Nigel Elliot Walker v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Malveaux and Causey
PUBLISHED
Argued by videoconference
NIGEL ELLIOT WALKER
OPINION BY
v. Record No. 0464-22-2 CHIEF JUDGE MARLA GRAFF DECKER
JULY 18, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Phillip L. Hairston, Judge
Catherine French Zagurskie, Chief Appellate Counsel (Virginia
Indigent Defense Commission, on briefs), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Nigel Elliot Walker was acquitted of murder on a defense of not guilty by reason of
insanity under Code § 19.2-182.2. On appeal, he challenges a decision of the circuit court
denying his request to modify his conditional release plan under Code §§ 19.2-182.7 and -182.11
to allow him to live independently. We hold that the circuit court did not abuse its discretion by
refusing to modify the plan. Accordingly, we affirm the circuit court’s judgment.1
1
Portions of both the record and the briefs in this matter are sealed. Nonetheless, this
appeal necessitates unsealing relevant material for purposes of resolving the issue raised.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record [and
briefs], we unseal only those specific facts, finding them relevant to the decision in this case.
The remainder of the previously sealed record [and briefs] remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1 (2017).
BACKGROUND2
In April 2016, the appellant killed his former girlfriend’s father without provocation by
choking him and stabbing him in the neck with a knife. He was charged with first-degree murder
and use of a weapon in the commission of a felony. In January 2017, following a sanity
evaluation, the circuit court accepted his plea of not guilty by reason of insanity (NGRI) and
ordered him committed to Central State Hospital. Upon yearly review, his commitment was
renewed in 2018 and 2019.
In March 2020, Central State Hospital and the Richmond Behavioral Health Authority
(RBHA) developed a conditional release plan for the appellant that involved his moving to the
affiliated Gateway Homes, a transitional living facility. The plan included frequent psychiatric
monitoring, substance abuse screening, and therapy. It also provided that the appellant’s daily
mental health medications would be dispensed by facility staff. Following an October 2020
hearing, the court approved the plan permitting the appellant to reside at Gateway, but at the
request of the Commonwealth’s Attorney, it prohibited him from leaving Gateway’s premises
unless accompanied by a staff member. The appellant began living at Gateway Homes on a
fulltime basis in December 2020.
2
Under the applicable standard of review, this Court considers the evidence in the light
most favorable to the Commonwealth, as the prevailing party below. See Lotz v.
Commonwealth, 277 Va. 345, 349 (2009) (applying this standard on review of a conditional
release ruling under the sexually violent predator statutes); see also Mercer v. Commonwealth,
259 Va. 235, 240, 242-43 (2000) (recognizing the appellate deference owed to the circuit court’s
factual findings under Code §§ 19.2-182.3 and -182.5 regarding whether the defendant’s
diagnosed disorders were mental illnesses).
-2-
In July 2021, the court continued the appellant’s conditional release on the same terms.
In December 2021, with the consent of the Commonwealth, the court permitted him to visit
family in Georgia for two weeks.3
In January 2022, following the appellant’s successful return from his furlough, the RBHA
issued a new report recommending that the appellant be permitted to “live[] independently” in an
apartment in the community.4 At a hearing on the recommendation, the Commonwealth relied
on the evidence in the record and cross-examined the witnesses called by the appellant.
I. Evidence in the Record of the Appellant’s Mental Health History and the Killing
The appellant’s mother was a paranoid schizophrenic, and the appellant himself began
experiencing auditory hallucinations and paranoia by age ten. After getting his GED and
spending six years in the military, including serving in combat zones, he was diagnosed with
posttraumatic stress disorder (PTSD). The appellant was hospitalized several times for mental
health issues. He was diagnosed with major depressive disorder, as well as marijuana and
alcohol abuse. Paranoid schizophrenia was suspected, and he was prescribed numerous
medications, including antipsychotics. During that time period, he “was supposed to be on
Depakote,” but he reported that he “didn’t like taking it” and “didn’t take his medication
consistently.”
