Care & Treatment of Wadleigh v. State

• Decision Date: 29 June 2004
• Docket Number: No. WD 62029.,WD 62029.
• Citation: 145 S.W.3d 434
• Court: Missouri Court of Appeals
• Parties: In the Matter of the CARE & TREATMENT OF Gregory WADLEIGH, Appellant, v. STATE of Missouri, Respondent.

145 S.W.3d 434

In the Matter of the CARE & TREATMENT OF Gregory WADLEIGH, Appellant, v.STATE of Missouri, Respondent.

No. WD 62029.

Missouri Court of Appeals, Western District.

June 29, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 31, 2004.

Application for Transfer Denied October 26, 2004.

Appeal from the Circuit Court, Jackson County, John A. Borron, Jr., J Kenneth C. Hensley, Raymore, MO, for appellant.

Gary L. Gardner, Jefferson City, MO, for respondent.

Before EDWIN H. SMITH, P.J., HOLLIGER and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

Gregory Wadleigh appeals from a judgment committing him to the Department of Mental Health for treatment as a sexually violent predator.Mr. Wadleigh asserts the trial court erred in admitting unduly prejudicial evidence, refusing his proposed jury instructions, and denying his request for six peremptory challenges during jury selection.Finding no error, we affirm the trial court's judgment.

I.FACTUAL AND PROCEDURAL HISTORY

In February 1995, Mr. Wadleigh pled guilty to sodomizing a five-year old boy and began serving a seven-year prison sentence.Three months prior to his scheduled release from prison in January 2002, Mr. Wadleigh was assessed by Dr. Derrise Becker, a clinical psychologist employed by the State, to determine whether he qualified as a sexually violent predator (SVP), as defined in Section 632.480(5).¹Dr. Becker diagnosed Mr. Wadleigh as a pedophile, an evaluation that indicated he was likely to fit the SVP definition.Her evaluation was based on reports of Mr. Wadleigh's sexual and criminal history, as well as his failure to complete the Missouri Sex Offender Program (MOSOP) while incarcerated.The State submitted Dr. Becker's evaluation to two statutory review committees,² both of which agreed that Mr. Wadleigh qualified as an SVP.

In January 2002, the State filed a petition in Jackson County Circuit Court to declare Mr. Wadleigh as an SVP and commit him for treatment to the Department of Mental Health.Mr. Wadleigh requested a jury trial on the petition after the court made a probable cause finding.

In preparation for trial, the parties retained multiple experts to evaluate Mr. Wadleigh and review his records.Most of the experts submitted reports referencing Mr. Wadleigh's 1984 guilty plea to a misdemeanor charge that he made harassing telephone calls to approximately thirty security guards at Montgomery Wards after he was released as a store employee.In making these calls, Mr. Wadleigh told one guard: "I'm going to kill you.I'm going to kill your family.I'm going to cut off your dick.You work for a shit ass company.You are a no good mother fucker.I want you to screw me.I'm going to kill you tonight."And, to one female guard he said, "I was going to stick a knife in her pussy."When asked about these phone calls, Mr. Wadleigh said: "After making them, I felt like I should continue making them and I knew what I was doing was not right but something in me just kept telling me to keep doing it."He also admitted to the arresting officer that he had been in therapy in 1981-82 for child molestation.He told the officer, "When I had the drive molesting children I have had the same type of drive in making threatening phone calls."Following his guilty plea on the telephone harassment charge, Mr. Wadleigh received a suspended imposition of sentence and successfully completed a two-year probation period.

In the SVP proceeding, Mr. Wadleigh filed a pretrial motion in limine to exclude evidence of the 1984 charge as irrelevant and unduly prejudicial.He argued the incident was remote in time and in subject matter because telephone harassment is not identified as a sexually violent offense under the SVP statute.The trial court denied the motion, finding the evidence relevant because some of the experts relied on the harassment charge as a factor in evaluating Mr. Wadleigh's current condition.

During the State's case at trial, Dr. Becker referred to the 1984 charge and characterized the telephone harassment incident as sexual in nature.Dr. Becker found it significant that Mr. Wadleigh had an "urge" to make the calls, much like the urge he admitted having when he molested children.Based on his history of sexual misconduct and failed treatment, Dr. Becker testified that Mr. Wadleigh was at high-risk to re-offend if not confined in a secure facility.

