2008 VT 48


In re E.T. (2006-151)
 
2008 VT 48
 
[Filed 11-Apr-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 48 

 

No. 2006-151

 

In re E.T.


Supreme Court


 


 


 


On Appeal from


 


Washington Family Court


 


 


 


November Term, 2007


 


 


 


 


Helen
  M. Toor, J.


 

William H. Sorrell, Attorney General, Montpelier, and Mathew
Viens, Assistant Attorney 
  General, Burlington, for Petitioner-Appellee.
 
Brice C. Simon of Stevens Law Office, Stowe, for
Respondent-E.T.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
BURGESS, J.   E.T. appeals the trial court’s
determination that she is a “patient in need of further treatment,” thus
justifying her continued confinement in Vermont State Hospital pursuant to 18
V.S.A. § 7621(b).  E.T. has been housed at the Hospital since 1992, after
an incident in which she shot and killed her manager, wounded two co-workers, and
attempted to burn down the Eveready Battery plant in Bennington.  After
that incident, E.T. was diagnosed with paranoid schizophrenia and found
incompetent to stand trial for the charged crimes.  She has since remained
in the custody of the Vermont Department of Mental Health. 
¶ 2.            
The State moved to extend E.T.’s commitment to
the Hospital for an additional year, and a hearing was held on February 3,
2006.  See 18 V.S.A. § 7621(b) (requiring the State to move to continue
treatment on an annual basis, as court may only order continued hospitalization
“for up to one year” following each hearing).  At the hearing, E.T.’s treating psychiatrist, Dr. Munson, testified about
her illness, stating that her condition was roughly the same as it was when she
was admitted in 1992, and that he considered her a “risk” if she were to be
released from the hospital environment.  Based primarily on Dr. Munson’s
testimony, the court issued an order on March 8, 2006 granting the State’s
application, and ordering E.T.’s continued
confinement at the Hospital.  
¶ 3.            
E.T. appeals this determination, arguing that: (1) the State failed to
prove she was a “[patient] in need of further treatment” as defined by §
7101(17); (2) the trial court erroneously admitted inadmissible hearsay
evidence and excluded other material evidence; (3) she received ineffective
assistance of counsel; (4) the court erred in preventing E.T.’s
attorney from withdrawing so E.T. could represent herself; and (5) Vermont’s
involuntary-hospitalization procedures violate both the Vermont and United
States Constitutions.  
I. 
¶ 4.            
E.T. first argues that the State failed to carry its burden of proving
that she is a “[patient] in need of further treatment.”  In order to grant
the State’s motion to continue involuntary mental health treatment, the court
must find, by clear and convincing evidence, that E.T. is a “patient in need of
further treatment and requires hospitalization.”  18 V.S.A. §
7621(b).  A “patient in need of further treatment” is defined as a “person
in need of treatment” or a “patient who is receiving adequate treatment, and
who, if such treatment is discontinued, presents a substantial probability that
in the near future his condition will deteriorate and he will become a person
in need of treatment.”  Id.  § 7101(16).  A “person in
need of treatment” is defined as “a person who is suffering from mental illness
and, as a result of that mental illness, his capacity to exercise self-control,
judgment or discretion in the conduct of his affairs and social relations is so
lessened that he poses a danger of harm to himself or others.”  18 V.S.A. § 7101(17).[1] 
  
¶ 5.            
E.T. claims that the State is required to present evidence of recent
“overt acts” demonstrating that she presents a danger of harm to herself or
others in order to extend her commitment.  Sections 7621(b) and 7101(16)
require no such showing.  As we discussed in In
re P.S., the focus of a hearing to extend involuntary commitment is on
whether the patient presents a risk of future harm if treatment is
discontinued, not whether the patient poses a present danger.  167
Vt. 63, 71, 702 A.2d 98, 103 (1997) (“Although the statute requires the State
to show a proposed patient is a ‘person in need of treatment’ at the time of
application for original commitment, no subsequent decision requires a showing
of dangerousness.”).  We explained that:   
[t]he statutory
structure assumes that treatment will reduce or eliminate the risk of harm from
the patient’s conduct.  If the treatment is effective, a treated patient
will not be dangerous.  As a result, subsequent decisions about how and
where a patient will receive treatment involve predictions about the effect
of discontinuing treatment, rather than dangerousness.
 
