519 S.W.3d 848
Mo. Ct. App.2017Background
- Jack Brown, previously convicted of forcible sodomy (2005), had extensive prison misconduct including numerous sexual offenses and was largely in maximum security, preventing treatment program participation.
- Records showed prior sexual offenses and an alleged 1990 rape/assault; the 1990 prosecution was dismissed when the victim refused to appear, but her contemporaneous statement exists.
- Pre-release evaluations: Dr. Kircher and court-appointed Dr. Mandracchia concluded Brown met the Sexually Violent Predator Act (SVPA) criteria (paraphilia non-consent; serious difficulty controlling behavior); Brown’s expert, Dr. Rosell, disagreed, diagnosing antisocial personality disorder and denying SVPA criteria were met.
- At trial the State introduced the 1990 victim’s statement during cross-examination of Brown’s expert to rebut that expert’s claim the 1990 offense differed from the 2005 conviction; Dr. Mandracchia had relied on those records in forming his opinion.
- A jury found Brown to be a sexually violent predator and he was civilly committed; Brown appealed raising seven points challenging SVPA constitutionality, trial references to the SVP label and screening process, and admission of the 1990 victim statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SVPA is punitive (ex post facto, double jeopardy, cruel & unusual) | Brown: SVPA is punitive and violates ex post facto, double jeopardy, and Eighth Amendment proscriptions | State: SVPA is civil under Hendricks/Van Orden; procedural safeguards and release mechanisms make it nonpunitive | Court: SVPA is civil; Brown’s claims on these grounds fail (Points I & III denied) |
| Equal protection – differential treatment from general civil commitment | Brown: SVPA must require least-restrictive environment like general civil commitments | State: SVPA is narrowly tailored to protect public and may differ from general civil commitments | Court: SVPA’s differential treatment is justified; equal protection challenge denied (Point II denied) |
| Whether SVPA requires proof of "serious difficulty controlling behavior" | Brown: Statute text lacks that phrase, so SVPA is deficient under Crane | State: Missouri Supreme Court has read Crane into SVPA; jury was instructed accordingly | Court: SVPA, as construed by Missouri precedent, requires such proof and jury instruction complied (Point IV denied) |
| Use of the term "sexually violent predator" at trial | Brown: Term is inherently prejudicial and unfairly pejorative | State: Use was factual and required to prove statutory status; references were evidence-based | Court: Permitting the term was not an abuse of discretion (Point V denied) |
| Testimony/comment about the SVP screening process | Brown: References were irrelevant, prejudicial, and bolstered State’s expert | State: Mentions were limited, contextual, and did not urge deference to prior determinations | Court: Brief/contextual references were distinguishable from prejudicial examples in Foster/Stenzel; no reversible error (Point VI denied) |
| Admission of 1990 victim’s statements (reliability under § 490.065) | Brown: Statements not "otherwise reasonably reliable" and improperly used to bolster experts/usurp jury; plain error review urged | State: Expert relied on those records; statements were the type experts reasonably rely on; Brown invited the evidence by eliciting contrary opinion from his expert | Court: Admission not reversible; evidence was relied upon by State expert and was invited by Brown’s cross-examination; any weaknesses go to weight not admissibility (Point VII denied) |
Key Cases Cited
- Kansas v. Hendricks, 521 U.S. 346 (U.S. 1997) (civil commitment scheme with safeguards is nonpunitive)
- Kansas v. Crane, 534 U.S. 407 (U.S. 2002) (civil commitment requires proof of serious difficulty controlling behavior)
- In re Van Orden, 271 S.W.3d 579 (Mo. banc 2008) (Missouri Supreme Court: SVPA proceedings are civil)
- In re Thomas, 74 S.W.3d 789 (Mo. banc 2002) (Missouri instruction adding "serious difficulty" language to conform with Crane)
- In re Norton, 123 S.W.3d 170 (Mo. banc 2003) (SVPA narrowly tailored; differential treatment justified)
- State v. Honeycutt, 421 S.W.3d 410 (Mo. banc 2013) (ex post facto applies only to criminal laws)
- In re Foster, 127 P.3d 277 (Kan. 2006) (prejudicial effect of describing prior screening and judicial/prosecutorial approval in SVP opening statement)
- In re Stenzel, 827 N.W.2d 690 (Iowa 2013) (expert testimony about administrative screening improperly bolstered State’s case)