Grado v. State
| Decision Date | 25 September 2018 |
| Docket Number | No. SC 96830,SC 96830 |
| Citation | 559 S.W.3d 888 |
| Parties | In the Matter of the Care and Treatment of Nicholas GRADO a/k/a Nicholas R. Grado, a/k/a Nicholas Ryan Grado, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Grado was represented by Chelsea R. Mitchell of the public defender’s office in Columbia, (573) 777-9977.
The state was represented by Katharine A. Dolin and Daniel McPherson of the attorney general’s office in Jefferson City, (573) 751-3321.
Nicholas Grado appeals the circuit court’s judgment committing him to the custody of the Department of Mental Health under the Sexually Violent Predator Act, sections 632.480 through 632.525 (the "Act").1 Mr. Grado argues he was entitled to, but deprived of, effective assistance of counsel in defending against the State’s attempt to commit him as an SVP. This Court agrees Mr. Grado has a constitutional right under the Due Process Clause of the Fourteenth Amendment to effective assistance of counsel in defending against an attempt to commit him under the Act. Because Mr. Grado alleges his counsel’s errors occurred in open court and so can be reviewed on the trial record, this Court does not reach the difficult issue of how such claims would be raised and determined for errors allegedly occurring off the record or on appeal, in light of the lack of a post-hearing process applicable to civil SVP commitments.
This Court also need not decide whether Missouri will apply the "meaningful hearing based on the record" standard for ineffective assistance of counsel now applied in Missouri termination of parental rights cases as suggested by the State, In Interest of J.P.B., 509 S.W.3d 84, 97 (Mo. banc 2017) , or the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , standard applied in other states, because under either standard Mr. Grado’s counsel was not ineffective in failing to object to evidence Mr. Grado watched animalistic pornography, played a pedophilic video game, and was sexually attracted to animals. This evidence was admissible because the State’s expert relied on it in assessing Mr. Grado’s diagnosis and risk of re-offense. He had a meaningful hearing and it was a matter of trial strategy to determine whether the impact of this evidence would be minimized were it also discussed by Mr. Grado’s counsel. For the reasons set out below, this Court also rejects Mr. Grado’s claim there was insufficient evidence to support the finding he was an SVP as well as his claim he was insufficiently mature at the time of committing the index offense at age 18 for it to be constitutional to find he is an SVP as that finding allegedly becomes, in effect, a sentence of commitment for life. The judgment is affirmed.
On October 16, 2014, while Mr. Grado was serving three concurrent five-year sentences for first-degree child molestation, the State filed the underlying petition seeking to have Mr. Grado committed as an SVP2 . The probate division of the circuit court held a three-day jury trial.
To have Mr. Grado committed as an SVP, the State was required to prove he had been convicted of an "index" sexually violent offense3 and has a mental abnormality making him more likely than not to commit a future act of sexual predatory violence unless confined to a secure facility. § 632.480(5). To meet its burden, the State presented testimony from Dr. Lisa Witcher, a licensed psychologist hired by the Missouri Department of Mental Health to perform an SVP examination of Mr. Grado. Dr. Witcher testified based on her interview of Mr. Grado and on her review of an abundance of his records from elementary and high school all the way through his incarceration.
Here, Mr. Grado’s index offense was his three convictions of first-degree child molestation.4 In pleading guilty, Dr. Witcher testified, Mr. Grado admitted when he was 18 years old he engaged in sexual contact with three children all under the age of seven. He started with his five-year-old nephew. He told his nephew they were playing a "game" where they pretended to be "in a dream." He then proceeded to play a game of truth or dare, and Mr. Grado pulled down his pants and showed his nephew his genitals. He played a similar "game" with his six-year-old niece and his niece and nephew’s seven-year-old cousin, only the "game" escalated and he "dared" the two girls to put their hands and mouths on his genitals. On other occasions, he tried to manipulate the three children into performing oral sex on him.
