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concluding that expert could base his opinion that a person is a sexually violent predator and likely to reoffend on a clinical interview, official records, and actuarial assessment tools
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No. 2-135 / 01-0397
Filed September 25, 2002
Appeal from the Iowa District Court for Marion County, J. W. Jordan, Judge.
The respondent appeals from his commitment as a sexually violent predator and argues the district court erred in admitting expert testimony which was based on unreliable actuarial instruments for the purpose of establishing his likelihood to reoffend. AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Catherine E. Johnson, Assistant Public Defender, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Andrew B. Prosser and Roxann M. Ryan, Assistant Attorneys General, for appellee.
Heard en banc.
The respondent-appellant, Dennis Rafferty, appeals from the district court's finding he is a sexually violent predator under Iowa Code chapter 229A. See Iowa Code § 229A.2 (1999 Supp.). He claims the court abused its discretion in allowing expert testimony concerning his likelihood to reoffend, which was based in part on actuarial instruments. He also contends the court violated his constitutional right to due process by admitting the actuarial instrument evidence. We affirm.
I. Background facts and proceedings
The State filed a petition on August 9, 2000, alleging Rafferty was a sexually violent predator as defined in Iowa Code chapter 229A. He filed a pretrial motion under Iowa Rule of Evidence 5.104( a) on October 20, requesting that anticipated expert testimony based on actuarial instruments be excluded. The evidence challenged went to Rafferty's likelihood of reoffending. See Iowa Code § 229A.2(9). The State's expert, Dr. Caton Roberts, based his assessment of Rafferty on a clinical interview, a review of Rafferty's official records, and the use of four actuarial assessment tools. By stipulation between the parties, evidence for this hearing was submitted through transcripts and exhibits. Rafferty submitted the complete transcript and decision from the Johnson hearing and other exhibits. The court held its hearing on all pending motions on December 20. On December 21, the court ruled the expert's testimony based on the actuarial instruments was admissible. The court stated:
In re Detention of Harold Johnson, Story County LACV038974 (2001).
[Rafferty's] position basically is that anticipated expert testimony to be offered by the state by way of actuarial models predicting future behavior is so untested that it should not be considered sufficiently reliable to submit to the jury. The state resists that position reminding the court that the Iowa Supreme Court, although not preventing the use of a "Daubert" analysis, does not require the court to do so. With that position, and the additional position of the Iowa Supreme Court as to its "liberal admission" of expert testimony, the state should not be prevented from presenting such expert testimony.
This court agrees with the state's position concerning expert testimony and now denies [Rafferty's] first 104 motion.
On February 6, 2001, the court held a bench trial based on the joint stipulation of facts and exhibits submitted by the parties. The parties stipulated to the facts that form the basis for a finding Rafferty is a sexually violent predator. The court found the evidence proved beyond a reasonable doubt all three elements necessary to show Rafferty was a sexually violent predator and ordered Rafferty committed. Rafferty appeals.
The three statutory elements are set forth in Iowa Code section 229A.2(9), which defines "sexually violent predator" as, a person who [1] has been convicted of or charged with a sexually violent offense and [2] who suffers from a mental abnormality [3] which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility. Id. (internal numbers added).
II. Claims on appeal
Rafferty first claims the district court abused its discretion in admitting testimony from the State's expert based on actuarial instruments and concerning his likelihood of reoffense. He contends the instruments are unreliable and were used for an improper purpose — to predict whether or not he is likely to reoffend if not committed. The State responds the instruments are reliable and scientifically valid. It contends the expert's testimony properly was admitted.
Second, Rafferty claims the court violated his substantive due process rights by admitting the evidence based on the actuarial instruments and failing to allow him to present a complete defense and a complete cross-examination of the State's expert on the underlying reasoning and methodology of actuarial instruments. The State responds that Rafferty did not preserve error on this claim.
III. Scope of review
We normally review a district court's evidentiary rulings for an abuse of discretion. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). "An abuse of discretion occurs when the trial court exercises its discretion `on grounds or for reasons clearly untenable or to an extent clearly unreasonable.'" In re Estate of Rutter, 633 N.W.2d 740, 745 (Iowa 2001) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber, 616 N.W.2d at 638. "[W]e grant the district court wide latitude regarding admissibility" and will reverse only where the losing party was prejudiced by an unreasonable decision. Kurth v. Iowa Dep't of Transp., 628 N.W.2d 1, 5 (Iowa 2001) (quoting State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998)).
