        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 April 26, 2016 Session

                   STATE OF TENNESSEE v. DAVID CLOAR

                Appeal from the Criminal Court for Hamblen County
                      No. 90CR284     Thomas Wright, Judge


                 No. E2015-01069-CCA-R3-CO – Filed July 27, 2016


Following a jury trial in 1992, the Defendant, David Cloar, was found not guilty by
reason of insanity on two counts of first degree murder. The Defendant was then
involuntarily committed to the Middle Tennessee Mental Health Institute pursuant to
Tennessee Code Annotated section 33-7-303(c). The Defendant now appeals from the
trial court’s order denying his discharge, following a ninety-day furlough to a residential
group home, from involuntary commitment. The Defendant contends that it was not
established by clear, unequivocal, and convincing evidence that he was ineligible for
discharge under the applicable statute. Following our review, we reverse the judgment of
the trial court and remand this case for the entry of an order discharging the Defendant
pursuant to the discharge plan submitted by the Middle Tennessee Mental Health
Institute.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

John E. Eldridge, Knoxville, Tennessee, for the appellant, David Cloar.

Nathan Henry Mauer, Nashville, Tennessee, for the Tennessee Department of Mental
Health and Substance Abuse Services.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Dan E. Armstrong, District Attorney General; and Connie Trobaugh, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                              FACTUAL BACKGROUND

                                I. Procedural Background

        On December 11, 2014, the chief executive officer of the Middle Tennessee
Mental Health Institute (“the Institute”) filed a notice in the trial court pursuant to
Tennessee Code Annotated section 33-6-708 stating the Institute’s intent to discharge the
Defendant from his involuntary commitment. The notice stated the chief executive
officer’s conclusion that the Defendant was eligible for discharge. Attached to the notice
was a “furlough/discharge plan” for the Defendant which stated that the Institute intended
to furlough the Defendant to a residential group home for ninety days before discharging
him. On December 18, 2014, the trial court, on its own motion, ordered an evidentiary
hearing on this matter.        On April 15, 2015, the Institute filed an amended
“furlough/discharge plan” for the Defendant, changing only the residential group home
that he would be furloughed to. The evidentiary hearing was held on April 23, 2015.

                               II. The Underlying Offenses

       Edward R. Sempkowski, who assisted in the Defendant’s prosecution, testified at
the hearing about the murders. Mr. Sempkowski testified that he had not looked at the
Defendant’s file in over twenty years and that he had only briefly reviewed the
Defendant’s statements and the autopsy reports prior to the hearing. Mr. Sempkowski
recalled that in July 1990, the Defendant “heard the voice of Jesus [Christ] telling him
that he [had] work for him to do.” The Defendant then drove from his home in Knoxville
to the home of his father and stepmother in Morristown. When his father answered the
door, the Defendant told him, “Jesus loves you,” and “proceeded to stab his father
multiple times.” After stabbing his father and getting a second knife from the kitchen,
the Defendant chased down his stepmother as “she was running across the yard to a
neighbor’s house to get some assistance” and “cut her throat.”

        Mr. Sempkowski recalled that the wound to the Defendant’s stepmother’s throat
was so severe it “almost decapitated her.” Mr. Sempkowski also recalled that the
Defendant inflicted a wound to his father’s chest so severe that it exposed his heart. The
Defendant stated to the police that after he cut his stepmother’s throat, Jesus Christ spoke
to him again and told him that he needed “to make sure the job [was] finished.” The
Defendant rolled his stepmother’s body over and stabbed her “multiple times in the
anterior chest area.” The Defendant left the knife inside his stepmother’s body “sunk to
the hilt.” The Defendant then took off his shoes and sat down underneath a tree to wait
for the police. The Defendant “almost immediately” told the responding officers “that he
had been told by Jesus [Christ] to kill” the victims. Mr. Sempkowski further recalled that
the Defendant was not deemed competent to stand trial until almost two years after the
murders.
                                            -2-
                            III. Mental Health Professionals

                                A. Attending Psychiatrist

        Doctor David Scott Crawford, an attending psychiatrist at the Institute, was
determined by the trial court to be an expert in general and forensic psychiatry. Dr.
Crawford testified that he treated the Defendant for approximately nine months prior to
being transferred to a different unit of the Institute. During his treatment of the
Defendant, Dr. Crawford recommended that the Defendant be discharged from the
Institute. Dr. Crawford related to the trial court his understanding of the Defendant’s
crimes. Dr. Crawford testified that it was his understanding that, at the time of the
offenses, the Defendant was “having delusions that his father was Satan and [that]
something bad would happen if he didn’t put a stop to it, [and] that his stepmother might
[have been] possessed.” The Defendant was also “having some hallucinations . . . [that]
he was getting messages or instructions from God.”

                         1. The Defendant’s Treatment History

        Dr. Crawford testified that the Defendant was initially diagnosed with
“schizophrenia, paranoid and chronic,” and was treated with five milligrams per day of
Stelazine. Dr. Crawford further testified that it was his understanding that the
Defendant’s symptoms remitted “shortly” after he was placed on Stelazine.
Approximately a year after the Defendant was diagnosed with schizophrenia, a different
psychiatrist diagnosed the Defendant with “brief reactive psychosis, alcohol dependent,
and persistent personality disorder[,] non-specific.” Dr. Crawford testified that at some
point, the Defendant was taken off of Stelazine. After being taken off the Stelazine, the
Defendant “described . . . [that] he was becoming a little bit more religiously
preoccupied” and “brought that to the attention of the staff.” Dr. Crawford testified that
“people were concerned that [the Defendant] might [have been] in the early stages of
decomposing,” so he was placed back on Stelazine and had not been taken off medication
since then. Dr. Crawford further testified that there was “no documentation of [the
Defendant’s suffering] any clear hallucinations or delusions . . . during that time off
medications.”

       Dr. Crawford acknowledged that in 1995, a third psychiatrist opined that “without
medication and certainly with resumption of drinking,” the Defendant “would be at
considerable risk for the prompt and perhaps even explosive return to psychosis” and that
the Defendant’s discharge “should be approached slowly and carefully and in deliberate
stages or steps.” Dr. Crawford testified that he was aware that this was not the first
attempt to discharge the Defendant, that the Institute had attempted to discharge the
Defendant in 1995, 1997, and 2001, that all of these other attempts were ultimately
withdrawn, and that some of the other attempts might have included mandatory
                                           -3-
outpatient treatment for the Defendant. Dr. Crawford also testified that in 2003, the
Defendant scored as a medium risk to violently reoffend using the “Violence Risk
Appraisal Guide.” However, Dr. Crawford explained that the test was focused on a
patient’s “past history” and would not necessarily reflect “whether the patient’s clinical
condition [had] improved.” Dr. Crawford was also aware that the Defendant had not had
a “urine drug screen” since 2009 but testified that the Defendant did not “have a history
of drug abuse.”

                  2. The Defendant’s Current Diagnosis and Treatment

        Dr. Crawford testified that the Defendant was currently diagnosed as suffering
from “delusional disorder, grandiose type, in remission.” Dr. Crawford explained that
schizophrenia “would involve more prominent hallucinations and delusions together for a
longer period of time” than what the Defendant had suffered. Dr. Crawford also
explained that with delusional disorder “the course is often a little better than with
schizophrenia, that people may get better and stay better longer.” Dr. Crawford opined
that this was consistent with the fact that the Defendant “seemed to be functioning very
well [and] not deteriorating over the years as schizophrenics often do.” Dr. Crawford
noted that “alcohol withdrawal” may have caused “some of the [Defendant’s] initial
symptoms.”

