Westerheide v. State

• Decision Date: 29 September 2000
• Docket Number: No. 5D99-785.,5D99-785.
• Citation: 767 So.2d 637
• Parties: Mitchel WESTERHEIDE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

767 So.2d 637

Mitchel WESTERHEIDE, Appellant, v. STATE of Florida, Appellee.

No. 5D99-785.

District Court of Appeal of Florida, Fifth District.

September 29, 2000.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for Appellee.

SAWAYA, J.

I. Introduction.

The State of Florida, the appellee, instituted commitment proceedings against Mitchel Westerheide, the appellant, pursuant to the "Jimmy Ryce Act,"¹ hereinafter referred to as the Act. The Act establishes procedures for the involuntary civil commitment of sexually violent predators.²

The commitment trial commenced on March 1, 1999. The jury returned a verdict finding that the appellant is a sexually violent predator. Pursuant to this verdict, the trial judge entered a final judgment of commitment which committed the appellant to the Department of Children and Families for confinement in a secure facility for control, care, and treatment until such time as the appellant's mental abnormality or personality disorder has so changed that it is safe for him to be at large.

The appellant appeals the final judgment of commitment and, in this case of first impression in Florida, argues that the reversal is warranted for the following reasons: (1) the Act is unconstitutional because it violates the ex post facto, double jeopardy, due process, and equal protection clauses of the United States and Florida Constitutions; (2) the trial court erred by denying the appellant's requested jury instruction defining the statutory terminology "likely to engage in acts of sexual violence"; (3) the trial court erred by allowing the appellee's psychologists to testify that they believed the appellant would reoffend; (4) the trial court erred by allowing speculative testimony suggesting that sex offender probationers are lightly supervised; and (5) the trial court erred by allowing inflammatory testimony and argument. We affirm on all issues and find that the last two issues raised by the appellant are without merit and do not warrant discussion. The other issues will be addressed in separate sections of this opinion after we first discuss the factual background of these proceedings and the general provisions and nature of the Act.

II. Factual Background.

During the commitment trial, the appellee presented testimony from two expert witnesses, Drs. McClaren and Merwin, and from the appellant himself. The appellant presented evidence from one psychologist, Dr. Shaw. The appellee's two expert witnesses diagnosed the appellant as being a sexual sadist and having an antisocial personality disorder. Their diagnoses were based on consideration and review of extensive sources of information including the facts and circumstances surrounding the underlying offense for which the appellant was convicted; personal interviews with the appellant; police reports; reports from the Department of Corrections; correspondence between the appellant and other individuals; videotapes of the sex acts between the appellant and the victim of the underlying criminal offense; interviews with the victim, the appellant's father, and the appellant's friends; the appellant's personal diary; and the tests that were administered by the experts to the appellant. The expert called by the appellant admitted that the appellant is a sexual sadist. Although the appellant's expert admitted that the appellant might also have a personality disorder, he did not specifically diagnose the appellant as having an anti-social personality disorder.

In making their diagnoses, all three experts considered the fact that the appellant had previously been convicted of the offenses of lewd or lascivious assault on a child and sexual performance by a child. Of particular importance to the experts were the underlying facts and circumstances of those prior offenses which disclosed that a sadistic sexual relationship existed between the appellant, who was 22 at the time of the offenses, and the female victim, who was 15 years old at the time. The appellant was convicted of these offenses on September 8, 1995 pursuant to a plea of guilty.

The testimony of the experts and their reports which were introduced into evidence at the commitment trial without objection revealed that the appellant pierced the victim's flesh with fishhooks, bound her during sexual encounters causing the victim pain, and video-taped episodes of sexual intercourse between the appellant and the victim. The appellant would give the victim LSD to help her endure the pain which he inflicted on her for over a six month period and told her to "learn pain." The evidence further revealed that the appellant inflicted pain on the victim by carving things into her skin, cutting her with razor blades, making hash marks on her back, carving the letter "M" on her chest, restraining her in bed with chains, restraining her with hooks in the wrist area which he removed by ripping them out, using a TENS unit to shock the victim, and inserting a knife into the victim's vagina and cutting her.