3
The order directed that the appellant would “continue to take all medications as
prescribed during th[at] time” and “contact” Gateway “daily to confirm medication compliance.”
The appellant checked in with Gateway staff as required and returned as scheduled. His
check-ins occurred by phone and, therefore, permitted only verbal confirmation of his
medication compliance.
4
The report contained blocks for the signatures of the staff member who completed the
report and the NGRI coordinator. The licensed clinical social worker who prepared the report
signed it digitally. However, the NGRI coordinator, listed as a doctor of psychology, did not
sign the report, despite the preprinted statement on the report that “[i]f the individual completing
this report is not the . . . NGRI Coordinator[,] then both signatures are required.” No evidence in
the record establishes the reason for the missing signature.
-3-
In August 2015, the appellant, who was living in Georgia, vandalized a convenience store
display, stole beer and cigarettes, removed all of his clothing, and confronted a police officer.
He was arrested for disorderly conduct, shoplifting, criminal trespass, and public indecency.
Shortly afterward, he relocated to Richmond, Virginia.
In September 2015 in Richmond, the appellant was evaluated by a psychiatrist at the
Veterans Administration Hospital (VA). The psychiatrist noted the “severity of [the appellant’s]
symptoms,” which she described as “highly suggestive” of either schizophrenia or
schizoaffective disorder. Based on the appellant’s “adamant” statements “that he d[id]n’t want
to harm anyone,” she “assessed [him] as not an acute imminent risk to [him]self or others.” The
psychiatrist diagnosed him with PTSD and “[u]nspecified psychosis,” prescribed medications,
and recommended increased outpatient follow-up.
During that time period, the appellant was dating Emily Szabo, a Richmond resident. He
located housing and had several jobs, but he either quit or was fired from each of the jobs. Emily
ended her romantic relationship with the appellant in early 2016, but she and her parents allowed
him to live with them temporarily so that he would not be homeless. They described the
appellant as “exhausted” and “drifting.”
In March 2016, Emily’s mother encouraged the appellant to go to the VA because he
“didn’t seem to be making progress” and in fact exhibited “a slide in his functioning.” He also
had informed her that he did not always take his necessary medication because “he didn’t like
how it made him feel.”
Shortly thereafter, on March 29, the appellant returned to the VA for the first time in
more than five months. He reported that he had “tried” the antipsychotic medication prescribed
for him the previous September “but it was too sedating.” He further stated that he did not
contact his VA psychiatrist, despite her previous recommendation for “increased follow-up,”
-4-
because he was “trying to take care of everything on his own.” The psychiatrist noted that the
appellant’s “[i]mpaired reality testing and suspicions about a larger conspiracy . . . necessitate[d]
a . . . diagnosis of unspecific psychosis,” and she prescribed a new antipsychotic medication.
She opined, however, that he had “fair judgment, good insight,” and “intact impulse control.”
She also noted that she did not detect any “suicidal or homicidal ideation.”
The appellant reported increased difficulty with nightmares on the new medication. On
April 1, his third day taking the medicine, he went to a restaurant with Emily and her mother.
The appellant thought that others in the restaurant were sending him coded messages, could hear
his thoughts, and intended to hurt him or his companions, and he said he “felt violent.”5
Later that evening, the appellant’s anger seemed to have subsided, but he was described
as being “not fully there.” Later still, he received a message that his grandmother had died. For
several hours, he exhibited a variety of emotions and erratic behaviors. Then, sometime in the
early hours of April 2, without warning, he ran into Emily’s father’s bedroom, where he choked
and stabbed Mr. Szabo, killing him. The appellant later told his psychiatrist that he felt that he
was “back in Afghanistan” on a “government mission” requiring him to kill the man. All
witnesses said that the killing was not preceded by any sort of confrontation between the
appellant and the victim.
