1 Mr. Peavyho use committed suicide while incarc erated on these sentences. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE November 7,

2000 Session

BILLY HEMBREE, JR., ET AL 

### . v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. 201295

No. M2000-00767-COA-R3-CV - Filed May 30, 2001

Lester Peavyhouse, having been found not guilty by reason of insanity after a n April 1985 attac k upon his sister with a hatc het, was committed

by the Circu

it Court of Stewart C

ounty to the Middle Tennessee Menta

l Health Institute (“MTMHI”) in Nashville for involuntary careand treatment on March1, 1988. In January 1989, he w as transferred from MTMHI to Luton Community Mental Health Center subjec t to a mandatory outpatient thera

py plan. I

n July 1989, he w

as transferre

d to Vanderbilt

Mental Health C enter Ad ult Outpatient Serv ices section. Ulti

mately, Pea

vyhouse enrolledas a student at Aus tin Peay State

University w

ith out patient therapy through Harriet Cohn Center in Clarksville. On October 31, 1991, Peavyhouse entered a private residen

ce in Clarksville witha .410 gauge shotgun and

shot to death Misty Harding and Billy Hembr ee, seriously wounded David Ross and Robert Huff, and committed aggrav ated ass aults upon Charity Baggett, Deanna Shepherd, Walter Scott Palmer, and Jeffery Underwood. Peavyhouse was convicted on all charges and sentenced to

two consecutive l

ife terms in prison

plus fifty-s

ix years. 1 The estates of Harding andHembree, together with the other victims of the October 31, 1991 assaults, brought suit ag ainst the State of Tennessee before the Tennessee Cla

ims Commission charging MTMHI with negligence in the J anuary 23, 1989 release of Peavyhouse from a secure trea tment facility. The Tennessee Claims Commission rendered judgment in favor of the cla

imants and the State of Tennessee Appeals. We affirm the judgment of the Claims Commission.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims Commission Affirmed W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J.,M.S., and W ILLI AM C. K OCH , J R ., J., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor

General ; Michael

W. Catalano, Associate Solicito r General and D

avid T. Whitefield,

Senior Counsel,

Na shville, Tennessee, for the appellant, State of Tennessee.

William B. Raiford, III, Clarksda le, Mississippi, for the appellees, Billy D. Hembree, Sr., and Sharon Hembree, Wrongful Death Beneficiaries an d Natural Parents of Billy Hembree, Jr., Deceased; RichardHarding and Kathryn Harding, Wrongf ul Death Beneficiaries and Natural Parents of

Misty Harding, Deceased; Robert L. Huff, Jr., and David Ross.-2- OPINION

Much of the history of this case c an b e gleaned fro m the previous opini

on of this Court, reversing summary judg

ment for the State b

y the Claims Com

missio n and the opi nion of the Supreme Court of Tennessee, sustaining this Court as reported in Hembree v. State , 925 S.W.2d 513 (Tenn. 199 6). Furt her e nli ghte nme nt i s ev ide nced by State of Tennessee v. Peavyhouse, C.C.A. No. 01C01-9409-CC-00307, 1996 WL 129840 (Tenn. Crim. App. Mar. 22, 1996).

After the hatchet assa

ult upon his sister, Pe

avyhouse w

as commi tted to Middle Tennessee Mental Health Institute (“MTMHI”) by the Circuit Court of Stewart County under the provisions of TennesseeCode Annotated section 33-7-301(a) on September 26, 1985. His prior history is setforth in detail in

the interview findings and staff conference report from the Forensic Services Division (“FSD”) of MTMHI under date of October 18, 1985.

Lester Peavyhouse, a 33-year

-old divorced white male, was admitted to the Forensic Se rvices Divisi on of Middle Tennessee Mental Health Institute on September 6, 1985 from the Stewart County Circuit Court purs uant to th e provisions of T.C.A. 33-7- 301(a). This was his fourth admission to MTMHI

. He is charged

withAssault with Intent to Commit Murder. Fo llowing medical,

psycholog

ical, and psy

chiatric examinations he was staffed on October 4, 1985.

Mr. Peavyhouse

is alleged to have attacked his sister with a ha

tchet during a f

amily argument. Regarding the alleged incident , Mr. Peavyhouse related that he had recently returned from Duluth, Minnesota where he had been incarcerated for second degree assault. On the day of the alleged offense, Mr. Pea vyh ouse reportedly was telling his brotherand his brother’s girlfriend about having been threatened in the Duluth jail. According to Mr. Peavyhouse, his brother’s girlfriend

stated “you can’t fight the Maf

ia”. Reportedly Mr. Peavyhouse bec ame extremely angry ove r that statement, ordered

them to leave, and started smashing up the furniture with the hatchet. Mr. Peavyho

use stated that his s

ister got in his w

ay and he hit her in the head acci den tal ly.

