Opinion
No. 23335
Handdown Date: May 18, 2001
APPEAL FROM: CIRCUIT COURT OF NEWTON COUNTY, HON. TIMOTHY W. PERIGO
REVERSED.
Nancy A. McKerrow for Appellant.
James R. Layton for Respondent.
Barney, C.J., and Rahmeyer, J., concur.
Joseph Johnson ("Appellant") appeals from the finding of a Newton County jury that he is a sexually violent predator under section 632.480, RSMo Supp. 1998. Appellant challenges the court's denials of his Motion for Summary Judgment and Motion for a Directed Verdict, and its decisions to permit certain testimony and argument. Appellant claims he was denied his rights to equal protection, due process, and a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and by Article I, sections 2, 10 and 18(a) of the Missouri Constitution. FactsIn 1991, Joseph Johnson ("Appellant"), pursuant to a plea agreement, entered guilty pleas to two counts of sodomy committed against his nine-year-old stepdaughter, was sentenced to five years' imprisonment on each count, to run concurrently, and received a conditional release in 1994. In 1995, pursuant to a plea agreement, Appellant pleaded guilty to one count of sexual assault against his fiances' fifteen-year-old cousin, was sentenced to four years' imprisonment, and was scheduled to be released on April 1, 1999. On March 30, 1999, pursuant to section 632.486, RSMo Supp. 1998, the State of Missouri filed a petition initiating proceedings to find that Appellant is a sexually violent predator. The court found cause to believe that Appellant is a sexually violent predator, had him taken into police custody and transported to a secure facility, and ordered that a probable cause hearing be held on April 1, 1999. The court subsequently found that there was probable cause to believe that Appellant is a sexually violent predator. It ordered that he be transferred to the Sexual Predator Unit at Farmington, Missouri to determine if he is a sexually violent predator, and ordered that, pursuant to section 632.489.4, RSMo, a psychiatrist or psychologist for the Department of Mental Health examine Appellant. This examination was to determine whether Appellant suffers from a mental abnormality at all and, in particular, whether he suffers from a mental abnormality which makes him more likely than not to engage in predatory acts of sexual violence.
On May 12, 1999, Dr. Steven A. Mandracchia, a clinical psychologist for the Department of Mental Health, examined Appellant. In the report submitted to the court, he stated that in his opinion, Appellant "does not suffer from a mental abnormality within the meaning of section 632.480" and that he "does not suffer from a mental abnormality which makes him more likely than not to engage in predatory acts of sexual violence."
Appellant also requested that a psychiatrist of his own choosing, Dr. A.E. Daniel, examine him. The court granted that request, and Dr. Daniel examined Appellant on June 12, 1999. Dr. Daniel's report was not admitted into evidence and was not part of the legal file.
The State requested that an additional examination of Appellant be performed by a psychologist of the State's choice, Dr. Kenneth Burstin, "to determine the presence of a mental abnormality and whether Respondent is more likely than not to engage in predatory acts of sexual violence." The court granted the State's request, and Dr. Burstin examined Appellant on August 20, 1999. Dr. Burstin stated that he did not believe that Appellant "clearly fulfills diagnostic criteria" for pedophilia, and that Appellant "does not clearly have the necessary symptoms to support the diagnosis of antisocial personality disorder," although he acknowledged that Appellant does have "compelling antisocial traits." Dr. Burstin speculated that based on Appellant's past behavior, "the risk of re-offending cannot be dismissed as negligible" and that Appellant's "risk of re-offending would be increased significantly by a return to substance abuse."
Appellant filed a Motion for Summary Judgment on September 8, 1999, arguing that because the medical experts who examined Appellant did not determine that he suffered from a mental abnormality which makes him more likely than not to engage in predatory acts of sexual violence, he is entitled to judgment as a matter of law. The court denied the motion.
A jury trial was held on September 16 and 17, 1999. At trial, the State presented three witnesses: Mr. Gerald Hoeflein, an employee at the Department of Corrections who prepared the End of Confinement Report recommending that the State commence sexually violent predator commitment proceedings against the Appellant; Dr. Steven Mandracchia, the clinical psychologist for the Department of Mental Health who examined Appellant pursuant to section 632.489.4; and Dr. Loretta Walker, the director of the Sexually Violent Predator Program for the Department of Mental Health.
