Present: All the Justices
BRIGITTE MERCER
v. Record No. 990821 OPINION BY JUSTICE CYNTHIA D. KINSER
January 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
In this appeal, we consider the definition of the term
“[m]entally ill” in Code § 37.1-1 in relation to the
criteria set forth in Code §§ 19.2-182.3 and –182.5 for the
continued commitment of an individual found not guilty of
criminal charges by reason of insanity. Because we
conclude that there is sufficient evidence in the record to
support the circuit court’s judgment that the acquittee
does not satisfy the requirements for conditional release,
we will affirm that judgment.
FACTS
Brigitte Daniele Mercer was found not guilty by reason
of insanity (NGRI) on charges of carjacking, grand larceny,
maiming, and robbery. Pursuant to Code § 19.2-182.2, 1 the
circuit court remanded Mercer to the custody of the
Commissioner of the Department of Mental Health, Mental
1
Code § 19.2-182.2 requires, in pertinent part, that a
person acquitted by reason of insanity shall be placed in
the temporary custody of the Commissioner of Mental Health,
Mental Retardation and Substance Abuse Services “for
Retardation and Substance Abuse Services (the
Commissioner). In January 1997, the court conditionally
released her from custody pursuant to Code § 19.2-182.7. 2
However, the circuit court required Mercer to undergo a 30-
day inpatient evaluation in June 1997 after Mercer claimed
that she had been raped and had sustained a stab wound to
her thigh. The court eventually recommitted Mercer to the
custody of the Commissioner.
Mercer next appeared before the circuit court on
August 25, 1998, pursuant to Code § 19.2-182.5, 3 for the
purpose of determining whether she continued to need
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evaluation as to whether the acquittee may be released with
or without conditions or requires commitment.”
2
Code § 19.2-182.7 provides that upon consideration of
an NGRI acquittee’s need for inpatient hospitalization, the
acquittee must be conditionally released if the court finds
that
(i) based on consideration of the factors which the
court must consider in its commitment decision, he
does not need inpatient hospitalization but needs
outpatient treatment or monitoring to prevent his
condition from deteriorating to a degree that he would
need inpatient hospitalization; (ii) appropriate
outpatient supervision and treatment are reasonably
available; (iii) there is significant reason to
believe that the acquittee, if conditionally released,
would comply with the conditions specified; and (iv)
conditional release will not present an undue risk to
public safety.
3
Code § 19.2-182.5(A) requires that a “committing
court shall conduct a hearing twelve months after the date
of commitment to assess each confined acquittee’s need for
inpatient hospitalization.”
2
inpatient hospitalization. At that hearing, the court
heard testimony from two expert witnesses, Evan S. Nelson,
Ph.D., a licensed clinical psychologist, and Christine A.
Bryant, Psy.D., also a licensed clinical psychologist.
Both experts examined Mercer prior to the hearing and
submitted written reports to the court pursuant to Code
§ 19.2-182.5(B). Based on their evaluations, Dr. Bryant
and Dr. Nelson opined that Mercer suffers from antisocial
personality disorder (APD) and polysubstance dependence
(PSD). However, they expressed differing opinions with
regard to whether either APD or PSD falls within the
definition of a mental illness in Code § 37.1-1.
Relying primarily on the Diagnostic and Statistical
Manual for Mental Disorders (4th ed. 1994) (DSM-IV), Dr.
Bryant testified that both APD and PSD are mental
illnesses. She described APD as being “the disregard for
authority or for social rules and mores,” and defined PSD
as the addiction to multiple drugs. According to Dr.
Bryant, Mercer has been “drug free” only during her periods
of hospitalization. With regard to Mercer’s risk of harm
to other persons, Dr. Bryant stated that Mercer’s history
of aggressive behavior, demonstrated by her “extensive
legal history,” was one of several risk factors requiring
continued inpatient hospitalization. Dr. Bryant believed
3
that Mercer “continues to be a risk for future aggressive
behavior,” and that she cannot be adequately controlled as
an outpatient.
Dr. Nelson did not categorize Mercer’s APD as a mental
disease or illness. Instead, he drew a distinction between
the multiaxial diagnostic system in the DSM-IV, upon which
Dr. Bryant relied, and the conditions that courts may
consider to be mental illnesses under the Code. However,
Dr. Nelson seemingly contradicted himself because he also
testified that, under the Code, both APD and PSD are
considered mental diseases. He admitted that if the court
believed Mercer is mentally ill, continued commitment is
warranted. Like Dr. Bryant, Dr. Nelson also believed that
Mercer poses a “very, very high risk” for future
dangerousness.
