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.
Feb. 13, 2007.
Rehearing Denied March 20, 2007.
III. Conclusion
The judgment is affirmed.
STITH, LIMBAUGH, RUSSELL and WHITE, JJ., concur.
WOLFF, C.J., concurs in separate opinion filed.
TEITELMAN, J., concurs in opinion of WOLFF, C.J.
MICHAEL A. WOLFF, Chief Justice, concurring.
I adhere to the dissenting opinion in In the Matter of the Care and Treatment of Mark A. Murrell, Appellant, v. State of Missouri, Respondent, that use of the STATIC-99 actuarial instrument in civil commitment proceedings is inappropriate and irrelevant. That said, the principal opinion in Murrell controls the issue in this case, and, accordingly, I concur.
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
This Court holds: (1) that Missouri‘s SVP statute, sections
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 On the basis of these charges and the subsequent convictions following guilty pleas, Murrell‘s parole was revoked and he was sentenced to four years imprisonment.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
Prior to trial, Dr. Deborah Gunnin, a licensed forensic psychologist with the department of mental health, was assigned to
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
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
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
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 Standards
The Missouri General Assembly has identified sexually violent predators as a very real threat to the safety of the people of Missouri. As a result, if a previously convicted sexually violent offender is found to have a mental abnormality making him
“Mental abnormality“, 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[.]
“Sexually violent predator“, 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.8
Pursuant to its police power, a state may enact SVP statutes providing for the involuntary civil commitment of dangerous persons “provided the commitment
Moreover, due process requires that the “mental abnormality” and “dangerousness” be inextricably intertwined, such that “involuntary civil confinement [is limited] to those who suffer from a volitional impairment rendering them dangerous beyond their control.” Hendricks, 521 U.S. at 358. The result being, as found in Thomas, that to pass constitutional muster the statute must require a finding of future dangerousness and then link that finding to 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 791-92; see also Hendricks, 521 U.S. at 358; Kansas v. Crane, 534 U.S. at 413, 122 S.Ct. 867 (2002).
3. Due Process Challenges
Murrell contends that “future dangerousness” requires a showing that the individual poses an imminent, immediate threat of harm. Essentially, Murrell‘s argument is that due process requires proof that an individual will commit a sexually violent offense at a specific time. This precise issue need not be considered. As noted by the Supreme Court of California in Hubbart v. Superior Court, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584 (1999), “nothing in Hendricks or the cases on which it relied suggests that a commitment scheme must require the trier of fact to pinpoint the time at which future injury is likely to occur if the person is not confined.” 81 Cal.Rptr.2d 492, 969 P.2d at 600. Murrell is dangerous at the time of commitment precisely because he currently presents a danger of committing a sexually violent offense.
The language of
In addition, Missouri‘s statutory scheme provides for an annual examination of the committed individual‘s mental health condition.
The present tense language and annual review mechanism allow Missouri‘s SVP statute to comport with the due process protections of the United States Constitution, and Murrell has failed to present any authority to suggest the Missouri Constitution provides any greater protection relating to the civil confinement of repeat sexual offenders. The Court‘s decision today is in accord with the decisions reached by courts in other states that have considered this issue. Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 800 (App.1999) (statute required more than a mere possibility, in that “it specifically requires that an accused SVP have a mental disorder that renders him ‘likely’ to engage in acts of sexual violence ... [and][w]e have defined ‘likely’ as probable rather than merely possible“); Hubbart, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584, 599 (1999), (statute upheld because “the statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered“); In re the Detention of Selby, 710 N.W.2d 249, 252 (Iowa App.2005) (statute upheld because the “present tense language of chapter 229A requires that a person be found to be both dangerous and to have a mental abnormality at the time of the proposed commitment ... and [it] provides for a yearly review of the individual‘s condition“); Beasley v. Molett, 95 S.W.3d 590, 600 (Tex. App.-Beaumont 2002) (declaring that by definition a “menace” is a threat or imminent danger and that therefore, in its own terms, the act satisfied any proof requirement of an imminent risk of future harm).
C. Antisocial Personality Disorder As a Basis for Civil Commitment
Murrell‘s next two arguments are essentially the same: the State may not be
1. Standard of Review
The first issue presented is whether ASPD is a “mental abnormality.” Questions of statutory construction are strictly a matter of law and are for the independent judgment of this Court. City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005).
