Opinion
No. ED 83299
February 1, 2005
Appeal from the Circuit Court of St. Charles County, Honorable Jon A. Cunningham.
Emmett D. Queener, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon Trevor S. Bossert, Jefferson City, MO, for respondent.
Before Clifford H. Ahrens, P.J., William H. Crandall, Jr., J. (writer), and Nannetta A. Baker, J.
Appellant, Albert Bernat, appeals from the trial court's judgment, after a jury trial, finding that he was a sexually violent predator pursuant to sections 632.480 to 632.513 RSMo 2000. We transfer to the Supreme Court of Missouri.
Bernat pled guilty to forcible rape in 1986 and was sentenced to prison. While incarcerated, he completed phases I and II of the Missouri Sexual Offender Program. He was paroled from prison in 1992. He was accused of rape again in 1995. Although he was acquitted of that charge, his parole was revoked.
In December 2000, prior to his scheduled release date, the Missouri Attorney General filed the present action to commit Bernat to the custody of the Department of Mental Health as a sexually violent predator. The court overruled Bernat's pre-trial motion to preclude the State from calling him as a witness and from making reference to his failure to testify. The State did not call Bernat as a witness and he did not testify at trial. During its closing argument, however, the State attempted to disparage Bernat's claim that he had changed. The State made comments to the jury regarding Bernat's failure to testify, including the following: "Did you get to judge his credibility about how he changed? Did he get up and testify?" and "You haven't seen him up here and seen him look you in the eye and tell you what [sic] he has changed." The jury found Bernat to be a sexually violent predator under 632.480. The trial court confined him to a secure facility in the custody of the Department of Mental Health until such time that he was safe to be released. Bernat appeals.
A sexually violent predator is defined, in pertinent part, as "any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who: (a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease of defect . . . of a sexually violent offense; or (b) Has been committed as a criminal sexual psychopath. . . ." Section 632.480(5).
The threshold issue is the constitutionality of Missouri's sexually violent predator law, which does not provide that the sexually violent predator, who is subject to civil commitment, has the right to remain silent. In his first point on appeal, Bernat attempts to cast his constitutional argument as one challenging, not the constitutionality of the statute, but rather the unconstitutional application of the statute to deny him due process and equal protection. Yet, it is clear that the sexually violent predator statute does not specifically give the sexually violent predator the right to remain silent, while the general civil commitment law expressly provides for the right to remain silent. In addition, the State recognized that Bernat was in essence questioning the constitutionality of the statute, and addressed his argument on the basis that it was merely colorable. We therefore view Bernat's point on appeal as a challenge to the constitutional propriety of the sexually violent predator statute.
The Supreme Court of Missouri is vested with exclusive jurisdiction of all cases regarding the validity of a statute. Mo. Const. Art. V, Sec. 3. The mere assertion, however, that a statute is unconstitutional does not deprive this court of jurisdiction. Wright v. Missouri Dept. of Social Services, 25 S.W.3d 525, 528 (Mo.App.W.D. 2000). The first question is whether the constitutional challenge is preserved for our review. If the constitutional challenge is not preserved properly for appellate review, jurisdiction remains with this court. State v. Bowens, 964 S.W.2d 232, 236 (Mo.App.E.D. 1998). A constitutional challenge is waived if it is not raised at the earliest opportunity. Id.
In this case, Bernat raised his equal protection challenge to the sexually violent predator law in his pre-trial motion to preclude the State from calling him as a witness or from commenting on his failure to testify. He raised the issue again in his motion for JNOV or in the alternative for a new trial. He thus properly preserved his constitutional claim. When the trial court denied Bernat's pre-trial motion, it implicitly held that the sexually violent predator statute was constitutional. See Champlin Petroleum Co. v. Brashears, 592 S.W.2d 545, 547 (Mo.App. 1979) (in sustaining motion to dismiss, court implicitly ruled that the challenged statute was constitutional).
The second question is whether Bernat's constitutional challenges are real and substantial. To vest jurisdiction in the supreme court, the constitutional challenge must be real and substantial. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999). If the constitutional challenge is merely colorable, this court retains jurisdiction. Id.
Generally, in a civil proceeding, an opponent may draw an adverse inference against a party, knowledgeable of the facts in controversy, who fails to testify; and an opponent may argue such a failure to testify to the jury. Pasternak v. Mashak, 428 S.W.2d 565, 568 (Mo. 1967). In contrast, when the right to silence is invoked in a criminal case, there is no question that it is error to allude, either directly or indirectly, to a person's refusal to testify on his own behalf. State v. Barnum, 14 S.W.3d 587, 592 (Mo. banc 2000). In the instant action, the State commented on Bernat's failure to testify and insinuated to the jurors that as a result of his failure to testify they could draw an adverse inference regarding whether he had changed.
Bernat argues that because persons committed under the general civil commitment law, section 632.335.2(4), have the right to remain silent, application of equal protection compels this court to find that sexually violent predators possess that same right. He contends that under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, section 2 of the Missouri Constitution, he was entitled to the same protections as those persons subject to general involuntary commitment. Because he was also subject to civil commitment, he was not accorded the same statutory right to remain silent as those persons similarly situated.
Jurisdictions vary on whether they afford the person subject to commitment as a sexually violent predator the right to remain silent. In Wisconsin, W.S.A. 980.03(2)(b), and in Illinois, 725 I.C.S.A. 207, section 25(c)(2), the right to remain silent is granted by statute. Other states have determined that because the commitment of a sexually violent predator is a civil proceeding, there is no right to remain silent. See, e.g.,People v. Leonard, 93 Cal.Rptr.2d 180 (Cal.App. 3 Dist. 2000) and In re Young, 857 P.2d 989 (Wash. 1993).
Bernat's challenge to the constitutionality of the sexually violent predator law is real and substantial, and not merely colorable. The Supreme Court of Missouri has exclusive jurisdiction to pass on the constitutional questions raised by Bernat. Thus, we lack jurisdiction.
The case is transferred to the Supreme Court of Missouri.
Clifford H. Ahrens, Presiding Judge and Nannette A. Baker, Judge: Concur.