert, but refused to authorize payment for Dr. Rappaport whom counsel acknowledged would cost more than the $300 statutory ceiling. D.C.Code § 11-2605(c) (1981). Neither counsel's oral argument nor his memorandum in support thereof provided compelling justification for the second expert. Further, counsel sought to introduce Dr. Rappaport's theory of dangerousness and not his personal observation of appellant. Therefore, the trial court's suggested alternative of presenting the doctor's anticipated testimony in the form of a stipulation at trial protected appellant's interest. In any event, the trial court ultimately granted appellant's mid-trial motion to authorize payment for expert testimony on Dr. Rappaport's theory. Appellant chose not to avail herself of this opportunity. We can find no abuse of discretion or prejudicial impairment of appellant's defense in the trial court's treatment of appellant's request.⁹

Appellant's second assertion is that the trial court erred in denying her motion for mistrial. She argues that permitting Dr. Legler to testify as to his post hearing examinations of appellant violated her rights under the Ervin Act.¹⁰ See D.C.Code §§ 21-501 et seq. (1981). Further, she asserts that the lack of notice to her counsel about the reexaminations deprived her of the effective assistance of counsel and her Fifth Amendment protection against self-incrimi nation.¹¹

Appellant urges that Dr. Legler exceeded his statutory authority as a Commission psychiatrist by conducting the posthearing examinations. We disagree. The central issue in a civil commitment trial is whether the respondent is presently dangerous to herself or others. To limit Commission psychiatrists, upon whom in part this determination rests, to the brief and insubstantial observation presented in the formal Commission hearing would be to prohibit them from fulfilling their statutory duty. See D.C.Code § 21-503(a) (1981). In fact, do not believe that Dr. Legler violated respondent's rights, but rather he sought to assure their fulfillment.

Affirmed.

FERREN, Associate Judge, concurring in part and dissenting in part:

I agree with my colleagues that the trial court did not abuse its discretion in denying, before trial, appellant's request for appointment of a second psychiatric expert. But I respectfully dissent from the proposition that, in order to prepare for the civil commitment trial, Dr. Glen Legler, a Mental Health Commission psychiatrist, could twice examine appellant after the Commission hearing and report prescribed by statute, D.C.Code §§ 21-542(a), -544 (1981), without advance notice to appellant's counsel.

I

After the court found appellant incompetent to stand trial, D.C.Code § 24-301(a) (1981), the United States Attorney filed a petition on June 20, 1979 for her civil commitment, alleging by reference to a certificate of her treating physician at St. Elizabeths Hospital, Dr. Richard Mcllroy, that she was "mentally ill and because of such illness is likely to injure herself or others if allowed to remain at liberty." See D.C. Code § 21-541(a) (1981). On the same day, the court ordered appellant to appear before the Commission on Mental Health (Commission) on July 12 for an examination and hearing¹ and appointed counsel to represent her.²

The proceeding before the Commission was continued until August 2. Before the hearing, Dr. Legler, a psychiatrist-member of the Commission "conducted a preliminary mental health examination" of appellant, after which a Commission panel, composed of James Gardiner, Esq., Gary Singleton, M.D., and Dr. Legler, conducted a psychiatric examination and hearing. D.C. Code § 21-542(a) (1981); note 1 supra. After hearing the testimony of the treating psychiatrist, Dr. Mcllroy, and of appellant herself, the Commission concluded "[u]pon consideration of the preliminary examination [by Dr. Legler], the medical record, the demeanor of the patient, and the testimony taken at the hearing . . . that the patient is suffering from schizophrenia, chronic, Undifferentiated Type and is likely to injure herself and others if allowed to remain at liberty." The Commission filed its report with the court on August 8, recommending that appellant be hospitalized at St. Elizabeths "for an indeterminate period."³

Counsel for appellant demanded a jury trial, which the court initially scheduled for September 10.⁴ For various reasons the trial was rescheduled five times, beginning, finally, on October 31, 1979. During Dr. Legler's testimony, he disclosed for the first time that, subsequent to the statutory submisson of the Commission's findings to the court and without...