Summary
holding under state law that a psychologist was qualified to testify that a criminal defendant would benefit and regain competency from forced anti-psychotic medications
Summary of this case from Hogland v. Town & Country Grocer of Fredericktown Mo., Inc.Opinion
NO. 2013-CA-001526-MR
03-13-2015
CLARA PORTER APPELLANT v. HONORABLE DAVID HOLTON Judge, Jefferson District Court AND COMMONWEALTH OF KENTUCKY Real Party in Interest APPELLEES
BRIEF FOR APPELLANT: Cicely J. Lambert Louisville, Kentucky BRIEF FOR APPELLEE: David Sexton Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 13-CI-004108
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON, AND JONES, JUDGES. JONES, JUDGE: The Appellant, Clara Porter, is appealing the decision of the Jefferson Circuit Court denying her request for a writ prohibiting a district court judge from enforcing his order authorizing the forcible medication of Porter for the purpose of regaining her competency to stand trial. For the reasons set forth below, we AFFIRM.
I. BACKGROUND AND PROCEDURAL HISTORY
As an initial matter, we note that the record before us is sparse. Included in the record are the parties' briefs and related motions filed with the circuit court, including a copy of Porter's arrest citation and the district court order at issue; a video transcript of the oral argument before the circuit court; and the circuit court's opinion. Our review, however, is complicated by the fact that the actual record before the district court is absent. We do not have a copy of the testimony received by the district court or any of the records submitted before the district court related to Porter's competency.
Most of our recitation of the underlying facts is taken from the circuit court's opinion, which we must presume is correct in absence of the district court record. See Moody v. Commonwealth, 170 S.W.3d 393, 398 (Ky.2005) ("It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.").
According to the arrest citation, Porter was arrested on March 25, 2013, following an incident outside of the Healing Place in Louisville, Kentucky. (R. at 13). The arrest citation alleges that Porter was asked by a police officer to leave the premises. Porter refused and "balled her fist and took a fighting stance." Id. Then, with a closed fist, she attempted to strike the officer in the face. Id. Porter was subsequently arrested and charged with Assault in the Third Degree, Menacing, and Criminal Trespass in the Third Degree. Id.
The remaining facts are set forth in the circuit court's opinion as follows:
Ms. Porter is charged with one count of Assault in the Third Degree, one count of Menacing, and one count of Criminal Trespass in the Third Degree. The parties do not dispute that Ms. Porter has a long history of mental illness.
Ms. Porter's counsel moved for an examination of her mental condition pursuant to KRS 504.080. The District Court granted the motion and reviewed the results. The District Court held a competency hearing on July 1, 2013. At the competency hearing, Dr. Smedley noted that Ms. Porter was incompetent but believed she could regain competency with medication. The District Court found Ms. Porter incompetent, but that there was a substantial likelihood that she would regain competency. Ms. Porter was ordered to KCPC [Kentucky Correctional Psychiatric Center] for in-patient treatment, but refused to take the medication prescribed to her by her treating psychiatrist, Dr. Juneja.
Dr. Juneja determined that Ms. Porter could regain competency with forced medication. On July 31, [2013], the Commonwealth moved the District Court for an order authorizing KCPC to forcibly medicate Ms. Porter. The District Court then held a hearing regarding forcible medication on August 5, 2013. The Commonwealth called Dr. Richard Johnson, Mr. Porter's treating psychologist, to testify as its expert witness. Dr. Johnson is a licensed psychologist, working in the field for 37 years and for KCPC for 17 years. Dr. Johnson reviewed Ms. Porter's mental health history and testified that form September 13, 2012, through October 23, 2012, Ms. Porter benefitted from medication, specifically Risperdal, an anti-psychotic. He testified that the medication relieved some symptoms and that Ms.
Porter had organized thoughts. Dr. Johnson further testified that Ms. Porter was successful on medication in the past.(R. 36-38).
Dr. Johnson indicated that Risperdal would be the first choice of mediation forms. Porter. He testified as to possible side effects of Risperdal, including insomnia, low blood pressure, and extrapyramidal symptoms ("EPS"). He also testified that possible long term side effects are thickening of the tongue, twitching of muscles, and rigidity in the arms and legs. Dr. Johnson indicated that Ms. Porter was prescribed Haldol and Benadryl as well. Defense counsel asked Dr. Johnson about possible side effects of Haldol, including EPS such as tardive dyskinesia and pseudoparkisonianisism.
Dr. Johnson stated that although he was not certain how long it would take Mr. Porter to regain competency after forced medication, it would take at least a month and perhaps six weeks. After the hearing, Judge Holton entered an order forcibly medicating Ms. Porter. Defense counsel objected to a blanket order, requesting that it specify the type of medication authorized.
