Assistant Public Defender Regina Nunnally today asked a circuit judge for a second opinion to evaluate her client, Richard Dunn, after a court-appointed psychologist recommended that Dunn be returned to a state psychiatric hospital, ending his several years of near-total freedom.
But that is unlikely to stop Circuit Judge Terence Perkins from ordering Dunn back to the hospital.
Dunn, 60, killed and mutilated his elderly father in Palm Coast 15 years ago. Dunn was found not guilty by reason of insanity but was locked up in a state hospital for many years. He was released to a Volusia County halfway house in 2013 and required to abide by a strict regimen of treatment, mental health and court supervision. AS he has seemingly progressed toward regaining full capacities to lead a safe and normal life, those restrictions have gradually lifted, but not been eliminated. He was getting close to that point earlier this year, and was petitioning the court to regain full freedom.
Then he backtracked. According to his counselors at SMA Healthcare, he stopped keeping counseling appointments, behaved bizarrely, got a severe burn on the arm that he never explained, resumed smoking pot, made an inappropriate and disturbing visit to a caretaker, and exhibited other forms of strange behavior. That all made his caretakers and the court very nervous. But nothing amounted to blatant behavior that warranted more serious intervention. The pot-smoking, however, was a probation violation. It enabled the court to require his immediate incarceration for the first time in eight years. He was booked at the Flagler County jail on Sept. 23.
On such a minor violation, almost anyone else would have been released by now. Not Dunn. The court may legally keep him in jail, and it has, at the request of the State Attorney’s Office and with no objection from Nunnally, because no one wants to risk a violent episode involving Dunn.
Circuit Judge Terence Perkins ordered that Dunn be psychologically evaluated in jail to determine whether there are grounds to re-institutionalize him. Dr. Roger Davis, a Jacksonville psychologist, conducted that evaluation–and recommended Dunn be returned to a state hospital.
Nunnally spoke with Dunn on Wednesday. He’d reviewed the doctor’s report.
“It’s my client’s position that he would like a second opinion, and I would stand by that,” Nunnally said in a hearing before Perkins this morning.
Nunnally had other issues. She saw no connection between the probation violation for pot smoking and the way his psychological evaluation by Davis “jumped to where he needs to go to the hospital because of all these other issues,” Nunnally said. “Well, those other issues were not put in the affidavit. The one of the issue of him leaving the crisis stabilization unit: that wasn’t put in the affidavit as a violation. Some issues about him drawing across on on a wall: that wasn’t put in a violation or anything of that nature. So I’m concerned about that.”
From a legal standpoint, Nunnally was arguing that there was no legal authority, absent the proper affidavits, for an immediate incarceration in a state hospital.
There was either irony or contradiction in Nunnally’s analysis: since she was not herself contesting the probation violation or attempting to get Dunn out of jail, she was conceding that the court and the state had legitimate concerns to keep him there as further evaluations were conducted. But now she was contesting the manner in which the evaluation was conducted.
Even as she did so, she revealed details from Davis’s evaluation, which are not usually made public.
“In the report Dr. Davis does say something about him about being incompetent to proceed because of his lack of insight. He suffers from psychotic symptoms, and he made a comment about deteriorating over a six to 12 month period,” Nunnally said.
Nunnally said Dunn’s status reports don’t reflect the same pattern, at least not as recently as June 16. “So as I’m looking at what Dr. Davis said and I’m looking at June 16,” Nunnally said. “If he’s deteriorate between six to 12 months, then why didn’t they catch it back on June 16, 2021? And so apparently he deteriorated very quickly from that day on, up to now. Something must be wrong. But the only thing that he’s being bout violated or as a positive UA [urinary analysis], or positive marijuana, then he should be getting evaluation for treatment for maybe a substance abuse treatment or evaluation for that. So with all that put together, Your Honor, I just feel like it’s in his best interest to have another evaluation.”
Nunnally contacted Michael Lambert, the Daytona Beach attorney who previously represented Dunn, and who will be speaking with Dunn himself again.
Assistant State Attorney Jason Lewis countered that even without affidavits, the sworn statements under oath in court by Dunn’s caretakers have the same validity as affidavits. “So certainly I think there’s enough statutory authority for the court to go forward on it,” Lewis said of the Davis recommendation to send Dunn back to a hospital. “Whether or not the court wants to appoint a second individual, we’ll leave that to the court’s decision making. I’m not necessarily sure we needed that in this case.”
Judge Perkins did not buy the affidavit argument. He said he’d gone well beyond that already by conducting a full hearing on Dunn’s status last month, with plenty of testimony, plus the Davis evaluation. “I’ve just thought, conducting a hearing with actual testimony was a greater safeguard to Mr. Dunn than just doing this all ex parte on an affidavit attached to a motion,” Perkins said.
The law does not specify whether there needs to be a second expert to evaluate an individual’s mental competency, Perkins said. The court can do so, or it can leave it to Nunnally to do so. The latter approach is what Nunnally is proposing.
Even if both opinions were to recommend returning Dunn to a state hospital, the judge said, the first thing that Dunn will undergo is even more evaluations by teams of physicians at the hospital. So he essentially suggested–if not explicitly stated–that an additional evaluation by Nunnally will not stop him from sending Dunn to the hospital, and that it could be superfluous.
“If you want to go ahead and get them evaluated before he goes up there, and then have another hearing we can do that,” Perkins told Nunnally. “But at the end of the day whether you have him evaluated or not, other than its bearing on whether there’s an additional commitment, he’s still going to be evaluated if he’s committed up there, and it’s going to be a full evaluation of all of the elements that we’re talking about.” If the hospital staff returns an evaluation that shows Dunn restored, “then not only are we kind of back to where we started with regard to him being back on his conditional release plan, but you have your expert witnesses already in that regard.”
Still, the judge told Nunnally, she could have her evaluation.
“That’s what we want to do,” the assistant public defender said.
The court scheduled the next hearing for Nov. 10 at 8 a.m., when both Davis and the doctor Nunnally will retain will testify. Meanwhile, the consequences for Dunn remain the same: he stays in jail.
He has apparently conceded that he will not be regaining his freedom any time soon. A counselor told the court that his sister had been in contact with him and with SMA, seeking to get his affairs in order.