We review claims the court violated a person's constitutional rights de novo, "making our own evaluation of the totality of the circumstances." Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001) (citing Stanley v. Fitzgerald, 580 N.W.2d 742, 744 (Iowa 1998)).
IV. Discussion
A. Admissibility of evidence. Our supreme court has set forth the test for admission of expert testimony in Iowa:
To be admissible in an Iowa court the evidence, of course, must be relevant. Iowa R. Evid. [5.]402. Second, it must be evidence in the form of "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." Iowa R. Evid. [5.]702. Third, the witness must be "qualified as an expert by knowledge, skill, experience, training, or education." Id. In addition, any potential for an exaggerated effect of the proffered evidence should be considered.Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 533 (Iowa 1999). Iowa Rule of Evidence 5.702 provides:
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.
Iowa R. Evid. 5.702. This rule of evidence and our case law make it clear "we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area." Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997).
Rafferty contends the
district court's ruling does not consider all of the relevant legal, scientific, and equitable principles involved in the issue of admissibility of actuarial instruments. The district court did not consider or reach a final determination on either of the two required Leaf questions in admitting the proposed testimony.
We note, however, the "two required Leaf questions" are found in a quote from Daubert concerning federal rule of evidence 104. Leaf, 590 N.W.2d at 531 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469, 482 (1993)). Our supreme court expressly held in Leaf that the Daubert analysis was not required in Iowa. Leaf, 590 N.W.2d at 534. Consequently, we cannot conclude the district court's "failure" to apply a Daubert analysis in this case constitutes an abuse of discretion.
The bulk of Rafferty's argument concerning the admissibility of the expert's testimony based on the actuarial instruments is an application of the Daubert "considerations" to the instruments in an effort to show they do not reach the level of reliability to be admissible. See Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2797, 125 L.Ed.2d at 483 ( cited in Leaf, 590 N.W.2d at 533)). Our supreme court explicitly stated "trial courts may, in their discretion," consider the factors enumerated in Daubert. We find nothing in the district court's exercise of that discretion that could be characterized as an abuse of discretion as set forth above. We therefore affirm the district court's decision to admit the written evaluation of Rafferty, which was based in part on the results obtained from the actuarial instruments in question. We note that Dr. Roberts's opinion "Rafferty's mental abnormality makes it likely he will engage in predatory acts constituting sexually violent offenses if not confined to a secure facility" is grounded both in his analysis of the results of the actuarial instruments and in his clinical judgment based on an interview with Rafferty. The weight to be given to Dr. Roberts's opinion was for the court, as fact finder in this case, to determine.
B. Due process violation. Rafferty also alleges his constitutional due process rights were violated by admitting the evidence from the actuarial instruments because this denied him "the ability for a fair opportunity to defend against the state's accusations of his risk assessment." Specifically, Rafferty argues he could not "present a complete defense and a complete cross-examination" of Dr. Roberts because "Dr. Epperson, creator of the MnSOST-R, refused to provide the raw data on both the MnSOST and the MnSOST-R to other experts for assessment." The State claims Rafferty did not preserve this issue for review.
Dr. Epperson did not testify in Rafferty's case. Rafferty submitted a transcript of a hearing in Harold Johnson's civil commitment case. In that transcript, Dr. Epperson responded to the claim he refused to provide the raw data he used. He offered to allow access to and analysis of the raw data, but refused to release it from his custody until after publication of his findings. The access to the data offered by Dr. Epperson would serve the same purpose for the defense as release of the data. Rafferty's claim he could not prepare to cross-examine Dr. Roberts is without merit. We note also that we are unable to find any request for release of the data or for access to the data in the case before us.
V. Conclusion
Our supreme court's ruling in Leaf controls our analysis of the district court's exercise of discretion in admitting the expert testimony based in part on the results from the actuarial instruments in this case. Contrary to Rafferty's contentions, the district court did not err in not considering the factors set forth in Daubert. Consequently, we affirm the court's decision to admit the evidence. We conclude Rafferty's due process claim is without merit.