The order entered by the Commonwealth was a standard form used in forced medication proceedings. Judge Holton found that the Commonwealth met its burden by showing that an important governmental interest was at stake, that forced medication would further that interest, that no-less intrusive alternatives were available and that the administration of medication was medically appropriate.
Porter sought a stay of the district court's order and petitioned the Jefferson Circuit Court for an order that Judge Holton be prohibited from enforcing his order. (R. at 1-27). Following a hearing on August 16, 2013, the circuit court issued an order "affirming" the district court's involuntary medication order, and "remanding" the matter to the district court with directions to include only those medications that were testified to during the prior hearing. (R. at 41). It is from that order that Porter appeals.
While the parties and the circuit court referred to matter before the circuit court as an "appeal" of the district court's opinion and the circuit court used the term "affirm" it in its opinion, a careful review of the record shows that Porter pursued an original writ action in circuit court, not a direct appeal.
The enforcement of the order is currently stayed pending resolution of this appeal.
II. STANDARD OF REVIEW
The proper standard for reviewing a lower court's decision denying a writ of prohibition depends on "the class, or category, of writ case." Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). When the lower court is alleged to be acting outside its jurisdiction, the proper standard is de novo review because jurisdiction is generally a question of law. Id. When, as in our case, an appellant alleges that the lower court against which the writ was filed is acting within its jurisdiction but in error, the court with which the petition for a writ is filed only reaches the decision as to issuance of the writ once it finds the existence of the "conditions precedent"—no adequate remedy on appeal and great and irreparable harm. Id. If these conditions precedent are met, then the decision to grant or deny the writ is discretionary with the reviewing court (here the circuit court) and the circuit court's decision is reviewed by this Court for an abuse of discretion. Id.
III. ANALYSIS
Nowhere in the circuit court's opinion is there any reference to the "adequate remedy on appeal and great and irreparable harm standard." As already set forth above, for all intents and purposes, the circuit court analyzed this case as a direct appeal and proceeded straight to the merits of Porter's claimed errors. This was an error. Because Porter was seeking a writ, the circuit court should have first decided whether Porter's request met the rigorous standards necessary to justify a writ. Collins v. Braden, 384 S.W.3d 154, 158 (Ky. 2012) ("Writ cases require a two-step analysis. First, the court must look at whether such an extraordinary remedy is even available, before deciding the merits of the claimed legal error. Second, if the court finds that the remedy is available, it then looks at the merits of the alleged error, and if the trial court has erred or is about to err, the court writ may issue.").
However, any error on the part of the trial court in failing to appropriately address the first two elements was not raised by parties. Moreover, we conclude such error is harmless. This type of case i.e., the propriety of forcibly medicating a pre-trial detainee with powerful anti-psychotic medications, is the type of case that is appropriate for a writ. Being injected with powerful anti-psychotic drugs which present some known side effects prior to a determination of guilt, if wrongly ordered, is the type of case that could give rise to irreparable injury for which no remedy on appeal would be adequate to protect against. Therefore, even though not articulated in the circuit court's opinion, we find no error in the circuit court addressing whether the trial court abused its discretion when it ordered Porter to be forcibly medicated.
Therefore, we will next consider whether the circuit court abused its discretion when it determined that the district court properly ordered Porter to be forcibly medicated. In so doing, we limit our review to the issues Porter presented in her petition, i.e., whether the district court "acted erroneously in entering the order authorizing forced medication of Ms. Porter, because Dr. Johnson was not qualified to testify as an expert in prescription medication, no finding was made that side effects were substantially unlikely, nor was any such showing made by the Commonwealth. . . ."
Porter also complained that the district court's order failed to specify the drugs that were to be forcibly administered to her. The circuit court "remanded" this action with directions for the district court to amend its order to include the medications that were authorized. We interpret this as the functional equivalent of granting relief to Porter on this portion of her motion.
In Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the United States Supreme Court held that the Constitution permits the Government to involuntarily administer antipsychotic medications to render a mentally ill defendant competent to stand trial. The Court laid out four prongs that must be met in order for forced medication to be appropriate.
First, a court must find that important governmental interests are at stake. The Government's interest in bringing to trial an individual accused of a serious crime is important. However, courts must consider each case's facts in evaluating this interest because special circumstances may lessen its importance, e.g., a defendant's refusal to take drugs may mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment one who has
committed a serious crime. In addition to its substantial interest in timely prosecution, the Government has a concomitant interest in assuring a defendant a fair trial.Id. (emphasis in original). To prevail on a motion to forcibly medicate a defendant, the prosecuting government must establish each Sell prong by clear and convincing evidence. United States v. Grigsby, 712 F.3d 964, 969 (6th Cir. 2013).
Second, the court must conclude that forced medication will significantly further those concomitant state interests. It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a defense.
Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results.
