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10/04/91 TOMMIE LEE MELTON

October 4, 1991

IN RE: TOMMIE LEE MELTON, APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Samuel R. Block, Trial Judge. This Opinion Substituted by Court for Vacated Opinion of November 6, 1989,

En Banc. Rogers, Chief Judge, and Ferren, Terry, Steadman, Schwelb, and Wagner, Associate Judges, Mack, and Belson,* Senior Judges. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Ferren, with whom Senior Judge Mack joins.

The opinion of the court was delivered by: Schwelb

On Rehearing En Banc

This case presents interesting and vigorously contested issues which apparently arise with some frequency in civil commitment proceedings brought pursuant to the Ervin Act, D.C. Code §§ 21-501 to 21-592 (1989). Appellant Tommie Lee Melton is a 44-year-old man, diagnosed as a paranoid schizophrenic, who has frequently been hospitalized on account of his illness. On October 25, 1985, following a jury trial, Melton was found to be likely to injure himself or others *fn1 within the meaning of D.C. Code § 21-521 (1989). The trial Judge committed Melton to the custody of Saint Elizabeth's Hospital (the hospital) for an indefinite period for outpatient treatment at the hospital's Spring Road Clinic.

On November 26, 1989, a divided panel of this court reversed the commitment order. In re Melton, 565 A.2d 635 (D.C. 1989) (Melton I). The division majority was of the opinion that the psychiatric witnesses called by the District were erroneously permitted to testify that Melton was likely to injure himself or others, in that their expertise with respect to predicting dangerousness was said not to have been sufficiently established. The majority also held that the trial court had erroneously permitted these witnesses to testify regarding events of which they had learned from third parties or from hospital records, without first making the necessary finding that experts in the field reasonably and customarily rely on such materials. On November 7, 1990, we vacated the division opinion and ordered that the case be reheard en banc. In re Melton, 581 A.2d 788 (D.C. 1990).

Distilled to its essence, the District's psychiatric evidence tended to show that when Melton was not adequately supervised, he often failed to report for the medication which was required by his condition. As a result, he was unable to care for himself, wallowed in filth, and placed his health in serious danger from diabetes, glaucoma, and alcoholism. Moreover, the psychiatrists concluded, substantially on the basis of information provided to them by others, that when Melton did not adhere to his regimen of medication, he constituted a danger to others, as demonstrated by punching his mother in the nose, threatening his sister with a screwdriver, and acting in an assaultive and disruptive manner.

In the context of this case, which was focused so heavily on Melton's deterioration when he failed to take his prescribed medication, we are satisfied that the trial Judge correctly found the District's psychiatric witnesses to be qualified to testify with respect to whether Melton was likely to injure himself or others if he was left to his own devices and without medical supervision. Where, as here, the issue presented was Melton's dangerousness, the evidence on which the District's psychiatric witnesses relied, including statements by members of Melton's family and records of his past hospitalizations, was of a kind reasonably and customarily relied on by experts in the field. Although we have pronounced reservations regarding the efficacy of the trial Judge's limiting instructions to the jury as to the purpose for which statements of third parties could properly be considered, we find no reversible error. Accordingly, we affirm the judgment.

I

THE FACTS

The procedural history of this case and the evidence presented at trial were discussed in considerable detail in the opinion of the panel majority, as well as in the Dissent. Melton I, supra, 565 A.2d at 635-41, 649-50. We refer the reader to those Discussions, and recite here only the facts which we view as most important for the resolution of the issues before us.

The only witnesses at the trial were two psychiatrists who were qualified as experts in their field and who testified for the District of Columbia. The first, Dr. James Byrd, was the administrator of the ward at which Melton was placed after he was involuntarily hospitalized in this case. The second, Dr. Antoine Cornet, was a staff psychiatrist at the hospital's Spring Road Mental Health Clinic. Both witnesses related some facts which were within their personal knowledge, but each also relied in substantial measure on what he had learned from others and from the records of Melton's prior hospitalizations.

