In The Matter Of The Care And Treatment Of Lester Bradley, a/k/a Lester B. Bradley, a/k/a Lester Bernard Bradley v. State Of Missouri , 2014 Mo. App. LEXIS 679 ( 2014 )

IN TH MIS
HE SSOURI COUR OF A
I RT APPEAL
LS
WESTER DIST
W RN TRICT
IN THE MATTER OF THE CARE AND )
TREATM MENT OF LESTER BRADLEY
B )
a/k/a LE
ESTER B. BRADLEY, a/k/a
B )
LESTER BERNAR BRADLE
R RD EY, )
)
W
WD76441
Appellan
nt, )
)
OPPINION FIL
LED:
v. )
Ju 17, 2014
une 4
)
)
STATE OF MISSO
OURI, )
)
Responden
nt. )
App from th Circuit Court of Jac kson Count Missouri
peal he C ty, i
The Ho
onorable Ka
athleen A. F
Forsyth, Jud
dge
Be
efore Divisio One: Jos
on seph M. Ellis Presiding Judge, and
s,
Karen King Mitchell an Anthony R Gabbert Judges
nd Rex t,
Lester Bradle appeals th probate co
L ey he ourt’s judgm
ment, following a jury tria finding h to
al, him
be a sexu
ually violent predator an committi him to th custody o the Depar
t nd ing he of rtment of M
Mental
Health fo control, care, and trea
or c atment. Bra
adley raises three claims on appeal: first, he ar
: rgues
that the evidence wa insufficien to clearly and convin
e as nt y ncingly estab
blish that he was more l
e likely
than not to reoffend sexually if not confined; second, h claims th the proba court err in
he hat ate red
denying his motion to dismiss fo failure to hold a prob
t or bable cause h
hearing with the statut
hin torily
required 72-hour period following his detention on the State’s petition; and third, he claims that
the probate court abused its discretion in excluding evidence regarding the multidisciplinary
team’s assessment. Because the court erred in determining that the assessment was inadmissible
pursuant to section 632.483.5,1 we reverse the probate court’s judgment and remand for further
proceedings.
Factual Background
Beginning in October of 1996, Bradley began molesting his twelve-year-old
step-daughter by fondling her vagina, forcing her to fondle his penis, forcing her to lie on top of
him and rub herself against his penis, and performing oral sex on her. Bradley advised the
victim that she was participating in classes on rape, and at the conclusion, she would receive
“feely certificates.” These “classes” lasted approximately two months, until Bradley advised the
victim of the final lesson, which would involve insertion of his penis into her vagina, after which
she would receive a “rape certificate.” Bradley advised the victim that after her final lesson,
Bradley would then begin lessons with the victim’s eight-year-old sister. After Bradley advised
the victim of his future plans, the victim reported Bradley’s abuse to her mother sometime
around Christmas of 1996. Bradley was subsequently charged with and convicted of one count
of first-degree statutory sodomy and two counts of second-degree child molestation.
While in prison, Bradley completed the Missouri Sex Offender Program (MOSOP) in
December 2007, and he was released on parole in March 2008. Conditions of Bradley’s parole
included: registration as a sex offender, participation in sex offender treatment, no unsupervised
contact with children, and no viewing or possessing pornographic material. Within months of
being paroled, Bradley began watching pornography and started a relationship with a woman
1
All statutory references are to the Missouri Revised Statutes 2000, as updated through the 2013
Cumulative Supplement, unless otherwise indicated.
2
who had a ten-year-old daughter. Bradley would spend two or three nights per week at the
woman’s home, babysit the daughter without supervision for up to ten hours at a time while the
mother worked, and drive the daughter to and from school approximately two days per week, all
in violation of his parole conditions. Although he was in sex offender treatment at the time,
which required him to self-identify and report risky behaviors, Bradley did not reveal his
relationship or his contact with the ten-year-old girl. He did, however, report that, just before he
was paroled, he began having sexual fantasies about his prior victim and masturbating to those
fantasies. After his violations were discovered, Bradley’s parole was revoked in October 2008
and he returned to the Department of Corrections to finish serving his sentence. When asked
about his unauthorized contact with the ten-year-old girl, Bradley indicated: “I’m not attracted
to her because she’s fat.”
Before Bradley’s scheduled release date on June 9, 2011, Dr. Kimberly Weitl, a licensed
psychologist with the Department of Corrections, filed an end-of-confinement report, indicating
her belief that Bradley met the definition of a sexually violent predator (SVP) and referring the
matter to the multidisciplinary team (MDT)2 for further evaluation. The MDT reviewed
Bradley’s records and unanimously concluded that Bradley did not appear to meet the definition
of a sexually violent predator. Thereafter, the prosecutors’ review committee3 met and, contrary
to the MDT, unanimously concluded that Bradley did meet the definition of a sexually violent
predator. The Attorney General, acting on behalf of the State, then filed a petition to civilly
commit Bradley as a sexually violent predator.
2
The MDT is established by the directors of the departments of both mental health and corrections, and it
consists of no more than seven members, including at least one from each department. § 632.483.4. The MDT is to
assess whether the person meets the definition of a sexually violent predator. Id. It appears from the record that the
current MDT actually consists of four members: a psychiatrist from the department of corrections, a psychologist
with a Ph.D. from the department of mental health, a medical doctor from the department of mental health, and a
psychologist with a Ph.D. from the department of corrections.
