Opinion
No. 107,232.
2014-01-29
In the Matter of the Care and Treatment of Dale D. PATTERSON, Jr.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Carl Folsom, III, of Bell Folsom, P.A., of Olathe, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Carl Folsom, III, of Bell Folsom, P.A., of Olathe, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Dale D. Patterson, Jr., appeals the district court's determination that he is a sexually violent predator and his civil commitment based on that finding. Patterson raises numerous claims of error committed by the district court including constitutional challenges to his commitment. He also challenges the sufficiency of the evidence to support the determination that he is a sexually violent predator. We agree with Patterson on one claim: the district court impermissibly failed to analyze all the required elements before determining that Patterson was a sexually violent predator. As a result, we remand for the district court to conduct the proper analysis and make appropriate findings. We affirm the district court's judgment on all remaining issues.
In 2002, Patterson pled no contest to and was convicted of two counts of aggravated criminal sodomy. In April 2003, the district court sentenced Patterson to 117 months' imprisonment for the crimes.
On December 8, 2010, the State filed a petition to commence proceedings under the Sexually Violent Predator Act (SVPA), K.S.A. 59–29a01 et seq. Shortly thereafter, the State filed an amended petition that included an attached report from Dr. Bradford Sutherland. Sutherland diagnosed Patterson with Axis I diagnoses of pedophilia, non-exclusive type, sexually attracted to males, and paraphilia not otherwise specified. Sutherland had also completed the Static–99 actuarial instrument; Patterson scored a three, placing his risk of recidivism in the “moderate low” range. However, Sutherland opined that the score underestimated Patterson's risk of sexual recidivism.
The district court scheduled a probable cause hearing for January 7, 2011. On January 5, 2011, Patterson filed a motion to continue the hearing to allow his recently appointed attorney more time to prepare. At the hearing, the district court denied the continuance in part to allow Sutherland to testify as the State's only witness. The district court continued the remainder of the hearing in order to allow Patterson to present evidence at a later date. On February 3, 2011, however, Patterson filed a notice of his intent to present no evidence.
On February 11, 2011, the district court filed a journal entry stating that it found probable cause to believe that Patterson was a sexually violent predator and ordering that Patterson be taken into custody and committed to Larned State Security Hospital (LSSH) for evaluation. In March 2011, Dr. Michael Klemens evaluated Patterson and completed actuarial instruments to assess his risk of recidivism. On April 22, 2011, the district court entered an order authorizing payment for Dr. Robert Barnett to evaluate Patterson for the defense; Barnett completed his evaluation of Patterson on July 5, 2011.
On August 23, 2011, Patterson filed a motion to dismiss, alleging several grounds for dismissal. First, Patterson argued that the district court's finding of probable cause solely on the State's petition violated his due process rights. Patterson also argued that due to the State's failure to provide him with sex offender treatment while he was in prison, the civil commitment process violated his due process rights. Patterson also contended that the State's failure to provide effective treatment to people committed under the SVPA rendered the SVPA unconstitutional. That same day, Patterson filed a motion in limine requesting that the district court exclude at trial specific instances of character evidence, evidence of a prior no-contest plea, evidence of dismissed criminal charges, and references to Patterson as a “sexually violent predator.” The State filed responses to both motions.
The district court held a hearing on the motions on October 20, 2011. Patterson had planned to present evidence and testimony at the hearing, but the witness and records did not arrive, so Patterson filed a notice of supplemental authority. The district court rejected most of Patterson's arguments for dismissal, taking the issue involving sex offender treatment in prison under advisement. Concerning the motion in limine, the district court determined that evidence of any prior convictions would be allowed only to show that Patterson was convicted of a sexually violent offense. Patterson also argued that K.S.A. 60–456 should be applied at his trial; the legislature enacted K.S.A.2012 Supp. 59–29a06(c) after Patterson's probable cause hearing but before the motions hearing to create an exception in SVPA cases to the evidentiary rules in K.S.A. 60–456 for expert testimony.
On October 28, 2011, Patterson filed supplemental authority supporting his motions. The same day, the district court held a telephone conference in which it ruled that the State's failure to provide sex offender treatment to Patterson while he was in prison did not violate his due process rights. The district court further found that it could not rule as a matter of law that the SVPA was unconstitutional; thus, the district court denied the motion to dismiss on that basis.
Patterson waived his right to a jury trial and the district court began the bench trial on October 31, 2011. Before commencing the trial, the district court denied Patterson's request to apply K.S.A. 60–456. At the State's request, the district court also took judicial notice of the court file in the underlying criminal case. Sutherland and Klemens testified for the State. The following day, before presentation of any testimony, Patterson moved for a mistrial and dismissal of the case based on the fact that the prior night the State served him with new discovery, including documents from Patterson's previous admissions to LSSH and reports from a criminal case, which Klemens relied upon in forming his opinion but which had not been previously disclosed to Patterson. One document was a report by Douglas County Sheriffs Deputy Doug Woods, who was involved in the investigation of a previous criminal case. The district court offered to continue the trial so that Patterson could read the documents, but Patterson's counsel declined. The State offered to call Woods as a witness, but Patterson objected because he had no notice that Woods would testify. At that point, the State rested its case.
Barnett was Patterson's only witness. Barnett testified that he did not have enough information to support a diagnosis of pedophilia or paraphilia, that in his clinical opinion Patterson was not a pedophile, and that Patterson's risk of offending was relatively low. The district court heard closing arguments and took the matter under advisement.
On November 14, 2011, the district court filed its memorandum decision and found beyond a reasonable doubt that Patterson was convicted of a sexually violent crime, that he suffered from a mental abnormality or personality disorder, and that the abnormality or personality disorder makes him more likely to engage in repeat acts of sexual violence. Accordingly, the district court found beyond a reasonable doubt that Patterson was a sexually violent predator under the SVPA. Patterson timely appealed the district court's decision.
Did the District Court Impermissibly Fail to Analyze All the Required Elements Before Determining that Patterson Was a Sexually Violent Predator?
Patterson argues that this court should order a new trial because the district court failed to consider all of the elements necessary to support a finding that he is a sexually violent predator. Specifically, Patterson complains that the district court did not explicitly find that Patterson's mental abnormality and personality disorder make it seriously difficult for him to control his behavior. The State responds that Patterson's failure to file a Rule 165 (2012 Kan. Ct. R. Annot. 262) motion objecting to the lack of findings precludes this court from reviewing the issue. The State also cites out-of-jurisdiction caselaw for the proposition that an explicit finding was not required. Finally, the State contends that the finding was implied in the district court's judgment.