        Dr. Crawford testified that the Defendant was currently being treated with five
milligrams per day of the anti-psychotic medication Prolexin.               Dr. Crawford
characterized the Defendant’s dosage as “on the low side.” Dr. Crawford further testified
that the Defendant was also taking Cogentin “to help prevent some side effects that the
Prolexin might cause.” In discussing the Defendant’s remission, Dr. Crawford testified
that he was “not sure” if the Defendant was in remission “only because [he was] on
medication.” Dr. Crawford explained that with delusional disorder “some people may
have a chronic persistent illness,” but that others “may just have an episode of psychotic
symptoms and then go in remission and do fine,” while still others “may go into
remission without treatment, and then maybe the symptoms might recur again.” Dr.
Crawford opined that it was “not certain that [the Defendant was] only in remission from
the medication but it certainly [would] improve the likelihood that [his disease would]
stay in remission if he stay[ed] on the medications.” Dr. Crawford testified that the
Institute had “chosen to continue some medications just as a preventative measure.”

                             3. Discharge Recommendation

       Dr. Crawford opined that the Defendant no longer met the criteria for continued
hospitalization and was eligible for discharge. Dr. Crawford explained that the
Defendant had not “demonstrated any active psychiatric symptoms” for “probably ten
years or more” and that the Defendant was “the highest functioning patient in terms of his
                                           -4-
level of privileges” at the Institute. Dr. Crawford continued, testifying that the Defendant
did not “have any active psychotic symptoms” such as hallucinations or delusions and
that the Defendant did not demonstrate any “thoughts of hurting himself or anybody
else.” Dr. Crawford testified that the Defendant was “calm in his interactions with other
people,” that he had “demonstrated a willingness to continue to take his medication,” and
that the Defendant realized that “he needs to stay on” his medication to “decrease any
chances that he might relapse.” Dr. Crawford characterized the Defendant as “fully
cooperative and willing to continue to stay on his treatments both in the hospital and after
he leaves.”

       Dr. Crawford opined that the Defendant would not be a danger to himself or others
if he was discharged. Dr. Crawford further testified that he did not believe that the
Defendant would stop his treatment or taking his medication if he was discharged. Dr.
Crawford explained that he based this on the fact that the Defendant did not have any
issues with compliance in his treatment or taking his medications during the twenty-three
years he had been committed to the Institute. Dr. Crawford testified that he believed the
Defendant could independently “maintain his stability and current compliance” because
the Defendant was “one of the highest functioning patients” at the Institute. Dr.
Crawford further testified that he believed that the Defendant was “motivated and willing
to continue to go to his doctor’s appointments and [to] take his medications.” Dr.
Crawford characterized the Defendant’s chances of success upon discharge as “very
good” if the Defendant continued to take his medication.

        Dr. Crawford continued, testifying that he had “[n]umerous discussions” with the
Defendant about the Defendant’s continuing to take his medication after being discharged
from the Institute. Dr. Crawford believed that the Defendant understood his illness and
that “he need[ed] to take medications and stay off of drugs and alcohol.” With respect to
the Defendant’s medication, Dr. Crawford explained that the Defendant did not have to
take his medication at the Institute. Instead, “the nurses offer[ed] [the Defendant] the
medicines and he . . . just ha[d] to agree to take it.” Dr. Crawford further explained that
the Defendant could refuse to take his medication and that the Institute would not force
him to take it unless he was “an acute risk of hurting somebody.” However, the
Defendant had never refused to take his medication during his twenty-three years at the
Institute.

        Dr. Crawford also discussed the Defendant’s privileges at the Institute. Dr.
Crawford testified that the Defendant had “unsupervised privileges” there. Dr. Crawford
explained that the Defendant could hypothetically walk out and abscond from the
Institute if he chose to do so or “have a friend meet him [in the parking lot] with a . . .
beer.” However, the Defendant had remained compliant with his treatment and the
Institute’s rules. Dr. Crawford further testified that the Defendant was one of few

                                            -5-
patients at the Institute allowed to go off-site. Dr. Crawford explained that the Defendant
was transported by staff four days a week to Park Center, “a mental health rehabilitation”
center, where the Defendant received “job training,” “classes on alcohol and drug
rehabilitation,” “social skills training,” and “mental health counseling.”

        Dr. Crawford testified that he did not think the Defendant was “at considerable
risk” for relapse given his “lack of symptoms” for several years. Dr. Crawford further
testified that he thought the Defendant’s “prognosis [was] much better than they might’ve
thought” earlier in his treatment. Dr. Crawford admitted that there was no guarantee that
the Defendant would continue taking his medication if he were discharged. However, Dr.
Crawford was reassured by the Defendant’s history of compliance and the fact that the
Defendant had demonstrated a “willingness . . . to ask for help” when he was previously
taken off of his Stelazine and “started becoming more religiously preoccupied.” Dr.
Crawford opined that the Defendant did not present a substantial risk of harm to himself
or others at the time of the hearing. Dr. Crawford also testified that at no point in his
treatment of the Defendant did he think that the Defendant met the statutory criteria for
involuntary commitment. Dr. Crawford characterized the Defendant as having an
“excellent” “motivation to succeed in the outside world.” Dr. Crawford also noted that
he had treated patients with worse symptoms than what the Defendant was currently
experiencing in an outpatient setting and that he believed the Defendant could
successfully be treated on an outpatient basis.

                                    4. Discharge Plan

        Dr. Crawford also discussed the details of the discharge plan for the Defendant.
Dr. Crawford testified that the Defendant would be furloughed to a residential group
home for ninety days “just to make sure things work[ed] out on a trial basis.” During that
time period, the Defendant could be sent back to the Institute if there were “any
problems.” Dr. Crawford explained that a typical furlough is for thirty days but that the
Defendant’s was “more extended since [he had] been in the hospital for a while.” Dr.
Crawford further explained that the group home was staffed twenty-four hours a day and
would dispense the Defendant’s medication to him. However, Dr. Crawford noted that,
like at the Institute, the Defendant would not be forced to take his medication at the group
home.

        Dr. Crawford testified that the Defendant, upon discharge, would be provided
psychiatric aftercare and transportation services for his care by the United States
Department of Veterans Affairs (“Veterans Affairs”). Dr. Crawford also testified that the
Defendant would still have access to the Park Center after his discharge and that the
Defendant had agreed to attend Alcoholics Anonymous meetings after he was discharged.
In fact, Dr. Crawford noted that the Defendant had already met with a representative from
Veterans Affairs to set up his aftercare and obtained a sponsor and meeting schedule for
                                            -6-
Alcoholics Anonymous. Dr. Crawford also noted that the Defendant intended to stay at
the group home or another group home after the ninety-day furlough ended. Dr.
Crawford opined that the Defendant would not “need anything else other than what [he
would be] getting at Park Center” and Veterans Affairs. Dr. Crawford acknowledged that
continuing treatment with Veterans Affairs and going to Alcoholics Anonymous would
be voluntary for the Defendant, but Dr. Crawford testified that he believed that the
discharge plan would work for the Defendant.

