In the Matter of Commitment of Awd

861 N.E.2d 1260, 2007 Ind. App. LEXIS 352, 2007 WL 602432
CourtIndiana Court of Appeals
DecidedFebruary 28, 2007
Docket82A04-0609-CV-506
StatusPublished
Cited by9 cases

This text of 861 N.E.2d 1260 (In the Matter of Commitment of Awd) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Commitment of Awd, 861 N.E.2d 1260, 2007 Ind. App. LEXIS 352, 2007 WL 602432 (Ind. Ct. App. 2007).

Opinions

OPINION

MAY, Judge.

A.W.D. appeals his continued commitment in Evansville State Hospital (“the Hospital”). He raises two issues, which we restate as:

1. Whether fundamental error occurred when the trial court conducted direct examination of Dr. Brad Mallory of the Hospital and cross-examination of A.W.D.; and

2. Whether the evidence was sufficient to support the court’s continued commitment of A.W.D.

Because the court’s questioning of witnesses was an unbiased attempt to gather the necessary evidence and because the evidence was sufficient, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2001, when A.W.D. was approximately forty-seven years old, he was temporarily committed to Madison State Hospital because he was schizophrenic and his family felt threatened by him. Later that year, A.W.D. was transferred to the Hospital, where he has remained following a number of regular commitment hearings. A.W.D. has schizophrenia, diabetes, car-diomyopathy,1 high cholesterol, peripheral neuropathy, and HIV, all of which require daily treatment with medication. He has family in Evansville, and every other week he is allowed to spend approximately ten hours outside the hospital with his brother.

On July 19, 2006, the trial court conducted a hearing regarding A.W.D.’s commit[1263]*1263ment. Present were Senior Judge Maurice O’Connor, Dr. Mallory, A.W.D., and A.W.D.’s counsel Erin Berger. No one appeared on behalf of the State. A.W.D. and Dr. Mallory testified. The trial court conducted direct examination of Dr. Mallory and cross-examination of A.W.D., then entered an order continuing A.W.D.’s commitment.

DISCUSSION AND DECISION

1. Conduct of Trial

A.W.D. first alleges fundamental error because the trial court conducted direct examination of Dr. Mallory and cross-examination of A.W.D.2 A.W.D. claims the court “stepped out of his neutral stance and into a position where it asked leading questions of the doctor and cross-examined” A.W.D. (Appellant’s Br. at 10); however, A.W.D. does not identify any questions by the court that were leading or demonstrated bias. He has thereby waived this allegation of error. See Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to the ... Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”). Waiver notwithstanding, we find no error.

A judge may question witnesses in a civil commitment hearing:

It is true that it is a violation of due process to combine the roles of judge and prosecutor in criminal trials. However, many judicial proceedings permit or encourage the trial court to take an active part in the examination of witnesses. In fact, most restrictions on the court’s power to examine witnesses are relaxed in trials to the court. It must be remembered, too, that due process is a flexible standard which “cannot be divorced from the nature of the ultimate decision that is being made.”
While we stress the need for procedural protections of the ill person’s liberty interest, it is the commitment proceeding that determines whether treatment should be provided. The lack of treatment may be more damaging than the loss of liberty and the stigma occasioned by commitment. Actually, IC 16-14-9.1-10 [relevant portion now found at Ind.Code § 12-26-2-5(d) ] does not require the petitioner to be represented by counsel at the commitment hearing. What is important is not so much the manner of presenting evidence as is the determination by the trial judge of the need for treatment. Thus, we find it in keeping with the statute for the trial court to have participated in the examination of [the doctor].
We might observe further that the trial judge did not ask leading questions, argue with counsel, or cross-examine Jones. The message from the record is that he sought to discharge in a highly professional manner the duty imposed on him by IC 16-14-9.1-10.
In a similar setting, ie., the commitment of juveniles, the United States Supreme Court has suggested that the admitting physician is the only factfinder required by due process. The Court impliedly recognized, at least in the context of the commitment of juveniles, that a lack of neutrality cannot be assumed on the part of the factfinder merely [1264]*1264because of his or her participation in the examination of witnesses.

Jones v. State, 477 N.E.2d 353, 359-60 (Ind.Ct.App.1985) (internal citations omitted), reh’g denied, trans. denied.

While the judge cross-examined A.W.D., we do not find any error in his having done so because the examination was not hostile and the questions did not demonstrate bias. In the context of a criminal trial, we explained:

Although a trial judge may not assume an adversarial role in any proceeding, the judge may intervene in the fact-finding process and question witnesses in order to promote clarity or dispel obscurity. The purpose of allowing the judge to question witnesses is to permit the court to develop the truth or obtain facts which may have been overlooked by the parties. To make a showing of reversible error, the defendant must show that the trial judge’s questioning of witnesses was harmful and prejudicial to his case.

Griffin v. State, 698 N.E.2d 1261, 1265 (Ind.Ct.App.1998), trans. denied 706 N.E.2d 176 (Ind.1998). Judge O’Connor was attempting to “promote clarity,” “dispel obscurity,” and “obtain facts” necessary to evaluate whether A.W.D. was a risk to others or was gravely disabled. See id. In the absence of specific examples of bias, we will not presume bias against A.W.D. simply because the court questioned witnesses. See Jones, 477l N.E.2d at 360.

2. Sufficiency of Evidence

A.W.D. also challenges the court’s determination his regular commitment 3 should be continued. When reviewing sufficiency of the evidence, we look only at the evidence and reasonable inferences therefrom most favorable to the trial court’s judgment. J.S. v. Ctr. for Behavioral Health, 846 N.E.2d 1106, 1111 (Ind.Ct.App.2006). We may not reweigh the evidence or judge the credibility of the witnesses. Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96 (Ind.Ct.App.2005), trans. denied 841 N.E.2d 183 (Ind.2005). “If the trial court’s commitment order represents a conclusion that a reasonable person could have drawn, we will affirm the order even if other reasonable conclusions are possible.” Id.

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In the Matter of Commitment of Awd
861 N.E.2d 1260 (Indiana Court of Appeals, 2007)

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Bluebook (online)
861 N.E.2d 1260, 2007 Ind. App. LEXIS 352, 2007 WL 602432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-commitment-of-awd-indctapp-2007.