Whether a district court misapplied the law established in prior caselaw is a question of law over which an appellate court exercises unlimited review. See Scott v. Hughes, 294 Kan. 403, 412, 275 P.3d 890 (2012) (“To the extent resolution of this case requires interpretation of our caselaw precedents, it also raises questions of law reviewable de novo. [Citations omitted.]”). Additionally, to the extent that this question involves statutory interpretation, an appellate court exercises de novo review. In re Marriage of Hall, 295 Kan. 776, 778, 286 P.3d 210 (2012).
K.S.A.2012 Supp. 59–29a02(a) defines a sexually violent predator as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” Prior to 2002, this statutory language set out the only elements that the State needed to prove beyond a reasonable doubt in order to have someone adjudicated a sexually violent predator. See, e.g., In re Care & Treatment of Hay, 263 Kan. 822, 836–37, 953 P.2d 666 (1998). In 2002, however, the United States Supreme Court considered the SVPA's constitutionality, focusing on the extent to which substantive due process rights require a person's mental abnormality or personality disorder to affect that person's ability to control his or her dangerousness. Kansas v. Crane, 534 U.S. 407, 409–15, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).The Court stated: “[W]e recognize that in cases where lack of control is at issue, ‘inability to control behavior’ will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior.” 534 U.S. at 413.
As the State points out, many courts have held that Crane did not add an element to the due process requirements for involuntary commitment. See Richard S. v. Carpinello, 589 F.3d 75, 83–84 (2d Cir.2009) (listing 10 jurisdictions that do not require separate or additional findings under Crane ). The Kansas Supreme Court, on the other hand, has spoken of an “additional element” imposed by Crane and recently stated:
“[T]he statutory requirements combined with the holding in Crane [ ] impose four elements that must be proven to establish that an individual is a sexually violent predator: (1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior. [Citations omitted.]” (Emphasis added.) In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011).
See also PIK Crim.3d 57.40 (listing as an additional required element of sexual predator civil commitment “[t]hat the respondent's (mental abnormality) (personality disorder) makes it seriously difficult for (him)(her) to control (his)(her) dangerous behavior”); PIK Civ. 4th 130.20 (same).
Patterson argues that the district court did not consider the Crane element before finding he was a sexually violent predator. In its memorandum decision, the district court did not mention this element but consistently referred to the test as it existed prior to Crane. For example, the district court stated: “To determine whether respondent is a sexually violent predator the court must look to the following definitions found in K.S.A.2010 Supp. 59–29a02,” listing the definitions for “sexually violent predator,” “mental abnormality,” and “likely to engage in repeat acts of sexual violence.” The district court went on to say that “[t]here is no question that respondent has been convicted of a sexually violent offense.... The issue in this case is whether the respondent suffers from a mental abnormality or personality disorder which makes him likely to engage in repeat acts of sexual violence.” At the end of the memorandum decision, the district court stated:
“In order to find the respondent to be a sexually violent predator the court must find beyond a reasonable doubt that: 1) the respondent has been convicted of a sexually violent crime; 2) the respondent suffers from a mental abnormality or personality disorder; and 3) that abnormality or disorder makes the respondent likely to engage in repeat acts of sexual violence.”
The district court then made specific findings on those three elements, with no mention of the fourth element. As Patterson argues, this is strong evidence that the district court failed to analyze whether the State had proved beyond a reasonable doubt that Patterson's mental abnormality or personality disorder made it seriously difficult for him to control his dangerous behavior. Patterson contends that this failure to consider the fourth element violated his “state and federal due process rights to have every element proven beyond a reasonable doubt.”
Our Supreme Court has acknowledged that “ ‘[p]roceedings for involuntary commitment, whether denominated civil or criminal, are subject to the due process clause of the Fourteenth Amendment, because such commitment imposes a massive or significant curtailment of liberty that requires due process protection.’ [Citation omitted .]” In re Care & Treatment of Foster, 280 Kan. 845, 854, 127 P.3d 277 (2006). Although sexually violent predator commitment proceedings are civil instead of criminal proceedings, certain criminal law rules previously have applied to civil commitment proceedings. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (finding that the SVPA is civil, not criminal); In re Care & Treatment of Hay, 263 Kan. at 835 (applying the rule that “ ‘[w]here an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial’ ”). In criminal cases, “[t]he State is required by the Due Process Clause of the Fourteenth Amendment to prove, beyond a reasonable doubt, every element necessary to constitute the crime with which an accused is charged.” State v. Elrod, 38 Kan.App.2d 453, 463, 166 P.3d 1067 (2007), rev. denied 285 Kan. 1175 (2008).
Patterson's argument in this issue is premised on the concept that a district court may not misapply the law by failing to consider an element that one party is required to prove, and the idea that a district court must correctly apply the law is not exclusive to the criminal law arena. See J.N.L.M. v. Miller, 35 Kan.App.2d 407, 416, 130 P.3d 1223 (2006) (reversing and remanding paternity action in which, among other problems, “the district court failed to meaningfully apply the correct legal standards, relied upon an erroneous interpretation of [the applicable statute] and associated testimony, [and] misread and misapplied [prior caselaw]”); State ex rel. Secretary of Dept. of S.R.S. v. Davison, 31 Kan.App.2d 192, 196–98, 64 P.3d 434 (2002) (reversing and remanding case involving grandparent visitation rights where the district court misapplied the law). Here, the district court utilized an incomplete legal standard by which to determine whether Patterson was a sexually violent predator; based on the record on appeal, the district court considered only three of the four required elements.
The State contends that Patterson is precluded from raising this issue on appeal because it involves insufficient legal conclusions and Patterson did not file a Rule 165 motion in the district court. Supreme Court Rule 165 requires that “[i]n a contested matter submitted to the court without a jury ... the court must state its findings of fact and conclusions of law in compliance with K.S.A. 60[-]252.” (2012 Kan. Ct. R. Annot. 262.) Although the rule places the primary duty on the district court, our Supreme Court has held that “a party also has the obligation to object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal.” Fischer v. State, 296 Kan. 808, 295 P.3d 560, 571 (2013). This bar appears to be put in place to ensure that “a litigant who fails to object to inadequate Rule 165 findings and conclusions in the district court is foreclosed from making an appellate argument that would depend upon what is missing. [Citations omitted.]” State v. Seward, 289 Kan. 715, 720–21, 217 P.3d 443 (2009).