According to information in th e social history, Mr. Peavyhouse first came to the attention of the court in August, 1 972, when he was c harged with

flag desecration. After four months of incarceration he was transferred to MTMHI wher e he remained from December 12, 1972 until May 24, 1973.

His discharge d

iagnoses were

Acute Schizophrenic

Reaction (in remission) and Drug Dependence, halluci nogens (in remission). He was arrested in November
, 1977 for assault w ith intent to commit murder. Mr. Peav

yhouse was e

valuated at FSD

in connection with

that charge and was found competent to stand trial, not judicially committable, with no support for

an insanity defense. He was diagnosed at that time as Paranoid Personality. He was returned to FSD for further evaluation because h is a ttorney felt that he was incompetent;however, the recommendations and di agnos es rem ained the sa me. In-3-

September, 1978, he pled guilty as part of a plea bargain a greement and was given time served plus three years probation. Since his last admission to MTMHI in 1978, Mr. Peavyhouse

has been seen at Harriet

Cohn and Plateau Me

ntal Health Cente

rs. His ar rest record since that time reflects numerous brief incarcerations for such offenses as assault, criminal trespassing, malicious mischief, disorde rly conduct, and violation of

probation. Most re

cently, he w

as charged wit

h second degre

e assault in Duluth, Minnesota, after he reportedly stabbed a man who refuse d him admission to

a shelter. While in jail, Mr. Peavyhouse reporte dly got into a fight with another inmate and received additionalcharges. Altho ugh an insanity

defense was supported in that case, Mr. Peavyhouse’s attorney r

eportedly a

dvised him to

plea bargain and he was placed

on probation for tw

o years. He

returned to Tenn

essee from Minne

sota in March, 1985.

During his current stay at FSD, Mr. Peavyhouse has bee n ve ry p aranoid and delusional. His delusional system is extensive and involves his brother, his defense
att orn ey, the sheriff and staff at the Stewart County Jail, and some staff members at FSD. His affect has bee

n labile and freq

uently inapp

ropriate to his

thought content. During interviews, he repeatedly stated that he heard people talking a

bout him in

the hall and that staff members and other patients were conspiring to have him killed. He asked on several occasions for permission to contact the TB Ibecause he overheard his female attorney being beaten and raped w hile he was in jail. He appeared to b e te rri fie d of ret urn ing t o th e ja il i n St ewar t Co unt y an d asked repeatedly

to be sent to another jail upon his release from FSD. He stated that while he was in jail he heard his brother

telling the sheriff to beat him up and reported that the sheriff thought he was Hitler and they (the sheriff’s department staff) were g oing
to hang him. Psychological testing indicated that Mr. Peavyhouse is functioning in the upper limi

ts of the average range of intellectual ability . The Bender protocol contraindicated

the presence of organicity or brain dam a ge. MMPI data were sug gestive of a suspicious, evasive, and defensive individual who presents such symptoms

as ideas of reference, delusions, emotional lab ility , and anxiety. The results of psychological testing, in conjunction with Lester’ s behavior on the ward and during interviews, are consistent with a diagnosis of paranoid schizophrenia.

It was determined that at thetime of the alleged offense, Mr. Peavyhouse was exhibiting Chronic Paranoid Sc hizophrenia, whic

h is a se vere m ental illness characterized

by delusions and hallucinations of a grandiose and persecutory nature. As a result of his severemental illness, Mr. Peavyhouse’s capacity to appr eciate the wrongfulness

of the alleged o

ffense was substantially impaired as was his capacity
to conform his conduct to the requirements of the law. Therefore, the for en sic findings can support a defense of insanity pursuant to Graham vs. State (1977).

It was also conclude

d that Mr. Peavy

house is not mentally

competent to stand trial
at this time. Although he has an adequate understanding of judicial procedu re , his-4-

extensive delusional system would prevent him from c

onsulting meaning

fully with his attorney or participating in his own defense. H e is in need o f chemotherapy to restore his mental competence.

Mr. Peavyhouse

meets the requirements for judicialcommitment pursuant to T.C.A. 33-7-301(b) and 33-6-104 in that he is not competent to stand trial and is suffering from a mental illness dir

ectly resulting in

his being harmfu

l to himself and to oth

ers. Since little improvementhas been noted dur ing his stay

at FSD, it is

recommended tha t tr eat men t be con tin ued in a secu re fa cil ity.

It is recommended that, due to the serious nature of his mental illness, Mr. Pe avyhouse

should remain hospi

talized at MTMHI

-FSD until his ju

dicia l commitmenthearing. His return to jail at this time is co ntraindica ted due to his psychiatric condition.

RECOMMENDATIONS :
1. Not mentally

competent to stand

trial; 2. C an s upp ort a def ens e of i nsa nit y.
Peavyhouse

was diagnosed on October 18, 1985 a s “Axis I: P aranoid Schizophr enia, Chronic 295.32.”

