                                                      FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON         March 24, 2008
                         MAY SESSION, 1996
                                               Cecil Crowson, Jr.
                                                      Appellate Court Clerk




STATE OF TENNESSEE,          )
                             )    No. 02C01-9512-CR-00374
      Appellee               )
                             )    SHELBY COUNTY
vs.                          )
                             )    Hon. W. Fred Axley, Judge
JACKIE H. MARTIN,            )
                             )    (Petition For Discharge From
      Appellant              )    Involuntary Commitment)



For the Appellant:                For the Appellee:

A. C. Wharton, Jr.                Charles W. Burson
District Public Defender          Attorney General and Reporter

Walker Gwinn                      Robin L. Harris
Asst. Public Defender             Assistant Attorney General
201 Poplar, Suite 2-01            Criminal Justice Division
Memphis, TN 38103                 450 James Robertson Parkway
                                  Nashville, TN 37243-0493


:                                 John W. Pierotti
                                  District Attorney General

                                  Ms. Edgar A. Peterson, IV
                                  Asst. District Attorney General
                                  Criminal Justice Complex
                                  Third Floor, 201 Poplar
                                  Memphis, TN 38103



OPINION FILED:

REVERSED IN PART AND REMANDED


David G. Hayes
Judge
                                            OPINION



        The appellant, Jackie H. Martin, appeals the order entered by the Criminal

Court of Shelby County denying his petition for discharge from involuntary

commitment.1 On appeal, the appellant presents two issues for our review: (1)

whether the evidence preponderates against the trial court's finding that the

appellant is not eligible for mandatory outpatient treatment as an alternative to

commitment; and (2) whether the trial judge should have recused himself from

this case.



        After a review of the record and the applicable law, we conclude that the

evidence at the appellant's hearing preponderates against the decision of the

trial court. Accordingly, we remand this case to the trial court for entry of an

order discharging the appellant to mandatory outpatient treatment consistent with

the plan proposed by the superintendent of the mental health facility.




                                        I. Background



        On August 4, 1981, a Shelby County Grand Jury indicted the appellant for

one count of "throwing a missile calculated to produce death or great bodily harm

at an occupied vehicle" and three counts of assault.2 On October 19, 1981,

Judge James Beasley found the appellant not guilty by reason of insanity.

Accordingly, the appellant was involuntarily committed to Western Mental Health

Institute, WMHI, pursuant to Tenn. Code Ann. § 33-604 (1981 Supp.). On

December 27, 1985, the staff of WMHI recommended the appellant's discharge

        1
         This court has jurisdiction to entertain this appeal pursuant to Tenn. Code Ann. § 33-6-
110(g) (1996 Supp.).

        2
         The indictm ent arose from an incident on June 23, 1981, when the appellant threw a
beer bottle, and then, a brick at a Mem phis Police Departm ent squad car. Following this action,
the appellant apparently engaged several police officers in a physical confrontation.

                                                 2
to a mandatory outpatient treatment program.3 However, while Judge W. Fred

Axley took this recommendation under advisement, staff members at WMHI

reexamined the appellant and determined that his condition had deteriorated to

the extent that the appellant required continued confinement.4



        In 1989, Judge Axley approved the appellant's placement in a group

home in Trenton, pursuant to a mandatory outpatient treatment plan. Because

of the appellant's progress at the group home, Judge Axley permitted the

appellant to complete a two week stay at the training center in Smyrna for skills

evaluation. However, by early 1991, the appellant's mental condition had

regressed.5 Moreover, the appellant violated his treatment plan by having a knife

in his room and by drinking alcohol.6 In response to these violations, Judge

Axley returned the appellant to the hospital for inpatient care.



        The appellant continued to meet the commitment standards imposed by

Tenn. Code Ann. § 33-6-104 (1994 Supp.) and § 33-7-303(c) (1994 Supp.)

throughout early 1994. However, in July 1994, staff members of WMHI notified

Judge Axley, that, after the required six month evaluation of the appellant, they

determined that, if "supportive community services [could] be worked out," the




        3
          Tenn. Code Ann. § 33-6-201 (1994 Supp.) provides that a patient involuntarily
com m itted, who, in addition to m eeting other enum erated requirem ents, rem ains m entally ill or is
suffering from a m ental illness in rem ission and whose condition is likely to rapidly deteriorate
without continued treatm ent shall be eligible for discharge subject to the obligation to participate in
a m edically appropriate outpatient treatm ent plan approved by the releasing facility and the
outpatient treating professional.