We conclude that Patterson's failure to file a Rule 165 motion in district court does not preclude him from raising this issue on appeal. Patterson is not solely arguing that the district court made insufficient findings to support its decision. Rather, Patterson is arguing that the district court failed to analyze all the required elements before determining that he was a sexually violent predator. As we have stated, the record is clear that the district court considered only three of the four elements required to determine whether Patterson was a sexually violent predator. A district court must correctly apply the law in reaching a decision in either a civil or criminal case. Patterson's claim that the district court impermissibly failed to analyze all the required elements clearly has merit, and he is not procedurally barred from raising this issue on appeal.
The State also asks this court to find that the district court “implicitly ruled” that the State proved the fourth element beyond a reasonable doubt. However, the State cites no legal authority upon which this court can make such a finding. Additionally, the district court's statements to which the State cites to support its assertion of an implicit finding were made by the district court to support its finding on the third element: that Patterson's mental abnormality and/or personality disorder made it likely that he would commit repeat acts of sexual violence. While the State may be correct that there was evidence to support a finding that Patterson's mental abnormality and/or personality disorder made it seriously difficult for him to control his dangerous behavior, it nevertheless appears that the district court did not consider this element.
The final question involves determining the appropriate remedy for the district court's failure to consider the required Crane factor. The State urges remand for additional findings; Patterson wants a new trial. Neither party explains why its preferred remedy is appropriate over the other. Generally, civil cases in which the district court misapplied the proper legal standard are remanded for consideration under the correct legal standard. See, e.g., Frazier v. Goudschaal, 296 Kan. 730, 756, 295 P.3d 542 (2013) (finding that district court made a blanket finding regarding a separated couple's property division when it should have conducted an asset-by-asset determination and remanding for a redetermination of property division under the correct standard). Therefore, we conclude that the appropriate remedy is to remand for the district court to consider the fourth element in the test to determine whether Patterson is a sexually violent predator. The district court can then supplement its findings as to whether the State has met its burden that Patterson is a sexually violent predator.
Patterson has raised many additional claims of error on statutory and constitutional grounds. Although we are remanding for the district court to consider the fourth element in the test to determine whether Patterson is a sexually violent predator, we will also address the merits of the additional issues Patterson has raised in this appeal.
Did the District Court Err in Applying K.S.A.2012 Supp. 59–29a06(c) Rather than K.S.A. 60–456(b) at Patterson's Trial?
K.S.A. 60–456(b) restricts expert testimony in the form of opinions or inferences to opinions that the judge finds are “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” On July 1, 2011, K.S.A.2011 Supp. 59–29a06(c) became effective. See L.2011 ch. 92, sec. 3(c). This statute provides:
“Notwithstanding K.S.A. 60–456, and amendments thereto, at any trial conducted under K.S.A. 59–29a01 et seq. , and amendments thereto, the parties shall be permitted to call expert witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.”
In 2012, the statute was amended again. See K.S.A.2012 Supp. 59–29a06(c); L.2012, ch. 59, sec. 2(c) (changed “trial” to “proceeding”). Throughout the remainder of this opinion we will cite the 2012 supplement.
At Patterson's trial, the State introduced the testimony of two doctors who had evaluated Patterson. In completing their evaluations, both doctors relied upon Patterson's institutional file, which included a reception diagnostics unit report, mental health records, and other official documents, including jail records, affidavits, disciplinary reports, and presentence investigation reports. The district court ruled prior to trial that it would apply K.S.A.2012 Supp. 59–29a06(c). At trial, Patterson objected to the experts' testimony about the contents of the file, claiming that the contents were hearsay. The district court overruled the objection, finding that the contents were being offered to show the basis of the experts' opinions, not for the truth of the matters asserted.
Patterson argues that the district court erred in applying K.S.A.2012 Supp. 59–29a06(c) at his trial. Patterson points to K.S.A.2012 Supp. 59–29a06(a), which requires that a SVPA civil commitment trial take place within 60 days of the probable cause hearing. Patterson's probable cause hearing occurred on January 7, 2011. Patterson contends that the district court should have relied upon K.S.A. 60–456(b), which was in effect 60 days after his probable cause hearing, instead of K.S.A.2012 Supp. 59–29a06(c) which he argues was not applicable, and excluded any expert opinion testimony that relied upon inadmissible evidence. Moreover, Patterson argues that the application of K.S.A.2012 Supp. 59–29a06(c) violates the constitutional protections against ex post facto laws.
Resolution of this issue requires statutory interpretation. Interpretation of a statute is a question of law over which appellate courts have unlimited review. In re Marriage of Hall, 295 Kan. at 778. Should the district court have applied K.S.A. 60–456(b)?
Patterson first argues that the district court should not have applied K.S.A.2012 Supp. 59–29a06(c) because it was not in effect within 60 days of his probable cause hearing. Patterson raised this argument at the motions hearing as well. K.S.A.2012 Supp. 59–29a06(a), which remained the same throughout the proceedings, states:
“Within 60 days after the completion of any hearing held pursuant to K.S.A. 59–29a05, and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.”
As Patterson concedes, this language is further tempered by the directive in K.S.A. 59–29a01, which states that any time requirements in the SVPA are directory, not mandatory.
Patterson contends that he was substantially prejudiced by the delays here because those delays allowed time for the State to petition the legislature for enactment of the new provision (c) of K .S.A.2012 Supp. 59–29a06 regarding expert testimony. In order to prevent this prejudice, Patterson argues the district court should have applied the evidentiary rules in effect within 60 days of his probable cause hearing. The State argues that the delays were mostly Patterson's fault and therefore he should not benefit from them.
As stated above, the probable cause hearing began on January 7, 2011, but the district court continued the hearing to allow Patterson more time to prepare. On February 3, 2011, Patterson filed a notice with the court that he did not intend to present any evidence and, on February 11, 2011, the district court filed a journal entry that there was probable cause to believe Patterson was a sexually violent predator.
The district court ordered Patterson to LSSH, where he underwent forensic examination on March 18, 2011. Patterson was released from LSSH in mid-April and, on April 20, 2011, the district court held a status conference at which Patterson asked the court to set another status conference for June so that he would have time to obtain an independent evaluation for his defense. The district court scheduled a status conference for June 15, 2011. At the status conference, the parties agreed that Patterson would be evaluated on July 5, 2011, and scheduled the trial for October 31, 2011.
Patterson provides no citation to the record that shows him objecting to the continuances past the 60–day guideline; in any event, K.S.A.2012 Supp. 59–29a06(a) allows for a continuance “upon the request of either party and a showing of good cause” or by the court on its own motion, as long as there is not substantial prejudice to the respondent. Therefore, because the continuances here were granted in order to allow Patterson to obtain an independent evaluation and at the agreement of the parties, the fact that the trial began more than 60 days after the probable cause hearing did not violate the statute.