The second issue presented, whether ASPD may provide sufficient evidence from which the jury may find an individual is more likely than not to engage in predatory acts of sexual violence, is an evidentiary issue. The Court views the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences, and determines whether the evidence was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that Murrell is an SVP. Care and Treatment of Cokes v. State, 183 S.W.3d 281, 282 (Mo.App. 2005).10
2. Murrell as Distinguished From the Typical Recidivist
i. ASPD and “Mental Abnormality” Under Section 632.480
Murrell‘s first argument is focused on the statutory definition of “mental abnormality.” He asserts that the statute requires a mental abnormality that is, in and of itself, linked to sexual offending. Consequently, he argues ASPD cannot, constitutionally, be used to form the basis of civil commitment, evidence of the disorder should not have been admitted, and he cannot be found to fall within the definition of an SVP.
The Court held that under Kansas v. Crane, the “degree” to which a person cannot control his behavior must be “serious difficulty.” Thomas, 74 S.W.3d at 791. Under
Murrell‘s argument that the SVP statute requires a mental abnormality that, in and of itself, predisposes a person to commit sexually violent offenses fails. Missouri‘s SVP statute need only require “evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.” Hendricks, 521 U.S. at 357-358. Civil commitment statutes have been upheld “when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.‘” Id. at 358. “Mental abnormality,” as used in Hendricks, includes personality disorders. See id. (“The recommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.“).
Murrell is correct insofar as he argues that a diagnosis of ASPD, based upon a criminal history devoid of any sexual crimes, cannot, standing alone, satisfy the statutory definition of an SVP; that evidence would only satisfy the “mental condition” aspect. Murrell is also correct to the extent he argues sexually deviant disorders such as sadism and pedophilia, which are mental abnormalities necessarily involving a propensity to commit sexual offenses, satisfy the statutory definition standing alone. Simply because ASPD cannot in every case be enough, however, does not make it “too imprecise.” If ASPD is linked with sexually violent behavior, it can provide the basis for commitment.
ii. ASPD and “Sexually Violent Predator”
Murrell‘s second argument that ASPD does not distinguish him from the common criminal is focused on the definition of “sexually violent predator.” He argues that even if ASPD is a mental abnormality, it provides insufficient evidence to support a finding that he is more likely than not to engage in predatory acts of sexual violence in the future if not confined. Again, while Murrell is correct that ASPD is not, in and of itself, sufficient to provide a basis for a finding that an individual is more likely than not to engage in
There was evidence of sexually violent behavior in this case. The jury heard from both Dr. Hoberman and Dr. Gunnin that ASPD predisposes Murrell to commit sexually violent offenses. They heard testimony of Murrell‘s past sexually violent crimes. On one occasion, Murrell raped two women. Prior to the rape, one of the victims asked to use the bathroom. Murrell followed her and before she could pull her pants back up he put his arm around her, rubbed her on her thighs and in between her legs while holding a knife to her, and made her grab his penis.
The second victim testified that after they arrived at a house Murrell ordered them to remove their clothes while holding his shotgun, and he and the other men “took turns” with them. Specifically, she told the jury that Murrell raped her several times vaginally and orally, and made her perform oral sex on him. While she was being raped, he told her he would kill her if she told anyone, and he grabbed her hair and smacked her head on the floor.
The jury heard accounts of the sexual molestation of a 13-year-old girl. Dr. Hoberman noted that although Murrell tried to wait until he was alone with the girl to fondle her, he did it in a house in which his ex-girlfriend was present, and the girl‘s friend did, in fact, see the incident occur. When Murrell fondled the young girl‘s breasts under her bra, she asked him to stop, but he continued to fondle her breasts over her bra and shirt.
The jury heard two experts in this case, Drs. Gunnin and Hoberman, testify that based on their clinical evaluations and on actuarial instruments, they believed Murrell‘s ASPD makes it more likely than not
3. Conclusion
Antisocial personality disorder qualifies as a mental abnormality within the meaning of
There was sufficient evidence in this case of the link between ASPD and sexually violent behavior for the jury to find Murrell is an SVP under the statute and distinguishable from the typical recidivist. To borrow language from Hendricks, Murrell‘s “lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes [Murrell] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” Hendricks, 521 U.S. at 360. This Court‘s holding on this point is in accord with previous decisions of all three districts of the court of appeals of this state. See In the Matter of the Care and Treatment of Heikes v. State, 170 S.W.3d 482, 486 (Mo.App.2005) (holding “a personality disorder can constitute a mental abnormality if all of the statutory elements are met“); In re Shafer, 171 S.W.3d 768, 771-72 (Mo.App.2005) (affirming commitment of sex offender with ASPD); In the Matter of the Care and Treatment of Pate, 137 S.W.3d 492, 497 (Mo.App.2004) (holding narcissistic personality disorder with antisocial features qualifies as a mental abnormality).