II. The Appellant’s Post-Killing Treatment and Assessments
In April 2016, between the time of the appellant’s arrest and his sanity evaluation, a
physician at the jail where he was incarcerated observed that he was aggressive and
unpredictable and reported “hearing voices” and “feel[ing] paranoid.” The doctor also indicated
that the appellant had not been taking his medications regularly and “could not give any reason
5
The appellant’s psychiatrist later characterized those symptoms as paranoia and
hypervigilance.
-5-
for skipping” them. In early 2017, as noted, he was found not guilty by reason of insanity and
committed to Central State Hospital.
In December 2019, before the circuit court approved the appellant’s move from Central
State Hospital to Gateway Homes, Dr. Helen Greenbacker, a licensed clinical psychologist,
prepared a risk analysis report. Dr. Greenbacker recommended that discharging the appellant to
a “structured group home setting” would permit continued monitoring of his stability in a “less
restrictive environment.” She noted that the appellant could reside in Gateway’s supported
living center with “24 hour services, including medication administration and monitoring.”
Greenbacker recommended “ongoing medication management,” “monitoring [for] . . . changes in
mental status,” and limiting “unstructured time” to reduce the risk that the appellant would return
to substance abuse and criminal behavior.
In a subsequent review in October 2020, the facility’s treatment plan for the appellant
included frequent psychiatric monitoring, ongoing substance abuse screening, and therapy. It
also provided that his daily mental health medications would continue to be dispensed by
Gateway staff. Dennis Petrocelli, a staff psychiatrist, testified that the appellant was on two
different medications—an antipsychotic and an antidepressant. Dr. Petrocelli explained that he
could not predict when the appellant would “decompensat[e]” if he stopped taking those
medications but that it could happen in a matter of weeks.
III. The Appellant’s Evidence at the January 2022 Conditional Release Review Hearing
At the January 2022 hearing, the appellant called four witnesses who had worked with
him in their capacities as employees of Gateway Homes.6 All opined that the appellant was
ready to live “independently” in the community rather than at Gateway. Additionally, his case
6
The appellant also submitted letters attesting to his character.
-6-
manager stated that all team members who worked with the appellant, including his psychiatrist,
had “no problem” with his living independently. The psychiatrist, however, did not testify.
The testimony established that the appellant took his medication without complaint when
dispensed and complied with all other conditions imposed upon him by the court’s conditional
release order and Gateway Homes. The evidence further indicated that if the appellant was
permitted to live in the community, he could receive ongoing support services through Gateway
or the VA. The two social workers who testified, however, admitted that they could not
guarantee the appellant would be successful and not stop his mental health treatment if allowed
to live on his own. Further, the testimony established that if he had a mental health crisis while
living at Gateway, the monitoring and supervision there would increase the odds of identifying
and treating the crisis promptly.
The appellant testified in his own behalf and noted his commitment to comply with the
court’s orders, just as he had done during his recent trip to visit family. He explained that he had
“been in college most times” during the previous year. He said that living independently would
permit him to attend college on a full-time basis more easily and study in a quiet location without
the disruptions of a group home. The appellant insisted that he had no interest in stopping his
psychotropic medications and that if he thought they were not working properly, he would seek
help at Gateway or the VA.
IV. The Parties’ Arguments and the Circuit Court’s Ruling
The RBHA report and counsel for the appellant noted his full compliance with the
conditional release plan, his participation in online college courses, and his repeated negative
drug and alcohol screens. The report further pointed to the appellant’s recent success on a
court-approved trip to Georgia. It recommended, in keeping with his wishes, that he be
permitted to move to an apartment in the community and “live[] independently.”
