Opinion
No. 5-846 / 04-1829
Filed March 15, 2006
Appeal from the Iowa District Court for Des Moines County, Cynthia H. Danielson, Judge.
Clyde Hollins appeals from his adjudication and commitment as a sexually violent predator pursuant to Iowa Code section 229A.1 et seq. (2003). AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Matthew S. Sheeley, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, and Mary E. Tabor and Denise Timmins, Assistant Attorneys General, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Clyde Hollins appeals from his adjudication and commitment as a sexually violent predator pursuant to Iowa Code sections 229A.1 et seq. (2003).
I. Background Facts and Proceedings.
On September 10, 1990, Hollins was convicted of two counts of sexual abuse in the third degree and sentenced to serve an indeterminate term of incarceration not to exceed thirty years. Hollins's scheduled release date was August 7, 2004. On July 15, 2004, the State filed a petition requesting Hollins's commitment as a sexually violent predator.
At an August 14, 2004 hearing to determine whether there was probable cause to believe Hollins was a sexually violent predator, the State offered several exhibits, including Hollins's preliminary evaluation by Dr. Anna Salter. The record concerning the State's exhibits made at the probable cause hearing includes the following:
MR BROWN [Assistant Attorney General]: Petitioner's Exhibits 2 and 3 really go together. Petitioner's Exhibit 2 is a report of a preliminary evaluation that was conducted by Anna Salter, who is a psychologist who has been retained by the State to review Mr. Hollins' case. She makes a number of findings in this report relating to a mental abnormality, those being antisocial personality disorder, as well as paraphilia, not otherwise specified, and summarizes her implementation of some risk assessment tools, which she then concludes that, at least preliminarily for this proceeding, that Mr. Hollins is likely to re-offend if not confined in a secure facility.
There is her curriculum vitae that outlines her qualifications as a witness we have used in the past on these cases.
Exhibits 4, 5, 6, 7 and 8 are all judgment entries relating to Mr. Hollins that convict him. In each one of those judgment entries is a conviction. Some there are more than one conviction for sexually violent offenses as that term is defined under the Code. These are each certified copies. The trial information and minutes are attached to each one of those judgment entries so the Court can get a good idea with regard to Mr. Hollins' background and what exactly he has been convicted of.
. . . .
MR. SHEELEY [Assistant Public Defender]: Mr. Hollins has been locked up since 1990, and I object to the admission of Dr. Salter's report for the reason that there is absolutely no excuse for her failure to meet with Mr. Hollins and afford him the opportunity for a full forensic evaluation prior to today's hearing, and I would submit to the Court that she cannot make a sufficient diagnosis or reach a reasonable or accurate recommendation or conclusion without the benefit of the one-on-one interview.
. . . .
Under these circumstances the statute is going to be interpreted to allow psychologists to make recommendations without giving them the benefit of a forensic interview before the probable cause hearing. We have some serious due process concerns, and the due process concern is that we have too much error on the side of the respondent.
. . . .
So I submit to the Court under those circumstances there is a due process violation because we get to the probable cause determination based upon paper review, and the Court makes the determination that he meets the criteria for commitment, and then the person is locked up for, you know, at least 90 days, and in some cases longer than that.
. . . .
THE COURT: The Court understands the basis for Mr. Sheeley's objection, but it's going to find that the exhibits are admissible under statutory provisions 229A.5(3) and both State's Exhibits 2 and 3 will be admitted.
Based on the record made at the August 14, 2004, hearing, the trial court found probable cause to believe Hollins was a sexually violent predator and ordered his continued confinement following discharge of his criminal sentence.
On August 16, 2004, Hollins filed a motion to dismiss the State's petition. He argued the statute authorizing Hollins's commitment was unconstitutional because it permitted his confinement based on a lifetime risk of reoffending rather than risk in the immediate or foreseeable future in violation of his right to due process of law. He also argued the sexually violent predator statute violated his Fourteenth Amendment right to equal protection for basically the same reasons. The trial court denied Hollins's motion to dismiss.
Dr. Salter testified via video deposition at trial. Those portions of her testimony challenged on appeal as set forth in Hollins's brief are:
Dr. Salter was asked to give the following opinion:
Q. [H]ave any of Mr. Hollins' past behavior, sexual offensive behavior, been acted out with a person with whom he either initiated or promoted a relationship or contact for the purpose of sexually victimizing that person?
Despite counsel's objection, Dr. Salter answered: "All of them, to the best of my knowledge all of them. These were strangers that he had no prior relationship with. So the answer is yes, they were predatory." Dr. Salter was then asked:
Q. In your opinion, doctor, would the offenses in the future which is your opinion he is likely to commit be predatory in the sense of being committed against a person with whom he promoted or established a relationship for the primary purpose of victimization?
