In the Matter of Care and Treatment of Bernat v. State, No. ED 83299-01 (MO 11/22/2005)

• Decision Date: 22 November 2005
• Docket Number: No. ED 83299-01,ED 83299-01
• Parties: IN THE MATTER OF THE CARE AND TREATMENT OF ALBERT BERNAT, Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Supreme Court

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IN THE MATTER OF THE CARE AND TREATMENT OF ALBERT BERNAT, Appellant, v.STATE OF MISSOURI, Respondent.

No. ED 83299-01

Court of Appeals of Missouri, Eastern District, Division One.

November 22, 2005

NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.

Appeal from the Circuit Court of St. Charles County, Hon. Jon A. Cunningham.

Emmett D. Queener, Columbia, MO, for appellant.

Jeremiah W. Nixon, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Albert Bernat appeals the judgment of the circuit court of St. Charles County, probate division, ordering him committed to the custody of the Department of Mental Health.Bernat argues the court erred in denying his motion to preclude the state from calling him as a witness or using his right to remain silent against him.He also claims the court erred in allowing certain testimony at trial.Finding no error, we affirm.

In 1986, Bernat pleaded guilty to forcible rape, and was incarcerated.During his imprisonment, Bernat completed phases I and II of the Missouri Sexual Offender Program.He was paroled, and in 1995, he was accused of rape again.He was tried and acquitted of the charge; however, his parole was revoked, and he was returned to prison.Bernat was scheduled for release, and the state filed a petition requesting that he be found to be a sexually violent predator and ordered committed to the custody of the Department of Mental Health.Prior to trial, Bernat filed a motion to preventthe state from calling him as a witness, and asking the court to order the state to refrain from using his silence as evidence against him.He also filed a motion in limine to preclude admission of testimony by Linda Kelly, a licensed social worker, regarding his mental abnormality.Both motions were denied by the court.The case was initially tried in October 2001; however, the jury was unable to reach a unanimous verdict, and the court declared a mistrial.The second trial took place in June 2003.The jury unanimously found that Bernat was a sexually violent predator.The court entered its judgment committing Bernat to the custody of the Department of Mental Health until such time as his mental abnormality was changed so that he is safe to be at large.Bernat filed a motion for judgment notwithstanding the verdict, and alternative motion for new trial which was denied.He now appeals¹.

In his first point on appeal, Bernat claims the trial court erred in denying his motion to preclude the state from calling him as a witness at trial, and allowing the state to use his silence as evidence against him during closing argument.

Missouri adopted the Sexually Violent Predator Act ("SVPA") in 1999.The SVPA established a procedure for the civil commitment of individuals determined to be "sexually violent predators."Pursuant to section 632.483 RSMo (2000)², when a person is convicted of a sexually violent offense, and is scheduled for release from the Department of Corrections, the Department must give notice to the attorney general if it appears as though the person may "meet the criteria of a sexually violent predator...."Section 632.486 provides that if, after evaluation, it is determined the person meets the definition of a sexually violent predator, the attorney general may file a petition in the probate division of the circuit court in which the person was convicted alleging that the person is a sexually violent predator.Pursuant to section 632.489, the court will then conduct a probable cause hearing, at which the court can direct the Director of the Department of Mental Health to have the person examined.Section 632.492 provides for a trial after the completion of any exam conducted pursuant to section 632.489.If the court or a jury thereafter determines that the person is a sexually violent predator, section 632.495 provides that the person is to be committed to the custody of the Department of Mental Health until the mental abnormality is changed such that the person is safe to be at large.

Bernat claims the trial court's failure to grant Bernat the right to remain silent, and to order the state to refrain from commenting on Bernat's failure to testify in the sexually violent predator proceeding violated his right to equal protection under the United States and Missouri constitutions because persons facing civil commitment are afforded the right to remain silent and he was not.

We note that although the trial court did not preclude the state from calling Bernat as a witness at trial, the state chose not to do so.Moreover, Bernat did not testify on his own behalf.Thus, Bernat was not prejudiced by the court's denial of his motion to preventthe state from calling him as a witness, nor was he prejudiced by the court's failure to grant him the right to remain silent.However, we review Bernat's equal protection claim in this regard as a threshold consideration to his claim of error regarding the state's comments during closing argument concerning his failure to testify.