Id. (citation omitted and
emphasis added).  Contrary to E.T.’s argument,
therefore, the State need not make a showing that E.T. presently poses a danger
of harm; rather, it must show that she presents a risk of future
“dangerousness” if treatment were to be discontinued.  Id.  
¶ 6.            
On review, “we will uphold [the] trial
court[‘s] findings as long as there is substantial evidence to support them
although they are contradicted by credible evidence.”  In re N.H.,
168 Vt. 508, 512-13, 724 A.2d 467, 470 (1998) (quotation omitted).  “The
test on review is not whether this Court is persuaded that there was clear and
convincing evidence, but whether the factfinder could
reasonably have concluded that the required factual predicate was highly
probable.”  Id.
¶ 7.            
Here, the State presented sufficient evidence for the trial court to
conclude that E.T. was a “patient in need of further treatment” pursuant to §
7621(b).  Dr. Munson testified that E.T. continues to suffer from
schizophrenia, and that her condition was roughly the same as it was when she
was admitted to the Hospital in 1992.[2]
 Her symptoms include hallucinations, panic, and what Dr. Munson termed
“infinite regress,” evidenced by her practice of writing a series of letters
that refer solely to the contents of other letters, none of which contain
independent content.  She has threatened patients on the ward and “is
still driven by persecutory beliefs.”  Although E.T. steadfastly refuses
to take the recommended antipsychotic drugs, Dr. Munson testified that she
benefits from her confinement in the Hospital due to the availability of
counseling, her participation in group activities, and the structure and security
of the Hospital environment.  Without confinement in the Hospital, he
testified, it was “very likely” that her “panic would show itself . . . [and]
without containment, I’m afraid she would act on it.”  He assessed the
risk of her engaging in aggressive behavior as “high,” the same as in previous
years, and stated that leaving the confines of the Hospital could itself cause
her to panic.  This testimony provided sufficient support for the trial
court’s conclusions that E.T. would present a risk of future harm if she were
discharged from the Hospital, and was therefore a “patient in need of further
treatment” who required hospitalization under § 7621(b).
 
II.

