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12/29/94 BRENDA ANN DIXON v. STATE

December 29, 1994

BRENDA ANN DIXON, ALIAS
v.
STATE



Appeal from Tuscaloosa Circuit Court. CC-92-305. Robert Harwood, TRIAL JUDGE.

As Amended. Rehearing Denied July 7, 1995. Rule 39(k) Motion Denied July 7, 1995. The Docket Number of this Case has been Corrected February 29, 1996.

Bowen, Presiding Judge. Taylor, Patterson, McMillan, JJ., concur; Montiel, J., Dissents with opinion.*

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Brenda Ann Dixon, the appellant, was convicted of the attempted murder of Tuscaloosa police officer Tina Williams and was sentenced to 20 years' imprisonment. On this direct appeal of her conviction, the appellant raises five issues. However, our Disposition of the first issue makes Discussion of the remaining four unnecessary.

The appellant claims that the evidence of her insanity was overwhelming, overcame the presumption of sanity, and entitled her to a judgment of acquittal. We agree.

At the time of the events at issue here, the appellant was a 40-year-old attorney practicing law in Tuscaloosa. About 9:30 p.m. on Sunday, August 4, 1991, Tuscaloosa police officers Wilson and Braughton encountered the appellant "walking down the median of McFarland Boulevard saying she was being followed." R. 172. Sgt. Wilson testified that the appellant "appeared to be very paranoid, thinking somebody was after her." R. 173. The appellant told the officers that she "didn't think [they] were police officers," even though they were in uniform, because they "could have bought the uniforms." R. 173.

At approximately 10:30 that same night, the appellant walked into a Bruno's grocery store on McFarland Boulevard and asked the manager, Sidney Cannon, where the matches were. The appellant handed Cannon a note saying she was being followed. Cannon testified that the appellant looked "spaced out" and was "acting very strange." R. 91. The appellant asked Cannon to call the state troopers to help her; she specifically asked him not to contact the Tuscaloosa police. Cannon telephoned the state troopers, but they recommended that he call the Tuscaloosa police. When the appellant heard Cannon calling the Tuscaloosa police, she left the store and crossed the street to Snow Hinton Park. Mr. Cannon said that he thought it was "odd" that a woman who said she was being followed would leave the store and proceed into the park alone at night. R. 90.

A dispatch was broadcast over the police radio that Bruno's had an "unwanted guest acting crazy." R. 100. In response, Tuscaloosa police officer Tina Williams arrived at the Bruno's store about 11:00 p.m. After talking with Mr. Cannon and being shown the appellant's note, Officer Williams went to Snow Hinton Park to "locate [the appellant] and give her any assistance she needed or take her home." R. 101.

When Officer Williams reached the park, she saw a light through some trees. As she neared the trees, she saw a figure silhouetted against the glow and she realized the light was a fire. Officer Williams called out, "Do you need a police officer?" and radioed for a police unit with a fire extinguisher. R. 103. At that moment, the appellant jumped out from behind the trees, made a "karate kick sound," and charged at Officer Williams. R. 105. The officer called in "Bravo 67 00 (officer needs all possible assistance)" on her radio. R. 105. The appellant kicked the radio out of Williams' hands and knocked the officer down, and the two began to wrestle. R. 106. The appellant kicked, scratched, and bit Officer Williams. Then the appellant managed to pulled the officer's revolver from its holster and said, "I've got you now, Bitch." R. 109. As the appellant pointed the revolver at the officer's chest, Officer Williams deflected the gun away from her body and the weapon discharged.

Several police officers responded to Officer Williams' call for assistance. They subdued the appellant and took her into custody, and arranged for Officer Williams to be transported to a local hospital. Officer Williams was treated for a scalp injury and was released.

On August 5, 1991, the day after the incident, the appellant was evaluated on an outpatient basis at Taylor Hardin Secure Medical Facility. On August 7, the Tuscaloosa County District Attorney's Office and the appellant's defense counsel jointly moved for an order, pursuant to Rule 11.2(d), A.R.Crim.P., mandating inpatient treatment and evaluation of the appellant to determine her competency to stand trial. That same day, the appellant was committed to Bryce Hospital for an evaluation and was diagnosed as suffering from "delusional disorder, persecutory type." The medications Vistaril and Haldol were prescribed. C.R. 305. Following a hearing on August 30, the circuit court found

"by clear, unequivocal and convincing evidence that the defendant, Brenda Dixon, is presently incompetent to stand trial and provide reasonable assistance with rational understanding to her counsel and defense, as a result of a mental disease. The Court further finds, however, that there is a substantial probability that the defendant will be restored to competency within a reasonable period of time.