-7-
The prosecutor argued that compliance was easier to maintain while the appellant was
“under intense supervision and monitoring” and that the court’s main concern should be public
safety. She emphasized that no psychiatrist had provided a current evaluation of the appellant’s
mental health. The prosecutor further noted that while five years had elapsed since the
appellant’s crime, he had been at Gateway, under a lower level of supervision, for only about
thirteen months. She additionally pointed out that the appellant had not been medication
compliant prior to killing the victim. The prosecutor emphasized that when the appellant met
with one of his doctors only a few days before the killing, he denied “suicidal” or “homicidal
ideations,” and the doctor opined that he had “good insight,” “fair judgment,” and intact
“impulse control.” As a result of all these things, the prosecutor asked the court to keep the
existing conditional release plan in place at that time.
The court stated that although it was “not discounting anything [it had] heard from any of
the witnesses,” including the appellant, it was “mindful” of the “unprovoked” killing he
committed. It mentioned the concern that the appellant could reoffend and that it had to consider
“community safety.” The court declined the request to modify the plan but said it would review
the plan again in six months. It entered an order embodying its ruling on February 24, 2022, and
the appellant noted an appeal of that order, which is now before this Court.
ANALYSIS
The appellant suggests that the circuit court erred by failing to modify his conditional
release plan to allow him to live independently.7
7
The appellant originally also challenged the court’s condition that he had to receive all
treatment at Gateway and be accompanied by staff if leaving the premises for any reason. The
parties represent that in circuit court proceedings subsequent to the one at issue here, the court
entered an agreed order permitting the appellant to obtain treatment at the VA and to leave
Gateway without an escort. We recognize the parties’ diligence in bringing the issue to the
Court’s attention. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997) (“It
is the duty of counsel to bring to the federal tribunal’s attention, ‘without delay,’ facts that may
-8-
I. Standard of Review
The language of the applicable statutes, the existing case law interpreting them, and
analogous legal principles provide the governing standard of review for appeals involving the
treatment of a defendant acquitted based on a plea of not guilty by reason of insanity.
Proceedings under Code §§ 19.2-182.2 to -182.16, the statutory scheme for addressing
the disposition of persons acquitted by reason of insanity, are civil proceedings. See, e.g., Code
§ 19.2-182.3. The text of the statutory scheme expressly grants discretion to the circuit courts
applying it. Code § 19.2-182.7 indicates that the court “shall subject a conditionally released
acquittee to such orders and conditions it deems will” balance certain enumerated interests.
Code § 19.2-182.7 (emphasis added). Similarly, Code § 19.2-182.11(A) provides that “[t]he
committing court may modify . . . or remove conditions placed on release.” Subsection (B)
directs that “the court may issue a proposed order for modification or removal of conditions”
“[a]s it deems appropriate based on” the evidence. Code § 19.2-182.11 (emphasis added). This
language makes clear that the reviewing circuit court has discretion regarding the way in which it
applies the statutory scheme. See Sauder v. Ferguson, 289 Va. 449, 457 (2015) (“Unless it is
manifest that the purpose of the legislature was to use the word ‘may’ in the sense of ‘shall’ or
‘must,’ then ‘may’ should be given its ordinary meaning—permission, importing discretion.”
(quoting Masters v. Hart, 189 Va. 969, 979 (1949))); cf. Murry v. Commonwealth, 288 Va. 117,
122 (2014) (applying an abuse-of-discretion standard to the review of sentencing decisions,
raise a question of mootness.” (quoting Bd. of License Comm’rs v. Pastore, 469 U.S. 238, 240
(1985) (per curiam))). See generally Palmer v. Commonwealth, 74 Va. App. 336, 338 (2022)
(discussing mootness doctrine). Consequently, in light of the posture of the case, the appellant
has withdrawn his appeal of these issues, and we do not address them. See Logan v.
Commonwealth, 47 Va. App. 168, 172 & n.4 (2005) (en banc) (recognizing that an appellate
court can accept “an express withdrawal of an appellate challenge to a trial court judgment,” or
to a portion of it, “as a basis for not deciding [an issue]”), cited with approval in Butcher v.
Commonwealth, 298 Va. 392, 395 (2020) (plurality opinion).
