State v. Hughes

• Decision Date: 04 February 2004
• Parties: In the Matter of Randall Hughes, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Randall HUGHES, Appellant.
• Court: Oregon Court of Appeals

83 P.3d 951

192 Or. App. 8

In the Matter of Randall Hughes, Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent, v. Randall HUGHES, Appellant.

010362845; A114527.

Court of Appeals of Oregon, En Banc.

Submitted on Record and Briefs June 23, 2003.

Resubmitted November 5, 2003.

Decided February 4, 2004.

David J. Celuch and David T. McDonald & Associates, PC, Portland, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, filed the brief for respondent.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, BREWER, SCHUMAN, and ORTEGA, Judges.

Resubmitted En Banc November 5, 2003.

LANDAU, J.

Appellant seeks reversal of an order committing him to the Mental Health Division based on findings that he is a danger to himself and unable to provide for his basic personal needs. ORS 426.005(1)(d)(A), (B). He argues that the trial court erred in "denying [him] the opportunity to subpoena witnesses for the hearing." We affirm.

The relevant facts are not in dispute. In April 2001, appellant was brought before the Multnomah County Circuit Court based on a notice of mental illness filed by his mother and sister. They reported that appellant has a history of mental disorders dating from adolescence, that he had been off of his medications for the previous five months, that he had lost 30 to 40 pounds during that time, that he was hallucinating and yelling obscenities at people who do not exist, and that his home was filthy and full of cat feces, moldy food, and dirty laundry.

At the civil commitment hearing, appellant was represented by counsel. The hearing itself literally began with an outburst:

"[APPELLANT]: These are the people [appellant's mother and sister] that I never visit with, but where are my sons at? They're the ones that I live with all my life and raised. Okay? Yeah.

"THE COURT: Yeah.

"[APPELLANT]: (inaudible).

"THE COURT: Well, sir, if you'll bear with me just for a minute, I'm Judge Lawrence.

"[APPELLANT]: These people I never see. These people, see they, these people, they've been gone while I was raising my family. They were busy, you know, telling everyone else what to do."

The court eventually was able to call the case number and introduce appellant to his court-appointed counsel. The court then attempted to describe to appellant the nature of the proceedings. When the court attempted to advise appellant that he had the right to subpoena witnesses, the following exchange occurred:

"THE COURT: And he [counsel] could use the subpoena power, that is to say the power and process of the courts to compel the production of any evidence or witnesses who could speak in your favor. But I don't believe that's an issue, [counsel], or is it?

"[COUNSEL]: A hard time, you were speaking softly, he was—

"THE COURT: Subpoena, the subpoena.

"[APPELLANT]: Oh, is that, would you repeat the (inaudible)?

"[COUNSEL]: (Inaudible) whether we have any subpoenas?

"THE COURT: [Counsel] could use the subpoena power to compel the production of any evidence or witnesses who could speak in your favor.

"[APPELLANT]: Oh, okay. I'd like my sons, both of my sons in here because they're the only ones that live—I don't live with these people, I don't even see them.

"THE COURT: [Appellant]?

"[APPELLANT]: All they do is just try to say—

"THE COURT: [Appellant]?

"[APPELLANT]: Oh (inaudible).

"THE COURT: Let me be straight with you about that, sir.

"[APPELLANT]: With these guys—

"THE COURT: [Appellant]? I'm not going to put just—

"[APPELLANT]: What's going on with these people and—

"THE COURT: [Appellant]?

"[APPELLANT]: And I don't know what her problem is, and what all this false evidence that I— "* * * * *

"[EXAMINER]: (Inaudible) the judge has to try and answer you, okay, about your sons, so—

"THE COURT: Your, your sons are not going to be brought into your presence.

"[APPELLANT]: Why, why? Because they're my, they're the only ones that I spend time with every day—

"THE COURT: Because—

"[APPELLANT]: They're the only ones that are witnesses. I, these people aren't witnesses. And she filed false evidence against me, illegal, it's false evidence. My kitchen floor is dirty, she says.

"THE COURT: I'm not going to put those children through this. "* * * * *

"[COUNSEL]: (Inaudible), only witnesses that he's requested.

"THE COURT: Right.

"[APPELLANT]: I'm requesting and you're denying my truthful witness.

"[COUNSEL]: They could testify by phone as he suggested earlier or anything else, but at this point we would object both on the Oregon, U.S. Constitutional (inaudible), proceeding without being able to subpoena the witnesses that he's requested.