"The Court further finds, upon the testimony of the experts, as well as evidence presented of a recent overt act, that the defendant's being at large poses a real and present threat of substantial harm to herself or others." C.R. 128.

On August 30, the appellant was committed, pursuant to Rule 11.6(c)(3)(i), A.R.Crim.P., to Searcy Hospital for treatment. Stelazine was prescribed as part of her treatment. On September 17, the mental health professionals at Searcy determined that the appellant had responded well to medication, was competent to stand trial, no longer presented a danger to herself or to others, and should be released. As a condition of her pre-trial release on bond, the circuit court ordered the appellant to attend bi-monthly psychotherapy sessions at Indian Rivers Community Mental Health Center in Tuscaloosa. From September 24, 1991, until July 6, 1992, the appellant was in psychotherapy with clinical psychologist Dr. Jerry L. Hart.

The appellant was indicted on March 2, 1992. On July 24, 1992, she entered pleas of not guilty and not guilty by reason of mental disease or defect. On March 22, 1993, the circuit court ordered Dr. Wilburn H. Rivenbark, chief psychologist and certified forensic examiner at Taylor Hardin Secure Medical Facility and the psychologist who had first examined the appellant on the day after the incident giving rise to this prosecution, to conduct a "state of mind at the time of the incident evaluation" of the appellant. Dr. Rivenbark was asked to determine whether the appellant "at the time of the commission of the acts constituting the offense (charged in this Indictment) as a result of severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of her acts." C.R. 186. The appellant was tried on the instant charges on April 20-22, 1993.

At trial, the State presented the testimony of five witnesses: Sidney Cannon, manager of the Bruno's store; Officer Williams, who was injured in the struggle with the appellant; Tuscaloosa police Sgt. Michael Wilson, who had encountered the appellant earlier in the evening walking along McFarland Boulevard and who later came to Officer Williams' assistance in Snow Hinton Park; Stephen Wheat, another Tuscaloosa police officer who came to Officer Williams' aid in the park; and Mary Jackson, an emergency room technician at Druid City Hospital, who described Officer Williams's injuries.

The defense presented the testimony of three witness: Dr. Rivenbark; Lee Keene, a close friend of the appellant's; and Hank Hawkins, a Tuscaloosa attorney.

Dr. Rivenbark gave his opinion that the appellant was suffering from a psychotic delusional disorder at the time of the incident on which the indictment was based. R. 234. He testified that "the [appellant's] thought processes were severely impaired by her delusional disorder to the extent that she was unable to rationally evaluate and appreciate either her own actions or those of others" at the time of the alleged offense. R. 235. He concluded that "as a result of a severe mental disease or defect [the appellant] was unable to appreciate the nature and quality of the wrongfulness of her acts." R. 249. Dr. Rivenbark testified that the appellant reported taking Valium and diet pills on August 4, 1991. His initial impression of her mental status when he examined her the next day, and based on the history she reported, was "delusional disorder or drug-induced psychosis." R. 239. Rivenbark stated that he deleted "drug-induced psychosis" from his final diagnosis for two reasons. R. 235. First, while explaining that "most drugs if taken in heavy enough quantities [for a] long [period] can produce some organic mental disorder," R. 223, he concluded that the appellant's drug consumption was not great enough to produce an organic mental disorder. After his initial diagnosis, Rivenbark received the results of a drug screen performed on the appellant on August 9. The fact that the drug screen was negative led Rivenbark to conclude that the appellant had not taken enough Valium or diet pills to have precipitated her behavior on August 4. R. 235, 238. Next, and more significant to Dr. Rivenbark, was the fact that the appellant was still displaying psychotic, delusional symptoms long after any drugs, even if she had taken them in great enough quantities to have caused a psychosis, were out of her system. R. 235.

Dr. Rivenbank testified that in formulating a diagnosis, he examined statements by Officer Williams and witnesses to the incident. He also reviewed the appellant's records from Bryce and Searcy Hospitals and Indian Rivers Community Mental Health Center, as well as information from Tuscaloosa psychologist Dr. Jerry Hart, who had treated the appellant while she was awaiting trial. The records from Bryce included the results of psychological tests, a social and family history, "a CT scan" of the brain, and a drug screen. R. 238. The psychiatric team at Bryce had characterized the appellant's condition as "delusional disorder, persecutory type." R. 239. The records from Searcy Hospital showed that Dr. Ronald C. Bloodworth, a staff psychiatrist, had initially diagnosed the appellant as suffering from a "delusional disorder," and had later changed the diagnosis to a "psychotic disorder, not otherwise specified" with paranoid ...


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