In re A.K.

• Docket Number: ED111269
• Decision Date: 07 November 2023
• Parties: IN THE MATTER OF THE CARE AND TREATMENT OF: A.K., a/k/a A.D.K.
• Court: Missouri Court of Appeals

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IN THE MATTER OF THE CARE AND TREATMENT OF: A.K., a/k/a A.D.K.

No. ED111269

Court of Appeals of Missouri, Eastern District, Second Division

November 7, 2023

Appeal from the Circuit Court of the City of St. Louis Honorable Madeline O. Connolly

KURT S. ODENWALD, PRESIDING JUDGE

Introduction

A.K appeals from the trial court's judgment committing him to the Missouri Department of Mental Health ("DMH") following a jury verdict determining that A.K. was a sexually violent predator ("SVP"). A.K. raises three points on appeal. In Point One, A.K. argues that he received ineffective assistance of counsel because trial counsel failed to move for a mistrial after the State rested without calling one of its endorsed expert witnesses. In Point Two A.K. alleges he received ineffective assistance because trial counsel failed to object when the Victim of the index offense testified about her employment and family. In Point Three A.K. contends that the trial court abused its discretion when it precluded trial counsel from eliciting testimony about or arguing that A.K. would be committed to DMH if the jury found him to be an SVP. Because the State was under no obligation to call all of its endorsed witnesses, and because a request for a mistrial on that ground would not have been meritorious, we find that trial counsel was not ineffective for failing to move for mistrial, and we deny Point One. Further, trial counsel exercised reasonable trial strategy by choosing not to object to Victim's testimony which was too fleeting and isolated to be prejudicial, and we deny Point Two. As to the trial court's ruling regarding questions about A.K's commitment to DMH, we find the trial court acted within its discretion to limit the evidence and arguments to those issues properly before the jury, and we deny Point Three. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

A.K has a history of sexual misconduct, including a conviction for forcible rape against Victim. Due to this history, in 2017, the State petitioned to have A.K. committed to DMH as an SVP. The matter first went to a jury trial in July 2021, which ended with a deadlocked jury and a mistrial. The State re-tried the case in July 2022.

Prior to trial, the State endorsed as expert witnesses Dr. H.G. and Dr. L.W., both psychologists who evaluated and diagnosed A.K. During its opening statement, the State explained, "While there have been many different diagnoses and labels that have been placed on [A.K.] over the years, all the experts in this case agree on at least two[:] [o]ne is antisocial personality disorder, and the second is schizophrenia." (Emphasis added). Trial counsel expected the State to call both experts, Dr. H.G. and Dr. L.W., to testify at trial. Specifically, trial counsel anticipated that Dr. H.G. would testify that he diagnosed A.K. with antisocial personality disorder and schizophrenia, and that Dr. L.W. would testify that she diagnosed A.K. with otherwise specified paraphilic disorder nonconsent ("OSPD-nonconsent") and schizophrenia.

One of trial counsel's strategies was to discredit Dr. L.W.'s diagnosis of OSPD-nonconsent, a disorder in which an individual is attracted to nonconsensual sex. During opening statement, trial counsel explained:

You're going to hear from Dr. [L.W.], the [DMH] psychologist, who says that [A.K] has something called [OSPD-nonconsent] and schizophrenia. But what you're going to hear her tell you from her own mouth, from that chair, is that [OSPD-nonconsent] is a contested diagnosis in the psychological field. It's not completely accepted.

During its case-in-chief, the State called Dr. H.G., who testified about the purpose of an SVP evaluation:

[T]he purpose is to see if the person meets criteria as a[n] [SVP]. . . . [I]f they do meet that criteria, then they could be committed in a court of law. If I find them not to meet criteria . . . they could be released. And then [ ] if they still have some parole or probation time, they go back on parole or probation. If not, they just get released.

The first day of trial ended, and the trial court held a jury instruction conference. The State submitted Instruction Number 8 ("Instruction No. 8"), which stated: "If you find that the respondent is a[n] [SVP], the respondent shall be committed to the custody of the director of [DMH] for control, care and treatment." The trial court accepted Instruction No. 8 with no objection from A.K.

Trial resumed the following day. On cross-examination, trial counsel asked Dr. H.G. if he was "testifying at the behest of the Attorney General's Office asking the Court to commit [A.K.] as a[n] [SVP]?" Dr. H.G. responded in the affirmative. The State objected and requested a sidebar, at which the State presented its objection:

State: So this is about the third time that I've heard it, and the first I'm bringing it to the Court[']s attention. Nobody is asking anybody to commit anybody here.

