Jones v. State

• Decision Date: 06 May 1985
• Docket Number: No. 2-784A206,2-784A206
• Parties: Gale JONES, Appellant (Respondent), v. STATE of Indiana, Appellee (Petitioner).
• Court: Indiana Appellate Court

Page 353

477 N.E.2d 353

Gale JONES, Appellant (Respondent), v. STATE of Indiana, Appellee (Petitioner).

No. 2-784A206.

Court of Appeals of Indiana,

Second District.

May 6, 1985.

Kenneth J. Falk, Lisa Cheatham, Legal Services Organization of Indiana, Inc., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kenneth P. Williams, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Respondent-appellant Gale Jones (Jones) appeals her involuntary commitment to Central State Hospital, claiming inadequate assistance of counsel, judicial bias stemming from the trial court's questioning of the petitioner, and insufficient evidence that she was either dangerous or gravely disabled.

We affirm.

FACTS

Jones was committed to Central State Hospital on February 28, 1984 by order of the Marion County Municipal Court after a hearing conducted pursuant to Ind.Code 16-14-9.1-10 (Supp.1984). The court characterized the proceedings as a review hearing because Jones had previously been committed and released on outpatient status, apparently under the provisions of IC 16-14-9.1-19. Jones was detained on February 16, 1984 when her erratic behavior attracted the attention of the police.

As an outpatient, Jones received the drug Mellaril, a tranquilizer used in the treatment of a variety of mental illnesses. Sometime prior to her detention by the police, Jones quit reporting for outpatient treatment and refused to continue taking her medicine. She stated at her commitment hearing that the medicine made it impossible for her to perform simple tasks or to take care of three children in her former employment as a baby sitter. At the time of her hearing, Jones was unemployed and receiving state aid.

She appeared in person at the hearing and was represented by court appointed counsel, Terry Hay (Hay). The petitioner was Dr. Roger Jackson (Dr. Jackson), a staff psychiatrist at Wishard Hospital who had examined Jones after she was detained by police and taken to Wishard Hospital. He later supervised the resident physician who was primarily responsible for Jones's treatment. Dr. Jackson was also familiar with her condition because of examinations he conducted as part of previous treatment programs.

Dr. Jackson testified, without objection, that Jones was suffering from paranoid schizophrenia. He pointed to Jones's evasive answers and loose associations as symptoms of her mental disorder. In addition, he stated that Jones believed her thoughts were controlled or influenced by others and had ideas of reference (the belief that coincidental occurrences in the environment are caused by the subject's presence). Dr. Jackson also found Jones to be verbally aggressive and physically threatening. In fact, Jones had to be secluded while awaiting the commitment hearing because of an altercation with another patient. Dr. Jackson's prognosis for Jones, based on her refusal to continue taking medicine and her failure to respond to treatment, was poor. He concluded that the least restrictive environment appropriate for treating Jones was Central State Hospital.

Hay questioned Dr. Jackson about returning Jones to an outpatient treatment program. He also asked whether anyone had explained to Jones the necessity of taking medicine. During Hay's cross-examination of Dr. Jackson, Jones also directed questions to Dr. Jackson.

Jones testified that she felt well enough to be living and working on her own outside the hospital, "[a]s long as they don't At the end of the proceeding, the trial court found Jones to be both dangerous and gravely disabled. Jones is now represented by counsel from the Legal Services Organization of Indiana in her appeal.

                play the pressure."   Record at 55.  In response to questions by Hay, Jones also discussed her reluctance to take medicine and her belief that "[p]eople have tapped into me to know what I'm thinking."   Record at 57.  Jones did not call witnesses to testify on her behalf
                

On appeal, she alleges that Hay failed to communicate or consult meaningfully with her before trial and, because of this, three witnesses were not called who would have testified that she was neither gravely disabled nor dangerous.

ISSUES

Jones presents three issues for our consideration:

1. Whether appointed counsel committed errors at trial and represented Jones in such an ineffective manner that she was, in essence, denied her right to counsel?