Despite Hollins' objection Dr. Salter once again answered: "Absolutely, yes."
Counsel's objection in both instances was that the question "calls for a legal conclusion." Both objections were overruled.
On cross-examination, Dr. Salter was asked the following:
Q. Okay. Now you say that [Hollins's] actions were predatory?
A. Right.
Q. These were all strangers, were they not? A. Best of my knowledge, yes.
Q. And with any of these strangers he didn't build any relationship or contact. He had contact with them for the purpose of victimizing them; he didn't build a social relationship with them, no.
Q. What's the relationship between a stranger rapist and a victim? A. Predator and prey is really the only relationship.
Dr. Salter testified that Hollins suffered from an antisocial personality disorder and paraphilia NOS, both of which constitute mental abnormalities predisposing Hollins to commit sexually violent offenses.
Dr. Craig Rypma, a clinical psychologist, testified on Hollins's behalf stating that anti-social personality does not predispose an individual to commit sexual offenses. Dr. Rypma disagreed with Dr. Salter's opinion that Hollins's alleged compulsion to rape women was the necessary basis for a diagnosis of paraphilia NOS. He further testified that the actuarial instruments used by Dr. Salter were inappropriate for legal decision making and that the reliability of the actuarial instruments for offenders Hollins's age had not been established. Rypma additionally cited two studies supporting his testimony that the recidivism rate among rapists released at age forty-seven was less than fifty percent.
Over Hollins's objection, the jury was instructed:
It is your duty as jurors to determine if the respondent, Clyde Hollins, is or is not a sexually violent predator. In the event of a verdict that the Respondent is a sexually violent predator, you have nothing to do with confinement.
During closing arguments Hollins moved for a mistrial based on the following statements made by the State:
1. "Dr. Rypma was never asked to evaluate the Respondent. Now isn't that interesting."
2. "Did they ever ask him to read his records?"
3. "So he didn't see him, right? No opinion on mental abnormality. No opinion on risk."
4. "So you need to ask yourself, why is that?"
5. "They talked about a [the penile plethysmograph] and how that can help determine whether someone's a risk to reoffend. Did they perform that test? Huh-uh."
The jury subsequently returned a special verdict finding Hollins to be "a sexually violent predator." As a result, the court placed him in the custody of the Iowa Department of Human Services for confinement in a secure facility.
On appeal, Hollins raises the following issues:
I. Whether due process requires that a respondent facing commitment under chapter 229A be afforded an opportunity for a full forensic evaluation prior to, or within a reasonable time after the court makes its probable cause determination.
II. Whether chapter 229A violates due process and equal protection because it permits commitment on the basis of lifetime risk.
III. Whether the district court abused its discretion by permitting the state's expert to offer legal conclusions.
IV. Whether the district court's instruction that the jury had "nothing to do with confinement" was in error.
V. Whether state's counsel engaged in misconduct during closing argument thereby depriving respondent of his right to a fair trial.II. Constitutional Issues.
We review constitutional claims de novo. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). We presume statutes are constitutional and the appellant must overcome this presumption. Glowacki v. State Bd. of Med. Exam'rs, 501 N.W.2d 539, 541 (Iowa 1993). "A statute must clearly, palpably, and without doubt infringe upon the constitution before we will declare it unconstitutional." Id. (citing Larsson v. Iowa Bd. of Parole, 465 N.W.2d 272, 273 (Iowa 1991) (citations omitted)). "A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional." Schroeder Oil Co. v. Iowa State Dep't of Rev. Fin., 458 N.W.2d 602, 603 (Iowa 1990).
A. Due Process/Full Forensic Evaluation.
Hollins argues that Iowa Code chapter 229A violates his due process rights because it does not require a full forensic evaluation prior to expiration of a criminal sentence and therefore chapter 229A is unconstitutional on its face. The State argues that Hollins failed to preserve error on this due process challenge. Our supreme court has articulated the following standard for error preservation:
It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) ("issues must be presented to and passed upon by the district court"); Peters v. Burlington N.R.R., 492 N.W.2d 399, 401 (Iowa 1992) ("issues must be raised and decided by the [district] court"). The reason for this principle relates to the essential symmetry required of our legal system. It is not a sensible exercise of appellate review to analyze facts of an issue "without the benefit of a full record or lower court determination." Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522, 1534, 118 L.Ed.2d 153, 172 (1992) (quoting Lytle v. Household Mfg., Inc., 494 U.S. 545, 552 n. 3, 110 S.Ct. 1331, 1336 n. 3, 108 L.Ed.2d 504, 515 n. 3 (1990)). When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984).
