In re Braddy

• Decision Date: 25 September 2018
• Docket Number: No. SC 96851,SC 96851
• Citation: 559 S.W.3d 905
• Parties: In the MATTER OF the CARE AND TREATMENT OF James BRADDY, a/k/a James A. Braddy, a/k/a James Arnold Braddy, Jr., Appellant.
• Court: Missouri Supreme Court

559 S.W.3d 905

In the MATTER OF the CARE AND TREATMENT OF James BRADDY, a/k/a James A. Braddy, a/k/a James Arnold Braddy, Jr., Appellant.

No. SC 96851

Supreme Court of Missouri, en banc.

Opinion issued September 25, 2018

Rehearing Denied December 4, 2018

Braddy 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.

Laura Denvir Stith, Judge

James Braddy appeals the Iron County circuit court’s judgment committing him to the department of mental health as a sexually violent predator (SVP).Mr. Braddy argues he received ineffective assistance of counsel at his commitment trial because his counsel discussed the pretrial SVP screening process during opening statements and elicited testimony on the subject from expert witnesses.He also argues the circuit court erred in failing to exclude evidence of a prior murder arrest.He further claims the circuit court erred in failing to strike for cause a juror who was one of several venirepersons who raised their hands when the venire panel was asked generally whether any of them agreed with another juror who later was disqualified for cause.

This Court affirms the judgment.While Mr. Braddy was entitled to effective assistance of counsel, seeIn the Matter of the Care and Treatment of Nicholas Grado, No. 96830, 559 S.W.3d 888, 2018 WL 4572722(Mo. banc 2018),he has failed to show counsel was ineffective under either the "meaningful hearing based on the record" standard for ineffective assistance of counsel now applied in Missouri termination of parental rights cases, seeIn Interest of J.P.B., 509 S.W.3d 84, 97(Mo. banc 2017) , or under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), standard applied in SVP cases in other states.Reviewing Mr. Graddo’s evidentiary and juror qualification claims only for plain error due to his failure to timely file a motion for new trial, this Court determines no manifest injustice occurred.

I.FACTUAL AND PROCEDURAL BACKGROUND

James Braddy was found guilty of one count of first-degree statutory rape under section 566.032, RSMoSupp. 2006.¹The circuit court found him to be a persistent sexual offender under section 558.018, RSMoSupp. 2006,² and sentenced him to seven years in prison.He successfully completed the Missouri Sex Offender Program, and the department of probation and parole recommended him for early release.³

When, as in Mr. Braddy’s case, an incarcerated person has been convicted of a sexually violent offense, section 632.483, RSMoSupp. 2014, requires, "Within three hundred sixty days prior to the anticipated release from a correctional center," the incarcerated person must undergo a screening process to determine whether he or she meets the definition of an SVP under Missouri law.

The screening process for Mr. Braddy began when Dr. Nena Kircher performed an end-of-confinement evaluation prior to Mr. Braddy’s release and determined he met the definition of an SVP.The department of corrections then referred Mr. Braddy to a multidisciplinary team and a prosecutor’s review committee, which also separately concluded he met the SVP criteria.⁴The State subsequently filed a petition in the Iron County circuit court pursuant to section 632.486, RSMoSupp. 2001, requesting Mr. Braddy remain in custody "for evaluation as to whether he is a sexually violent predator; and for a trial on the issues."The circuit court held a hearing pursuant to section 632.489.2, RSMoSupp. 2009; found there was probable cause Mr. Braddy was an SVP; and ordered the department of mental health to perform an additional mental examination.Dr. Rick Scott performed the evaluation and diagnosed Mr. Braddy with antisocial personality disorder and pedophilia.

A jury trial was then held to determine whether Mr. Braddy was an SVP.At trial, the State attempted to introduce a state-prepared timeline summary of Mr. Braddy’s conviction history.Mr. Braddy objected and renewed his pretrial motion in limine concerning prior bad acts, which the circuit court had taken under advisement.He argued the timeline contained unduly prejudicial information about a prior conviction because the timeline notes he originally had been charged with "murder/hindering" but ultimately was convicted only of hindering prosecution of the actual murderer.The court overruled the objection.

Dr. Kircher, the end-of-confinement screener, testified at trial she diagnosed Mr. Braddy with antisocial personality disorder, a mental abnormality predisposing him to commit acts of sexual violence.Dr. Kircher further testified she believed Mr. Braddy met the SVP criteria – a threshold only 3 to 5 percent of the individuals she evaluates meet.The State also called its own expert, Dr. Kimberly Weitl, a psychologist who interviewed Mr. Braddy and reviewed his records prior to trial.Dr. Weitl testified she diagnosed Mr. Braddy with pedophilic disorder, antisocial personality disorder, and narcissistic personality disorder, and indicated she believed he met the SVP criteria.

