State of Tennessee v. Kenneth Ryan Mallady

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 2, 2015, at Jackson

STATE OF TENNESSEE v. KENNETH RYAN MALLADY

Appeal from the Circuit Court for Hickman County

No. 04-5035C Timothy L. Easter and Robbie T. Beal, Judges

No. M2014-01664-CCA-R3-CD – Filed July 29, 2015

In this procedurally complex case, in 2006, a trial court found the Defendant, Kenneth

Ryan Mallady, not guilty by reason of insanity for the offenses of first degree

premeditated murder, attempted first degree premeditated murder, and aggravated assault.

The judge ordered that the Defendant be transported to Middle Tennessee Mental Health

Institute (“MTMHI”). The Defendant was subsequently discharged from MTMHI

with the requirement that he participate in mandatory outpatient treatment. In 2012, the

trial court found that the Defendant had not complied with his mandatory treatment plan,

appointed him counsel, and ordered him temporarily recommitted to MTMHI. In 2014,

the trial court held a hearing and ordered that he be permanently recommitted to MTMHI.

The Defendant appeals his permanent recommitment, contending that the trial court

applied the incorrect legal standard when making its findings. After a thorough review

of the record and relevant authorities, we conclude that the record supports the trial

court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLY

THOMAS, JR., J., joined. ROBERT L. HOLLOWAY, JR., J., not participating.

William G. Brown, Nashville, Tennessee, for the appellant, Kenneth Ryan Mallady.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel; Kim R. Helper, District Attorney General; and Michael J. Fahey, II, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant killing his mother and seriously injuring his

stepfather in September 2003. The judgments of conviction, entered November 30,

2006, show that after a bench trial the trial court found the Defendant not guilty by reason

of insanity of premeditated first degree murder, attempted premeditated murder, and

aggravated assault. The trial court ordered that he be transported to MTMHI for

involuntary commitment.

In April 2010, the chief executive officer at MTMHI notified the trial court of her

intent to furlough the Defendant and discharge him under a mandatory outpatient

treatment (“MOT”) program, pursuant to Tennessee Code Annotated section 33-6-708(1)

(2007). See State v. Kenneth Ryan Mallady, No. M2010-02142-CCA-R3-CD, 2012 WL

76901, at *1 (Tenn. Crim. App., at Nashville, Jan. 10, 2012), no Tenn. R. App. P. 11

application filed. The Defendant’s furlough and outpatient treatment began on April 29,

2010. Id. The State filed a motion requesting the trial court review the Defendant’s

release to outpatient treatment. Id. After a hearing on the motion, the trial court

reversed the decision to discharge the Defendant to MOT. Id. at *3. The trial court

found that, while the Defendant had progressed over his four years at MTMHI, he still

posed a “substantial likelihood of serious harm.” The trial court stated:

This was . . . an egregious act, and I think the Court would really be

shirking its responsibilities if I didn’t at least pay some heed . . . to why

we’re here to begin with . . . . I also think we have to pay some heed to

the fact that it ha[s]n’t even been four years . . . . [F]our years is not a

significant amount of time in which to recover from an illness that would

cause someone to act the way he did on an occasion . . . when he killed one

person and attempted to kill another.

Id. at *4. The trial court then expressed concern over potential problems with the

Defendant’s medication. Id. at *5. It acknowledged that the medication had worked

well for several years and that “there is structure [in the outpatient program] to make sure

he continues to take medication.” Id. The trial court, however, did not believe that the

medication had proven to be a long-term remedy for the Defendant’s mental health

problems and expressed concern over the administration of proper doses. Id. The trial

court also stated that “there’s nothing that would prohibit [the Defendant] at this point

from simply just becoming tired of the structure . . . [and] the rules” and leaving. Id.

The trial court concluded, “I am not able to say right now today based upon this very

limited period of time, this almost four years . . ., that I think the placement

recommended by your doctors are [sic] appropriate.” Id. The Defendant appealed the

trial court’s judgment to this Court.

