In the Matter of the Care and Treatment of Larry Walker v. State of Missouri , 465 S.W.3d 491 ( 2015 )

MODIFIED
July 28, 2015
In the
Missouri Court of Appeals
Western District
IN THE MATTER OF THE CARE )
AND TREATMENT OF LARRY )
WALKER, ) WD76976
)
Appellant, ) OPINION FILED: June 9, 2015
)
v. )
)
STATE OF MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Kathleen A. Forsyth, Judge
Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and
Gary D. Witt, Judge
Larry Walker ("Walker") appeals from the judgment of the Circuit Court of
Jackson County, following a unanimous jury verdict finding him to be a Sexually Violent
Predator ("SVP") pursuant to section 632.480(5).1 In his sole point on appeal, Walker
argues that the trial court erred when it excluded a report signed by the multidisciplinary
1
All statutory references are to RSMo 2000 cumulative as currently supplemented, unless otherwise noted.
team ("MDT") in which the members of the team voted that Walker did not appear to
meet the statutory definition of an SVP. We affirm.
Factual and Procedural Background
In 2004, Walker committed sexual assault against an eighty-one-year-old female
Alzheimer's patient who was in a diminished state and confined to her room. At the time,
the victim lived in the same nursing home as then fifty-four-year-old Walker. On
November 2, 2005, Walker pled guilty to sexual assault and sexual misconduct regarding
that event and was incarcerated. After being granted parole, Walker absconded to Texas
where he stayed for four months until he was arrested and sent back to prison to finish
serving his sentence.
Before his scheduled release date of July 12, 2011, the Department of Corrections,
pursuant to section 632.483.1, gave notice2 to the attorney general that Walker appeared
to meet the criteria of an SVP.3 After notice was given, Walker's records were evaluated
by the MDT and Prosecutors Review Committee ("PRC"). After the attorney general
received their respective reports, he filed a petition seeking Walker's commitment to the
Department of Mental Health as an SVP. Commitment to the Department of Mental
Health is accomplished through an evaluation and review process as outlined in the
Sexually Violent Predator Act, codified in sections 632.480 et seq., and culminates in a
trial.
2
Notice is typically given through the required "end of confinement" report.
3
An SVP is defined by statute as "any 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 "has pled guilty or been found guilty . . . of a sexually violent offense ." § 632.480(5)(a).
2
Walker's history of sexual assaults began in 1964, and included a nineteen-year-
old pregnant waitress whom he raped at gunpoint at a diner then forced her to serve him
coffee and call him a cab, as well as five teenaged girls whom he self-reported to
therapists as raping between 1964 and 1971 when he was in his 20's. He was also
arrested at least seventeen other times for crimes including assault and battery,
aggravated assault, making a terrorist threat, as well as non-violent crimes including
forgery, resisting arrest, robbery, larceny, burglary, drug possession, receiving stolen
property and solicitation of prostitution.
At trial, only one of the three expert witnesses called by either party was able to
personally evaluate Walker because he refused to be interviewed by the other two experts
or cooperate with them in an evaluation. The State presented one expert, Dr. Amy Swan,
a forensic psychologist. She reviewed over three thousand pages of documents relating
to Walker including court records, Department of Correction records, police reports,
treatment records and probation and parole records. She diagnosed Walker with
paraphilia not otherwise specified, non-consent as well as alcohol dependence and
personality disorder not otherwise specified with antisocial features. Walker's diagnosis
means that he is sexually stimulated and desirous of having sexual relations with persons
who do not consent to sex. Dr. Swan noted that Walker's repeated arrests and parole
violations were an indicator of a greater risk to reoffend. She diagnosed Walker with a
mental abnormality and opined that within a reasonable degree of medical certainty he
would engage in predatory acts of sexual violence if not placed in a secure facility.
3
Walker called two expert witnesses. His first witness was Dr. Jeanette Simmons, a
clinical psychologist, who diagnosed Walker with paraphilia not otherwise specified,
which she based on Walker's self-reporting of sexual assaults and on his convictions,
which spanned forty years, of "committing sexual offenses with individuals who were not
consenting persons in one form or another." Dr. Simmons testified that Walker had a
mental abnormality, but that, in her opinion, he was not more likely than not to engage in
predatory acts of sexual violence if released. Dr. Simmons also diagnosed Walker with
adult antisocial behavior based, in part, on his seventeen past arrests.
