Parsons v. Dist. Court of Pushmataha Cnty.

• Decision Date: 12 December 2017
• Docket Number: 115,007
• Citation: 408 P.3d 586
• Parties: Robert PARSONS, Appellant, v. The DISTRICT COURT OF PUSHMATAHA COUNTY, the Honorable Jana K. Wallace, Associate District Judge, Appellee.
• Court: Oklahoma Supreme Court

408 P.3d 586

Robert PARSONS, Appellant,

v.The DISTRICT COURT OF PUSHMATAHA COUNTY, the Honorable Jana K. Wallace, Associate District Judge, Appellee.

115,007

Supreme Court of Oklahoma.

Filed December 12, 2017

Peter C. Astor, Oklahoma Indigent Defense System, Sapulpa, OK, for Appellant

Jennifer L. Crabb, Assistant Attorney General, Oklahoma City, OK, for Appellee

GURICH, V.C.J.

I. Facts & Procedural History

¶ 1 On November 21, 2011, Robert Parsons was charged in Pushmataha County District Court, Case No. CF-2011-146, with one count of first degree murder. According to the probable cause affidavit filed by the investigating officer, Parsons confessed to murdering his friend, Garland Cogburn, by striking him in the head with a hatchet. Simultaneously with the State's Information, an order was entered by agreement of the parties which required "Robert Parsons be immediately committed to the custody of the Oklahoma Forensic Center (OFC) in Vinita, Oklahoma for outpatient evaluation so that he may be determined competent to stand trial."¹

¶ 2 After being transferred to OFC, a competency evaluation was conducted by forensic psychologist, Peter Rausch, PhD. On December 12, 2011, Dr. Rausch filed a report finding "[Parsons] was able to remain attentive and respond to questions in a clear and relevant manner. [Parsons] appeared to appreciate the nature of his legal situation and the possible outcomes of his case. [Parsons] demonstrated a general understanding of legal procedures and he exhibited the capacity to rationally assist counsel."² Parsons' counsel stipulated to Dr. Rausch's competency evaluation and criminal proceedings resumed.

¶ 3 On February 29, 2012, Parsons withdrew his not guilty plea and entered a plea of not guilty by reason of insanity (referenced as NGRI). Approximately three months later, the State and Parsons jointly submitted records pertaining to Parsons' mental health history. Included in the materials was an evaluation prepared by Jeannie Russell Ed.D., which detailed her assessment of Parsons' mental state at the time of Cogburn's homicide. On June 6, 2012, the trial court filed a journal entry adjudicating Parsons not guilty by reason of insanity.³ As required by 22 O.S.2011 § 1161(A)(3) and (B),⁴ the trial judge directed additional mental health testing of Parsons, to determine whether he was "presently mentally ill" and "dangerous to public peace or safety."⁵ The State did not appeal the decision.

¶ 4 OFC forensic psychologist, Rachele L. Floyd, Psy.D performed the statutory examination of Parsons. To conduct her assessment, Dr. Floyd thoroughly reviewed all relevant court and medical records; conducted several personal interviews with Parsons; interviewed Parsons' wife; consulted Parsons' treating psychiatrist, Dr. Kendall Southern; and independently conducted psychological tests on Parsons. A report detailing her evaluation was presented to the trial court in July 2012. According to the report, Parsons' symptoms were consistent with the diagnostic criteria for bipolar disorder

.⁶ However, Parsons' hospitalization and treatment following acquittal had abated the symptoms:

It is unclear how long his Bipolar Disorder

has been in remission; however, he has not displayed any signs or reported current symptoms of mental illness since his admission to OFC. Since his admission to this facility, he has not made any threats of harm to himself or others, and appears capable of caring for his basic needs. Therefore, although he has a psychiatric diagnosis, he does not currently meet the criteria of a person who because of 'mental illness' represents an immediate 'risk of harm to self or others' as defined in Title 43A.⁷

It was Dr. Floyd's belief that Parsons presented "a low risk for future violence in both inpatient and outpatient settings."⁸ Nevertheless, Dr. Floyd concluded her report by recognizing Parsons' nonadherence to prescribed medications:

In reviewing his history, periods of medication non-compliance, including not taking medications at all and not taking them as prescribed, appear to increase his risk for leaving his home unexpectedly and/or making a suicide attempt. Based on this history, Mr. Parsons does appear to be a person who "is in need of continued supervision as a result of ...a history of treatment noncompliance."⁹

Dr. Floyd recommended strict and continual supervision if the trial court were to authorize Parsons' release from OFC.

