In re E.T., 06-151.

• Decision Date: 11 April 2008
• Docket Number: No. 06-151.,06-151.
• Citation: 959 A.2d 544,2008 VT 48
• Parties: In re E.T.
• Court: Vermont Supreme Court

959 A.2d 544

2008 VT 48

In re E.T.

No. 06-151.

Supreme Court of Vermont.

April 11, 2008.

Motion for Reargument Denied May 13, 2008.

Motion to Amend Denied June 27, 2008.

William H. Sorrell, Attorney General, Montpelier, and Mathew Viens, Assistant Attorney General, Burlington, for Petitioner-Appellee.

Brice C. Simon of Stevens Law Office, Stowe, for Respondent-Appellant.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. E.T. appeals the trial court's determination that she is a "patient in need of further treatment," thus justifying her continued confinement in Vermont State Hospital pursuant to 18 V.S.A. § 7621(b). E.T. has been housed at the Hospital since 1992, after an incident in which she shot and killed her manager, wounded two co-workers, and attempted to burn down the Eveready Battery plant in Bennington. After that incident, E.T. was diagnosed with paranoid schizophrenia and found incompetent to stand trial for the charged crimes. She has since remained in the custody of the Vermont Department of Mental Health.

¶ 2. The State moved to extend E.T.'s commitment to the Hospital for an additional year, and a hearing was held on February 3, 2006. See 18 V.S.A. § 7621(b) (requiring the State to move to continue treatment on an annual basis, as court may only order continued hospitalization "for up to one year" following each hearing). At the hearing, E.T.'s treating psychiatrist, Dr. Munson, testified about her illness, stating that her condition was roughly the same as it was when she was admitted in 1992, and that he considered her a "risk" if she were to be released from the hospital environment. Based primarily on Dr. Munson's testimony, the court issued an order on March 8, 2006 granting the State's application, and ordering E.T.'s continued confinement at the Hospital.

¶ 3. E.T. appeals this determination, arguing that: (1) the State failed to prove she was a "[patient] in need of further treatment" as defined by § 7101(16); (2) the trial court erroneously admitted inadmissible hearsay evidence and excluded other material evidence; (3) she received ineffective assistance of counsel; (4) the court erred in preventing E.T.'s attorney from withdrawing so E.T. could represent herself; and (5) Vermont's involuntary-hospitalization procedures violate both the Vermont and United States Constitutions.

I.

¶ 4. E.T. first argues that the State failed to carry its burden of proving that she is a "[patient] in need of further treatment." In order to grant the State's motion to continue involuntary mental health treatment, the court must find, by clear and convincing evidence, that E.T. is a "patient in need of further treatment and requires hospitalization." 18 V.S.A. § 7621(b). A "patient in need of further treatment" is defined as a "person in need of treatment" or a "patient who is receiving adequate treatment, and who, if such treatment is discontinued, presents a substantial probability that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment." Id. § 7101(16). A "person in need of treatment" is defined as "a person who is suffering from mental illness and, as a result of that mental illness, his or her capacity to exercise self-control, judgment or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others." 18 V.S.A. § 7101(17).¹

¶ 5. E.T. claims that the State is required to present evidence of recent "overt acts" demonstrating that she presents a danger of harm to herself or others in order to extend her commitment. Sections 7621(b) and 7101(16) require no such showing. As we discussed in In re P.S., the focus of a hearing to extend involuntary commitment is on whether the patient presents a risk of future harm if treatment is discontinued, not whether the patient poses a present danger. 167 Vt. 63, 71, 702 A.2d 98, 103 (1997) ("Although the statute requires the State to show a proposed patient is a `person in need of treatment' at the time of application for original commitment, no subsequent decision requires a showing of dangerousness."). We explained that:

The statutory structure assumes that treatment will reduce or eliminate the risk of harm from the patient's conduct. If the treatment is effective, a treated patient will not be dangerous. As a result, subsequent decisions about how and where a patient will receive treatment involve predictions about the effect of discontinuing treatment, rather than dangerousness.

Id. (citation omitted and emphasis added). Contrary to E.T.'s argument, therefore, the State need not make a showing that E.T. presently poses a danger of harm; rather, it must show that she presents a risk of future "dangerousness" if treatment were to be discontinued. Id.

