Elliott v. State

• Decision Date: 13 February 2007
• Docket Number: No. SC 87746.,SC 87746.
• Parties: In the Matter of the Care and Treatment of Stephen ELLIOTT, a/k/a Tex, a/k/a Steve Elliott, a/k/a Lee Elliott, a/k/a Stephen L. Elliott, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

215 S.W.3d 88

In the Matter of the Care and Treatment of Stephen ELLIOTT, a/k/a Tex, a/k/a Steve Elliott, a/k/a Lee Elliott, a/k/a Stephen L. Elliott, Appellant, v. STATE of Missouri, Respondent.

No. SC 87746.

Supreme Court of Missouri, En Banc.

February 13, 2007.

Rehearing Denied March 20, 2007.

Ellen H. Flottman, Emmett D. Queener, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Alana M. Barragan-Scott, Asst. Attys. Gen., Jefferson City, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

A jury unanimously found Stephen Elliott to be a sexually violent predator ("SVP") pursuant to sections 632.480-632.513¹ RSMo Supp.2005.² Because his appeal challenges the validity of sections 632.480-632.513, jurisdiction lies solely in this Court. Mo. Const. art. V, sec. 3.

The Court holds: (1) that Missouri's SVP statute, sections 632.480-632.513, complies with the due process protections of the United States and Missouri constitutions; (2) expert testimony on the issue of "serious difficulty controlling behavior" was properly admissible in this case because the State's witness was qualified to testify as an expert and the information she studied in making her evaluation of Elliott and forming her opinion constituted facts or data of a type of reasonably relied upon by experts in the field; (3) expert testimony, including evidence of actuarial instruments, was properly admissible in this case because the actuarial instruments utilized constituted facts or data of a type reasonably relied upon by experts in the field that were otherwise reasonably reliable and their utilization was linked with an independent clinical evaluation of Elliott. The judgment is affirmed.³

I. Facts

Stephen Elliott, who stands approximately six feet, four inches tall and weighs approximately 300 pounds, has an extensive history of committing sexually violent offenses against women and young girls.⁴ From 1975 to 1989, Elliott raped at least eight women and young girls. Two of the victims were ages 12 and 13 at the time of the rapes. Elliott raped two women on the same day on more than one occasion. He raped while he was on parole. He raped women vaginally, anally, and orally, and his rapes were characterized by excessive force. He struck several of the women he raped, forced more than one into his vehicle, caused a bite mark to appear on one, and broke the cheekbone of another.

Two of the women were choked by Elliott as he forced himself on them, one to the point of unconsciousness. He forced several of the women to do humiliating things during the rapes. The 13-year-old girl raped by Elliott reported that he laughed and smiled as he raped her, despite her tears and pleas for mercy. He told two of the women he would lock them away and rape them forever. He threatened to kill his victim on more than one occasion.

In 1989, Elliott was convicted of raping Sandra Talbott. Elliott served fifteen years and was scheduled to be released from prison on June 24, 2004. On June 15, 2004, the State of Missouri filed a petition to commit Elliott to the custody of the Missouri Department of Mental Health pursuant to section 632.492, RSMo Supp. 2001.⁵

Before the trial date, the court ordered an evaluation of Elliott to be performed by Dr. Jeanette Dunkin, a psychologist and certified forensic examiner of the Missouri Department of Mental Health. At trial, the State produced evidence of Elliott's history of sexually violent crimes. Dr. Dunkin testified⁶ that it was her opinion that Elliott suffers from the mental abnormality of sexual sadism, a form of paraphilia as set forth in the DSM-IV,⁷ which predisposes him to commit sexually violent offenses.

Dr. Dunkin also testified that Elliott's condition causes him serious difficulty controlling his behavior. This opinion was based in part upon statements made by Elliott. She acknowledged that Elliott stated at one point, "I have molested a boy." Additionally, in a "true/false" self-report administered around 2000, Elliott answered true to the following: 1) several times a week I feel something dreadful is going to happen; 2) at times I have a strong urge to do something harmful or shocking; 3) I often hear voices without knowing where they come from; and 4) someone has control over my mind.