Based on this evidence, the circuit court found that
Mercer suffers from a mental illness because of her history
of drug abuse and addiction. 4 The court concluded “that
Mercer does not meet the conditions for conditional release
. . . because: 1) Mercer is mentally ill and in need of
4
The circuit court did not rest its decision on
Mercer’s APD. The court stated that “the case does not
rise and fall on whether the Court finds that Mercer’s
[APD] is a mental illness.” Instead, the court focused on
“the last portion of [Code] § 37.1-1 which indicates that
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inpatient hospitalization; 2) it is highly probable that
Mercer will violate the terms of the conditional release;
3) her conditional release will present an undue risk to
public safety.” We awarded Mercer this appeal.
ANALYSIS
Mercer acknowledges on brief that the sole issue
before the Court is whether APD and PSD are mental
illnesses. She relies on Foucha v. Louisiana, 504 U.S. 71
(1992), in arguing that APD can never be classified as a
mental illness. Mercer further contends that PSD is not a
mental illness because, according to her, the definition of
the term “[m]entally ill” in Code § 37.1-1 expressly
excludes drug addiction and alcoholism from its purview for
the purpose of determining if an NGRI acquittee should
remain in the custody of the Commissioner. Therefore, she
asserts that Dr. Bryant’s testimony that PSD is a mental
illness was insufficient, as a matter of law, to support
the circuit court’s finding that Mercer suffers from a
mental illness.
The Commonwealth argues that Mercer misconstrues the
decision in Foucha as well as Code § 37.1-1, and that, at
any rate, this Court’s focus should be on PSD, not APD,
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the term ‘mentally ill’ shall be deemed to include any
person who is a drug addict or alcoholic.”
5
since the circuit court did not base its decision on
Mercer’s APD. The Commonwealth finally asserts that the
question whether an individual suffers from a mental
illness is a factual determination to be made by the court
after hearing the testimony of mental health experts. We
agree with the Commonwealth.
As a preliminary matter, we note that the Supreme
Court of the United States in Foucha did not, as Mercer
argues, state that APD can never, as a matter of law, be
classified as a mental illness. Rather, the Court held
that a finding of both mental illness and future
dangerousness must be present in order to continue the
confinement of an NGRI acquittee. Foucha, 504 U.S. at 80.
In that case, there was no medical evidence that Foucha was
mentally ill at the time of his hearing, although the
testimony regarding his future dangerousness was
uncontested. Id. at 74-75. The government in Foucha did
not argue that Foucha’s APD was a mental illness; rather,
it relied on the trial court’s finding that the APD made
Foucha a danger “to himself or others.” Id. at 78. Thus,
the Supreme Court did not decide in Foucha whether APD is a
mental illness, but simply affirmed the principle that a
state cannot confine an individual with a mental illness
absent a showing by clear and convincing evidence “that the
6
individual is mentally ill and dangerous.” Id. at 80
(quoting Jones v. United States, 463 U.S. 354, 362 (1983)).
However, as the Commonwealth points out, the circuit
court in the present case did not rest its decision on
Mercer’s APD, but instead focused on her PSD. Accordingly,
we will now address that diagnosis and the circuit court’s
analysis of it.
As already noted, Mercer argues that Code § 37.1-1
expressly excludes drug addicts, 5 and thus individuals with
PSD, from the definition of “[m]entally ill” when deciding
whether to continue the confinement of an NGRI acquittee.
That Code section provides, in pertinent part, “that for
the purposes of Chapter 2 (§ 37.1-63 et seq.) of this
title, the term ‘mentally ill’ shall be deemed to include
any person who is a drug addict or alcoholic.” According
to Mercer, this language means that neither drug addiction
nor alcoholism can serve as the basis for a finding of
5
The term “[d]rug addict” is defined in Code § 37.1-1
as “a person who: (i) through use of habit-forming drugs or
other drugs enumerated in the Virginia Drug Control Act
(§ 54.1-3400 et seq.) as controlled drugs, has become
dangerous to the public or himself; or (ii) because of such
drug use, is medically determined to be in need of medical
or psychiatric care, treatment, rehabilitation or
counseling.”
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mental illness except for the purposes of Chapter 2. 6 We
disagree.
The language of Code § 37.1-1 does not squarely
address the question whether PSD qualifies as a mental
illness for purposes other than Chapter 2, such as
satisfying the standard for Mercer’s continued commitment
as an NGRI acquittee. In other words, it neither compels
nor forbids a finding of mental illness based on PSD in
situations that are not covered by Chapter 2. However, we
believe that it would strain credulity to say, as Mercer
suggests, that PSD qualifies as a mental illness when
deciding whether to voluntarily or involuntarily admit an
individual who has not committed an unlawful act to a
hospital for treatment, but is never a mental illness when
determining whether to continue the inpatient
hospitalization of an NGRI acquittee.