¶ 6. On review, "we will uphold [the] trial court['s] findings as long as there is substantial evidence to support them although they are contradicted by credible evidence." In re N.H., 168 Vt. 508, 512, 724 A.2d 467, 470 (1998) (quotation omitted). "The test on review is not whether this Court is persuaded that there was clear and convincing evidence, but whether the factfinder could reasonably have concluded that the required factual predicate was highly probable." Id. at 512-13, 724 A.2d at 470.

¶ 7. Here, the State presented sufficient evidence for the trial court to conclude that E.T. was a "patient in need of further treatment" pursuant to § 7621(b). Dr. Munson testified that E.T. continues to suffer from schizophrenia, and that her condition was roughly the same as it was when she was admitted to the Hospital in 1992.² Her symptoms include hallucinations panic, and what Dr. Munson termed "infinite regress," evidenced by her practice of writing a series of letters that refer solely to the contents of other letters, none of which contain independent content. She has threatened patients on the ward and "is still driven by persecutory beliefs." Although E.T. steadfastly refuses to take the recommended antipsychotic drugs, Dr. Munson testified that she benefits from her confinement in the Hospital due to the availability of counseling, her participation in group activities, and the structure and security of the Hospital environment. Without confinement in the Hospital, he testified, it was "very likely" that her "panic would show itself ... [and] without containment, I'm afraid she would act on it." He assessed the risk of her engaging in aggressive behavior as "high," the same as in previous years, and stated that leaving the confines of the Hospital could itself cause her to panic. This testimony provided sufficient support for the trial court's conclusions that E.T. would present a risk of future harm if she were discharged from the Hospital, and was therefore a "patient in need of further treatment" who required hospitalization under § 7621(b).

II.

¶ 8. E.T. next argues that the trial court made two improper evidentiary rulings: first, by erroneously truncating E.T.'s cross-examination of Dr. Munson regarding his beliefs as to whether a special computer can read and control minds, thus precluding the introduction of relevant evidence; and second, by allowing Dr. Munson to base his testimony in part on out-of-court statements made by Hospital staff members.

¶ 9. E.T. has the right to cross-examine witnesses at hearings for her continued treatment. 18 V.S.A. §§ 7621(a), 7615(d). E.T. now contests the fact that the court did not allow her personally to ask questions about whether Dr. Munson believed a special computer could be built that could "read a person's mind and control a person's thoughts." E.T.'s lawyer refused to ask these questions at the hearing, and the court denied E.T.'s request to cross-examine Dr. Munson herself. E.T. claims that this decision denied her the right to present evidence relevant to her defense.

¶ 10. "The extent of cross-examination is largely within the discretion of the trial judge. ..." State v. Young, 139 Vt. 535, 539, 433 A.2d 254, 257 (1981); State v. Morrill, 127 Vt. 506, 513, 253 A.2d 142, 147 (1969). We overturn the trial court's management of cross-examination only for abuse of discretion. Id. Whether to cross-examine and the extent of questioning are tactical decisions within the purview of the attorney. See In re Mecier, 143 Vt. 23, 31-32, 460 A.2d 472, 477 (1983). In short, "the client must accept the consequences of the lawyer's decision to forgo cross-examination." Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

¶ 11. Here, E.T. was given the opportunity to cross-examine Dr. Munson, during which time her attorney questioned him on his observation and treatment of E.T. over the past fourteen years. Counsel ended cross-examination without asking Dr. Munson about his conversations with E.T. regarding computer mind control. Despite being urged by E.T. to pursue this line of questioning, to decline to do so was a tactical decision within the professional discretion of E.T.'s attorney. The trial court did not err in refusing to allow E.T. to cross-examine Dr. Munson herself after her attorney had completed what was, in the attorney's judgment, appropriate cross-examination of the witness. When E.T. chose to be represented by counsel, she chose to abide by tactical decisions made by that attorney; she does not have a right to reject that choice midtrial and represent herself. See infra, ¶ 16.

¶ 12. Even if the trial court did err in refusing to allow E.T. to solicit this line of questioning, this error was harmless. To reverse based on an erroneous evidentiary ruling, E.T. must "demonstrate that the error resulted in prejudice." In re R.M., 150 Vt. 59, 65, 549 A.2d 1050, 1054 (1988); V.R.C.P. 61 ("No error in ... the exclusion of evidence ... is ground for ... disturbing a judgment or order, unless refusal to take such action...