       Dr. Crawford was asked by the State why the Defendant was not being discharged
to mandatory outpatient treatment. Dr. Crawford responded that the Defendant had
“demonstrated no history of non-compliance,” that the Defendant was “willing to take his
medications,” that the Institute had “never had to force him to take his medicines,” and
that the Defendant had “never said that he want[ed] to stop them.” Put another way, Dr.
Crawford responded that the Defendant was not being discharged to mandatory
outpatient treatment because he did not “meet the criteria” for imposing that in his
discharge plan. Dr. Crawford explained that patients discharged to mandatory outpatient
treatment were typically “ones that are refusing to take [their medications], have stopped
them at some point in time[,] and relapsed.” Dr. Crawford admitted that there “may’ve
been issues” with the Defendant’s not having insurance to cover mandatory outpatient
treatment and that he believed that mandatory outpatient treatment providers would not
accept self-paying patients. However, Dr. Crawford also noted that there was nothing to
prevent the Defendant from absconding from the group home or treatment in general
even if he was discharged to mandatory outpatient treatment.

       At one point, the trial court asked Dr. Crawford if he would “be comfortable if [it]
furloughed [the Defendant] to move into [Dr. Crawford’s] house and stay there.” Dr.
Crawford responded that he “would have no reservations whatsoever” because the
Defendant had “been one of the most polite, courteous, kind, calm, quiet demeanored
patients” that he had known and that he “had heard nothing but good reports from the
other staff that [had] interacted with him.” Dr. Crawford continued, testifying that the
fact that the Defendant might discontinue his medication or relapse did not make him
committable under the applicable statutes.

       The trial court stated that it was especially concerned that the Defendant would
relapse if he stopped taking his medication given the severity of the Defendant’s crimes.
Dr. Crawford responded that the Defendant was not “more likely to relapse because of
the severity of his crime versus . . . other patients that commit lesser crimes” repeatedly.
Dr. Crawford testified that the Defendant was “aware and [had] shown remorse and
[understood that] he need[ed] to stay on medicine to prevent it from happening again.”
Dr. Crawford also noted that the Defendant had been “stable for years and years and
years” without relapsing back into psychosis. Dr. Crawford admitted that he understood

                                            -7-
the trial court’s concerns and stated that was why he “would recommend [that the
Defendant] stay on his medication just to be on the safe side.”

                                    B. Clinical Director

        Doctor Mohammed S. Jahan testified that he was the clinical director of the
Institute. The trial court determined that Dr. Jahan qualified as an expert in psychiatry.
Dr. Jahan testified that in his role as clinical director, he supervised the discharge process.
Dr. Jahan explained that once a patient’s attending psychiatrist recommended that the
patient be discharged, he provided a “second opinion,” interviewed the patient himself,
and reviewed the patient’s “paperwork.” If Dr. Jahan approved the discharge, then the
matter would be sent to “a special committee” at the Tennessee Department of Mental
Health and Substance Abuse Services. If the committee approved the discharge, then the
Institute’s chief executive officer would file the notice of discharge in the appropriate
court.

       Dr. Jahan testified that he agreed with Dr. Crawford’s recommendation to
discharge the Defendant because the Defendant no longer met the legal requirements for
involuntary commitment. Dr. Jahan further testified that he believed that the Defendant
would comply with the Institute’s discharge plan. Dr. Jahan based this belief upon the
Defendant’s “years” of compliance with his treatment at the Institute. Dr. Jahan
explained that in deciding whether to approve a patient’s discharge, he “seriously”
weighed whether a patient had been compliant in taking their medicine and that the
Defendant had “always” taken his. Dr. Jahan admitted that he could not guarantee that
the Defendant would continue taking his medication upon his discharge, but he thought
“that given [his] history [the Defendant would] comply with his medication.” Dr. Jahan
also noted that the Defendant had “excellent” insight into his illness and was able to serve
as a peer counselor to other patients at the Institute.

        With respect to the Defendant’s discharge plan, Dr. Jahan noted that if there was
any “non-compliance” during the ninety-day furlough period, “the whole process would
be revoked,” and the Defendant “would go back directly” to the Institute. Dr. Jahan
testified that after the furlough period, the Defendant would receive free psychiatric care
from Veterans Affairs, that he would continue to go to Park Center, and that the
Defendant would go to weekly Alcoholics Anonymous meetings and obtain a sponsor.

       Dr. Jahan admitted that in 2009, the Institute attempted to discharge the Defendant
to mandatory outpatient treatment, but Dr. Jahan could not remember why that attempt
involved mandatory outpatient treatment. Dr. Jahan explained that mandatory outpatient
treatment was typically used when a patient has a history of “non-compliance [with]
medication.” Dr. Jahan could not recall why that attempt to discharge the Defendant was
withdrawn. Dr. Jahan also admitted that in 2012, a psychiatrist opined that the Defendant
                                              -8-
would “require mandatory outpatient treatment” and stated that the Defendant could not
receive mandatory outpatient treatment because he was not eligible for TennCare
insurance. Despite these prior recommendations, Dr. Jahan testified that he did not
believe that the Defendant met the statutory requirements for mandatory outpatient
treatment because the Defendant understood the need to continue his treatment and that
the Defendant would voluntarily continue his treatment after being discharged.

                                    C. Social Worker

       Jennifer Morgan testified that she was a psychiatric social worker at the Institute
and that she assisted in “discharge planning” for the Defendant. Ms. Morgan testified
that the Defendant would be furloughed to a residential group home. According to Ms.
Morgan, the home was “a supervised residential setting” that would be staffed twenty-
four hours a day. Ms. Morgan testified that the Defendant’s medications would be kept
locked at the home and administered to the Defendant by the home’s staff. Ms. Morgan
further testified that the home would “provide transportation as needed” to the Defendant
but that it was also only fifty feet from a bus stop. According to Ms. Morgan, the
Defendant would be free to leave the home after he “sign[ed]-out,” but the home did have
an 11:00 p.m. curfew. Ms. Morgan testified that she was told the Defendant’s rent for the
group home would be $800 a month.

        Ms. Morgan also explained the difference between aftercare and mandatory
outpatient treatment. Mr. Morgan explained that aftercare was “usually provided by a
mental health agency in [the] town where [the patient would be] living” if the patient was
eligible for TennCare. If the patient had private insurance, the patient “could see a
private psychiatrist.” Ms. Morgan explained that mandatory outpatient treatment was a
form of aftercare that involved “a contract between the patient and the hospital and the
[c]ourt,” stating that once the patient was discharged they must “follow certain rules” or
“they could be sent back to the hospital.” Ms. Morgan testified that providers of
mandatory outpatient treatment “are usually paid for through TennCare” or private
insurance and that they would not accept payment directly from a patient. Ms. Morgan
admitted that even if a patient was discharged to mandatory outpatient treatment, there
was “no guarantee” that the patient would comply with the terms of the agreement.

        Ms. Morgan testified that the Defendant was “not eligible” for mandatory
outpatient treatment because he had “too much money” to be “eligible for TennCare.”
Ms. Morgan explained that the Defendant would receive “Social Security disability
income” upon his discharge and that he had approximately $70,000 in different bank
accounts. However, Ms. Morgan testified that the Defendant was eligible for aftercare
through Veterans Affairs. Ms. Morgan testified that Veterans Affairs would provide the
Defendant with psychiatric care and his medication at no cost. Ms. Morgan further
testified that Veterans Affairs would provide the Defendant with a social worker to assist
                                           -9-
him with “case management services” and would provide free transportation for these
services. The Defendant would also be eligible to live in a residential home provided by
Veterans Affairs.

