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Greeno v. State11/28/2000
alth facility;
(3) The elapsed time between the hearing and the last reported unlawful or dangerous act;
(4) The nature of the person's proposed release plan;
(5) The presence or absence in the community of family or others willing to take responsibility to help the defendant adhere to the conditions of the release; and
(6) Whether the person has had previous conditional releases without incident.
The burden of persuasion for any person committed to a mental health facility under the provisions of this section upon acquittal on the grounds of mental disease or defect excluding responsibility shall be on the party seeking release to prove by clear and convincing evidence that the person for whom release is sought is not likely to be dangerous to others while on conditional release.
Section 552.040.14 provides that " o committed person shall be conditionally released until it is determined that the committed person is not likely to be dangerous to others while on conditional release." There is no requirement in the statute that a trial court must make a specific finding as to whether the committed person seeking release is suffering from a mental disease or defect prior to denying a conditional release. Mr. Greeno, however, relies on Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) and our decision in Styles v. State, 838 S.W.2d 10 (Mo. App. W.D. 1992)(hereinafter referred to as Styles I as support for his contention.)
Like the case at bar, Foucha involved an application for a conditional release. Foucha, 504 U.S. at 73, 112 S.Ct. at 1782. But unlike Mr. Greeno's case, all the parties in Foucha agreed that Terry Foucha was not mentally ill at the time of the hearing. Foucha, 504 U.S. at 74, 112 S.Ct. at 1782. The trial court denied the conditional release, and the Supreme Court of Louisiana affirmed this determination, based solely on the fact that Mr. Foucha was dangerous to himself and others. Foucha, 504 U.S. at 75, 112 S.Ct. at 1782-83. The Supreme Court of Louisiana affirmed the trial court decision on the basis that Mr. Foucha did not prove he was not dangerous. Foucha, 504 U.S. at 75, 112 S.Ct. at 1783. The United States Supreme Court granted certiorari and reversed the decision of the Louisiana Supreme Court. Foucha, 504 U.S. at 86, 112 S.Ct. at 1789. The Court found that if it is established that the insanity acquittee is not "mentally ill at the time of the trial court's hearing[,]...the basis for holding in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis." Foucha, 504 U.S. at 78, 112 S.Ct. at 1784. Thus, an insanity acquittee can remain committed only as long as his mental illness continues.
Styles I also involved an application for conditional release. 838 S.W.2d at 10. In the application, Styles alleged that he did not then and in the reasonable future was not likely to have a mental disease or defect rendering him dangerous to the safety of himself or to others. Id. At the hearing, Styles testified that he was not suffering from a mental disease or defect. Id. Styles' treating physician, Dr. Singh, testified that Styles was diagnosed as suffering from schizo-affective disorder which was in remission without medication, polysubstance abuse, paranoid personality disorder and antisocial personality disorder. Id. at 11. Dr. Singh was not questioned, however, as to whether Styles was suffering from a mental disease or defect at the time of the hearing. Id. The trial court denied conditional release on the basis that Mr. Styles presented a substantial likelihood of harm to others. Id.
On
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