On appeal, this Court reversed the trial court’s judgment and remanded the case

for entry of an order, pursuant to Tennessee Code Annotated section 33-6-708(c)(4),

discharging the Defendant from involuntary commitment under the terms of the MOT

program recommended by the MTMHI chief officer. Id. at *8. We recognized the

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trial court’s concern for public safety in its hesitation to discharge the Defendant to

outpatient treatment, but we held that the statutory scheme reflected the considered

judgment of the state legislature regarding the proper balance between the need to protect

the public from the person while at the same time protecting the person from unjustified

detention. Id. (citing State v. Janice Floyd, No. W2000-02236-CCA-R3-CD, 2001 WL

846046, at *5 (Tenn. Crim. App., at Jackson, July 20, 2001), no Tenn. R. App. P. 11

application filed.

On August 9, 2012, the State filed a petition for an emergency order directing the

Defendant’s temporary recommitment to MTMHI. The State alleged that the Defendant

was not in compliance with the terms and conditions of his MOT. It further stated that

the MTMHI forensic director had stated that the Defendant’s whereabouts were

unknown. The State said that it had information that proved that the Defendant had

been released from the Metropolitan Nashville jail on July 27, 2012, and that he did not

return to “Safe Entry, Ann’s Care Home,” where his treatment required that he reside, or

to MTMHI.

To its petition, the State attached the affidavit of Joyce N. Harris, who was the

Defendant’s treating mental health professional. She stated:

On 7/27/12 Mr. Kelvin Talley, group home supervisor, reported that

[the Defendant] left his group home on 7/26/2012 without permission.

Mr. Tally reported calling police to report [the Defendant] missing and he

was advised that [the Defendant] was in police custody for attempting to

shoplift beer at a convenience store and that he was currently in the hospital

due to injuries sustained in a struggle with the store clerk.

Also attached to the petition was Ms. Harris’s letter to the Assistant District

Attorney in charge of prosecuting this case. In it she explained:

I have enclosed an affidavit regarding [Mandatory Outpatient

Treatment (“MOT”)] noncompliance for [the Defendant]. As you know,

[the Defendant] was discharged from MTMHI on March 15, 2012 to Safe

Entry for MOT supervision. Prior to discharge, he participated in day

treatment at Safe Entry for two years and lived in the 24 hour supervised

group home of Mr. Kelvin Talley. Since his discharge date, [the

Defendant] has continued to live in the Talley home, participate in day

treatment and receive psychiatric services. He has been consistent,

compliant and stable until a very recent change as indicated by the report

that follows that was received from Mr. Kelvin Talley on this date.

I was contacted by Mr. Talley on this date and informed that on

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Thursday, July 26, 2012, he was notified by a group home supervisor that

after dinner at the group home, [the Defendant] was not in a designated

“smoke area” for all group home residents as appropriate. Mr. Talley

stated that, after searching the neighborhood, he contacted police on that

same day to report [the Defendant] missing. Mr. Talley reported being

told by the police that [the Defendant] was in the hospital and in police

custody after attempting to shoplift beer at a local convenience store.

Reportedly, the hospitalization was due to minor injuries [the Defendant]

sustained in an altercation with the convenience store clerk. As of this

date, reportedly, [the Defendant] is in the hospital but will be transferred to

jail upon release from the hospital due to warrants related to the July 26,

2012, reported incident.

On August 8, 2012, the trial court granted the State’s petition, and it ordered that

the Defendant be temporarily recommitted to MTMHI. It found:

This matter is based on the Petition of the State of Tennessee and the

attached affidavit of Joyce Harris of Safe Entry pursuant to Tenn. Code

Ann. Section 33-6-609. In that regard, the Court finds as follows:

[The Defendant] is required to participate in mandatory outpatient

treatment under Tenn. Code Ann. Section 33-6-602;

[The Defendant] is, without good cause, out of compliance with the

treatment plan;

Given that the present whereabouts of [the Defendant] is unknown,

the Court has reason to believe that the noncompliance is not likely to be

corrected voluntarily.

IT IS, THEREFORE, ORDERED that:

[The Defendant] shall immediately be arrested, and turned over to

the custody of the Sheriff of Hickman County, Tennessee;

The Sheriff shall immediately thereafter transport [the Defendant] to

MTMHI;

MTMHI shall temporarily admit [the Defendant] and give notice

under Tenn. Code Ann. Section 33-6-611(5) of the temporary

recommitment and that a hearing under Tenn. Code Ann. Section 33-6-610

will be held.