       Ms. Morgan testified that the Defendant had already applied and been granted
“mental health benefits” from Veterans Affairs. Ms. Morgan testified that these benefits
would start as soon as the Defendant’s ninety-day furlough ended. Ms. Morgan admitted
that the Defendant would be responsible for continuing his treatment with Veterans
Affairs. However, Ms. Morgan testified that the Defendant had not only applied and
been granted these benefits but that he had also already seen a Veterans Affairs
psychiatrist to help transition his treatment.

       At one point during Ms. Morgan’s testimony, the trial judge asked her the
following question:

      I won’t ask [this] in quite the same way as [I asked the Defendant’s]
      treating psychiatrist because as a woman you wouldn’t feel comfortable
      moving a man that you weren’t related to into your home. But if [the
      Defendant] decides that he’s going to relocate from the group home that
      you’d lined up for him when his [ninety] days [are] up into the house that’s
      next door to wherever you live in Nashville, would you be okay with that?

After asking the trial court to clarify if it was asking her “a personal question,” Ms.
Morgan responded that she was “not concerned” that the Defendant could move into her
neighborhood.

        Ms. Morgan explained that she was “very confident that [the Defendant would]
succeed once [he was] discharged.” Ms. Morgan based this on the Defendant’s “past
history of being in the hospital for so long and his behavior [having] been so good during
[that] time.” Ms. Morgan continued, stating that the Defendant had “done so well within
his recovery and done very well out in the community with Park Center” and that given
all of this, she felt that the Defendant “would manage very, very well out in the
community once [he was] discharged.”

        Ms. Morgan expanded on some aspects of the Defendant’s current treatment. Ms.
Morgan noted that the Defendant managed the Institute’s “drop-in center,” which she
described as “a place for the patients [to] go to talk” and get “refreshments.” The
Defendant also served as a peer counselor to the other patients. Ms. Morgan further
testified that the Defendant received “group counseling, drug and alcohol therapy,” and
vocational training at Park Center. Ms. Morgan stated that the Defendant had expressed
an interest in continuing to go to Park Center after his discharge. Ms. Morgan also
answered the trial court’s questions about whether the portion of the Institute that housed
                                           -10-
the Defendant was “a fenced in facility.” Ms. Morgan testified that it was not, that the
Defendant had “privileges to walk around [the grounds] unescorted,” and that he could
“abscond from [the] facility” “if he wanted to.”

                              D. Independent Psychiatrist

       Doctor Bradley Freeman testified that he was a member of the faculty at the
Vanderbilt University School of Medicine in the Department of Psychiatry. Dr. Freeman
was offered as an expert in psychiatry. Dr. Freeman testified that he performed a forensic
evaluation on the Defendant at the request of the Defendant’s attorney. Dr. Freeman
opined that the Defendant was not currently committable. Dr. Freeman testified that the
Defendant stated that he did not remember specific details of the murders. Dr. Freeman
noted that, at the time of the murders, the Defendant was not being treated or on
medication for his mental illness. Dr. Freeman also deemed the Defendant’s substance
abuse at the time of the murders as “very significant.”

        Dr. Freeman noted that the Defendant had a “lack of previous criminal charges,”
lived with his family until he was seventeen, “had a steady relationship for a long period
of time,” and was honorably discharged from the military prior to the murders. Dr.
Freeman also noted that the Defendant “had met all the treatment plan goals” that had
been set for him at the Institute and had done so “for some period of time.” Dr. Freeman
testified that “two previous outside evaluators,” one in 1995 and one in the early 2000s,
had determined that the Defendant “was no longer committable.”

       Dr. Freeman scored the Defendant as an “extremely low risk” of violently
reoffending using the “Violence Risk Appraisal Guide.” Dr. Freeman testified that the
Defendant’s score suggested that there was a ten percent chance of the Defendant’s
violently reoffending within the next ten years. Dr. Freeman characterized the
Defendant’s score as “one of the lowest risk assessments” he had seen. Dr. Freeman
acknowledged that his scoring differed from the assessment performed by the Institute in
the mid-2000s. However, Dr. Freeman noted that the major difference between the two
assessments was that he did not believe that the Defendant suffered from a personality
disorder. Dr. Freeman opined that his assessment was more accurate.

       Dr. Freeman was asked about his view of the discharge plan the Institute had
prepared for the Defendant. Dr. Freeman described the plan as “very comprehensive,” “a
good plan,” “very reasonable,” and “appropriate” for the Defendant. Dr. Freeman was
also asked if he had any concerns about the Defendant’s “being discharged from the
hospital.” Dr. Freeman responded that his concerns focused “on just [the Defendant’s]
continued treatment and his abstinence from substance abuse.” Dr. Freeman explained
that he wanted the Defendant to “continue to take his medication.” Dr. Freeman also

                                           -11-
stated that the Defendant’s “being in some kind of supervised housing [was] certainly
appropriate.”

        However, Dr. Freeman testified that he understood that the Defendant “would not
be under anybody’s thumb” after his ninety-day furlough and that, despite his concerns,
he still believed “that the discharge plan was reasonable.” Dr. Freeman further testified
that he was confident that the Defendant “would stay abstinent and on his medication”
given the Defendant’s age and “his [twenty] plus years of doing well” at the Institute. Dr.
Freeman characterized the Defendant’s motivation to continue his treatment as high. Dr.
Freeman opined that the Defendant had “good insight” into his illness and the need to
continue treatment. Dr. Freeman explained that the Defendant was “not the type of
patient that [was] incapacitated by his mental illness such that he [would need] such close
supervision that [he] would be concerned after [ninety] days.” Dr. Freeman concluded
that he had “very little concern” about the Defendant’s discharge plan.

         On cross-examination, Dr. Freeman testified that the seriousness of the
Defendant’s offenses and his mental illness at the time of the offenses “certainly play[ed]
. . . a role” in his recommending that the Defendant continue his treatment after he was
discharged. Unlike Dr. Crawford, Dr. Freeman testified that “there [was] no question”
that the Defendant needed to stay on his medication because “there is no cure for
psychosis.” Dr. Freeman was asked on cross-examination if it was his opinion that the
Defendant “would need mandatory outpatient treatment” to insure that he stayed on his
medication and abstained from substance abuse. Dr. Freeman responded that mandatory
outpatient treatment “was one of [his] recommendations” and that he felt “like that would
be important.”

       Dr. Freeman’s report was entered into evidence at the hearing. After concluding
that the Defendant did not meet the criteria for involuntary commitment, that he was a
low risk for violent behavior, and that he was a “low-moderate” risk for substance abuse,
Dr. Freeman made the following recommendation:

       [The Defendant] must be engaged in aftercare.

       [The Defendant’s] treatment team recommended he be involved in aftercare
       treatment. [The Defendant] has already met with a representative of Mental
       Health Coop for mandatory outpatient monitoring. He acknowledges the
       need for continued care and continued medication. His medical record
       indicated he has been taking steps in arranging for this level of care if
       discharged. In addition to Mental Health Coop, [the Defendant’s] status as
       an honorably discharged veteran makes him eligible for services through
       [Veterans Affairs]. His social worker noted [the Defendant] is being

                                           -12-
      established with [Veterans Affairs] for future medical and mental health
      needs.

