Whitnell v. State

• Decision Date: 09 March 2004
• Docket Number: No. ED 82283.,ED 82283.
• Citation: 129 S.W.3d 409
• Parties: In the Matter of the Care and Treatment of Joseph H. WHITNELL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

129 S.W.3d 409

In the Matter of the Care and Treatment of Joseph H. WHITNELL, Appellant, v. STATE of Missouri, Respondent.

No. ED 82283.

Missouri Court of Appeals, Eastern District, Division Three.

March 9, 2004.

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

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

Joseph Whitnell ("Whitnell") was convicted of sexual abuse in the first degree in 1992. On October 10, 2000, the State of Missouri ("state") filed a petition to civilly commit Whitnell as a sexually violent predator ("SVP") under section 632.486 RSMo 2000.¹ The matter was tried before a jury in the probate division of the Circuit Court of Washington County on August 28 and 29, 2002.

The principal witness for the state was Dr. Bruce Harry ("psychiatrist"), a psychiatrist, who testified as an expert witness.² Based on his review of a considerable body of records that were introduced into evidence, as well as interviews that he conducted with Whitnell, psychiatrist concluded that Whitnell has a mental abnormality, "paraphilia not otherwise specified." Psychiatrist further opined that Whitnell's paraphilia makes him more likely than not to engage in sexual predatory acts, and that his mental abnormality causes him serious difficulty in controlling his behavior. Throughout the course of his testimony, psychiatrist explained how the evidence that he reviewed, as well as his interviews with Whitnell, led to his conclusions as an expert.

On cross-examination, psychiatrist freely admitted that paraphilia, in and of itself, does not automatically mean a total lack of control. He also admitted that trying to discern whether a person has "serious difficulty" in controlling his behavior or whether a person chooses not to control himself is very difficult.

The jury returned a verdict that found Whitnell to be a sexually violent predator. On August 29, 2002, the probate division entered a judgment and commitment order directing that Whitnell be placed in the custody of the Missouri Department of Mental Health ("DMH") in a secure facility for care, control, and treatment until he is safe to be at large.

Whitnell now appeals from that judgment.

In his first point on appeal, Whitnell contends that the probate division erred by abusing its discretion in permitting psychiatrist to testify concerning the element of "serious difficulty controlling behavior" in that he was not qualified to express an opinion on that issue because "he did not distinguish between an inability to control behavior and an ability to control behavior but a conscious choice not to, thereby misstating the law and misleading jurors[,]" and depriving Whitnell of his due process rights under the U.S. Constitution and the Missouri Constitution.

Under section 632.480(5) a SVP is

[A]ny person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:

(a) Has pled guilty or been found guilty or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense[.]

A mental abnormality is defined as

[A] congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

Section 632.480(2). Under the U.S. Supreme Court rulings in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) and in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the sexual predator statutes of Kansas and Missouri, which are identical for all relevant purposes, are constitutional so long as the "mental abnormality" causes the person "serious difficulty in controlling his behavior." Thomas v. State, 74 S.W.3d 789, 790-91 (Mo. banc 2002).

The standard for the admission of expert testimony in civil cases is set forth by section 490.065.³ State Board of Registration for the Healing Arts v. Edward W. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003); Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997). Testimony ought to be admitted if the expert witness possesses some qualification. Krame v. Waller, 849 S.W.2d 236, 240 (Mo.App.1993). Whether a witness's qualifications to state an opinion are sufficiently established largely rests in the discretion of the trial court and its ruling thereon will not be disturbed on appeal absent a clear showing of abuse. Kell v. Kell, 53 S.W.3d 203, 209 (Mo.App.2001). Likewise the admission or exclusion of expert opinion testimony is a matter within the discretion of the trial court, and this Court will not interfere with that discretion unless it plainly appears that it has been abused. Id.

In a civil case, 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 who is qualified as an expert by skill, knowledge, experience, training, or education may testify thereto in the form of an opinion or otherwise. Id. In order for a witness to be qualified as an expert, it must be shown that by reason of specialized experience or education the witness possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of reaching correct conclusions. Id. If the witness has some qualifications, the testimony may be permitted. Id. The extent of an expert's training or experience goes to the weight of his testimony and does not render the testimony incompetent. Id.

"Any weakness in the factual underpinnings of the expert's opinion or in the expert's knowledge goes to the weight that testimony should be given and not its admissibility.... In general, the expert's opinion will be admissible, unless the expert's information is so slight as to render the opinion fundamentally unsupported." Alcorn v. Union Pacific Railroad Company, 50 S.W.3d 226, 246 (Mo.2001) (citations omitted). The admission of expert testimony is within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of discretion. Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 238 (Mo.App.2003). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of judicial consideration. Whitworth v. Jones, 41 S.W.3d 625, 627 (Mo.App. 2001).

Psychiatrist, who is board certified in general psychiatry and forensic psychiatry, testified that to a reasonable degree of scientific certainty, Whitnell's mental abnormality, paraphilia, predisposes him to commit sexually violent offenses to the point that he has serious difficulty in controlling his behavior. Psychiatrist stated the facts that he considered in reaching this conclusion and indicated that these facts were of a type reasonably relied on by psychiatric experts in forming opinions concerning this issue. He discussed his review of Whitnell's history, beginning with his exposing himself to children and young adults, leading to "grooming and recruiting" efforts aimed at young girls, and eventually to the fondling of a ten-year old girl, which resulted in his 1992 conviction. Psychiatrist noted that some of these behaviors took place while Whitnell was on parole, indicating that "he can't stop it." He observed that Whitnell continued what appeared to be recruitment efforts directed toward children even while incarcerated, which "indicates either an incredible lack of common sense or that he just can't stop it[.]" Psychiatrist concluded "[t]hat he can't stop it, you know. I think he would if he could. He can't." Discussing Whitnell's repeated conduct violations while incarcerated, psychiatrist stated that such repeated violations, even after punishment, is an indication that he cannot stop his behavior. Psychiatrist also discussed other incidents that suggested to him that Whitnell would likely reoffend if released. He evaluated Whitnell's failure to complete the Missouri Sex Offender Program ("MoSOP"), and refusal of MoSOP services, noting that this resulted in his sentence being extended to the maximum date. Psychiatrist found this significant regarding his ability to control his behavior because it showed that the threat of additional punishment was not a deterrence. Psychiatrist concluded: "He can't stop."

On cross-examination, psychiatrist admitted that his conclusions regarding Whitnell were his expert opinions, and that another expert might have a different opinion. He also stated that the term "serious difficulty" was not normally used as a medical term, but rather as a legal one. Psychiatrist agreed with Whitnell that the difference between a serious difficulty in controlling one's behavior and choosing not to control one's behavior is difficult to discern, and that there was no national standard on this issue. Psychiatrist also said that he would rather not make this distinction if he did not need to do so, but despite this reluctance, he could do so in this case. He stated that he was offering his best opinion regarding Whitnell's ability to control himself. Psychiatrist stated that paraphilia, in and of itself, did not mean an automatic loss of control. He further stated that by itself, the fact that a person commits repeated sexual offenses does not automatically mean a loss of control. However, he concluded Whitnell has serious difficulty in controlling his behavior, and that beyond a reasonable doubt, it is more likely than not that Whitnell would reoffend.

Psychiatrist possessed at least some qualifications to testify on this issue, and has testified in court regarding the mental state of various persons approximately one...