After treatment, MTMHI staff determined in June 1986 that Mr. Peavyhouse could be moved to the less secure civil side of the facility and he was transferred to the civil side on July 15, 1986. From this less secure facility, Peavyhouse twice “eloped” (escaped). Once again, the Circuit Court of Stewart County ordered him readmitted to secure facility on November 25, 1986. On February 17, 1987, the treatme

nt team decided Pe

avyhouse w

as competent to

stand trial. At the trial on March 25, 1987, the Stewart County Circuit Court found Peavyhouse not guilty of the assault upon his sister by reason of insanity at the time of the crime and the court returned him to the FSD of MTMHI for mandatory

diagnosis and evaluation pursuant to Ten n essee Code Annotated section 33-7-303(a). Following this diagnosis and evaluation, Peavyhouse was committed to the custody of MTMHI

for involuntary

treatment of

his mental illness. This was done on order of the Circuit Court of Stewart County on March 1, 1988 wh en , after a hearing, the court found “by cle ar, unequivocal and convincing evidence that the respondent is ment

ally ill and, because o

f this illness, poses a likelihood of serious harm, and

all available

less drast

ic alternatives to commitment to a mental hospital or treatment resource are unsuitable.”

At that time, Peavy

house was diagn

osed as sufferin

g from two condit

ions: (1) Axis I Paranoid Schizophrenia and (2) Axis II Schizoid Personality Disorder.

At the time of his Janua ry 23, 1989 dis charge by MTMHI , it is the insistence of the State that his Axis I Paranoid Sc

hizophrenia was in

remission, his Axis I

I Schizoid

Personality Disorder was-5-

nota “mental illness” within the meaning of Tennessee Code Annotated section 33-6-109(b), and that his discharge from involuntary secure confinement was ma ndated by due pr

oces s of law considerations.

This decision of Januar y 29, 1989 and the “outpa tient only” tr

eatment of Peavy

house thereafter presents the decisive issue in this case.

Fol lowing the events of October 31, 1991, the Claims Commission dismissed the ca se o n motion of the State

finding that it lacked subject matter jurisdiction of a case involving a “former” mental patient at a state fa cility because such persons are not “persons in the care, custody and control”of the state as the statute requires. O n appeal, thi s Court reversed the Commissioner’s judgment holding that he construed the jurisdictional statute (T.C.A. § 9-8-307(a )(1 )(E)) too

narr owl y. The Supreme Court then granted the appeal of the State but

affirmed the de

cision of this Courtholding “[h]owever, as did the Court of Appeals

in its well-reasoned opinion, we conclude that confin ementin th e literal sense is not necessarily

a prerequisite to

the invocation of t

he Claims Commission’s jurisdiction under Tenn. Code Ann. § 9-8-307(a)( 1)(E).” Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).

In holding that

the Claims Commission had erred in granting summary judgment to the State, the Supreme Court held:

The state is responsible for the proper care and control of patients within it

s mental health facilities. See T enn.Cod e Ann. § 33-6-109(b), (c) (Supp. 1995) (discharge criteria). This responsibility extends to the “release” decision;that is, the decision to release a patient into thecommunity. This decision, if negligently made,

m ayexpose t he State to liability. Such a construction is consonant with the legislature’s expressed intent that such d e cision be made carefully and cautiously

.

. . . . In the case before

us, the claimants c

harge that the s

tate was neglig

ent in its decision to release

Peavyhouse . At the time he was released, Peav

yhouse was clearly within the “care, cus

tody and con

trol” of the state

because, as the

intermediate

court correctly noted, “[r]elease decisions can only involve persons who are in the State’s care, custody and control.” 1995 WL 50066, slip op. at 8. Moreover,

[e]xcept for severalcircumstances not applicable here, state officials have authority over the

confinement

of these individua

ls and exercise their professional jud gment concerning the conditions of confinement andrelease from

custody. Decisions to release or to relax or extend the conditions of confinement relate directly to the care, cus tod y, and

c ontrol of these inmates or patients. If made negligently , t hes e decisions could re sult in injury or harm not [only] to the inmate or patient but also to [others]. Id.-6- Because the alleged negligence arises outof acts or omissions which

were alleged to have

occurred at a ti

me when Peavy

house was clearly within the “care, custody and control” of the state, the claimants have stated a cause o f action upon which relief can be granted; the Commission clearly

has jurisdiction ov

er this claim.

Id. at 517-18 (footnote ommitted).