        4
         Judge Axley was the lead prosecutor in the appellant's 1981 crim inal case. The
appellant argues that Judge Axley's prior involvem ent in his case necessitates his recusal, see
infra, Section III.

        5
         The record indicates that the appellant was experiencing hallucinations and was
frequently agitated.

        6
         Apparently, the appellant indicated to staff m em bers that he needed the "knife for
protection." Moreover, the appellant's treatm ent records reflect that he "displayed a great deal of
paranoia in regard to the group hom e staff (who were all black . . . ) and in regard to the black
residents of the hom e."

                                                   3
appellant would not meet the necessary commitment standards.7 Again, in

September and December 1994, the staff advised Judge Axley that the appellant

would not meet commitment standards if placement in an outpatient treatment

program were available, however, such services were not available at the time.

In June 1995, the staff informed Judge Axley that a structured supervised

community placement was available for the appellant, that they had developed a

mandatory outpatient treatment plan for the appellant, and that they had

informed the appellant of his legal obligation to comply with the terms of the

outpatient program. On July 5, 1995, Judge Axley heard the appellant's petition

requesting discharge from inpatient hospitalization into an outpatient treatment

program.



        The only witness to testify at the discharge hearing was Dr. Pickering, a

psychologist at Western Mental Health Institute. He testified that he has been

involved with the appellant's treatment since 1991. He stated that the appellant

is mentally ill. "[The appellant] continues to show some of the negative signs of

schizophrenia, but . . . he is not actively psychotic at this time and is in partial

remission as a result of his treatment." Commenting on the appellant's progress,

Dr. Pickering explained that the appellant remained on a "plateau" for the first

several years, but, beginning in 1992, when given new medication, the appellant

exhibited "steady improvement."8 The doctor also stated that, indicative of his

current behavior, the appellant recently, voluntarily "walked away from" a

potential physical confrontation initiated by another patient. Furthermore, the

appellant has retained full privileges at the center and has not displayed any

aggressive behavior. When questioned about the failure of prior outpatient

treatment, Pickering asserted that they have redesigned the appellant's



        7
         The staff recom m ended that hospitalization of the appellant continue until they could
provide such outpatient services.

        8
         The appellant began treatm ent with Clozaril, an atypical antipsychotic drug that becam e
available in 1992.

                                                 4
proposed outpatient treatment plan to account for the appellant's treatment with

Clozaril.9 He added that case managers would be available to the appellant on a

twenty-four hour basis.



       Dr. Pickering maintained that the appellant does not meet the

commitment standards of Tenn. Code Ann. § 33-6-104. However, he did

concede that the appellant could be "unable to avoid severe impairment or injury

from specific risk," if he does not comply with his medication and treatment, and

that the appellant has a history of noncompliance. Moreover, he acknowledged

that, without continued treatment, the appellant's mental illness is likely to

depreciate to the "point that the patient will pose a likelihood of serious harm."

Dr. Pickering agreed that his answers relating to the appellant's condition

focused on his observations of the appellant "at this time," and that there were

no guarantees that the appellant would comply with the program, or that the

appellant would not pose "substantial harm to the community."



       Judge Axley denied the appellant's petition, stating:

       The personnel involved in Mr. Martin's life, other than this Court,
       really have no idea of his history. Before Mr. Martin committed the
       assault on the officers . . . he had a history of violence. It's
       something that's been ongoing in his life.

       . . . What we're saying . . . is that he has been stabilized
       emotionally by medication, but he, also, has a history of
       noncompliance.

       He does possess the propensity to become a danger to others and
       quickly in Mr. Martin's case. Mr. Martin functions well at the
       hospital. He does not appear to this Court to be in a position to
       function well because he needs very, very close supervision.