-9-
including conditions of probation). The General Assembly’s use of “‘[m]ay’ presupposes that
[the body granted discretion] also ‘may not.’” Wal-Mart Stores E., LP v. State Corp. Comm’n,
299 Va. 57, 70 (2020), quoted with approval in Berry v. Bd. of Supers., ___ Va. ___, ___ (Mar.
23, 2023). Consequently, an abuse-of-discretion standard governs the circuit court’s ultimate
determination regarding the appropriate conditions for release and their further review under the
statutory scheme, subject to additional principles regarding review of a court’s discretionary
rulings.
Of course, if the circuit court committed an error of law in interpreting a statute, that error
itself constitutes an abuse of discretion. See Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465,
484 (2008) (citing Porter v. Commonwealth, 276 Va. 203, 260 (2008)). Appellate review,
therefore, involves applying a de novo standard to the extent that the appellate court must assess
the circuit court’s construction of the applicable statutes for legal error. See Bates v.
Commonwealth, 287 Va. 58, 61, 63, 65 (2014) (applying a de novo standard to review “whether
the circuit court properly applied” the statutes addressing inpatient hospitalization and
conditional release “to [the court’s] findings of fact”); see also Lawlor v. Commonwealth, 285
Va. 187, 214 n.5 (2013) (providing that requiring de novo review of legal conclusions is not “a
back door through which an appellant may convert” an abuse-of-discretion standard “into [full]
de novo review”).
A court also abuses its discretion when “a relevant factor that should have been given
significant weight is not considered; when an irrelevant or improper factor is considered and
given significant weight; [or] when all proper factors, and no improper ones, are considered, but
the court, in weighing those factors, commits a clear error of judgment.” Murry, 288 Va. at 122
(alteration in original) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va.
346, 352 (2011)). As to these types of determinations, a court abuses its discretion “[o]nly when
- 10 -
reasonable jurists could not differ” as to the appropriate outcome. Williams v. Commonwealth,
59 Va. App. 238, 246 (2011) (quoting Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006)).
“This principle necessarily implies that, for some decisions, conscientious jurists could reach
different conclusions based on exactly the same facts—yet still remain entirely reasonable.”
Thomas v. Commonwealth, 62 Va. App. 104, 111 (2013) (quoting Hamad v. Hamad, 61
Va. App. 593, 607 (2013)). “This bell-shaped curve of reasonability governing our appellate
review rests on the venerable belief that the judge closest to the contest is the judge best able to
discern where the equities lie.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016)
(quoting Sauder, 289 Va. at 459).
Finally, the circuit court’s factual findings are entitled to the traditional degree of
appellate deference under an abuse-of-discretion standard. C.S. v. Va. Beach Dep’t of Soc.
Servs., 41 Va. App. 557, 566 (2003); see Mercer v. Commonwealth, 259 Va. 235, 240-43 (2000)
(in reviewing whether an individual found NGRI qualified for conditional release, recognizing
that whether her disorders were mental illnesses was a factual determination for the circuit
court). And it is understood that the circuit court, as the fact finder, “assess[es] the credibility of
the witnesses and the probative value to be given their testimony.” Mercer, 259 Va. at 242(quoting Richardson v. Richardson, 242 Va. 242, 246 (1991)). That court’s factual
determinations, “like those of a jury, are binding on” the appellate court and will be reversed
“‘only if they are plainly wrong or without evidence to support them.’” Id. at 243 (quoting
Richardson, 242 Va. at 246).
It is in light of these various principles that we review the appellant’s assignment of error.
B. Specific Terms of Conditional Release
The appellant contends that the circuit court erred by failing to allow him to live
independently rather than at Gateway Homes following his acquittal of first-degree murder on a
- 11 -
defense of not guilty by reason of insanity. In order to address the appellant’s claim, we turn to
examining the more specific legal framework in light of the applicable standard of review.