3
This committee consists of five prosecutors who are to review the person’s records and determine whether
he or she meets the definition of a sexually violent predator. § 632.483.5.
3
Within the petition, the State requested that the probate court find probable cause to
believe that Bradley was a sexually violent predator and set a hearing within 72 hours of his
detention on the petition in order to allow Bradley the opportunity to appear and contest the
probable cause determination. On May 24, 2011, the probate court entered an order finding
probable cause to believe that Bradley met the definition of a sexually violent predator under
section 632.480(5) and ordering that Bradley be brought to Jackson County for a probable cause
hearing on June 10, 2011 (the day after his scheduled release from the Department of
Corrections).
On May 26, 2011, the State filed a motion to move the probable cause hearing due to
unavailability of its expert witness on the scheduled hearing date. The State proposed three
alternative dates: June 8, June 9, or June 13, 2011.4 Also on May 26, 2011, Assistant Public
Defender Randall Schlegel entered his appearance on Bradley’s behalf and consented to either
June 8 or June 9, but indicated his own conflict with June 13.
On June 3, 2011, the court held what appears to have been a status or scheduling
conference, wherein both the State and Mr. Schlegel appeared, to discuss the State’s motion. It
appears that, at this hearing, the court indicated that it was not available on any of the proposed
dates.5 The State indicated that it was ready to present evidence in support of the petition.
Mr. Schlegel, acting on Bradley’s behalf, indicated that Bradley freely and voluntarily waived
his right to have the probable cause hearing held within the 72-hour time period prescribed by
section 632.489.2, but “request[ed] a continuance of this opportunity.” The court found that
Bradley freely and voluntarily waived the 72-hour time limitation for the probable cause hearing
4
Bradley conceded that all three of the proposed dates in the State’s motion fell within section 632.489.2’s
requirement that a probable cause hearing be held within 72 hours of the person being taken into custody on the
petition.
5
There is no transcript of this hearing in the record on appeal, but both Bradley’s motion to dismiss and the
State’s response indicate that the court revealed its unavailability on the suggested dates during the hearing.
4
and that Bradley would not be prejudiced by a continuance of the hearing. The court then
ordered that the probable cause hearing be continued until July 6, 2011, and that Bradley was to
remain in the custody of the Jackson County Sheriff’s Department until the proceedings were
concluded. The court held the probable cause hearing on July 6, 2011, without objection, and
found probable cause to believe that Bradley was a sexually violent predator.
Thereafter, pursuant to court order, Bradley was evaluated by Department of Mental
Health psychologist, Dr. Stephen Jackson. Although Dr. Jackson believed that Bradley suffered
from a mental abnormality (pedophilia) that caused him serious difficulty controlling his
behavior, Dr. Jackson did not believe that Bradley was more likely than not to reoffend sexually
if not confined; thus, he opined that Bradley was not a sexually violent predator.
The State retained Dr. Angeline Stanislaus, a psychiatrist, to review Bradley’s records
and determine whether he met the definition of a sexually violent predator. Dr. Stanislaus
diagnosed Bradley with both pedophilia and anti-social personality disorder, both of which she
deemed to constitute mental abnormalities that caused Bradley serious difficulty controlling his
behavior. Dr. Stanislaus also opined, based upon her use of actuarial tools, that Bradley was
more likely than not to reoffend sexually if not confined; thus, Dr. Stanislaus was of the opinion
that Bradley met the definition of a sexually violent predator.
Bradley retained Dr. Jarrod Steffan, a psychologist, to conduct an evaluation. Dr. Steffan
diagnosed Bradley with anti-social personality disorder, a mental abnormality that caused
Bradley serious difficulty controlling his behavior. Unlike Drs. Jackson and Stanislaus,
however, Dr. Steffan rejected the diagnosis of pedophilia based upon his perception of the
victim’s stage of puberty at the time of the crimes. Like Dr. Jackson, Dr. Steffan also rejected
the notion that Bradley was more likely than not to reoffend sexually if not confined. Dr. Steffan
5
specifically took issue with the manner in which Dr. Stanislaus scored the actuarial instruments
when assessing Bradley’s future risk; he believed that Dr. Stanislaus improperly relied upon
Bradley’s parole violation, rather than his sexual convictions, to establish Bradley’s index
offense6 for scoring purposes.
On January 4, 2013, twenty-four days before trial and eighteen months after the probable
cause hearing, Bradley filed a motion to dismiss due to the court’s failure to hold the probable
cause hearing within 72 hours of Bradley being taken into custody on the petition. Bradley
argued that he did not consent to the untimely hearing and that he was prejudiced in that, without
its expert, the State would not have been able to establish probable cause, and Bradley would
have been released. Bradley argued that the 72-hour time period was jurisdictional and that the
court’s failure to timely hold the probable cause hearing deprived the court of jurisdiction to
proceed on the State’s petition. The State filed a response, conceding that the hearing was held
outside of the 72-hour window but arguing that Bradley waived his right to challenge the timing,
given his consent to the court’s setting of the hearing outside of the 72-hour window.
