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In re Savage

Decided: May 30, 1989.

IN THE MATTER OF ROY SAVAGE


On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County.

J. H. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

Roy Savage, currently under a 1985 death sentence for murder and assigned to Trenton State Prison's Capital Sentence Unit (CSU), see N.J.S.A. 2C:49-6, appeals from a judgment committing him to "the Department of Human Services" (DHS) and authorizing his treatment with anti-psychotic medication "as the physician deems medically appropriate." The judgment also authorized Savage's continued incarceration at CSU without a physical transfer to a DHS facility.

The material substantive and procedural facts are not in dispute. On June 30, 1988, the State applied to the Chancery Division for an order permitting it to treat Savage with anti-psychotic medication.*fn1 Judge Levy denied the application but ordered Savage to show cause why the State should be precluded

from administering the medication to him. On the original return date of the Order to Show Cause Judge Levy scheduled a plenary hearing. At the plenary hearing medical professionals testified on behalf of both parties. Savage also testified. Judge Levy found that Savage was mentally ill and actively psychotic, a fact conceded by Savage's psychiatrist. He also found that Savage was dangerous to himself and to others and, therefore, entered the judgment at issue.

The trial judge relied on N.J.S.A. 30:4-82 (repealed effective November 7, 1988 by L. 1987, c. 116, ยง 30) which authorized the Superior Court to direct the removal of a mentally ill inmate from a prison to "one of the institutions for the care and treatment of [the mentally ill] owned by this State. . . ." However, in lieu of an actual physical transfer to a hospital for the mentally ill, the court effected a constructive transfer to DHS pursuant to an agreement between DHS and the Department of Corrections (DOC) regarding treatment of CSU inmates. The agreement, a copy of which is made a part of this opinion as Appendix A, continues the inmate's physical custody in the CSU.

Appellant contends that the trial court improperly applied the dangerousness standard and that its finding that he is a danger to himself or others is not supported by clear and convincing evidence.

Appellant's mental illness is conceded. We assume without deciding that the State had the burden of establishing appellant's dangerousness by clear and convincing evidence rather than by a mere preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); Matter of Newsome, 176 N.J. Super. 511 (App.Div.1980). But cf. Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (person found not guilty by reason of insanity could be committed upon establishing mental illness and dangerousness by a preponderance of the evidence); In re A.L.U., 192 N.J. Super. 480 (App.Div.1984) (applied the preponderance

standard to a committee previously acquitted by reason of insanity), certif. den., 97 N.J. 589 (1984). We have carefully reviewed the record, and we conclude that the evidence supported the trial court's finding.

Dr. Parrish testified for the State. He had been a staff psychologist at Trenton State Prison for ten years, the last two years as Director of Psychology. Dr. Parrish had been observing Savage since August 1987, he had interviewed him on at least three occasions within two months of the plenary hearing and had reviewed other medical professionals' reports regarding Savage. Dr. Parrish testified that in his opinion there was a substantial risk that Savage would harm himself or others. He explained that in evaluating dangerousness, certain factors are considered, all of which were present in Savage's case. They are depression and helplessness; defective judgment; stress; little or no contact with supportive individuals such as family members; prior resort to violence; and withdrawal, i.e., a tendency not to communicate. Dr. Parrish testified, based on his assessment of inmates over the years, that these factors are "red flags" that indicate a high risk of assault, suicide or homicide.

Dr. Garcia, staff psychiatrist at Trenton State Prison for six years, also testified. He had examined Savage more than 20 times since August 1987. According to Dr. Garcia, Savage has a "severe paranoid disorder," with a poor prognosis, and will gradually deteriorate without medication. Dr. Garcia rated the risk of Savage being harmful to himself or to others as a "very serious, very high risk." Dr. Garcia also testified that without anti-psychotic medication, Savage would "get worse, and sooner or later, it's going to happen. He's going to hurt himself or another." Dr. Garcia characterized prior violence as an important predictor of violence, and he rated Savage's potential to commit a future act of violence as "[a] hundred percent, 95, 99 percent potential for violence."

Dr. Greenfield testified in Savage's behalf. Although he agreed that Savage was psychotic, he testified that "based on his overt actions . . . he is not dangerous to himself." With regard to Savage as a threat to others, Dr. Greenfield stated: "I don't believe he has the opportunity to be dangerous to others." Dr. Greenfield did believe that Savage would benefit from medication and would improve over a period of time.

The testimony of Drs. Parrish and Garcia, which was credited by the trial court, established a "substantial risk of dangerous conduct within the reasonably foreseeable future." State v. Krol, 68 N.J. 236, 260 (1975). Krol also recognized the probative value of past conduct on the issue of dangerousness:

Determination of dangerousness involves prediction of defendant's future conduct rather than mere characterization of his past conduct. Nonetheless, defendant's past conduct is important evidence as to his probable future conduct. . . . [ Id. at 260-261].

Defendant's past conduct includes the homicide which resulted in his death sentence.*fn2 Accord State v. Fields, 77 N.J. 282, 308-309 (1978).

The trial judge's findings and conclusions are supported by substantial credible evidence in the record, Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and we perceive no violation of any applicable legal standard. State v. Krol,

supra; N.J.S.A. 30:4-27.2(i);*fn3 R. 4:74-7(f). Thus, Savage was commitable and subject to transfer under N.J.S.A. 30:4-82 from a correctional institution to an institution for the care and treatment of the mentally ill. Moreover, the trial judge scrupulously respected Savage's Fourteenth Amendment due process rights. See Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980).

As previously indicated, Judge Levy committed Savage to DHS' care, but he ordered that "no actual physical transfer of inmate Savage to a [DHS] facility shall take place." Thus, Judge Levy effected a constructive transfer to DHS consistent with the agreement between DHS and DOC regarding CSU inmates in need of psychiatric care. N.J.S.A. 30:4-82.1 et seq. authorizes such agreements. The agreement and the constructive transfer implied therein and utilized in this case harmonize CSU security needs, see N.J.S.A. 2C:49-6 and N.J.A.C. 10A:5-4.1 et seq., with the inmate's treatment requirements. Consequently, we find no merit to Savage's contention that he must be physically transferred "to a mental hospital for psychiatric treatment." The record does not support a finding of undue prejudice to Savage flowing from his continuing status as a CSU inmate, or prejudice which would outweigh the State's security interest as expressed in N.J.S.A. 2C:49-6.

Savage also contends that "the DOC/DHS agreement provides neither the full procedural and substantive due process protections to which persons are entitled prior to commitment to a mental institution. . . ." The contention is meritless. Savage ...


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