In re the DETENTION OF Jonathan Edwin STENZEL. Jonathan Edwin Stenzel, Appellant.
No. 11-0687.
Supreme Court of Iowa.
March 1, 2013.
HECHT, J., joins this dissent.
Dean A. Stowers (until withdrawal), and then Nicholas A. Sarcone of Stowers Law Firm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines and John B. McCormally, Assistant Attorneys General, for appellee.
MANSFIELD, Justice.
This sexually violent predator (SVP) civil commitment proceeding presents three distinct issues. First, it requires us to determine whether the State may wait until the conclusion of a person’s overall prison term to bring an SVP proceeding, when the person has received consecutive sentences for a sexually violent offense and for another offense, with the sentence for the other offense to be served after the sentence for the sexually violent offense. Second, we must decide whether sufficient evidence supports the jury’s finding that the respondent here is an SVP. Finally, we must decide whether it was reversible error for the district court to permit the State’s expert to testify at trial as to how the State uses its prosecutorial discretion to select the persons against whom it will commence SVP proceedings.
I. Facts and Procedural Background.
Jonathan Stenzel has been incarcerated virtually his entire adult life. In 1981, when he was nineteen years old, he committed a burglary. He pled guilty and was sent to prison in 1982. The burglary, by Stenzel’s admission, arose out of an incident where he beat up a thirteen-year-old girl and ripped her blouse. Stenzel acknowledges that while in prison, he began having fantasies of rape.
In 1986, Stenzel was released from prison. Within a few months, Stenzel had entered a bookstore, pulled a knife on an elderly employee, and threatened to kill her if she didn’t do what he asked. He then attempted to have intercourse with the employee and eventually forced her to perform oral sex on him. He left the store with her bra and said he would be coming back.
Before Stenzel had been apprehended for that crime, he broke into a house ten days later and set it on fire.
On March 24, 1987, the district court imposed sentences of twenty-five years for the sexual abuse, twenty-five years for the burglary, and ten years for the arson. The burglary and arson sentences were to be served concurrently to each other and consecutive with the sexual abuse sentence. The department of corrections designated the sexual abuse offense as the “lead” offense. Using the longer of the two concurrent sentences, it calculated a tentative release date for Stenzel of May 1, 2010.
Stenzel served approximately the first ten years of his prison term at the state prison in Anamosa and did not receive any sex offender treatment there. In 1997, he was transferred to Mount Pleasant, where he participated in a Sex Offender Treatment Program. The program lasted approximately two years and involved a number of assignments and activities. Stenzel generally received good marks for his behavior at Mount Pleasant. He worked at the prison library and participated in one-on-one sessions with female counselors without any significant disciplinary problems.1
While at Mount Pleasant, Stenzel claims he received in 1998 or 1999 a document from prison officials indicating that he had completed his sexual abuse sentence. The record does not contain such a document.
Following his time at Mount Pleasant, Stenzel was transferred to a voluntary program, the Interchange Freedom Initiative, housed at the Newton Correctional Facility. There, he participated in a Christian rehabilitation program and lived in an “honors dorm,” where he could come and go freely and his room had an ordinary door instead of bars.
As Stenzel’s release date was approaching, the State began the process for Stenzel’s civil commitment. On April 6, 2010, the State filed a petition alleging Stenzel was a sexually violent predator under
Stenzel filed a motion to dismiss on September 16. He argued that the State had not met its burden of showing either (1) that Stenzel had committed some “recent overt act” of sexual violence or (2) that he was presently confined. See
On November 17, 2010, the district court denied Stenzel’s motion to dismiss, reasoning that because of the consecutive nature of the sentences, “the defendant was still serving a sentence for a sexually violent offense” when the State filed its SVP petition. Stenzel then filed a motion to enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2) which was also denied.
On January 18, 2011, Stenzel filed a motion for summary judgment. This was denied on the basis that
The matter proceeded to a jury trial where the State offered testimony from Stenzel and Dr. Leavitt. Stenzel had argued in his trial brief that Dr. Leavitt should not be permitted to testify as to (1) hearsay information relating to Stenzel’s 1981 and 1986 offenses and (2) the process by which Stenzel was referred for SVP proceedings. On the stand, Dr. Leavitt offered his opinion that Stenzel suffered from paraphilia, not otherwise specified (non-consent), as well as an antisocial personality disorder, and that Stenzel met the statutory criteria for a sexually violent predator. See
Dr. Leavitt also testified that he had performed three actuarial risk assessments concerning Stenzel. These procedures are designed to determine the risk of reoffending based on the historical recidivism percentages of offenders with certain scores. Stenzel placed in the high risk category on one of the assessments, in the moderate risk category on the second, and in the highest risk category on a third. Dr. Leavitt testified that these assessments actually underestimate the risk of future sexually violent crime, given that they only reflect reported incidents.
