State of Missouri, Respondent, v. Thomas D. Halbrook, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Thomas D. Halbrook, Appellant. Case Number: 74788 Handdown Date: 07/27/1999 Appeal From: Circuit Court of Ste. Genevieve County, Hon. Stanley J. Murphy Counsel for Appellant: Margaret M. Johnston Counsel for Respondent: John M. Morris, III, and Greg A. Perry Opinion Summary: Halbrook appeals from his denial of application for unconditional release under Section 552.040.7, RSMo Cum. Supp. 1998. Halbrook contends the hearing court erred in denying his application for unconditional release. Halbrook argues the hearing court erred by not making specific findings on whether he suffered from a mental disease or defect at the time of the hearing. REMANDED. Division Five holds: The trial court erred in not making a specific finding whether Halbrook suffered from a mental disease or defect at the time of the hearing as required by due process. Citation: Opinion Author: Robert G. Dowd, Jr., Chief Judge Opinion Vote: REMANDED. Karohl, J., and Blackmar, Sr.J., concur. Opinion: Halbrook appeals from his denial of application for unconditional release under Section 552.040.7, RSMo Cum. Supp. 1998.(FN1) Halbrook contends the hearing court erred in denying his application for unconditional release. Halbrook argues the hearing court erred by not making specific findings on whether he suffered from a mental disease or

defect at the time of the hearing. We remand for a finding on the issue. In February 1995, Halbrook was charged with the crimes of assault in the second degree, Section 565.060, RSMo 1994, armed criminal action, Section 571.015, RSMo 1994, robbery in the first degree, Section 569.020, RSMo 1994, and resisting arrest, Section 575.150, RSMo 1994, in the Ste. Genevieve Circuit Court. At the time of his arrest, he was evaluated and diagnosed as having the mental disease of bipolar disorder with psychotic features. In March 1995, he pled not guilty by reason of mental disease or defect excluding responsibility to those charges and was committed to the custody of the Missouri Department of Mental Health. Halbrook applied for an unconditional release in January 1998. At the hearing, Dr. Bruce Harry, Halbrook's treating psychiatrist since July 1997, testified concerning Halbrook's present mental state. Prior to the hearing, the court granted an independent psychiatric evaluation performed by Daniel Birmingham. Both doctors concluded Halbrook was in remission.(FN2) The hearing court denied Halbrook's application for an unconditional release. The hearing court's order contained the following: Upon receipt and review of a [second] examination report from movant['s] [attorney] the court denies the movant['s] application for an unconditional release from the custody, care and treatment of Mental Health and the clerk is ordered to notify all the attorneys & the Dept. of Mental Health of this ruling. Halbrook contends the hearing court erred in not making a specific finding on whether or not he had a mental disease or defect at the time of the hearing. We agree. The standard of review of the denial of an unconditional release is the same as that applied to appellate review of judgments following a bench trial. State v. Tooley, 875 S.W.2d 110, 114 (Mo. banc 1994). The judgment of the trial court will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Section 552.040.7, RSMo Cum. Supp. 1998, states: At a hearing to determine if the committed person should be unconditionally released, the court shall consider the following factors in addition to any other relevant evidence: (1) Whether or not the committed person presently has a mental disease or defect; (2) The nature of the offense for which the committed person was committed; (3) The committed person's behavior while confined in a mental health facility; (4) The elapsed time between the hearing and the last reported unlawful or dangerous act; (5) Whether the person has had conditional releases without incident; and (6) Whether the determination that the committed person is not dangerous to himself or others is dependent on the person's taking drugs, medicine or narcotics. The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility shall be on the party seeking unconditional release to prove by a clear and convincing evidence that the person for whom unconditional release is sought does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others.

Although Section 552.040 does not explicitly require the court to make a specific finding that the person still suffers from a mental disease, such a finding is necessary to satisfy the due process requirements of the United States Constitution. Marsh v. State, 942 S.W.2d 385, 388 (Mo. App. W.D. 1997) (citing Stalworth v. State, 895 S.W.2d 656, 658 (Mo. App. W.D. 1995)). Due process forbids the continued confinement of an individual acquitted by reason of insanity after the individual no longer suffers the mental disease or defect. Marsh, 942 S.W.2d at 388 (citing Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). The Western District of this court expressly held "it is necessary for a court to make a finding that an insanity acquitee is suffering from a mental illness or defect before it can order that such person shall remain in a mental institution." Styles v. State, 838 S.W.2d 10, 11 (Mo. App. W.D. 1992). Here, the hearing court never made a finding whether or not Halbrook suffered from a mental disease or defect at the time of the hearing. The hearing court's Order merely stated Halbrook's application for release is denied and he is remanded back to the custody of the Department of Mental Health. There was no specific finding on whether or not Halbrook was suffering from a mental disease or defect at the time of the hearing documented in the Order. See Viers v. State, 956 S.W.2d 465, 466 (Mo. App. W.D. 1997). The hearing court's failure to make a specific finding on whether or not Halbrook suffered from a mental disease or defect at the time of the hearing is erroneous. As a result, Halbrook's due process rights were violated by the hearing court's failure to make a specific finding. The judgment of the hearing court is remanded to enter a specific finding on whether or not Halbrook suffered from a mental disease or defect at the time of the hearing. Footnotes: FN1.The order is appealable under Section 512.020, RSMo 1994. State v. Montague, 510 S.W.2d 776, 777 (Mo. App. 1974). FN2.Dr. Harry defined remission as "a person who has a mental illness [but] is not having any symptoms and has not had any for an extended time." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.