Fourth, the court must conclude that administering the drugs is medically appropriate.
The crux of Porter's argument before the circuit court centered on whether the district court erred in concluding that the Commonwealth had satisfied its burden where the Commonwealth presented only the testimony of Dr. Johnson, a psychologist, instead of a medical doctor authorized to prescribe antipsychotic medications. This primarily implicates prongs two through four of the Sell analysis.
In denying Porter relief, the circuit court found as follows:
Although Dr. Johnson is not a psychiatrist, he is a psychologist. He has practiced psychology for 37 years, 17 years at KCPC. He has been qualified as an expert in the past. He testified that he was familiar with the type of medication used for the treatment of paranoid schizophrenia and was able to testify as to Ms. Porter's past treatment history and to the potential side effects of the proposed medications Risperdal, Haldol, and Benadryl. Although testimony from Ms. Porter's treating psychiatrist may have been ideal, the Court finds that Dr. Johnson was able to testify so as for the District Court to make findings consistent with the standard for forced medication set forth in Sell v. United States. The qualification of a witness as an expert is within the sound discretion of the trial court. See Tapp v. Owensboro Medical Health System Inc., 282 S.W.3d 336, 339 (Ky. App. 2009).
We note that a review of even the sparse record before us reveals that Dr. Johnson's testimony was based on the recommendations of Porter's treating psychiatrists and that the court also had access to the reports filed by those psychiatrists. Additionally, KRS § 504.100, the statute pertaining to competency determinations provides when the court questions a defendant's competency it shall appoint "at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition." (emphasis added).
Porter cites an unpublished Kentucky Supreme Court case, Christian v. Commonwealth, No. 2004-SC-1055, 2005 WL 3500806 (Ky. Dec. 22, 2005), to support her argument that the district court should not have permitted Dr. Johnson to testify about the side effects of certain medications. We are not bound to follow unpublished case law. Moreover, we do find the Christian case to be substantially similar to Porter's case to be of any real persuasive value. In Christian, the court held that the defendant's proposed expert was not qualified to testify regarding the effects of ephedrine on a human body or a theory of ephedrine intoxication, in a trial for murder, where the expert was a psychologist, and not an expert in the fields of medicine, toxicology, or pharmacology. Importantly, the psychologist at issue indicated that his doctoral degree and major area of expertise were in education, not medicine.
In this case, Dr. Johnson was experienced and knowledgeable about the treatment of schizophrenia and the important generalities of the medications involved in Porter's treatment plan. In affirming the district court's decision to qualify Dr. Johnson as an expert, the circuit court found that "[Dr. Johnson] testified that he was familiar with the type of medication used for the treatment of paranoid schizophrenia and was able to testify as to Porter's past treatment history and to the potential side effects of the proposed medications Risperdal, Haldol, and Benadryl." Moreover, Dr. Johnson's area of expertise was identified as evaluating and treating the mentally ill, such as Porter. In the course of doing so, he had personal knowledge of Porter's medical records, past treatment history, and responses to various medications. Moreover, through his treatment of the mentally ill, Dr. Johnson was aware of the common side effects of the medications that are at issue. Had Dr. Johnson been permitted to speculate on possible side effects for drugs that were foreign to him or for which he had no clinical or professional background, this would be a different issue altogether.
We are mindful that our courts have previously held that the qualification of a witness as an expert rests within the sound discretion of the trial court. Tapp v. Owensboro Medical Health System, Inc. 282 S.W.3d 336, 339 (Ky. App. 2009). Given the record before us, we do not believe that the circuit court abused its discretion when it denied Porter's request for a writ based on its conclusion that the district court's order directing the state to forcibly medicate Porter was supported by a sufficient evidentiary foundation.
We also observe the trial court addressed the appropriateness of the district court's determination on the first Sell factor, i.e., whether the state has shown an important interest. Porter has also requested us to address this issue on appeal. Again the record is sparse; however, the arrest citation indicates clearly that Porter was charged with attempting to assault a police officer. Given the type of crime at issue and the underlying facts, we conclude that the circuit court did not abuse its discretion when it determined that the district court did not substantially err in concluding that the Commonwealth demonstrated "an important interest" in seeing Porter brought to trial on these serious charges. See, e.g.,U.S. v. Mikulich, 732 F.3d 692, 698 (6th 2013).
This issue was not presented to the circuit court as part of Porter's written motion or in her arguments before the circuit court. However, because the circuit court addressed the issue and Porter included it, without objection, as part of this appeal, we have considered it.
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II. CONCLUSION
For the reasons fully discussed above, we AFFIRM the Jefferson Circuit Court's order.
ALL CONCUR. BRIEF FOR APPELLANT: Cicely J. Lambert
Louisville, Kentucky
BRIEF FOR APPELLEE: David Sexton
Louisville, Kentucky