The case was remanded for trial to the Tennessee Claims Commission and on February 29, 2000, CommissionerW. R. Baker issued a thirty-eight page memora ndum finding the state negligent in the release of Lester Peavyhouse

.
The Commission summarized:

1. MTMHI

negligently overlooked T.C.A. § 36-6-202 ( d)(4) about giving not ice of the Mandatory Outpatient Treatment plan to the committing Court, and disregarded the Mental Health and Mental Reta rdation Department’s “C ommunity Menta

l Health Standard

s” about tracking

and monitoring MO

T plans. 2. MTMHInegligently gave no consideration whate ver to balanci n g patients’ interest in deinstitutionalization against the public’s interest in keeping dangerous people confined. 3. MTMHI

knew tha t Peav eyhouse wa s dangerous and

negligently released him anyho w. MTMHI negli gently disrega rded Peaveyhouse’s

(“Axis II”) personality di sord er, a certified mental illness, both in its treating him and in its release decisions. MTMHI knew Peaveyhous

e was a bri ght and manipula

tive liar, and it stil

l negligently

based some of its c

rucial decisions

about hi s treatment andrelease on his own statement s . MTMHI negl igently se nt only five pages of Peaveyhouse’s records to his “afte rca re pro viders”; MTMHI negligently

told Luton Center a

nd Vanderbilt

nothing about Peaveyhouse’s

history of violence or his history of avoiding his medicati on, so that they were left to guess at what they needed information about

and left to scratc

h to get it. 4. Worst

of all, MTMHI’s whole philos ophy about Peaveyhouse’s treatment was ne

gligent, mainly

because of its min

dless devotion to deinstitutionalization

. Dr . Bernet said, “ Our society

has pushed to has ( sic ) patients like this l iving in the community... Unfortunatel y sometimes these

patients... do things that are dangerous or violent; I think we can live with that...” But this statement is not true: our society h as not pushed to hav e patients like this

living in th

e
com mun ity, a nd the law (as shown in §§315 and 319 of the Restatement

2nd of Torts

, cited in Judge Koch’ s opi nion in this-7- claim) says otherwise. Nobody wan t s people like Peav

eyhouse “living in the community” ex cept an elite who are pa rticularly concerned

with men tal illness like Dr. Okpaku and Dr. White. As Judge Koch said, returning admittedly dangerous people to the community is inconsistent with public policy and good sense.

The Commission finds that the decisions to release Peaveyhouse were made negligently

and did result in ser i ous injury and harm to the public (and that Peaveyhous

e himself was ill-se

rved by wrongful deinstitutionalization). The Commission finds that in this cla im t he S tat e is guil ty of “Neg lig ent care , cu sto dy, and control of persons,” namely, Lester Pea veyhouse.

Our standard of review of the findings of fact by the Commissioner is esta blished by Rul

e 13(d) of the Tennessee

Rules of Appellate

Procedure provi

ding: “Unle ss o therwise required by statute, review o f the findings of fact of the trial court in civil actions shall be de novo upon the record of the trial court

, accompanied by a presumption of the correctness of the finding, unless the preponderance

of the evidence is otherwise.” No presumption of correctness at tach es to the trial court’s conclusions of

law. Tennessee Farme

rs Mutual Ins. Co. v. Moore , 958 S.W.2d 759 (Tenn. Ct. App. 1997).

Also, “[i]t is wel l settled that ‘the weight, faith a

nd credit to be g

iven any wit

nesses’ testimonylies in the first inst ance with the tr

ier of fact who has the opportunity to observe the

manner and demeanor of the witnesses as they testify ’ ” and the credibility of witnesses accorded by the trial judge is given great weight on appeal. Doe A. v. Coffee County Bd. of Educ. , 925 S.W.2d 534, 537 (Tenn. C t. App. 199 6) (citing Koch v. Koch , 874 S.W.2d 571, 577 (Tenn. Ct. App. 1993)).

After Peavyhouse assaulted his sister with a hat chet, he wa s examined by physicians at MTMHI and the Circuit Cour

t of Stewart County

was informed that an insanity defense could be supported. After trial,

in which physicians from MTMHI testified in support of the insanity defense, Peavyhouse

was found not gui

lty by reason of insanity. After this finding, Peavyhouse wa s subjected
to an involuntary commitment proceeding in which MTMHI phy sicians testified that

he was subject
to involuntary commitment in accordance with Tennessee Code Annotated section 33 -6-104

. Following this hearing, theCircuit Court for Stewart County, Tennessee found by c lear, unequivocal andconvincing evidence that Peavyhouse was mentally ill and because of such mental illness, posed

a likelihood of serio

us harm and all les s drastic alterna tives to commitmentto a mental hospital were unsuitable. In diagnosis at MTMHI he was found to suffer from (1) Axis I Pa

ranoid Schizophre

nia and (2) Axis II Schizoid Personality Disorder.