During Bradley’s opening statement, he mentioned the MDT assessment, and the State
objected on the ground that the MDT assessment was inadmissible under section 632.483.5. The
court sustained the objection. During Dr. Jackson’s testimony, Bradley sought to elicit testimony
regarding the MDT assessment, and again the State objected, claiming that the assessment was
inadmissible under the statute. Bradley argued that the statute excluded evidence pertaining to
only the prosecutors’ review committee and not the MDT assessment. The court reviewed the
statute, agreed with the State, sustained the objection, and struck Dr. Jackson’s testimony
6
Bradley’s experts suggested that the “index offense” for purposes of the actuarial instrument is the
subject’s “most recent sex offense,” which is usually a conviction, but is not required to be; if the index offense is
not a conviction, then it must be “something that[,] if the person was not in the prison setting or under supervision, it
would be behavior they could be criminally charged with.”
6
regarding the MDT assessment. At the close of evidence, Bradley argued that the court’s ruling
regarding the MDT assessment denied him his rights to due process and a fair trial under both
the United States and Missouri Constitutions.
The jury found Bradley to be a sexually violent predator, and on January 20, 2013, the
court ordered that he be committed to the Department of Mental Health for control, care, and
treatment. Bradley appeals.
Analysis
Bradley raises three claims on appeal. First, he claims that the evidence was insufficient
to sustain the State’s burden of clearly and convincingly proving that Bradley was a sexually
violent predator in that the evidence did not support a finding that Bradley was more likely than
not to reoffend sexually if not confined. Second, Bradley claims that the probate court erred in
overruling his motion to dismiss for failure to hold his probable cause hearing within the 72-hour
time period prescribed by statute. And finally, Bradley claims that the probate court erred in
excluding evidence regarding the MDT assessment. For ease of discussion, we take Bradley’s
points out of order.
A. The probate court did not err in overruling Bradley’s motion to dismiss.
In his second point, Bradley argues that the probate court should have dismissed the
proceedings due to the court’s failure to hold a probable cause hearing within 72 hours of
Bradley’s custodial detention on the State’s petition. Bradley argues that the court’s failure
deprived the court of jurisdiction and denied him due process of law.
Once the State files a petition to civilly commit an individual as an SVP, the probate
court judge makes an initial determination as to “whether probable cause exists to believe that
the person named in the petition is a sexually violent predator.” § 632.489.1. “If such probable
7
cause determination is made, the judge shall direct that person be taken into custody and direct
that the person be transferred to an appropriate secure facility, including, but not limited to, a
county jail.” Id. Then,
[w]ithin seventy-two hours after a person is taken into custody pursuant to
subsection 1 of this section, excluding Saturdays, Sundays and legal holidays,
such person shall be provided with notice of, and an opportunity to appear in
person at, a hearing to contest probable cause as to whether the detained person is
a sexually violent predator.
§ 632.489.2. (Emphasis added.)
Thus, there are two probable cause determinations to be made in any given SVP
commitment proceeding. First, upon the filing of the petition, the judge must make a probable
cause determination in order for the State to take the individual into custody. Then, within 72
hours of when that custodial detention begins, the individual must be afforded a hearing in order
to contest the initial determination of probable cause. Following the hearing, the judge again
makes a determination as to whether probable cause exists to believe the person is a sexually
violent predator.
Here, the judge made the initial probable cause determination on May 24, 2011, and
ordered that Bradley be taken into custody. Included in that order was a date for Bradley’s
probable cause hearing, which was June 10, 2011. Bradley was released from the Department of
Corrections on June 9, 2011, and taken into the custody of the Jackson County Sheriff on the
same day for purposes of the SVP proceedings. Thus, under section 632.489.2, Bradley was
entitled to a hearing to contest the initial probable cause finding no later than June 14, 2011.7
His hearing, however, was not held until July 6, 2011. He argues that the court’s failure to hold
the hearing within the 72-hour window deprived the court of jurisdiction.
7
The record reflects that June 9, 2011, was a Thursday. Because Saturday and Sunday do not count in the
calculation of the 72-hour period, June 14, 2011, was the last day on which the hearing could have been held within
the statutory time limit.
8
Normally, “[w]e review a trial court’s refusal to dismiss on jurisdictional grounds for an
abuse of discretion.” In re Care and Treatment of Perkins, 175 S.W.3d 179, 179 (Mo. App. E.D.
2005). And we will “find an abuse of discretion when a trial court’s ruling clearly violates the
logic of the circumstances or is arbitrary or unreasonable.” Id. Here, however, the State argues
that Bradley waived this claim below by consenting to a date outside of the 72-hour window.
But because Bradley claims that the trial court lost subject-matter jurisdiction after 72 hours, and
because subject-matter jurisdiction cannot be waived, we must first discern whether the 72-hour
time limit is jurisdictional. “‘[A] question as to the subject-matter jurisdiction of a court is
purely a question of law, which is reviewed de novo.’” State ex rel. State v. Parkinson, 280
S.W.3d 70, 75 (Mo. banc 2009) (quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102
S.W.3d 10, 22 (Mo. banc 2003)). Only after this determination can we determine whether
Bradley waived this claim or whether the probate court abused its discretion in overruling his
motion to dismiss.