Hoeflein has an undergraduate degree in Architectural Engineering from Lawrence Technology and a Master's in Counseling from the School of Education at Boston University. He testified that a Bachelor's degree in psychology and a Master's in counseling would permit one to become a psychotherapist. He is not a licensed psychiatrist, psychologist, social worker, or counselor, but at the time of trial was working towards becoming a licensed counselor. As a Department of Corrections employee, Hoeflein has facilitated group treatment for the Missouri Sex Offender Program ("MOSOP"), assessed the risk of recidivism of individuals up for parole, and prepared end-of-confinement reports to determine whether individuals may qualify as sexually violent predators under the Missouri Sexually Violent Predator Law. At the time of trial, Hoeflein had prepared approximately 30 such end-of-confinement reports.
On cross-examination, he said "My degree is a Master's in education." Appellant's counsel then asked, "It's not counseling, is it?" and Hoeflein responded, "It is in counseling. It's from the School of Education."
Hoeflein's title at the Department of Corrections is "Associate Psychologist." He admitted that he works in that position under a state statute which gave the Department of Corrections a grace period through October, 2001 by which time its "entire psychological staff" must be licensed, and that he works "under a psychologist." Anytime he was asked how he was qualified to perform psychological testing or to work in the position he did, he responded, "By having had the experience and educational background required by the State of Missouri, Department of Corrections, for the position I'm in." Appellant's counsel objected several times to Hoeflein's qualifications to testify as an expert, but the court overruled the objections and permitted Hoeflein to testify.
At a bench conference during which Appellant's counsel voiced his objection, the following exchange took place:
MR. R. WARDEN [Appellant's counsel]: Your Honor, have you decided he's an expert yet to give his opinion?
THE COURT: Yes, he is.
MR. R. WARDEN: Your Honor, this is the first time . . . I've ever seen a man say I'm qualified because the Department of Corrections says I'm qualified. How can the Department of Corrections establish a basis for something like that? That's what he's doing.
THE COURT: Mr. Warden, you didn't ask the Department of Corrections if he was an expert. You asked Judge Perigo, and Judge Perigo said he was. Therefore, he's qualified in this court.
MR. R. WARDEN: I suppose so.
THE COURT: Just as a matter of curiosity, how many times do you have people in the Department of Corrections testify in these types of cases?
. . .
MR. R. WARDEN: I don't know Judge. I'd have to think about it.
THE COURT: Okay. This is the first time I ever had one try to be qualified. So it's also my first. But that doesn't mean he's not qualified. So I don't know what you meant by your comment.
MR. R. WARDEN: Well, here, Judge, normally to qualify somebody, he's got to be a member of some organization, or he has to hold some degrees.
THE COURT: He has a degree in counseling.
MR. R. WARDEN: Yes. That's all I've heard about.
THE COURT: Then he has five years of experience.
MR. R. WARDEN: All right. But the experience —
THE COURT: He's done 225 assessments. He's also been involved with over 225 MMPIs. He's testified in court over 20 times. He's had over 200 hours of training. So I find he's an expert.
MR. R. WARDEN: The comment I made was I've never heard somebody try to qualify as an expert because some other department says he's an expert.Later, when State's counsel indicated in a bench conference that she was prepared to begin asking Hoeflein for his opinions, Appellant's counsel objected,
MR. C. WARDEN: I'm going to make the same objection we made earlier. This man has testified that he has to be supervised by a licensed psychologist in order to do his job. If he has to be supervised by someone, how can he be an expert?
THE COURT: Well, the Court's opinion [is that it] goes to the weight the jury wants to give it. You know, some people believe that doing 250 subjects on a daily basis gives you more knowledge than being in an educational system and not seeing these people daily. So that's a question for the jury to decide.
Hoeflein, who interviewed Appellant for purposes of preparing his end-of-confinement report, gave his opinion, based on "a reasonable degree of professional certainty," that Appellant suffers from "antisocial personality disorder" and "paraphilia," which Hoeflein believed were "mental abnormalities" as defined by the statute, and that Appellant "is more likely to commit crimes of a violent predatory sexual nature"; however, he never specifically testified that the "mental abnormalities" he diagnosed Appellant as having made it more likely than not that he would commit predatory acts of sexual violence.
On cross-examination, Hoeflein admitted that he is not a "psychologist." He equivocated on whether or not he was required to be supervised, stating at one point that he is required to be supervised, but not by a licensed psychologist, and that his "immediate supervisor" is not a licensed psychologist, but later in his testimony he stated that "associate psychologists" for the Department of Corrections do "psychological work . . . under the supervision of a person who is designated by the State as a `psychologist'" and that his reports are signed as "approved by" a licensed psychologist.