Walker's second expert was Dr. Jarrod Steffan, a psychologist who reviewed
Walker's records and conducted a two-hour interview of him. Dr. Steffan testified that
the "most pertinent" requirement under Missouri law for commitment as an SVP is
whether the offender is suffering from a mental abnormality that makes him more likely
than not to engage in predatory acts of sexual violence if not confined to a secure facility.
Dr. Steffan diagnosed Walker with alcohol dependence and personality disorder not
otherwise specified. Although he opined that Walker was not more likely than not to
engage in predatory acts, he acknowledged that Walker's diagnosis of personality
disorder qualified Walker as having a mental abnormality.
The jury returned a unanimous verdict, finding by clear and convincing evidence
that Walker was an SVP.4 The court accepted the verdict and ordered Walker committed
to the Missouri Department of Mental Health for control, care and treatment. Walker
timely appeals.
4
Section 632.495 states that the verdict must be unanimous and based on clear and convincing evidence.
4
Analysis
In his sole point, Walker argues that the trial court abused its discretion when it
sustained the State's objection and excluded the MDT report because "an expert's opinion
is not objectionable merely because it embraces an ultimate issue to be decided." He also
contends that the exclusion of the report prejudiced him.
Standard of Review
"The burden of proof in civil commitment proceedings is clear and convincing
evidence." In re Muston, 350 S.W.3d 493, 496 (Mo. App. S.D. 2011). Our review of a
sexually violent predator finding is limited to a determination of whether there was
sufficient evidence from which a reasonable fact finder could find each necessary
element under section 632.486. Bemboom v. State, 326 S.W.3d 857, 859 (Mo. App.
W.D. 2010). "Matters of credibility and weight of testimony are for the fact finder to
determine." Id. (quoting In re Care and Treatment of Barlow v. State, 250 S.W.3d 725,
733 (Mo. App. W.D. 2008)). As such, "the evidence is viewed 'in the light most
favorable to the judgment, accepting as true all evidence and reasonable inferences
favorable to the judgment and disregarding all contrary evidence and inferences.'" Id.
At trial, the proponent of evidence bears the burden of establishing its
admissibility. Nolte v. Ford Motor Co., No., 458 S.W.3d 368, 381 (Mo. App. W.D.
2014) (citation omitted). The trial court's ruling on the admissibility of evidence is
reviewed for a clear abuse of discretion. Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451
(Mo. banc 2014) (citation omitted). A trial court abuses this discretion when its "ruling is
clearly against the logic of the circumstances then before the court and is so unreasonable
5
and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate
consideration." Id. (citation omitted).
The admission and exclusion of expert testimony in civil cases in Missouri is
governed by section 490.065. Kivland v. Columbia Orthopaedic Group, 331 S.W.3d
299, 310 (Mo. banc 2011) (citation omitted). The statute provides that the circuit court is
responsible for determining whether (1) the expert is qualified; (2) the expert's testimony
will assist the trier of fact; (3) the expert's testimony is based upon facts or data that are
reasonably relied on by experts in the field; and (4) the facts or data on which the expert
relies are otherwise reasonably reliable. Id. at 310-11; § 490.065.
Discussion
In his point relied on, Walker argues that the court "abused its discretion when it
determined that the MDT report was not admissible because the MDT did not render
expert testimony but only offered an opinion on the ultimate issue in the case and this
was not permitted under the general rules of evidence." He then contends that the report
provided expert testimony because "the members of the MDT are experts under Section
490.065.1 because they are psychologists and psychiatrists employed by the Department
of Corrections and Department of Mental Health." There is no further argument as to
how or why the members of the MDT are qualified as experts such that their individual
votes on whether Walker appears to meet the legal definition of an SVP constitutes the
rendering of expert testimony. Further, there is no citation to any point in the record
where the individual members of the MDT were qualified as experts before the trial
court.
6
The MDT report at issue is a standard administrative report that is completed by
the MDT in response to the end-of-confinement report generated by the Department. It is
a one-page report titled "MDT Assessment Form" that contains each member's vote and
signature as to whether he or she believes the offender meets the criteria for an SVP.
§ 632.484.4. The report states that the "vote" reflected on the bottom half of the form
should be taken after each member has reviewed records relating to the sex offender's (1)
qualifying offense(s); (2) history of other sexual assault(s); (3) history of other criminal
convictions; (4) documentation of any mental disorder(s), and (5) institutional
adjustment. It also expressly states that the findings of the team "are strictly based on the
legal criteria set forth in Section 632.480 et seq., the Sexually Violent Predator Act, and
should not be construed as clinical assessment." The records were reviewed by the MDT
and the four members of the MDT each voted that Walker did not appear to meet the
definition of an SVP. The report contains only the members votes; it does not contain
any analysis as to how the members of the MDT arrived at their individual conclusions.