Two other aspects of Dr. Leavitt’s testimony form part of the basis of this appeal. Dr. Leavitt based his conclusion that Stenzel was an SVP, in part, upon the rigorous selection process by which the State determines who should be committed in the first place.
Q. Doctor Leavitt, the Directors’ Review Committee begins at the prison with all sex offenders? A. That is correct.
Q. They decide a case meets criteria, they refer it to where? A. They refer it to the Multidisciplinary Review Committee.
Q. And who makes up that committee? A. That would be made up of various people within—both within and outside of the Department of Corrections.
Q. Do they refer every case they get? A. No. It was my understanding that they review a very small percentage, a very small percentage of cases get referred for—to the next step.
That such a small percentage of people emerge from the screening process was a consideration in Dr. Leavitt’s overall determination. He noted that “one of the considerations I look at is the fact that an individual has already ... been deemed
Q. And then from there, a smaller number are referred to the Attorney General’s Office? A. That would be correct.
Q. What happens next? A. At that point in time, there is—if the Court has found probable cause on a case—
The State later highlighted the selectivity of the process in its closing argument:
I want to start by just explaining a little bit about how we got here. We heard a little bit about this, but these are unusual cases. They don’t come up all of the time. And there’s a screening process that goes into this and it’s pretty sensitive and not many people meet the criteria as a sexually violent predator.
The way it begins is that the Department of Corrections—they review every sex offender in the place. That goes through a process called the Directors’ Review Committee and they look at the files of all the sex offenders and they decide if these people meet criteria or not.
Some of them—a small number get referred up to the next level, which is called the Multidisciplinary Team which is a group of ... doctors, but also some social workers and some people with some other types of experiences. If they decide that a person meets criteria, then it gets referred to an expert and in this case, we brought in Doctor Barry Leavitt.
....
If Doctor Leavitt finds somebody meets criteria, that goes to another committee; the Prosecutors’ Review Committee. Again, another screening process. And if that committee agrees, then somebody is recommended for SVP and then at that point, Doctor Leavitt goes out and does another evaluation—or whoever the expert is. In this case—in this case, it’s Doctor Leavitt.
They do another evaluation. Sometimes they change their mind on that. In this case, at every step of the way, Mr. Stenzel has been considered to meet criteria for SVP, but what’s really—what’s important is what do you think? It’s up to you.
Stenzel objected to testimony describing the selection process. He insisted that Dr. Leavitt’s testimony regarding the selection process amounted to hearsay and was not a reasonable basis for Dr. Leavitt’s opinion under Iowa Rule of Evidence 5.703. Stenzel further objected that it violated Iowa Rule of Evidence 5.403 and his own due process rights because “what [Dr. Leavitt]’s really doing is just saying because we’re here, [Stenzel]’s high risk.” The district court overruled the objections, but gave the jury a limiting instruction at that time:
These statements are not to be considered by you as proof of what is actually contained in the statements or for the truth of the matter asserted in there. The statements can only be considered by you in evaluating Doctor Leavitt’s testimony, his opinions that he’s giving as part of his testimony.2
Over Stenzel’s objection, Dr. Leavitt also used the minutes of testimony to amplify on Stenzel’s 1986 burglary and arson convictions. He informed the jury that Stenzel took women’s clothing with him when he left the house. He noted that Stenzel had also inserted a steak knife into a picture of one of the little girls in the family. In addition, according to the minutes, Stenzel had left a meat cleaver and another knife on a waterbed. All this, according to Dr. Leavitt “had elements of sexual deviance to it.”
Moreover, Dr. Leavitt added details about the sexual assault in the bookstore. He noted that Stenzel had been reading a book titled Rape in the store before he attacked the elderly woman with a knife as she was trying to close up for the day.
Those matters, as I am sure you know, are hearsay. The only reason they were received and allowed in the expert‘s testimony is because I have found that those are the type of subjects that may be relied upon by an expert in forming opinions of the kind that he testified to you about. Those matters are to be used by you, not as proof of what is contained in them. Those matters may be used by you only in evaluating Dr. Leavitt’s testimony and the opinions that he gave and in determining whether or not those opinions have validity.
Stenzel called several witnesses in his defense. One was a former acquaintance of Stenzel in prison. This individual had been released and owned a business in Colorado. He testified that he wanted to hire Stenzel to work for him. Another witness was the former librarian at the Newton Correctional Facility. She testified that Stenzel worked for her “a very long time,” did what he was asked to do, was “very respectful,” and was “not ever aggressive.” She also testified that students from Grinnell (primarily female) would come in to teach the inmates and she “did not ever see Jon interact inappropriately with any person.”
