Appeal from the Superior Court of the District of Columbia (MHE 458-08) (Hon. Laura A. Cordero, Trial Judge)
The opinion of the court was delivered by: Kravitz, Associate Judge:
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia.
A judge of the Superior Court ordered appellant Maurice Amey‟s involuntary civil commitment for one year under the Ervin Act after a jury determined that appellant was mentally ill and, as a result, likely to injure himself or others if not committed. On appeal, appellant contends that the trial court erred by allowing a psychiatrist testifying as an expert witness for the government to refer to hospital records and other hearsay information in explaining the bases of his opinions relating to appellant‟s mental illness and dangerousness. In particular, appellant claims (1) that the trial court failed to make specific findings that the hearsay references were substantially more probative than prejudicial, as required by the 2000
Sitting by designation pursuant to D.C. Code § 11-707 (a) (2001).
Amendment to Rule 703 of the Federal Rules of Evidence; and (2) that the admission of the hearsay violated his Fifth and Sixth Amendment rights to confront the witnesses against him. We affirm the judgment of commitment.
Police in the District of Columbia arrested appellant on December 18, 2007, and again on January 6, 2008, following incidents in which appellant approached strangers on the street and punched them in the face. On each occasion, appellant explained to the police that he struck back in self-defense only after the person he hit used a stun gun or other electronic prod to attack his genitals. Police found no evidence of any such device at the scene of either assault.
The Office of the United States Attorney filed formal criminal charges against appellant in the Superior Court after each of the two incidents. On January 16, 2008, however, the judge presiding over the criminal cases found appellant incompetent to stand trial and ordered him detained at Saint Elizabeths Hospital for treatment and further evaluation. See D.C. Code § 24-531.04 (c)(3) (2008 Supp.). On April 25, 2008, the judge found that appellant was still incompetent and that he was unlikely to attain competency in the foreseeable future. The judge accordingly determined that the criminal prosecutions could not go forward. See Jackson v. Indiana, 406 U.S. 715, 733 (1972).
The matters were then referred to the District of Columbia Government for the possible initiation of civil commitment proceedings under the Hospitalization of the Mentally Ill Act ("Ervin Act"), D.C. Code §§ 21-501 to -592 (2008 Supp.). On May 5, 2008, the Office of the Attorney General filed a petition in the Superior Court on behalf of the Department of Mental Health, seeking appellant‟s involuntary civil commitment for a period of one year. The government alleged that appellant was mentally ill and, as a result, likely to injure himself or others if not committed for treatment.
Appellant remained detained at Saint Elizabeths Hospital throughout the pendency of the civil commitment action. See D.C. Code § 21-528 (2001). The case proceeded to trial on June 8, 2009 before a jury of twelve.
The government began its case-in-chief by presenting direct evidence of the two assaults appellant committed in the community. Jeffrey Anderson testified that he was on his way to meet some friends at approximately 9:15 p.m. on December 18, 2007 when appellant approached him on the sidewalk of Connecticut Avenue, N.W., a few blocks south of Dupont Circle. Appellant walked up to Mr. Anderson, yelled "you fucking faggot" at him, and punched him in the face before walking slowly away. Grace Chen testified that she was walking home from a neighborhood fitness center at approximately 8:00 p.m. on January 6, 2008 when appellant approached her on the sidewalk of Connecticut Avenue, N.W., a few blocks north of Dupont Circle. Appellant muttered several curse words in Ms. Chen‟s direction and then hit Ms. Chen on the side of her face when she made a move to cross the street to try to get away from him.
Both victims called 911, and the police promptly detained appellant after each assault. Sergeant Brett Parson was one of the officers who responded to Mr. Anderson‟s report on December 18, 2007. Sergeant Parson testified that he participated in the questioning of appellant and "heard [him] say that the reason why he attacked the person he attacked was because [the person] was a homosexual who had used an electronic prod on his testicles and that he was defending himself from that attack." Sergeant Parson testified further that he conducted a consent search of Mr. Anderson and determined that he "had nothing on him whatsoever resembling a stun gun, electronic prod or anything of the sort." Officer Ethel Taylor responded to Ms. Chen‟s report on January 6, 2008. Officer Taylor testified that she heard appellant say that a "man" attacked him and used a stun gun or taser "to touch his private area, his genitals." She testified further that Ms. Chen clearly appeared to be a woman and that neither Ms. Chen nor appellant had any object that "even remotely" looked like a taser.*fn1
The government then called Dr. Andrew Schwartz, a psychiatrist at Saint Elizabeths Hospital, as its final witness. Dr. Schwartz testified that he was appellant‟s attending psychiatrist at the hospital from January 2008 through January 2009 and that he had continued to monitor appellant‟s condition in the months leading up to the trial. Without objection from appellant, the trial court accepted Dr. Schwartz as an expert in the treatment and diagnosis of mental illness.