In any event, although there does not seem to be any caselaw or legal precedent regarding the remedy for a violation of K.S.A.2012 Supp. 59–29a06(a), Patterson's argument that he should receive application of a statute no longer applicable to his case by the time of trial is unpersuasive. There is no evidence that the State delayed this trial in order to obtain more time to lobby the legislature for the amendment of K.S.A.2012 Supp. 59–29a06(c). Although Patterson could have argued to the district court that the pending legislation meant that allowing a continuance would result in substantial prejudice to him, he did not do so. The fact that Patterson's trial occurred outside the 60–day guideline and the rules of evidence changed while he prepared for trial does not mean that the district court erred in applying the statutes as they existed at the time of trial. Did the application of K.S.A.2012 Supp. 59–29a06(c) violate the constitutional prohibitions on ex post facto laws?
Next, Patterson contends that the district court's use of K.S.A.2012 Supp. 59–29a06(c) violates the constitutional prohibitions on ex post facto laws. The State responds that because the SVPA is civil in nature, not punitive, the ex post facto prohibitions are not applicable. In the alternative, the State argues that the prohibitions are not violated because the statute in question is procedural, not substantive, and may therefore be applied to cases pending at the time it became effective.
Article 1, § 9 of the United States Constitution provides: “No ... ex post facto Law shall be passed,” while Article 1, § 10 states that “[n]o State shall ... pass any ... ex post facto Law.” As the State points out, the fact that proceedings under the SVPA are not punitive renders the ex post facto prohibitions inapplicable. In Hendricks, the United States Supreme Court held that a respondent's ex post facto claims regarding the SVPA were flawed: “The Ex Post Facto Clause ... has been interpreted to pertain exclusively to penal statutes. [Citations omitted.] As we have previously determined, the [SVPA] does not impose punishment; thus, its application does not raise ex post facto concerns.” 521 U.S. at 370–71.
Patterson contends that the Kansas Supreme Court has extended the ex post facto protections to civil statutes that are penal in nature. The case Patterson cites, Kansas Gas & Electric Co. v. Kansas Corporation Comm'n., 239 Kan. 483, 518, 720 P.3d 1063 (1986) (Schroeder, C.J., dissenting), does not support his argument. First, Patterson cites to the dissenting opinion, which does not have any binding precedential value. Second, the dissent states that ex post facto prohibitions may be “extended to civil statutes that are penal in nature. The courts look to the purpose of the statute to see if it is punitive or penal.” 239 Kan. at 518. The United States Supreme Court performed this very analysis in Hendricks and determined that the SVPA is not punitive or penal in nature. 521 U.S. at 361–69. Accordingly, ex post facto prohibitions are inapplicable, and Patterson's arguments on this issue fail as well.
Did the District Court Err in its Application of K.S.A.2012 Supp. 59–29a06(c)?
Next, Patterson argues that even if K.S.A.2012 Supp. 59–29a06(c) applied at his trial, the district court erred in determining that the challenged evidence was reasonably relied upon in the field of psychiatry and was therefore admissible under the statute. The State disagrees, contending that it was reasonable for the district court to conclude that the evidence was admissible.
After the trial, in its memorandum decision, the district court identified the evidence in contention: (1) information regarding a criminal case in which Patterson was charged with two counts of aggravated criminal sodomy against a male victim under the age of 14 but the charges were later dismissed; (2) an affidavit by Douglas County Sheriff's Deputy Doug Woods stating that Patterson admitted in an interview that he had oral and anal sex with three male children under age 13; (3) LSSH records showing that Patterson admitted he had victims other than those affected by the index offenses; and (4) prison and hospital reports and records of incidents in which Patterson engaged in inappropriate sexual behavior. In finding that K.S.A.2012 Supp. 59–29a06(c) operated to allow admission of the evidence, the district court stated that “reports relating a respondent's additional sexual offenses are of a type reasonably relied upon by experts in the psychology field in making diagnoses of pedophilia and in assessing the likelihood that a sexual offender is likely to reoffend.”
Although questions regarding the foundation of an expert opinion are generally left to the discretion of the district court, whether the district court complied with specific statutory requirements for admitting evidence requires interpretation of a statute, which an appellate court reviews de novo. See State v. Ernesti, 291 Kan. 54, 64–65, 239 P.3d 40 (2010) (stating general rule regarding questions of whether evidentiary foundation requirements have been met); Griffin v. Suzuki Motor Corp., 280 Kan. 447, 451, 124 P.3d 57 (2005) (examining de novo whether evidence was properly admitted under K.S.A. 60–3307). In any event, a district court abuses its discretion when its action is guided by an erroneous legal conclusion or fails to consider proper statutory limitations or legal standards. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 331, 277 P.3d 1062 (2012).
In State v. Gonzalez, 282 Kan. 73, 78–79, 145 P.3d 18 (2006), our Supreme Court examined evidence admitted at a competency hearing to determine whether Jorge Gonzalez was competent to stand trial. Dr. Carolyn Huddleston, who conducted one of the evaluations and concluded that Gonzalez was incompetent to stand trial, acknowledged that she would have found Gonzalez competent except for information she gleaned from prison medical records from California. Because Gonzalez was uncooperative, Huddleston testified that she based her evaluation “largely on written records from the California penal system.” 282 Kan. at 82. The records included mental health treatment reports, detailed medical information, records of fights in which Gonzalez was involved, diagnoses by medical doctors, and other medical observations and assessments.
After Gonzalez' objection, the district court ruled that the California records were inadmissible hearsay and therefore, under K.S.A. 60–456(b), Huddleston could not properly rely upon them to form her opinion of Gonzalez' competence. On appeal, our Supreme Court noted that “K.S.A. 60–456(b) differs from its federal counterpart, Rule 703 of the Federal Rules of Evidence.” 282 Kan. at 87.Rule 703 is nearly identical to K.S.A.2012 Supp. 59–29a06(c); both allow that if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” 282 Kan. at 87;K.S.A.2012 Supp. 59–29a06(c). Our Supreme Court went on to say:
“Under the federal rule, then, if it is the customary practice in the expert's specialty to consider reports from nontestifying third parties in formulating an opinion, the expert's testimony may be based on such reports. Under such circumstances, however, evidence of the report is not admitted as substantive proof of the report's truth but for the limited purpose of showing the basis of the expert's opinion.” 282 Kan. at 88.