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On August 24, 2012, the State filed a petition for a hearing to determine the

Defendant’s compliance with the terms and conditions of MOT pursuant to Tennessee

Code Annotated section 33-6-610. On August 27, 2012, the trial court entered an order

in which he appointed the Defendant an attorney and ordered that a hearing date be set.

At the July 29, 2014 hearing, the following evidence was presented: Bill Regan, a

staff psychiatrist at MTMHI, testified as an expert in the field of forensic psychiatry.

He testified that he had reviewed the Defendant’s file, spoken with a number of his

previous psychiatrists, and evaluated him personally.

Dr. Regan testified that the Defendant’s file contained a treatment contract signed

by the Defendant for his MOT. The contract represented the treatment

recommendations that the treatment team had made with regard to the Defendant’s MOT,

and Dr. Regan testified that the Defendant had not complied with the contract. Dr.

Regan explained that for the fourteen to sixteen months before the Defendant’s release to

MOT, doctors allowed him to go to Ann’s Care Home, where he was eventually

discharged, for short periods of time. The Defendant would then return to MTMHI, be

assessed, and, after several successful outings, it was decided that he was ready to be

discharged. Dr. Regan said that, within four months of his discharge, the Defendant

began drinking alcohol, which violated the recommendations of his contract. The

Defendant also “walked off from the group home” and “did not follow through with his

medication and appointments.” The Defendant ultimately was arrested for attempted

robbery and theft. He was released from jail on bond and “disappeared” for eleven

days. Dr. Regan said that the Defendant informed him that he walked to Marshall

County on his own. He told the doctor that he would “bum food” and “bum money”

from “people.”

Dr. Regan testified that the Defendant was confronted by a park ranger at Henry

Horton State Park. It was alleged that the Defendant threatened to kill the park ranger.

Upon this basis, the trial court found that the Defendant was in violation of his MOT and

the Defendant was returned to the hospital.

Dr. Regan testified that, since being readmitted to the hospital in August 2012, the

Defendant had engaged in three separate incidents of violence. The doctor said that, in

September 2012, the Defendant had “an altercation in the group therapy room, where he

ultimately threw a chair at the group leader and later made threats to kill the group

leader.” The doctor said that, in January 2013, he had a “verbal altercation with another

patient and that again led to a physical attack.” Most recently, in December 2013, the

Defendant “had another altercation which again [the Defendant] started verbally

attacking [another person] and he wound up hitting the guy in the face . . . so hard he

broke . . . his hand.”

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Dr. Regan testified that the Defendant was “very intelligent,” “present[ed] himself

very well,” is a “participant in the work force,” and “enjoys art.” Dr. Regan said that

the problem with the Defendant was that, when the Defendant was granted “any sort of

latitude with any sort of freedom,” it led to his being “quick to . . . get angry” and to “act

out.” The doctor noted the Defendant’s failure on MOT and instigation of violent

incidents in the hospital.

Dr. Regan said that, based on his evaluation, he prepared for the Defendant a

“Certificate of Need.” He agreed that the Defendant currently had a mental health

illness or serious emotional disturbance and that he posed a substantial likelihood of

serious harm to himself or others because of this illness or disturbance. Dr. Regan

opined that MOT was not “suitable at this time” and that the Defendant needed

“continued inpatient treatment.” In support of this, Dr. Regan noted the Defendant’s

violent episodes, even while hospitalized. He noted that the Defendant “quickly

deteriorated” while discharged to the community. He cited that the Defendant began

using alcohol, stopped taking his medication, and committed criminal offenses. The

doctor opined that there were no less drastic alternatives than hospitalization for

treatment.

Dr. Regan identified a “Certificate of Commitment” that was created by Dr. M.S.

Jahan, who was the clinical director of MTMHI, on July 25, 2014. Dr. Regan said that

Dr. Jahan’s findings were substantially similar to the opinions that Dr. Regan had

expressed.

The State offered certified copies of convictions entered against the Defendant on

January 10, 2013, showing that he pleaded guilty to assault and theft of property valued

under $500.

During cross-examination, Dr. Regan testified that the Defendant’s mental illness

was “in partial remission.” The doctor noted that the Defendant was “monitored

carefully to make sure he t[ook] his medication” and was living in “a very structured

setting.” Dr. Regan said that the homes similar to the one that housed the Defendant did

not have the authority to force its residents to take their prescribed medication and that it

must be taken by the residents voluntarily. Dr. Regan testified that the Defendant had

been compliant in taking his medication for the last six months. Dr. Regan said that the

Defendant also participated in a hospital program where he had been given janitorial

duties and that he had “done well in that program.”

