Amonette v. State

• Decision Date: 14 January 2003
• Docket Number: No. ED 80623.,ED 80623.
• Citation: 98 S.W.3d 593
• Parties: In the Matter of the Care and Treatment of Anthony AMONETTE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 593

98 S.W.3d 593

In the Matter of the Care and Treatment of Anthony AMONETTE, Appellant, v. STATE of Missouri, Respondent.

No. ED 80623.

Missouri Court of Appeals, Eastern District, Division Two.

January 14, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 20, 2003.

Application for Transfer Denied April 1, 2003.

Nancy J. Vincent, David C. Hemingway, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Paul R. Maguffee, Asst. Attorney General, Jefferson City, MO, for respondent.

PAUL J. SIMON, Presiding Judge.

Anthony Amonette (appellant) appeals from the judgment of the trial court finding him to be a sexually violent predator (SVP) pursuant to Section 632.480 RSMo 1999 (all further references hereinafter shall be to RSMo 1999).

On appeal, appellant contends the trial court erred in: (1) denying his motion for directed verdict because the evidence adduced at trial did not support the claims alleged in the petition, and he was prejudiced thereby in that the State failed to prove he had difficulty in controlling his sexually violent behavior; (2) overruling appellant's objections and submitting Instruction No. 6 and/or refusing appellant's proffered Instructions Nos. C and H in that the trial court failed to instruct the jury that as a result of a mental abnormality appellant had serious difficulty in controlling his sexually violent behavior and that he was prejudiced because the jury did not specifically find as such, which is a necessary predicate to finding him to be a SVP; (3) allowing the State to introduce Exhibit 9, an order for protective custody, because the exhibit was inadmissible hearsay, lacked foundation and violated Sections 337.015.3, 337.500 and 337.600, which pertain to the practice of psychology and define the practice of psychology and terms relating to professional counselors and social workers, in that it contained an unattributed statement that appellant had been diagnosed as a pedophile, and there is no indication of the source of this information or whether a qualified professional offered the diagnosis; and (4) overruling his motion to dismiss and objections at the probable cause hearing and permitting the State to proceed with its case against him in that Rebecca Woody, an associate psychologist for the Missouri Department of Corrections, was the only witness at the hearing and was not qualified to testify to the presence of a mental abnormality, and therefore, the State failed to prove a necessary predicate fact and failed to establish probable cause to detain appellant. We reverse and remand.

On May 5, 2000, the State filed a petition, pursuant to Section 632.486, in the probate division alleging appellant: (1) pleaded guilty to first degree deviate sexual assault, in violation of 566.070; (2) is currently suffering from a mental abnormality, pedophilia, which makes him more likely than not to engage in predatory acts of sexual violence if released; and (3) will be released from confinement on May 16, 2000, and sufficient evidence exists to determine he suffers from a mental abnormality making him more likely than not to engage in predatory acts of sexual violence.

The petition also incorporated by reference two exhibits: (1) the end of confinement report, prepared by Rebecca Woody (Woody), which is an assessment of individuals convicted of a sexually violent offense and who failed to complete treatment while incarcerated (Exhibit A) and (2) an affidavit by the custodian of records reflecting the meeting and the 5-0 vote of the prosecutor's review committee, pursuant to Section 632.484.4, indicating their belief that appellant meets the statutory definition of a sexually violent predator (Exhibit B).

Prior to the probable cause hearing, appellant filed motions to: (1) prohibit the State from evaluating, deposing or requiring answers to interrogatories from appellant and to prevent his refusal to cooperate with an evaluation by the State to be used against him; (2) strike statements of appellant, specifically appellant's statements made during his interview with Woody, which were included in the end of confinement report; (3) dismiss, challenging Section 632.480 et seq., based on due process, equal protection, double jeopardy and ex post facto grounds; and (4) close the probable cause hearing. In addition, appellant orally moved to dismiss the petition contending that it failed to address the decision, membership and vote of the multidisciplinary team. The trial court denied all motions, and on July 7, 2000, a probable cause hearing was held to determine whether appellant is a sexually violent predator within the meaning of Section 632.480(5), which provides:

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 or defect pursuant to Section 552.030 of a sexually violent offense; or

(b) Has been committed as a criminal sexual psychopath pursuant to Section 632.475 and statutes in effect before August 13, 1980.