An investigator with the sheriff's department confirmed that at the time the appellant was arrested for these offenses, physical evidence which corroborated the sadistic nature of his acts was recovered which included: a wooden handled whip with five chains attached and shark hooks on it; a leather mask with a zippered mouth, which the appellant referred to in a letter he wrote as a "bondage mask"; fish hooks; a hollowed-out Bible with more fish hooks in it; and knives.

The experts also considered the appellant's own correspondence and his diary entries in arriving at their diagnoses. The appellee called the appellant as a witness at the trial and questioned him about his correspondence and his diary. The appellant admitted his authorship. One letter included a drawing of a human being with fish hooks in the forehead and neck. Other letters and portions of his diary included statements wherein the appellant: praised "true, organized, pure evil"; indicated how much he really felt hatred, stating that "love makes you weak, hate makes you strong"; and wondered whether he was "pure evil." In another letter, the appellant wrote that "the reason I would probably go to hell is because I have committed great atrocities on my part. Very very very bad things which are not forgivable." In other letters and portions of his diary, he simply stated that he had "no guilt, no sorrow, and no conscience." One of the experts, Dr. Merwin, summarized relevant portions of the appellant's diary when he testified as follows:

There are a couple of elements that relate to sexual sadism, not all of which are necessarily sexual in nature but more sadistic in nature. I can give you some examples of some of his ruminations and thoughts during his adolescence and late adolescence to adulthood based on what he described as a rather painful history of disappointing and humiliating human relationships.

At one point he wrote, if I were to destroy the world I would save the ones I hate most just to watch them suffer. I wouldn't want to die without my revenge, so in conclusion I keep my love and hate alive so it keeps me going.

I dream that it is raining. The rain I see is blood. The blood I see is theirs. They are the ones in pain. The pain is deep. The deeper the pain the stronger the feel. The gratitude runs through my veins. I'm seeing their faces. If they could see mine, I have their eyes, I own their souls. I make the pain deeper. I am their last penance, the judge of life and death. I can save them as they beg for mercy. I do not. Pain is good for the heart, good for the mind, fun time. And goes on in that similar vein.

Dr. Merwin further testified that in his conversations with the appellant, the appellant acknowledged the use of physical instruments designed to inflict pain or torture, but the appellant tended to minimize his use of those instruments by suggesting that he used them carefully to avoid inflicting pain on his victim. Dr. Merwin further testified that sexual sadism is a chronic and lasting condition which is progressive and that evidence suggests that sexual sadists experiment with other forms of behavior, typically become more sadistic, and engage in increasingly life-threatening kinds of behavior.

Dr. Shaw, the expert called by the appellant, testified that the appellant was a sexual sadist but did not diagnose him as having an anti-social personality disorder, although in his testimony he did admit that the appellant "may very well have a personality disorder." Dr. Shaw thought supervision through probation was sufficient, but also testified that "in the absence of probation and treatment, in the absence of being required to participate in treatment in the community, I would have recommended civil commitment."

Both of the appellee's experts concluded that the appellant satisfied the statutory definition of a violent sexual predator and that he suffers from two mental abnormalities or personality disorders that make him likely to engage in future acts of sexual violence if not confined in a facility that will provide him controlled care and treatment. Dr. McClaren specifically testified that based on his diagnosis, the appellant was a sexual sadist with an anti-social personality disorder, the combination of which is potentially lethal, and that there would be "a very high risk for reoffense" if the appellant was not confined in a secure facility. He also noted that the appellant had not received treatment in prison and that he had refused offers of treatment in the past. Dr. Merwin also testified that based on the same diagnosis, there was such a high degree of potential dangerousness from the appellant towards young women that supervision on probation would be inadequate and that confinement in a secure facility for care and...