Opinion
No. ED 83299-01
November 22, 2005.
Appeal from the Circuit Court of St. Charles County, Hon. Jon A. Cunningham.
Emmett D. Queener, Columbia, MO, for appellant.
Jeremiah W. Nixon, Jefferson City, MO, for respondent.
Albert Bernat appeals the judgment of the circuit court of St. Charles County, probate division, ordering him committed to the custody of the Department of Mental Health. Bernat argues the court erred in denying his motion to preclude the state from calling him as a witness or using his right to remain silent against him. He also claims the court erred in allowing certain testimony at trial. Finding no error, we affirm.
In 1986, Bernat pleaded guilty to forcible rape, and was incarcerated. During his imprisonment, Bernat completed phases I and II of the Missouri Sexual Offender Program. He was paroled, and in 1995, he was accused of rape again. He was tried and acquitted of the charge; however, his parole was revoked, and he was returned to prison. Bernat was scheduled for release, and the state filed a petition requesting that he be found to be a sexually violent predator and ordered committed to the custody of the Department of Mental Health. Prior to trial, Bernat filed a motion to prevent the state from calling him as a witness, and asking the court to order the state to refrain from using his silence as evidence against him. He also filed a motion in limine to preclude admission of testimony by Linda Kelly, a licensed social worker, regarding his mental abnormality. Both motions were denied by the court. The case was initially tried in October 2001; however, the jury was unable to reach a unanimous verdict, and the court declared a mistrial. The second trial took place in June 2003. The jury unanimously found that Bernat was a sexually violent predator. The court entered its judgment committing Bernat to the custody of the Department of Mental Health until such time as his mental abnormality was changed so that he is safe to be at large. Bernat filed a motion for judgment notwithstanding the verdict, and alternative motion for new trial which was denied. He now appeals.
A February 1, 2005, opinion from this court found that Bernat's claim was a challenge to the constitutionality of the sexually violent predator statutes, and therefore, jurisdiction was exclusively with the Missouri Supreme Court. The case was transferred to the Supreme Court. The Supreme Court retransferred the case to our court, finding that no direct claim regarding the validity of the sexually violent predator statutes was made, and therefore, the Missouri Court of Appeals, Eastern District has jurisdiction.
In his first point on appeal, Bernat claims the trial court erred in denying his motion to preclude the state from calling him as a witness at trial, and allowing the state to use his silence as evidence against him during closing argument.
Missouri adopted the Sexually Violent Predator Act ("SVPA") in 1999. The SVPA established a procedure for the civil commitment of individuals determined to be "sexually violent predators." Pursuant to section 632.483 RSMo (2000), when a person is convicted of a sexually violent offense, and is scheduled for release from the Department of Corrections, the Department must give notice to the attorney general if it appears as though the person may "meet the criteria of a sexually violent predator. . . ." Section 632.486 provides that if, after evaluation, it is determined the person meets the definition of a sexually violent predator, the attorney general may file a petition in the probate division of the circuit court in which the person was convicted alleging that the person is a sexually violent predator. Pursuant to section 632.489, the court will then conduct a probable cause hearing, at which the court can direct the Director of the Department of Mental Health to have the person examined. Section 632.492 provides for a trial after the completion of any exam conducted pursuant to section 632.489. If the court or a jury thereafter determines that the person is a sexually violent predator, section 632.495 provides that the person is to be committed to the custody of the Department of Mental Health until the mental abnormality is changed such that the person is safe to be at large.
All further statutory references are to RSMo (2000).
Bernat claims the trial court's failure to grant Bernat the right to remain silent, and to order the state to refrain from commenting on Bernat's failure to testify in the sexually violent predator proceeding violated his right to equal protection under the United States and Missouri constitutions because persons facing civil commitment are afforded the right to remain silent and he was not.
We note that although the trial court did not preclude the state from calling Bernat as a witness at trial, the state chose not to do so. Moreover, Bernat did not testify on his own behalf. Thus, Bernat was not prejudiced by the court's denial of his motion to prevent the state from calling him as a witness, nor was he prejudiced by the court's failure to grant him the right to remain silent. However, we review Bernat's equal protection claim in this regard as a threshold consideration to his claim of error regarding the state's comments during closing argument concerning his failure to testify.
The equal protection clause of the Fourteenth Amendment to the United States Constitution requires that "similarly situated" persons be treated in a similar way. State ex rel. Nixon v. Askern, 27 S.W.3d 834, 841 (Mo.App. 2000); (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). If a statute provides different treatment for a "suspect class", it must be subject to strict scrutiny to determine if the different treatment is necessary to achieve a compelling state interest. In re Care and Treatment of Lieurance, 130 S.W.3d 693, 700 (Mo.App. 2004); (citing In the Matter of Care and Treatment of Norton, 123 S.W.3d 170, 173 (Mo. banc 2003)). The same is true where a statute affects a fundamental right. Id. If the provision does not concern a suspect class or fundamental right, then it must be determined whether the statute is rationally related to a legitimate state interest. Id.