       An outpatient treatment plan is not sufficient to meet Mr. Martin's
       needs because of what has been shown through prior occasions of
       his release in group home settings or boarding house settings.
                         II. Sufficiency of the Evidence




       9
           He stated that Clozaril requires weekly m onitoring and blood tests of a patient.

                                                  5
       The appellant argues that the evidence preponderates against the trial

court's decision denying his discharge to legal mandatory outpatient treatment as

specified in Tenn. Code Ann. § 33-6-201 (1994 Supp.). Tenn. Code Ann. § 33-

6-110(c), (f) (1994 Supp.), sets forth the procedure concerning the discharge of

one involuntarily committed. The provision states:

       When the superintendent determines that the patient is eligible for
       discharge under § 33-6-109 or § 33-6-201, he shall notify the
       committing court of that conclusion, the basis for it, and, if
       discharge is pursuant to § 33-6-201, the outpatient treatment plan
       approved by the releasing facility for the patient. Such
       determination by the superintendent shall constitute a rebuttable
       presumption of correctness thereof. . . .

       . . .[I]f the court finds by clear, unequivocal, and convincing
       evidence that the patient is not eligible for discharge . . . it shall
       order his return to the hospital . . . . If the court finds otherwise, it
       shall order the patient's release from involuntary commitment in
       accordance with the recommendations of the superintendent.

Tenn. Code Ann. § 33-6-110(c),(f) (emphasis added). See also State v. Tripp,

754 S.W.2d 92, 94 (Tenn. Crim. App. 1988).



       The appellant asserts that the record is replete with reports supporting his

discharge. Moreover, the appellant adds that the trial court's decision cannot be

afforded a presumption of correctness, because it is not based on evidence at

the hearing. Appellate review of a lower court's denial of discharge is "de novo

upon the record of the trial court with a presumption of correctness of the finding,

unless the evidence preponderates otherwise." State v. Groves, 735 S.W.2d

843, 844 (Tenn. Crim. App. 1987) (citing Tenn. R. App. P. 13(d)); see also

Tripp, 754 S.W.2d at 94; State v. Woolard, No. 03C01-9510-CC-00296 (Tenn.

Crim. App. at Knoxville, July 25, 1996). After a review of the record, we

conclude that the evidence does not support a denial of the appellant's discharge

from involuntary confinement.



       At the hearing, Dr. Pickering stated that the appellant satisfies the

standards for discharge to an outpatient treatment program as outlined in Tenn.


                                            6
Code Ann. § 33-6-201. Dr. Pickering testified that the appellant is suffering from

a mental illness, Tenn. Code Ann. § 33-6-201(b)(1)(A); that the patient's

condition is likely to deteriorate rapidly unless treatment is continued, Tenn.

Code Ann. §33-6-201(b)(1)(B); that the patient would continue treatment if legally

required to do so, Tenn. Code Ann. § 33-6-201(b)(1)(C); that the patient is not

likely to participate in continued treatment without the legally required mandate,

Tenn. Code Ann. § 33-6-201(b)(1)(D); and that mandatory outpatient treatment

is a less drastic alternative to commitment, Tenn. Code Ann. § 33-6-201(b)(1)(E).

Dr. Pickering's testimony indicates that the appellant qualifies for discharge

under Tenn. Code Ann. § 33-6-201 and § 33-6-110.



        Dr. Pickering testified that, although he could not guarantee the

appellant's future behavior, since his recommitment in 1991, the appellant has

shown considerable improvement and has not exhibited any aggressive

behavior. He also indicated that the appellant's improvement is connected to his

treatment with Clozaril, which only became available in 1992, after the

appellant's recommitment. Further, when questioned about the appellant's prior

failure to comply with mandatory outpatient treatment, Dr. Pickering explained

that significant safeguards have been implemented to aid the appellant's

compliance with the proposed treatment plan, including case management

services, which were previously unavailable,10 and weekly blood tests performed

at the Mental Health Center, which include testing for drug and alcohol abuse.



        The trial judge correctly considered the appellant's history of violent and

aggressive behavior and noncompliance with a previous outpatient program.

Additionally, we share the trial court's apprehension concerning the appellant's

ability to successfully complete the prescribed outpatient treatment program.