A female correctional officer at Newton testified that she interacted with Stenzel for about ten or eleven years and never observed him to be a violent person. He was “very helpful,” “[a]lways willing to do anything that anyone asked,” and “peaceful, mellow, got along with the other offenders.” He was someone that she enjoyed talking to, and he never acted in a way toward anyone that would be considered sexually inappropriate.
At the close of the evidence, the jury returned a verdict finding that Stenzel was a sexually violent predator. Stenzel now appeals.
On appeal, Stenzel argues: (1) the district court erred in denying his motions to dismiss and for summary judgment, because the State brought this SVP proceeding too late—i.e., years after Stenzel had completed his sentence for second-degree sexual abuse; (2) the jury’s finding that Stenzel was a sexually-violent predator
II. Standard of Review.
We review the district court’s ruling on a motion to dismiss for errors at law. Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165 (Iowa 2009). Likewise, rulings on summary judgment motions are reviewed for errors at law. Keokuk Junction Ry. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000); see also Iowa R.App. P. 6.907.
Although we generally review the district court’s admission of hearsay evidence for errors at law, “when the basis for admission of hearsay evidence is the expert opinion rule, which provides no hard and fast rule regarding admissibility, we will employ an abuse of discretion standard.” Kurth v. Iowa Dep‘t of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Under this standard, we reverse only if the district court exercised its discretion on clearly untenable or unreasonable grounds. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Id. (quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)).
III. Legal Analysis.
A. Was the Proceeding Timely Commenced?
The second course is the subject of this appeal.
If it appears that a person presently confined may be a sexually violent predator and the prosecutor’s review committee has determined that the person meets the definition of a sexually violent predator, the attorney general may file a petition alleging that the person is a sexually violent predator and stating sufficient facts to support such an allegation.
Our inquiry must begin with
However, in Gonzales, we held that the State could not bring an SVP petition against an individual who had been convicted of indecent contact with a child, released from prison, and then sentenced to prison for operating a motor vehicle without the owner’s consent. 658 N.W.2d at 102. As we explained, “confinement” as used in the statute “means confinement for
(1) [I]n each of the statutes, “confinement” and “sexually violent offense” or “sexually violent predator” appear in the same sentence; (2) by interpreting the statute as the State urges us (applying the “confined person” basis for commitment) the State would be relieved of showing a “recent overt act” ...; and (3) the result would not be a reasonable application of the statute because it would allow the State to reach back in time, seize on a sexually violent offense for which a defendant was discharged, and couple this with a present confinement for a totally different—or even perhaps a trivial—offense and use
Since Gonzales was decided, we have held that the presently confined inquiry is not a hypertechnical one. Shaffer, 769 N.W.2d at 174. In Shaffer, the question was whether a person was presently confined under
We noted in Shaffer that “[t]here is no doubt Shaffer was imprisoned at the Anamosa State Penitentiary in the custody of the department of corrections ... when the State filed the petition for civil commitment.” Id. at 173. “Moreover, the State never relied on any legal basis to justify his custody other than his sexual abuse conviction.” Id. at 174.
The question we must now answer is whether the State may bring an SVP petition against an individual who has been continuously confined on a term of imprisonment that includes a sentence for a sexually violent offense, so long as the State brings the petition before the person’s prison term expires. We believe it can. To begin with, such a person is presently confined. See
Indeed, if we adopted Stenzel’s position here, we would get what we tried to avoid in Gonzales, a result that “would not be just or reasonable.” 658 N.W.2d at 105; see also
Stenzel’s reading of the statute also appears to be at odds with
When it appears that a person who is confined may meet the definition of a sexually violent predator, the agency with jurisdiction shall give written notice to the attorney general and the multidisciplinary team established in subsection 4, no later than ninety days prior to any of the following events:
a. The anticipated discharge of a person who has been convicted of a sexually violent offense from total confinement....
As we have already pointed out,
Determining whether a past act of sexual violence has become too stale to serve as a predictor of future acts of a similar nature is not a precise task. The significance of a recent overt act in predicting future conduct is not the act but the inference against a particular propensity that arises from the absence of
an overt act. The absence of sexually predatory acts in a setting of secure confinement does not paint the same picture as the absence of such acts in a normal life situation. We have generally upheld the statutory scheme presented by Iowa Code chapter 229A against substantive due process challenges. See In re Detention of Garren, 620 N.W.2d 275, 282-83 (Iowa 2000). We reach a similar conclusion when focusing specifically on Willis’s contention that a failure to require a showing of a recent overt act other than the act for which he was imprisoned violates substantive due process.... In not expressly requiring a recent overt act for petitions for commitment filed under
section 229A.4(1) , the legislature could reasonably conclude that the filing of a civil commitment petition must necessarily be delayed during the period of confinement under a criminal judgment and therefore allow a petition to be filed at the conclusion of that confinement notwithstanding the absence of an additional overt act.