There is a distinction between a jurisdictional defect and mere error. Id. If a petition to
have a person declared to be an SVP is filed in the probate division of the circuit court in which
he was convicted or previously committed, “[t]hat court has personal jurisdiction over him and
subject[-]matter jurisdiction to determine SVP proceedings.” Id. (citing §§ 632.486, 632.489,
and 472.020). Any errors in fulfilling pre-trial requirements are just that: errors. See id. at 75-
77. And they are subject to the general determinations of “whether that error caused a failure of
proof, whether it was waived, [or] whether it was prejudicial and similar issues.” Id. at 75.
There is no question that “[t]hose charged with duties under the [SVP law] should
attempt to fulfill all such duties.” Id. at 76. And “[i]f they intentionally fail to do so, or if they
fail to correct their error when it timely is brought to their attention, it would be appropriate to
9
direct them to do so [by writ].” Id. “But that does not make every error in fulfilling pretrial . . .
requirements a condition precedent to action on a petition, any more than errors in holding a
preliminary hearing deprive a court of authority to conduct the trial[8] . . . .” Id. at 76-77. “It
simply means that the error may be waived, and if not waived the issue of prejudice becomes a
factual one.” Id. at 77.
The question in Parkinson did not involve the timing of the probable cause hearing;
rather, it discussed a pre-filing requirement that the psychologist conducting the end-of-
confinement report be licensed in Missouri. Id. at 74-75. The Court determined that this
requirement was not jurisdictional. Id. at 75. Although there are Missouri cases discussing the
timing of the trial itself, we have located none discussing the effect of an untimely probable
cause hearing. We have, however, found cases from other jurisdictions addressing the issue. For
example, the Washington Supreme Court has held that “absent a possible change in the outcome,
prior deprivation of a 72-hour probable cause hearing did not warrant reversal.” In re Detention
of Campbell, 986 P.2d 771, 777 (Wash. banc 1999). Thus, the Washington court found that the
failure to comply with the 72-hour time limit was mere error and not a jurisdictional defect.
Likewise, the Minnesota Supreme Court determined that mandatory timing provisions of its SVP
law were not jurisdictional, even though they provided for dismissal and discharge for
noncompliance. In re Civil Commitment of Giem, 742 N.W.2d 422, 426-31 (Minn. 2007).
Furthermore, the Missouri Supreme Court has rejected a claim that noncompliance with
other timing requirements in an SVP proceeding resulted in a loss of jurisdiction. In re Care and
Treatment of Donaldson, 214 S.W.3d 331, 333 (Mo. banc 2007). In Donaldson, the initial SVP
8
See State v. Caffey, 438 S.W.2d 167, 172 (Mo. 1969) (“The preliminary examination, and all matters
leading up to it, including unnecessary delay and adjournments for more than ten days at one time, are procedural
matters which amount to irregularities but do not go to the jurisdiction of the court. Even the absence of a
preliminary examination ‘does not ipso facto deprive the circuit court of jurisdiction.’” (quoting Lambus v. Kaiser,
176 S.W.2d 494, 497 (Mo. banc 1943))).
10
proceeding resulted in a mistrial due to an insufficient number of qualified jurors. Id. at 332.
Contrary to statute, the retrial did not occur within 90 days of the mistrial declaration. Id. The
appellant sought dismissal, arguing that the SVP statutes were akin to the Uniform Mandatory
Disposition of Detainers Law (UMDDL), which required the dismissal of a matter if the
individual was not tried within the statutory time periods because the failure to comply with the
time periods resulted in a loss of jurisdiction. Id. at 333. The Court disagreed, stating:
These [UMDDL] sections amply demonstrate the legislature’s ability to specify
that dismissal is required if a time limit is not met. The absence of similar
language in sections 632.492 and 632.495 negates finding any similar legislative
intent to require dismissal if the 90-day time limit in these statutes is not met.
Id.
As with the 90-day limit for retrial following mistrial, there is no language in section
632.489 providing for dismissal if the 72-hour time period for the probable cause hearing is not
met. Thus, according to the rationale of Donaldson, noncompliance does not divest a court of
jurisdiction.
Bradley points to the New Hampshire Supreme Court’s decision in State v. Fournier, 969
A.2d 434 (N.H. 2009), for support. In Fournier, the court determined that its SVP law’s time
limits (including those applicable to an initial probable cause determination) were jurisdictional
and that noncompliance required dismissal for lack of jurisdiction. 969 A.2d at 439.
We are unpersuaded that the Fournier court’s reasoning applies to Bradley’s situation for
two reasons: (1) New Hampshire’s SVP law is procedurally distinct from Missouri’s; and (2)
New Hampshire does not determine jurisdiction the same way Missouri does. First, New
Hampshire’s statutory scheme for SVP civil commitment indicates that all commitment
proceedings are to take place before the individual is released from incarceration on his criminal
offenses. Id. at 438-39. Thus, the timing of the hearings carries a greater significance.
11
Second, New Hampshire determines whether a timing provision is jurisdictional based
upon its intended purpose:
When interpreting the goals of a statute, we have distinguished between two types
of time limits: those involving a liberty interest and those involving “a general
interest in hastening adjudicative dispositions.” Appeal of Martino, 138 N.H. 612,
615-16, 644 A.2d 546 (1994). “Where the legislature, out of liberty interest
concerns, has mandated time limits for holding hearings, we have held that
personal jurisdiction over a defendant is lost, absent waiver, if the case is not
heard within the statutory period.” Id. at 615, 644 A.2d 546. “Where the
legislature has prescribed time limits out of a general interest in hastening
adjudicative dispositions for the benefit of all parties involved, however, we have
been unwilling to treat the time limit as jurisdictional.” Id. at 616, 644 A.2d 546.
