In re Commitment of Rodgers, 2D01-1106.

• Decision Date: 11 June 2004
• Docket Number: No. 2D01-1106.,2D01-1106.
• Citation: 875 So.2d 737
• Parties: In re COMMITMENT OF Charles RODGERS. Charles Rodgers, Appellant, v. State of Florida, Appellee.
• Court: Florida District Court of Appeals

875 So.2d 737

In re COMMITMENT OF Charles RODGERS.

Charles Rodgers, Appellant, v. State of Florida, Appellee.

No. 2D01-1106.

District Court of Appeal of Florida, Second District.

June 11, 2004.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.

FULMER, Judge.

Charles Rodgers appeals an order adjudging him to be a sexually violent predator and committing him to a secure facility pursuant to the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2000). He raises numerous issues on appeal. We conclude that these issues do not require reversal; however, we certify a question of great public importance to the Florida Supreme Court.

Rodgers argues that to prove his future dangerousness the State presented unreliable expert testimony that failed the Frye¹ test. At the commitment hearing, the State presented the expert witness testimony of Dr. Jensen, a psychologist who employed three actuarial instruments in determining Rodgers' likelihood of recidivism: the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR), the Violence Risk Appraisal Guide (VRAG), and the Minnesota Sex Offender Screening Tool—Revised (MnSOST-R). Dr. Jensen also used a psychological test, the Psychopathy Checklist—Revised (PCL-R). This court has previously rejected a Frye challenge and allowed the use of these instruments and the psychological test in Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003), appeal docketed, SC03-1608 (Fla. Sept. 8, 2003). Lee compels us to conclude that the trial court did not err in allowing Dr. Jensen's testimony.

Rodgers argues that he was forced to testify against himself in violation of due process and equal protection principles. At trial Rodgers raised only an equal protection challenge to the issue of being forced to testify against himself. Furthermore, he failed to pose specific objections to particular questions. Therefore, Rodgers failed to establish a basis for assertion of the privilege against self-incrimination. See In re Commitment of Smith, 827 So.2d 1026, 1029 (Fla. 2d DCA 2002).

To advance his equal protection claim on appeal, he argues that the Florida courts have recognized a prohibition against compelled testimony for defendants in other types of civil proceedings, such as the civil commitment for mental health treatment under the Baker Act, section 394.451, Florida Statutes (1991). "The constitutional right to equal protection mandates that similarly situated persons be treated alike." Level 3 Communications, LLC v. Jacobs, 841 So.2d 447, 454 (Fla.2003) (citing Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000)). Rodgers has not demonstrated that he is similarly situated to defendants or respondents in other types of civil proceedings, and therefore, he is not entitled to claim like treatment under an equal protection analysis. See Level 3, 841 So.2d at 454.

Rodgers argues that the trial court erred in allowing the State to present evidence of his prior convictions, resulting from his nolo contendere pleas, pursuant to section 90.410, Florida Statutes (2000), which prohibits evidence of nolo contendere pleas to be used in any civil or criminal proceeding. The State responds that Rodgers has not preserved this issue for review, and, alternatively, that the Ryce Act allows such evidence of prior convictions. At trial, Rodgers' counsel argued that the State should be prohibited from introducing evidence of uncounseled pleas; however, it does not appear that counsel made the specific objection to the evidence that is advanced on appeal. Therefore, we agree with the State that the argument has not been preserved.

Rodgers also contends that evidence of his prior convictions that were nonsexual in nature and his prison disciplinary reports was inadmissible because the evidence was not similar to the qualifying crimes used to initiate the commitment proceedings, was not relevant to the issues, and even if the collateral bad acts were relevant, the prejudice to him outweighed the probative value of the evidence. We reject these arguments based on our opinion in Lee, 854 So.2d at 714.

Rodgers argues that the trial court erred in allowing the extensive use of hearsay by the State's expert, who relied on Rodgers' prior bad acts and criminal offenses to form his opinion. Rodgers asserts that the prejudicial effect of the expert's opinion outweighed its probative value. He also contends that the hearsay exception under the Act, section 394.9155(5), Florida Statutes (1999), is unconstitutional. We conclude that the trial court did not abuse its discretion in allowing the admission of hearsay evidence. Further, as we did in Lee, 854 So.2d at 713, we reject the constitutional challenge to the hearsay provision in the Act.

Rodgers argues that the trial court erred in allowing the prejudicial use of the term "sexually violent predator" to refer to Rodgers in both voir dire and the jury instructions. He also contends that the trial court erred in allowing the prosecutor to present specifics as to the nature and number of prior convictions and in rejecting Rodgers' offer to stipulate to the convicted-felon element of the Act. He further argues that the trial court erred in not granting a mistrial when the State made prejudicial comments in closing argument, first misstating the law and second using an improper message-to-the-community argument. We reject these arguments and conclude that the trial court did not err in allowing use of the term sexually violent predator, see Standard Jury Instructions—Criminal Cases, 777 So.2d 366, 367 (Fla.2000), that evidence of the prior convictions was relevant and admissible, see Lee, 854 So.2d at 714, and that the prosecutor's remarks during closing argument did not constitute reversible error.

Rodgers argues that the Ryce Act, on its face...