                           E. Residential Group Home Owner

       Bernard Bean testified at the hearing via telephone. Mr. Bean testified that he was
the owner of the residential group home listed in the Defendant’s discharge plan. Mr.
Bean explained that his facility had room for eight people and that, at the time of the
hearing, he had seven. Mr. Bean testified that most of the residents in the home were
schizophrenics. Mr. Bean described the services he provided to the residents of his group
home, stating that he and his employees provided “three meals [a] day,” assisted “with
doctors’ appointments,” assisted them with their medications, washed their clothes, and
kept “them interactive . . . [by] doing different things.” Mr. Bean testified that he would
also assist the Defendant in getting to and from Park Center if the Defendant did not feel
comfortable taking the bus.

        Mr. Bean stated that he had two employees who lived and worked in the home.
Mr. Bean also testified that while he had an 11:00 p.m. curfew, the residents were free to
come and go. Mr. Bean further explained that the residents are typically asked by one of
the staff where they are going and to provide an estimate of when they will be back
before they leave the home. Mr. Bean testified that the goal of his home was to transition
the residents back to independent living.

       Mr. Bean testified that he was aware that the Defendant had killed two people
when he accepted the Defendant into the residential group home but that he did not know
the details of the murders. Mr. Bean also testified that he did not know that the
Defendant would be on a ninety-day furlough until he spoke to the assistant district
attorney the day before his testimony. Mr. Bean testified that the Defendant would have
to sign a rental agreement before he could move into the home. After speaking to the
assistant district attorney, Mr. Bean decided to raise the Defendant’s rent from $800 to
$2,000 a month, claiming that the increase was due to the fact that the Defendant would
require “more one-on-one” attention than his other residents. Mr. Bean also admitted that
he increased the rent because the assistant district attorney told him that the Defendant
“had a lot of money in savings.”

       Mr. Bean explained that the rent he charged was based upon the resident’s income
to try “to make it a win-win situation” for himself and his residents because the group
home was “still a business.” Mr. Bean claimed that Ms. Morgan did not tell him how
much money the Defendant had in savings when they originally agreed that the rent
would be $800 a month. However, Mr. Bean denied that he became “upset” when the
assistant district attorney told him about the Defendant’s savings.

                                           -13-
             IV. The Defendant’s Family Members Opposing His Discharge

       The Defendant’s younger sister, Debra Doris Clark, testified in opposition to the
Defendant’s discharge. Ms. Clark testified that the Defendant was “a lot of fun” as a
child but that “he changed a little bit” after an accident he had when he was a teenager.
Ms. Clark explained that the Defendant was “electrocuted and got a concussion” while he
was working as a lifeguard and, after that, he “was quieter” and “not his usually, happy,
jollyful [sic] self.” Ms. Clark recalled that the week before the murders, the Defendant
came to her house “acting very strange.” The Defendant asked Ms. Clark’s then-husband
“if he was ready to meet his maker” and then went upstairs to look for Ms. Clark’s then-
two-year-old son. Ms. Clark’s son was asleep in his bed, but the Defendant could not
find the boy’s bedroom. Ms. Clark testified that she was not surprised when she heard
that the Defendant had killed her father and stepmother because of “the way he was
acting and what he did to [her].” Ms. Clark explained that “[the Defendant] had sexually
abused [her]” when she was twelve.

       Ms. Clark testified that she had visited the Defendant at the Institute a few times at
their mother’s request. Ms. Clark stated that she “was relieved” when the Defendant was
committed “as long as he never got out.” Ms. Clark questioned the Defendant “[w]hen
he started saying he wanted out.” Ms. Clark explained that she would never want to be
released if she had murdered someone. Ms. Clark asked the Defendant why he wanted to
be discharged, but he “didn’t answer” her. Ms. Clark testified that she was afraid that the
Defendant would move back to the Morristown area because their mother lives nearby.
Ms. Clark said that she warned the Defendant that “if he ever did get out and he came up
[there], he’d be looking down the end of a gun.”

       The Defendant’s step-sister, Diana Horner, also testified in opposition to his
discharge. Ms. Horner testified that she lived near the Defendant as a child and that she
remembered the Defendant being a quiet, “normal child.” Ms. Horner explained that her
mother and the Defendant’s father were neighbors, had an affair, eventually divorced
their respective spouses, and got married to each other. Ms. Horner testified that her
mother and the Defendant’s father had been married for twenty years when they were
killed. Ms. Horner recalled that the Defendant would not visit his father and stepmother
often, explaining that “it was usually [when] he had an excuse, like, [he] needed money
or something.” Ms. Horner testified that she has had no contact with the Defendant since
his commitment. Ms. Horner further testified that she is scared of the possibility of the
Defendant’s discharge and that she is afraid that he would come back to the area to visit
his mother.

       The Defendant’s half-sister, Jhounna Pruitt, also testified in opposition to the
Defendant’s discharge. Ms. Pruitt testified that she was the daughter of the Defendant’s
father and stepmother. Growing up, Ms. Pruitt recalled the Defendant’s visiting from
                                            -14-
time to time and an incident when the Defendant lived with them “for a little bit” after he
was involved in a car accident. Ms. Pruitt testified that two days before the murders, the
Defendant visited his father and stepmother to tell them that “he had gotten saved and he
wanted to ask them forgiveness for everything in the past and he wanted to become a
family.” Ms. Pruitt testified that except for a Christmas card the Defendant sent her in
1999, she had no contact with the Defendant since his commitment. Ms. Pruitt further
testified that she was scared about the prospect of the Defendant’s discharge and afraid
that he would “be after [her] next.” Ms. Pruitt explained that she was “the affair baby”
and was afraid that the Defendant blamed her for causing his parents’ divorce. Ms. Pruitt
further explained that the Defendant had written a “forgiveness letter” to his other
siblings but never wrote one to her.

             V. The Defendant’s Family Members Supporting His Discharge

       The Defendant’s older sister, Jean Ann Stubblefield, testified in support of the
Defendant’s discharge. Ms. Stubblefield recalled that the Defendant exhibited “bizarre
behaviors” and claimed to have experienced a religious conversion shortly before the
murders. Ms. Stubblefield also recalled that the night before the murders their mother
fled her house out of fear of the Defendant. Ms. Stubblefield testified that she had
maintained contact with the Defendant throughout the years and that she had “seen a
major, major change in [his] life.” Ms. Stubblefield explained that the Defendant was
“really better now than [she had] ever known him to be,” that he was “more stable and
solid and calm and steady,” and that he had come “to a sense of who his person is.”

        Ms. Stubblefield testified that she had “many conversations” with the Defendant
about his possible discharge and his need to continue his treatment. Ms. Stubblefield told
the trial court that the Defendant was “very proactive about working the plan and staying
with the plan.” Ms. Stubblefield claimed that the Defendant would reiterate to her that he
did not “want anything to do with alcohol.” Ms. Stubblefield also claimed that the
Defendant realized what it would “take to straighten it out and walk a straight line” and
that was “what he want[ed] to do.” Ms. Stubblefield further testified that the Defendant
had told her “many times” that he intended “to continue taking his medicine.” Ms.
Stubblefield told the trial court that she would maintain “[l]ots of contact” with the
Defendant if he were discharged and would report the Defendant if he began to behave
strangely again.

        Ms. Stubblefield’s husband, Craig Stubblefield, also testified in support of the
Defendant’s discharge. Mr. Stubblefield testified that he had visited the Defendant at the
Institute with his wife. Mr. Stubblefield told the trial court that the Defendant had
“grown calmer and more peaceful through the years.” Mr. Stubblefield testified that he
believes the Defendant is “ready to step out and go back into society.” Mr. Stubblefield
further testified that the Defendant could move into his house. However, Mr.
                                           -15-
Stubblefield testified that the Defendant told him that he did not want to return to the
Morristown area.

