McKee v. State, WD
| Decision Date | 11 June 1996 |
| Docket Number | No. WD,WD |
| Citation | 923 S.W.2d 525 |
| Parties | Jerry McKEE, Appellant, v. STATE of Missouri, Respondent. 50969. |
| Court | Missouri Court of Appeals |
Mark C. Evans, Assistant Public Defender, Fulton, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Elizabeth A. Malench, Assistant Attorney General, Jefferson City, for respondent.
Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.
Jerry McKee appeals the denial of his application for conditional release from the custody of the Department of Mental Health, filed pursuant to section 552.040 RSMo 1995. The judgment is affirmed as modified.
On December 21, 1982, Mr. McKee was found not guilty by reason of mental disease or defect, section 552.030 RSMo 1994, of unlawful use of a weapon, section 571.030 RSMo 1994, and was committed to the custody of the Department of Mental Health.
On January 26, 1995, Mr. McKee filed his Application for Conditional Release. A hearing was held upon the application on March 13, 1995.
Only one witness was presented at the hearing on the motion, Armondo Ponce, a staff psychiatrist at Fulton State Hospital where Mr. McKee is a patient. Dr. Ponce testified that in his opinion Mr. McKee suffers from chronic schizophrenia. Dr. Ponce testified on direct examination that Mr. McKee would be dangerous to himself and others, and that because of his mental illness, he could not conform his conduct to the requirements of the law. He testified that Mr. McKee had difficulty following ward rules and regulations and would become upset about the rules and restrictions. He also testified that excessive fluid intake made Mr. McKee irritable, easily agitated and disorganized in his thoughts. On cross-examination Dr. Ponce stated that he was uncertain whether Mr. McKee would be dangerous to other people, but he testified that Mr. McKee would be dangerous to himself if he were released.
The trial court then made the following findings in part:
Court finds that Petitioner's release would not be dangerous to others, but the Petitioner, if released, would not be able to conform his conduct to the requirements of the law. Conditional release denied.
Mr. McKee asserts for his only point on appeal that the trial court erred in denying his application for conditional release because the court used an incorrect standard by denying the application based on the finding that he could not conform his conduct to the requirements of the law.
Section 552.040.9, RSMo 1994, provides that a person committed to a mental health facility may file an application for determination of whether the person shall be conditionally released. The trial court is vested with the authority to make the ultimate decision regarding whether the evidence establishes the requisite conditions for release. State v. Dudley, 903 S.W.2d 581, 584 (Mo.App.1995). The decision of the trial court will not be reversed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares or applies the law. Id.
Section 552.040.11 RSMo 1994, lists several factors for the court to consider in making its decision on the application for conditional release. Where the party seeking conditional release is not charged with one of the listed violent offenses identified in the statute, the burden of persuasion is upon the person opposing the conditional release to prove by a preponderance of the evidence that the person for whom release is sought is likely to be dangerous to others while on conditional release. § 552.040.11 RSMo 1994. Mr. McKee was not charged with one of the listed offenses in the statute. Thus, the state bears the burden...
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