D. Admissibility of the Actuarial Instruments
Although relatively new in the judicial context, the actuarial method of risk assessment has been used rather extensively in other settings. E. Janus & R. Prenky, Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility, and Accountability, 40 Am. Crim. L.Rev. 1443, 1454 (2003). Dr. Hoberman explained the methodology of both actuarial instruments in this case. He testified that the Static-99 is a ten-item measure developed by looking at the character-
Dr. Hoberman explained that the MnSOST-R is a sixteen-item measure developed by looking at the characteristics of approximately 1,000 individuals to see what characteristics were highly correlated to rearrest for sexual offenses within six years of release. The items include whether the victim was a stranger, the age of the victims, whether force was used, employment history of the offender, the offender‘s drug use at or around the time of offense, age of the offender, whether the offender has completed chemical dependency or sex offender treatment, and whether the offender had any disciplinary offenses during his or her most recent incarceration.
When Dr. Hoberman applied the Static-99 to Murrell he found that, according to the instrument, a person with Murrell‘s characteristics falls into the high risk category for reoffense. The score Murrell received is associated with a 52 percent chance of reconviction within fifteen years. Dr. Hoberman stated that the MnSOST-R, as applied by him to Murrell, placed Murrell in the high risk category for reoffense. According to Dr. Hoberman, the most recent research indicates that individuals in the high risk category of the MnSOST-R have a 72 percent chance of being rearrested for a sex offense within six years.
Murrell argues that the trial court abused its discretion in admitting Dr. Hoberman‘s testimony as to the results of the Static-99 and MnSOST-R actuarial instruments. Specifically, he argues that the instruments reflect only the results of a group analysis and, therefore, are irrelevant and not helpful to the jury in that they do not address the issue of whether Murrell is likely to reoffend.
1. Standard of Review
The determination of whether to admit evidence is within the sound discretion of the trial court. A trial court will be found to have abused its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Johns, 34 S.W.3d 93, 111 (Mo. banc 2000). This Court‘s direct appeal review is for prejudice, not mere error, and the trial
2. The Static-99 and MnSOST-R
Missouri‘s SVP statute is civil in nature. See Kansas v. Hendricks, 521 U.S. at 367-68. Admission of expert testimony in civil cases is governed by
1. 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.
...
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
Sections
The first issues of admissibility under
The admissibility of the actuarial instruments, and Murrell‘s relevance argument, is controlled by
Dr. Hoberman was asked if the data in this case, the actuarial instruments, were “the type of instruments or data reasonably relied upon by experts in the field in forming opinions about a person‘s risk of future sexual violence.” He answered affirmatively. The State presented evidence of the frequent use of actuarial instruments and their general acceptance in the scientific community. Dr. Hoberman stated that in almost every SVP case he had participated in, “one of the [department of mental health] evaluators has used at least one actuarial measure and typically two, the Static-99 and the MnSOST-R.” Dr. Hoberman testified that the Static-99 is used in fifteen of the seventeen states with SVP statutes.
The second issue under
There was testimony that, contrary to the contention of Murrell, the Static-99 is relevant to the risk of recidivism for the individual as well as the test group. Dr. Hoberman stated that the instrument provides experts with an indicator of the factors that sex offenders who recidivate have in common. He instructed that the expert then looks at the individual being evaluated to determine whether he possesses the characteristics shown by the Static-99 to be indicative of recidivism. The person being evaluated is then given a score based on the characteristics he or she possesses, which indicates the percentage of likelihood of reoffense for a person with those characteristics; in this case Murrell.