Dr. Regan said that the Defendant had not acted violently while conducting his

janitorial duties or while participating in art therapy. He said, however, that the

Defendant had acted violently during his group therapy.

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Dr. Regan acknowledged the Defendant’s allegation that his group home

supervisor had provided him with alcohol. He said, however, that the group home

supervisor denied this allegation. Dr. Regan agreed that the Defendant’s alcohol use

may have been a factor in his behavior while on MOT. Dr. Regan said that the

Defendant had expressed to him that he knew that he “blew” a big opportunity when he

failed to follow the provisions of MOT.

Randall Ward, the Sheriff of Hickman County, testified that the District

Attorney’s Office contacted him in August 2012 seeking his help to locate the Defendant.

The Sheriff testified that he was later notified by a park ranger in Marshall County that

they had detained the Defendant. Sheriff Ward sent deputies to retrieve the Defendant

and return him to Hickman County.

The Defendant testified that he understood the opportunity that he had missed by

using alcohol and violating his MOT. He said that he had been at MTMHI for two years

and had been utilizing the programs there in hopes of being discharged again under

MOT. He said that he was working with doctors to maybe incorporate “Antabuse,” a

drug designed to discourage alcohol consumption. He acknowledged that he was an

alcoholic in addition to his other mental health illnesses. He said that he no longer

needed the restrictive environment of the hospital because he did not have an acute

mental illness.

The Defendant said that he took multiple medicines, including an anti-psychotic,

an anti-depressant, a pain reliever, and a sleep aid, and that he could continue to take

those medications if released to MOT. The Defendant said that he never again wanted

to be psychotic, and he expressed an understanding that if he used alcohol his

medications would not be effective. The Defendant said that he would resist alcohol

and drugs if allowed to return to MOT. The Defendant said that the manager of the

group home had given him $20 and told him to go to the liquor store and purchase her

whiskey and himself a beer.

The Defendant explained the violent episodes while hospitalized, stating that the

hospital is a “very aggressive environment.” He said that the people housed there are

“severe[ly] mentally ill.” The Defendant said that in order to function in that

environment, he had to defend himself when the hospital technicians failed to protect

him. The Defendant said that he would like to move on with his life and have some

normalcy. He stated that he realized that sobriety was a part of that, as well as taking

his medications.

Ms. Lynn Butler testified by proffer that she was the art teacher at MTMHI and

that the Defendant was very involved in her art classes. She said that the Defendant was

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prompt and timely and took great pride in assisting with the art classes. She did not find

the Defendant to be aggressive or violent in her class.

Based upon this evidence, the trial court found:

[The Court] has had occasion to have a hearing with [the Defendant]. [The

Defendant] has always come across, at least in my Court, as being respectful

and courteous. I agree with Dr. Regan’s analysis. He’s well spoken and he

clearly communicates with the Court. He tells the Court and he has enough

judgment to be able to advise the Court of what the Court wants to hear.

That he’s . . . progressing in his treatment and that he intends to successfully

complete the treatment.

And again, that’s all good stuff and the Court appreciates that

testimony. When this originally came for his release to an outpatient

treatment program, I think ultimately the Court of Appeals . . . issued that he

should attend the outpatient treatment program, this Court may have had

some reservations just due to the nature of the offense that placed him in the

program.

I don’t believe that there is any dispute as to the fact that he was out of

compliance with outpatient treatment program. He clearly committed some

offenses, some criminal offenses, while on the program. And then for lack

of a better word absconded, so to speak. At that point, which of course was

a violation as well. Clearly he used alcohol which in and of itself is a

violation and became noncompliant with his medicine.

[The Defendant] states that all of this, that really the root cause of all

of this was his issue with alcohol and that in fact, a lot of this came down

because [the Defendant] was not able to attend his AA meetings as he had

been used to. Once again, the Court sympathizes with that position.

Certainly, [the Defendant] is not the only one that’s found himself in legal

problems because of his alcohol use. There’s twenty people in this

Courtroom today that could probably say the same thing.

But on the same token, the problem that [the Defendant] has is that he

is under such strict rules and the prior offense was so significant that any

violation he has doesn’t really warrant many more second chances. And

again, he’s acknowledged that.