       The Defendant’s older brother, Campbell Cloar, also testified in support of his
discharge. Mr. Cloar testified that he had maintained contact with the Defendant
throughout the years and that he had noticed “a huge change” in the Defendant. Mr.
Cloar further testified that he was confident that the Defendant would continue his
treatment and medication upon his discharge because the Defendant had shown
“determination to do everything . . . necessary.”

                              VI. The Defendant’s Testimony

        The Defendant stated that he was sixty years old at the time of the hearing. The
Defendant testified that he did not think that any of the other patients at the Institute had
been there longer than him. The Defendant further testified that during his twenty-three
years at the Institute he had been granted a significant number of privileges. The
Defendant explained that he had “access to [go] outside from one end of the parking lot
to the other end . . . and around the grounds.” The Defendant further explained that he
could easily have abused these privileges by having someone bring him contraband or
“just take off” but that he had never done so. The Defendant also explained that it was
unusual for a patient to be allowed to go off site to Park Center. The Defendant testified
that he had been going to Park Center for four or five years.

        The Defendant testified that he was dropped off and picked up at Park Center by
“[t]he State” van. The Defendant told the trial court that his time at Park Center had
“helped [him] socialize more” and learn skills he would need after his discharge. The
Defendant further stated that he had taken classes there on clerical and computer skills, as
well as training on how to use the Nashville mass transit system. The Defendant testified
that he had also been taught at Park Center about the need to “have a plan in place” in
case he started “feeling funny mentally.” The Defendant told the trial court that, if he
was discharged, he wanted to continue going to Park Center until he found a job. The
Defendant testified that during his commitment, he had several different jobs at the
Institute. The Defendant stated that he started with cleaning toilets, moved on to working
in the commissary, and eventually to managing the “drop-in” center. The Defendant also
testified that he had participated in Alcoholics Anonymous while he was at the Institute
until that program was discontinued there and that he looked forward to participating in it
again after his discharge.

       The Defendant testified that he did not know before the murders what was
happening to him. The Defendant explained that he thought he was having a religious
experience. The Defendant also stated that he did not remember the offenses or what he
told the police afterwards. The Defendant described that day as “the worst day of [his]
                                            -16-
life” and that he felt “really bad, remorseful that [he] caused such a tragedy.” The
Defendant expanded on that, saying that he also “felt guilt, embarrassment, [and]
humiliation.” The Defendant testified that he accepted his illness and would “definitely”
continue his medication if he were discharged. The Defendant explained that he
understood that his medication kept him “calm” and “stable” and his “thoughts orderly.”
The Defendant further explained that he did not want to go through psychosis again and
that he had “come too far mentally and emotionally to mess with . . . missing
medication.” The Defendant further testified that he would “call the crisis line” or go to
an emergency room if he was “not feeling [him]self.”

       The Defendant told the trial court that he believed that his behavior at the Institute
demonstrated that he could successfully live independently. The Defendant further stated
that he complied with his treatment and medication because he wanted his disease to
remain in remission and that he would continue to comply if he was discharged. The
Defendant testified that he had already met with Veterans Affairs and had seen a
psychiatrist to transition to aftercare. The trial court asked the Defendant if Veterans
Affairs would “draw blood regularly” to test his medication levels. The Defendant
responded that he did not know and that the Institute did not do blood tests to check his
medication levels. The Defendant admitted that he had mistakenly been drawing “Social
Security disability income” while he was committed and that he would have to pay back
$21,900 upon his discharge. The Defendant was asked on cross-examination why he was
not being placed in “supervised living” offered by Park Center. The Defendant stated
that he did not know why, and the trial court commented that Park Center “sounded more
like what we were looking for, transition.” The Defendant responded that he would not
leave the group home until he got his “bearings and all that.”

                    VII. Closing Matters and the Trial Court’s Ruling

       At the conclusion of the evidence, the attorney for the Tennessee Department of
Mental Health and Substance Abuse Services noted that the prior judge “was vocal and
frank about his opinions about the [Institute’s] request” for the Defendant’s discharge and
that was likely why prior plans involved the Defendant’s being discharged to mandatory
outpatient treatment. The attorney also stated that mandatory outpatient treatment was
sometimes given “more value [than] it really has” because it did “not make a person with
a mental illness necessarily anymore likely to comply with taking their medications.” At
that point, the trial court stated that it wanted “the equivalent of a probation officer” or
“parole officer” for the Defendant to ensure that the Defendant was taking his
medication. The trial court continued, stating that it wanted “somebody that’s jerking
[the Defendant’s] chain every once in a while.”

       Prior to ruling, the trial court addressed the standard of review it would apply.
The trial court noted that the applicable statute required it to find “by clear, unequivocal,
                                            -17-
and convincing evidence” that the Defendant was not eligible for discharge. The trial
court stated that as far as it knew, “we don’t have a separate standard for unequivocal
evidence in Tennessee.” The trial court stated that it thought the term “unequivocal” was
“surplusage” and that it would decide this case “on [the] clear and convincing standard.”
The trial court further stated that it was “not familiar with the clear, unequivocal, and
convincing standard as being any different than just a clear and convincing standard.”
None of the parties objected to the trial court’s interpretation of the standard of review.

        In ruling, the trial court stated that it was to the Defendant’s “great credit” that
there had been “no incidents” during his twenty-three years of commitment. The trial
court also acknowledged that the Defendant did not meet the statutory requirements for a
mandatory outpatient treatment discharge because “all the folks that [dealt] with [the
Defendant] at the mental health facility [said] he [was] likely to participate in outpatient
treatment without any legal obligation” and that they felt that the Defendant was “self-
motivated at this point.” The trial court stated that it did not “fault” the staff of the
Institute for proposing that the Defendant be discharged because they were “doing
exactly what the legislature told them to do” based upon the applicable statutes.
However, the trial court stated that its role was different from “the folks in charge of his
psychiatric treatment.”

        The trial court stated that it placed great weight on Dr. Freeman’s testimony that
“there’s no cure to psychosis” and that the Defendant had “to stay on his medicine and
[had] to stay off abusing alcohol or other drugs.” Based upon that, the trial court deemed
that it had “to have a plan which [had] some accountability on making sure” the
Defendant continued taking his medication and abstained from substance abuse. The trial
court stated that it did not “know what that [type of plan would look] like.” The trial
court stated that it wanted “a social worker coming to the [Defendant’s] house and doing
a pill count and . . . taking a blood draw.” The trial court then ruled as follows:

       [T]he presumption of release on the plan that the [c]ourt’s been provided is
       rebutted by the severity of the psychosis that [the Defendant had]
       experienced in the past and the results of that psychosis, which was the two
       murders, the relatively low risk of that occurring again based upon Dr.
       Freeman’s testimony, to me means [the Defendant was] ready to be
       released if we have the safeguards in place. But because there are no
       safeguards in place in my view on the current plan, I think the presumption
       of release has been rebutted by the State at this point.