Here, the underlying facts contained in the challenged evidence were not discussed as substantive proof of the reports' and documents' truth; rather, the contents of Patterson's institutional file were discussed in order to explain the basis for the State's witnesses' opinions. Moreover, the district court expressly found that “reports relating a respondent's additional sexual offenses are of a type reasonably relied upon by experts in the psychology field in making diagnoses of pedophilia and in assessing the likelihood that a sexual offender is likely to reoffend.” At trial, Sutherland explicitly testified that the documents he reviewed in preparation of his report are “documents of the type reasonably relied upon by experts in [his] field in forming opinions or inferences in completing this type of evaluation.”
K.S.A.2012 Supp. 59–29a06(c) states that “[i]f the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.” Here, there was sufficient evidence to support the district court's finding that the information contained in the evidence challenged as hearsay was of a type reasonably relied upon by experts in the psychological field in forming opinions or inferences as to an individual's status as a sexually violent predator. Therefore, the district court correctly applied the statute and did not abuse its discretion.
Was There Sufficient Evidence to Support the District Court's Finding that Patterson Was a Sexually Violent Predator?
Patterson argues that the State failed to prove beyond a reasonable doubt that he was a sexually violent predator. Patterson draws into this argument his contention that the district court improperly considered certain facts and data in his institutional file upon which the State's experts based their opinions and diagnoses. In addition to arguing that the State's evidence was contested by his expert, Patterson also asks this court to consider the State's evidence as it would stand without the underlying facts upon which the State's experts based their opinions and diagnoses. The State asserts that it presented sufficient evidence that Patterson was a sexually violent predator.
“When presented with an issue of whether evidence was sufficient to sustain the State's burden of proof in a sexually violent predator case, this court's standard of review asks whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced a reasonable factfinder could have found the State met its burden to demonstrate beyond a reasonable doubt that the individual in question is a sexually violent predator. [Citations omitted.] As an appellate court, we will not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citations omitted.]” In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327(2011).
There are four elements the State must have proven beyond a reasonable doubt to have established that Patterson was a sexually violent predator: at the time of trial (1) Patterson was convicted of or charged with a sexually violent offense, (2) Patterson suffered from a mental abnormality or personality disorder, (3) Patterson was likely to commit repeat acts of sexual violence because of the mental abnormality or personality disorder, and (4) Patterson had serious difficulty controlling his dangerous behavior. See 292 Kan. at 106; PIK Civ. 4th 130.20; PIK Crim.3d 57.40.
First, the State needed to prove beyond a reasonable doubt that Patterson had been convicted of or charged with a sexually violent offense. At trial, the State submitted into evidence the charging document and journal entry from Douglas County case 02CR62, in which Patterson was charged with and convicted of two counts of aggravated criminal sodomy. Patterson explicitly stated he had no objection to this evidence being admitted. Aggravated criminal sodomy is a sexually violent offense for the purposes of the SVPA. See K.S.A.2012 Supp. 59–29a02(e)(5). Therefore, the State provided sufficient evidence on this element.
Second, the State had to prove beyond a reasonable doubt that Patterson suffered from a mental abnormality or personality disorder. The State first presented the testimony of Sutherland, a forensic psychologist who had performed over 350 evaluations on sex offenders and had previously testified as an expert in sexually violent predator proceedings. Sutherland testified that he completed a clinical interview with Patterson; the interview took approximately an hour and was “sufficient to establish a diagnosis in a risk of sexual recidivism.” Sutherland also testified, however, that he based his diagnosis in large part on information he obtained from reading Patterson's institutional files, which included Department of Corrections files, mental health records, presentence investigation reports, medical records, disciplinary records, and other court documents.
Sutherland gave Patterson Axis I diagnoses of dysthymic disorder, a low-grade depressive disorder; pedophilia, nonexclusive type, sexually attracted to males; and paraphilia, not otherwise specified. Sutherland testified that his diagnoses were supported by the aggravated criminal sodomy convictions, the records from LSSH, and Patterson's repeated sexual activity while incarcerated, which he and Patterson discussed during the evaluation. For an Axis II diagnosis, Sutherland found Patterson had a personality disorder not otherwise specified, based on his refusal to follow orders, sexually acting out, and childlike displays of hostility and aggression. Sutherland based his Axis II diagnosis on Patterson's early family history as found in the institutional file and on the clinical interview in which Patterson admitted to having homosexual encounters while he was incarcerated.
The State's other expert, Klemens, a psychologist at LSSH, also testified that he conducted a clinical interview with Patterson. Prior to the interview, Klemens reviewed largely the same documentation and reports as had Sutherland. Based on the interview and the records, Klemens gave Patterson an Axis I diagnosis of pedophilia, sexually attracted to males, nonexclusive. Specifically, Klemens testified that he based the diagnosis on the convictions for aggravated criminal sodomy and on the fact that during the interview Patterson “also had talked briefly ... about having at least one other additional victim and the records also showed additional victims, additional male victims, with one being possibly as young as six years old....” For an Axis II diagnosis, Klemens diagnosed Patterson with dependent personality disorder, based on statements Patterson made during the interview that showed he expected to be cared for and did not expect to take care of himself.
Patterson correctly points out to this court that his expert, Barnett, testified that he did not diagnose Patterson with pedophilia or paraphilia; in fact, Barnett had no Axis I diagnosis. This court, however, may not reweigh the evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. See In re Care & Treatment of Williams, 292 Kan. at 104. In the light most favorable to the State, a reasonable factfinder could have found that the State proved beyond a reasonable doubt that Patterson had a mental abnormality or personality disorder. Therefore, the State has met its burden on this element as well.
The third element requires the State to prove beyond a reasonable doubt that Patterson was likely to commit repeat acts of sexual violence because of his mental abnormality or personality disorder. Sutherland answered in the affirmative when asked, “Doctor, does Mr. Patterson suffer from a mental abnormality which makes a person, Mr. Patterson, likely to engage in repeat acts of sexual violence?” Moreover, Sutherland also stated that if the Axis I and Axis II diagnoses are considered together, Patterson suffers from a personality disorder that makes him likely to engage in repeat acts of sexual violence. On cross-examination, Klemens explained in more detail why he believed his Axis II diagnosis of dependent personality disorder made Patterson more likely to commit repeat acts of sexual violence:
“It just shows kind of a lack of confidence in your own self, you know, you need to rely on others to get your needs taken care of, and to get things established, and so if you're not confident in yourself there are concerns that you make, may also seek out relationships where you have less likelihood of perhaps being rejected, and in certain situations such as with individuals of pedophilia, they may seek those relationships with children because children aren't usually going to reject you, they're not going to push you away, so it's a safer, a safer kind of relationship in their minds.”