Id. at 438.9
Jurisdiction in Missouri, however, is constitutionally determined. “Missouri courts
recognize two kinds of jurisdiction: subject[-]matter jurisdiction and personal jurisdiction.”
J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). “These two kinds of
jurisdiction—and there are only two for the circuit courts—are based upon constitutional
principles.” Id. “Personal jurisdiction is, for the most part, a matter of federal constitutional
law.” Id. “Subject[-]matter jurisdiction is governed by article V of the Missouri Constitution.”
Id.In light of the Missouri Supreme Court’s holdings in Parkinson, Donaldson, and Webb,
we discern no basis for determining that the 72-hour time limit for holding the probable cause
hearing is a jurisdictional prerequisite to proceeding on the State’s petition. Rather, it appears to
be mere error, subject to waiver and requiring a showing of prejudice to warrant reversal. Thus,
we turn to the State’s argument that Bradley waived this claim of error.
9
Notably, while Fournier treats the time limits under New Hampshire’s SVP statute as “jurisdictional,” it
characterizes those time limits as a matter of personal jurisdiction, not as a matter of subject-matter jurisdiction.
969 A.2d 434, 438 (N.H. 2009). As recognized in the quoted passage, defects in personal jurisdiction are generally
waivable by the defendant. See also, e.g., Hope’s Windows, Inc. v. McClain, 394 S.W.3d 478, 483 (Mo. App. W.D.
2013); Campbell v. Francis, 258 S.W.3d 94, 98 n.1 (Mo. App. W.D. 2008). Therefore, even if we followed
Fournier and treated the 72-hour requirement as “jurisdictional,” Bradley’s waiver of the 72-hour requirement,
discussed below, would nonetheless be effective.
12
Following the court’s initial probable cause determination, the State filed a motion to
move the probable cause hearing to a different date (still within the 72-hour window) due to the
unavailability of its expert witness on the scheduled date. Bradley’s counsel consented to two of
the three dates proposed by the State. The court’s schedule, however, did not accommodate any
of the agreed-upon dates within the 72-hour window. Consequently, Bradley’s counsel
consented to a setting outside of the 72-hour period, and the court’s order reflects that Bradley,
through counsel, “freely and voluntarily waive[d] his right to appear and contest probable cause
as to whether he is a sexually violent predator within 72 hours.”
The transcript of the probable cause hearing is not part of our record on appeal. Because
it is Bradley’s burden to provide us with this record and he has failed to do so, we assume that it
is supportive of the probate court’s decision below. See Bruns v. Bruns, 186 S.W.3d 449, 454
(Mo. App. W.D. 2006) (“‘All evidentiary omissions in the record on appeal are presumed to
support the trial court’s decision.’” (quoting Runny Meade Estates, Inc. v. Datapage Techs. Int’l,
Inc., 926 S.W.2d 167, 168 n.2 (Mo. App. E.D. 1996))). Bradley has not argued that he raised
any objection at the probable cause hearing regarding its timing. And, absent any record
demonstrating that an objection was raised, we assume there was none.
The first objection or challenge that Bradley raised regarding the timing was
approximately eighteen months after the probable cause hearing was held. Given that he
proceeded with the untimely hearing without objection, we find this claim to be waived.
In his reply brief, Bradley argues that he did not consent to the continuance of the date
and therefore did not need to show any resulting prejudice. Because the record supports that
Bradley’s counsel consented to the July 6, 2011 hearing date, we presume Bradley’s argument is
13
that counsel could not waive the timing requirement on Bradley’s behalf; rather, it was a right
personal to Bradley that only he could waive.10
“What suffices for waiver depends on the nature of the right at issue.” New York v. Hill,
528 U.S. 110, 114 (2000).11 “‘[W]hether the defendant must participate personally in the waiver;
whether certain procedures are required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at stake.’” Id. (quoting U.S. v. Olano,
507 U.S. 725, 733 (1993)). “For certain fundamental rights, the defendant must personally make
an informed waiver.” Id. “For other rights, however, waiver may be effected by action of
counsel.” Id.“To hold that every instance of waiver requires the personal consent of the client himself
or herself would be impractical.” Gonzalez v. U.S., 553 U.S. 242, 250 (2008). “In most
instances the attorney will have a better understanding of the procedural choices than the client;
or at least the law should so assume.” Id. at 249-50. “‘Although there are basic rights that the
10
In his motion to dismiss, Bradley also argued that attorney Schlegel entered his appearance on Bradley’s
behalf without first contacting Bradley or determining if Bradley qualified for the Public Defender’s services. Thus,
it appears that Bradley is also arguing that Mr. Schlegel could not waive the timing on Bradley’s behalf because
Mr. Schlegel was not, in fact, representing Bradley at the time of the waiver. According to the motion to dismiss,
Mr. Schlegel did not represent Bradley before their first meeting on June 7, 2011. Bradley offered no evidence,
however, to support this argument. Mr. Schlegel’s entry of appearance on Bradley’s behalf on May 26, 2011, is
evidence that Mr. Schlegel represented Bradley at that time. There is simply no evidence to the contrary. Thus, we
will not address the merits of this alternative argument.