Both Dr. Byrd and Dr. Cornet testified that Melton was suffering from schizophrenia. Dr. Byrd stated that this was true "without a doubt," that he was able to make the diagnosis on the basis of his personal observation, and that schizophrenia was the "remarkably consistent" diagnosis of all of the doctors who had treated Melton. He described schizophrenia as a "major psychiatric illness," which causes the patient to suffer from delusions and from a distortion of reality, and which renders him unable to recognize his own disease. Dr. Byrd added that Melton's schizophrenia was paranoid in character, and that Melton had "delusional" feelings that others were out to harm him.

The circumstances leading up to the hospitalization that precipitated the present case were also described by both of the doctors. Several months before his rehospitalization, Melton had left the hospital against medical advice and had gone to Florida. *fn2 When he returned in July 1985, and proceeded to his mother's house, the mother made a number of calls to the hospital reporting that he was behaving in a belligerent and disruptive manner, and she asked that something be done immediately. The mother reported, among other things, that Melton had punched her on the nose, and that she was afraid that he might harm her again.

Representatives of the hospital, including (eventually) Dr. Cornet, went to the mother's home and attempted to persuade Melton to come voluntarily to the hospital or to the clinic. Melton was belligerent and refused to come; his mother was visibly upset. The police were called, and an officer asked Melton to accompany him voluntarily. When Melton again refused to go, the officer brought him to the hospital in custody.

Melton's condition when he arrived at the hospital was not favorable. Dr. Byrd testified that Melton was "completely disheveled, extremely untidy, extremely dirty, having not bathed for weeks, urinating in his bedroom." Dr. Cornet testified that Melton "was filthy and in very poor condition" and that "his personal hygiene was terrible, so we took care of that."

Nor were Melton's problems confined to grooming deficiencies. A diabetic, he had "excoriations" (bruises) on his skin, a condition which made Dr. Cornet "really concerned." Dr. Cornet also discovered that Melton was suffering from glaucoma. Dr. Cornet testified that hospital staff members found a large bottle of pills at the home of Melton's mother. The bottle contained both Orinese, a diabetic medication, and Melleril, which had been prescribed for Melton's mental illness; "in other words, you had medication for mental condition plus medication for diabetes mixed together in one bottle." Melton also apparently drank alcohol to excess, and the doctors were concerned that he would do so while taking his medication and warned him against doing so.

Both Dr. Byrd and Dr. Cornet attributed Melton's threatening and assaultive behavior, as well as the poor condition in which he was found, to his failure to adhere to his treatment regimen. In particular, they alluded to his having missed injections of Prolixin, a medicine which had been prescribed for him and which had proved most beneficial. Dr. Byrd testified that "the reason was placed on Prolixin is that it's possible to get Prolixin in an injectable form which will last for two weeks." He explained that there had been a marked improvement in his patient while the latter was in the hospital, but

that [the improvement] was critically dependent upon Mr. Melton continuing to take his medication. And the changes that we see are changes which are quite helpful but they are in their own way fragile, in the sense that if he stops the medication he will rapidly decompensate . . . . *fn3 If he misses one or two injections, he will be right back to where he started from, which is psychotic and threatening and assaultive and very bizarre and delusional.

Dr. Cornet confirmed that if Melton did not continue to receive his medication, "he won't be able to comprehend what's going on with him and chances are he might get really sick again."

Dr. Byrd testified that the program of medication which the hospital had devised would provide Melton with

the best chance of complying with his treatment, which he had a long history of not doing. He hadn't been able to follow his treatment for the past ten fourteen years.

Dr. Cornet also expressed doubt that, without proper supervision, Melton would continue to report for medication on his own initiative, especially when he was drinking. He stated that "Melton is not composed enough to take proper care of himself and to look for medical care when there is a need for that."

Not all of the testimony was unfavorable to Melton's cause. Dr. Byrd acknowledged that Melton was sometimes able to comply with his regimen on his own, and came in to the clinic when he felt that his mother was being "crabby." Dr. Cornet stated that on the day that Melton allegedly punched his mother, a member of the hospital staff apparently found "nothing amiss." Dr. Cornet also acknowledged that when Melton received his medication, his insight into his illness was good, and he understood the need for treatment. Dr. Byrd agreed, but described Melton's ability to seek help as "superficial," because he had no "consistent" insight into his illness; the insight vanished when Melton was not receiving medication. In any event, in light of the importance to Melton's mental health of his taking medication regularly and his record of unreliability unless adequately supervised, both psychiatrists testified that, if released, he would be likely to injure himself *fn4 or others.