In re Det. of Willis, 691 N.W.2d 726, 729-30 (Iowa 2005). Allowing the State to bring the SVP petition at the end of a prison term that includes a sentence for a sexually violent offense is consistent with this analysis. Regardless of the portion of the sentence that the inmate may be technically serving, he or she is still in “secure confinement,” thus limiting the opportunity to commit “sexually predatory acts.” See id. at 729. Therefore, it is reasonable for the State to bring its petition “at the conclusion of that confinement.” Id. at 730.
Furthermore,
If a person is sentenced for two or more separate offenses, the sentencing judge may order the second or further sentence to begin at the expiration of the first or succeeding sentence.... [I]f consecutive sentences are specified in the order of commitment, the several terms shall be construed as one continuous term of imprisonment.
Stenzel argues that “the purpose of [section] 901.8 is to preserve order and discipline within the state’s penal institutions.” Applying
A decision from Washington is also on point. See Fair v. State, 139 Wash.App. 532, 161 P.3d 466, 470 (2007), aff‘d sub nom. In re Det. of Fair, 167 Wash.2d 357, 219 P.3d 89 (2009). The Washington Court of Appeals considered whether due process required the State to prove a recent overt act when a person’s sexually-violent-offense sentence had previously ended but he remained in custody for a robbery conviction. Id. at 469. Although Fair primarily involves due process issues, the reasoning is helpful here, especially given that our Gonzales interpretation of
While ... Fair’s sentence for the sexual offense had expired before the State filed its SVP petition, this difference is not relevant. Fair was in continuous confinement from the time he returned to prison on the second degree child molestation conviction until his scheduled release date on the first degree robbery conviction. He was not released into the community between the incarceration for the sexually violent offense and the robbery sentence and, thus, he had no opportunity to commit a ROA [recent overt act] in the community. Requiring proof of a ROA under these circumstances would be absurd.
Fair, 161 P.3d at 470. On appeal, the Washington Supreme Court agreed with the appellate court. See Fair, 219 P.3d at 94 (noting that requiring the State to show a recent overt act when a person has been “continuously incarcerated for child molestation and other nonsexual crimes” would be “contrary to the statute and our due process jurisprudence“).
We accordingly affirm the district court’s denial of Stenzel’s motions to dismiss and for summary judgment, and hold that an SVP civil commitment respondent is presently confined when, at the time the State files its petition, he or she has been continuously incarcerated on a term that includes a sentence for a sexually violent offense.
B. Was There Substantial Evidence to Support the Jury’s Finding that Stenzel Was a Sexually Violent Predator?
Stenzel also argues that his commitment is not supported by sufficient evidence. If the jury’s determination is not supported by substantial evidence, we must reverse the order of commitment. See In re Det. of Hennings, 744 N.W.2d 333, 340 (Iowa 2008).
Here the jury needed to find beyond a reasonable doubt that Stenzel had a mental abnormality causing him serious difficulty controlling his behavior. See
The rationale for doing this is based on the reliance by the State upon the trial court’s decision to admit the evidence and the possibility that the State would have been able to introduce other evidence if error would have been found at trial, or otherwise employed different tactics to avoid a dismissal. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003).
Dr. Leavitt testified that he diagnosed Stenzel with paraphilia, not otherwise specified, (non-consent), as well as antisocial personality disorder. He based his conclusion on his recent interview of Stenzel and an examination of the details of his prior crimes. Dr. Leavitt also considered possible mitigating factors, such as Stenzel’s treatment, his behavior, and his time in prison. As related by Dr. Leavitt, Stenzel sexually assaulted a bookstore employee at knifepoint in 1986; he attempted to bite a girl’s breast during the 1981 burglary; and he stabbed a girl’s photograph, took women’s clothing, and left a meat cleaver and another knife on a waterbed during the 1986 arson/burglary. Stenzel himself admitted to having sexually violent fantasies in prison, although he testified he no longer does. He also admitted, “I still struggle with wanting to respond aggressively in situations.” Dr. Leavitt concluded, “I believe ... that [Stenzel] continues to remain vulnerable to the very impulses and urges that he had maintained and developed over the course of multiple years of his lifetime ... [H]e maintains a continued vulnerability to those rape fantasies and urges.” Dr. Leavitt also agreed with the antisocial personality diagnosis that Stenzel had been given in prison mental health evaluations. He said that this is an “added risk factor” for controlling his behavior.
