In Re Hayes , 139 N.C. App. 114 ( 2000 )

532 S.E.2d 553 (2000)

In the Matter of Michael Charles HAYES.

No. COA99-537.

Court of Appeals of North Carolina.

July 18, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.

Karl E. Knudsen, Raleigh, for respondent-appellant.

EAGLES, Chief Judge.

To be released, Hayes must have shown by a preponderance of the evidence that he is neither mentally ill, G.S. § 122C-3(21), nor dangerous to others, G.S. § 122C-3(11)b. See G.S. § 122C-276.1. We note that we denied Hayes' 1992 request to be released in In re Hayes, 111 N.C.App. 384, 432 S.E.2d 862, appeal dismissed, 335 N.C. 173, 436 S.E.2d 376 (1993), hereinafter "Hayes I."

In his brief, Hayes argues that the statutory definition of "mentally ill" applied here is unconstitutionally vague. See G.S. § 122C-3(21). The record reveals that Hayes did not argue this issue below, and therefore failed to preserve it for argument on appeal. N.C. R.App. P. 10(b)(1); Peace River Elec. Co-op., Inc. v. Ward Transformer Co., Inc., 116 N.C.App. 493, 506-507, 449 S.E.2d 202, 212 (1994), disc. rev. denied, 339 N.C. 739, 454 S.E.2d 655 (1995)("we will not decide at the appellate level a constitutional issue or question which was not raised or considered in the trial court"). Assuming, arguendo, that the issue is properly before us, we would overrule this assignment of error under our prior holding that a nearly identical definition of mental illness under the prior statute was not unconstitutionally vague. In re Salem, 31 N.C.App. 57, 60-61, 228 S.E.2d 649, 651-52 (1976)(analyzing former G.S. §§ 122-36(d) and 58.1).

Hayes also argues that he can no longer be classified as "mentally ill" under Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), and that the trial court violated his due process rights by (1) concluding as a matter of law that he failed to meet his burden of proof and (2) again ordering his return to confinement at Dix. We disagree.

In Foucha, the United States Supreme Court invalidated a Louisiana statute under the due process clause because it permitted the re-commitment of an insanity acquittee, Foucha, to a mental institution on evidence that Foucha was "dangerous to others" and had an "antisocial" personality, but was not insane. Here, Hayes argues that Foucha "established ... [that] a personality disorder alone does not qualify as a mental illness which justifies involuntary confinement." Hayes further argues that because (1) he has recovered, like Foucha, from the schizophreniform mental illness or drug-induced psychosis which led him to commit his crimes and (2) he has abstained from drugs and alcohol for at least six years, he is no longer mentally ill and must be released pursuant to Foucha. We disagree.

Foucha is distinguishable because there, the State of Louisiana conceded that Foucha's "antisocial" personality did not constitute mental illness under Louisiana state law. Id. at 80, 112 S.Ct. at 1785-86, 118 L.Ed.2d at 447. The Foucha Court therefore never reached the issue of whether "antisocial" behavior or other types of personality disorders are mental illnesses. As noted by the Virginia Supreme Court in a case similar to the one at bar,

[t]he government in Foucha did not argue that Foucha's [Anti Social Personality Disorder, or] 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, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437. 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 individual is mentally ill and dangerous." Id. at 80, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (quoting Jones v. United States, 463 U.S. 354, 362, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983)).

Mercer v. Commonwealth, 259 Va. 235, 523 S.E.2d 213, 215 (2000) (emphasis added). We agree with Mercer that Foucha did not define "mental illness."

Thus, assuming arguendo that Hayes is neither psychotic nor drug or alcohol dependent, he may still be found "mentally ill" by virtue of having been diagnosed with a personality disorder. Hayes does not otherwise challenge either (1) G.S. § 122C-3(21)'s definition of mental illness, which includes personality disorders, or (2) the evidentiary basis for the court's finding that Hayes suffers from a personality disorder with antisocial and narcissistic traits. Accordingly, we defer to the trial court's finding, supported by competent expert testimony, that Hayes is mentally ill. See In re Collins, 49 N.C.App. 243, 246, 271 S.E.2d 72, 74 (1980)(Court of Appeals' only function on appeal from commitment order is to determine if the trial court's ultimate findings on the issues of acquittee's mental illness and dangerousness were supported by competent evidence set out in the order).

