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Hawkes v. State

Court of Appeals of Maryland

July 22, 2013

BENJAMIN MORGAN HAWKES
v.
STATE OF MARYLAND

Bell, C.J., [*]Harrell, Battaglia, Greene, Adkins, Barbera, McDonald, JJ.

OPINION

Battaglia, J.

Section 3-114 of the Criminal Procedure Article of the Maryland Code (2001, 2008 Repl. Vol.), [1] governing the eligibility for discharge or conditional release of patients committed to the Department of Health and Mental Hygiene (DHMH), pursuant to Section 3-112 of the Criminal Procedure Article, [2] is the focus of the present case. At issue is subsection (c) of Section 3-114, which states that, "[a] committed person is eligible for conditional release from commitment only if that person would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others if released from confinement with conditions imposed by the court." What constitutes "a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others" is one aspect of our analysis, while another is whether an individual's eligibility for conditional release must take into account conditions designed to address such risk. The specific question presented in the Petition for Certiorari, which we granted, 429 Md. 81, 54 A.3d 759 (2012), calls upon us to answer:

Whether the statutory right to conditional release under Section 3-114(c) of the Maryland Code of Criminal Procedure requires a showing that the committed individual would not pose a risk of danger to self or the person or property of others without regard to the conditions designed to address such risk.

We shall hold that in a conditional release setting under Section 3-114(c), the determination of whether a patient poses a danger to himself or others must take into account proposed conditions of release.

Benjamin M. Hawkes, Petitioner, a patient at Clifton T. Perkins Hospital Center (Perkins), [3] pled and was found not criminally responsible, [4] for the murder of two people, on September 4, 2001. Following the determination that Mr. Hawkes was not criminally responsible by reason of a mental disorder, he was committed to Perkins, pursuant to Section 3-112 of the Criminal Procedure Article.[5] After spending approximately seven years as a patient at Perkins, Mr. Hawkes applied for conditional release in March of 2009, pursuant to Section 3-119(b) of the Criminal Procedure Article of the Maryland Code, "request[ing] a determination of his eligibility for conditional release or discharge."[6]

A hearing was convened before an administrative law judge at which the issue was whether or not Mr. Hawkes could be released from the confines of Perkins in order to pursue educational opportunities and eventual reintegration into society without oversight by DHMH. Witnesses called included Ana Cervantes, M.D., the psychiatrist treating Mr. Hawkes at Perkins and Joanna Brandt, M.D., who, as experts called by Hawkes, testified regarding the issue of dangerousness. Dr. Cervantes opined that Mr. Hawkes "would not be a danger if released with the conditions proposed in our conditional release." Dr. Brandt concurred with this opinion, stating "[m]y opinion, to a reasonable degree of medical certainty was that Benjamin Hawkes would be at low risk for future dangerousness – as a result of a mental disorder – if released from confinement with the proposed plan and conditions."

Dr. Cervantes based her opinion on her experience treating Mr. Hawkes as well as a review of a Clinical/Forensic Review Board Case Report proposing conditions of release, [7]dated February 10, 2009, and three Psychology Risk Assessments (dated January 15, 2004, December 12, 2007, and February 19, 2009).[8] The 2004 Risk Assessment placed Mr.

Hawkes in the moderate "range"[9] for risk of future violence, based upon two actuarial instruments, the Violent Risk Appraisal Guide (VRAG) and the Historical/Clinical Risk Management 20-item scale (HCR-20), that "combine a number of risk factors in order to achieve an overall 'score' that ranks levels of risk." Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World, 24 Cardozo Law Review 1845, 1872 (2003).[10] The notations in the 2007 and 2009 Reports indicate that "Mr. Hawkes' current risk would be considered to be low."

Dr. Brandt based her opinion on the Case Report and Psychology Risk Assessments, as well as an interview she conducted with Mr. Hawkes prior to the hearing. Both doctors noted, however, that their opinions that Mr. Hawkes was not a danger to himself or others, were based on the conditions proposed by the February 10, 2009 Clinical/Forensic Review Board Case Report:

1. If discharged to the community, Mr. Hawkes will need a moderately structured treatment program. He should be monitored for medication compliance, be required to continue his substance abuse treatment including AA/NA groups and submit to random toxicology screening. He should also continue receiving individual psychotherapy, and continued participation in stress/anger management and coping skills groups. Additionally, it is recommended that Mr. Hawkes' mental status be regularly monitored and addressed, and more specifically, suicidal/homicidal thoughts or ideations.
2. Immediately and for a substantial period of time following his release, Mr. Hawkes should be supervised in a residential housing facility that has a 24-hour staff presence.
3. Mr. Hawkes may benefit from additional resources, including a mentor, vocational assessment, counseling and placement services.

The Report also detailed a plan for discharge that included specific facilities and groups in which Mr. Hawkes would be required to participate that would satisfy the recommended conditions:

Plan for discharge: Mr. Hawkes has been accepted for residential rehabilitation programming at Alliance, Inc. in Baltimore County. He will be placed in an intensive-level MISA (Mental Illness Substance Abuse) bed in a townhouse with 2 other roommates. A staff office is located in the townhouse. Staff is available 24 hours a day, seven days per week and he will see staff frequently throughout the day. Initially, he will not have privileges to engage in community activities independently. He will be monitored and assessed during this time of transition and will be granted privileges based on his adjustment and clinical status. His medications will be kept in a locked box and he will be monitored administering his own medication. Compliance/non-compliance will be documented by the Alliance staff. He will go [to] the Alliance, Inc. Psychiatric Rehabilitation Program five days per week, three days of which he will participate in structured MISA programming, two of the days he will participate in consumer-led dual-diagnosis groups at the Alliance program. He will be required to attend AA/NA at least 5 days per week. He will be assigned a case manager and a residential counselor. Mr. Hawkes will be seen for outpatient mental health treatment at Keypoint, Inc., where a psychiatrist will see him monthly and a therapist weekly.