2. Whether judicial bias, constituting fundamental error, arose from the trial court's questioning of Dr. Jackson?

3. Whether Jones's commitment was based on sufficient evidence that she was either dangerous or gravely disabled?

DECISION

ISSUE ONE--Whether appointed counsel committed errors at trial and represented Jones in such an ineffective manner that she was, in essence, denied her right to counsel?

PARTIES' CONTENTIONS--Jones contends that she was denied her right to counsel because Hay made extraneous comments during cross-examination of Dr. Jackson; Hay failed to object to the testifying expert's lack of personal knowledge regarding Jones's condition; Hay failed to object to the trial court's examination of the petitioner; Hay failed to object to the narrative form of testimony given by petitioner; Hay failed to call three favorable witnesses as a result of his perfunctory consultation with Jones; and Hay improperly questioned Jones regarding her belief that others controlled her thoughts.

The State responds generally that Jones was not denied her right to counsel because Hay reasonably followed a trial strategy which advocated returning Jones to outpatient treatment, and not institutional care; Jones failed to show that proper objection could be made to the conduct of the trial; and the affidavit by Jones alleging the existence of three favorable witnesses preserved nothing for appeal.

CONCLUSION--Jones was not denied her right to effective counsel.

Commitment proceedings for mentally ill persons require due process protection because of the social stigma and the possible loss of personal liberty which may result therefrom. Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323; In re Turner (1982), Ind.App., 439 N.E.2d 201. Among the protections available to the allegedly mentally ill person is the right to be represented by counsel. IC 16-14-9.1-10(c) (regular commitment statute incorporating by reference procedures provided in temporary commitment proceedings at IC 16-14-9.1-9(e). The right to be represented by counsel includes the right to have counsel appointed when the allegedly ill person cannot afford an attorney. Turner, supra.

Even though the ultimate goal of civil commitment is a beneficent one of providing aid to the mentally ill, the commitment hearing itself is designed, in part, to be an adversarial proceeding. For example, the allegedly ill person has the right to be present at the hearing, to testify, and to present and cross-examine witnesses. IC 16-14-9.1-10(c). It is the risk of erroneous decisions which due process protections seek to minimize. Addington, supra, at 425, 99 S.Ct. at 1808. If counsel fails to employ available protections, the ultimate finding of the trial court is less reliable. It is for this reason that reversal is required when counsel fails to provide effective representation. ¹

In considering what constitutes effective representation, it seems reasonable to look to criminal standards for guidance. Such an approach seems justified inasmuch as the allegedly mentally ill person's liberty is at stake. ² However, criminal procedural standards may not always be appropriate in determining due process in civil commitment proceedings. E.g., State ex rel. Kiritsis v. Marion Probate Ct. (1978), 269 Ind. 550, 381 N.E.2d 1245 (Privilege against self-incrimination is inapplicable in civil commitment proceedings.).

The test of counsel's effectiveness has been articulated in Indiana in Lawrence v. State (1984), Ind., 464 N.E.2d 1291. There our Supreme Court adopted the two-step analysis established by the United States Supreme Court in Strickland v. Washington (1984), --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674. It is the appellant's burden to

"identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."

Id. at 2066.

The second step of the Strickland test requires that any deficiency in counsel's performance must be shown to be prejudicial to the defense. Id. at 2067. Except in certain instances when prejudice will be presumed the defendant has the "burden of showing that the decision reached would reasonably likely have been different absent the errors." Id. at 2069. In order to determine whether prejudice resulted from counsel's errors, the reviewing court must consider the totality of the evidence that was presented to the judge or jury. Id.

In examining the errors in representation alleged by Jones, we may not speculate regarding what may have been the most advantageous strategy in a particular case. Smith v. State (1984), Ind., 465 N.E.2d 702. Upon reviewing the trial record, it is apparent that Jones's counsel, Hay, pursued a trial strategy which advocated placing Jones in an environment less restrictive than that of Central State Hospital. This strategy necessitated eliciting facts concerning the extent of Jones's alleged mental illness. This is...