A finding of not guilty by reason of insanity “excuse[s]” the accused individual “from
criminal responsibility for the [charged] act because [of] his mental condition at the time of the
offense.” Eastlack v. Commonwealth, 282 Va. 120, 124 (2011). An “insanity acquittee has not
been convicted of a criminal offense” and “may not be punished.” Williams v. Commonwealth,
18 Va. App. 384, 388 (1994) (citing Jones v. United States, 463 U.S. 354, 369 (1983)).
Nonetheless, such an acquittal does not render the acquittee “free to resume his life in the
community as he would be if he had been acquitted in the usual sense.” Eastlack, 282 Va. at
124. Instead, he must be placed in the “temporary custody of the Commissioner [of Behavioral
Health and Developmental Services] for evaluation by skilled professionals.” Id. at 123-24. The
“purpose of commitment following an insanity acquittal . . . is to treat the individual’s mental
illness and protect him and society from his potential dangerousness.” Williams, 18 Va. App. at
388 (quoting Jones, 463 U.S. at 368). Consequently, due process “requires that the nature and
duration of [the] commitment” must be reasonable in “relation to [its] purpose.” Id. (quoting
Jones, 463 U.S. at 368). Code §§ 19.2-182.2 to -182.16 delineate the mechanism by which
Virginia’s courts provide this due process with regard to commitment for evaluation and
treatment, as well as with regard to conditional or unconditional release.8
8
As noted, the statutory scheme is civil. See, e.g., Code § 19.2-182.3. See generally
Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015) (recognizing that the preponderance
standard applies to civil statutory actions unless otherwise provided); see also Jones, 463 U.S. at
368 (“The preponderance of the evidence standard comports with due process for commitment of
insanity acquittees.”).
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Code § 19.2-182.7 divides a circuit court’s duties into two parts. First, the court must
determine whether inpatient hospitalization is necessary. Code § 19.2-182.7.9 Here, the court
determined on prior review, after almost four years of inpatient hospitalization, that conditional
release of the appellant was appropriate. In the instant proceeding, both below and in this Court,
neither party disputes that conditional release rather than inpatient hospitalization remains
appropriate.
Second, if inpatient hospitalization is not required, the circuit court must determine what
conditions should be imposed.10 Id. Code § 19.2-182.7 directs that the circuit court “shall”
impose “such orders and conditions” as “it deems will best meet the acquittee’s need for
treatment and supervision and best serve the interests of justice and society.” Id. (emphases
added); see Bates, 287 Va. at 66-67. In other words, the court must balance these two interests to
provide appropriate treatment and supervision while both serving justice and protecting society.
Once the court has set the terms for the acquittee’s conditional release, the community services
board or behavioral health authority, here the RBHA, “shall implement the court’s conditional
release orders.” Code § 19.2-182.7. It must also “submit written reports to the court on the
acquittee’s progress and adjustment in the community” at least every six months. Id.
Code § 19.2-182.11(A) provides that after setting the initial conditions of release, the
“committing court may modify . . . or remove conditions placed on release” under the same
9
If a felony acquittee is committed for inpatient treatment, an initial hearing must be held
twelve months after the date of commitment, and then a reassessment hearing “shall be
conducted at yearly intervals for five years and at biennial intervals thereafter.” Code
§ 19.2-182.5(A).
10
Release can be “with or without conditions.” Williams v. Commonwealth, 294 Va. 25,
26 (2017) (per curiam) (quoting Code § 19.2-182.2); see Code §§ 19.2-182.2 to -182.3 (noting
the options and the related need for an appropriate “conditional release or discharge plan”
approved by the court). The appellant requested only the modification of his conditional release
plan to permit independent living. He does not suggest that he should be relieved of other
conditions.
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terms set out in Code § 19.2-182.7. Additionally, any party—including the supervising
behavioral health authority, the attorney for the Commonwealth, or the acquittee—may petition
for modification. Code § 19.2-182.11(A).11 And in deciding whether to modify or remove
conditions, the court may consider the behavioral health authority’s reports and “any other
evidence provided to it.” Code § 19.2-187.11(A)-(B).