¶ 8.            
E.T. next argues that the trial court made two improper evidentiary
rulings: first, by erroneously truncating E.T.’s
cross-examination of Dr. Munson regarding his beliefs as to whether computers
can read and control minds, thus precluding the introduction of relevant
evidence; and second, by allowing Dr. Munson to base his testimony in part on
out-of-court statements made by Hospital staff members.  
¶ 9.            
E.T. has the right to cross-examine witnesses at hearings for her
continued treatment.  18 V.S.A. §§ 7621(a), 7615(d).  E.T. now
contests the fact that the court did not allow her personally to ask questions
about whether Dr. Munson believed a computer could “read a person’s mind and
control a person’s thoughts.”  E.T.’s lawyer
refused to ask these questions at the hearing, and the court denied E.T.=s request to cross-examine
Dr. Munson herself.  E.T. claims that this decision denied her the right
to present evidence relevant to her defense.  
¶ 10.        
“The extent of cross-examination is largely within
the discretion of the trial judge.”  State v. Young, 139 Vt. 535, 539,
433 A.2d 254, 257 (1981); State v. Morrill, 127 Vt. 506, 513, 253 A.2d
142, 147 (1969).  We overturn the trial court’s management of
cross-examination only for abuse of discretion.  Id.  Whether
to cross-examine and the extent of questioning are tactical decisions within
the purview of the attorney.  See In re Mecier,
143 Vt. 23, 31-32, 460 A.2d 472, 477 (1983).  In
short, “the client must accept the consequences of the lawyer’s decision to
forgo cross-examination.”  Taylor v. Illinois, 484 U.S. 400, 418
(1988).  
¶ 11.        
Here, E.T. was given the opportunity to cross-examine Dr. Munson, during
which time her attorney questioned him on his observation and treatment of E.T.
over the past fourteen years.  Counsel ended cross-examination without
asking Dr. Munson about his conversations with E.T. regarding computer mind
control.  Despite being urged by E.T. to pursue this line of questioning,
to decline to do so was a tactical decision within the professional discretion
of E.T.’s attorney.  The trial court did not err
in refusing to allow E.T. to cross-examine Dr. Munson herself after her
attorney had completed what was, in the attorney’s judgment, appropriate
cross-examination of the witness.  When E.T. chose to be represented by
counsel, she chose to abide by tactical decisions made by that attorney; she
does not have a right to reject that choice midtrial
and represent herself.  See infra, ¶16.    
¶ 12.        
Even if the trial court did err in refusing to allow E.T. to solicit
this line of questioning, this error was harmless.  To reverse based on an
erroneous evidentiary ruling, E.T. must “demonstrate
that the error resulted in prejudice.”  In re R.M., 150 Vt. 59, 65,
549 A.2d 1050, 1054 (1988); V.R.C.P. 61 (“No error in . . . the
exclusion of evidence . . . is ground for . . . disturbing a judgment or order,
unless refusal to take such action appears to the court inconsistent with
substantial justice.”).  E.T. has failed to show
prejudice from the exclusion of this evidence.  The relevant legal
issue at the hearing was whether E.T. was a “patient in need of further
treatment.”  Even if Dr. Munson had had a conversation with E.T. about how
computers could control minds, this conversation would have had no bearing on
his testimony that she continues to suffer from paranoid schizophrenia and
would present a high risk if she were to be released from the Hospital. 
The trial court’s decision to exclude this line of questioning was therefore
harmless error. 
¶ 13.        
E.T. also challenges the trial court’s ruling to allow Dr. Munson to
testify about statements made to him by staff members regarding E.T.’s behavior and condition.  E.T. claims that these
out-of-court statements are inadmissible hearsay.  While out-of-court
statements are generally not admissible for their truth, see V.R.E. 802, such
statements may be admissible to form the basis of a testifying expert’s
opinion.  “Under [V.R.E.] 703, if an expert
relies on the out-of-court statements of another in forming his or her opinion and
if such statements are of a type reasonably relied on by experts in the
particular field, then the statements—even if not independently admissible for
their substance—will be admissible for the limited purpose of demonstrating the
basis for the expert’s opinion.”  State v. Recor,
150 Vt. 40, 48, 549 A.2d 1382, 1388 (1988).  In Recor,
we upheld the trial court’s decision to allow a forensic psychologist to
testify about past statements made to her during counseling sessions by a
victim of sexual abuse.  Id. at 46, 549 A.2d at 1387.  Because
the victim’s statements regarding specific events in her past formed the basis
of the psychologist’s opinion that she had, in fact, been sexually abused,
these otherwise inadmissible statements were admitted to explain the psychologist’s
opinion.  Id. at 49, 549 A.2d at 1388; see
also Everett v. Town
of Bristol, 164 Vt. 638, 639-40, 674 A.2d 1275, 1277 (1996) (mem.).  
¶ 14.        
Dr. Munson’s testimony about the statements made to him by Hospital
staff was properly admitted here as the basis for his opinion that E.T.
continues to suffer from schizophrenia and its effects.  On direct
examination, he testified about reports he had received from staff regarding E.T.’s delusional behavior, threats she had made to other
patients in her ward, and violent interactions she had had with staff and other
patients.  Dr. Munson relied on these reports to form his conclusion that
E.T. continued to suffer from paranoid schizophrenia and would present a “high”
risk of harm if she were released from the Hospital.  He stated that such
reports are “something that a person in [his] circumstance as a psychiatrist
would typically rely on,” and that it was “appropriate for [him] to rely on
that information in forming [his] opinion about what [E.T.’s]
behaviors were as a result of her mental illness.”  Because this
information informed his opinion as to E.T.’s mental
state, it was properly admitted as the basis for his expert opinion testimony.
III.

¶ 15.        
E.T. next claims that the trial court erred when it denied her
attorney’s motion to withdraw, thus preventing E.T. from proceeding pro
se.  E.T. sought to fire her attorney after counsel refused to
cross-examine Dr. Munson on whether computers could “read a person’s mind and
control a person’s thoughts.”  
¶ 16.        
E.T. had the right to appear pro se at her commitment hearing, but “most
courts have held that the right to self-representation must be invoked before
trial to be considered timely per se.”  State v. Bean, 171 Vt. 290,
297, 762 A.2d 1259, 1264 (2000).  If a defendant seeks to proceed pro se midtrial, however, “the trial court has discretion on
whether to allow self-representation.”  Id. at 297, 762 A.2d at
1264.  In order to determine whether a defendant may dismiss counsel and
proceed pro se, the trial court must consider a number of factors, including,
but not limited to:
the quality of
counsel’s representation of the defendant, the defendant’s proclivity to
substitute counsel, the reasons for the request [for withdrawal], the length
and stage of the proceedings, and the disruption or delay which might
reasonably be expected to follow the granting of such a motion.  
 
