In re Treatment D.N.

• Decision Date: 14 April 2020
• Docket Number: No. SC 98077,SC 98077
• Citation: 598 S.W.3d 108
• Parties: In the MATTER OF the Care and Treatment of D.N.
• Court: Missouri Supreme Court

598 S.W.3d 108

In the MATTER OF the Care and Treatment of D.N.

No. SC 98077

Supreme Court of Missouri, en banc.

Opinion issued April 14, 2020

D.N. was represented by Amy E. Lowe of the public defender’s office in St. Louis, (314) 340-7662.

The state was represented by Garrick Aplin of the attorney general’s office in Jefferson City, (573) 751-3321.

W. Brent Powell, Judge In 2005, appellant D.N. ("Offender") pleaded guilty to felony sex abuse and was sentenced to 15 years’ imprisonment. Before Offender’s release in August 2016, the State filed a petition seeking to civilly commit Offender to the department of mental health ("DMH") as a sexually violent predator ("SVP"), as defined by section 632.480.¹ A jury found Offender to be an SVP, and the circuit court entered judgment committing him to DMH. Offender raises seven points on appeal. This Court affirms.

I. Factual and Procedural History

Offender was convicted in 2005 of felony sex abuse of his mentally disabled sister-in-law, and the circuit court imposed a 15-year sentence. Near the end of his sentence, Dr. Angela Webb, a state psychologist with the department of corrections, evaluated Offender as required by section 632.480 and determined he met the definition of a "sexually violent predator." The State filed a petition seeking civil commitment under the Sexually Violent Predator Act ("the Act") alleging probable cause to establish SVP status. As support for the allegations, the State attached affidavits, including the end-of-confinement report authored by Dr. Webb, an SVP assessment form, and the prosecutor’s review committee vote. A hearing took place pursuant to section 632.489 during which the circuit court found probable cause to support the allegations in the petition. The court transferred Offender to DMH for further evaluation of whether he met the criteria for an SVP. The court set the matter for trial pursuant to section 632.492.

During trial, the jury heard evidence that Offender’s first known incident of sexually deviant behavior took place in 1989, when he pleaded guilty to indecent contact with his 8-year-old son. In 1992, Offender pleaded guilty to sodomy after engaging in sexual conduct with a sleeping 18-year-old woman. For this offense, he was sentenced to five years’ imprisonment, and he completed the Missouri Sex Offender Treatment Program ("MOSOP"). In 1997, two new allegations of sexual misconduct arose against Offender, but he was not arrested or charged as a result of either allegation. One involved sexual conduct with his mentally disabled sister-in-law. The other involved Offender staring at teenage girls in their bathing suits. Between 1997 and 2000, Offender’s stepson reported three incidents of molestation while he was 4 to 7 years old, but Offender was never criminally charged for these alleged acts. In 2005, Offender pleaded guilty to sexual abuse against his mentally disabled sister-in-law after he was observed in her bedroom engaging in sexual conduct with her. For this offense, he received a sentence of 15 years’ imprisonment. While serving this sentence, Offender completed MOSOP a second time.

Dr. Harry Goldberg, a forensic clinical psychologist, testified at trial for the State that Offender met the statutory criteria for an SVP. He testified he evaluated Offender and determined Offender had a mental abnormality as defined by the Act and the abnormality made Offender more likely than not to engage in sexually violent behavior. Dr. Goldberg testified that, in conducting his evaluation, he reviewed multiple documents and records related to Offender looking for a "pattern of behavior" that caused "distress or dysfunction." Dr. Goldberg diagnosed Offender with three disorders: 1) pedophilic disorder, sexually attracted to males, nonexclusive type; 2) other specified paraphilic disorder, nonconsensual sex; and 3) other specified personality disorder, antisocial personality. Dr. Goldberg further testified that, while these disorders individually do not constitute mental abnormalities for purposes of the Act, the three disorders in concert constitute a mental abnormality. Dr. Goldberg then opined Offender’s mental abnormality made him more likely than not to engage in acts of predatory sexual violence if not confined in a secure facility, finding elevated risk through several actuarial scales and risk assessments.

Dr. Jeffrey Kline, a DMH psychologist, examined Offender and found Offender was not an SVP. Dr. Kline testified at trial that Offender did not suffer from a mental abnormality as defined by the Act and, therefore, did not meet the criteria of an SVP. Like Dr. Goldberg, Dr. Kline reviewed thousands of pages of records and interviewed Offender. Dr. Kline did not diagnose Offender with pedophilic disorder or paraphilic disorder involving non-consent. Dr. Kline explained he could not diagnose Offender with these disorders because of a lack of evidence showing the patterns of behavior typical of these disorders.