Stenzel argues that Dr. Leavitt’s testimony, on its own, did not establish he has a mental abnormality causing him serious difficulty controlling his behavior. Yet we have held that a diagnosis of an antisocial personality disorder affecting a respondent’s ability to control behavior—a diagnosis Dr. Leavitt made here—can support a jury finding that someone is a sexually violent predator. In re Det. of Altman, 723 N.W.2d 181, 185-86 (Iowa 2006); see also Barnes, 689 N.W.2d at 461 (finding sufficient evidence that respondent “had a serious difficulty controlling his behavior” where the State’s expert found he had antisocial personality disorder as well as a high score on a psychopathy checklist). Stenzel also argues the jury could not reasonably have made such a finding when Stenzel presented witnesses who testified that he could control his behavior in prison. The jury was not required, however, to find that evidence conclusive as to how Stenzel would act if released from incarceration. In Altman and Barnes, the respondents offered contrary expert testimony, but we held that the fact finder was free to accept the testimony of the State’s expert instead. Altman, 723 N.W.2d at 185; Barnes, 689 N.W.2d at 461. Although Stenzel’s lay witnesses offered testimony in favor of his position, Dr. Leavitt supported his assessment with an interview and other factors. Some aspects of Stenzel’s own testimony supported the State’s case. In short, the State presented sufficient evidence that Stenzel suffered from a mental abnormality and had serious difficulty controlling his behavior. See Hennings, 744 N.W.2d at 340 (“Evidence is substantial if a jury could reasonably infer a fact from the evidence.“).
Dr. Leavitt also concluded that Stenzel was more likely than not to commit a sexually violent offense in the future, if not confined. See
On the Static-2002R, a fourteen-factor assessment, Stenzel scored a six, placing him in the moderate risk category. People in this category have between a 5.4 and a 22% recidivism rate over five years, and between a 28.2 and a 31.1% recidivism rate over ten years. However, Dr. Leavitt explained that these statistics do not account for the “20 to 30-some percent” who committed a future sexually violent offense but were not “detected.”
Finally, on the Minnesota Sex Offenders Screening Tool—Revised, a sixteen-factor test, Stenzel scored a fourteen. According to Dr. Leavitt, seventy-two percent of offenders with results above thirteen were arrested for committing a sexually violent offense within six years of their release. See id. at 514 (discussing the same figures).
Dr. Leavitt used these assessments, coupled with his clinical judgment of Stenzel’s particular circumstances—specifics of his crimes, treatment, and response to treatment—to conclude that Stenzel “continues to be more likely than not to reoffend at some time in the future with a future sexually violent offense.” Stenzel did not call an expert who had reached a different conclusion. Stenzel did present supportive testimony from lay witnesses. Nonetheless, reviewing the record, we are convinced there was substantial evidence from which the jury could find that Stenzel was a sexually violent predator within the meaning of the statute. See
Stenzel points out on appeal that Dr. Leavitt conceded the actuarial tests have a positive correlation of 0.6. Thus, according to Stenzel’s interpretation, “it would seem that these instruments only get it right slightly more than half the time.” Stenzel also urges that even according to Dr. Leavitt, only one of the tests showed more than a fifty percent likelihood of Stenzel’s reoffending. However, Dr. Leavitt’s testimony was extensive, and it was based upon both the actuarial instruments and his individualized evaluation of Stenzel. It was for the jury to decide whether or not to accept his opinion. See Altman, 723 N.W.2d at 185 (holding there was substantial evidence to support the jury’s finding that the respondent was a sexually violent predator in the face of the respondent’s contrary expert testimony, because “[i]t was for the jury to decide which of the experts was more credible ... and whose opinion ... the jury would accept” (citation omitted)).
Stenzel further argues that Dr. Leavitt’s risk assessments were improperly inflated because Dr. Leavitt relied on inadmissible evidence concerning the SVP commitment process and the 1981 and 1986 crimes. As previously noted, though, we consider even improperly admitted evidence for purposes of a sufficiency review. See Dullard, 668 N.W.2d at 597. Accordingly, we affirm the denial of Stenzel’s motion for a directed verdict and now turn to the evidentiary issues.