Commitment having been ord ered on these fin

dings by the

tr ial judge, future discharge of Mr. Peavyhouse was

subject to the provisions of Tennessee Code A

nnotated section 3 3-6-109. This
statute provides that the p

atient is entitled to

be discharged

if (1) he is no longer mentally ill or (2) his mental illness is i

n remission and he d

oes not pose a likel

ihood of serious ha

rm.-8-

In support of Peavyhouse’s discharge pursuant to Tennessee Code Annotated section 33-6- 109, on January 23, 1989, the State asserts first that his Axis I Paranoid Schizop hrenia was in remission and secon d, that his Axis II Schizoid Personality Disorder did not constitute “mental illness” and under such conditions, failure to discharge Peavyhouse would be in violation of the due process clause of the Fourte enth Amendment to th

e Constitution of the

United States unde

r th e holding of the United States Supreme Court in Foucha v. Louisiana , 504 U.S. 71 (1991). Reliance

on Foucha is misplaced if the Axis I Paran

oid Schizophrenia w

as not in remis sion o r if th e Axi s II Schizoid Personality

Disorder is a “me

ntal illness”

within the meaning of the discharge criteria for persons who are “mentally ill” as provided by Tennessee Code Annotated section 33-6-109.

In the Foucha case, the state was attempting an involuntary civil commitment because the defendant was potentially dangerous while admitting that he was not mentally ill. In the case at bar, Plaintiffs have alleged and the Claims Commission has held that Peavyhouse was not in remission of his Axis I Parano

id Schizophrenia an

d that his admittedly

continuing Axis I

I Schizoid Personality Disorder was a mental illness within the meaning of the involun tar y c ommitment statutes. The decisive question is whether or not the evidence preponde ra tes against the f

indings of the Cla

ims Commission on both of th ese findings. We h

old that it does not.

According to the Diagnostic and Statistical Man

ual of Mental Dis

o rders, Fourth Edition (1995): “A personality disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of an individual’s culture, is pervasive and i nflexible, has onse

t in adolescence or early childhood, is stable over time, and leads to distress or impairment.”

Thus is defined the Axis I I Schizoid Perso

nality Di sorder that aff

licted Peavy

house. This condition, which was supported by all of the medical testimony, continued to e xist until the day he died.

That

same authority

defines his Axis I

condition: “Schizoph

renia is a disturbance t

hat lasts for at least six months and

includes at least

one month of active-phase symptoms (i.e. two or more of the following: delusions, hallucinations, disorganized speech, grossly dis organized or ca

tatonic behavior, negative symptoms).”

No wh ere in the Tennessee statutes dealing with involuntary commitment or release fro m involuntary

commitmentis the term “menta l illness” defined

. In seeking

to distinguish Axis

I and Axis II, the st

ate’s expert, Dr.

Kwentus, agreed with the Claims Commissioner’s assertion that the difference

between an Axis I type

of clinical disorder and an Axis II ty pe personality disorder was that in Axis I, the subject was “crazy” and in Axis II , the subject was “damn mean.”

The position of

the state that the A

xis II condi

tion is “untreatab

le” is meaningless in both a constitutional and

statutory c

ontext.
The United States Supreme Court has held:-9-

While we have upheld state civil commitment statutes that aim bo

th to incapacitate andto treat, see Allen, supra , we have never held t hat the Constitution preven ts a Statefrom civilly detaining those f or whom no treatment is available, but who nevertheless

pose a danger to others. A State coul d hardly be seen as furtheri ng a “punitive” purpose by involuntarily confining persons a fflicted with an untreatable, highly contagious disease. Accord, Compagnie Francaise de Navigation a Vapeur

v. Louisiana Bd. of He alth , 18 6 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (1902) (permitting i nvoluntary q uarantine of per

sons suffering f

rom communicable diseases). Sim ila rly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acce ptable treatment existed. To conclude otherwise would obligate a State to release ce rtain c onfined individuals

who were both men

tally ill and dangerous simply because they could not be successfully

treated for the

ir afflictions.

Cf. Greenwood v. United States , 350 U.S. 366, 375, 76 S. Ct. 410, 415, 100 L.Ed. 412 (1956) (“The fact that at present there may be little likelihood

of recovery

does not defeat f

ederal power to

make this initial commitmentof the petitioner” ); O’Connor

v. Donaldson , 422 U.S. 563, 584 95 S .Ct. 2486, 2498, 45 L.Ed.2d 396 (1975) (Burger, C.J., con curring) (“[I ]t remains a stubborn fact that there are many forms of mental illness which are not understood,

somewhich are untreatable in the sense that no effe ctive th erapy has het been discovered for them, and that rates of ‘cure’ are genera lly low”).

Kansas v. Hendrix

, 521 U.S. 346, 366 (1997).

The controlling ques

tion is whether or n

ot the Axis IIcondition is a “men tal illness” (treatable or untreatable - - curable or incurable) within the meaning of the Tennessee Involuntary Civil Commitment Statute s.