Offender testified at trial about the MOSOP treatment he received and his renewed commitment to abide by the law. He testified about his past sexual offenses and his risk for reoffending. When asked if he would commit sexual offenses again, he answered, "If I said no, then it would [be] a lie. If I say yes, there’s a possibility, then I would be right."

The jury unanimously found by clear and convincing evidence that Offender met the criteria for an SVP, and the circuit court entered an order committing him to DMH for control, care, and treatment. The circuit court denied Offender’s motion for a new trial. This appeal follows.²

II. Discussion

Offender raises seven points of error on appeal, summarized here: (1) the circuit court abused its discretion when it prohibited Offender from questioning the jury panel about the specific ages of child victims; (2) the circuit court erred when it excluded a portion of the testimony of Dr. Kline; (3) the circuit court plainly erred in submitting Instruction No. 6, the verdict director, because it deprived Offender of his right to a unanimous jury verdict; (4) Offender received ineffective assistance of counsel at the probable cause hearing because counsel did not object to the end-of-confinement report authored by Dr. Webb, a provisionally licensed psychologist; (5) the circuit court plainly erred in overruling the motion for new trial based on juror nondisclosure of bias; (6) the circuit court clearly erred in overruling the motion for new trial based on ineffective assistance of trial counsel for failure to move for change of venue; and (7) omissions in the trial transcript constitute structural error that deprive Offender of meaningful appellate review. These points will be addressed in order.

Point I: Jury Selection and Critical Facts

Offender claims the circuit court abused its discretion when it prohibited Offender from disclosing the specific ages of two child victims during jury selection, claiming that the specific ages were critical facts of the case and had a substantial potential for revealing disqualifying bias.

Facts Relevant to Point I

In a pretrial motion in limine, the State asked the circuit court to prohibit Offender from inquiring and discussing in explicit detail the nature of his offenses during jury selection, including the ages of the child victims. The circuit court initially overruled the State’s motion. During jury selection, the State’s attorney informed the prospective jurors, "I expect that you'll hear that the disorders we're going to be talking about include ... an attraction to children, ... and I'll expect you'll hear that [Offender] has victimized several people in his history." Three prospective jurors stated they could not be fair to Offender because of these allegations, including two who cited personal experiences involving child victims. Offender’s counsel also questioned prospective jurors and stated, "[Y]ou're likely to hear evidence that [Offender] has a victim that is 10 years old and an alleged victim that was 10 years old at the time of the offense." The State objected based on the pretrial motion in limine, and the circuit court sustained the objection. Complying with the court’s ruling, Offender’s counsel then asked the prospective jurors if they had young children and remarked about the natural urge to protect them. Offender’s counsel asked:

Is there anybody ... that is worried that because of having kids or grandkids that are small that that’s going to be in the back of your mind when you're looking at the evidence and ... if you don't feel that the State has met their burden, that because of the fact that you have kids, that you're going to vote to – that he meets the criteria because you'd rather be safe than sorry because of those close to you?

Two prospective jurors responded affirmatively. Offender’s counsel confirmed with the two prospective jurors that they had "young" or "younger" kids.

After jury selection, Offender’s counsel stated, as an offer of proof, that he "would have asked questions regarding the victims, namely that there are two male victims that were ages, 10, both of them." This claim of error was included in Offender’s motion for a new trial.

Standard of Review

The circuit court "is vested with the discretion to judge the appropriateness of specific questions" during jury selection. State v. Oates , 12 S.W.3d 307, 310 (Mo. banc 2000). "[T]he nature and extent of the questions counsel may ask are discretionary with that court." State v. Clark , 981 S.W.2d 143, 146 (Mo. banc 1998) (quoting State v. Smith , 649 S.W.2d 417, 428 (Mo. banc 1983) ). "Likewise, the trial judge is in the best position ‘to judge whether a disclosure of facts on voir dire sufficiently assures the defendant of an impartial jury without at the same time amounting to a prejudicial presentation of the evidence.’ " Id. (quoting State v. Leisure , 749 S.W.2d 366, 373 (Mo. banc 1988) ). "The discretion of the trial judge in striking this difficult...