The Court believes again, it is easy to state, and I think there’s even

agreement to it, he was out of compliance with outpatient treatment program.

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The Court accepts Dr. Regan’s testimony here today and the Certificate of

Need that was presented as an Exhibit that in fact they are wary that he would

not be able to put himself in compliance without the hospitalization that he’s

been participating in. The doctors have stated clearly and this certificate

may further, that they don’t believe that he is capable at this point, with all

due respect to [the Defendant], of voluntarily correcting his behavior to the

point of being able to adhere to the rules of the outpatient treatment program.

It is clear that [the Defendant] continues to suffer from his mental

illness, although the Court accepts his testimony as well [as] the doctor’s

testimony, but his testimony primarily, that he is conscious of his mental

illness; that he wants to correct it; and that he is taking steps to correct it.

The problem is though, is that the mental illness still appears to be substantial

enough that would -- that would cause him to pose a substantial risk of harm

to both himself and to others.

Based upon this, the Court believes that the Certificate of Need is

appropriate, that its recommendations that he continue in the care of MTMHI

is appropriate and obviously continue in the inpatient program involuntarily.

The Court does believe that there are no less restrictive alternatives

available. Quite frankly, that’s what the outpatient treatment program was

and that didn’t go well. So, there are no less restrictive alternatives

available. By this -- by this Order, by this recommitment, to MTMHI the

Court is not taking away, I don’t think I have the authority to take away the

doctor’s discretion, that if and when [the Defendant] is able to be trusted to

take his medicine, to avoid alcohol, to utilize his judgment in staying on top

of his own treatment, that he can reapply for an outpatient treatment

program.

Again, I don’t mean to make that a pie in the sky kind of goal, but as

long as -- as long as he continues to have the attitude he has displayed in this

Court then he would continue to at least have that option. But ultimately

today the Court believes that Dr. Regan’s recommendations are appropriate.

On July 29, 2014, the trial court entered a written order. In it, the trial court

noted that the State had asked it to find that the Defendant had violated the terms of his

MOT and to recommit the Defendant permanently to MTMHI. The trial court found:

On July 26, 2012, [the Defendant] violated the terms of his . . .

[MOT] by committing two crimes in Davidson County, Assault and Theft,

as shown by the certified copies of the judgments. [The Defendant] also

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violated the terms of his MOT by failing to return to the group home, and

remaining at large until his apprehension by law enforcement on August 9,

2012 in Marshall County, TN. As such, the Court reiterates its finding

entered August 8, 2012, that [the Defendant] has violated the terms of his

MOT, and shall be permanently recommitted to the secure facility at

MTMHI.

Further, based on the testimony of Dr. Bill Regan, and the

Certificate of Need of Dr. M.S. Jahan, the Court also finds as follows:

(a) [The Defendant] was out of compliance with the MOT without

good cause, cannot be immediately put in compliance with the

MOT, and cannot be expected to stay in compliance without

further hospitalization; and the medical professionals believe the

non-compliance is not likely to be corrected voluntarily;

(b) [The Defendant] suffers from a mental illness or serious

emotional disturbance, due to which he poses a substantial

likelihood of serious harm to himself and others, and there is a

likelihood harm will occur unless he remains under involuntary

inpatient psychiatric treatment;

(c) Due to [the Defendant’s] mental illness or serious emotional

disturbance, he needs the care, training, and treatment available

to an involuntary psychiatric inpatient in the custody of the

Tennessee Department of Mental Health at MTMHI; and

(d) There are no suitable less restrictive alternatives.

IT IS, THEREFORE, ORDERED that

(1) [The Defendant shall remain committed to the custody of the

Commissioner of the Department of Mental Health at MTMHI

for treatment.

(2) This Court shall retain jurisdiction over this case pursuant to

Tenn. Code Ann. Section 33-6-708.

(3) The costs of these proceedings and a reasonable attorney fee

shall be assessed to the State of Tennessee in accordance with

Tenn. Code Ann. Section 33-3-503.

(4) The Clerk shall provide a copy of this Order to the Chief

Executive Officer of MTMHI.

It is from this judgment that the Defendant now appeals.