The equal protection clause of the Fourteenth Amendment to the United States Constitution requires that "similarly situated" persons be treated in a similar way.State ex rel. Nixon v. Askern, 27 S.W.3d 834, 841(Mo. App.2000);(citingCity of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313(1985)).If a statute provides different treatment for a "suspect class", it must be subject to strict scrutiny to determine if the different treatment is necessary to achieve a compelling state interest.In re Care and Treatment of Lieurance, 130 S.W.3d 693, 700(Mo. App.2004);(citingIn the Matter of Care and Treatment of Norton, 123 S.W.3d 170, 173(Mo. banc 2003)).The same is true where a statute affects a fundamental right.Id.If the provision does not concern a suspect class or fundamental right, then it must be determined whether the statute is rationally related to a legitimate state interest.Id.

As Bernat correctly notes, the Missouri Supreme Court has determined that sexually violent predators are not members of a suspect class.Norton, 123 S.W.3d at 173.However, the court also found that the "civil commitment of persons so classified impinges on the fundamental right of liberty," and subjected equal protection claims of an alleged sexually violent predator to strict scrutiny review.Id.

As a threshold matter, citing State ex rel. Nixon v. Askern, 27 S.W.3d 834, 842(Mo. App.2000), the state urges us to conclude that sexually violent predators are not similarly situated to those subject to general civil commitment, and therefore, no equal protection violation has occurred.In Askern, the court of appeals noted that the SVPA is based upon the premise that sexually violent predators suffer from a mental condition that differs significantly from the illnesses which are the subject of other civil commitment.Id.The court stated that the SVPA was designed to address the specific problems presented by those who are "in fact likely to inflict profound harm on other persons, yet outwardly appear normal in all other respects."Id.

We disagree with the state's assertion.The Missouri Supreme Court, in Norton, evaluated the equal protection implications of the failure to provide less restrictive alternative to "secure confinement" of sexually violent predators, when the other subjects of involuntary commitment receive treatment in the least restrictive environment.123 S.W.3d at 173, 174.The court concluded secure confinement of sexually violent predators was narrowly tailored to meet the state's compelling interest in protecting the public from crime.Id. at 174.This interest justified the different treatment of alleged sexually violent predators because of the substantial probability that they would commit future sexually violent crimes if not securely confined.Id.

The Supreme Court in Norton did consider the equal protection claim, and we consider Bernat's equal protection claim in the instant case.Although Bernat's equal protection right is implicated in the court's decision, we do not believe the failure of the court to grant Bernat's motion to preclude the state from calling him as a witness violated that right.

While the right to remain silent is provided to those subject to general civil commitment pursuant to section 632.335, it is not provided by statute to alleged sexually violent predators pursuant to the SVPA³.As noted above, where statutes provide for different treatment of persons affecting a fundamental right, strict scrutiny review applies to determine if the different treatment is necessary to achieve a compelling state interest.Lieurance, 130 S.W.3d at 700;(citingNorton, 123 S.W.3d at 173).We believe the application of the SVPA provisions by the trial court met this standard.

The SVPA is narrowly tailored to serve the compelling state interest of protecting the public from potentially dangerous sexually violent predators.In furtherance of that interest, the state identifies the compelling interest in the advancement of reliability in presenting facts to the finder.In order to have an alleged sexually violent predator committed to the custody of the Department of Mental Health, the state must prove beyond a reasonable doubt that the person has a condition which affects his emotional or volitional capacity and that predisposes him to commit sexually violent offenses such that he has serious difficulty controlling his behavior.In re Care and Treatment of Francis, 159 S.W.3d 873, 874(Mo. App.2005);(citingSections 632.480(2) and (5);Thomas v. State, 74 S.W.3d 789, 791-92(Mo. banc 2002);andIn re Coffel, 117 S.W.3d 116, 121(Mo. App.2003)).Additionally, the state must prove the alleged sexually violent predator is more likely than not to engage in predatory acts of sexual violence if not confined.Id.Given this burden of proof, it is important to the state's interest in...