Barnett v. State

Kevin BARNETT v. STATE of Arkansas

96-1501                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 28, 1997


Appeal & error -- appellant's new diagnosis still classified as 
     mental disease or defect -- probate court's findings and order
     granting State's motion for conditional release affirmed. --
     Appellant's argument that the probate court should discharge
     him from any further treatment, since his diagnosis had
     changed, was without merit; the probate court found by clear
     and convincing evidence that appellant had recovered from his
     mental disease or defect to such an extent that his
     conditional release would be in the best interest of both the
     State and appellant; the probate court did not err in
     proceeding under Ark. Code Ann.  5-2-314 and -315 because
     appellant was suffering from a psychological mental disease or
     defect, borderline intellectual functioning; the probate
     court's findings were clearly supported by the evidence, and
     its order granting the State's motion for appellant's
     conditional release was affirmed.


     Appeal from Pulaski Probate Court; Mary Spencer McGowan,
Probate Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  Russell Byrne,
Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     In 1992, appellant Kevin Barnett was charged with breaking or
entering, theft, and a class A misdemeanor.  After being evaluated
and diagnosed as suffering from schizophrenia, the State agreed
that it would be in the best interest of justice that Barnett be
acquitted.  In accordance with Sections 3 and 4 of Act 911 of 1989
[now Ark. Code Ann.  5-2-314 and -315 (Supp. 1995)], Barnett was
committed to the care and custody of the Director of Human Services
for treatment and evaluation.  Barnett's case was also transferred
to the Probate Court of the Sixth Judicial District for future
hearings.  See Ark. Code Ann.  16-13-1003 (Supp. 1995).  In August
of 1992, Barnett was found still affected by mental disease or
defect, but not a present risk of harm to himself or to the person
and property of others.  As a consequence, the probate judge
entered an order conditionally releasing Barnett to the custody of
the North Arkansas Human Services System for further treatment for
a period of five years.  See Ark. Code Ann.  5-2-316(b) (Repl.
1993).
     During his period of treatment with the North Arkansas Human
Services System, Barnett incurred charges of disorderly conduct,
loitering, and aggravated assault, which prompted the State, on
April 23, 1993, to move for the revocation of his earlier
conditional release.  On April 30, 1993, the probate court granted
the State's motion and returned him to the custody of DHS.  He was
detained at the Arkansas State Hospital.  Barnett eloped from the
Hospital, but was returned on December 6, 1994.  Upon his return,
Barnett was retested, and as a result, DHS changed its earlier
diagnosis of schizophrenia to polysubstance abuse and borderline
intellectual functioning.  Afterwards, Barnett was placed in drug
treatment centers.  DHS eventually asked that Barnett be
conditionally released to the Hoover House in Little Rock, and on
October 4, 1996, the probate court, over Barnett's objections,
granted DHS's request.  Barnett urged the probate court to
discharge him from any further treatment, since his diagnosis had
changed.  We uphold the probate court's decision.
     Pursuant to  5-2-314 and -315, the probate court held a
hearing concerning whether Barnett should be discharged or
conditionally released, and after the hearing it found by clear and
convincing evidence that Barnett had recovered from his mental
disease or defect to such an extent that his conditional release
would be in the best interest of both the State and Barnett.  It
further found that Barnett would not pose a risk of harm to himself
or to the person or property of others.  See   5-2-
315(a)(2)(C)(ii) and 5-2-314(e).  Additionally, the court concluded
that Barnett currently was not exhibiting evidence of psychosis and
his mental illness was responding to medication and other therapy.
     Barnett claims the probate court erred in proceeding under 
5-2-314 and -315 because he is no longer suffering from a
psychological mental disease or defect.  He suggests the civil
commitment statutes, Ark. Code Ann.  20-47-201 -228 (Repl. 1991
and Supp. 1995) should apply, and under those statutes his new
diagnosis is not an impairment and is excluded under the definition
of mental illness.  See  20-47-202(j)(1) and (2).  Barnett is
mistaken.
     In his argument, Barnett quotes Dr. Tom Kramer, staff
psychiatrist for the State Hospital, as saying, "Barnett no longer
suffers from mental disease or defect."  This is a misquote. 
Kramer was actually asked, "Is he (Barnett) suffering from any
psychological mental disease or defect that you're aware of other
than this borderline intellectual functioning?", to which Kramer
answered, "No."  Kramer further testified, "Borderline intellectual
functioning is classified as a mental defect."  See also Diagnostic
and Statistical Manual of Mental Disorders 684 (4th ed. 1994). 
Barnett offered no evidence to contradict Kramer's opinion. 
Consequently, we hold the probate court's findings are clearly
supported by the evidence, and its order granting the State's
motion for Barnett's conditional release should be affirmed.