The government elicited significant details from Dr. Schwartz regarding the bases of his expert opinions. Dr. Schwartz explained to the jury that in the year-long period in which he served as appellant‟s attending psychiatrist, he reviewed records of appellant‟s past psychiatric hospitalizations and treatment, met with appellant approximately eighteen times, interviewed members of appellant‟s family, read the records of appellant‟s daily progress on the ward, and had frequent discussions about appellant‟s ongoing care and treatment with the other mental health professionals on appellant‟s treatment team. Dr. Schwartz explained further that in the four or five months since he stopped serving as appellant‟s attending psychiatrist, he kept abreast of appellant‟s condition through additional interviews with appellant, careful review of the daily progress reports in appellant‟s hospital chart, and numerous discussions with the psychiatrists, psychologists, social workers, nurses, and nursing assistants who monitored and cared for appellant every day. Finally, Dr. Schwartz stated that he had been present in the courtroom throughout the trial and that, in formulating his opinions, he had considered the testimony of Mr. Anderson, Ms. Chen, Sergeant Parson, and Officer Taylor, as well as written police reports relating to the incidents of December 18, 2007 and January 6, 2008.
Dr. Schwartz then told the jury that it was his opinion, to a reasonable degree of medical certainty, that appellant suffered from paranoid schizophrenia throughout his stay at Saint Elizabeths Hospital and continued to be affected by this serious psychiatric disorder at the time of trial. Dr. Schwartz explained that appellant‟s mental illness caused him to experience delusions, i.e. intensely held beliefs that are not corroborated by the observations of others or any known facts. Dr. Schwartz stated that appellant‟s paranoia was manifest in many of his delusions. Specifically, Dr. Schwartz described how appellant believes "that certain individuals in the community carry around with them various electronic devices, including tasers and lasers, which they un-provokingly use to stimulate his genitals," and how appellant "also believes that there are a significant number of people in the community who bear him ill will who are transgendered homosexual men." Dr. Schwartz described other delusions of appellant‟s as grandiose. For example, appellant repeatedly insisted that he was married to a glamorous television personality in Los Angeles and that he was a graduate of the University of California at Berkeley and the University of Southern California School of Law -- claims that had been refuted by appellant‟s parents, who told Dr. Schwartz that appellant was not married and had never completed high school.
Dr. Schwartz stated that, in his opinion, appellant‟s delusions of being the target of sexually aggressive acts by homosexual and transgendered men led appellant to assault Mr. Anderson and Ms. Chen (who appellant likely believed was a transgendered man) in the community. Those same delusions, Dr. Schwartz stated, caused appellant to continue to act in an assaultive manner toward other patients in the hospital. Dr. Schwartz explained that he reached these conclusions based in part on his own observations and in part on the reports and statements of other professionals responsible for appellant‟s care in the hospital. As one example of his partial reliance on hearsay information in formulating his opinions, Dr. Schwartz described appellant‟s generally hostile relationships with other male patients as follows:
In the course of [his] hospitalization, there have been incidents in which he has become involved in altercations . . . involving other patients. And one repeated theme in [his] behavior and presentation is a belief that other people are making homosexual advances to him. He, for example, has told staff members and me that he believes that other patients were making overtures to him trying to, and I quote him, trying to jerk me off, close quote. He has believed that [another patient‟s] normal arm swing [while walking] . . . represents the expression of a wish to perform masturbatory acts on him. He has also believed, apparently he has stated this to staff, that passing gas also can constitute a homosexual advance -- that it‟s an invitation . . . to homosexual intercourse. And on April 16, I believe it was of 2008, there was an incident in which he became very upset in one of the bedrooms on the ward because another patient passed gas and he believed that this was that kind of sexual invitation. [He] is very sensitive to these issues.
Similarly, Dr. Schwartz referred to notes in appellant‟s hospital records in telling the jury that appellant started a physical fight with a fellow patient appellant believed had blown him a kiss and that, on a different occasion, appellant bit another patient‟s finger because he thought the other patient was making a sexual overture to him in the bathroom.
Although he acknowledged that appellant had made some progress during his hospitalization, Dr. Schwartz concluded that appellant continued to have a tendency at the time of trial to become very angry and to initiate physical altercations with others as a result of his delusions. Noting that appellant did not accept his own diagnosis, Dr. Schwartz predicted that appellant would refuse to take medication outside of a structured hospital setting and would thus continue to present a risk of injury to himself or others if he was not required to receive ongoing psychiatric treatment on an inpatient basis.
Appellant testified as the first witness in his defense case. He denied that he was mentally ill and explained his participation in the incidents involving Mr. Anderson, Ms. Chen, and the other patients on the ward as efforts on his part to protect ...