Hoeflein stated the supervision is only required "[w]hile I'm under supervision for my license" but that he can do his work "without being supervised" as attaining his license "is a separate issue."
Dr. Mandracchia is a clinical psychologist with the State of Missouri Department of Mental Health. He has worked for the Department of Mental Health since 1982. At the time of trial, Dr. Mandracchia was serving as the Director of Forensic Services at Western Missouri Mental Health Center in Kansas City, where he conducts examinations under court order to assess individuals' competency to stand trial, criminal responsibility, and dangerousness, among other issues. He has a Ph.D. in psychology from the University of Missouri, Columbia. Dr. Mandracchia examined Appellant under court order, pursuant to section 632.489.4. He testified that in his opinion, Appellant does not suffer from a mental abnormality as defined by the statute, but that Appellant does have substance abuse problems. He did not find that Appellant had any "particular attraction to prepubital children." He testified that he did not think that either of the events for which Appellant was incarcerated were "predatory" to the extent required to indicate that Appellant had a mental abnormality, in part because the relationships Appellant had with the mother of the nine-year-old and cousin of the fifteen-year-old were not created for the purpose of facilitating sexual relationships with the victims. On cross-examination, he testified that in his opinion, Appellant does not suffer from a mental abnormality and "does not suffer from a mental abnormality which makes him more likely than not to engage in predatory acts of sexual violence." He also testified that he reviewed Dr. Burstin's evaluation, which was "essentially consistent" with his own opinion.
The final witness for the state, Dr. Walker, director of the Sexually Violent Predator treatment program, testified regarding the types and extent of treatment persons in the Sexually Violent Predator unit receive. She testified that she believed Appellant was "treatable."
Appellant filed a Motion for Directed Verdict after the State rested, arguing that "all of the credible evidence supports a verdict in favor of [Appellant] and there has not been sufficient evidence admitted from which the jury, according to the law, could find in favor of the State of Missouri on its Petition and against [Appellant]." The court denied his motion.
Appellant's only witness was Dr. A.E. Daniel, the psychiatrist who examined Appellant. Dr. Daniel testified that in his opinion, Appellant "does not suffer from any mental abnormality" and that Appellant "does not have a mental abnormality which would predispose him to be a sexually violent predator." Dr. Daniel described the sexual acts Appellant was convicted of as "opportunistic" rather than "predatory." He admitted on cross-examination that abuse of drugs or alcohol by the Appellant would increase the risk that Appellant would re-offend.
Both parties offered closing arguments. In the State's closing argument, the Assistant Attorney General urged the jury to use its "reason and common sense" in deciding the case. She told the jury that they did not "need an expert" to tell them that Appellant has a mental abnormality, stating
Joseph Johnson does have a mental abnormality. The evidence is there plain and pure. This is a man who engages in acts of sexual violence. This is a man who is at enormous risk to re-offend. This is a man who needs treatment. And how do we know that? . . . [W]e know that in 1990, he had two convicted sex acts with a nine-year-old girl. Mental abnormality. That is not the normal sexual behavior of an adult male. Use your reason and common sense.
When urging the jury to give Hoeflein's testimony greater weight than the other witnesses', State's counsel said, "Who are you going to believe? This man [Appellant] has a mental abnormality. He needs treatment. And you don't need an expert to tell you that."
Appellant's counsel did not make any objections during State's closing argument, but did attack Hoeflein's credentials and testimony. The State ended its rebuttal closing argument by stating, "[Appellant] does have a mental abnormality. It's plain as day. He's not normal. He likes to have sex with nine-year-olds in a deviate sexual intercourse way. He's not normal. Treat him, and protect the public while he's being treated."
The jury returned a verdict finding that Appellant was a sexually violent predator under section 632.480 et. seq. The court ordered that Appellant be committed to the custody of the director of the Department of Mental Health for control, care and treatment in the Sexual Violent Offender Treatment and Evaluation Program. Appellant filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial on October 15, 1999. The court heard the motion and overruled it on November 16, 1999.
On November 18, 1999, Appellant filed his Notice of Appeal. Appeal of a determination that one is a sexually violent predator is permitted under section 632.495, RSMo Supp. 1999. Cf. In re Salcedo , 34 S.W.3d 862 (Mo.App. 2001) (statute does not authorize attorney general's appeal). Legal Background The Missouri Sexual Predator Act ("the Act") became effective January 1, 1999. The Act, set out at sections 632.480-.513, RSMo, provides a procedure for the civil commitment of individuals determined to be "sexually violent predators." Missouri's Sexual Predator Act was modeled after the Kansas Sexually Violent Predator Act, the constitutional validity of which was upheld by the United States Supreme Court in Kansas v. Hendricks , 521 U.S. 346 (1997).