At the hearing, the State introduced 2 exhibits: (1) the affidavit incorporated by reference in the petition and (2) a certified copy of the sentence and judgment of appellant's on a guilty plea for first degree deviate sexual assault on May 17, 1996. The State also called Woody, who testified as to her review of appellant's file, in preparing his end of confinement report, which consisted of: (1) Missouri Department of Corrections Classification File; (2) Missouri Sexual Offender Program (MO-SOP) Treatment File; (3) Probation and Parole File; (4) Missouri Division of Family Services Reports; (5) Juvenile Division Reports; (6) Marillac Center for Children, Inc. (Marillac) Reports, an inpatient treatment facility for adolescent sex offenders; and (7) Farmington, Missouri and Kansas City, Missouri Police Reports. She testified that these were the kinds of files that experts in the field of identification of possible sexually violent predators would normally use in forming their opinion at the probable cause stage.

From the files, Woody learned that appellant: (1) had victimized a 13-year-old female for which he was convicted of first degree deviate sexual assault; (2) was charged with sodomy of 3-year-old and 14-year-old males; (3) admitted to having thirteen victims, with a specified interest in 4 to 6-year-old girls and boys; (4) was diagnosed with pedophilia, indicating that he was at high risk of sexually re-offending; and (5) attempted twice to complete a treatment program for sex offenders but was unsuccessful each time.

Furthermore, Woody conducted an interview with appellant during which he admitted he: (1) had performed oral sex on 3-year-old and 6-year-old males; (2) performed cunnilingus on the 13-year-old female for which he was convicted of first degree deviate sexual assault; and (3) had sexual contact with lots of 12, 13 and 14year-old females, which he did not feel was a problem if they wanted sexual contact.

As a result of her evaluation, she determined that he suffered from mental abnormalities, specifically, pedophilia and posttraumatic stress disorder. Although appellant's counsel objected, the trial court allowed Woody to testify as to her opinion of whether or not appellant was more likely than not to re-offend in a predatory sexually violent way if he was not confined. She replied that appellant needed further evaluation because it appeared he may be a sexually violent predator and that he needed to be held at the predator unit because in an ordinary mental hospital he may be predatory against the other people and should not be evaluated while on an outpatient basis. The State rested, and appellant presented no evidence.

The trial court found probable cause to believe that appellant was a sexually violent person within the meaning of Section 632.480(5) and ordered that he be transferred to the sexual predator unit at Farmington, Missouri for an evaluation as to whether he was a sexually violent predator and to remain at the sexual predator unit pending the conclusion of the proceedings.

On September 7, 2001, appellant filed a motion to dismiss for insufficient evidence at the probable cause hearing contending that because Woody was not a licensed psychiatrist, psychologist or clinical social worker, she was not qualified to express any opinion about the proper diagnosis of appellant's mental condition or whether he suffers from a mental abnormality, and shorn of her incompetent testimony in this regard, there was no evidence presented to the trial court upon which it could rely to find probable cause. The trial court denied the motion.

Subsequently, a jury trial was held. Pursuant to Section 632.495, the jury must determine unanimously whether, beyond a reasonable doubt, appellant is a sexually violent predator. The State called Jerry Chamberlain, a juvenile officer, who filed a petition in 1990 against appellant for sodomy of a 3-year-old child. Following the adjudication, appellant was committed to the Division of Youth Services where he received 24-hour supervision, individual and group evaluations and a treatment plan. Chamberlain identified the State's Exhibit 9, an order for protective custody, in which the juvenile division found that the protective custody of appellant was required for the reason that he had been diagnosed as a pedophile and was in need of intensive treatment which could not be provided by persons responsible for his care. After appellant's counsel objected on the grounds that it was a finding based on hearsay evidence from unknown persons, the trial court overruled the objection on the grounds that it was a judicial determination. Chamberlain testified that appellant was sent to Marillac, as arranged through the Division of Youth...