Not only does the

expert proof offe

red by the c

laimants establish

a sound foundation for

the Claims Commission holding that an Axis II condition is a “mental illness,” but such find ing is clearly supported by the testimony on cross-examination of the State’s own expert, Dr. Bur nett. He testified:

Q. [ByMr. Raiford] All rig ht, well, let’ s move forward then, Doctor. Do you agree with Dr. Okpaku’s Axis 2 diagnosis with respect to Lester Peavyhouse? A. Well, I’d have

to look and see wha

t it is. Q. Well, you tes tifie d abou t it ea rlier . You r eferre d to i t in you r note book. It is the schizoid personality disorder? A. Right. That’s what he sa id on his discharge summary. Well, I agree that Mr. Peavyhouse

had some kind of pe

rsonality dis

order. And diffe

rent record s talk about his being pa

ranoid, schizoid or

perhaps anti-soc

ial. I’m not - - probably

the best label is wh

at’s just call ed the mixed personality diso rder with differ ent features. I

n other words, I

guess
on the information that I have I would say he definitely had a-10- pers onali ty

disorder, and that I would probably call it a mixed personality disorder with paranoid, antisocial and sc hizoid features. Q. Do you agr

ee that a schizoid p

ersonality disorder is a menta

l illness? A. Well, not - - it depends on how you use

the term. It is

a mental illness in the

sense that it’s in the list of

diagnosisthat are used in psychiatry, the diagnostic

and statistical manual. Howeve r, it is not a mental illne ss in certain legal settings. . . .

. . . . Q. Well, we’d have

to look at t

he specif ic law to k

now the co

ntext in which it is used. But schizoid personal ity disorder is a rec ognized mental illn

ess, recognized by

psychiatry

as a mental illness , is it not? A. It is a psychiatric term that

identifies a mental illness in a psychiatri

c context. Q. And you use the term t he diagnostic manual. What’s the proper word for that? A. The full name is the Diagnostic And Statistical Manual, and it ’s currently called the fourth Edition. Q. And who compiles tha t? A. It’s put out by the American Psy chiatric Association. Q. Is that a natio

nal association or

organization of p

sychiatrist

s? A. Yes, it is. Q. Is that the for

emost organizatio

n of psychia

trists in the United St

ates? A. Yes, it is. Q. Are you a member of that organization? A. Yes. Q. And if we wanted to go and find schizoid personality disorder, we could find that illness in that ma

nual? A. Yes. Q. Could we find para noid personality

disorder in that ma

nual? A. Yes.

. . . . Q. Could we find mixed pe rsonality dis

orders in that man

ual? A. Yes. Q. Are you o f th e op ini on t hat Mr. Pea vyh ouse was cured of his schizo id personality disorder at the time of his discharge in January of 1989? A. No, I don’t thin

k he was. Q. That was still pres ent, was it not? A. Well, some form of pe rsonality dis

order was still pr

esent. Q. And not all personality disorders are the same, but in Mr. Peavyhouse’scase, his persona lity disorder

made him potentiall

y violent and

dangerous, did i

t not? A. Yes.

. . .-11-

Q. Well, particularly in his case where

we have numerou

s, repeated, vio

le n t assaults, yo

u would say that he

is a substantial risk if he is released into the community

of doing furthe

r violence at some

pointin time, would y

ou not? A. Yes, I thi nk that he had a number of ill egal acts, eve

n in jail several ti

mes. And mental patients who have been antisocial and have been in jail a number of times are likely to end up in jail again. Q. You would agree tha t at the time Mr. Pea

vyhouse wa

s discharged in

1989 it would have been reas

onable to say that there was a likelihood that he would commit further violence in the future? A. Well, I’ve already said that, that there was some likelihood. . . .

The finding of

the Claims Commission that the Axis II condition suffered by Pea vyhouse at the time of his rele

ase on January

29, 1989 was a

“mental illness” is fully supported by the record in this case and certainly the evidence does not prep onderate aga

inst the findings o

f the Claims Commission in this resp

ect.

The record, and

particularly the expert testimony offered in the c ase, supports t he findings of the Claims Commission that the Axis I condition, Paranoid Schizophr

enia, which the Sta

te concedes is a mental il

lness, was not in remission at the time of the January 29, 1989 release of Peavyhouse. In this respect, Plaintiff’s expert, Dr. Reisman, testified:

Q. [ByMr. Raiford] Doctor, you have heard Mr. Whitefield’s ope n ing

s tate ments that Mr. Peavy house made a sy

stematic improvem

ent in his condition during the time he was admitted to MTMHI and was an appro

priate candidate for release at the time he was released in January 198 9. Do you agre e with those asse rtion s? A. No, I don’t.

. . . . Q. Doctor, in your opinio n, was Mr. Peavy

house still mentally

ill at the time he was discharged from MTMHI in January of 1989? A. Yes, he was. Q. And in what respe ct? A. Well, he continued to be a paranoid schizophrenic. He remained delusional

. . . . Q. Doctor, in your opinion in January of 1989 when Mr. Peavy house was released, did he pose a substantial likelihood of serio

us harm to either h

imself

or o the rs i n th e com mun ity? A. Yes, he did.