The appellant argues that the court erred by refusing to modify his conditional release
plan because the RBHA and Gateway Homes presented evidence that he could live
independently and the Commonwealth offered no evidence to the contrary, simply relying on the
record and the evidence presented by the acquittee. More specifically, he contends that the court
abused its discretion by giving “too much weight to the underlying offense.” He also suggests
that it erred by finding that public safety outweighed his evidence for modification in light of the
Commonwealth’s failure to introduce any new evidence that modifying the plan would pose a
threat to public safety.12
The duty to conduct the statutorily required balancing “rest[s] heavily on [the] judge[]
closest to the facts of the case—[the one] hearing and seeing the witnesses, taking into account
their verbal and nonverbal communication, and placing all of it in the context of the entire case.”
See Minh Duy Du, 292 Va. at 563. Here, the circuit court was not limited to the testimony of the
appellant and his witnesses. The court was statutorily required to determine whether the
appellant needed inpatient hospitalization, as well as to conduct periodic review of that
The court may also modify or remove conditions “upon its own motion.” Code
11
§ 19.2-182.11(A).
12
The appellant has not characterized his claim, in either the circuit court or this Court, as
one that the circuit court misallocated the burden of proof. See generally Muhammad v.
Commonwealth, 269 Va. 451, 523 (2005) (recognizing that a claim that the circuit court
erroneously failed to apply a particular burden of proof is waivable under the contemporaneous
objection rule); Shenk v. Shenk, 39 Va. App. 161, 169 (2002) (same). Therefore, we do not
consider that question.
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hospitalization and his subsequent conditional release, and the RBHA was mandated to provide
scheduled progress reports. See Code §§ 19.2-182.2 to -182.3, -182.5, -182.7, -182.11. All of
these reports—including their coverage of the circumstances surrounding the underlying offense
and the appellant’s mental health during all relevant time periods, including before, during, and
after the offense—necessarily make up the record in this case.13
The transcript of the hearing makes clear that the circuit court carefully considered the
evidence before it. The court stated that it did not “discount[] anything” it heard “from any of
the witnesses,” including the appellant. Nevertheless, it further noted that the appellant had
committed an “unprovoked” killing and it was compelled to consider “community safety.” The
court also expressed concern that the appellant could reoffend. The evidence in the entire record,
viewed under the proper standard, supports the court’s specific factual findings.
In addition, the evidence as a whole supports the conclusion that the court did not abuse
its discretion by refusing to alter the terms of the appellant’s conditional release to allow him to
live independently at that time. Dr. Greenbacker—the licensed clinical psychologist who
examined the appellant before his conditional release to Gateway Homes—noted that his
“psychiatric instability” had “significantly contribute[d] to” his criminal behavior. Supporting
this causal connection was evidence of the appellant’s criminal charges in Georgia, during which
he became violent, as well as the killing in Virginia that led to his being found not guilty by
reason of insanity. Dr. Greenbacker therefore opined that reducing the appellant’s risk of
reoffending required both the ongoing management of his prescription mental health medications
and monitoring to detect changes in his mental status. During that period of time, the appellant
13
The appellant did not challenge the circuit court’s consideration of any of these reports
below and also does not allege on appeal that the court’s consideration of them was error.
Instead, he argues that the circuit court “gave too much weight to the underlying offense” as
compared to the most recent RBHA report and the related testimony from his witnesses.
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was taking medications to control his delusions, paranoia, aggression, depression, anxiety, and
PTSD. Dr. Greenbacker further concluded that he “should not be permitted to have large
amounts of unstructured time” because this could lead to a return of his substance abuse
problems and make it harder to detect dangerous changes in his mental health.
