Murrell v. State

• Decision Date: 13 February 2007
• Docket Number: No. SC 87804.,SC 87804.
• Citation: 215 S.W.3d 96
• Parties: In the Matter of the Care and Treatment of Mark A. MURRELL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

215 S.W.3d 96

In the Matter of the Care and Treatment of Mark A. MURRELL, Appellant, v. STATE of Missouri, Respondent.

No. SC 87804.

Supreme Court of Missouri, En Banc.

February 13, 2007.

Rehearing Denied March 20, 2007.

Emmett D. Queener, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James H. Klahr, Asst. Atty. Gen., Jefferson City, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

A jury unanimously found Mark Murrell to be a sexually violent predator ("SVP") pursuant to sections 632.480-632.513¹, RSMo Supp.2001. Because his appeal challenges the validity of sections 632.480-632.513, jurisdiction lies solely in this Court. Mo. Const. art. V, sec. 3.

This Court holds: (1) that Missouri's SVP statute, sections 632.480-632.513, complies with the due process protections of the United States and Missouri constitutions; (2) antisocial personality disorder ("ASPD") can meet the definition of "mental abnormality" within the meaning of section 632.480(2) if there is evidence of a link between ASPD and sexually violent behavior and there was sufficient evidence in this case for the jury to find that Murrell is an SVP under the statute; and (3) expert testimony, including evidence of actuarial instruments, was properly admissible in this case because the actuarial instruments utilized constituted facts or data of a type reasonably relied upon by experts in the field that were otherwise reasonably reliable and it was linked with an independent clinical evaluation of Murrell. The judgment is affirmed.²

I. Facts

Mark "Red" Murrell has a long record of criminal offenses and has spent the majority of his life in prisons, halfway houses, mental institutions and other detention facilities.³ As a teenager, he was arrested several times and ended up at a home for boys. By the age of 15 years, Murrell had been in two different boys' juvenile facilities and had an extensive arrest record. He frequently used drugs and alcohol.

When Murrell was 18 years old, he was involved in a bar fight in Kansas that culminated in Murrell stabbing another man. He was arrested on charges of aggravated battery. Three months after that arrest and while out on conditional release, Murrell and two other men abducted two women at gunpoint from a parking lot. They took the women to a Belton house and raped them. On October 23, 1980, Murrell pled guilty to the rape of the two women and to aggravated battery in connection with the stabbing. He was sentenced to 15 years for the rape and 10 years for aggravated battery, to be served concurrently.

Murrell was paroled in 1991. Five months later, while under parole supervision, he was arrested for driving while intoxicated, unlawful use of a weapon, and possession of a controlled substance, cocaine base. On the basis of these charges and the subsequent convictions following guilty pleas, Murrell's parole was revoked and he was sentenced to four years imprisonment. In 1994, he was paroled to a halfway house. He escaped and was soon after apprehended in a drug house. His parole was revoked.

Murrell was finally released from prison and any and all supervision in 1995 and went to live with an ex-girlfriend. In March 1996, four months after his release from prison, Murrell fondled the breasts of a 13-year-old girl while he watched a movie with her and his ex-girlfriend's daughter in the house where he was living. He pled guilty to child molestation in the 2nd degree and was sentenced to four years in prison.

Murrell served four years and was scheduled for release from prison on April 4, 2000. In January 2000, the department of corrections notified the attorney general that Murrell might meet the definition of an SVP. In February of that year the prosecutor's review committee met pursuant to section 632.493, RSMo Supp.1999, and determined Murrell did in fact meet that definition. On February 28, 2000, the State of Missouri filed a petition to commit Murrell to the custody of the department of mental health pursuant to section 632.492, RSMo Supp.1999.

Prior to trial, Dr. Deborah Gunnin, a licensed forensic psychologist with the department of mental health, was assigned to conduct an SVP evaluation of Murrell and diagnosed Murrell with recurrent depressive disorder, polysubstance dependence, and ASPD. In Dr. Gunnin's opinion, the existence of ASPD, as well as Murrell's scores on the Static-99 and MnSOST-R⁴ actuarials, made Murrell more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.