At the pretrial hearing, the State argued that the MDT report was inadmissible
based on section 632.483(5), which provides that "[t]he determination of the prosecutors'
review committee or any member pursuant to this section or section 632.484 shall not be
admissible evidence in any proceeding to prove whether or not the person is a [SVP]." It
also argued that the MDT did not conduct a clinical examination of Walker and thus its
members conclusions were inadmissible as they constituted a conclusion on the ultimate
issue and invaded the province of the jury.
7
The trial court ruled consistent with our recent decision in Bradley v. State, 440
S.W.3d 546, 556 (Mo. App. W.D. 2014) that section 632.483.5 does not apply to the
MDT report because the statute only expressly excludes the PRC report from evidence.
Id. The trial court did, however, find that because the report offered an "opinion on the
ultimate issue," it was otherwise inadmissible. The court further stated that the MDT
members were not offering expert testimony but that Walker was welcome to call the
members as experts "if [he thinks] they have looked at enough information to form an
expert opinion,[] I don't know whether they have or not." It concluded by noting that
none of the members of the team had performed an evaluation of Walker.
Even though invited to do so by the trial court, Walker did not list any member of
the MDT as an expert during discovery, he did not depose any member of the team, nor
did he call any member to testify regarding the MDT report. In other words, Walker did
not attempt to lay the foundation for the MDT report nor qualify any of the MDT
members as an expert. Instead, he opted to have another witness, Dr. Simmons, testify
about the report in an offer of proof.
Dr. Simmons testified that she had heard of two of the four MDT members who
had signed the form, or "vote," as she described it. She stated that Dr. Gowdy was a
psychologist and Dr. Parker was a psychiatrist. Simmons did not state that she relied on
the MDT's vote or on the report in formulating her expert opinion, nor did she state that
the MDT report is the type of report normally relied upon by experts in her field. When
asked whether the report, which was one of several thousand pages of documents she
reviewed, was something she "gave credence to," Dr. Simmons replied: "I think I give
8
credence to every document that's provided to me at the time I do my evaluation, so you
know, to say that I weigh one thing more than another, I don't believe that would be fair,
but I did look at all of that information." After the offer of proof concluded, Walker
moved to admit the MDT report. Consistent with its earlier ruling, the court accepted the
offer of proof but excluded the report as evidence before the jury.
The trial court found that the MDT members were "not really rendering expert
testimony, they're just offering opinion on the ultimate issue and I won't let them do that."
We agree. Walker elicited no testimony from Dr. Simmons regarding the "knowledge,
skill, experience, [or] training" of any member of the MDT. While all four doctors may,
in fact, be qualified, the only evidence presented in Walker's offer of proof was that they
were employed as doctors by state agencies. Employment, however, is not listed as one
of the ways by which an expert can be qualified. § 490.065.1.5
Based on the facts of this case, we find no error in the court's exclusion of the
MDT report because none of the members of the team were offered or qualified by
Walker to testify as experts, none were called to testify regarding the report or how it was
prepared, there was no evidence as to why each member voted "no," no expert testified
that she or he relied upon the report in formulating an opinion and no expert testified that
reports of this type are relied upon by experts in this medical field.6
5
Section 490.065.1 states that a witness may be qualified as an expert "by knowledge, skill, experience,
training or education. . . . "
6
"The facts or data on which an expert relies do not need to be independently admissible" if the evidence
satisfies the requirements of section 460.065.3." 8000 Maryland,LLC v. Huntleigh Fin. Servs. Inc., 292 S.W.3d 439,
446 (Mo. App. E.D. 2009) (citation omitted). Thus, each of these propositions, if met, could have made a report of
this nature admissible under the correct circumstances.
9
Although misstated by Walker, the trial court did not find that the MDT report
contained expert opinions going to the ultimate issue—it found only that the report
contained opinions on the ultimate issue. The report was properly excluded because it
consisted of non-testifying persons' opinions that had not been properly qualified as
expert opinion that went to the ultimate issue without any support for how those
individuals reached their opinions. Because the trial court’s ruling was correct, we find
no error.
This point is denied.
Conclusion
Based on the foregoing, the judgment is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
10