¶ 5 The trial court scheduled the statutorily required hearing for August 8, 2012, to determine whether Parsons should remain in OFC custody. The only evidence presented at the hearing was Dr. Floyd's report, which was admitted by stipulation of the parties. Ostensibly relying on this report, the trial judge found Parsons "is presently still a danger to the public peace and or safety of others due to treatment non-compliance."¹⁰ The court ordered Parsons to be placed in the custody of the Oklahoma Department of Mental Health, and returned for commitment at OFC.

¶ 6 On July 30, 2013, Dr. Southern provided the trial court with an annual clinical status update regarding Parsons. According to Dr. Southern, Parsons recognized the importance of complying with his medication regimen. Dr. Southern further noted that Parsons had been given full-grounds privileges within OFC, and had exercised this authorization without any problems. Interestingly, the report also noted that in December 2012, the trial court issued an order approving a supervised therapeutic visit, which permitted Parsons to attend a family funeral.¹¹ There is nothing in Dr. Southern's letter indicating any problems during the offsite visit. Dr. Southern ended the report by reiterating the Oklahoma Forensic Review Board's (FRB) duty to review Parsons' case under § 1161(F)(3).

¶ 7 Title 22 O.S.2011 § 1161(F) creates the FRB. The board is composed of seven (7) members (four licensed mental health professionals, a licensed Oklahoma attorney, a retired judge, and one at-large member). Members are appointed by the Governor for five-year terms. Under this statutory section, the FRB is vested with authority to recommend therapeutic visits, conditional release, or patient discharge for NGRI acquittees. At the time of Dr. Southern's 2013 annual report, the FRB had made no recommendation with respect to Parsons.

¶ 8 The FRB met on October 22, 2014 and subsequently submitted a report to the district court, which was filed on November 7, 2014. Therein, the FRB recommended Parsons begin weekly supervised therapeutic visits at Grand Lake Mental Health Center (GLMHC). After examining Parsons' progress, the FRB determined that "[therapeutic] visits would play an integral part in his treatment process."¹² It was recommended Parsons attend the day treatment program once per week for approximately two hours. The Pushmataha County District Attorney timely filed a written objection; however, the general objection provided no basis for the State's opposition.

¶ 9 A hearing was held on December 17, 2014. Testimony was offered from Dr. Satwant Tandon, a board certified psychiatrist and the clinical director of OFC. Dr. Tandon testified that therapeutic visits are necessary to provide patients with exposure to a "community setting, and that is the goal that we need to have them experience under different environments."¹³ According to Dr. Tandon, Parsons would be supervised by staff from both GLMHC and OFC. Additionally, after returning from therapeutic visits, Parsons would be required to submit to drug/alcohol screening and would be searched for contraband. The State offered no evidence to contradict Dr. Tandon's testimony or the FRB recommendation. Despite no evidence to rebut the FRB's treatment recommendation, the trial judge sustained the State's objection. The trial judge's ruling failed to address the express requirements set forth in 22 O.S.2011 § 1161(F)(3)(b) —specifically, "whether the therapeutic visit is necessary for treatment, and if necessary, the nature and extent of the visit." Instead, the order found Parsons to be "presently dangerous" and a "person requiring treatment."¹⁴ Parsons filed a petition for a writ of mandamus in OCCA case number MA-2015-71, requesting an order compelling the trial court to approve therapeutic visits. OCCA issued an order denying relief on May 27, 2015.

¶ 10 On October 29, 2015, the FRB met once again to discuss Parsons' mental health case. The FRB filed a report with the district court on December 7, 2015, notifying the parties that Parsons would soon begin therapeutic visits at GLMHC. On December 9, 2015, the State objected in the same manner as in 2014. A hearing was held on January 6, 2016, to address the therapeutic visits and the State's objection. Initially, the parties debated over whether the burden of proof rested with the State or Parsons. The trial judge never issued a ruling on the burden of proof; and consequently, the only testimony was presented on behalf of Parsons. As with the first hearing, the State presented no evidence.

¶ 11 Parsons' wife, Sara Parsons, testified during the January 2016 hearing. Mrs. Parsons indicated that she had been appointed as a patient advocate for purposes of Parsons' treatment team. She also noted that Parsons had previously been approved for therapeutic visits by the trial judge for purposes of attending medical appointments and a family funeral. According to Mrs. Parsons, each of these off-site events took place without incident.

¶ 12 Parsons additionally presented the testimony of Joseph Errico, M.D. In September 2015, Dr. Errico became Parsons' treating psychiatrist. Dr. Errico testified that patients who are housed at OFC following a NGRI judgment go through a graduated program. After patients reach the maximum benefit at a certain therapy level, they are afforded broader privileges within OFC. According to Dr. Errico, such advancements are essential to determine a patient's capacity to function properly in each environmental change....