Stenzel argues the district court improperly allowed Dr. Leavitt to testify about (1) the process used by the State to decide which inmates will become the subject of SVP proceedings and (2) material (such as minutes of testimony) found in Stenzel’s criminal case files. Stenzel maintains Dr. Leavitt’s testimony on these subjects was hearsay and not a proper basis for expert opinion under
1. Dr. Leavitt‘s testimony regarding the civil commitment selection process.
Early in his testimony, Dr. Leavitt was asked to explain the process of civil commitment in Iowa. He then informed the jury that out of the universe of sex offenders due to be released, “some” are referred by the directors’ review committee to the multidisciplinary team, and of those only “a very small percentage” are in turn referred to the attorney general’s office. He testified that “multiple independent evaluators” are used. When the case reaches the attorney general’s office, Dr. Leavitt might be asked to serve as a preliminary independent evaluator. If so, and if he finds the individual meets the SVP criteria, he would present his findings to a review committee which would then decide whether to file an SVP petition. On occasions in the past, the attorney general has not filed an SVP petition even though the independent evaluator concluded the individual met the statutory criteria.
Out of the presence of the jury, Dr. Leavitt admitted he relied on this winnowing process in part to support his opinion that Stenzel fell into a high risk category. However, he was not able to quantify the percentage of inmates who are screened out. Dr. Leavitt indicated that his source of information was “discussions with various personnel in the process.”7
Our rules of evidence provide that an expert may base his or her opinion on evidence that is not otherwise admissible. See
[T]he questionnaires addressed matters that went far beyond the documentation of odors and breathing problems upon which the experts relied. Individuals completing the questionnaires not only described the odor they experienced, but also answered questions asking for their “opinion as to the origin of the odor,” as well as “any other information concerning ... the persons responsible that [the responding individuals thought] might be important.”
Likewise, in State v. Vincik, we held that the district court did not abuse its discretion in declining to admit an expert’s testimony concerning what he had been told by other persons regarding a criminal defendant’s mood before allegedly killing his wife. 398 N.W.2d 788, 795 (Iowa 1987). The expert opined that the defendant could not recall events surrounding his wife’s killing, an opinion he based in part on out-of-court statements from the defendant’s friends and neighbors. Vincik, 398 N.W.2d at 788. We upheld the district court’s refusal to admit the basis of the expert’s opinion because “this record does not show that psychologists ordinarily or reasonably rely upon such information.” Id. at 796.
We conclude the district court abused its discretion in admitting Dr. Leavitt’s testimony about the selection process for several reasons. First, there was no evidence that psychologists generally rely on the existence of a government-run screening process when they make a diagnosis of sexual deviancy. All Dr. Leavitt said was that psychologists doing this particular forensic assignment for SVP proceedings rely on that process. This is not enough.
Third, and perhaps most important,
We employ a two-part test to decide whether evidence should be excluded under
Here the jury has to make a very important prediction about the future that is necessarily fraught with some uncertainty—does an offender “suffer[ ] from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility“? See
The prosecutor’s closing argument serves as a useful barometer of the prejudicial character of the evidence. Right off the bat, the State told the jury that “not many people meet the criteria as a sexually violent predator.” The State then reviewed the hoops that Stenzel’s case had to get through. Finally, the State wrapped up this portion of its closing argument by asking, “In this case, at every step of the way, Mr. Stenzel has been considered to meet criteria for SVP, but what’s really—what’s important is what do you think?” One might regard that compound statement/question as an artful attempt at reverse psychology.
This aspect of the trial strikes us as lacking in probative value and unfairly prejudicial to the respondent. We would not allow the State in a criminal case to offer evidence that the district court had to approve the trial information, thereby determining that there was probable cause to detain the defendant to answer the charge. See State v. Petersen, 678 N.W.2d 611, 614 (Iowa 2004). Nor would we allow a county attorney’s office to show that it prosecutes only a percentage of the cases referred to
We recently held in a child endangerment case that
We see no probative value to the DHS determination the abuse report against Huston was founded. Whether or not the abuse report was deemed founded is irrelevant to any issue for the jury to decide. Additionally, we see a real danger the jury will be unfairly influenced by that agency finding, which gives the “imprimatur” of a purportedly unbiased state agency on a conclusion that Huston was guilty of child abuse.
Huston, 825 N.W.2d at 537. A similar principle should apply here. It is for the jury to decide whether Stenzel meets the definition of an SVP. Introducing evidence that a lengthy selection process, including representatives inside and outside the department of corrections, picked out Stenzel to be one of the few candidates for SVP status presents a “real danger the jury will be unfairly influenced” by a purportedly unbiased “imprimatur.” Id.