        10
          Pickering explained that case m anagers are available on a twenty-four hour basis. Their
duties include visiting the patient frequently, ensuring that the patient is taking m edication, and
ensuring that the patient keeps appointm ents.

                                                 7
Nonetheless, our review is limited to the proof in the record and the applicable

law. Accordingly, we cannot conclude that the appellant's past behavior,

untreated by Clozaril, provides clear and convincing evidence supporting a denial

of outpatient treatment. The record indicates that the appellant's condition has

improved since his recommitment in 1991. Moreover, as Dr. Pickering testified,

the appellant's prior noncompliance was considered in formulating a new plan for

outpatient treatment, which provides closer monitoring of the appellant. Despite

this evidence, the State offered no proof to rebut the expert medical testimony of

Dr. Pickering. We conclude that these facts, accompanied by a presumption of

correctness, preponderate against the decision of the trial court. In the

appellant's case, mandatory outpatient treatment is a suitable less drastic

alternative to commitment. Tenn. Code Ann. § 33-6-201(b)(1)(E). Accordingly,

the appellant is entitled to discharge from involuntary commitment.




                          III. Recusal of Judge Axley



      The appellant also contends that he was denied a fair hearing because

"Judge Fred Axley is biased against [him] as a matter of fact and presumptively

biased because Judge Axley was the State lawyer who prosecuted the

indictments against Martin. . . ." Because we have determined that the evidence

preponderates against the trial court's decision, we need not address the

appellant's final issue. However, due to the ongoing nature of this proceeding

and the potential for future proceedings in this case before Judge Axley, we

conclude that the circumstances of this case do not mandate his recusal.



      Initially, we note that the appellant raises Judge Axley's recusal for the




                                         8
first time in this appeal.11 The failure of the appellant to raise this issue prior to

his hearing amounted to a waiver of his right to question the trial judge's

qualifications to hear the case. Woodson v. State, 608 S.W.2d 591, 593 (Tenn.

Crim. App.), perm. to appeal denied, (Tenn. 1980); see also State ex rel.

Roberts v. Henderson, 442 S.W.2d 629, 631 (Tenn. 1969) (holding that the right

of a defendant to waive the disqualification of a judge exists in both civil and

criminal cases). Accord Hawkins v. State, 586 S.W.2d 465, 466 (Tenn. 1979).

Accordingly, the appellant has waived this issue. Nonetheless, a further

discussion of this issue is warranted.



        The appellant argues that Article 6, Section 11 of the Tennessee

Constitution prohibits Judge Axley from presiding over his case. This

constitutional provision provides:

        No judge . . . shall preside on the trial of any cause in the event of
        which he may be interested, or where either of the parties shall be
        connected with him by affinity or consanguinity, within such
        degrees as may be prescribed by law, or in which he may have
        been of counsel, or in which he may have presided in any Inferior
        Court, except by consent of all the parties.


TENN . CONST ., Art. VI, § 11 (emphasis added). See also Tenn. Sup. Ct. Rule

10, Canon 3(C)(1)(a), (C)(1)(b). Although Art. 6, Sec. 11 appears to disqualify

Judge Axley from this matter, since he was the lead prosecutor in the original

cause, case law has held that the disqualifying provision is limited to "the cause

on trial . . . and not prior concluded trials. . . ." See State v. Smith, 906 S.W.2d

6, 12 (Tenn. Crim. App. 1995) (citing State v. Warner, 649 S.W.2d 580, 581

(Tenn. 1983) (holding trial judge not disqualified on grounds that he was the

prosecuting attorney in an earlier case against the appellant)). This

interpretation, likewise, applies to the present case. The appellant also contends


        11
           Appellate counsel (an assistant public defender) insists that the appellant's trial counsel
(also an assistant public defender) "did not know Judge Axley prosecuted the case." The record
am ply provides m aterial (orders, stipulations, etc.) noting Judge Axley as the lead prosecutor in
the State's case against the appellant. Additionally, appellate counsel's argum ent suggesting that,
even if trial counsel was aware of Judge Axley's form er position, this would am ount to a denial of
due process via State action, is without m erit.