Id. at 297-97, 762 A.2d at
1264 (quoting People v. Windham, 560 P.2d 1187, 1191-92 (Cal. 1977)).
 Key among these factors are the “quality of trial counsel’s
representation and the reason for the request [to withdraw].”  Id.
at 303, 762 A.2d at 1268.  The trial court has broad discretion to
evaluate these factors, id., and we will not reverse unless the trial
court has abused its discretion, either by “fail[ing]
to exercise it or its exercise
on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.”  Richardson v. Persons, 116 Vt. 413, 416, 77
A.2d 842, 844 (1951).    
¶ 17.        
The trial court did not abuse its discretion in refusing to allow E.T.
to proceed pro se.  After hearing E.T.’s motion,
the court inquired as to the reasons for her counsel’s withdrawal.  E.T.
explained that, although she was generally pleased with her attorney, she
disagreed with counsel’s refusal to cross-examine Dr. Munson about “mind
control computer system technology,” and thus wanted to proceed pro se in order
to pursue this line of questioning herself.  This motion was made in the
middle of the hearing, after Dr. Munson had finished testifying and E.T.’s attorney had completed cross-examination. 
Allowing E.T. to represent herself at this point would have been of no value to
her defense, given that the line of questioning E.T. sought to pursue was
irrelevant to the legal matter at issue in the hearing.[3]  See supra, ¶ 12. 
Because E.T. appeared to be otherwise satisfied with her attorney’s performance
and only sought to personally inquire of Dr. Munson about immaterial
information, we cannot say that the trial court abused its discretion in
denying E.T.’s motion.  
IV. 

¶ 18.        
E.T. raises two additional arguments: (1) that Vermont’s
involuntary-hospitalization procedures violate the Vermont and United States
Constitutions; and (2) that she received ineffective assistance of
counsel.  Because the constitutional claims were not raised below, we need
not consider them on appeal.  See Cleveland v. Dep’t. of Employment
Sec., 138 Vt. 208, 211, 414 A.2d 1157, 1159 (1980); In re Denio, 158 Vt. 230, 234, 608 A.2d 1166, 1168 (1992)
(“[I]ssues not raised below, even those having a
constitutional dimension, need not be considered when presented for the first
time on appeal.”) (quotation omitted).  We will also not consider E.T.’s ineffective assistance of counsel claim because we
generally do not address such claims on direct appeal.  See State v. Davignon, 152 Vt. 209, 221-22, 565 A.2d 1301, 1308
(1989) (explaining that we do not consider ineffective assistance of counsel
claims on direct appeal because there is no factual record for the Court to
evaluate the claim); State v. Gabaree, 149 Vt.
229, 232-33, 542 A.2d 272, 274 (1988).  
           
Affirmed.  
 
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
E.T. was found to be a “person in need of treatment” by a trial court on
September 22, 1992, when she was originally committed to the Hospital. 


[2] 
See In re L.R., 146 Vt. 17, 19, 497 A.2d 753, 755 (1986) (this Court
accepts as legitimate testimony from treating psychiatrists who make
“predictions of future consequences”); see also 18 V.S.A. § 7622 (“A mental health
professional testifying at hearings conducted under this part may, if
appropriately qualified, give opinion testimony and . . . describe any
information which he acquired in attending the patient.”).


[3] 
E.T. claims she had a conversation with Dr. Munson where he agreed that it was
possible for an animal, such as a dog, to control a computer if electrodes were
connected between the computer and the animal’s mind.  Assuming this
conversation occurred as E.T. describes, Dr. Munson’s agreement that such an
experiment is scientifically possible has no bearing on his testimony that E.T.’s belief that “Jeffrey and Pamela Mooney” operate a
“mind control computer system [that] . . . is being used throughout the country
and the world” is delusional, and thus symptomatic of her schizophrenia.  