      The trial court then took questions from the audience. In answering questions
from Ms. Stubblefield, Mr. Stubblefield, and Mr. Cloar on what, if anything, could be
done to secure the Defendant’s discharge, the trial court stated that it would approve a
plan where the Defendant moved “in with Dr. Crawford for the next six months” but that
                                            -18-
“Dr. Crawford [was not] offering his house even though he [said] he’d be comfortable
with it.” The trial court also stated that the ninety-day furlough period was “no
transition.” The Defendant then appealed to this court pursuant to Tennessee Code
Annotated section 33-6-708(c)(5).

                                        ANALYSIS

        The Defendant contends that the trial court erred in finding that he was ineligible
for discharge. The Defendant argues that the trial court applied the wrong standard of
review and that his ineligibility for the proposed discharge plan was not established by
clear, unequivocal, and convincing evidence. The Defendant further argues that the trial
court’s discussion of mandatory outpatient treatment was misplaced because he did not
meet the criteria for that type of discharge. The Defendant specifically cites to the fact
that there was no evidence that he would fail to participate in outpatient treatment unless
legally obligated to do so. The State responds that there is no evidence that the
Defendant would be likely to participate in outpatient treatment without being legally
obligated to do so. The State argues that the Defendant’s compliance with his treatment
and medication for the past twenty-three years is of no merit because it was “legally
obligated” and that the Defendant “has never lived independently while managing and
treating his delusion disorder and his drug and alcohol addiction.” We find that the
State’s argument is not well-taken.

       We review the trial court’s decision in this matter de novo with a presumption of
correctness “unless the preponderance of the evidence is otherwise.” State v. Groves,
735 S.W.2d 843, 844 (Tenn. Crim. App. 1987). The Defendant was found not guilty by
reason of insanity for the underlying murders and involuntarily committed by the trial
court pursuant to Tennessee Code Annotated section 33-7-303(c).

       The United States Supreme Court has held that the “purpose of commitment
following an insanity acquittal . . . is to treat the individual’s mental illness and protect
him and society from his potential dangerousness.” Jones v. United States, 463 U.S. 354,
368 (1983) (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)) (internal quotation
marks omitted). The Due Process Clause of the United States Constitution “requires that
the nature and duration of commitment bear some reasonable relation” to that purpose.
Id. As such, “[t]he committed acquittee is entitled to release when he has recovered his
sanity or is no longer dangerous.” Id.

       To that end, Tennessee Code Annotated section 33-6-706 provides for discharge
of an involuntarily committed patient when “the person . . . has a mental illness . . . in
remission” and, if “the person would pose a likelihood of serious harm . . . unless
treatment is continued,” “voluntary outpatient treatment is a suitable less drastic
alternative to commitment because the person is likely to participate in outpatient
                                            -19-
treatment without being legally obligated to do so.” (Emphasis added). A “substantial
likelihood of serious harm” occurs when a person either (1) “has threatened or attempted
suicide or to inflict serious bodily harm,” (2) “has threatened or attempted homicide or
other violent behavior,” (3) “has placed others in reasonable fear of violent behavior and
serious physical harm to them,” or (4) “is unable to avoid severe impairment or injury
from specific risk,” and “there is a substantial likelihood that the harm will occur unless
the person is placed under involuntary treatment.” Tenn. Code Ann. § 33-6-501.

        While not pertinent to our review, discharge to mandatory outpatient treatment
was discussed at length in the trial court. Tennessee Code Annotated section 33-6-602
provides for discharge “subject to the obligation to participate in any medically
appropriate outpatient treatment . . . under a plan approved by the releasing facility and
the outpatient qualified mental health professional.” This type of discharge is available if
(1) “the person . . . has a mental illness . . . in remission,” (2) “the person’s condition
resulting from mental illness . . . is likely to deteriorate rapidly to the point that the person
will pose a likelihood of serious harm . . . unless treatment is continued,” (3) “the person
is likely to participate in outpatient treatment with a legal obligation to do so,” (4) “the
person is not likely to participate in outpatient treatment unless legally obligated to do
so,” and (5) “mandatory outpatient treatment is a suitable less drastic alternative to
commitment.” Tenn. Code Ann. § 33-6-602(1) (emphases added).

        There was significant confusion in the trial court about the application and scope
of mandatory outpatient treatment. Mandatory outpatient treatment is the only type of
discharge available when “voluntary outpatient treatment is not a suitable less drastic
alternative to commitment because the person is not likely to participate in outpatient
treatment without being legally obligated to do so.” Tenn. Code Ann. § 33-6-707.
“[T]he term outpatient involves the patient leaving the treatment facility rather than
residing there.” State v. Sandra Lynn Baumgartner, No. W2003-00038-CCA-R3-CD,
2003 WL 21383208, at *8 (Tenn. Crim. App. Apr. 14, 2003). Therefore, even when a
defendant is discharged to mandatory outpatient treatment, “requiring the defendant to
live in a group home or halfway house that provides twenty-four-hour supervision is not
consistent with outpatient treatment.” Id. Similarly, this court has previously struck
down a requirement in a mandatory outpatient treatment plan that a defendant’s
“medication be supervised at least five days per week” when the record contained “no
evidence that the defendant [had] ever been remiss in taking her own medication.” Id. at
*10.

       Because the Defendant was committed involuntarily by the trial court, his
discharge was subject to judicial review pursuant to Tennessee Code Annotated section
33-6-708. Section 33-6-708(c)(1) provides that “[w]hen the chief officer [of the
committing institution] determines that the person is eligible for discharge under . . . §

                                              -20-
33-6-706, the chief officer shall notify the committing court of that conclusion[ and] of
the basis for it[.]” “The determination by the chief officer shall create a rebuttable
presumption of its correctness.” Tenn. Code Ann. § 33-6-708(c)(1). The trial court may,
“on its own motion or that of the district attorney general, order a hearing to be held” on
the matter. Id. “Following the hearing, if the court finds by clear, unequivocal, and
convincing evidence that the person is not eligible for discharge under . . . § 33-6-706, it
shall order the person’s return to the hospital under the original commitment.” Tenn.
Code Ann. § 33-6-708(c)(4) (emphasis added). Otherwise, the trial court “shall order the
person’s release from involuntary commitment in accordance with the recommendations
of the chief officer.” Id.

       At the outset, we note that the trial court applied the wrong standard of review in
this matter. “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Arroyo v.
State, 434 S.W.3d 555, 559 (Tenn. 2014) (quoting Grindstaff v. State, 297 S.W.3d 208,
216 (Tenn. 2009)) (internal quotation marks omitted). “In order for evidence to be clear
and convincing, it must eliminate any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Id. (quoting State v. Sexton, 368 S.W.3d
371, 404 (Tenn. 2012)) (internal quotation marks omitted). The term “unequivocal” as
used in section 33-6-708(c)(4) is not mere surplusage to be ignored as the trial court did
here. Nor is it “to be taken literally.” Groves, 735 S.W.2d at 846. Instead, the term
“unequivocal” “raises the level of the clear and convincing standard” to beyond clear and
convincing but less than beyond a reasonable doubt. Id. Regardless of this heightened
standard, “it is not necessary” that the evidence seeking to rebut the presumption of
correctness given to the chief officer’s discharge decision “be expert testimony.” Id.

       The operative question is whether there was clear, unequivocal, and convincing
evidence that the Defendant was not eligible for discharge under section 33-6-706. None
of the parties dispute that the Defendant has a mental illness in remission and that the
Defendant would pose a likelihood of serious harm unless treatment is continued.
Therefore, the focus of our inquiry is whether “voluntary outpatient treatment is a
suitable less drastic alternative to commitment because the person is likely to participate
in outpatient treatment without being legally obligated to do so.” Tenn. Code Ann. § 33-
6-706(1)(C)(ii). There is nothing in the record before us to suggest that the Defendant
would not voluntarily continue outpatient treatment without being legally obligated to do
so. The trial court recognized as much at the conclusion of the hearing.

