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09/04/92 HERBERT J. REESE v. UNITED STATES

September 4, 1992

HERBERT J. REESE, JR., APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Sullivan, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge:

This is an appeal from an order revoking appellant's conditional release from Saint Elizabeths Hospital, pursuant to D.C. Code § 24-301 (e) (1989 Repl.), where he has been confined upon being found not guilty by reason of insanity in 1975 of two counts of threats, two counts of Bail Reform Act violations, and one count of disorderly conduct. *fn1 Appellant contends, for the first time on appeal, that his due process and equal protection rights were violated because the trial Judge failed to (1) make an explicit finding on the least restrictive treatment alternative, and (2) provide appellant with the same procedural rights as a civil committee. Appellant also contends that the trial Judge erred in admitting into evidence letters that appellant had written to the Hospital staff, and that without the letters there was an insufficient basis to revoke his conditional release. We affirm.

I

Appellant, Herbert Reese, was committed to Saint Elizabeths Hospital on January 31, 1975, upon entering pleas of not guilty to threatening to "'blow out brains'" of Joyce Thomas, threats to Charles Dunn, disorderly conduct, and two counts of Bail Reform Act violations, and being found by the court to be not guilty by reason of insanity. *fn2 The orders of commitment directed that a hearing be held on March 18, 1975, to determine whether he was entitled to release.

After prior releases from and returns to the Hospital, the court, on August 31, 1988, ordered appellant to be placed on conditional release from the Hospital whereby he would be allowed to live at any address in the community deemed appropriate by the Hospital, and to return to the Hospital for weekly outpatient treatment, on the condition that he continue his medication and refrain from using illegal drugs or alcohol. *fn3 Two and one-half years later, on January 16, 1991, appellant was actually placed on convalescent leave, allowing him to live in the community on a full-time basis, returning to the Hospital only for regular appointments. A month later, on February 22, 1991, appellant was placed on unauthorized leave after he failed to keep his required outpatient appointments, and a bench warrant was issued for his arrest.

On February 25, 1991, appellant's counsel filed a motion for unconditional release from the Hospital pursuant to D.C. Code § 24-301 (k). *fn4 Shortly thereafter, on March 10, 1991, appellant's girlfriend, with whom he lived, called the police to report that appellant had broken the chain on her front door, and she asked that the police arrest appellant. Appellant was arrested and returned to the Hospital. On March 18, 1991, the Hospital requested that the court revoke appellant's conditional release due to his failure to cooperate with the outpatient department and his deteriorated mental status.

A hearing was held, beginning on April 2, 1991, pursuant to D.C. Code § 24-301 (e), on appellant's motion for unconditional release and the government's motion for revocation of appellant's conditional release. *fn5 The government presented the expert testimony of Dr. James Word, a clinical psychologist, and Dr. Catherine Liebhauser, a psychiatrist, both from the Hospital. The doctors agreed that appellant suffered from bipolar disorder, manic and paranoid personality disorder, and described appellant's condition on his return to the Hospital on March 12, 1991, as "very manic," "paranoid and dillusional ," and "extremely hostile," such that he was placed in isolation on March 12 and 16, 1991. Dr. Liebhauser, on whose ward appellant had been since March 12, 1991, described appellant's behavior in the two weeks before the court hearing as "provocative" and "abusive," and indicated that appellant was currently on two drugs that were necessary to treat his mania. Dr. Word also referred to appellant's false and grandiose beliefs about himself, and that the psychiatric notes, by Dr. Liebhauser, indicated appellant's lack of insight, poor judgment, poor impulse control and hostile, angry and abusive behavior. Dr. Word testified further that appellant's hospital records showed that appellant had not acknowledged that he has mental problems and has "fought medication tooth and nail for years." Both doctors believed that appellant should not be allowed outpatient privileges and that he would pose a danger to himself or others if he were released into the community.

Both doctors also described letters written by appellant to members of the Hospital staff, between January 16, 1991, and March 12, 1991, when he was returned to the Hospital. In the letters, appellant stated that he was not taking his prescribed medication and that he was using illegal drugs. Dr. Word testified that the letters contained numerous delusional and sexual statements regarding female members of the Hospital staff.

Appellant offered the expert testimony of Dr. Eugene Stammeyer, a clinical psychologist. Based on his examination of appellant and on an evaluation of appellant's clinical record, Dr. Stammeyer testified that in his opinion, appellant was suffering from paranoid personality disorder and should not have been allowed to live outside of the Hospital in January 1991. However, while appellant was not ready for unconditional release, Dr. Stammeyer opined that appellant should be allowed to visit the community in order to work each day, returning to the Hospital at night, and allowed a weekend day in the community with his girlfriend.

Appellant testified that he was a well-known entertainer, had attended the Grammy Awards on a chartered plane with a man named Jimmy McPhail, and had bought marijuana for a woman friend while in New York to attend the Grammy Awards. He admitted that he had written several letters to the Hospital staff containing sexually explicit language in order to irritate and upset the staff. He also admitted that he had threatened to hurt someone on March 16, 1991, after he was returned to the Hospital, if he were not released, but he explained that this threat was a "desperate act" of a man who wanted to be out of the Hospital, and that he had never intended to follow through on it. He further explained that he had broken the chain on his girlfriend's door because he thought that she had taken too long to answer the door, and because, at the time, he was under a lot of stress because he was away from the Hospital illegally. Appellant denied that he was suffering from any mental illness, and although he admitted that he would benefit from treatment, including medication, he also admitted that he had been taken off medication at his own request.

Jimmy McPhail, a nightclub owner, testified that he had not chartered a plane with appellant and he had not gone to New York with appellant to attend the Grammy Awards. *fn6 Patricia Sullivan, appellant's girlfriend, testified that she had called the police on March 10, 1991, because appellant was not acting like himself on that day, and had kicked in her door and broken the chain on the door ...


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