During the pendency of Murrell's SVP proceeding, the United States Supreme Court decided Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and this Court, in turn, decided In the Matter of the Care and Treatment of Thomas v. State, 74 S.W.3d 789 (Mo. banc 2002). The rule of those cases is that an SVP statute allowing for civil commitment must require a finding of future dangerousness and a link between that finding and the existence of a "mental abnormality" or "personality disorder" that causes the individual serious difficulty controlling his behavior. See Thomas, 74 S.W.3d at 791.

Following the change in the law, Dr. Gunnin reevaluated Murrell in October 2002. Although she again diagnosed him with ASPD and again took his scores on the Static-99 and MnSOST-R into account, she believed that there was inconclusive evidence to indicate whether Murrell has control of his behavior and chooses to act unlawfully, or whether he has serious difficulty controlling his behavior.

Consequently, the State hired Dr. Harry Hoberman, also a licensed psychologist, to conduct an evaluation of Mark Murrell. At trial, Dr. Hoberman testified⁵ that Murrell suffers from the mental abnormality of ASPD. He instructed that Murrell's ASPD was a congenital or acquired condition that affects his emotional or volitional capacity such that it predisposes him to commit sexually violent offenses. Finally, Dr. Hoberman testified that, in his opinion, Murrell's ASPD causes him serious difficulty controlling his behavior and makes him more likely than not to engage in future acts of predatory sexual violence. He explained that he measured Murrell's risk of reoffense by reviewing and relying upon Murrell's extensive record, looking to base rates, and using actuarial tools.

Murrell attacked the reliability of the actuarial instruments relied on by Dr. Hoberman. Murrell also called Dr. Gregory Sisk, a licensed psychologist, who stated that in his opinion, Murrell does not suffer from a mental abnormality within the meaning of section 632.480(2). According to Sisk, "mental abnormality," as used in the statute, necessarily requires an abnormality that causes a tendency to commit sexually violent offenses and neither ASPD nor major depressive disorder nor polysubstance dependence necessarily cause sexual urges, as a paraphilia would.

At the conclusion of the evidence the court gave the jury the following verdict director, in relevant part:

If you find and believe from the evidence beyond a reasonable doubt:

First, that the respondent pleaded guilty to child molestation in the second degree in the Circuit Court of Jackson County, State of Missouri, on December 10, 1996, and

Second, that the offense for which the respondent was convicted was a sexually violent offense, and Third, that the respondent suffers from a mental abnormality, and

Fourth, that this mental abnormality makes the respondent more likely than not to engage in predatory acts of sexual violence if he is not confined to a secure facility, then you will find that the respondent is a sexually violent predator.⁶

The jury unanimously found Mark Murrell to be a sexually violent predator. The court entered judgment on the verdict and ordered Murrell to be placed in the custody of the Missouri Department of Mental Health for control, treatment and care until his mental condition has so changed that he is safe to be at large.

II. Discussion

A. Points on Appeal

Murrell raises four points of error on appeal: (1) the trial court erred when it denied his motion to dismiss the State's petition because sections 632.480-632.513 violate due process; (2) the evidence was insufficient to prove beyond a reasonable doubt that Murrell is an SVP; (3) the trial court erred in admitting evidence that Murrell suffers from ASPD because it is not a "mental abnormality" under the statute; and (4) the trial court erred in admitting the results of Murrell's scores on the Static-99 and MnSOST-R actuarial instruments as applied to him by Dr. Hoberman.

B. Constitutionality of Sections 632.480-632.513

Murrell alleges that the trial court erred when it denied his motion to dismiss the State's petition because sections 632.480-632.513 are unconstitutional in that they permit civil commitment of an individual without requiring proof that the individual's mental abnormality makes him more likely than not to commit a sexually violent offense in the immediate future. Rather, he urges, the statutes allow commitment based on a finding that a person may be a danger at some indefinite time into the future and will commit a sexually violent offense over the course of an entire lifetime and are, therefore, unconstitutional.

1. Standard of Review

This Court reviews issues of law de novo. Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003). "Statutes are presumed to be constitutional." Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000) (citations omitted). This Court will "resolve all doubt in favor of the act's validity" and may "make every reasonable intendment to sustain the constitutionality of the statute." Westin Crown Plaza Hotel v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted. See Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993).

2. Due Process...