In addition to his index offense, Dr. Witcher testified Mr. Grado had multiple prior instances of sexual abuse of children. When he was 14, Mr. Grado had his one-year-old nephew place his hand on Mr. Grado’s penis while he was masturbating. At 15, Mr. Grado and an eight- or nine-year-old boy touched one another’s genitals, and Mr. Grado had the boy perform oral sex on him. Mr. Grado continued to have sexual interactions with that same boy multiple times over approximately a six-month period. Because Mr. Grado received sexual gratification from these interactions, Dr. Witcher diagnosed him with the paraphilia
of pedophilic disorder non-exclusive type, sexually attracted to both males and females. Dr. Witcher further testified that because Mr. Grado continued to engage in predatory sexual conduct despite reporting feeling guilty for his conduct, he suffered from a mental abnormality that caused him serious difficulty in controlling his behavior.
Dr. Witcher also scored Mr. Grado on the Static 99-R and Static 2002-R, actuarial instruments used to determine Mr. Grado’s risk. The Static 99-R and Static 2000-R placed him in the moderate to high risk category and moderate risk category to be reconvicted, respectively. In addition, Dr. Witcher testified Mr. Grado demonstrated several other risk factors, including his emotional congruence with children (Mr. Grado thought the child victims were his friends), sexual impulsivity, strong manipulation techniques, and sexual attraction to animals. Because of his sexual attraction to animals, Dr. Witcher diagnosed Mr. Grado with zoophilia, which is also a paraphilia
. She testified he was at an increased risk to reoffend because he had two paraphilias. Based on the totality of Mr. Grado’s behaviors, Dr. Witcher gave her opinion to a reasonable degree of psychological certainty he would commit future acts of predatory sexual violence unless confined in a secure facility, and Mr. Grado met the criteria of an SVP.
The State also presented testimony from Robert Gould, the operations manager for MOSOP and the primary therapist for Mr. Grado’s group in the program. Mr. Gould testified that throughout the program Mr. Grado "discussed more readily, more frequently, the interactions with animals" and "did not as readily discuss the human victims, child victims and" admitted watching animated pornography featuring half-human, half-animal adult characters with exaggerated sexual features and playing a pedophilic video game which involved grooming techniques similar to those Mr. Grado used on his child victims. Mr. Grado maintained throughout MOSOP he was not a risk to children, but Mr. Gould testified he observed nothing during treatment which would signal Mr. Grado was no longer sexually attracted to children as well as animals.
Mr. Grado testified on his own behalf that he began to become sexually attracted to animals after watching animalistic pornography. At around the same time he also started playing a pedophilic video game and began molesting his index offense victims. In addition to testifying about his sexual history with children and animals, Mr. Grado stated sometimes, although not often, he had deviant sexual fantasies about his victims but would usually be able to divert his thoughts. He did not believe he was still sexually attracted to children but was unwilling to say whether he was still attracted to them until he got "a complete grasp of [his] sexuality." Mr. Grado believed he could still easily manipulate children and was unsure if he would reoffend if left alone with a child. He unequivocally recognized animals continued to be a sexual trigger for him.
Mr. Grado’s mother and brother also testified regarding Mr. Grado’s childhood and their support of him. Mr. Grado’s counsel also presented expert testimony from Dr. Richard Wollert, a clinical and forensic psychiatrist. Dr. Wollert generally discussed research on the developmental psychology of persons from the age of 12 through their mid-20s, specifically noting the part of the brain controlling foresight, judgment, and decision making continues to develop into the "mid-20s." Dr. Wollert had not evaluated Mr. Grado, however, and so was unable to testify whether this research applied to him.
The jury found Mr. Grado to be an SVP, and the circuit court ordered him to be committed to the Department of Mental Health for control, care, and treatment. This appeal followed. Mo. Const. art V, § 10 .
Mr. Grado argues he has a due process right to effective assistance of counsel in his SVP proceeding because his commitment as an SVP implicates his fundamental liberty interest. He also alleges the statutory right to assistance of counsel under sections 632.489 and 632.492 mandates counsel be effective. The State acknowledges this Court previously held an SVP has a constitutionally protected liberty interest, but asks the Court to reconsider this issue and hold there is no due process or statutory right to effective assistance of counsel in SVP proceedings. "This Court reviews [such] issues of law de novo. " Murrell v. State, 215 S.W.3d 96, 102 (Mo. banc 2007) (citation omitted).
This Court has repeatedly reaffirmed civil commitment in SVP proceedings impinges on the...
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