### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

pril 11, 2001

STATE OF TENNESSEE v. JANICE FLOYD

Direct Appeal from the Circuit Court for Chester County No. 99-47 and 99-48 Donald H. Allen, Judge

No. W2000-02236-CCA-R3-CD - Filed July 20, 2001

The appellant was fo

und not guilty

by reason o

f in san ity o n two counts of second degree murder pursuant to Tennessee Code Annotated section 39- 13-2 10, and on one count of aggravated arson pursuant to Tennessee Code Annotated section 39-14-302. After the court found the appellant not guilty by reason o

f insanity, th

e appellant was c

omm itted to Wes tern Mental Health Institute for diagnosis and evaluation pursuant to Tennessee Cod e A nnotated section 33-7-303. At the conclusion of the app ell ant’s diagnosis and evaluation, the doctors conducting the evaluation determinedthat the appellant was not committable under the Tennessee Code Annotated and refused
to sign certificates of certification for the appellant to be involuntarily c ommitted. At the end of the initial sixty (60) day diagnosis and evaluation period, the doc tors at Western Mental Health Institu te sought to have the appellant released into a mandatory outpatient treatment program. A hearing

was conducted

after the ni nety (90) day mandatory release date, and the trial court ordered that the appellant be returned to Wes

tern Mental Heal

th Institute. Th

e appellant bro ught this appeal asserting that the trial court erred in ordering her continued detention a fter the expiration of the maximum ninety (90) day commitment period, and that such detention violates her rights. The state in its brief concedes error. After a thorough review of the issue p r esented in this case, we agree with the appellant and the state that the trial court erred. This case is remanded to the trial court for further action consistent with the instruction set forth herein.

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

Reversed and Remanded

J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and R OBERT W. W EDEMEYER , JJ., joined.

George Morton Googe, District Public Defender, and Vanessa D. King, Assistant Public Defender, for the appellant, Janice Floyd.-2-

Paul G. Summers, Attorne y General and Reporter; Pamela

A. Hayden-Wood, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun Alan B rown, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION

In November 1999, the appellant was indicted on two counts of second degree murder and

on one count of aggrav ated arson. On January 3, 2000, counsel for the appellant filed a motion seeking to have the appellant evaluated to determine her competency to stand trial and her mental condition at the time of the alleged offenses. On February 2, 2000, Pathways Mental Health Facility notified the trial court

that a determination could not be made on an outpatient basis and that a more extensive evaluation would have to be conducted. On February 15, 2000, the trial court ordered the appellant to undergo an in-house evaluation at Western Mental Health Institute. On March 24, 2000, the trial court was notified by Western Mental Health Institute that the appellant wa

s competent to stand trial and that the appe llant’s mental state at the time of the alleged offense supported an insanity defense.

On April 27, 2000, the trial court entered an order finding the appe

llant not guilty

by reason of insanity. The

appellant was co

mmitted to Western Me

ntal Health

Institute pursuant to Tennessee Code Annotated section 33-7-303(a). On June 19, 2000, Western Mental Health Institu

te notified the trial court that appellant did not meet the standards for commitment and recommended mandatory

outpatient treatm

e nt. On July 7, 2000, the District Attorney’s office filed a statement opposing the release of the appellant. On Augus t 17, 2000, a hearing was held and the trial court denied the appellant’s release.

Facts

T he appellant, Janice Floyd, age thirty (30), was indicted on two counts of second degree murder and on one count of aggravated arson in Chester County . On the evening of May 18, 1999,

a fire broke out at a home the appellant shared with her mother, father, and siblings. The appellant’s mother and brother failed to leave the house when they were warned of the fire and were killed.

In October

1999, the appellant confided in her sister that she was the one who started the fire. At the urging of her

sister, the appellant confessed the crimes to an investigator. The appellant was subsequently

arrested, indic

ted, and held in jai

l for trial. While the

appellant was in jail awaiting trial, arrangements were

made for her to g

o to Pathway M

ental Health

Facility to be evaluated on an outpatient basis to determine her competency to stand trial and her mental condition at the time of the alleged offenses. Pathways Mental Health Facility determined that it could not properly e

valuate her and recommended that she be committed to Western

Mental Health I

nstitute on an inpat

ient basis to have a proper evaluation conducted.

During the appellant’s mental evaluation, the appellant explaine d to staff members at Western Mental Health Institute that since the age of four (4) she had been sexually abused by her father and had been hospitalized in a mental health facility on seven (7) p rior occa sions. The-3-

appellant was diagnosed w

ith auditory

command hallucina

tions that commande

d her tokill herself. The appellant also stated that on the evening of the fire her father had sexually abuse d her, and after the incident she went outside into the carport where she saw some of her fa ther’s favorite clothes drying on a rack. The appellant stated that she was hearing voices that were telling her to burn the clothes. After setting the clothes on fire, the fire sprea d to the home and engulfed it, killing the appellant’s mother and brother.