II

THE PSYCHIATRIC TESTIMONY AS TO DANGEROUSNESS

When the District proffered Dr. Byrd as all expert witness in the field of psychiatry, Melton's counsel objected on the grounds that the doctor's involvement in the case was "minimal" and that he had only "just finished" his training. The Judge overruled the objection and found Dr. Byrd to be qualified to testify as an expert. Counsel for Melton interposed no objection to Dr. Cornet's qualifications, and does not contend on appeal that the trial Judge abused his discretion (or, in Dr. Cornet's case, committed "plain error") in holding that each of the witnesses was properly qualified as an expert.

After testifying that Melton was mentally ill, however, Dr. Byrd was asked to state his opinion whether, in light of the mental illness, Melton would be likely to injure himself or others if he were not under the care of the hospital. Melton's counsel objected. Noting that "we've been through this before," the Judge overruled the objection, but allowed Melton's counsel to make a record at the bench. Going directly to the heart of the issue, the Judge asked whether counsel was maintaining that "the doctor who made the examination the records the staff cannot say that if he will be released today that he will not take his medication or, in his opinion . . . , would be likely to injure himself or others? Is that what you're saying?" Relying on a trial court opinion in another case, Melton's counsel responded that a physician had no "particular ability" to predict dangerousness. Insisting that "we have heard nothing about this doctor being able to predict the future," and that "predicting the future, I would submit, is a very difficult thing," counsel insisted that the government was obliged to qualify the witness further. The Judge adhered to his original ruling, held that no further qualification was required, and permitted Dr. Byrd to answer the question.

Although no comparable objection was made with respect to Dr. Cornet's testimony, *fn5 Melton argues on appeal that the trial Judge committed reversible error in permitting the two doctors to testify regarding Melton's alleged dangerousness to himself or others without a separate demonstration of their expertise on that subject. A majority of the panel which heard the original appeal upheld this contention. Melton I, supra, 565 A.2d at 647-49. Specifically, the panel was of the opinion that the trial Judge abused his discretion by "refusing to consider Melton's counsel's objection to the psychiatrists' qualifications to predict his clients' dangerousness." Id. at 648.

The criteria for admitting expert testimony in this jurisdiction are set forth in the three-part test in Dyas v. United States, 376 A.2d 827 (D.C. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), as follows:

(1) the subject matter 'must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average [lay person]'; (2) 'the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [or her] opinion or inference will probably aid the trier in his [or her] search for truth'; and (3) expert testimony is inadmissible if 'the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.'

376 A.2d at 832 (quoting EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 13, at 29-31 (2d ed. 1972)) (emphasis deleted). "The trial Judge has wide latitude in the admission or exclusion of expert testimony, and his *fn6 decision with respect thereto should be sustained unless it is manifestly erroneous." Coates v. United States, 558 A.2d 1148, 1152 (D.C. 1989). The question whether an expert has been sufficiently qualified is likewise "recognized as a matter for the trial Judge's discretion reviewable only for abuse. Reversals for abuse are rare." E. CLEARY, MCCORMICK ON EVIDENCE § 13, at 34 (3d ed. 1984) (emphasis added and footnote deleted).

As Judge (later Chief Justice) Burger wrote for the court in Baerman v. Reisinger, 124 U.S. App. D.C. 180, 181, 363 F.2d 309, 310 (1966),

it is settled law that physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks. The training and specialization of the witness goes to the weight rather than admissibility of the evidence, generally speaking.