At the time of the hearing in January 2022, the appellant had been on conditional release
and living fulltime at Gateway Homes for only about thirteen months. He had fully complied
with the terms of his conditional release to Gateway, including taking his medications as directed
when dispensed by facility staff. The appellant had also complied with a court order on a visit
with family in another state for a period of two weeks, during which he was required to call
Gateway daily to report that he had taken his medications. Further, the appellant stated an
intention to continue taking his medications regularly if allowed to live independently and
described the symptoms he would experience if they stopped working properly. Nonetheless,
two social workers from Gateway who testified that they supported the appellant’s desire to live
independently in the community admitted they could not guarantee he would not stop his
medications, as he had done in the past. Additionally, the evidence proved that if he had mental
health issues while still residing at Gateway, the degree of supervision would increase the odds
of identifying and treating the issues promptly. By contrast, if the appellant had mental health
problems while living in the community, he would have to seek assistance for himself,
something he had been reluctant to do in the past. And staff psychiatrist Dennis Petrocelli
testified at a prior review hearing in 2020 that he could not predict when the appellant would
“decompensat[e]” if he stopped taking his medication. Finally, despite the appellant’s stated
intention to keep taking his medications, the evidence established that he had not been
medication compliant at various times both before and after killing the victim because he did not
like how the medication made him feel. It also established that he denied any homicidal ideation
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just days before he killed Mr. Szabo. This evidence showed just how difficult it was to monitor
the appellant’s mental health when his medication was not dispensed to him by others.
In sum, the court was required to determine, after weighing all of the evidence, what “it
deem[ed would] best meet the acquittee’s need for treatment and supervision and best serve the
interests of justice and society.” Code § 19.2-182.7. Based on the evidence in the record, the
appellant had not previously been medication compliant because he did not like how it made him
feel. A psychiatrist who prescribed antipsychotics for him had been unable to accurately
determine whether he posed a significant threat to others at that time, as shown by his act of
killing a man in an entirely unprovoked attack just three days later. This inability to accurately
assess the appellant’s condition resulted in his taking a life, not simply engaging in a mere
property crime and disorderly conduct, like some of the earlier offenses he committed in 2015.
On these facts, the court did not abuse its discretion in concluding that requiring the appellant to
continue residing at Gateway Homes rather than allowing him to live independently best
balanced both “the acquittee’s need for treatment and supervision” and “the interests of justice
and society.” See id.; cf. Bates, 287 Va. at 61, 63, 65 (in reviewing the court’s application of
Code §§ 19.2-182.3 and -182.7, deferring to its findings of fact, including its evaluation of risk
posed by unconditional release).
At Gateway, the appellant’s medication was dispensed by staff, and his mental health
could be monitored on a daily basis. By contrast, if he lived independently, he would have to
manage his medication and mental health himself on a day-to-day basis. The court alluded to the
provision in Code § 19.2-182.7 requiring the RBHA to submit a written report on the appellant’s
progress at least every six months. It indicated that it would be “happy to review the plan” again
following that interval, “see [if the appellant] ha[d] continued to comply,” and if so,
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“consider . . . any request to . . . modify” then.14 The court simply concluded that it was “not
persuaded” that modification was appropriate “at th[at] time.” In light of the conflicting
evidence in the record, including the evidence regarding the appellant’s mental health history and
the circumstances surrounding the killing, the circuit court did not err by reaching that
conclusion.
CONCLUSION
We hold that the circuit court did not abuse its discretion by refusing to modify the
appellant’s conditional release plan to permit him to live independently. Accordingly, we affirm
the circuit court’s judgment.
Affirmed.
14
The statutory scheme requires the board or authority overseeing an acquittee’s
conditional release to provide a written report on his progress “no less frequently than every six
months.” Code § 19.2-182.7. However, the acquittee himself may petition for modification only
once per year. Code § 19.2-182.11(A). In the instant appeal, a modification recommendation
was made by the RBHA. The record does not contain a petition filed by the appellant but
reflects that he “ask[ed] the [circuit c]ourt to go along with” the RBHA’s recommendation.
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