Finally, any concern about the accuracy of the actuarial instruments was made known to the jury and goes to the weight the evidence should receive. Dr. Hoberman illuminated the issues surrounding the accuracy of these instruments and their limitations. He agreed that there is
This holding does not ignore Murrell‘s argument that the actuarial instruments are irrelevant because they are a product of the recidivism rate of the test group, not the individual being evaluated. Under the statute, determination of whether the facts and data relied upon are relevant is made relative to the testimony of the expert. If the facts and data are shown to be reasonably relied upon by experts in the field, they are necessarily relevant to the issue the expert is addressing. The only way to attack the admissibility of that information is to show that the facts and data are not the type experts in the field are relying on or are not reliable. Murrell has simply failed to show that actuarial instruments are not reasonably relied upon or that they are not reliable in evaluating an SVP‘s risk of reoffense.
Additionally, it is essential to note that Dr. Hoberman‘s testimony indicated actuarial instruments are merely one of many tools considered in the evaluation and that he does not conclude his analysis of a person‘s future risk on the instruments alone. Dr. Hoberman stated that characteristics unique to the individual are omitted from the instruments and must be considered. He reviewed approximately 7,000 to 10,000 pages of Murrell‘s records during his assessment. He considered Murrell‘s offense history and personal characteristics, such as his mental abnormality, his past substance abuse, and his periodic refusal to take his medication. In other words, the evidence indicates Dr. Hoberman made his own clinical assessment in coming to a conclusion regarding Murrell‘s risk of reoffense and the actuarial instruments were used to corroborate his assessment; they were not the sole basis for it.
Admissibility should not be confused with submissibility. The holding today does not suggest that testimony as to the results of an actuarial instrument as applied to an individual standing alone, without the accompanying independent clinical assessment, would be a sufficiently reliable basis to commit an individual as an SVP. As courts in other states have recognized, testimony incorporating the results of actuarial instruments is admissible in cases involving the civil commitment of an SVP when the instruments are used in conjunction with a full clinical evaluation. See In re Commitment of Simons, 213 Ill.2d 523, 290 Ill.Dec. 610, 821 N.E.2d 1184, 1192 (2004) (actuarial instruments are generally accepted by professionals who assess sexually violent offenders and therefore are perfectly admissible in a court of law); In re Detention of Holtz, 653 N.W.2d 613, 619-20 (Iowa App. 2002) (actuarial instruments admissible when used in conjunction with clinical evaluation). In this case, there was ample evidence that Dr. Hoberman conducted an independent clinical evaluation.
Moreover, the sole issue before the Court is whether an expert in a civil commitment trial may testify as to the results of actuarial instruments. The
At trial, the jury heard the following:
[Prosecutor]: “So does it (Static-99) give you any percentages or produce a result that comes out in percentages?”
[Dr. Hoberman]: “The score Mr. Murrell received is associated with a 52 percent chance of being reconvicted for a sex offense over a 15 year period of time.”
To the extent this exchange was meant to convey to the jury that Murrell himself has a 52 percent chance of reoffending within the next 15 years, it was a misapplication of the actuarial results. However, the specific question and answer were not objected to by the defense and have not been challenged in Murrell‘s points relied on. Even had Murrell raised the issue here, the Court would not find plain error. On cross-examination of Dr. Hoberman, the jury heard the following testimony:
[Defense Counsel]: “You don‘t know if Mr. Murrell would fall in that 52 percent (of individuals who reoffended) or in that 48 percent (of individuals who did not), do you?”
[Dr. Hoberman]: “I do not.”
[Defense Counsel]: “There‘s no way to tell?”
[Dr. Hoberman]: “No way to tell.”
[Defense Counsel]: “Wouldn‘t you agree with me that it‘s kind of hard to talk specifics regarding Mr. Murrell and the Static-99 if you don‘t know exactly which side of this he fits in?”
[Dr. Hoberman]: “I think what you can say is what I said, which is that he has characteristics. You don‘t know which side he fits in, which is why you look at other actuarial measures, to use as many of them as possible to see to what degree they converge.”
[Defense Counsel]: “Okay. But looking at the Static-99, you can‘t say whether Mr. Murrell was in the 52 percent number or the 48 percent number who don‘t reoffend?”
[Dr. Hoberman]: “Correct.”
Any improper characterization conveyed to the jury was cured by Dr. Hoberman‘s testimony on cross-examination.
In sum, the trial court correctly held that the actuarial instruments utilized by Dr. Hoberman in assessing Murrell‘s risk of recidivism constituted facts or data of a type reasonably relied upon by experts in the field and which were otherwise reasonably reliable. The testimony regarding Dr. Hoberman‘s utilization of those instruments was, therefore, admissible under
III. Conclusion
The judgment is affirmed.