11
Hill and the other cases relied upon in this waiver discussion are criminal cases, addressing what rights
counsel can waive on a criminal defendant’s behalf. Generally, in civil cases (unlike criminal cases), clients are
bound by the decisions of their attorneys and do not have the rights to personal waiver afforded to criminal
defendants. See Price v. State, 422 S.W.3d 292, 302 (Mo. banc 2014) (noting that, in civil cases, “‘[t]he attorney is
the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must from
necessity be considered as the act of his client, and obligatory on the client.’” (quoting Kerby v. Chadwell, 10 Mo.
392, 393-94 (1847))). SVP proceedings, though civil, do afford individuals “many of the same rights of a criminal
defendant, including a formal probable cause hearing, the right to a jury trial, the right to an attorney, and the right to
appeal,” In re Care and Treatment of Van Orden, 271 S.W.3d 579, 585 (Mo. banc 2008), and therefore may be
entitled to greater protections when evaluating waiver. But see People v. Wagoner, 2001 WL 1528529, *7 (Cal. Ct.
App. 2001) (“[T]he fact a particular proceeding may result in the involuntary confinement of an individual does not
transform the proceeding into a criminal prosecution in which only a personal jury waiver is valid.”); Tyson v. State,
249 S.W.3d 849, 853 (Mo. banc 2008) (finding the appellant’s arguments equating probable cause hearings under
the SVP Act with those in criminal matters “unpersuasive”). Regardless, Bradley cannot demonstrate a right to
personal waiver even under the more stringent criminal law standards.
14
attorney cannot waive without the fully informed and publicly acknowledged consent of the
client, the lawyer has—and must have—full authority to manage the conduct of the trial.’” Hill,
528 U.S. at 114-15 (quoting Taylor v. Ill., 484 U.S. 400, 417-18 (1988)). “Scheduling matters
are plainly among those for which agreement by counsel generally controls.” Id. at 115.
“Requiring express assent from the defendant himself for such routine and often repetitive
scheduling determinations would consume time to no apparent purpose.” Id.
We see no reason to believe that counsel, in this situation, could not consent to a
continuance on Bradley’s behalf. Counsel did not waive Bradley’s right to a probable cause
hearing; he merely waived the timing requirement of that hearing.12
Because the 72-hour time limit is not jurisdictional, noncompliance can constitute only
mere error, which is subject to waiver. Here, Bradley waived his claim of error by failing to
raise a timely objection to the court’s noncompliance with the statutory time period.
Point II is denied.
B. Section 632.483.5 does not preclude use of the MDT assessment in evidence.
In his third point on appeal, Bradley claims that the probate court erred in excluding
evidence regarding the MDT assessment because, contrary to the court’s ruling, such evidence is
not inadmissible under section 632.483.5. We agree.
At the outset, we must address the State’s argument that this claim is not preserved for
review due to Bradley’s failure to make an offer of proof as to the excluded evidence at trial.
“Generally, appellate courts will not review excluded evidence without a specific and
definite offer of proof.” Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876, 883 (Mo. banc
1985). “The purpose of an offer of proof is twofold: [1] to educate the trial judge on the
12
We express no opinion on whether the waiver of a probable cause hearing altogether can be effected by
counsel, alone.
15
admissibility of the evidence with the hope that he or she will reconsider; and [2] to preserve the
issue for appellate review.” LaFevers v. Clothiaux, 403 S.W.3d 653, 657 (Mo. App. S.D. 2012).
A proper offer of proof demonstrates: “1) what the evidence will be; 2) the purpose and object
of the evidence; and 3) each fact essential to establishing the admissibility of the evidence.”
State v. Tisius, 92 S.W.3d 751, 767 (Mo. banc 2002).
“It follows[, however,] that the reason for a formal offer of proof does not exist if the trial
court and counsel by other mean[s] are sufficiently advised as to what the testimony of the
witness will probably be if he is allowed to testify.” State ex rel. State Highway Comm’n v. Ne.
Bldg. Co., 421 S.W.2d 297, 300 (Mo. 1967). There are three requirements for applying this
exception: “[f]irst, it requires a complete understanding, based on the record, of the excluded
testimony[;] [s]econd, the objection must be to a category of evidence rather than to specific
testimony[; and t]hird, the record must reveal the evidence would have helped its proponent.”
Frank, 687 S.W.2d at 883-84.
Here, we see no reason why Bradley needed to make an offer of proof. It is indisputable
that the probate court knew the substance of the evidence, as the MDT assessment was an exhibit
attached to the State’s petition. The State’s objection encompassed any and all aspects of the
MDT’s involvement and assessment; thus, it encompassed a category of evidence rather than
specific testimony. And the MDT’s unanimous assessment that Bradley did not appear to meet
the definition of a sexually violent predator plainly would have aided Bradley’s defense. Thus,
the exception applies, and no offer of proof was required for Bradley to preserve this claim for
appeal.
“Generally, a trial court has considerable discretion in admitting or excluding evidence.”
