Warren v. State

• Decision Date: 19 October 2015
• Docket Number: No. S15A0795.,S15A0795.
• Citation: 297 Ga. 810,778 S.E.2d 749
• Parties: WARREN v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 810

778 S.E.2d 749

WARREN

v.The STATE.

No. S15A0795.

Supreme Court of Georgia.

Oct. 19, 2015.

Gerald P. Word, Georgia Capitol Defender, Atlanta, Jimmy Dodd Berry, Jim D. Berry, PC, Michael John Ivan, Ivan Law Firm, P.C., Marietta, Teri L. Thompson, Law Office of Teri Thompson, LLC, Snellville, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Jesse David Evans, Asst. Dist. Atty., John Richard Edwards, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Donald Paul Geary, Asst. Dist. Atty., Cobb County District Attorney's Office, for appellee.

Opinion

NAHMIAS, Justice.

Jesse James Warren has been indicted on four counts of murder and many additional charges in connection with a mass shooting at a Penske Trucking Company location in Cobb County on January 12, 2010, in which four victims were killed and a fifth victim was paralyzed. The State has given notice of its intent to seek the death penalty. On March 4, 2013, Warren filed a special plea of mental incompetence to stand trial. See OCGA § 17–7–130(b)(2). That same day, the trial court issued an order for Warren to be evaluated by the Georgia Department of Behavioral Health and Developmental Disabilities. See OCGA §§ 17–7–129, 17–7–130(b)(1). On May 9, 2013, after receiving a report on that evaluation from Dr. Brian Schief and Dr. Don Hughey, which indicated that Warren was incompetent to stand trial but might benefit from treatment, the trial court issued an order for Warren to be placed in the custody of the Department in order to receive further psychological observation, evaluation, and treatment. See OCGA § 17–7–130(c). Warren has remained confined in a state psychiatric hospital since that time. On November 18, 2013, the State filed a motion requesting the authority to medicate Warren involuntarily in an attempt to make him mentally competent to stand trial. On June 25, 2014, the trial court held an evidentiary hearing, and on July 9, 2014, the court filed a short order granting the State's motion.¹Warren filed a notice of appeal to this Court.²For the reasons set forth below, we vacate the trial court's order and remand the case for further proceedings.

1. Introduction

In Sell v. United States,539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the Supreme Court of the United States established a four-part test for determining the “rare” instances when it is constitutionally permissible to involuntarily medicate a mentally ill criminal defendant for the sole purpose of making him competent to stand trial. Id. at 180, 123 S.Ct. 2174. Under that test, the State must demonstrate the following: (1) important governmental interests are at stake; (2) involuntary medication will significantly further those governmental interests; (3) involuntary medication is necessary to further those governmental interests; and (4) the administration of the drugs to be used is medically appropriate for the defendant. See id. at 180–181, 123 S.Ct. 2174.

This Court has not previously applied the Selltest.³We now hold, in agreement with the majority of other courts that have addressed the issue, that the first part of the test generally presents a legal question and thus should be reviewed de novo on appeal, while the remaining three parts present primarily factual questions and thus should be reviewed only for clear error by the trial court. See, e.g., United States v. Dillon,738 F.3d 284, 291 (D.C.Cir.2013)(collecting cases); United States v. Diaz,630 F.3d 1314, 1330–1331 (11th Cir.2011)(same).⁴We also join the prevailing view and hold that the State should bear the burden of proof on the factual questions involved under the clear and convincing evidence standard. See, e.g., Dillon,738 F.3d at 291–292(collecting cases); Diaz,630 F.3d at 1331(same).

See also Addington v. Texas,441 U.S. 418, 432–433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)(holding that the clear and convincing evidence standard is the lowest standard that due process permits for cases involving civil commitment).

In the divisions that follow, we first review the evidence presented to the trial court and then address each of the four parts of the Selltest in detail. Finding clear errors in the trial court's rulings, we conclude with a discussion of the appropriate remedy in this case.