Even Barnett, Patterson's expert, commented on how the dependent nature of Patterson's personality might lead to future problems:
“I would say that he's at risk for ... the dependent nature of his personality. He's a follower, he's easily swayed by other people. He wants to please other people, and if he felt, if an adolescent or child he felt was wanting him to have sex with them, and would be, they would be angry with him or reject him if he didn't, I think he would be at risk.”
Klemens' explanation, taken with Sutherland's explicit testimony that Patterson's mental abnormalities and personality disorder made him likely to engage in repeat acts of sexual violence and Barnett's admission of concern, were sufficient to establish the third element.
The fourth element—serious difficulty controlling his dangerous behavior—was not explicitly enumerated or discussed by the district court in its memorandum decision. The State, however, did elicit testimony from both Sutherland and Klemens that they believed Patterson's mental abnormality and personality disorder made it seriously difficult for him to control his dangerous behavior. In addition, Klemens testified that, during his interview with Patterson, Patterson stated that he had attempted suicide while at LSSH because other inmates dared him to do it; Klemens found this important because it showed a lack of impulse control. Patterson also admitted during the interview that he had a sexual relationship with another resident while at LSSH, which Klemens found significant because it showed an unwillingness to control his sexual behavior, even in a very structured setting. Klemens testified that Patterson described the disciplinary reports from his incarceration; there were 17 such reports in the files Klemens examined, 4 of which involved sexual activity and 2 of which involved lewd acts. These acts also showed poor impulse control.
Barnett's testimony controverted the testimony of Klemens and Sutherland. Barnett stated that he did not believe Patterson would be likely to reoffend due to poor impulse control and stated that he did not believe Patterson's disciplinary violations showed poor impulse control. Rather, Barnett believed that Patterson chose not to control his sexual behavior in the situations that led to the disciplinary infractions. Ultimately, Barnett testified that he did not think Patterson had a mental abnormality “that would make him prone to being dangerous to others.” As previously stated, this court may not reweigh the evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. See In re Care & Treatment of Williams, 292 Kan. at 104. Taken in the light most favorable to the State, there was sufficient evidence for a rational factfinder to find beyond a reasonable doubt that Patterson had serious difficulty controlling his behavior.
Because all of the evidence, viewed in the light most favorable to the State, could provide a sufficient basis for a rational factfinder to find beyond a reasonable doubt that Patterson was a sexually violent predator, his claim on this issue fails. We emphasize that we are reviewing the evidence in the light most favorable to the State. Upon remand for the district court to consider the fourth element, i.e., whether Patterson has serious difficulty controlling his dangerous behavior, the district court will not consider the evidence presented in a light most favorable to the State. The State is required to prove this element in district court beyond a reasonable doubt.
Did the State's Failure to Provide Patterson with Sex Offender Treatment While He Was in Prison Violate his Due Process rights?
Patterson contends that the State's failure to provide him with sex offender treatment while he was in prison means his subsequent civil commitment as a sexually violent predator violates his due process rights. Patterson argues that due process requires that the nature and duration of commitment be reasonably related to the purpose behind the commitment, and he alleges the purpose of the SVPA is treatment. Patterson asserts that had the State genuinely sought to treat him, it would have provided sex offender treatment while he was in prison, and not waited until he was nearing release to begin civil commitment proceedings. According to Patterson, because the State did not provide such treatment in prison, the nature and duration of his indefinite commitment no longer bears a reasonable relation to its treatment purpose.
“Whether an individual's due process rights were violated presents a question of law over which this court has de novo review. [Citation omitted.]” LaPointe v. State, 42 Kan.App.2d 522, 547, 214 P.3d 684 (2009), rev. denied 290 Kan. 1094 (2010); see In re J.D.C., 284 Kan. 155, 162, 159 P.3d 974 (2007). Moreover, to the extent that this question involves statutory interpretation, an appellate court exercises de novo review. In re Marriage of Hall, 295 Kan. 776, 778, 286 P.3d 210 (2012).
K.S.A. 59–29a09, which is part of the SVPA, states: “The involuntary detention or commitment of persons under this act shall conform to constitutional requirements for care and treatment.” Additionally, in a case concerning pretrial detention after a determination that a criminal defendant is incompetent to stand trial, the United States Supreme Court has stated that “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); see Seling v. Young, 531 U.S. 250, 265, 121 S. Ct 727, 148 L.Ed.2d 734(2001).
Patterson alleges that the purpose of the SVPA is treatment and that “if the State genuinely sought to provide treatment for Mr. Patterson under the [SVPA], it would have provided the treatment by now.” As the State notes, however, Patterson appears to be imposing the reasonable relationship requirement onto the time he spent in prison serving his criminal sentence as well. There is no indication that whether sex offender treatment was given in prison affects whether the nature and duration of postcriminal-sentence civil commitment as a sexually violent predator bears a reasonable relation to the purpose behind the civil commitment. The State correctly points out that Patterson provides no legal authority that persuasively supports this premise. In addition, although Patterson makes much of his assertion that nothing prohibited the State from beginning the commitment proceedings earlier or from providing sex offender treatment in prison, Patterson fails to show any reason that the State was required to do so.
There is no legal support for the concept that the failure to provide sex offender treatment during incarceration renders subsequent civil commitment under the SVPA unconstitutional. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief the issue. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 626, 645, 294 P.3d 287 (2013). An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
In any event, as the State also notes and Patterson concedes, it appears that Patterson did not participate in the prison's sex offender treatment program because of his violations of the prison's rules and regulations, which led to his being placed in segregation. The fact that his continued segregation—a result of his disciplinary issues—prevented him from participating in sex offender treatment precludes Patterson from now complaining that he could not participate in sex offender treatment. Cf. Johnson v. State, 289 Kan. 642, 655–56, 215 P.3d 575 (2009) (holding that sexually violent predators who did not comply with the sexual predator treatment program were barred from raising an as-applied due process argument alleging that the program provided constitutionally inadequate treatment).
Is the Sexually Violent Predator Act Unconstitutional?
Next, Patterson argues that the State's inability to provide treatment to people committed under the SVPA violates due process of law and renders the SVPA unconstitutional. Patterson contends that the sexual predator treatment program (SPTP) established by the SVPA does not provide adequate treatment and constitutes an indefinite warehousing of individuals after their release from prison. According to Patterson, this warehousing is not reasonably related to the treatment purpose for which people are civilly committed under the SVPA; therefore, the program does not comport with due process and is unconstitutional.
