State v. Tooley

• Decision Date: 26 April 1994
• Docket Number: No. 75961,75961
• Parties: STATE of Missouri, Respondent, v. Timothy Jack TOOLEY, Appellant.
• Court: Missouri Supreme Court

Page 110

875 S.W.2d 110

STATE of Missouri, Respondent, v. Timothy Jack TOOLEY, Appellant.

No. 75961.

Supreme Court of Missouri,

En Banc.

April 26, 1994.

Rehearing Denied May 26, 1994.

Joe Zuzul, Public Defender, Nevada, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Clate J. Baker, Asst. Atty. Gen., Springfield, for respondent.

PRICE, Judge.

Timothy Tooley was found not guilty by reason of insanity of the crime of sodomy in 1984. This case arises out of his request for an unconditional discharge from his commitment to a state mental institution. On May 26, 1993, the trial court denied Tooley's request, finding that he was suffering from a mental disease or defect and that he did not meet his burden to entitle himself to a release pursuant to § 552.040.6(6), RSMo Supp.1992.

Tooley appeals this decision, citing Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). He argues that § 552.040.6(6) violates due process by placing the burden of persuasion upon the person seeking release, rather than upon the state, to show by clear and convincing evidence that he or she does not have a mental disease or defect. We find that it is constitutionally permissible for § 552.040.6(6) to place the burden of proof upon Tooley.

I.

In 1984, Timothy Tooley pleaded not guilty by reason of mental disease or defect to the charge of deviate sexual intercourse with a girl to whom he was not married and who was less than fourteen years old. The court accepted this plea, and he was committed to the custody of the Department of Mental Health. Beginning in October 1985, he had a series of conditional releases to Wheaton Manor, a group home.

In April 1992, a Petition for Unconditional Release was filed on Tooley's behalf. On May 1 and May 5, 1992, respectively, the Vernon County Prosecuting Attorney and the Department of Mental Health (the State) filed objections to Tooley's unconditional release.

In the summer of 1992, Tooley voluntarily readmitted himself to Fulton State Hospital for an evaluation after an incident with a thirteen-year-old girl. Tooley had been sitting on a bench watching the girl and eventually had hugged her repeatedly until she yelled for him to stop. This incident was similar to the one which caused his 1984 commitment, except that in this incident there was no sexual contact and Tooley was taking preventive medication. After a thirty-day evaluation, he was again conditionally released.

On October 23, 1992, the court ordered a mental examination. On January 19, 1993, a hearing was held on Tooley's petition for unconditional release. Dr. Harold Robb was the psychiatrist who performed Tooley's mental examination. He also had been Tooley's treating psychiatrist at one time. At the hearing, he testified that Tooley did suffer from a mental disease and that he did not support Tooley's unconditional release.

At the hearing, Yvonne Cordeiro, the forensic case monitor for the Department of Mental Health, testified that Tooley had engaged in inappropriate behavior at the group home. In her opinion, Tooley did not comprehend the inappropriateness of his behavior. After the hearing, the court took the case under advisement.

On January 22, 1993, the Prosecuting Attorney and the Department of Mental Health jointly moved for a rehearing based on Dr. Robb's testimony that Tooley was being treated by another physician. The court treated the motion as one to reopen the case for additional evidence, and granted the motion over Tooley's objection. On May 11, 1993, the state presented the testimony of Charles Clinton Cheely, the Program Director of the Community Psychiatric Rehabilitation Program at Clark Community Mental Health Center. Cheely diagnosed Tooley with bipolar disorder, a mental illness. On May 26, 1993, the court entered an order denying the Petition for Unconditional Release, stating that Tooley was suffering from a mental disease or defect and did not meet his burden to entitle himself to a release. ¹

Tooley remains on conditional release at the residential care facility. He works at a Sheltered Workshop and at a barbershop for a nominal salary. At the residential care facility, he is responsible for his own room and for cooking meals two to three times a week. He complains of boredom, and wants an outdoor job where he could make more money. ²

As this case concerns the validity of a statute of this state, this Court has exclusive jurisdiction. Mo. Const. art. V, § 3. Before this Court, Tooley raises two arguments: first, that the trial court erred in placing the burden of persuasion upon him; and second, that the trial court lacked authority to order a rehearing.

