State v. Barzee

• Decision Date: 14 December 2007
• Docket Number: No. 20060627.,20060627.
• Citation: 2007 UT 95,177 P.3d 48
• Parties: STATE of Utah, Plaintiff and Appellee, v. Wanda Eileen BARZEE, Defendant and Appellant.
• Court: Utah Supreme Court

177 P.3d 48

2007 UT 95

STATE of Utah, Plaintiff and Appellee, v. Wanda Eileen BARZEE, Defendant and Appellant.

No. 20060627.

Supreme Court of Utah.

December 14, 2007.

Mark L. Shurtleff, Att'y Gen., Christine Soltis, Kris C. Leonard, Asst. Att'ys Gen., John K. Johnson, B. Kent Morgan, Alicia H. Cook, Salt Lake City, for plaintiff.

David V. Finlayson, Scott C. Williams, Salt Lake City, Jennifer Gowans, Randall K. Spencer, Provo, for defendant.

DURHAM, Chief Justice:

¶ 1 This case comes before us on an interlocutory appeal from the district court's order granting the State of Utah's motion to compel medication of the defendant, Wanda Barzee. This opinion contains the views of the majority of the court as to all parts of the analysis except Part III.A regarding the appropriate standard of review for the second Sell factor and Part III.D.2. Part III.D.2 of this opinion addresses whether involuntary administration of antipsychotic medication is substantially likely to render Ms. Barzee competent to stand trial. This opinion, as discussed in Part III.D.2, concludes that it is not, but this opinion is not the majority opinion on that issue. The majority opinion on that issue concludes otherwise, as set forth in Justice Durrant's separate opinion, and thus affirms the district court's order granting the State's motion to compel medication. Justice Durrant's opinion is joined by Associate Chief Justice Wilkins and Justice Parrish. The dissenting view concerning the standard of review for the second Sell factor in Part "III.A and the entirety of Part III.D.2 of this opinion is that of myself; Justice Nehring concurs in my result.

BACKGROUND

I. PROCEDURAL HISTORY

¶ 2 In March 2003 Ms. Barzee and her husband, Brian David Mitchell, were arrested and charged with multiple felonies in connection with their alleged abduction of a minor. Ms. Barzee was charged with aggravated burglary, aggravated sexual assault, aggravated kidnaping, and attempted aggravated kidnaping, or in the alternative, conspiracy to commit aggravated kidnaping. The State filed a petition to inquire into Ms. Barzee's competency. Two court-appointed evaluators determined that Ms. Barzee was suffering from mental illness of a psychotic nature and that her competency was "severely compromised." Both evaluators found that, due to the nature of her psychosis, Ms. Barzee had "severe impairments" in her ability to engage in the reasoned choice of legal strategies and options, and thus concluding that Ms. Barzee was "severely impaired with respect to her present capacity to consult with her counsel and participate in the proceedings against her with the reasonable degree of rational understanding." The district court concluded that Ms. Barzee was not competent to proceed. Ms. Barzee was then transferred to the Utah State Hospital, where she currently remains.

¶ 3 Since its initial ruling, the district court has conducted two hearings to review Ms. Barzee's competence. After the first review hearing in August 2004, the district court determined that while Ms. Barzee was still incompetent to stand trial, there was a "substantial probability that [she] may become competent in the foreseeable future." One year later, after the second review hearing, the district court concluded that Ms. Barzee remained incompetent. Following that hearing, the Salt Lake District Attorney's Office filed a motion to compel medication.¹ At the Medication Hearing, the district court heard testimony from Drs. Kreg Jeppson, Paul Whitehead, Raphael Morris, and Xavier Amador; the court subsequently granted the State's motion to compel medication. Ms. Barzee filed this interlocutory appeal; we have jurisdiction pursuant to Utah Code section 78-2-2(3)(h) (2002).

II. DIAGNOSES AND OPINIONS OF THE MENTAL HEALTHCARE PROFESSIONALS

¶ 4 In all, eight mental health care professionals were involved in this case. All eight agree that Ms. Barzee suffers from a psychotic disorder with the primary feature of nonbizarre grandiose delusions.² However, Ms. Barzee's precise diagnosis is in dispute, as is the question of whether antipsychotic medication is likely to render Ms. Barzee competent. Initially, two evaluators were appointed to determine if Ms. Barzee was competent to stand trial. Each offered an opinion on Ms. Barzee's diagnosis.