As previously stated, whether an individual's due process rights were violated presents a question of law over which an appellate court has unlimited review. LaPoint, 42 Kan.App.2d at 547. To the extent that this question involves statutory interpretation, an appellate court exercises de novo review. In re Marriage of Hall, 295 Kan. at 778.
Citing a case from the Ninth Circuit Court of Appeals, Patterson argues that “to comport with due process, the treatment programs must provide a realistic opportunity for the offenders to be cured or improve the condition for which they were committed.” See Sharp v. Westin, 233 F.3d 1166, 1172 (9th Cir.2000). Patterson then asserts generally that the treatment provided under the SVPA is “lackluster and rarely, if ever, results in persons being ‘cured’ and released from confinement.” To support this assertion, Patterson submitted to the district court a transcript of testimony presented on behalf of Rob Siedlecki, Acting Secretary of the Department of Social and Rehabilitation Services, to the House Social Services Budget Committee on January 26, 2011 (See Comm. Minutes, attach. A).
The testimony established that there are seven phases of treatment under the SPTP; the first five take place at LSSH, while phases six and seven take place at Osawatomie State Hospital. In order to achieve monitored conditional release, the last stage before unconditional release, a sexually violent predator must complete all seven phases. As of January 1, 2011, there were seven people in the sixth phase, also known as the transition program, with one more scheduled to enter the program that month. The testimony also described the results of a 2008 review which found that the program was sound, that the amount of treatment was average or slightly above average when compared to other programs, and that the rate of placement in transitional release was slightly higher than other programs. The testimony noted, however, that most participants in the program arrive with a great deal of anger because they have already served a prison sentence. Finally, the testimony provided the following figures: of 247 people committed to the program, 2 had completed it, 4 were on conditional release, and 7 were in the transition program.
Patterson admits the similarity between his arguments and those raised in an appeal from the dismissal of aK.S.A. 60–1501 petition in a previous case. In Johnson, our Supreme Court denied the appeal of Edward Johnson and Chase Collins, two sexually violent predators who argued that “the SPTP, as applied to them, is constitutionally inadequate to ‘cure’ their conditions and lead to their eventual release.” 289 Kan. at 644. Johnson and Collins described the SPTP as a form of warehousing rather than a treatment program and pointed out the low number of residents released from treatment. The court stated that it was “important to note that Johnson and Collins only have standing to assert constitutional infirmities in the program as applied to them; they lack standing to assert how the program impacts others.” 289 Kan. at 651.
In examining the program as applied to Johnson and Collins, however, the court found that Johnson and Collins' failure to progress through the program was caused by their refusal to fully comply with the treatment program, not indifference by the staff; therefore, there was not sufficiently shocking conduct to satisfy the first avenue. 289 Kan. at 653. Next, our Supreme Court noted that the legal standard Johnson and Collins would have to meet to show that the SPTP was unconstitutional for a continuing mistreatment of a constitutional stature was not settled. 289 Kan. at 653–54. Without directly settling that issue, the court found that Johnson and Collins' admitted noncompliance with the program barred them from arguing that the program as applied to them constituted continuing mistreatment of a constitutional stature. Therefore, the court affirmed the dismissal of their petition. 289 Kan. at 655–56.
Like Johnson and Collins, Patterson has no standing to raise issues on behalf of others; he may only challenge the SPTP as applied to him, but he has not provided specific examples of how the SPTP has provided him with inadequate treatment opportunities. Moreover, the fact that few participants in SPTP have successfully completed the program does not necessarily mean that the treatment provided is inadequate; according to the testimony upon which Patterson relies, some participants, though very few, have completed the program.
As Patterson notes, due process requires that the nature and duration of his civil commitment must bear a reasonable relation to the purpose for which he was committed. See Jackson, 406 U.S. at 738. Here, according to the testimony upon which Patterson depends, the SPTP has a dual purpose: “First, SPTP's goal is to protect the public from any further victimization by sexual offenders committed to the program. Second, SPTP is required to provide a program of treatment which would assist motivated offenders to reduce their risk for re-offense to the point that they could safely live in open society and become contributing citizens.” See Minutes, House Social Services Budget Comm., January 26, 2011, attach. A. Patterson has not shown that the nature and duration of his civil commitment does not bear a reasonable relation to the State's purposes of protecting the public and providing treatment to assist him to reduce his risk of reoffending to the point that he could return to and contribute to society.
Did the Use of Opinions Based on Hearsay Violate Patterson's Rights Under the Confrontation and Due Process Clauses?
Next, Patterson argues that the district court violated his constitutional right to confront witnesses against him when it allowed the State's experts to give their opinions that were based on hearsay evidence. Patterson bases his asserted right to confrontation on the Sixth Amendment to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and the Due Process Clause, presumably of the Fourteenth Amendment to the United States Constitution. The State contends that Patterson has no right to confrontation in civil proceedings to commit him as a sexually violent predator.
This court's review is de novo. See State v. Breedlove, 295 Kan. 481, 489, 286 P.3d 1123 (2012) (“When reviewing issues related to the Confrontation Clause of the Sixth Amendment to the United States Constitution, this court analyzes questions of law and applies a de novo standard of review. [Citation omitted.]”); State v. Gilliland, 294 Kan. 519, 545, 276 P.3d 165 (2012) (stating that a question of due process is one of law that appellate courts review de novo), cert. denied133 S.Ct. 1274 (2013); State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007) (stating that issues related to confrontation under § 10 of the Kansas Constitution Bill of Rights are subject to de novo review).
When Sutherland testified at trial, he referred to information from the LSSH records that in turn cited an affidavit that stated Patterson had “admitted to performing oral sex on a 14–year–old three or four times. Mr. Patterson went on to state that this adolescent performed anal sex upon him. Mr. Patterson also acknowledges touching two underage boys, he admitted to molesting three other children, [a] stepson, [a] step-nephew and a cousin[.]” At that point, Patterson objected for numerous reasons, including a violation of his due process rights and his right to confrontation. The district court disagreed and overruled the objection, stating that Sutherland was merely providing the information upon which he relied to determine whether Patterson was likely to reoffend.