STITH, LIMBAUGH and RUSSELL, JJ., concur.
WOLFF, C.J., dissents in separate opinion filed.
TEITELMAN and WHITE, JJ., concur in opinion of WOLFF, C.J.
Mark Murrell is committed for treatment. No matter how much treatment he receives, and no matter how well Murrell responds to treatment, as long as he remains confined, he always will score the same on the statistically based risk assessment instruments the state misuses through expert testimony in this case.
Evidence of statistics-based risk assessment measures, the STATIC-99 and the MnSOST-R, is fundamentally at odds with the constitutional basis on which the state may seek civil commitment of sex offenders who are alleged to be sexually violent predators under
The constitutional basis for these commitments is that they are not punishment, but rather rehabilitative. Civil commitment under Missouri‘s sexually violent predator law is not criminal punishment, whose objectives are retribution or deterrence. Such laws were upheld by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The sexually violent predators’ confinement is for the purpose of holding the person until his mental abnormality no longer causes him to be a threat to others, and he is permitted to be released on a showing that he is no longer dangerous. See
In upholding Kansas’ sexually violent predator law, the Supreme Court noted that the maximum time an individual can be incapacitated is one year, 521 U.S. at 364, which is similar to Missouri‘s statutory scheme. This Court upheld Missouri‘s sexually violent predator law, relying upon the “multiple opportunities for court review,” in finding that our statutory scheme is “narrowly tailored to promote the compelling interest of protecting the public from this small percentage of offenders.” In re Care and Treatment of Norton, 123 S.W.3d 170, 175 (Mo banc. 2003). As with the Kansas statute, the Missouri statute provides for annual examinations and court review to determine if the person‘s “mental abnormality has improved with treatment and if the individual remains likely to engage in violent sexual acts if released.” 123 S.W.3d at 175, citing
The statistically based evidence that this Court approves is directly contrary to these constitutionally-based premises. The evidence that purports to show that Murrell has a 52 per cent chance of re-offending in the next 15 years is based on statistical analysis of characteristics that never change. By approving these misused scientific measures, the Court assures that Murrell probably will never regain his liberty no matter how much treatment he receives and no matter how well he responds to it.
The STATIC-99 instrument was developed by researchers in Canada and the United Kingdom using two risk assessment instruments and was validated on a population of several thousand male sex offenders. The purpose of the STATIC-99 is to determine whether a male offender with certain characteristics is at low, moderate-low, moderate-high, or high risk of committing another sexual offense. The STATIC-99 does not say that Murrell himself has a 52 percent risk of re-offending. Rather, the STATIC-99 says that 52 percent of a group of male sex offenders who share Murrell‘s “static” (i.e. unchanging) characteristics committed a new of-
The STATIC-99 is an instrument that is useful to sentencing judges in assessing the risk that a particular offender is in a category of persons who are more or less likely to re-offend and is perfectly appropriate at the sentencing stage. The STATIC-99 is being adopted for use by the Missouri Board of Probation and Parole in developing pre-trial sentencing assessment information for trial judges. This instrument is useful in informing the trial judge whether a particular offender shares the characteristics of those persons in a high, moderate, or low-risk group. Although the STATIC-99 does not, in fact, predict future behavior in a particular individual, a sentencing judge may find the assessment helpful in determining what kinds of controls, short of confinement, or what kind of program, in prison or in the community, might work to reduce the chance of recidivism in a particular type of offender. The sentence, as always, is based on the judge‘s judgment; the STATIC-99 is at best useful in reinforcing that judgment.
The use of this instrument through expert testimony in the civil commitment context, however, is not only wrong, but harmful. The reason that the instrument is inappropriate in civil commitment proceedings is that the characteristics of a confined offender—such as Murrell—will never change.
The STATIC-99 risk assessment methodology is as follows: a one-point value is assigned to each of the following factors, none of which, except age, is subject to change for a confined man. The higher the score, the greater the statistical risk.
- Age—a person between the ages of 18 and 25 is scored one point;
- A person who has never lived with a lover or significant other for at least two years—one point;
- Present convictions for nonsexual violence—one point;
- Prior nonsexual violence offense—one point;
- Prior sexual offenses are identified in three ranges, based upon the number of charges and the number of convictions: depending upon this criminal offense history, points are scored from zero to three;
- The number of times a person has been sentenced for felonies on different occasions scores an additional point if the person has been sentenced four or more times for any offense;
- Convictions for non-contact sexual offenses—one point;
- Unrelated victims—one point;
- Victims who are strangers to the offender—one point;
- If the offender has male victims—one point.