Stephen Siebert, M.D., an expert called by the State, testified that, in his opinion, "Mr. Hawkes would be a danger to himself or the person or property of others if released from confinement at this time with the proposed conditions of release that I was provided." Dr. Siebert based this opinion on his evaluation of the Case Report and Risk Assessments, as well as an interview he conducted with Mr. Hawkes prior to the hearing. He testified to the need for additional observation of Hawkes and the successful completion of another semester at Howard County Community College:

under the conditions that I proposed and also that would include my testimony that there would be an additional period of observation with unsupervised privileges and successful completion of at least one semester at Howard County Community College, if all of those things happen, and all of the criticisms that I've made in the plan were changed, then I would likely have a different opinion . . . .

After considering the testimony of the witnesses and the documents detailing Mr. Hawkes's progression through treatment at Perkins, [11] the administrative law judge issued a twenty page Report on Release Eligibility, in which he made the following findings of fact:

1. On December 4, 2001, the Court committed the Patient to the Department after a verdict of [Not Criminally Responsible] to two counts of the charge of First Degree Murder.
2. The Patient has a significant legal history including four prior arrests in November 1994, February 1995, March 1995, and January 1996 for drug, disorderly conduct and battery/assault related charges. He also has a history of non-compliance with the terms of probation.
3. The Patient has a long psychiatric history beginning at the age of twelve and was an inpatient at Springfield Hospital Center (Springfield) beginning on January 1, 2000 after he had been delusional, irrational, angry, and making threats to his parents. He was diagnosed with Schizoaffective Disorder, bipolar type, Post Traumatic Stress Disorder, and Polysubstance Dependence.
4. After two months of hospitalization, the Patient stabilized and on February 23, 2000 was discharged to the STARR program.
5. On July 28, 2000, he was discharged from that program due to alcohol use and was given a thirty day supply of medication and was referred to the Howard County Health Department. The Patient failed to follow up with treatment, however.
6. The Patient continued to use drugs and alcohol and, over the next six months, there were additional episodes of violent and threatening behavior by the Patient. He stopped taking all medication and treatment and gradually decompensated to the point where he could not hold a job or maintain any interpersonal relationships.
7. Just prior to February 10, 2001, the Patient began having panic attacks and left home to stay with a friend. He smoked marijuana and used alcohol and was extremely paranoid and experiencing auditory hallucinations. He eventually asked his family for help and on February 10, 2001, his father took him to Howard County General Hospital. The Patient was evaluated, but did not disclose his paranoia. He was given an anti-anxiety medication and after approximately one hour, he left without being admitted.
8. On February 11, 2001, the Patient was still experiencing auditory hallucinations and was still extremely paranoid. He went to his parents' house where he saw his sister, her friend, his mother and a boarder who was living at the house.
9. Once inside the house, the Patient obtained a knife and stabbed his mother twelve times then stabbed the boarder, who was in another room, thirteen times. He then obtained a sledge hammer and struck his mother in the area of the left eye several times fracturing her skull. After he did so, he took a piece of his mother's brain matter and ingested it. He proceeded to then strike the boarder in the face with the sledge hammer several times. Both the boarder and the Patient's mother were killed in the attacks. The Patient's sister and her friend were not attacked by the Patient.
10. The Patient was arrested and charged immediately. He was taken to Howard County General and was evaluated and transferred to Perkins on February 12, 2001.
11. At Perkins, he was evaluated further and disclosed that he perceived hatred from his mother and that she and the other victim were involved in a conspiracy against him. He believed that his mother had supernatural powers and described her as a witch. He believed that he killed both victims for the good of the country and believed that he was in the right by doing so.
12. For the next several months, his judgment and insight were extremely poor and he was experiencing auditory and visual hallucinations. He tried to attack a staff member and ranged from extreme paranoid ideation to profound depression and remorse. He began to show an awareness of the delusional nature of his thoughts, however, and began to respond to medication.
13. The Patient's psychiatric history includes such symptoms as depression, suicidality, paranoid delusions, visual and auditory hallucinations, ideas of reference, threats of violence toward others, sexually inappropriate behavior, racing thoughts, and panic attacks.
14. By 2002, the Patient was transferred to a residential ward and was exhibiting minimal psychotic symptoms. He was extremely guarded and showed symptoms of a social anxiety disorder. His diagnosis at that time included Schizophrenia, paranoid type; Major Depression, single episode in full remission, Cannabis and Alcohol Dependence and Hallucinogen Abuse.
15. He began psychotherapy in 2002 and was beginning to discuss the crime, expressing appropriate guilt and remorse. By May, he was approved for transfer to a medium security ward. He indicated that he was "in no hurry to leave" the hospital. He became involved in numerous treatment activities and showed increasingly improved insight but was having adjustment problems and experiencing episodes of regressive paranoia and suspiciousness.
16. He remained on medium security status in 2003 and continued with treatment activities but was still having intermittent behavioral and mood issues. He decompensated significantly during this time with worsening depression, a sense of entitlement, ...

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