We believe an SVP case from Kansas supports this view. In re Care & Treatment of Foster, 280 Kan. 845, 127 P.3d 277, 286 (2006). In that case, without objection, the civil commitment selection process was described by the State in opening statement, by an expert for the State in his testimony, and by the State in closing argument. Id. at 280-82. For example, the State advised the jury in its opening statement that “this respondent ... has been through many layers of review and analyses until we finally get here, and that’s the ultimate determination for you to make.” Id. at 283 (emphasis omitted). An expert for the State testified that the multidisciplinary team does a “review of the information and make[s] a determination whether they see the person as a high risk to offend.” Id. at 281. The State then reiterated at closing argument that “this man has gone through many levels of reviews.” Id. at 282 (emphasis omitted).
Without even reaching the expert testimony and the closing argument, the Kansas Supreme Court found the improper opening statement alone warranted a new trial, noting:
Stated simply, we see no reason whatsoever, even in a noncriminal proceeding, why the State’s attorney—or the State’s evidence—need mention the levels of review of the case that occurred before it was brought to this jury. More important, we conclude that these statements by the State, and this type of State evidence, “stack the deck” against Foster.
Id. at 286. The undue prejudice in such circumstances is significant because “a jury has a natural tendency to look for guidance from those clothed in authority, i.e., a multidisciplinary team of professionals, a team of prosecutors, and a district court judge, even when the guidance is not intended.” Id. When the State highlights such details, it also has the effect of commenting on the credibility of the State’s own witness or injecting the prosecutor’s own opinion into the trial. Id. Finally, the court noted that the State’s reference to an earlier probable cause determination by a court—something Dr. Leavitt briefly alluded to—was “the most troubling aspect of the opening statement.” Id. at 287. The court noted:
Because the result a judge supposedly desires may be inferred by the jury from a look, a lifted eyebrow, or an inflection of the voice to the extent a new trial is warranted, a fortiori an
attorney’s reference to a judge’s prior decision supporting the attorney’s case can certainly influence a jury to the extent that reversal is required.
We agree with these observations on the unfair and improper influence created when the State and its expert comment on the details of the civil commitment selection process. Although the present appeal concerns the admission of evidence, whereas Foster was a prosecutorial misconduct case, the endpoint is the same: the introduction of such unfairly prejudicial information to the jury requires a new trial.
It is true that the district court gave limiting instructions. But a limiting instruction may not be enough, State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005), and we find it was not enough here. See also Huston, 825 N.W.2d at 539 (“We do not believe it would have been proper in this case to allow testimony that the child abuse report was determined to be founded even with a limiting instruction.“). In closing argument, the State clearly sought to drive home the point that Stenzel was one of a few sex offenders that the State had selected, following a lengthy process, for SVP proceedings. “Although a statement may be purportedly offered for a non-hearsay purpose, the district court must still determine if the party’s true purpose in offering the evidence was in fact to prove the statement’s truth.” McElroy v. State, 637 N.W.2d 488, 501-02 (Iowa 2001). Notably, the State does not tell us why Dr. Leavitt’s testimony concerning the selection process was needed; it asserts only that Dr. Leavitt’s references to that process were “minimal” and there was sufficient foundation for his testimony.
We only find reversible error when the admission of improper evidence affects a party’s substantial rights. Gacke, 684 N.W.2d at 183. “The admission of hearsay evidence ‘is presumed to be prejudicial error unless the contrary is affirmatively established.’ ” Id. (quoting Frunzar v. Allied Prop. & Cas. Ins. Co., 548 N.W.2d 880, 887 (Iowa 1996)). The State has not affirmatively established that testimony on the selection process did not tip the balance here. Although Stenzel certainly had committed at least one violent sexual offense in the past, he had spent the last twenty-three years in prison, had undergone sex offender treatment, and had passed a relatively uneventful decade at Newton, which resulted in two female officials from that prison testifying at trial on his behalf. Furthermore, only one of Stenzel’s three actuarial test scores (the Minnesota Sex Offenders Screening Tool—Revised) directly translated into a projected recidivism rate of greater than fifty percent. Additionally, as Stenzel has demonstrated, that high score depended upon the 1981 burglary being classified as sexually related. That was a matter of some contention at trial, as we further discuss below.
Accordingly, because of the improper admission of testimony regarding the selection process, we must reverse and remand for a new trial. See Gacke, 684 N.W.2d at 185 (“[T]he Gackes have failed to rebut the presumption of prejudice flowing from the improper admission of this evidence. Therefore, we reverse and remand for a new trial.“).
2. Dr. Leavitt‘s testimony detailing Stenzel‘s 1981 and 1986 offenses.
Stenzel also contends the district court committed reversible error in allowing Dr. Leavitt to testify about certain “criminal history records” relating to his past offenses. Because we have already determined that a retrial is required, we will address this issue. It is likely to arise again on re-
At trial, Dr. Leavitt testified his opinions were based in part upon some of the facts surrounding Stenzel’s 1981 and 1986 offenses. He testified that he learned this information from
Comprehensive records from the Iowa Department of Corrections, various criminal history records, presentence investigation reports, police and/or investigative reports, disciplinary reports, treatment records from the Department of Corrections, and I believe minutes of testimony from his previous and most current criminal offense ... convictions.