. . . . Q. In your opinion

, Doctor, was volu

ntary outpa

tient thera py a suitable

, less drastic alternative for thetreatment of Lester Peavyhouse in January of 1989? A. Not for Lester Peavyhouse. Q. Why not?-12-

A. Well, as I say

, he still was not in r

emission from his illn

ess. And the man’s behavior still indicated a high threat of dangerous behavior.

On cross-examination, the State’s expert witness, Dr. Kwentus, testified:

Q. [ByMr. Raiford] Were you aware from the records that Mr. Peavyhouse was delusional within a few weeks of the time he was discharged? A. Yes. Q. Were you aware that after he wa s discharged he was regarded as one of Luton’s most dif

ficult aggre

ssive patients? A. Yes, I was. Q. In your opin

ion does that indica

te a patient who do

es not have a - - w

ell, whose mental illness is in r

emission and who ha

s been adequate

ly treated at the time of discharge? A. His mental illness was i n remission in

the sense that if you compared how he

was at the time of

discharge and how he waswhen he was admitted, he was substantially

improved. He obviously needed ongoing treatment and would needongoing treatment for the rest of his life. There is no way that he would be discharged without needing ongoing treatment. . . .

. . . . Q. You are aware from the review of the records that even up to the time of discharge, Mr. Peavyhouse was paranoid,delusional, assaultive, aggressive, unwilling to cooperate with the staff, and some evidenc e that he was not a

ble
to unders tand his mental illness, he had poor insight, poor judgment, and refused to c ooperate wi th his dis charge planni ng? A. Some of t he thing s I would agree with. It was quite a long list. So I don’t know I wou ld agree with e very state ment you made

, but a lot of the thin

g s that you said I would agree with.

. . . . Q. Well you agree that Mr. Peavyhou se has a number of very, very serious assaultive behav

iors that are note

d even in you

r own report? A. There is absolute

ly no doubt ab

out it. Q. [In] Dr. Reason’ s (sic) words, this was, quote, a bad

dude wasn’t it? A. He could be. Q. And he certainly

if released to

the community could pose a very substantial and real dange

r to people aroun

d him, could he not? A. He had that potential. I think that’s just self-evident from his past

that he had a potential for causing harm to people.

The Commissioner heard the testimony of all of the experts, both on direct examination and cross-examination. The record ref lects that the exper

ts for the State on direc

t examination strong

ly supportedthe decision of MTMHI in the release to outpatient care of Peavyhouse on January 29, 1989. The Commissioner judged the strengths and weaknesses of the testimony for all parties and-13-

judged the credibility

of the witnesses, w

hich is both his prer

ogative and his d

uty with his cr

edibility judgments entitledto much weight in this Court. Koch v. Koch , 874 S.W.2d 571 (Tenn. Ct. App. 1993). The evidencedoes not preponderate against the finding of the Claims Commission that the Axis I Paranoid Schizophrenia mental illness of Peavyhouse was not in remission at the time of the January 29, 1989 release.

The State argues tha

t th e length of time elapsing between the release of Peavyhouse on January 29, 1989 and the events of October 31, 1991 renders his acts of the latter date not re

asonably for esee abl e and , th us, not a pro xim ate caus e of t he O cto ber 3 1, 1 991 tra gedy.

This argument is witho

ut merit as all one really

has to do is look to

the October 18, 1985 staff conference

report of MTMHI

itself and the test

imony of all th

e medical experts

to reasonably foresee that Peavyhouse was a time bomb waiting to explode.

“The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee,

or through the exercise of

reasonable diligence should have foreseen, the general manner in which th e injury or loss occurred.” McClenahan v. Cooley , 806 S.W.2d 767,775 (Tenn. 1 991) (citing Roberts v. Robertson County Bd. of Ed ., 692 S.W.2d 863, 871 ( Tenn. Ct. App. 1985) ; Wyatt v. Winnebago Industries, Inc. , 566 S.W.2d 276, 280-81 (Tenn. Ct. App. 1977)).

The State further argues that the Claims Commission erred in holding that the State had care, custody and control over Peavyhouse after his release of January 29, 1989 from MTMHI

care to nonstate community

mental health ce

nters.