By contrast, Dr. Scott, who conducted the court-ordered mental examination, was called by Mr. Braddy’s counsel.He testified he diagnosed Mr. Braddy with antisocial personality disorder and pedophilia but also testified favorably to Mr. Braddy that he could not say he met the SVP criteria.

The jury unanimously found Mr. Braddy to be an SVP and, on June 9, 2016, the circuit court committed Mr. Braddy to the department of mental health.Mr. Braddy filed a motion for new trial 36 days after the judgment.The circuit court overruled the motion, and this Court granted transfer.Mo. Const. art. V, § 10;Rule 83.02.

II.STANDARD OF REVIEW

Whether Mr. Braddy was entitled to effective assistance of counsel in the SVP commitment proceeding is a question of law."This Court reviews questions of law de novo ...."Fendler v. Hudson Servs., 370 S.W.3d 585, 588-89(Mo. banc 2012) .Mr. Braddy’s additional points are not preserved for review under Rule 78.07(a) because he failed to file a timely motion for new trial.Unpreserved issues "can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error."State v. Letica, 356 S.W.3d 157, 167(Mo. banc 2011) .

III.MR. BRADDY FAILED TO SHOW HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS COMMITMENT PROCEEDING

Mr. Braddy alleges his trial counsel was ineffective when she discussed various steps of the pretrial SVP screening process during opening statements and through examination and cross-examination of various expert witnesses at trial.He says this brought otherwise inadmissible and unfairly prejudicial information before the jury.The State argues Mr. Braddy had no right to effective assistance of counsel and, therefore, this claim is without merit.It also argues the evidence was not unduly prejudicial and was part of reasonable trial strategy.

In In the Matter of the Care and Treatment of Nicholas Grado, decided today, this Court recognized a due process right to effective assistance of counsel in SVP commitment proceedings.Mr. Braddy, therefore, was entitled to effective assistance of counsel during his SVP commitment proceeding.Mr. Braddy relies on two cases from other jurisdictions to support his ineffective assistance of counsel claim.Neither of these cases involved a claim of ineffective assistance of respondent’s counsel.Rather, both involved misuse of evidence of this pretrial process to try to bolster the State’s case that respondent was an SVP.

In In re Care & Treatment of Foster, 280 Kan. 845, 127 P.3d 277(2006) , during opening statements, the prosecutor told the jury the respondent’s case had already been "reviewed by a ... ‘multidisciplinary team’ ... [and] a ‘prosecutor’s committee’ ... who made a determination based on the records and psychologists' opinions as to whether [the respondent] was at risk to reoffend."Id. at 280 .The prosecutor further told the jury there had been a pretrial "probable cause hearing ... where a judge found enough evidence to go forward."Id.Not surprisingly, the Kansas Supreme Court held "allowing the State ... to tell the jurors – before it even hears any evidence – that a multidisciplinary team of professionals, a team of prosecutors (including the attorney prosecuting the case), and the judge have all previously determined that sexually violent predator commitment proceedings should proceed against [the respondent] is extremely prejudicial."Id. at 288.This kind of evidence, it held, "stack[s] the deck" against the respondent because "a jury has a natural tendency to look for guidance from those clothed in authority."Id. at 286 .

In re Detention of Stenzel, 827 N.W.2d 690(Iowa2013) , involved similar conduct by a prosecutor inappropriately detailing all of the pretrial findings that respondent was an SVP as well as informing the jury the judge had found probable cause to believe respondent was an SVP.Id. at 694-95.The Iowa Supreme Court found such statements were "lacking in probative value and unfairly prejudicial to the respondent,"id. at 706, and presented a " ‘real danger the jury will be unfairly influenced’ by a purportedly unbiased ‘imprimatur,’ "id. at 707 .

Here, in contrast to Foster and Stenzel, it was not the prosecutor but Mr. Braddy’s counsel who introduced the evidence.The evidence was not admitted as part of an attempt to prejudice the jury into believing Mr. Braddy must be an SVP but as part of the defense effort.As in Grado, so too here, under either the Strickland standard applied to SVP proceedings in other states, or under the "meaningful hearing based on the record" standard applied in Missouri termination of parental rights cases such as In Interest of J.P.B. , Mr. Braddy’s counsel was not ineffective....