(Citations and internal quotation marks deleted). Ordinarily, a specialist in a particular branch within a profession is not required. See MCCORMICK, (supra) , § 13, at 34 & n.11. Even an ordinary medical practitioner is, and should be, permitted to testify as to a patient's sanity. See 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 569, at 785-86 & n.2 (James H. Chadbourn rev. ed. 1979); see Jenkins v. United States, 113 U.S. App. D.C. 300, 306-07, 307 F.2d 637, 643-44 (1962) (en banc). *fn7

Both Dr. Byrd and Dr. Cornet are practicing psychiatrists. Each stated that he was eligible for board certification. Each had previously testified as an expert before the Mental Health Commission, and Dr. Byrd had done so in court as well. As we show below, the prediction of dangerousness is reasonably related to the practice of psychiatry. Both witnesses were obviously more qualified with respect to this subject than an ordinary physician, and neither expressed any reservation about his ability to form an opinion regarding the question whether Melton was likely to injure himself or others.

In the present case, as we have noted, Melton's dangerousness to himself and others was alleged to stem from his failure, when not under the hospital's supervision, to take psychotropic medicine with the requisite regularity. The consequences of such failure are, in our view, so " 'distinctively related [lay person] to some science . . . as to be beyond the ken of the average layman,'" Dyas, supra, 376 A.2d at 832 (citation and emphasis omitted). It defies common sense to suggest that a lay juror knows as much as a qualified psychiatrist does about what is likely to happen if a schizophrenic patient does not receive Prolixin shots. The doctors' testimony would therefore probably "assist the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID. 702. Accordingly, the psychiatric testimony in this case satisfied the first prong of Dyas.

The Judge could likewise reasonably conclude that Dr. Byrd and Dr. Cornet had sufficient knowledge of the characteristics of Prolixin and of the potential consequences of Melton's not taking it, as well as sufficient familiarity with other matters related to Melton's condition, that their testimony could " 'probably aid the [lay jurors] in search for truth,' " as required by the second prong of the Dyas test. 376 A.2d at 832 (emphasis and citation omitted). If the testimony of "the ordinary medical practitioner should be received on all matters as to which a regular medical training necessarily involves some general knowledge," 2 WIGMORE, (supra) , § 569, at 785, then a fortiori, the Judge did not abuse his discretion in permitting Dr. Byrd and Dr. Cornet to express expert opinions as to the probable consequences for Melton of not requiring him to report for medication. When an oncologist testifies that a malignancy, unless properly treated, is likely to metastasize and cause danger to the patient, he too is predicting the future. Nevertheless, such a cancer specialist need not demonstrate expertise with a crystal ball as well as in medicine in order to render his prognosis receivable in evidence. The same holds true for a psychiatrist.

In the final analysis, Melton's argument must therefore stand or fall on the notion that the present state of psychiatric knowledge does not permit the District's witnesses to express opinions on the question of Melton's dangerousness to himself or others, within the meaning of the third prong of Dyas, 376 A.2d at 832. We do not believe that this question can seriously be said to be in doubt. "'There is nothing inherently unattainable about a [lay judicial officer's] prediction of future criminal conduct'" for purposes of preventive detention. United States v. Salerno, 481 U.S. 739, 751, 107 S. Ct. 2095 , 95 L. Ed. 2d 697 (1987) (quoting Schall v. Martin, 467 U.S. 253, 278, 104 S. Ct. 2403 , 81 L. Ed. 2d 207 (1984)). A trained psychiatrist must surely be qualified, a fortiori, to assess Melton's dangerousness to himself or others, especially where, as here, that assessment is based on the patient's need for medication and his failure in the past to take it with the requisite regularity. As the Supreme Court stated in Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804 , 60 L. Ed. 2d 323 (1979),

there may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

(Epmhasis added to last nine words).

In Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383 , 77 L. Ed. 2d 1090 (1983), a capital sentencing case, the defendant argued, in conformity with the views of the American Psychiatric Association (APA), *fn8 that psychiatric testimony as to dangerousness is inherently unreliable and ought not to be admitted where a defendant's life is on the line. The issue was cast in constitutional terms, but the Supreme Court's response was sufficiently broad and emphatic to dispel any appreciable doubt as to how that Court would rule in this case:

The suggestion that no psychiatrist's testimony may be presented with respect to a defendant's future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases. . . .

In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric ...


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