Johnson v. State

• Decision Date: 20 November 2001
• Docket Number: No. SC 83738.,SC 83738.
• Citation: 58 S.W.3d 496
• Parties: In the Matter of Joseph JOHNSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

58 S.W.3d 496

In the Matter of Joseph JOHNSON, Appellant, v. STATE of Missouri, Respondent.

No. SC 83738.

Supreme Court of Missouri, En Banc.

October 9, 2001.

Rehearing Denied November 20, 2001.

Nancy A. McKerrow, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.¹

In 1991, Joseph Johnson entered guilty pleas to two counts of sodomy and was sentenced to five years' imprisonment on each count, to run concurrently. He received a conditional release in 1994. In 1995, he pleaded guilty to one count of sexual assault, was sentenced to four years' imprisonment, and was to be released on April 1, 1999. On March 30, 1999, pursuant to section 632.486,² the state filed a petition initiating proceedings to find that Johnson is a sexually violent predator.

To find that one is a sexually violent predator, the fact finder must determine: first, whether the person has pleaded guilty, been found guilty, or been found not guilty by reason of mental disease or defect of a sexually violent offense or has been committed as a criminal sexual psychopath; second, whether the person suffers from a mental abnormality; and third, whether that mental abnormality makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. See section 632.480(5). A jury verdict in such instance must be unanimous. Section 632.495.

At trial, the state presented Gerald Hoeflein, a department of corrections employee, as a witness. Hoeflein prepared the end-of-confinement report recommending commitment proceedings against Johnson. He has an undergraduate degree in architectural engineering from Lawrence Technology and a master's in counseling from the school of education at Boston University. He testified that a bachelor's degree in psychology and a master's in counseling would permit one to become a psychotherapist. He is not a licensed psychiatrist, psychologist, social worker, or counselor, but at the time of trial was working towards becoming a licensed counselor.

As a department of corrections employee, Hoeflein has facilitated group treatment for the Missouri sex offender program, assessed the risk of recidivism of individuals up for parole, and prepared end-of-confinement reports to determine whether individuals may qualify as sexually violent predators under the sexually violent predator law. At the time of trial, Hoeflein had prepared approximately 30 such reports.

Hoeflein's title at the department of corrections is "associate psychologist." He admitted that he works in that position under a state statute that gives the department until October 2001 to license its "entire psychological staff" and that he works "under a psychologist." Anytime he was asked how he was qualified to perform psychological testing or to work in the position he did, he responded, "By having had the experience and educational background required by the State of Missouri, Department of Corrections, for the position I'm in." Johnson's counsel objected several times to Hoeflein's qualifications to testify as an expert, but the court overruled the objections and permitted Hoeflein to testify.³

Hoeflein interviewed Johnson for purposes of preparing his end-of-confinement report. Hoeflein gave his opinion, based on "a reasonable degree of professional certainty," that Johnson suffers from "antisocial personality disorder" and "paraphilia," which Hoeflein believed were "mental abnormalities" as defined by the statute, and that Johnson "is more likely to commit crimes of a violent predatory sexual nature." He never specifically testified that the "mental abnormalities" he diagnosed Johnson as having made it more likely than not that Johnson would commit predatory acts of sexual violence.

On cross-examination, Hoeflein admitted that he is not a "psychologist." He equivocated on whether or not he was required to be supervised. At one point he stated that he is required to be supervised, but not by a licensed psychologist, and that his "immediate supervisor" is not a licensed psychologist. Later in his testimony he stated that "associate psychologists" for the department of corrections do "psychological work ... under the supervision of a person who is designated by the state as a `psychologist'" and that his reports are signed as "approved by" a licensed psychologist. Hoeflein also stated the supervision is only required "while I'm under supervision for my license" but that he can do his work "without being supervised" as attaining his license "is a separate issue."

The jury returned a verdict finding that Johnson was a sexually violent predator. The court ordered that Johnson be committed to the custody of the director of the department of mental health for control, care and treatment in the sexually violent offender treatment and evaluation program.

Johnson appeals under section 632.495.

Johnson argues that the trial court erred when it permitted Gerald Hoeflein to offer opinions as to whether Johnson suffered from a mental abnormality that made it more likely than not that he would engage in predatory acts of sexual violence. He contends "Mr. Hoeflein was not qualified as an expert to render those opinions" since he was neither a psychologist nor a psychiatrist, and even if he were licensed as a professional counselor, he would not be permitted to make diagnoses of mental abnormalities.⁴

Although section 632.489.4 requires that a psychiatrist or psychologist "as defined in section 632.005" examine the alleged sexually violent predator before trial, no statute pertaining to sexually violent predators makes such limitations at trial. See section 632.480, et seq.

Section 490.065.1 provides:

In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Generally, it is within the trial court's sound discretion to admit or exclude an expert's testimony. State v. Davis, 814 S.W.2d 593, 603 (Mo. banc 1991); Landers v. Chrysler Corp., 963 S.W.2d 275, 281 (Mo.App.1997). As noted in Landers, "the use of the disjunctive `or' in section 490.065 recognizes that an expert witness may be qualified on foundations other than the expert's education or license." Id. Thus, in Landers, a neuropsychologist who taught neurology and neurological surgery at a medical school was permitted to testify as a medical expert as to the causation of an organic brain injury. Id. at 282. Subsequently, in Fierstein v. DePaul Health Center, 24 S.W.3d 220, 226-27 (Mo.App.2000), a licensed clinical social worker with a Ph.D. in social work was permitted to testify as an expert on the emotional distress a party suffered when a medical center released her medical records without her consent. The social worker gave his opinion based on a reasonable degree of "clinical certainty," not "medical certainty." Id. at 227.

Persons who are licensed medical doctors practicing psychiatry, licensed psychologists, and licensed social workers are permitted by law to evaluate persons and make diagnoses of mental disorders. The phrase, "the practice of medicine," is not legislatively defined, but has been construed by the courts to include the diagnosis and treatment of the sick. See Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo. App.1991). The "practice of psychology" is defined in section 337.015.3 and includes the "diagnosis and treatment of mental...