"THE COURT: Thank you, [counsel]. The Court is satisfied that, that there is substantial likelihood that the children's evidence would not be helpful to [appellant] under these circumstances."

(Emphasis added.)

The report of the precommitment investigation was entered into evidence. Among other things, the report detailed appellant's history of mental illness and current diagnosis of bipolar disorder with psychotic symptoms, including paranoid delusions and hallucinations. The mental examiner attempted to ask appellant some questions, but was persistently interrupted by appellant's unresponsive outbursts. When questioned about whether he had been eating, he responded with a complaint about poisoning caused by a doctor. Appellant reported that he ate several times a day and that his diet consisted of vegetables, rice, milk, and bread. When asked about the fact that his family reported a weight loss of 30 to 40 pounds, he replied that his antidepressant medication made him "blow up" and that the medication, when combined with others he had been prescribed, almost killed him. He said that he "fell dead on the floor" and that his sons could attest to that fact. He decided to stop taking the antidepressant and then began to lose weight. He insisted that he was at his normal weight. He then complained that he currently suffered a broken neck and back and that the doctor only prescribed him "poison."

Appellant's sister testified about the condition of appellant's house, that there were cat feces all over the carpeting, that there was laundry soap all over the floor, food all over the house, severe mold, and a bucket of urine in the bath tub. She said that appellant would not drink water from the house because it was poisoned and that all his food was poisoned, as well. She said that appellant had not been eating and that he had told her that he was cooking vegetables "for his fish to eat." She said that appellant yells and screams at people from his window at home or on the street. She complained that he yells profanity and once spit on a passing car and "flipped them off," which resulted in the occupants of the car chasing a niece who was with them at the time. She said that appellant remained safe so far only because members of his family had been able to protect him. Appellant interrupted every question and every answer with interjections about, among other things, his broken neck and back, about people "breaking into innocent people's houses," about the failure of his sisters to help him clean the house or give him money, and about their testimony having been paid for by the examiners.

The trial court found that appellant suffers from a mental disorder, based on the reports of the examiners and "certainly by his affect today." The court continued:

"THE COURT: He is indeed agitated, uncontrollable, angry—

"[APPELLANT]: Agitated? Shit yeah!

"THE COURT: (Inaudible).

"[APPELLANT]: Oh, he wanted me to be calm, am I calm, when she, but you're so petty.

"THE COURT: He is not eating, and he is, the Court is satisfied that, if released, [appellant] today would be unable to care for his basic needs, that he'd be unable to feed himself—

"[APPELLANT]: I've been caring for myself for over forty years, Your Honor. That's filthy. Bring my children in here—

"THE COURT: He'd be unable to clothe himself properly. He'd be unable to actually access funds for, for food.

"[APPELLANT]:—testify, that they're filthy action[s], all your filthy actions. That's a lie. I got food in my pocket! Look at my wallet. I still got food in my—

"THE COURT: And that there's clear and convincing evidence that, as a result of his mental disorder, he is a danger to himself, particularly since he is confronting strangers on the streets.

"[APPELLANT]: That's a filthy lie. It's, are you, you, anybody else going to testify or is she just going to— "* * * * *

"THE COURT: For those reasons, the Court does find upon clear and convincing evidence that [appellant] suffers from a mental disorder and is dangerous to himself and is unable to provide for his basic personal needs and is not receiving the care necessary for his health or safety.

"[APPELLANT]: Are you just (inaudible) or are, are you pressing—

"THE COURT: The Court further finds—

"[APPELLANT]:—judgment against a good citizen.

"THE COURT: That [appellant] is either unwilling, unable or unlikely—

"[APPELLANT]: And then you're going to dibble me for months and have me kill, I mean—

"THE COURT:—to participate in treatment on a voluntary basis—

"[APPELLANT]: Sicker than I am because of your filthy food."

The hearing ended with appellant yelling that his sisters wanted to kill him.

On appeal, appellant does not challenge the trial court's findings on the merits. Instead, he argues that the trial court erred by "denying [him] the opportunity to subpoena witnesses for the hearing." He argues that "the failure of the trial court to allow the allegedly mentally ill person to subpoena witnesses on his own behalf violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution."

The state argues that the assignment fails because (1) it is not preserved; (2) even if otherwise preserved, it is not reviewable because of a lack of an...