Asked whether these were the type of records commonly relied upon by forensic psychologists, Dr. Leavitt testified, “Yes, they are.”
Accordingly, on the stand, Dr. Leavitt filled in numerous details. He pointed out that, after the 1981 home invasion, Stenzel initially had also been charged with assault with intent to commit sexual abuse. He testified that Stenzel broke into the neighbor’s house with a handgun and attacked the thirteen-year-old girl “both physically and sexually.” In addition, Dr. Leavitt described Stenzel having read a book on rape in the bookstore in 1986 before sexually assaulting the elderly employee. Dr. Leavitt also explained that the 1986 burglary/arson had elements of “sexual deviance” in that Stenzel had put a knife in a photo of a girl, had taken women’s clothing from the house, and had left a meat cleaver and knife on a waterbed.
Although some of these particulars were apparently acknowledged by Stenzel when Dr. Leavitt interviewed him, others came from the minutes of testimony. Minutes of testimony contain “a full and fair statement of the witness’ expected testimony.”
Other state courts have explored the extent to which experts in SVP proceedings can testify about the respondent’s past offenses beyond what the convictions, the plea proceedings (if there was a plea), and the trial records (if there was a trial) divulge. These decisions have reached varying outcomes. For instance, a recent Virginia case considered expert testimony regarding details of unadjudicated sexual misconduct in an SVP civil commitment proceeding. Lawrence v. Commonwealth, 279 Va. 490, 689 S.E.2d 748, 750 (2010). There, an expert witness diagnosed an alleged sexually violent predator with paraphilia and based this conclusion on incidents that did not result in formal charges. Id. Specifically, the expert relied on a police report, which included “alleged victims and witnesses [who] were in some cases not identified and none [of whom] were available for cross-examination.” Id. at 752. The Virginia Supreme Court concluded, based on Virginia’s rules of evidence, that the trial court abused its discretion in admitting the basis of testimony, despite a limiting instruction like the one here, because it “improperly included numerous details about unproven past allegations of sexual misconduct against Lawrence.” Id. at 752. The court noted that, although the standard of review was for abuse of discretion, the trial court did not have discretion to admit clearly inadmissible evidence. Id. at 751; see also Commonwealth v. Wynn, 277 Va. 92, 671 S.E.2d 137, 141 (2009) (reaching a similar result).
The Nebraska Supreme Court seems to have struck a balance by requiring that criminal history records bear some “indicia of reliability” in order to serve as the basis for expert opinion in SVP cases. In re A.M., 281 Neb. 482, 797 N.W.2d 233, 261 (2011). That court found that due process required the records to have some independent reliability apart from the expert’s reliance on them. Id. at 261-62. One such indicator is whether the defendant pled guilty to the crimes to which the records relate. Id. at 261; see also In re Commitment of Williams, 841 So.2d 531, 531-32 (Fla.Dist.Ct.App.2003) (holding that experts could refer to facts in police reports in an SVP proceeding, but distinguishing the situation where neither criminal charges had been brought nor a conviction obtained based on those reports), overruled on other grounds by In re Commitment DeBolt, 19 So.3d 335, 338 (Fla.Dist.Ct.App.2009). In A.M., the court remanded for the tribunal to determine whether certain police reports bore sufficient indicia of reliability. 797 N.W.2d at 261-62.
After considering these authorities, we believe it was improper for Dr. Leavitt to testify in an SVP proceeding about the existence of a criminal charge that was dropped, and that it was also potentially improper for him to testify from the minutes of testimony. Both of these items are prepared by the prosecutor for prosecution purposes. See
In appropriate circumstances, an expert may testify about facts learned from other records, although the defendant may raise case-specific objections under
The record in this case does not clearly disclose the source of Dr. Leavitt’s knowledge for all the statements he made concerning Stenzel’s 1981 and 1986 offenses. On remand, we ask the district court to apply the principles we have set forth here.
IV. Conclusion.
Based on the foregoing, we hold that the State brought this proceeding against
DISTRICT COURT ORDER AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR NEW TRIAL.
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Stanley A. ROUSH, Respondent.
No. 12-2089.
Supreme Court of Iowa.
March 1, 2013.
Notes
Throughout the testimony of the Petitioner‘s expert, Dr. Leavitt, he referred to sources he consulted in forming his opinion. These included various things including documents, reports and statements that persons other than Respondent had made. These documents, reports and statements were made out of court and not under oath.