Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 2, 2015, at Jackson
Appeal from the Circuit Court for Hickman County No. 04-5035C Timothy L. Easter and Robbie T. Beal, Judges
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.
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.
ROBERT W. WEDEMEYER, JUDGE
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 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 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 ...