As Bernat correctly notes, the Missouri Supreme Court has determined that sexually violent predators are not members of a suspect class.Norton, 123 S.W.3d at 173. However, the court also found that the "civil commitment of persons so classified impinges on the fundamental right of liberty," and subjected equal protection claims of an alleged sexually violent predator to strict scrutiny review. Id.
As a threshold matter, citing State ex rel. Nixon v. Askern, 27 S.W.3d 834, 842 (Mo.App. 2000), the state urges us to conclude that sexually violent predators are not similarly situated to those subject to general civil commitment, and therefore, no equal protection violation has occurred. In Askern, the court of appeals noted that the SVPA is based upon the premise that sexually violent predators suffer from a mental condition that differs significantly from the illnesses which are the subject of other civil commitment. Id. The court stated that the SVPA was designed to address the specific problems presented by those who are "in fact likely to inflict profound harm on other persons, yet outwardly appear normal in all other respects." Id.
We disagree with the state's assertion. The Missouri Supreme Court, inNorton, evaluated the equal protection implications of the failure to provide less restrictive alternative to "secure confinement" of sexually violent predators, when the other subjects of involuntary commitment receive treatment in the least restrictive environment. 123 S.W.3d at 173, 174. The court concluded secure confinement of sexually violent predators was narrowly tailored to meet the state's compelling interest in protecting the public from crime. Id. at 174. This interest justified the different treatment of alleged sexually violent predators because of the substantial probability that they would commit future sexually violent crimes if not securely confined. Id.
The Supreme Court in Norton did consider the equal protection claim, and we consider Bernat's equal protection claim in the instant case. Although Bernat's equal protection right is implicated in the court's decision, we do not believe the failure of the court to grant Bernat's motion to preclude the state from calling him as a witness violated that right.
While the right to remain silent is provided to those subject to general civil commitment pursuant to section 632.335, it is not provided by statute to alleged sexually violent predators pursuant to the SVPA. As noted above, where statutes provide for different treatment of persons affecting a fundamental right, strict scrutiny review applies to determine if the different treatment is necessary to achieve a compelling state interest. Lieurance, 130 S.W.3d at 700; (citing Norton, 123 S.W.3d at 173). We believe the application of the SVPA provisions by the trial court met this standard.
Bernat notes in his brief that other states have granted individuals subject to commitment as sexually violent predators the right to remain silent. Both Wisconsin and Illinois provide such individuals the right to remain silent by statute. W.S.A. 980.03(2)(b); 725 I.L.C.S. 207, section 25(c)(2). That the legislatures in other states have chosen to grant this right by statute is not persuasive to our analysis of Bernat's equal protection claim in the present case. Bernat also cites an unpublished California opinion to argue that California has granted alleged sexually violent predators the right to remain silent. People v. Singleton, 2004 WL 1739223 (Cal.App. 3 Dist. 2004). "Unpublished decisions of the courts of other states are not persuasive authority in this court." J.B.M. v. S.L.M., 54 S.W.3d 711, 714 (Mo.App. 2001).
The SVPA is narrowly tailored to serve the compelling state interest of protecting the public from potentially dangerous sexually violent predators. In furtherance of that interest, the state identifies the compelling interest in the advancement of reliability in presenting facts to the finder. In order to have an alleged sexually violent predator committed to the custody of the Department of Mental Health, the state must prove beyond a reasonable doubt that the person has a condition which affects his emotional or volitional capacity and that predisposes him to commit sexually violent offenses such that he has serious difficulty controlling his behavior. In re Care and Treatment of Francis, 159 S.W.3d 873, 874 (Mo.App. 2005); (citing Sections 632.480(2) and (5); Thomas v. State, 74 S.W.3d 789, 791-92 (Mo. banc 2002); and In re Coffel, 117 S.W.3d 116, 121 (Mo.App. 2003)). Additionally, the state must prove the alleged sexually violent predator is more likely than not to engage in predatory acts of sexual violence if not confined. Id. Given this burden of proof, it is important to the state's interest in protecting the public from potential sexually violent predators to provide the finder of fact with all necessary evidence to properly evaluate whether the person is, in fact, a sexually violent predator. While this will include testimony from the various medical and clinical professionals conducting examinations of the person, this may also include testimony from the alleged sexually violent predator himself. Therefore, given the state's compelling interest, the court's decision to deny Bernat's motion to preclude the state from calling him as a witness did not violate Bernat's right to equal protection.
