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In re Necessity for the Hospitalization of Darren M.

Supreme Court of Alaska

September 14, 2018

In the Matter of the Necessity for the Hospitalization of DARREN M.

          Appeal from the Superior Court No. 3AN-16-02059 PR of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant

          Darren M. Kathryn R. Vogel, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.




         After an involuntary commitment trial, the superior court issued an order committing the respondent to the Alaska Psychiatric Institute (API) for 90 days. The respondent appeals, arguing that the jury was incorrectly instructed on the unanimity requirement relating to a finding of grave disability. He also argues that the court erred in finding there was sufficient evidence that his condition would improve with treatment to support an involuntary commitment order. On the second issue, his appeal raises questions regarding the applicable legal standard. We conclude that any error in the jury instructions was invited error, that the superior court applied the correct legal standard regarding respondent's chance of improvement, and that the court's finding on that issue is supported by the record and not clearly erroneous. We affirm the superior court's commitment order.


         In August 2016, after Darren M.[1] removed the screen from the window of his third-floor apartment, he told his niece that he intended to jump. The niece called an ambulance, which transported Darren to the psychiatric emergency department at Providence Alaska Medical Center (Providence). Later that same day, a counselor at Providence filed a petition for an order authorizing Darren's hospitalization for evaluation based on her determination that Darren, who had previously been diagnosed with bipolar disorder, was gravely disabled and a danger to himself or others. The petition alleged that Darren presented "with loose associations, actively talking to himself, appearing psychotic" and that he was not taking his medications.

         The superior court granted the petition and ordered Darren to be admitted to API for a mental health evaluation to be completed within 72 hours. The State, representing API, subsequently filed a petition seeking to have Darren committed to API for 30 days. After a hearing on Darren's mental condition, the court granted the petition on the basis that Darren was mentally ill and likely to cause harm to himself or others.[2]Near the end of the 30-day commitment period, the State filed another petition seeking to extend Darren's commitment for an additional 90 days. The petition alleged that Darren was mentally ill, that as a result he was both gravely disabled and likely to cause harm to himself or others, [3] that there was reason to believe his mental condition could be improved with treatment, [4] and that there was no less restrictive treatment alternative available. Before trial, the State withdrew the allegation that Darren presented a risk to himself or others, proceeding solely on a theory of grave disability. A bifurcated trial was held in October 2016: a six-person jury[5] considered whether Darren was mentally ill and as a result gravely disabled, and a subsequent bench hearing was held on whether a less restrictive treatment alternative was available and whether there was reason to believe Darren's mental condition could improve with treatment.

         A. Testimony Before The Jury

         At the jury portion of the trial, Darren's niece, daughter, and son all testified about Darren's mental condition, living situation, and recent behavior. The jury also heard testimony by Gerald Martone, a psychiatric nurse practitioner and Darren's primary care provider at API. The court recognized Martone as an expert witness.

         Darren's daughter testified that Darren has a history of mental illness going back to the 1980s when he was diagnosed with bipolar disorder. Darren lived with her in Oregon from approximately October 2015 until April 2016; in that time she observed that Darren struggled "with bouts of mania and depression"; suffered from paranoia, delusions, "racing thoughts," and insomnia; and was "not able to hold a conversation."

         In the spring of 2016, Darren moved to Alaska and lived with his niece while she helped him find senior housing. After Darren transitioned to independent living in senior housing, it appears his condition declined further: his niece, daughter, and son all expressed concern about Darren's ability to care for his own needs. The niece testified that Darren would become forgetful when cooking and that he confused his current address with one for a home where he had not lived in 15 years. Darren's daughter testified that his apartment was "a little messy" and that she found clothing soiled with feces in the bathroom garbage that "smelled like it had been there for a little while." His son testified that Darren stopped buying groceries when he had previously gone shopping almost daily, that he "wasn't eating very well," and that he started drinking "much more than he . . . ever normally would," to the point of scaring other residents of his apartment complex, as well as falling down and breaking his collar bone.

         Their testimony was particularly concerned with Darren's ability to care for his medical needs. The daughter testified that in August 2016, Darren told her "[h]e hadn't been taking his medications since spring." She testified that Darren "did not understand that you have to make appointments" to see a doctor. On one occasion, Darren had told her that he had walked into a doctor's office concerned that "his mouth was cancerous" and demanded a biopsy; because he did not have an appointment, "he just left and didn't get screened at all and didn't make . . . an appointment for the future." The niece testified that Darren believed "doing arm exercises and push ups to help strengthen him" would help heal his fractured collar bone. The niece testified that she had discovered an empty bottle of heart medication in Darren's apartment; this concerned her because she had previously seen the bottle full with enough pills in the bottle to "last quite a while." Her testimony also indicated that she was not sure her uncle knew what the medication was: Darren told her it was not actually his medication but that he had found it on the bus and taken pills from it anyway. The niece also testified that she once found Darren with "very swollen" legs that he "didn't seem concerned about" and a black eye that he was seemingly unaware of and could not explain.