Finally, we decide whether the trial court erred in finding Hayes "dangerous to others" under G.S. § 122C-276.1 and 122C-3(11)b. In Hayes I, we held in part that it did not violate due process to require Hayes to bear the burden of proof under G.S. 122C-276.1 that he is no longer "dangerous to others." Hayes at 389-91, 432 S.E.2d at 866-67. G.S. § 122C-3(11)b provides that:

"Dangerous to others" means that within the relevant past, the individual has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another or has acted in such a way as to create substantial risk of serious bodily harm to another, or has engaged in extreme destruction of property; and that there is a reasonable probability that this conduct will be repeated. Previous episodes of dangerousness to others, when applicable, may be considered when determining reasonable probability of future dangerous conduct. Clear, cogent and convincing evidence that an individual has committed a homicide in the relevant past is prima facie evidence of dangerousness to others. (emphasis added).

In Davis v. N.C. Dept. of Human Resources, 121 N.C.App. 105, 465 S.E.2d 2 (1995), disc. rev. denied, 343 N.C. 750, 473 S.E.2d 612 (1996), we held that although the issue is to be decided by trial courts on a case-by-case basis, prior "violent acts" may be found to have occurred in the "relevant past" when they "occurred close enough in time to the... hearing to have probative value on the ultimate question ... of whether there was a ``reasonable probability that such [violent] conduct [would] be repeated.'" Id. at 114-15, 465 S.E.2d at 8 (citing G.S. § 1A-1, Rule 401).

Hayes asserts that Davis' definition of "relevant past" is "ambiguous" and that the current statutory scheme denies him due process of law. Specifically, he contends that a court could arbitrarily and capriciously continue his confinement by "operation of law" by finding his crimes to be in the ambiguously-defined "relevant past," despite "proof" that Hayes had not exhibited dangerous behavior since 1988 and was no longer "mentally ill." Instead, Hayes argues by analogy to N.C. R. Ev. 404(b) and 609 that the trial court should have considered his ten-year-old crimes' temporal "remoteness" from the hearing in deciding their admissibility for purposes of determining "dangerousness." We are not persuaded.

As noted above, Hayes failed to meet his burden of proof that he is no longer mentally ill. Furthermore, uncontested evidence of the "slaw incident" demonstrated that Hayes has engaged in dangerous conduct since 1988. The real issue is therefore whether the court denied Hayes due process in applying the relevant statutes.

By Davis' references to timing, it is clear that in determining whether acquittees' prior crimes fall into the "relevant past," trial courts may consider the crimes' temporal proximity to the hearing date in evaluating their prejudicial effect. This analysis is similar to that required by Rules 403, 404(b) and 609. Undercutting Hayes' argument, however, is the rule that prior crimes' temporal remoteness has more to do with the crimes' evidentiary weight than their admissibility. See, e.g., State v. Blackwell, 133 N.C.App. 31, 514 S.E.2d 116, 120, cert. denied, 350 N.C. 595, ___ S.E.2d ___ (1999) (citing State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991))("remoteness in time generally affects only the weight to be given [Rule 404(b) ] evidence, not its admissibility"). In addition, Davis' reference to Rule 401 emphasizes that trial courts enjoy great discretion in deciding the probative value of acquittee's prior crimes. See G.S. § 122C-3(11)b ("[p]revious episodes of dangerousness to others, when applicable, may be considered when determining reasonable probability of future dangerous conduct"). We conclude that in the context of this case, (1) courts are not constrained by the timing considerations in Rules 404 and 609, as Hayes contends, and (2) lapse of time is only one factor in the court's analysis under Rules 401 and 403.

In this case, it appears that from both evidentiary and medical perspectives, the nature of Hayes' crimes was more important than their timing. In other words, on the issue of the likelihood of Hayes' future dangerousness to others, the probative value of evidence of Hayes' "extremely violent homicidal" crimes far outweighed any potential prejudice due to the crimes' age. Furthermore, it is clear from the order that the court's findings on Hayes' dangerousness were also rooted in additional evidence unrelated to Hayes' prior crimes, including (1) Hayes' past and present mental illness, (2) Hayes' behavior since 17 July 1988 (including the "slaw incident"), and (3) Hayes high likelihood of post-release relapse into multi-substance abuse, which all experts agreed was a trigger for his 1988 psychosis. Accordingly, we hold that the trial court did not violate Hayes' right to due process.

Affirmed.

Judges TIMMONS-GOODSON and HUNTER concur.