St. Louis Cnty. v. River Bend Estates Homeowners’ Ass’n, 408 S.W.3d 116, 123 (Mo. banc
16
2013). And a reviewing court “gives deference to the trial court’s evidentiary rulings and will
reverse the trial court’s decision about the admission or exclusion of evidence only if the trial
court clearly abused its discretion.” Id. Here, however, the court’s decision to exclude evidence
was based upon its construction of section 632.483.5. And “[w]e review matters of statutory
construction de novo.” State v. Michael R. Thomas Bail Bond Co., 408 S.W.3d 794, 796 (Mo.
App. W.D. 2013).
Section 632.483.5 states 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 sexually violent predator.”
Bradley argues that this language precludes use of only the prosecutors’ review
committee determination in evidence and that it does not foreclose the possibility of using the
MDT assessment. The State argued below, however, that the reference to “any member pursuant
to this section” includes the MDT assessment in the statute’s preclusion of evidence. The
probate court agreed with the State’s construction and did not allow Bradley to refer to or use the
MDT assessment in his defense.
A brief overview of the statutory events leading to the filing of an SVP petition is
necessary to our analysis. “When it appears that a person may meet the criteria of a sexually
violent predator, the agency with jurisdiction shall give written notice of such to the attorney
general and the [MDT] . . . .” § 632.483.1.
The notice sent by the agency with jurisdiction includes a variety of institutional,
correctional, and treatment records, along with “[a] determination by either a psychiatrist or a
psychologist . . . as to whether the person meets the definition of a sexually violent predator.”13
§ 632.483.2. Within 30 days of receiving notice, the MDT “shall assess whether or not the
13
This determination is often referred to as the end-of-confinement report.
17
person meets the definition of a sexually violent predator,” and then “notify the attorney general
of its assessment.” § 632.483.4. The assessment is then provided to the prosecutors’ review
committee. § 632.483.5. This committee consists of “a cross section of [five] county
prosecutors from urban and rural counties,” one of whom “shall be the prosecuting attorney of
the county in which the person was convicted or committed.” Id. The prosecutors’ review
committee “review[s] the records of each person referred to the attorney general,” and then
“make[s] a determination of whether or not the person meets the definition of a sexually violent
predator.” Id.
If “it appears that the person presently confined may be a sexually violent predator and
the prosecutor[s’] review committee . . . has determined by a majority vote[] that the person
meets the definition of a sexually violent predator, the attorney general may file a petition” to
have the person civilly committed as a sexually violent predator. § 632.486. “A copy of the
assessment of the [MDT] must be filed with the petition.” Id. Unlike the determination from the
prosecutors’ review committee, it does not appear that any particular finding—whether by
majority vote or otherwise—is required from the MDT assessment before the State may file its
commitment petition.14
The parties are in agreement, as are we, that section 632.483.5 clearly precludes the use
of the prosecutors’ review committee determination in evidence. The question that remains,
however, is what the legislature meant by the phrase, “or any member pursuant to this section or
section 632.484.”
14
Frankly, it is unclear to us what the actual purpose of the MDT assessment is, given that it does not
appear to be a prerequisite to the State’s decision to seek civil commitment. Cf. Harden v. State, 932 So. 2d 1152,
1156 (Fla. Dist. Ct. App. 2006) (finding that, under Florida’s statutory language, the state was precluded from
seeking civil commitment “in the absence of a recommendation from the MDT that the individual is a sexually
violent predator”).
18
At trial, the State argued that this phrase included the MDT assessment because the MDT
constituted a “member pursuant to . . . section [632.483].” We disagree.
Although section 632.483 uses the term “members” to refer to the individuals comprising
both the prosecutors’ review committee and the MDT, section 632.483.5 precludes the use of
only “determinations.” According to section 632.483.4, the MDT does not make a
determination—it makes an “assessment.”15 There are several individuals and entities in
sections 632.483 and .484 that make “determinations” (e.g., the individual issuing the end-of-
confinement report, the prosecutors’ review committee, the probate court, and the department of
mental health). But the MDT is not among these individuals and entities. Additionally, there is
no mention whatsoever of the MDT in section 632.484; the only “members” referred to in
section 632.484 are those forming the prosecutors’ review committee. Thus, if we read the
language, “any member pursuant to . . . section 632.484,” to refer to the MDT, the statute would
be nonsensical, as the MDT is not even part of section 632.484, and it does not make
determinations of any kind. Consequently, section 632.483.5 does not preclude evidence
regarding the MDT assessment.
A more reasonable reading of the reference to “the determination of . . . any member
pursuant to this section or section 632.484” is that the vote of any particular member of the
prosecutors’ review committee when making its determination is not admissible to prove that an
individual either is or is not a sexually violent predator. Given that the committee’s
determination need not be unanimous,16 the plain intent of section 632.483.5 is to preclude
evidence of not only the final determination but also the particular vote of each individual
15
Section 632.483.4 directs the MDT to “assess whether or not the person meets the definition of a
sexually violent predator” and then “notify the attorney general of its assessment,” whereas subsection 5 directs the
prosecutors’ review committee to “make a determination of whether or not the person meets the definition of a
sexually violent predator.” (Emphasis added.)
16
See § 632.486 (indicating that the determination need be made by only majority vote).