II.

A.

An individual may be involuntarily committed to a mental institution in a civil proceeding if the state proves by clear and convincing evidence that (1) the person sought to be committed is mentally ill, and (2) he or she requires hospitalization for his or her own welfare or the protection of others. Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 1813, 60 L.Ed.2d 323 (1979). However, a state may commit a person without satisfying the Addington requirements when the person is found not guilty of a crime by reason of insanity. Jones v. United States, 463 U.S. 354, 363-64, 103 S.Ct. 3043, 3049, 77 L.Ed.2d 694 (1983). A verdict of not guilty by reason of insanity establishes that the person committed a criminal act and that he or she committed the act because of mental illness. Id. at 363, 103 S.Ct. at 3049. The Court stated that it was neither unreasonable nor unconstitutional for Congress to make the determination that these findings were adequate to hospitalize the acquittee as a "dangerous and mentally ill person". Id. at 364, 103 S.Ct. at 3049.

Likewise, in Jones the Court stated that it was not unreasonable for Congress to determine that an insanity acquittal supports an inference of continuing mental illness. Id. at 366, 103 S.Ct. at 3050. "It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment." Id. Finally, the Court held that:

[W]hen a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.

Id. at 370, 103 S.Ct. at 3053.

B.

In Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), Terry Foucha had been found not guilty by reason of insanity and committed to a mental institution. Four years later, a panel from the state institution in which he was confined reported that there had been no evidence of mental illness since his commitment and recommended his conditional discharge. The applicable Louisiana statute placed the burden upon the insanity acquittee to prove that he or she was not dangerous. If the acquittee was found dangerous, he or she could be returned to the mental institution, whether or not then mentally ill. Despite the panel's recommendation, the trial court ruled Foucha was dangerous to himself and others and ordered him returned to the institution. The Louisiana Supreme Court affirmed, holding that Foucha had not carried his statutory burden to prove himself not dangerous.

The U.S. Supreme Court reversed, basing its decision on the fact that the state of Louisiana did not contend that Foucha was mentally ill at the time of the trial court's hearing, but instead sought to perpetuate his confinement on the basis of his antisocial personality, an untreatable condition that is not a mental disease. Id. at ----, ----, 112 S.Ct. at 1782, 1784. Since the state did not contend that Foucha was mentally ill at the time of the hearing, the "basis for holding [him] in a psychiatric facility as an insanity acquittee [had] disappeared, and the State [was] no longer entitled to hold him on that basis." Id. at ----, 112 S.Ct. at 1784.

III.

Tooley asserts that the Missouri statute governing unconditional release is unconstitutional under Foucha, as it places the burden of persuasion upon the person seeking release. Section 552.040.6(6) states, in relevant part:

The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility for a violent crime against another person for violations of [sections omitted] ³ ..., shall be on the party seeking unconditional release to prove by a clear and convincing evidence that the person for whom unconditional release is sought does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering him dangerous to the safety of himself or others.

Tooley is correct that § 552.040.6(6) places the burden of proof upon insanity acquittees to prove that they no longer suffer from a mental disease or defect rendering them dangerous to themselves or others. Tooley is incorrect, however, in asserting that Foucha applies here.

In Foucha, the state already had acknowledged that Terry Foucha no longer suffered from mental disease or defect. Therefore, the presumption of continuing mental illness found appropriate in Jones v. United States, 463 U.S. 354, 366, 103 S.Ct. 3043, 3050, 77 L.Ed.2d 694 (1983), no longer existed.

Here, the state has never acknowledged that Tooley is no longer mentally ill. In fact, the state presented evidence and argued to the contrary. So long as the Jones presumption of continuing mental illness has not been broken following an acquittal by reason of insanity, the burden of proof need not shift to the state. ⁴

Other courts have resolved this issue similarly. In Hearne v. United States, 631 A.2d 52 (D.C.Ct.App.1993), the District of Columbia statute...