Moreover, we note that even had the state called Bernat as a witness, which it did not do, he could have invoked his Fifth Amendment privilege on the stand to the extent his testimony may have implicated him in any other criminal matters. "The Fifth Amendment privilege against self-incrimination guaranteed by the United States Constitution protects an individual from being an involuntary witness against himself in any proceeding, criminal or civil, formal or informal, where his answers might incriminate him in future criminal proceedings." In re Care and Treatment of Burgess, 147 S.W.3d 822, 833 (Mo.App. 2004); (citing State v. Booth, 11 S.W.3d 887, 893 (Mo.App. 2000)).
Bernat also complains of error in the trial court's decision to allow the state to comment on his failure to testify during closing argument. Missouri has consistently recognized that in a criminal case, no negative inference may be argued based upon a defendant's failure to testify.Burgess, 147 S.W.3d at 833; (citing Johnson v. Mo. Bd. of Nursing Adm'rs, 130 S.W.3d 619, 628 (Mo.App. 2004)). However, sexually violent predator commitments are not considered criminal proceedings, but instead may be considered of a special statutory nature. Id.; (citing In re Care and Treatment of Spencer, 103 S.W.3d 407, 418 (Mo.App. 2003)). Where, as here, an alleged sexually violent predator fails to testify in response to probative testimony against him, a fact-finder may draw a negative inference. Burgess, 147 S.W.3d at 833; (citing Johnson, 130 S.W.3d at 629). Accordingly, the trial court did not err in allowing the state to comment on the failure of counsel to call Bernat at trial. Point denied.
In his second and final point, Bernat claims the trial court erred in allowing the testimony of Linda Kelly, a licensed social worker, at trial. We note that both Bernat and the state refer to Kelly as a licensed clinical social worker in their briefs. They acknowledge that she prepared the end of confinement report for the Department of Corrections, which concluded to a reasonable degree of scientific certainty that Bernat suffered from the mental abnormality of paraphilia not otherwise specified.
Although we have not been provided with the transcript of Kelly's testimony, we do not believe such testimony was inadmissible. Initially Bernat cites a 2002 amendment to section 632.483 which requires that notice to the agency with jurisdiction regarding a potential sexually violent predator must include a determination by a psychiatrist or psychologist regarding whether the individual meets the definition of a sexually violent predator. Bernat argues this amendment should be applied to require the opinion of a psychiatrist or psychologist at trial as well, and to exclude testimony of any individual not meeting this definition, such as a licensed social worker. Bernat acknowledges that section 632.483 makes no mention of admissibility of testimony at trial. However, he claims that the Missouri Supreme Court's ruling in Johnson v. State, 58 S.W.3d 496 (Mo. banc 2001) makes it clear that a licensed clinical social worker is not competent to express an opinion at trial as to whether Bernat suffered from a mental abnormality.
Not only is Johnson distinguishable from the case at bar, Bernat misstates the holding of the Supreme Court therein. In Johnson, the defendant was found to be a sexually violent predator and committed to the custody of the Department of Mental Health. On appeal, the defendant argued the trial court erred in permitting a witness to offer opinions as to whether he suffered from a mental abnormality that made it more likely than not that he would engage in predatory acts of sexual violence. The Supreme Court found that the witness was not qualified to diagnose the defendant because he was not a licensed psychiatrist, psychologist, social worker, or counselor, but was simply working toward becoming a licensed counselor at the time of trial. 58 S.W.3d at 499. In so deciding, the court stated that, "[p]ersons 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. Id. (emphasis added)
The parties do not dispute Kelly is a licensed social worker. Thus, pursuant to the court's finding in Johnson, she was permitted by law to diagnose Bernat's mental disorder. Therefore, the trial court did not abuse its discretion in admitting her testimony.
Bernat also claims the holding in Johnson was applied to find a licensed clinical social worker's testimony inadmissible in In re Care and Treatment of Spencer, 103 S.W.3d 407 (Mo.App. 2003). Again, Bernat misstates the holding of the court. The court of appeals in Spencer was faced with a claim of error based upon the state's proof that defendant had difficulty controlling his behavior as a result of his mental abnormality. The court cited the Johnson case for the proposition that when expert testimony is excluded, as it was in Johnson for the reasons previously stated, it can result in the state's failure to make a submissible case that a defendant is a sexually violent predator. Id. at 415-16. The court reversed and remanded the case for the state to present evidence that the defendant had serious difficulty controlling his sexually violent behavior. Id. at 416. However, the court did not discuss the admissibility of testimony of a licensed social worker in its opinion, nor did it apply the court's holding in Johnson to find that any such testimony was inadmissible.
Based upon the Supreme Court's holding in Johnson, Kelly was permitted by law to diagnose Bernat's mental abnormality. As a result, the trial court did not abuse its discretion in admitting her testimony at trial. Point denied.
The judgment of the trial court is affirmed.
Mary K. Hoff, J., concurs.
Patricia L. Cohen, J. concurs.