II. Analysis

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On appeal, the Defendant contends that the trial court erred when it ordered

commitment at MTMHI instead of returning him to MOT. He states that the record

indicates that he could “be put immediately in compliance with the treatment plan and

could be expected to stay in compliance with the treatment plan without further

hospitalization,” citing Tennessee Code Annotated section 33-6-601(c). The Defendant

asserts that the record preponderates against the trial court’s decision to “permanently

recommit him to MTMHI.” The State counters that the trial court properly used the

correct legal standard when it determined that the Defendant should remain committed to

MTMHI and that the record does not preponderate against its ruling.

Preliminarily, we note that we must first determine whether this Court has

jurisdiction to hear this case, a threshold determination that we are obligated to make in

every case. See Tenn. Rule App. P. 13(b). A question exists about whether the trial

court’s ordering the Defendant to be recommitted permanently after failing MOT, as

mandated by Tennessee Code Annotated section 33-6-610, falls within our jurisdiction.

The order follows a finding of “not guilty” and is not a “final judgment” in a criminal

case. The order, however, necessarily occurs within a case or proceeding “instituted

with reference to or arising out of a criminal case” for which we are specifically invested

with review authority. T.C.A. § 16-5-108(a)(2) (2009).

Further supporting our right to review, we note that, after the statutory period of

evaluation, an insanity acquittee is entitled to a hearing in the original trial court to

determine if commitment or further treatment is warranted and that appellate review of

that determination is by our Court. See T.C.A. § 33-7-303(b)(1) and (d) (2007). This

Court has previously held that, given these aforementioned reasons, “it is only practical

to assume that we have jurisdiction, as well, to review the trial court’s initial

hospitalization order.” State v. Phillips, 968 S.W.2d 874, 877 (Tenn. Crim. App. 1996)

(stating that the case should have been appealed pursuant to Tennessee Rule of Appellate

Procedure 9 or 10 but suspending the appellate rules to hear the case on its merits).

Finally, when a defendant requests a hearing about his continued commitment pursuant to

Tennessee Code Annotated section 33-6-708, the trial court’s judgment is considered a

“final judgment” and appealable to this Court pursuant to section 33-6-708(c)(5). See

T.C.A. § 33-6-708 (c)(5) (stating “The district attorney general on behalf of the state or

the person may file a notice of appeal of a final adjudication under this section to the

court of criminal appeals.”). By way of extension, we conclude that we have

jurisdiction to review the trial court’s order of re-hospitalization after unsuccessful MOT

pursuant to Tennessee Code Annotated section 33-6-610. In any case, the State lodges

no objection to our jurisdiction in this case, and good cause exists for us to suspend the

appellate rules, if such would be required, in order that the case may be resolved upon its

merits. See Tenn. R. App. P. 2. Accordingly, we turn to address the Defendant’s issue

on appeal.

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The Defendant contends that the record indicates that he could “be put

immediately in compliance with the treatment plan and could be expected to stay in

compliance with the treatment plan without further hospitalization,” citing Tennessee

Code Annotated section 33-6-601(c). Preliminarily, we note that involuntary

commitment is civil in nature and thus, our standard of review is de novo upon the record

of the trial court with a presumption of the correctness of the finding, unless the

preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); see State v.

Groves, 745 S.W.2d 843, 844 (Tenn. Crim. App. 1987) (applying this standard to

involuntary commitment pursuant to Tennessee Code Annotated section 33-6-104).

This standard has been interpreted to mean that the appellate court will affirm the trial

court’s decision “unless an error of law affecting the result has been committed or unless

the evidence preponderates against the trial court’s findings of fact.” Id. (citing Roberts

v. Robertson County Board of Education, 692 S.W.2d 863, 865 (Tenn. Ct. App. 1985)).

The trial court’s resolution of disputed evidence and conflicts in testimony requiring a

determination of the credibility of witnesses is binding on this Court unless there is other

real evidence to the contrary. Id. (citing State ex rel. Balsinger v. Town of Madisonville,

222 Tenn. 272, 435 S.W.2d 803, 807 (1968) and Roberts, 692 S.W.2d at 865).

As background to address the case under submission, a person found not guilty by

reason of insanity and ordered to involuntary commitment may be eligible for discharge

to outpatient treatment. T.C.A. § 33-6-708(a). Outpatient treatment is available when

doctors determine that the patient’s mental illness is in remission but that continued

treatment is necessary. T.CA. § 33-6-602(1)(A), (B). Tennessee Code Annotated

section 33-6-601 governs the hearing and findings after a person’s failed discharge to

outpatient treatment. It states:

(a) If the person appears in person before the court, the court shall

hold a hearing to determine whether the person is required to be

participating in outpatient treatment and is, without good cause, not

complying with the treatment plan.