                                                  9
that he never consented "for his former prosecutor to judge him." However, the

appellant clearly gave his implied consent by failing to raise the issue of recusal

prior to this present appeal. Judge Axley has presided over various matters

relating to the appellant's involuntary confinement since 1983.



       Regardless of whether the appellant consented to Judge Axley's hearing

of the matter, the record does not support the appellant's allegation that Judge

Axley's ruling was due to his personal bias against the appellant. A trial judge

should recuse himself whenever he has any doubt as to his ability to preside

impartially in a criminal case or whenever his impartiality can reasonably be

questioned. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995) (citing State v.

Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993); Lackey v. State, 578

S.W.2d 101, 104 (Tenn. Crim. App. 1978)); see also State v. Smith, 906 S.W.2d

6, 11 (Tenn. Crim. App. 1995) (citing Tenn. Sup. Ct. Rule 10, Canon 3(C); State

v. Dillingham, No. 03C01-9110-CR-00319 (Tenn. Crim. App. at Knoxville, Feb. 3,

1993), perm. to appeal denied, (Tenn. 1993)). As a general principle, the trial

judge retains discretion over his recusal when questioned on the basis of bias or

prejudice. Smith, 906 S.W.2d at 11(citing Caruthers v. State, 814 S.W.2d 64, 67

(Tenn. Crim. App. 1991)). Unless the evidence in the record indicates that the

trial judge abused his discretion by not disqualifying himself, this court will not

interfere with his decision. Id. (citing Caruthers, 814 S.W.2d at 67).



       In the present case, although Judge Axley was the lead prosecutor in the

appellant's original case, we cannot conclude that this prior involvement caused

him to rule impartially and prejudicially. In fact, the record shows that Judge

Axley previously ruled favorably on the appellant's behalf. Additionally, the

record indicates that Judge Axley did not use the benefit of prior knowledge

arising from his dealings as State prosecutor in his decision denying the

appellant's discharge. Rather, Judge Axley's knowledge of the appellant's


                                          10
background arises from his prior involvement as a judge in the appellant's cause.

Nonetheless, the appellant suggests that Judge Axley's interruption of the Dr.

Pickering's direct examination and his comments during the doctor's cross-

examination were affirmative indicators of his preconceived decision to deny the

appellant's discharge.12 We conclude that these comments were not prejudicial

in nature, nor do they reflect bias for the State's position. Rather, these

comments were necessary in making a determination whether to discharge the

appellant into the community. Accordingly, Judge Axley did not abuse his

discretion in failing to recuse himself from presiding over the appellant's hearing.

This issue is without merit.




                                       IV. Conclusion



        After finding that the evidence presented at the discharge hearing is not

sufficient to deny the appellant's release from involuntary commitment, we

remand this case to the trial court for entry of an order, consistent with the

procedure set forth in Tenn. Code Ann. § 33-6-110, discharging the appellant

from involuntary confinement into the mandatory outpatient treatment program

proposed by the superintendent. See Tenn. Code Ann. § 33-6-201(d)(2)(A),

(B). However, with forethought that the appellant's condition may have changed

since the trial court's denial in July 1995, we advise that, prior to any release of

the appellant, the superintendent must again provide a current report supporting

his recommendation that the appellant be discharged to a mandatory outpatient

treatment program. See Tenn. Code Ann. § 33-6-110(c), (f). Additionally, we

note that, if the appellant does not comply with the terms of his outpatient


        12
          During Dr. Pickering's direct exam ination, Judge Axley com m ented that the hospital had
not kept good records due to the frequency of em ployee turnover. However, he added that the
court did keep good records relating to the appellant's condition. Additionally, Judge Axley
questioned Dr. Pickering about the appellant's "history of noncom pliance while being placed in a
group hom e" and about where the appellant would be placed if discharged (Selm er, rather than
Mem phis).

                                                11
program, statutory measures exist by which to recommit the appellant to

involuntary hospitalization. See Tenn. Code Ann. § 33-6-202 (1996 Supp.).




                                 ____________________________________
                                 DAVID G. HAYES, Judge



CONCUR:



___________________________________
JOE B. JONES, Presiding Judge


___________________________________
PAUL G. SUMMERS, Judge




                                      12