19
member in rendering the determination. Nothing in the statute precludes evidence of the MDT
assessment. While this does not mean that the MDT report was necessarily admissible, it could
not be excluded for the reason upon which the probate court relied.
Perhaps recognizing the fallacy of its argument below, the State has not advanced its
statutory construction argument on appeal. Instead, the State argues that the assessment was
otherwise inadmissible because it constituted hearsay. In other words, the State asks us to affirm
based on the principle that the lower court reached the right result, even though it may have been
for the wrong reason. See, e.g., Sparks v. Sparks, 417 S.W.3d 269, 280 (Mo. App. W.D. 2013).
Though an attractive option, it is unworkable under these circumstances. Where, as here, the
lower court excludes evidence based upon its belief that the evidence is precluded by statute
without exception, the reality is that the opponent of the evidence will not offer further bases for
exclusion and the proponent of the evidence simply has no reason to offer any bases for
admissibility, given the court’s representation that none exist.
Here, had the court overruled the State’s objection, the State might then have argued—as
it does on appeal—that the assessment was inadmissible as hearsay, and Bradley may then have
responded with an applicable exception.17 The problem with affirming the court’s ruling based
upon the State’s hearsay argument on appeal is that the court’s interpretation of section
632.483.5 simply left no room for argument from Bradley because, unlike a hearsay objection,
the statute as applied allows for no exceptions. And had the hearsay question been addressed
17
Attached to the State’s petition, along with the MDT assessment, is an affidavit from a records custodian
for the MDT, indicating that the assessment was a record kept in the regular course of business and made at or near
the time of the event. Section 490.692.1 provides:
Any records or copies of records reproduced in the ordinary course of business . . . shall be
admissible as a business record, subject to other substantive or procedural objections, in any court
in this state upon the affidavit of the person who would otherwise provide the prerequisites of
sections 490.660 to 490.690, that the records attached to the affidavit were kept as required by
section 490.680.
20
below, the result may have been different.18 In short, absent preclusion of the evidence by the
statute, it is unclear whether the MDT assessment would have been admissible below.19
The State further argues that even if the court erred in excluding the evidence, Bradley
suffered no prejudice because the MDT assessment was cumulative to Bradley’s other evidence.
We disagree. One of Bradley’s witnesses was a paid expert; in that sense, his opinion differed
from those of the MDT members, who were not paid to represent any particular position.
Bradley’s other witness was the department of mental health evaluator, appointed by the court
after finding probable cause. While he was not a paid expert, subject to the same kind of
impeachment as Bradley’s paid expert, it is not clear from the record that his evaluation was
identical to those of the members of the MDT. And to the extent that the State was able to
impeach his opinion, the MDT assessment may have served to rehabilitate him. Thus, it is not
clearly cumulative.
In sum, the trial court erred in finding that the MDT evidence was inadmissible under
section 632.483.5. Based upon the court’s erroneous conclusion, no further record was
developed regarding the admissibility of the MDT assessment evidence. Thus, we are unable to
discern whether, absent the erroneous statutory interpretation, the court would have erred in
excluding the evidence. Consequently, we reverse and remand for further proceedings consistent
with this opinion.
18
We do not mean to express any opinion as to the report’s admissibility, other than to hold that it is not
inadmissible by virtue of section 632.483.5. It may be inadmissible for other reasons, but because no other reasons
were explored below, we lack a sufficient record to make this determination, and to do so would place us in the
position of advocate for the State.
As a court, we are obliged to remain impartial. We are not permitted to become a witting or
unwitting adversary of [a party], fashion a theory we are not certain [the other party] pleaded,
search the record on our own for evidence to support that theory and impose liability upon [the
first party] without affording it any opportunity to challenge our strange conduct.
Werdehausen v. Union Elec. Co., 801 S.W.2d 358, 368 (Mo. App. E.D. 1990).
19
For example, in Kansas and Iowa, under similar statutory schemes, error was found in the admission of
argument concerning, and evidence of, the MDT assessment that the respondents met the definition of sexually
violent predators on the ground that this evidence invaded the province of the jury. In re Care and Treatment of
Foster, 127 P.3d 277 (Kan. 2006); In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013).
21
Point III is gr
ranted. In light of this disposition, we need no reach Bra
l ot adley’s first point
regarding the sufficie
g ency of the evidence.
e
Conclusion
The probate court did not lose jurisdi
T c t iction by ho
olding the pr
robable cause hearing ou
utside
the 72-ho window provided by section 632.489.2. T untimel nature of the hearing was
our w b The ly f g
simply error, waived by Bradley consent to a hearing outside of the statutor required time
d y’s g rily d
frame.
The court erred, howev
T ver, in inte
erpreting se
ection 632.4
483.5 to pr
reclude evid
dence
regarding the MDT assessment Due to the nature o the court error, we cannot di
g t. t of t’s iscern
whether the actual exclusion of the evidence was erron
neous. Thus we reverse and reman for
s, e nd
further pr
roceedings consistent with this opin
c w nion. On rem
mand, if evid
dence pertai
ining to the M
MDT
assessme is again offered, the court must determine its admissibilit
ent o c d ty.
Karen King Mitchell, Ju
g udge
Joseph M. Ellis, Pres
M siding Judge, and
Anthony Rex Gabber Judge, concur.
rt,
22