On March 24, 2000, the trial court was notifie d by Western M

ental Health I

nstitute that the appellant was competent to stand trial. The trial court was also notified in thesame letter that the app ell ant ’s m ent al s tat e at the tim e of t he al lege d of fens es s upp ort ed an ins ani ty de fens e. Fi nal ly, the letter from Wester

n Mental Health I

nstitute indicate

d that t he defendant did not meet the standards for ju dicial c ommitment pursuant to Tennessee Code Annotated section§ 33-6-104 and 7-303.

On April 27, 2000, the matter came before the trial court. The State and the appellant stipulated that the appellan t “did kill Mary

Floyd and B illy Floy

d during the per

petrati on o f aggravated

arson.” It wa

s further stipulat

ed that the appell

ant “meets the cr

iteria for the ins

anity defense as provided in Tennessee Code Annotated § 39-11-501.” The State recommended that the appellant should be declared not guilty by reason of insanity. Based upon the report submitted by doctors at Western Mental Health Institute, the recommendation of the State, and the agreement of the appellant, the trial court accepted the recommendation of the State and found the appellant “not guilty by reason of insanity.” This triggered the appellant’s initial period of confinement at Western Mental Health Institute for the purpose of diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303.

On June 19, 2000, after

the completion of the diagnosis and evaluation, the trial court was notifi ed by We stern Mental Health Institute that the appellant did not meet the criteria set out by Tennessee Code Annotated se ction 33-6-104 fo

r involuntary

commit ment, and requested that the trial court order

mandatory outpatient treatment. A written, detailed Proposed Outpatient Treatment Plan was included. The District Attorney’s office did not file any pleadings until July 7, 2000, when it filed a statement in opposition to the appellant’s release. No certificates certify ing the n eed fo r commitment were filed. A hearing was scheduled for July 25, 2000; however, it was rescheduled for August 17, 2000.

On Jul y 2 5, 2000, the trial court was notified by Western Mental Health Institute that th e appellant would be discharged

on July 26, 2000,

the ninetieth day

of her commitment a

nd the date
set for mandatory

release by Tennessee Code Annotated section 33-7-303(a). The court entered an order the same day ordering that the appellant remain in the custody of Western Me ntal Health Institute until the rescheduled

hearing on August 17, 2000. The appellant remained in the custody of Western Mental Health Institute until the August 17, 2000, release hearing as order ed.

The appellant’s release hearing took place as re-scheduled on Aug ust 17, 2000. A treating psycholog

ist from Western Mental Health Institute testified that he did not

believe that the appellant-4-

posed any danger

to others, but that if the appellant failed to takeher medication sh e might become

a danger to hers

elf. A treating

psychia trist from Western Mental Health Institute also testified, stating that the appellant

was not committable. Th e psychiatr

ist testified that “

with [the appellant

’s]
current [clear] thinking, s

he could definite

ly follow [a ma

ndato ry outpatie

nt treatment plan].” At the conclusion of th

e hearing, the trial court denied the appellant’s release from Western Mental Health Institute. The trial court stated as its reason for denial of the appellant’s release that it was concerned: 1) that there wou l d not be adequate supervision over the appellant; 2) with how the appellant would get to and f

rom treatment app

ointments at the outp

atient program; 3) th

at the appellant would not take her medication as directed; and 4) that the appellant would

not be able to purchase her med ication. This appeal followed. The state now concedes that the statutory requirements for continued commitment were not met.

Analysis

The issue this court is c

alled upon to addr

ess in this appeal is

whether the tria

l court erred in ord ering the app ell ant ’s c ont inu ed d ete nti on a fte r th e ex pir ati on o f th e ma xim um n ine ty (90) da y commitmentper iod. Jurisdiction to hear the issues broug

ht by the app

ellant in the instan

t case is conferred upon this court by Tennessee Code Annotated section 33-7-303(d).Having jurisdiction to review the issue presented in this appeal and render a decision in the matter, we must conclude that the trial court’s continuing de tainment of t he appellant aft er the mandatory

release date is

in error and is a violation of the appellant’s rights.

A. Governing Law

We begin our analysis by examining Tennessee Code A nnotated section 33-7-303(a), which
states that when a person is charged with a criminal offense and subsequently “acquitted of the charge on a verdict of not guilty by rea son of insanity at

the time of the commission of the offense, the criminal court shall order the person detained for diagnosis and evaluation” in a hospital or
treatment center for a pe

riod of at le ast sixty (60) days, but not longer than nine

ty (90) day

s. Tennessee Code Annotatedsection 3 3-6-104(c) continues by stating that “no respondent may be judicially committed under this statute unless two (2) licensed physicians file i n the commit

ment pr oceedin g certificates of need for care and treatment certify ing that the respondent satisfies the requirements

of subdivisions 1-4 of

subsection (b).” Thus, as is plainly clear from both of the above statutes, the minimum period of time that a court may commit a person who has been acquitted of

a crime on grounds of insanity is sixty (60) day s, and the maximum period of time such person may be judicially committed is ninety (90) day s - absent procedural

certificationof the acquitted by two licensedphysicians w

ho have found that

the acquitted fa

lls within the parameters of

Tennessee Code Annotated section 33-6-104(b).