         Darren's niece testified in detail about the events of August 19, 2016, the day she called the ambulance. Earlier, either that morning or the day before, Darren had pulled the communal fire alarms in his buildings, apparently out of concern that they were not working. The niece later found Darren with his coat on inside his apartment with the window open and the screen removed. When she asked why his windows were open, Darren responded that "the fire alarms weren't working and that he had to jump" but that he first needed to buy a candle from the store. Concerned that Darren might actually jump from the third-floor window, the niece called for an ambulance to take Darren to Providence. While the two waited for the ambulance, Darren told his niece that a nearby streetlight would turn on if tapped three times with a lighter or rock and indicated an interest in rewiring the light "to make it stay on."

         Darren's son and daughter testified about his condition during his initial 30-day commitment. When his daughter visited him, Darren insisted they sit at the children's table so that he could see out the front door and "see who was coming in and going out," expressed concerns about keeping her safe, and wanted the police to be present during her visit. She noticed various cuts, scrapes, and bruises on her father, as well as swollen ankles, and she worried he was not taking care of his congestive heart failure. Darren did not take his medications consistently, and he told his daughter that taking his medications would "make him visible" and prevent him from protecting her and her brother. Darren told her that he wanted "to get a handgun as soon as he gets out of API" and told his niece that "he wanted to get a gun because he didn't want his son to know where he lived." According to his son, Darren likened himself to Jack Ruby[6]and believed he "would be fit to be . . . [a] contract killer." The son testified that Darren suffered from delusions, describing demons and "religious, spiritual things" that others could not see. The son also noticed a cut on Darren's leg that Darren said he sustained when "the floor came up and cut him," referencing the "T-1000," a shape-shifting android assassin featured in the movie Terminator 2.

         Martone testified that in addition to bipolar illness, Darren suffers from Korsakoff syndrome, which is a form of permanent, irreversible nerve damage caused by vitamin B1 deficiency, and which is most commonly a result of chronic alcoholism. He testified that Korsakoff syndrome causes brain function to deteriorate, resulting in confusion, eye-twitching, and a tendency to "confabulate" - inventing information to fill in for knowledge deficits - all of which were symptoms he saw in Darren. Bipolar illness, by contrast, is a mood disorder that involves "cycling between extremes of moods, both highs and lows." Martone testified that while "people with bipolar in a manic state have poor judgment and decision making," bipolar illness would not cause the confusion Darren was exhibiting.

         Regarding Darren's ability to function outside a controlled environment, Martone testified that Darren's "reality decision making [was] impaired," that Darren "[did] not know the consequences of his action[s]," that "he [did] not have insight into his illness," and that he was unable to communicate coherently. Martone explained that a "KELS test" - an "evaluation of living skills" - was given to Darren at API, and the test indicated that Darren "would need assistance to perform his activities of daily living independently." Martone also testified that Darren would not "be safe in the community if he were to be released [at the time of trial]" because "his judgment [was] very impaired, "he "ha[d]trouble forming new memories, "and he would "get[]easily angered and irritated." By contrast, Martone testified that API would be a "very safe place" for Darren. Finally, Martone corroborated the daughter's testimony that Darren did not always take his medication, against Martone's advice.

         Darren did not testify and did not call any witnesses on his behalf.

         B. The Jury Instructions And The Jury's Findings

         After the close of evidence, the superior court instructed the jury on the findings it was required to make. Instruction 12 told the jury: "[Darren] should be involuntarily committed for treatment at Alaska Psychiatric Institute only if you find that the [S]tate has proved by clear and convincing evidence that [he] is mentally ill and as a result is gravely disabled." Instruction 14 defined the term "gravely disabled":

Gravely disabled means a condition in which a person, as a result of mental illness:
(1) is in danger of physical harm arising from such complete neglect of basic needs for food, clothing, shelter or personal safety as to render serious accident, illness or death highly probable if care by another is not taken; or
(2) will, if not treated, suffer or continue to suffer severe and abnormal mental, emotional or physical distress,

         and this distress is associated with significant impairment of judgment, reason or behavior causing a substantial deterioration of the person's previous ability to function independently. This distress refers to a level of incapacity that prevents the person in question from being able to live safely outside of a controlled environment.[7]

         Instruction 22 informed the jury about the unanimity requirement:

To reach a verdict in this case, five of you must be in agreement as to each answer you give on the special verdict form. The same five jurors need not agree as to every answer, as long as any combination of five jurors agrees to each answer on the special verdict form.

         The special verdict form given to the jury asked two questions: whether the State had proved by clear and convincing evidence that Darren was mentally ill, and whether the State had proved by the same standard that Darren was gravely disabled as a result.

         While Darren's attorney made some pre-trial objections to the State's proposed grave disability instruction, the instructions used by the court on the issues of grave disability and jury unanimity, as well as the special verdict form, were all either identical or nearly identical to the instructions and verdict form Darren's attorney had proposed. At trial, neither ...

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