Dr. Dunkin stated that it was her opinion, to a reasonable degree of medical certainty, that Elliott suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility. She explained that she measured Elliott's risk of re-offense by looking first to an actuarial instrument known as the Static-99, which is commonly used in sexually violent predator evaluations. Dr. Dunkin then referred to what she called aggravating factors, which increase Elliott's risk of re-offense. These factors included past substance abuse, the fact he repeatedly re-offended while on parole, and the fact that Elliott never completed a relapse prevention plan.

The jury unanimously found Stephen Elliott to be a sexually violent predator. The court entered judgment on the verdict and ordered Elliott to be placed in the custody of the Missouri Department of Mental Health for control, treatment and care until his mental condition has so changed that he is safe to be at large.

II. Discussion

A. Points on Appeal

Elliott raises three points of error on appeal: (1) the trial court erred when it denied his motion to dismiss the State's petition because sections 632.480-632.513 violate due process; (2) the trial court erred in admitting expert testimony on the element of "serious difficulty controlling behavior"; (3) the trial court erred in admitting the results of the Static-99 actuarial instrument as applied to him by Dr. Dunkin.

B. Constitutionality of Sections 632.480-632.513

This issue is identical to the constitutional issue presented in In the Matter of the Care and Treatment of Mark Murrell, 215 S.W.3d 96 (Mo. banc 2007) (No. SC 87804, decided February 13, 2007), in which the appellant asserted Missouri's SVP statute was unconstitutional because it does not require the State to prove that the individual poses an immediate risk of harm. The holding in Murrell that Missouri's SVP statute, sections 632.480-632.513, is constitutional, controls.

C. Expert Testimony on Serious Difficulty Controlling Behavior

Elliott next argues the trial court erred in allowing expert testimony on the issue of whether he has serious difficulty controlling his behavior because no recognized scientific research exists to assist experts in making such a determination.

1. Preservation of Issue for Appeal

The State argues that Elliott has not preserved this point for appeal. "A ruling in limine is interlocutory only and is subject to change during the course of the trial." State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). "[A]dditional information produced at trial may prompt the trial court to alter its pretrial ruling and admit the evidence. Therefore, an objection must be made at trial when the evidence is offered or the reference made, preferably outside the hearing of the jury, in order to preserve for appellate review the ruling made thereon." State v. Evans, 639 S.W.2d 820, 822 (Mo.1982) (internal citation omitted).

Before trial, Elliott filed a motion to exclude expert testimony regarding serious difficulty controlling behavior. The motion was overruled. Elliott renewed his motion before the opening statements and the court again overruled it, but noted the motion would be continuing in nature. Subsequently, during the testimony of Dr. Dunkin the State asked:

[Prosecutor]: "In your opinion, Doctor, to a reasonable degree of psychological certainty, does Mr. Elliott suffer from a mental abnormality?"

Counsel for Elliott asked to approach the bench, where he objected as follows:

[Defense counsel]: "I need to object at this point to the Doctor coming to the conclusion that he suffers from a mental abnormality based on the fact that this is the definition that is incorporated through the Thomas opinion. And also, based on the other pretrial motion that we filed regarding serious difficulty controlling behavior and allowing an expert opinion on that . . . and I need to renew my objection . . . and ask that it be noted as a continuing objection throughout her discussion on serious difficulty controlling behavior."

(emphasis added). The record is clear. Elliott's counsel renewed his objection as to the issue of serious difficulty controlling behavior. The trial judge was given an opportunity to rule on the objection during the trial. The objection was acknowledged by the court and noted as continuing throughout the challenged testimony. The State's argument that the issue was not preserved is without merit.

2. Standard of Review

The determination of whether to admit evidence is within the sound discretion of the trial court. A trial court will be found to have abused its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Johns, 34 S.W.3d 93, 111 (Mo. banc 2000). This Court's direct appeal review is for prejudice, not mere error, and the trial court's decision will be reversed only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004). Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial. State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005).

3. Evidentiary Standards

Missouri's SVP statute is civil in nature. See Kansas v. Hendricks, 521 U.S. 346, 367-68, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Admission of expert testimony in civil cases is governed by section 490.065. State Board...