Instead of focusing solely on the definition of
“[m]entally ill” in Code § 37.1-1, we believe that the
analysis should include the provisions of Code §§ 19.2-
182.3 and -182.5, which set forth the criteria that must be
satisfied in order to continue Mercer’s commitment to the
6
Chapter 2 of Title 37.1 deals primarily with the
voluntary and involuntary admission of a person with a
mental illness to a hospital for treatment of such illness.
8
custody of the Commissioner. Specifically, Code § 19.2-
182.5 provides that the court can retain an NGRI acquittee
in the custody of the Commissioner if the acquittee
“continues to require inpatient hospitalization based on
consideration of the factors set forth in § 19.2-182.3.”
Under Code § 19.2-182.3, “mental illness includes any
mental illness, as this term is defined in § 37.1-1, in a
state of remission when the illness may, with reasonable
probability, become active.” (Emphasis added.) In
contrast, the definition of “[m]entally ill” in Code
§ 37.1-1 does not include the phrase “in a state of
remission.” Thus the term “mental illness” in Code § 19.2-
182.3 is not limited solely to the definition of
“[m]entally ill” in Code § 37.1-1.
Code § 19.2-182.3 also establishes four factors that
the circuit court had to consider in determining whether to
continue Mercer’s commitment:
1. To what extent the acquittee is mentally ill or
mentally retarded, as those terms are defined in
§ 37.1-1;
2. The likelihood that the acquittee will engage in
conduct presenting a substantial risk of bodily harm
to other persons or to himself in the foreseeable
future;
3. The likelihood that the acquittee can be
adequately controlled with supervision and treatment
on an outpatient basis; and
4. Such other factors as the court deems relevant.
9
In Kansas v. Hendricks, 521 U.S. 346 (1997), the
Supreme Court of the United States acknowledged that it had
never “required State legislatures to adopt any particular
nomenclature in drafting civil commitment statutes.” Id.
at 359. Instead, the Court “left to legislators the task
of defining terms of a medical nature that have legal
significance.” Id. Consequently, the Court recognized
that states have “developed numerous specialized terms to
define mental health concepts” and that those “definitions
do not fit precisely with the definitions employed by the
medical community.” Id.
Accordingly, we conclude that the determination with
regard to whether Mercer suffers from a mental illness, and
therefore should continue to be committed to the custody of
the Commissioner, is a question of fact to be resolved by
the trial court based upon consideration of the relevant
Code provisions, and the report and testimony of mental
health experts. The circuit court in this case heard
testimony from Dr. Bryant and Dr. Nelson, and also had the
benefit of their written reports. While the experts agreed
that Mercer still presents a high risk of engaging in
aggressive behavior and harming others, they disagreed
about whether Mercer is mentally ill. Thus, the circuit
court had to resolve that conflict in the testimony.
10
There are several established principles that guide
our review of the circuit court’s resolution of the
conflict in the testimony of the two witnesses.
“Conflicting expert opinions constitute a question of fact
. . . .” McCaskey v. Patrick Henry Hospital, 225 Va. 413,
415, 304 S.E.2d 1, 2 (1983). It is within the province of
the finder of fact “to assess the credibility of the
witnesses and the probative value to be given their
testimony.” Richardson v. Richardson, 242 Va. 242, 246,
409 S.E.2d 148, 151 (1991). The factual determinations of
the trial court, like those of a jury, are binding on this
Court, and we will reverse such findings “only if they are
plainly wrong or without evidence to support them.” Id.
Considering the evidence in this case in light of
these established principles, we conclude that the circuit
court correctly determined that Mercer continues to need
inpatient hospitalization in accordance with the terms of
Code §§ 19.2-182.3 and –182.5. There is evidence in the
record to support the court’s conclusion that Mercer
suffers from a mental illness and presents a substantial
risk of bodily harm to other persons because of her long
history of drug abuse, drug addiction, and violence.
Although not dispositive of the issue before us, it is
significant that the circuit court also found that Mercer
11
meets the definition of the term “[d]rug addict” in Code
§ 37.1-1. Finally, Dr. Bryant and Dr. Nelson disagreed
only with regard to whether PSD is a mental illness. In
resolving that conflict, the circuit court is not
necessarily bound by the definitions employed by the
medical profession. See Hendricks, 521 U.S. at 359.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
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