¶ 5 First, Dr, Jeffrey A. Kovnick, a psychiatrist and court-appointed competency evaluator, diagnosed Ms. Barzee with shared psychotic disorder³ because of the development of her delusions during her relationship with Mr. Mitchell, who Dr. Kovnick believed was the dominant individual. He also opined that she qualified for a diagnosis of delusional disorder.⁴ According to Dr. Kovnick, Ms. Barzee suffers from nonbizarre delusions, delusions of reference, no verbal or communication symptoms apparent in schizophrenia, and no other psychotic symptoms; thus, shared psychotic disorder or delusional disorder, rather than schizophrenia, is the proper possible diagnosis. He found her incompetent to stand trial because of the impairment in her capacity to engage in reasoned choice of legal strategies and options. He suggested that Ms, Barzee's treatment should include medication and that antipsychotic drugs would increase the likelihood that she would become competent.

¶ 6 Second, Dr. Nancy B. Cohn, a psychologist and court-appointed competency evaluator, diagnosed Ms. Barzee with schizophrenia,⁵ paranoid type, a conclusion not shared by any of the seven other experts who were asked to give opinions regarding Ms. Barzee's mental health. Dr. Cohn reported symptoms including cognitive disorganization symptomatic of thought disorder, paranoid ideation, hallucinations, delusions, and referential thinking. Dr. Cohn also noted that there was no evidence to suggest that a head injury or substance abuse precipitated Ms. Barzee's current condition. She stated that Ms. Barzee was incompetent to stand trial based on impairment in her ability to testify relevantly, in her capacity to communicate with her attorneys, and in her ability to make reasoned choices because her decisions are driven by her religiously based delusions. She noted that qpisychotropic medications have been minimally useful in diminishing delusional thinking in certain kinds of psychotic disorders, but it is not entirely clear that medication would be helpful in addressing Ms. Barzee's deeply entrenched, delusional belief, as these are the symptoms that are most refractory to pharmacological intervention."

¶ 7 After the initial evaluations, review hearings were held, and the district court heard from two additional experts, Dr. Gerald Berge, a psychologist, and Dr. Eric Nielsen, a social worker. Each evaluator expressed an opinion on Ms. Barzee's progress toward competency and her diagnosis.

¶ 8 In a report dated July 2004, and in testimony before the court in August 2004, Dr. Berge stated that he agreed with Dr. Kovnick's diagnosis of shared psychotic disorder. He disagreed with Dr. Cohn's evaluation, stating that the symptoms were not as severe as Dr. Cohn suggested in her report. For example, Dr. Berge opined that Ms. Barzee does not suffer from hallucinations or pronounced disorganization in thinking. Like Dr. Kovnick, Dr. Berge's diagnosis of shared psychotic disorder was connected to Ms. Barzee's relationship with Mr. Mitchell. Dr. Berge stated, however, that he would shift the diagnosis to delusional disorder if the delusions continued despite lengthy separation from Mr. Mitchell. In Dr. Berge's opinion, Ms. Barzee remained incompetent to stand trial because nonbizarre delusions, the primary feature of her disorder, continued to impair her capacity to make reasoned choices regarding her legal options. Dr. Berge stat ed that the effect of medication on a patient like Ms. Barzee is "controversial," but noted that if the delusions were eliminated, she would likely become competent.

¶ 9 One year later, at another review hearing, Dr. Nielsen diagnosed Ms. Barzee with psychotic disorder not otherwise specified (PDNOS).⁶ Dr. Nielsen stated that the primary feature of her illness is grandiose religious delusions and that she also suffers from anosognosia, or a lack of insight into her mental illness. He opined that Ms. Barzee's disorder could not be shared psychotic disorder because despite separation from Mr. Mitchell and her decision, with God's influence, to "leave him behind," her delusions continued. Dr. Nielsen further opined that she does not suffer from schizophrenia because many of the symptoms associated with that diagnosis are not present in Ms. Barzee's case. He stated that the delusions affect her functioning generally and that, in his opinion, this was not typical of delusional disorder. He reported that, due to her psychosis, Ms. Barzee continued to be incompetent to stand trial.

¶ 10 Dr. Nielsen expressed the opinion that if Ms. Barzee has delusional disorder, the condition is refractory and rarely treatable with medication but that schizophrenia generally has some response to antipsychotic medication. He pointed out that symptoms of a delusional nature do not respond favorably to medication and that Ms. Barzee's long duration of untreated psychosis suggests a poorer prognosis but that the schizophrenic symptoms of thought disorder—rambling and vagueness—may suggest a more favorable response to the drugs.

¶ 11 Because Ms. Barzee's incompetence was not improving without medication and because Ms. Barzee refused to be medicated, the State moved to medicate her forcibly. The Medication Hearing was held in February 2006. Four experts testified as to Ms. Barzee's condition and the likely effects of medication.

¶ 12 First, Dr. Kreg Jeppson, a psychiatrist at the Utah State Hospital, Ms. Barzee's treating physician, and the State's primary witness, based his opinions on his experience at the state hospital where he treats many schizophrenic and bipolar patients, some patients with PDNOS, and very...