This holding of the Cla

ims Commission is imm aterial to the outcome of the case. The claimants allege first an

d foremost that the

decision of Januar

y 29, 1989 to r

elease Peavy

house into outpatient care wa s a ne gligen t deci sion p roxi matel y causi ng the traged y of Octo ber 31 , 1991 . In the previous appeal of this case, the Supreme Court held: “This responsibility extends to the ‘release’ decision; that is, the decisio n to release

a patient into the community. This decision, if ne gligently made, may e xpo se t he S tat e to lia bil ity. ” Hembree v. State , 925 S.W.2d 513, 517 (Tenn. 1996). After hearing all of t

he evidence the

Claims Commission held t hat the “releas

e” decision was a negligent decision and proximately caused the Oc tober 31, 199 1 events. The evidence does not preponderate

against the decision of the Claims Commission in this resp ect as both the Court of Appealsand the Supreme Co u rt in the previous appeal held: “At the time he was released, Peavyhouse

was cle arl y w i thin the ‘care, custody and control’ of the state because, a s the intermediate court correct ly noted ‘[r]elease decisions can only involve persons who a re in the State’s care, custody and control.’ ” Id. (citing 1995 WL 50066, slip op. at 8).

Much of the other arg

ument by the St

ate asserts the State’s lack of responsibility for Peavyhouse

after its decision to release him from secure facility on January 29, 1989. The Claims Commission held that MTMHI was negligent in its failure to inform outpatient treatment facilities-14-

of the history

and dangerous propensities of Pe avyhouse. Wh

ile unnecessary

to the decision in th

is case, the reco

rd fully supp

orts the finding o

f the Claims Commission in this respect.

In a strange paradox, the State asserts through the clinical director, Dr. Jackson B. White, and the coordinator at MTMHI, Ly nn McDonald, that

once the decision

is made to release

a patient to outpatient therapy, MT

MHI has no fur

ther responsibilit

y and, in ef

fect, washes its hands of the patient. On the other hand, when confronted by indisputable evidence

that subsequent to h

is release
to outpatient care, Peavyhouse had pulled a knife an d threatenedco-workers at Vanderbilt, Dr. Jackson White testified:

Q. [ByMr. Raiford] Do you recall when I took your deposition I aske d you about an incident

that occurred at

Vanderbilt during

the time Mr. Peavy

house was being seen

and treated by

Vanderbilt? A. Uh-huh, ye

s. Q. He pulled a knife on someone? A. You described it to me. Q. Do you recall what your re sponse was when I asked you whatyou would have done had y

ou been notified o

f that? A. Hadwe bee n notified by the treating physician pr ofessional that Lester needed to come back to the h

ospital we would

hav e ta ken him imm edi ate ly. I believe that is what I told you. Q. Are you aware

of what informati

on, if any, V

anderbilt had with

regard to Mr. Peavyhouse ’s prior violent his tory or act

s? A. No.

. . . . Q.

. . . Question: My question to you was if y ou were aware of that information what would this facility have done? Answer: We would recommen d bringing him ri

ght here with one

certificate andwe would ha ve filled out the other certificate. He would have been admitted in a hear

tbeat.

. . . . A. That’s true.

The evidence certainly does not preponderate a

gainst the finding of the Claims Commission

as to negligence by MTMHI in its failure to properly inform outpatient facilities of the violent history of Peavyhouse

and its failure to properly communicate with outpatient treatment facilities to whom it had referred Peavyhouse.

The State insists

that the findings of State v. Peavyho use , No. 01C01-9409-CC-00307, 1996 WL 129840 (Tenn. Crim. App. 1996) (determining that Peavyhouse was not insane at the time of the October 31, 1991 crimes for which he was convicted) bars any civil finding of state

liability for any negligence

relative to the January 29, 1 989 release of Pe avyhouse or

the failure to moni

tor his outpatient after ca re. A findi ng that Peavyhouse was not insane for purposes of the criminal-15-

proceeding is not equivalent to a finding that he was not mentally ill. Although Peavy house was mentally ill, he was found

not insane permitting the criminal court to find Peavyhouse guilty of the crimes for which he was convicted. Mental illness and legal insanit y are not one in the sa me. It suffices to say that none of the claimants in t his case were legal parties to the criminal action and neither res judicata nor collateral estoppel are applicable to

this case. Hayes v. Civil Service Comm’n of Metro Gov’t. , 907 S.W.2d 826 (Tenn. Ct. App. 1995).

Fin all y, the State asserts discretionary function governmental immunity. This argument was
notraised in the tria

l court prior to

the previous a

ppeal nor raised in the appellate courts on the previous appeal, nor raised in the Claims Commission on remand. It appears for the first time

in the appellate brief

of the State

on the present appeal. “An issue not raised at trial cannot be raised for the first time on appeal.” Mitts v. Mitts , 39 S.W.3d 142, 146 (Tenn. Ct. App. 2000) (citing Sparks

v. Metropolitan Gov’

t of Nashville and Dav

idson County , 771 S.W.2d 430, 434 (Tenn. Ct. App. 1989)).

The decision of the Claims Commi ssion is in all respects affirmed the case remanded for collection of judgments. Costs on appeal are assessed against the State of Tennessee.

___________________________________ WILLIA M B. CAIN, JUDGE