As noted by the Court, states have, in certain narrow circumstances, provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. Id . at 357. A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. Id . at 358. However, the Court has sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as "mental illness" or "mental abnormality" because such requirements "serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control." Id .
The Court determined that the Kansas Statute, which required that civil commitment of sexual predators be predicated upon the finding of a "mental abnormality" or "personality disorder," was consistent with the requirements of the other civil commitment statutes the Court has upheld "in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." Id . Like the Kansas statute, the Missouri statute limits the involuntary civil commitment of those convicted of sexually violent offenses to persons who suffer from mental abnormalities which predispose them to commit sexually violent offenses.
The term "sexually violent predator" is defined in the Missouri Sexual Predator Act 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 has pleaded or been found guilty, or been found not guilty by reason of mental disease or defect, of a sexually violent offense or has been committed as a criminal sexual psychopath. Section 632.480(5). Sodomy and sexual assault are both considered sexually violent offenses. See section 632.480(4). "Predatory" acts of sexual violence are "acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization." Section 632.480(3). "Mental abnormality" is defined as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." Section 632.480(2).
The commitment process works somewhat differently for persons who have been convicted of a sexually violent offense and are currently incarcerated than for those who have been released from prison. Compare section 632.483 with section 632.484. As Appellant was incarcerated at the time the commitment proceedings at issue in this case begun, we will only discuss the rules applicable to him.
The agency with jurisdiction must give the attorney general and the multidisciplinary team written notice when an inmate who was convicted of a sexually violent offense is within one hundred and eighty days of his or her anticipated release date. Section 632.483.1(1). Within thirty days, the multidisciplinary team, established by the Department of Mental Health and the Department of Corrections, "shall assess whether or not the person meets the definition of a sexually violent predator" and "notify the attorney general of its assessment." Section 632.483.4. In addition, a prosecutor's review committee, "composed of a cross section of county prosecutors form urban and rural counties" will also determine "whether or not the person meets the definition of a sexually violent predator." Section 632.483.5.
If the prosecutor's review committee determines by a majority vote that the individual meets the "sexually violent predator" definition, the attorney general may file a petition in the probate division of the circuit court in which the person was convicted to commence commitment proceedings. Section 632.486. The probate judge reviews the petition to determine if there is probable cause to believe the person is a sexually violent predator, and if so, will direct that the person be transferred to a secure facility. Section 632.489.1.
Within 72 hours of taking the person into custody pursuant to section 632.489.1, the judge must hold a full probable cause hearing at which documentary evidence or live testimony may be received. Section 632.489.2. If the judge determines that there is probable cause, the detainee will be transferred to an appropriate secure facility "for an evaluation as to whether the person is a sexually violent predator." Section 632.489.4. The judge must direct the director of the department of mental health to have a psychiatrist or psychologist examine the individual detained and to file a report with the court within 60 days "unless the court for good cause orders otherwise." Id.
The court must hold a trial to determine if the person is a sexually violent predator within 60 days of the psychiatrist's or psychologist's evaluation. Section 632.492. Either the detainee, the attorney general, or the judge may demand that the trial be before a jury. Id. See also State ex. rel. Nixon v. Askren , 27 S.W.3d 834 (Mo.App. 2000). The court, or the jury in the case of a jury trial, "shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." Section 632.495.
To find that one is a sexually violent predator, the judge or jury must determine first, whether the person has pled guilty, been found guilty, or been found not guilty by reason of mental disease or defect of a sexually violent offense or has been committed as a criminal sexual psychopath; second, whether the person suffers from a mental abnormality; and third, whether that mental abnormality makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. See section 632.480(5). A jury verdict in such instance must be unanimous. Section 632.495.
A person determined by the judge or jury to be a sexually violent predator will be committed "to the custody of the director of the department of mental health for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large." Id. A person whom the judge or jury does not find to be a sexually violent predator must be released. Section 632.495. Discussion Appellant makes eight points on appeal. As our resolution of Appellant's fourth point is dispositive of the appeal, we will not discuss his other points.
In his fourth point, Appellant argues that the trial court erred when it permitted Gerald Hoeflein to offer opinions as to whether Appellant suffered from a mental abnormality which made it more likely than not that he would engage in predatory acts of sexual violence because "Mr. Hoeflein was not qualified as an expert to render those opinions since he was neither a psychologist or a psychiatrist, and even if he were licensed as a professional counselor, he would not be permitted to make diagnoses of mental abnormalities."