Initially, Patterson's claims of protection under the confrontation rights found in the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights are easily resolved. The Sixth Amendment states: “ In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” (Emphasis added.) Section 10 of the Kansas Constitution Bill of Rights states: “ In all prosecutions, the accused shall be allowed to ... meet the witness face to face.” (Emphasis added.) As has previously been established, however, civil commitment proceedings under the SVPA are civil, not criminal, in nature. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L. Ed 2d 501 (1997). Accordingly, it follows that confrontation rights under these constitutional provisions do not apply in civil commitment proceedings.
Next, Patterson argues that due process requires he be able to confront witnesses against him in the proceedings. Patterson correctly points out that such a confrontation right grounded in due process previously has been acknowledged by both the United States Supreme Court and Kansas courts. See, e.g., Morrisey v. Brewer, 408 U.S. 471, 480, 488–89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (stating that, although parole revocation is not part of a criminal prosecution, the minimum requirements of due process in a parole revocation hearing include the general right to confront and cross-examine adverse witnesses); In re L.B., 42 Kan.App.2d 837, 841, 217 P.3d 1004 (2009) (recognizing our Kansas Supreme Court's acknowledgement that a parent's right of confrontation and cross-examination in a child-in-need-of-care case stems from the Due Process Clauses of the Fifth and Fourteenth Amendments), rev. denied 289 Kan. 1278 (2010).
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To determine whether due process requires the opportunity for confrontation and cross-examination here, this court must examine what procedural due process requires in the context of commitment under the SVPA. The United States Supreme Court has stated that “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citations omitted.]” 424 U.S. at 333. The Mathews Court established a three-factor test to determine what due process protections are required in a particular proceeding and Kansas courts follow the same test. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 22, 287 P.3d 855 (2012). Accordingly, this court must examine:
“(1) the private interest affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail. [Citations omitted.]” 295 Kan. at 22.
See Mathews, 424 U.S. at 335.
Both parties agree that, as Patterson was involuntarily committed, his liberty interest is obviously at stake and weighs heavily in his favor. In addition, the fact that Patterson is challenging the due process afforded him at his initial commitment rather than that employed later in the process increases his liberty interest. Cf. In re Care & Treatment of Williamson, Nos. 99,553, 99,554, 2009 WL 248229, at *5 (Kan.App.2009) (unpublished opinion) (stating that because the appellant already had been adjudicated a sexually violent predator and was seeking discharge from treatment, his liberty interest was “diminished relative to that of a person subject to an initial commitment proceeding. [Citation omitted.]”).
The second factor requires this court to examine the risk of erroneous deprivation of Patterson's liberty through the procedures used and the probable value, if any, of the additional safeguard he requests. Patterson argues that the risk of erroneous deprivation is high because the reliability of the statements in the reports and affidavits is unknown and cannot be determined if he is not allowed to cross-examine the people who made the statements. The State argues that Patterson had the opportunity and the right to cross-examine and confront the experts who relied upon these statements and to present evidence of the falsity of or flaws in any of the facts and data contained in the reports upon which the experts relied.
Our Supreme Court has recognized that “[t]he [SVPA] provides several protections to ensure that persons are not wrongly determined to be sexual predators and committed under the Act,” including requiring the State to prove its case beyond a reasonable doubt, providing the respondent with the right to a probable cause hearing with the opportunity to present evidence, the right to counsel at all stages of the proceedings, and access to a qualified expert at the State's expense. See In re Care & Treatment of Ontiberos, 295 Kan. at 24. Other jurisdictions have also acknowledged that such protections weigh in favor of the State on this factor. See In re Amey, 40 A.3d 902, 916–17 (D.C.2012) (holding that “the opportunity appellant was afforded to confront ... expert testimony [based on reports containing hearsay] was more than adequate to protect the fundamental fairness and reliability of [the expert] testimony and, more generally, of this involuntary civil commitment proceeding”); Det. of Stout, 159 Wash.2d 357, 370–71, 150 P.3d 86 (2007) (finding that the “comprehensive set of rights” for a sexually violent predator detainee sufficiently protects such a detainee from being erroneously committed even if the detainee is not able to confront a live witness at a commitment proceeding).
Here, the district judge explicitly stated, “You can certainly present evidence that, in fact, assumptions upon which [the expert] relies are incorrect and that would all go to the weight the Court places on his recommendation.” In its memorandum decision, the court again noted the issues raised by allowing hearsay as a basis for expert opinion and explained that the Kansas Legislature's enacting of K.S.A.2012 Supp. 59–29a06(c) to explicitly allow such a basis for expert opinions was in response to courts' struggling with whether to do so. A district court's ability to recognize the reliability of the facts and data that form the basis for an expert's opinion in commitment proceedings under the SVPA, combined with the legislative directive that otherwise inadmissible evidence may form the basis for such an opinion and the respondent's opportunity to cross-examine the experts about the reliability of the facts and data and to point out flaws, result in this factor supporting the State's position, not Patterson's.
Turning to the third factor, this court must consider “the government's interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail. [Citation omitted.]” In re Care & Treatment of Ontiberos, 295 Kan. at 22. Patterson contends first that, had the State begun SVPA proceedings as soon as he was criminally charged, the witnesses involved in the underlying incidents reported in his institutional file would have been more readily available. Further, Patterson asserts that there has been no showing that the State would have been overly burdened by having to produce the witnesses. Considering, however, that some of the incidents had occurred years earlier, it would have been at considerable expense had the State had to produce every person implicated in the contents of Patterson's institutional file—the alleged victims, the medical staff, the prison officials and other inmates involved in the actions that led to the disciplinary reports, the detective who wrote the affidavit, etc.
Also, as the State points out, the government has a very strong interest in protecting the community from sexually violent predators who pose a risk of reoffending. This interest plus the State's interest in “ ‘streamlining commitment procedures [to] avoid[ ] the heavy financial burden that would’ accompany live testimony” overcomes Patterson's arguments. See Det. of Coe, 175 Wash.2d 482, 511–12, 286 P.3d 29 (2012). Therefore, the third Mathews factor also favors the State. For all of these reasons, Patterson does not have a due process right to confront the witnesses and persons involved in the creation of the documents upon which the experts based their opinions and diagnoses.
Did Cumulative Error Deny Patterson His Right to a Fair Trial?
Finally, Patterson argues that cumulative error deprived him of a fair trial. When considered collectively, trial errors may require reversal if the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Smith, 296 Kan. 111, 134, 293 P.3d 669 (2012). A single error cannot constitute cumulative error. See State v. Wilson, 295 Kan. 605, 625, 289 P.3d 1082 (2012). Because only one of Patterson's claims of error is successful, his claim of cumulative error fails.
Affirmed in part, reversed in part, and remanded with directions.