This court

has addressed th

e issues raised in

the instant case

in th e past . In Brown v. State C.C.A. No. 14, 1990 WL 40998 (Tenn. Crim. App., filed April 11, 1990, at Jackson), the appellant

was found not guilty by reason of insanity and was committed to a mental health institution for diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303(a). As with the-5-

instantcase, “the [institution] notified the trial court that the [appellant] did not meet the standards for invo luntary commitment and recommended mandatory outpatient treatment.” An ou tpatient pla n
was submitted to the trial court. The trial court, however, rejected the outpatient plan and ordered the appellant to

be returned to the institution until a plan could be formulated that met with the trial court’s approval. No certificates of commitment were filed by two licensed physicians as require d by statute. This cour

t ulti mately concluded that the detainment of Appellant Brown, when the “substa ntive prerequisites [of

the Tennessee Co

de Annotated] wer

e not met,” violate

d her rights under the Tennessee Code Annotated. Brown , 1990 WL 40998, at *4-5.

B. Case Analys

is

Turning to the facts in the instant case, testimony was given at the appellant’s release hearing by treating d octors th at the appellant did not meet the requirements under the Tennessee Code Annotated for involuntary commitment. Further, it is undisputed tha t the state

did not file

c ertific ates by two licen

sed physicia

ns for the involunta

ry commitmen

t of the appellant

. As in Brown
, it is apparent that the substantive prerequisites for involuntary commitment were not met in the instant case. The appellant’s statutory rights were violated, as is conc eded by the state.

The trial court

makes it manifestly clear that the reason for the continued commitment of the appellant is due to its concern for the safety of the public and the a ppellant. The trial court found such fear in the possibility that the appellant will fail to attend her outpatient treatment program and failto take her medication as directed, and thus, reasons that

she could become a threat to herself and society. Testimony, however, does not support this concern. In fact, the psychiatrist testify ing on behalf of the appellant

statedthat “with [the appe llant’s] current [c

lear] thinking, sh

e could definitel

y follow [a mandatory outpatient treatment plan].” This is clear evid ence that runs co

ntrary to the trial court’s concerns about the appellant not taking her medicine as required. W e note that the sta te offered no proof to rebut the expert medical testimony of the doctors working

withthe appellant at Western Mental Health Institute, nor did the state offer any proof to show that the appellant posed

a substantial risk of serious harm to herself o r others. In f

act, in the recor

d, the state admits

that it

was unable t o proffer any eviden ce to support its ar

gument agains

t the release of

the appellant. Indeed, the evidence set forth above, or the lack thereof, fails to support the trial court’s de nial of the appellant’s rele

ase into a court or

dered outpatient treatment p rogram. Upon this record the evidence preponderates against the trial court’s findings.

Prio r to concluding this case, we pause to commend the trial court for its concern for th e welfare of society and the appellant. Indeed, we believe that the trial court attempted to act in the best interest of all invo lved. However, concerns over the mere possibility of a brea kdown in the mandatory

outpatient treatm

e nt plan do not topple statutory requirements for involuntary commitment. Indeed, per sons such as the ca

se worker to be a

ssigned to the appellant, the staff at the appellant’s outpatient treatment program, and Mr. Manes s

- the indivi dual with whom social services made living arrangements for the appellant, al

l serve to ensure the appellant’s compliance with her outpatient treatment plan.-6-

With regards to the p

roposed livin

g arrangemen

ts of the appellant upon release, this court

sees no valid

reason to question the living arrangements of the appellant as made by the Department of Social Services. T

he only acc

redited testimony

that weighed ag

ainst th e proposed living arrangement

was testimony that

Mr. Maness was wo

rking out of town.

Mr. Maness, however, also testified that he planned to quit his out of town work after January 2001. With regards to the claims that there existed a hostile relationship between the appellant and Mr. Maness at one time, the trial
court obviously chose not to accred it such testimony, and this court sees no reason to disturb that decision.

CONCLUSION

We sympathize with the state’s and the trial court’s dilemma and concern over safety to the public. However, Tennessee Code Annotated section§ 33-7-303 and

6-103 expressly set forth the procedu res that must be followed. When properly followed, the proper balance is struck in a n attempt to protect the public, while at the same time protect the ward from unjustified detention.

Having concluded that the appellant’s statutory rights were violated, this court finds that

the trial court erred by ordering the continued detention of the a ppellant after

the maximum ninety (90) day period for diagnosis and evaluation. Thus, this matter is remanded to the trial court for an order of release of the appellant to the o utpatient treatme nt plan. If the

state believes the

appellant is committable

at some future time, it may file the appropriate documentation required by Tennessee Code Annotated section 33-6-103. See Brown , 1990 WL 40998, at *4-5 (two judges recommending any further proceedings must be pursuant to Tennessee Code Annotated section 33-6-103).

JOHN EVERETT WILLIAMS, JUDGE