The State presented similar testimony from Dr. Roy Lacoursiere, a psychiatrist who reviewed Mr. Wadleigh's records.Dr. Lacoursiere found the 1984 harassment calls overtly sexual in nature and indicative of Mr. Wadleigh's lack of control over his sexual urges in that, as with his child molesting, once he started he couldn't stop.Dr. Lacoursiere evaluated Mr. Wadleigh based on two actuarial scoring devices commonly used by mental health professionals to predict the recidivism of an SVP: the Static 99 and the Minnesota Sex Offender Screening Tool (MnSOST).One key factor in the weighted scoring is the number of arrests and/or convictions for prior sexual offenses.Dr. Lacoursiere testified that Mr. Wadleigh scored at high risk on both devices and would be more likely than not to engage in predatory acts of sexual violence if not confined for treatment.

Mr. Wadleigh did not object to the testimony of the State's experts regarding the 1984 charge, but he did object on relevancy grounds when a police officer began testifying about the harassment incident.The trial court overruled the objection.

In Mr. Wadleigh's defense, two clinical psychologists testified that he was at medium to low risk to re-offend based on their scoring of the actuarial tests.These experts, Dr. Steven Mandracchia and Dr. Gregory Sisk, acknowledged the 1984 charge but did not include it among the assessment risk factors.Dr. Sisk testified the instructions for the MnSOST disallow consideration of obscene phone calls as a prior offense.He felt the 1984 harassment charge fit that category and, therefore, should not be factored in the risk assessment scoring.

After the close of evidence, the jury returned a verdict finding that "Gregory Wadleigh should be committed to the Department of Mental Health for control, care and treatment as a sexually violent predator."The trial court entered judgment placing Mr. Wadleigh in the custody of the Department of Mental Health until such time as his "mental abnormality has so changed that he is safe to be at large."Mr. Wadleigh appeals.

ADMISSIBILITY OF EVIDENCE

In his first point on appeal, Mr. Wadleigh contends the trial court erred in admitting evidence of the 1984 telephone harassment charge because the prejudicial effect of the evidence outweighed any probative value.He argues the incident was irrelevant to the SVP determination, in that it occurred nearly twenty years ago and arose in the context of a labor dispute during which he was fired from his job.He contends the profanity-laden evidence was "calculated" to evoke an emotional jury response and thereby posed "the danger of unfair prejudice."

The admission or exclusion of evidence is at the sound discretion of the trial court.Thornton v. Gray Auto. Parts Co.,62 S.W.3d 575, 583(Mo.App. W.D.2001).Our review is limited to a determination of whether the trial court's decision is an abuse of discretion so arbitrary or unreasonable as to shock the sense of justice or is indicative of an absence of careful consideration.Id.Even when this threshold is met, we will not reverse unless the error had a material effect upon the merits of the action.Id.

In his motion in limine, Mr. Wadleigh objected to the 1984 charge based on a traditional relevancy argument that it did not tend to prove or disprove a fact issue at trial.The trial court denied the motion because the evidence was relied on by the State's experts and, therefore, was subject to the admissibility standards set forth in Section 490.065.3.The statute provides:

The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

Section 490.065.3.Applying this statute, our court has held that experts can rely on evidence not otherwise admissible, as long as it is the type of evidence reasonably relied upon by other experts in the field.Peterson v. Nat'l Carriers, Inc.,972 S.W.2d 349, 355(Mo.App. W.D.1998).Mr. Wadleigh did not object to the admissibility of the evidence under Section 490.065.3.Nor did he offer any objection when the experts testified about the harassment incident at trial.Thus, the trial court admitted evidence of the 1984 charge as a factor that formed the basis for the experts' opinions that Mr. Wadleigh was at high-risk to commit sexually violent offenses in the future.

On appeal, Mr. Wadleigh contends the trial court erred in allowing a police officer to testify about the harassment incident.We note that the police officer's testimony was merely a reiteration of the facts relied on by the experts.The officer's testimony was cumulative of other evidence properly heard by the jury.Given Mr. Wadleigh's failure to challenge (either at trial or on appeal) the relevancy of the harassment charge under Section 490.065.3, he concedes the admissibility of the evidence through the experts' testimony and cannot show an abuse of the trial court's discretion in allowing a non-expert witness to testify regarding the same facts.

The 1984 charge had significant probative value as "facts or data" underlying the expert testimony at trial.Even though the harassment charge dates back nearly two decades, Mr. Wadleigh did not dispute that it was the type of evidence reasonably relied upon by experts in determining the recidivism rate of sexual offenders.The sexually...