       Still, the trial court denied the Defendant’s discharge on the basis of the severity of
the Defendant’s past psychosis, the severity of the Defendant’s crimes, and the fact that
there were “no safeguards in place” to monitor the Defendant upon his discharge. There
is no doubt that at the time of the offenses the Defendant suffered from a severe mental

                                            -21-
illness and that his crimes were horrific. However, this court has previously held that a
defendant’s untreated past behavior alone did not provide clear, unequivocal, and
convincing evidence sufficient to deny a defendant’s discharge. State v. Jackie H.
Martin, No. 02C01-9512-CR-00374, 1996 WL 687028, at *4 (Tenn. Crim. App. Dec. 2,
1996). Therefore, those were not proper grounds for denying the Defendant’s discharge.

       The trial court’s other basis for denying the Defendant’s discharge, that there were
“no safeguards in place,” rested on Dr. Freeman’s testimony that “there’s no cure to
psychosis” and that the Defendant needed to continue his medication and abstain from
substance abuse. During cross-examination, Dr. Freeman was asked if the Defendant
“would need mandatory outpatient treatment” to insure that he stayed on his medication
and abstained from substance abuse. Dr. Freeman responded that mandatory outpatient
treatment “was one of [his] recommendations” and that he felt “like that would be
important.”

        However, Dr. Freeman’s report stated that the Defendant “must be engaged in
aftercare.” The report noted that the Defendant was attempting to arrange mandatory
outpatient treatment but also noted that the Defendant was “eligible for services” through
Veterans Affairs and that the Defendant was “being established with [Veterans Affairs]
for future medical and mental health needs.” Furthermore, Dr. Freeman described the
Defendant’s discharge plan as “very comprehensive,” “a good plan,” “very reasonable,”
and “appropriate” for the Defendant. Dr. Freeman testified that he understood that the
Defendant “would not be under anybody’s thumb” after the furlough. Dr. Freeman
reiterated that he had “very little concern” about the discharge plan and that he thought it
“was reasonable.”

        We do not think that Dr. Freeman’s brief statement during cross-examination
about mandatory outpatient treatment was sufficiently clear, unequivocal, and convincing
to overcome the rebuttable presumption of the discharge’s correctness. This is especially
true in light of the fact that Dr. Freeman testified that he was confident that the Defendant
would voluntarily continue his treatment given his high motivation to do so, “his [twenty]
plus years of doing well” at the Institute, and his insight into his illness. Dr. Freeman’s
testimony on this matter echoed that of Dr. Crawford, Dr. Jahan, and Ms. Morgan, all of
whom were confident that the Defendant would voluntarily continue his treatment and
medication. Likewise, Ms. Stubblefield, Mr. Stubblefield, and Mr. Cloar all testified that
they believed the Defendant would voluntarily continue treatment. While Ms. Clark, Ms.
Horner, and Ms. Pruitt all testified in opposition to the Defendant’s discharge, they did
not present any evidence that the Defendant would not voluntarily continue his treatment
upon discharge. In fact, on this operative question, there is nothing in the record to
suggest that the Defendant would not voluntarily comply with his treatment and
medication upon his discharge.

                                            -22-
        The problem with the trial court’s denial on the grounds that there were “no
safeguards in place” in the proposed discharged plan is that the applicable statute enacted
by our legislature does not provide for any post-discharge supervision so long as “the
person is likely to participate in outpatient treatment without being legally obligated to do
so.” Tenn. Code Ann. § 33-6-706(2)(C)(ii) (emphasis added). The lack of safeguards
that are not provided for in the statutory scheme cannot be the basis for rebutting the
presumption of the discharge plan’s correctness or the Defendant’s eligibility for
discharge under section 33-6-706. Put another way, the discharge plan cannot be rejected
for failing to provide safeguards that the applicable statute does not require or address.

        On appeal, the State argues that there is no evidence that the Defendant would be
likely to participate in outpatient treatment without being legally obligated to do so
because the Defendant has been “legally obligated” to comply with his treatment at the
Institute and because he has not previously “lived independently” while managing his
mental illness. We disagree. All of the experts who testified at the hearing relied on the
Defendant’s compliance with treatment while he was committed as a major indicator of
whether he would continue to comply with treatment after discharge. Furthermore, the
State’s argument that likeliness to participate in outpatient treatment voluntarily could
only be shown by a patient’s previously having done so ignores the expert testimony to
the contrary and would effectively require all patients to be discharged via mandatory
outpatient treatment before qualifying for discharge under section 33-6-706.

       The State also argues that the Defendant’s “expression of an intent to continue his
medication and treatment—[] even if genuine and sincere—is insufficient, standing
alone, to support a conclusion” that he was eligible for discharge under section 33-6-706.
However, this court has previously held that a defendant’s testimony is “highly essential
to a decision of the magnitude involved in his release into a free society.” State v. Tripp,
754 S.W.2d 92, 95 (Tenn. Crim. App. 1988). The Defendant was adamant during his
testimony that he understood the need to continue his treatment and medication, as well
as his determination to continue his treatment so that he could successfully live
independently.

        Moreover, there was ample evidence of the Defendant’s preparations to continue
his treatment. The Defendant had already established himself as a patient with Veterans
Affairs and seen a Veterans Affairs psychiatrist. The Defendant had also arranged to
attend Alcoholics Anonymous meetings and obtained a sponsor. The Defendant had
gone to Park Center four days a week for four or five years where he took classes to
prepare for his transition back to independent living. The Defendant also took classes on
having a plan in place in case he relapsed back into his illness. Furthermore, the
Defendant’s discharge plan included a ninety-day furlough to a residential group home
despite the fact that neither of these precautions are required by the applicable discharge

                                            -23-
statute or the mandatory outpatient treatment statute. In fact, the Defendant testified that
he intended to stay at a residential group home even after the furlough period ended and
until he was able to get his “bearings and all that.”

        In light of the evidence presented at the hearing that the Defendant would
voluntarily continue treatment after discharge, we conclude that there was no evidence
rising to the level of clear, unequivocal, and convincing that rebutted the presumption of
correctness granted to the discharge plan. The State and the trial court’s focus on
transitioning the Defendant and “a plan which [had] some accountability” were
misplaced. We understand and sympathize with their concerns. However, “the statutory
scheme reflects the considered judgment of the state legislature as to the proper balance
between the need to protect the public from the person while at the same time protecting
the person from unjustified detention.” State v. Kenneth Ryan Mallady, No. M2010-
02142-CCA-R3-CD, 2012 WL 76901, at *8 (Tenn. Crim. App. Jan. 10, 2012). Section
33-6-706 focuses on whether a defendant “is likely to participate in outpatient treatment
without being legally obligated to do so” rather than the State and the trial court’s
concerns. The Defendant’s likeliness to voluntarily participate in outpatient treatment
was overwhelmingly established at the hearing. Accordingly, we reverse the judgment of
the trial court.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is reversed. We remand this case for entry of an order, pursuant to
Tennessee Code Annotated section 33-6-708(c)(4), discharging the Defendant from
involuntary commitment “in accordance with the recommendation of the chief officer.”



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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