2. The Evidence Presented to the Trial Court

The evidence presented by the State in support of its motion to have Warren involuntarily medicated was comprised of testimony from the psychiatrist and psychologist who had conducted his original competency evaluation, Dr. Bryan Schief and Dr. Don Hughey. The evidence presented by Warren included his medical records from before and after the shooting and testimony from his treating psychiatrist and psychologist, Dr. Francis J. Kane, Jr., and Dr. Norris Currence, and from a consulting pharmacologist, Dr. Alexander Morton. According to the medical records and all five experts, Warren was mentally incompetent to stand trial because of a delusional disorder and was not currently taking any psychoactive medications. The evidence was otherwise in conflict on important points, and disorganized and incomplete on other significant points. Our review of this evidence is rather lengthy, but necessary for the legal analysis that follows in Division 3.

(a) The State's Two Expert Witnesses(1) Dr. Schief

The State's principal witness was Dr. Schief, a psychiatrist who works at Georgia Regional Hospital and who had evaluated Warren multiple times and had reviewed his medical records. Dr. Schief testified generally that antipsychotic medications will make delusions go away completely in some people, that other people will have a partial response, that others “don't improve,” and that there is no way to determine how a given person will respond to the medications other than to administer them and observe the response. Dr. Schief said, however, “Certainly most [people] get better enough to become competent to stand trial,” adding, “Most of the time folks do very well with these medications and you don't have major side effects.”

Turning to Warren's case, Dr. Schief testified that his delusions, including his belief that he is an “emperor,” would render him incompetent to stand trial because he would question the validity of his criminal proceedings and would be “irrational about his approach to his defense and would [be] unable to assist his attorney effectively.” When asked if Warren was refusing to be medicated, Dr. Schief said that medications “haven't been offered in quite some time, but when they were last offered he refused to take them.” When asked if Warren would be able to assist his defense counsel if medicated, Dr. Schief replied, “[I]t's hard to predict how [each individual is] going to respond, but there's a substantial probability he would be able to assist his attorney with medicine,” adding that the medications “are unlikely to interfere with ability to assist in court.” Regarding treatments other than medication, Dr. Schief said, “They might have benefitted him a little bit in terms of organizing his thoughts and confirming some of the things he needed to know about court, but they did not come very close to getting him competent to stand trial.” Asked if administering medication to Warren would be medically appropriate, Dr. Schief answered, “Yes,” but offered no further explanation. Dr. Schief agreed with Warren's treating physician, Dr. Kane, that Warren suffers from a delusional disorder but disagreed about “A, whether the medicine is likely to help him get a lot better and get him competent to stand trial, and, B, whether the medicine is likely to have problematic side effects for him.”

Dr. Schief then discussed one study conducted from 1965 to 1985, which showed that, when medicated, “more than half of the patients recovered, meaning were so much better that they were either symptom free or largely symptom free,” that “28 percent achieved partial recovery,” and that “19 percent did not improve.” He noted that another study published in 2006 showed that “50 percent recovered, just about, and then another 40 percent showed significant improvement.”

Dr. Schief next explained that there are three “generation[s]” of antipsychotic medications. The first carries “a higher rate of movement disorders over time”; the second carries a smaller risk of movement disorders but “a little bit of a higher risk of increasing people's weight, blood sugar and cholesterol”; and the third is “very low in terms of likelihood of adding to the risk of increased blood sugar, cholesterol and weight.” He testified that Warren had taken a second generation drug, Geodon

, for one day, but after Warren suffered a decrease in blood pressure, Dr. Kane changed the medication to a first generation drug, Haldol.⁵Regarding the treatment with Haldol, Dr. Schief testified:

[Warren] was prescribed that for, I think 20—19 days at four milligrams. He complained of some tiredness, and then it was reduced to two milligrams. He took that for about 25 days and he still complained of tiredness so the doctor stopped and didn't try any other medicine until after our second evaluation in late August [2013], and ... we suggested that another medicine be tried. Mr. Warren agreed to us that he would try it, but then when the doctor tried to prescribe it he refused. So really after that time, the 25–day trial, he didn't take anything more.

When asked how long it generally takes for antipsychotic medications to have an effect on delusions, Dr. Schief said:

An adequate trial really depends on who you ask, but a minimum probably of four to six weeks at an adequate dose. But probably more realistically for someone that has had symptoms for as long as Mr. Warren has and are as severe as Mr. Warren's are would take ... a minimum of eight to twelve weeks for a trial.

As for side effects, Dr. Schief testified that “you can't ever say I'm going to...