Trial Counsel: That is in your [Instruction No. 8], commit him to the care, custody and control of the [DMH].

The trial court sustained the State's objection, noting that the issue of commitment to DMH had no bearing on the jury's decision. The trial court further explained that the jury's only task was to decide whether A.K. met the definition of an SVP, which would then result in his commitment.

Dr. H.G. testified that he disagreed with Dr. L.W.'s OSPD-nonconsent diagnosis. Trial counsel also inquired about Dr. H.G.'s role as an expert witness in SVP trials. Trial counsel asked: "[W]hen you testify, it's about [ninety] percent of the time in favor of commitment, correct?" The State objected to the use of the word "commitment" on the same grounds as previously ruled on, and trial counsel agreed to rephrase the question. Trial counsel asked: "[A]bout [ninety] percent of the time you testify that a man should be committed, correct?" The State renewed its objection and sought a curative instruction. The trial court granted the request for a curative instruction and informed the jury to "disregard the question and the wording that was used." Trial counsel then asked without objection from the State: "About [ninety] percent of the time you testify that a man should be qualified as a[n] [SVP]?" Dr. H.G. answered yes.

The State then called Victim, against whom A.K. was found to have committed forcible rape in 1996, the index offense for his SVP proceedings.^[1] Trial counsel initially objected to Victim's testimony as being cumulative and designed to inflame the jury. Trial counsel moved to strike Victim as a witness, and the trial court denied the motion. Victim then testified about the index offense, stating that A.K. attacked her while she walked into her home after work. Her testimony referenced her family and employment at the time of the index offense:

State: Where were you working back then?

Victim: My mother owned a bar and restaurant, and I was bartending.

State: And at that time your family consisted of you and who else?

Victim: Myself, my husband, and we had a son who was three years old and a daughter who was barely six months.

State: And what shift did you work?

Victim: I was the night shift. We closed at 1:30 [a.m.] State: And so were you headed home that night?

Victim: I was.

Victim testified that during A.K.'s attack, she "rememberfed] saying, please don't hurt me [and] . . . that [she] had young kids." Victim also stated that, because she was attacked just outside of her home, she "reach[ed] up [and] hit[] the window because [she] knew [her] husband was inside." Trial counsel did not cross-examine Victim.

The State rested its case without calling any additional witnesses. A.K. moved for a directed verdict at the close of the State's evidence, which the trial court denied.

In A.K.'s case-in-chief, trial counsel called Dr. B.H., a psychiatrist. Dr. B.H. testified that he disagreed with Dr. L.W.'s diagnosis of OSPD-nonconsent because the disorder "is a highly controversial and as of yet unsubstantiated concept in the field of mental health." Trial counsel did not call any additional witnesses, and A.K. rested.

When trial counsel began her closing argument, she stated:

Ladies and gentleman, what is this case about? Let's start with how this case came about. The Court orders an evaluation by [DMH]. That evaluation gets returned to the Court, addressed to the Court because the Court ordered it. That happened in this case. That evaluation came back and said [A.K.] should be committed.

The State objected in the following exchange:

State: Objection, your Honor.

Trial Counsel: Should be-that evaluation found that [A.K.] qualified to be committed.

State: Your Honor-

Trial Counsel: Judge, the [Instruction No. 8] says he'll be committed.

The trial court initiated a sidebar, during which the State argued that trial counsel repeatedly referred to commitment when the issue of commitment was "not the issue before the jury." Trial counsel countered that Instruction No. 8 brought the issue before the jury. The trial court instructed trial counsel that she could not "focus on the fact that if [the jury] fmd[s] [A.K.] to be a[n] [SVP] that he will be committed." The trial court explained that while trial counsel could "certainly reference Instruction [No.] 8" and discuss the issue on rebuttal, trial counsel could not "argue that the jury is to decide whether or not [A.K. is] to be committed[; the issue] is to decide whether or not [A.K. is] a [SVP], which results in Instruction [No.] 8."

In its closing argument, the State argued without objection from A.K., "I really want to [] emphasize the words 'if not confined to a secure facility.' Members of the jury you have a firsthand account of what [A.K.'s] behavior is like if not...