As noted in our statement of the facts in this case, Hoeflein, an employee of the Department of Corrections who is not a licensed psychiatrist, psychologist, social worker or counselor, was qualified as an expert and permitted to give his opinion that Appellant suffers from a paraphilia and antisocial personality disorder over the numerous objections of Appellant's counsel. Appellant argues that because section 632.489.4, RSMo Supp. 1998 requires that a psychiatrist or psychologist "as defined in section 632.005" examine the alleged sexually violent predator before trial, that only licensed psychiatrists or psychologists may offer their expert testimony at trial. However, no Missouri statute pertaining to sexually violent predators makes such limitations at trial. See section 632.480, et seq.
Section 490.065.1, RSMo 1994 provides,
In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Generally, the admission or exclusion of expert opinion testimony is a matter within the trial court's discretion. Landers v. Chrysler Corp ., 963 S.W.2d 275, 281 (Mo.App. 1997). As noted in Landers , "[t]he use of the disjunctive `or' in section 490.065 recognizes that an expert witness may be qualified on foundations other than the expert's education or license." Id . Thus, in Landers , the Eastern District permitted a neuropsychologist, who taught neurology and neurological surgery at a medical school, to testify as a medical expert as to the causation of an organic brain injury. Id . at 282. Subsequently, in Fierstein v. DePaul Health Center , 24 S.W.3d 220, 226-27 (Mo.App. 2000), the Eastern District permitted a licensed clinical social worker with a Ph.D. in social work to testify as an expert on the emotional distress a party suffered when a medical center released her medical records without her consent. The social worker gave his opinion based on a reasonable degree of "clinical certainty," not "medical certainty." Id . at 227.
Persons who are licensed medical doctors practicing psychiatry, licensed psychologists, and licensed social workers are permitted by law to evaluate persons and make diagnoses of mental disorders. The phrase, "the practice of medicine," is not legislatively defined, but has been construed by the courts to include the diagnosis and treatment of the sick. See Missouri Bd. of Registration for the Healing Arts v. Levine , 808 S.W.2d 440, 442 (Mo.App. 1991). The "practice of psychology" is defined in section 337.015.3, and includes the "diagnosis and treatment of mental and emotional disorder or disability." "Clinical social work" is defined in section 337.600 to include "diagnosis, treatment, prevention and amelioration of mental and emotional conditions." "Professional counseling" and "practice of professional counseling," phrases defined in section 337.500, are not defined to include "diagnoses" of any sort, but do include "[a]ppraisal or assessment, which means selecting, administering, scoring, or interpreting instruments designed to assess a person's . . . aptitudes, intelligence, attitudes, abilities, achievement, interests, and personal characteristics."
Thus, in Landers and in Fierstein , the witnesses were both qualified within their respective professions to make the diagnoses to which they testified at trial. Hoeflein, an "associate psychologist" for the Department of Corrections, in the process of becoming a licensed professional counselor, was not so qualified to diagnose Appellant. The "diagnoses" Hoeflein was permitted to make while working at the Department of Corrections had to be approved and presumably reviewed by a supervising licensed psychologist, and thus Hoeflein should not have been permitted to testify to his "diagnoses" as "an expert" at trial. While his experience treating sex offenders conceivably would qualify him to testify as an expert on many issues, diagnoses of mental disorders is not even arguably within his area of expertise and his testimony on that point should have been excluded. Finding that the trial court abused its discretion in admitting that testimony, we reverse the trial court's decision.
Hoeflein's testimony was the only testimony the State presented that Appellant suffered from a mental abnormality. Proof that criminal sexual offenses have been committed in the past or that a person is dangerous is not enough under the applicable statutes or the U.S. Supreme Court's decision in Kansas v. Hendricks . As reprehensible as Appellant's past conduct may have been, we are limited to and must follow the law applicable to the situation. Without Hoeflein's testimony, the State lacks sufficient evidence to support two of the three essential elements of its case, namely, that Appellant suffers from a mental abnormality, and that he suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Obviously, the State was aware of the questionable nature of Hoeflein's qualifications to testify as an expert on the matter on which he did so. Thus, it is apparent that if they had additional and better-qualified experts available which would support the case, they would have used them. Given this circumstance, we feel that remand for a new trial would be inappropriate. Cf. Kinetic Energy Dev. Corp. v. Trigen Energy Corp. , 22 S.W.3d 691, 703 (Mo.App. 1999).
The judgment is reversed.