(b) The court shall release the person, if the court determines that:

(1) The person is complying with the treatment plan;

or

(2) The person is out of compliance for good cause and

will be restored to compliance without further action.

(c) If the court determines that the person is out of compliance with

the treatment plan without good cause and that the person can be put

immediately in compliance with the treatment plan and can be expected to

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stay in compliance without further hospitalization, the court shall make

written findings of fact and conclusions of law on the issues, order the

person to comply immediately with the treatment plan, and dismiss the

proceedings upon a showing that the person is in compliance.

(d)(1) The court shall make written findings of fact and conclusions

of law on the issues and order the person re-committed to the hospital from

which the person was released, if the court determines that the person is out

of compliance with the treatment plan without good cause and that:

(A) The person cannot be put in compliance with the

treatment plan immediately; or

(B) The person cannot be expected to stay in

compliance without further hospitalization.

(2) The sheriff shall immediately transport the person as

ordered, and the hospital shall admit the person and give

notice of the recommitment to the person’s attorney, legal

guardian, legal custodian, conservator, and spouse or nearest

adult relative, to the qualified mental health professional, to

the committing court, and, if the discharge was under §

33-6-708, to the district attorney general in the committing

jurisdiction.

T.C.A. § 33-6-601. In the case where the patient’s suitability for outpatient treatment is

based upon Tennessee Code Annotated section 33-6-708, the chief hospital officer’s

determination about the patient’s eligibility for release from commitment has a rebuttable

presumption of correctness. T.C.A. § 33-6-708(c)(1).

In this case, the trial court made the appropriate findings pursuant to this section

and concluded that the State had proven that the Defendant’s continued hospitalization

was warranted. The trial court based its findings in part upon the fact that, when the

Defendant was released to MOT, he began drinking and then committed an assault and

theft, crimes to which he pleaded guilty. Further, that he essentially “absconded” by not

reporting to his group home and leaving Hickman County. Dr. Regan testified that the

Defendant had shown improvement in some areas in the two years between his

re-hospitalization and the hearing, but Dr. Regan opined that the Defendant was not ready

to be returned to MOT and that there were no less restrictive alternatives to

hospitalization. He noted that the Defendant had been involved in violent episodes even

while hospitalized during those two years. A Certificate of Need from MTMHI’s

clinical director, Dr. Jahan, confirmed Dr. Regan’s opinion. The trial court followed the

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doctors’ recommendation.

We conclude that the State offered clear, unequivocal, and convincing evidence

that the Defendant’s continued hospitalization was necessary. The less restrictive

alternative is MOT, and the Defendant was not successful when placed on MOT. We

recognize the Defendant’s commitment to sobriety, which is in Dr. Regan’s opinion, a

key to his success, along with his commitment to taking his medication necessary to

avoid psychosis, but we also place great stock in the opinion of his treatment providers.

Those providers are of the opinion that the Defendant is not ready to be placed on MOT

at this time. We agree with the trial court that: (1) the Defendant was out of compliance

with his MOT and that his non-compliance is not likely to be corrected voluntarily; (2)

the Defendant suffers from a mental illness or serious emotional disturbance, he poses a

substantial likelihood of serious harm to himself and others, and there is a likelihood

harm will occur unless he remains under involuntary inpatient psychiatric treatment; (3)

due to the Defendant’s mental illness or serious emotional disturbance, he needs the care,

training, and treatment available to an involuntary psychiatric inpatient in the custody of

the Tennessee Department of Mental Health at MTMHI; and (4) there are no suitable less

restrictive alternatives. The Defendant is not entitled to relief.

We note that the Defendant can be determined eligible for discharge again

pursuant to Tennessee Code Annotated sections 33-6-602 and -617. He further

maintains his right to file a motion pursuant to Tennessee Code Annotated section

33-6-708 to ensure that his continued hospitalization is warranted

II. Conclusion

After a thorough review of the record and relevant authorities, we affirm the trial

court’s judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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