When all of these points are added up, an offender is considered low risk if he has zero or one points; if he has two or three points, he is moderate to low risk; if he has three, four or five points, he is rated moderate to high risk; and if he has six or more points, the offender is considered high risk.1
What is most noteworthy about this scoring system is that, except for age, the risk score never changes once a person is
Under the statutory scheme for civil commitment of sexually violent predators, and the constitutional basis on which these laws are upheld, this statistical evidence is irrelevant in a legal sense, even if such evidence seems to be logically relevant.
Evidence must be both logically and legally relevant to be admissible. See, e.g., Shelton v. City of Springfield, 130 S.W.3d 30, 37 (Mo.App.2004). The evidence that these statistical assessment instruments present is that, out of large number of offenders, a certain percentage of those in the group having a particular score re-offended during some period of time. Does this have some logical relevance to those offenders in a group sharing Murrells’ characteristics? The risk instruments say nothing about him personally. The risk instruments merely say that Murrell has characteristics similar to those of the group whose risk of re-offending is a statistically determined probability. It says nothing about whether or not Murrell himself is likely to re-offend. In fact, the researchers who developed the STATIC-99 candidly admit that one of the instrument‘s weaknesses is that “it demonstrates only moderate predictive accuracy.”2 What that means is that the STATIC-99 is better than flipping a coin for predicting the future behavior of individual sex offenders, but not that much better. In this context it is difficult to find any logical relevance.
If the discussion of logical relevance seems uncomfortably arcane, an examination of its legal relevance will bring us to a more comfortable setting. The question of legal relevance is particularly important here because the evidence that purports to present this in scientific or statistical terms is misleading. Legal relevance involves balancing the probative value of evidence against its prejudicial effect on the jury. If the probative value of the evidence is outweighed by its prejudicial effect, it should be excluded.
All that this statistical evidence tends to show is that Murrell is somewhat like members of a group of sex offenders who re-offended in the past. What the jury hears is likely to be quite different—that this sex offender, Murrell, has a 52 per cent likelihood of committing another sexual offense. What the jury heard in this case from the state‘s out-of-state expert was as follows:
“Q Does it (the STATIC-99) give you any percentages or produce a result that comes out in percentages?”
“A The score that Mr. Murrell received is associated with a 52 percent chance of
What jury is going to vote to release him from confinement with that “scientific” prediction?
Because of its inherently misleading nature in the civil commitment context, this statistic is not evidence that assists the finder of fact, under
Under this expert testimony, it is asserted that Murrell currently has a 52 per cent chance of re-offending within 15 years. More accurately stated, 52 percent of a group of untreated sex offenders who shared Murrell‘s characteristics re-offended. On this basis the state says Murrell should be committed civilly.
At his next review, however, the same evidence can be adduced, under the principal opinion‘s analysis. In two years, three years, and so on, upon each annual review, he will still have a 52 per cent change of re-offending within 15 years, because Murrell‘s “static” characteristics will not have changed. This is true no matter how much treatment Murrell has received, no matter what the results.
The treatment that Murrell will be afforded by this civil commitment is designed to train him to curb his impulses. With treatment, he may become adequately trained to control his impulses, but using these statistical measures, he will still have a “52 per cent risk” of re-offending within 15 years. Does anyone remember the Soviets’ misuse of their mental health system for incarcerating enemies of the state? Does this seem at all similar?
I would grant Murrell a new trial with this statistically based evidence excluded.
I respectfully dissent.
Notes
Moreover, the Court does not hold that an expert can argue based on the Static 99 that the particular offender has a 52% chance of reoffending. Rather, the Court holds the expert may base his or her opinion on actuarials because they constitute facts or data of a type reasonably relied upon and are otherwise reasonably reliable. The expert may testify that according to actuarials a certain percentage of people with characteristics like Murrell‘s do reoffend; that data can be part of the assessment as to whether Murrell is more likely than not to reoffend because although actuarials are not determinative, they are relevant to that determination.
Although the expert‘s statement about the STATIC-99 is couched in expert-speak (“is associated with“) it is difficult to believe that any lay person on a jury would understand this to mean something other than that Murrell has a 52 percent risk of re-offending.