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
Here, Hollins argued at the probable cause hearing that Dr. Salter's report should not be admitted because of her failure to meet with Hollins and afford him the opportunity for a full forensic evaluation prior to the hearing. The district court admitted Dr. Salter's report but made no specific ruling on Hollins's due process challenge to the statute. In the absence of a ruling by the district court or request for a ruling on Hollins's due process challenge to the preliminary screening and probable cause procedures under the statute, we find Hollins has failed to preserve error on this issue.
Even if we were to conclude otherwise as well as resolve the State's standing and mootness issues in Hollins's favor, the record made below is insufficient to sustain Hollins's due process challenge to Chapter 229A. The gist of Hollins's argument is:
Chapter 229A is unconstitutional on its face because it allows the court to make a probable cause determination on the basis of "paper review" findings. Such a screening practice places 100% of the risk of erroneous commitment on the respondent because it permits confinement beyond the expiration of his criminal sentence based on findings that may prove unfounded with the benefit of a full evaluation.
Hollins fails to state whether his is a substantive or procedural due process challenge to 229A, nor does he identify the analytical framework the court must apply to resolve the issue. Based on counsels' statements at the probable cause hearing, we believe Hollins is making a procedural due process challenge to the statute. See, e.g., State v. Hernandez-Lopez, 639 N.W.2d 226, 237-41 (Iowa 2002) (court distinguishes substantive and procedural due process challenge and identifies analytical framework).
The competing interests and controlling analytical framework implicated by Hollins's due process arguments are well settled. In In re Detention of Williams, 628 N.W.2d 447, 458 (Iowa 2001), the court said:
In determining what process is due an individual threatened with the loss of a right, we are guided by the factors announced in Mathews v. Eldridge, 424 U.S. 319, 335, 96 St. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). We must consider (1) the private interest affected, (2) the State's interest, and (3) the risk of erroneous deprivation of the individual's interest under the process already provided, and the value, if any, of additional or different safeguards. Id. Put another way, due process requires that "[an] individual . . . not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state."
As noted earlier, Hollins relies on the experience of nine other respondents whose cases were dismissed purportedly because subsequent in-person full forensic evaluations failed to substantiate the paper evaluations relied on in the pre-petition screening process and probable cause hearings. We think Hollins overstates the statistical significance of the anecdotal evidence upon which he relies. There is nothing in the record that places the nine cited cases in the context of all other sexually violent predator cases. Without such evidence, we are unable to determine whether the nine cases cited were anomalies or present a sufficiently high incident of error to warrant consideration of the additional procedural safeguards Hollins advocates. Moreover, Hollins makes extravagant use of the terms full forensic evaluation without defining those terms or distinguishing a full forensic evaluation from the paper evaluations he condemns as inadequate. Although Hollins asserts a plausible legal theory, he has failed to make an adequate record supporting his claim that respondents in 229A proceedings bear a disproportionate risk of erroneous confinement.
We affirm on this issue.
B. Lifetime Risk/Temporal Risk
Hollins argues Chapter 229A is unconstitutional because it permits commitment based on a lifetime rather than a temporal risk of reoffending. We considered and rejected this argument in In re Detention of Selby, ___ N.W.2d ___ (Iowa Ct.App. 2005). We accordingly affirm on this issue.
III. Expert Testimony.
We review rulings on the admissibility of opinion evidence for an abuse of discretion. In re the Detention of Palmer, 691 N.W.2d 413, 416 (Iowa 2005). Iowa Rule of Evidence 5.704 states that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." In other words, "opinion evidence is not inadmissible because it embraces the ultimate issue in the case, but it must still be admissible under the other rules of evidence" including rules 5.701 and 5.702. Palmer, 691 N.W.2d at 419. "[A] witness cannot opine on a legal conclusion or whether the facts of the case meet a given legal standard." Id. Opining on legal conclusions or standards are not admissible because they "`may be misunderstood by the witness and the jury if they do not know the law's definition of' the legal standards used." Id. (quoting 1 McCormick on Evidence § 12, at 55 (John W. Strong ed., 5th ed. 1999)).
When there is a danger that the jury will misunderstand the legal term used, the "opinion may be excludable under rules 5.701 and 5.702 as being not helpful to the jury." Id. at 420. These opinions may also be excluded under Iowa Rule of Evidence 5.403 "if the probative value of the opinion is substantially outweighed by the danger of misleading the jury." Id. To determine whether an opinion involving legal terms should be admitted, we must consider "whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular. If they do, exclusion is appropriate." Id. (quoting Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir. 1985)). The opinion is not automatically excludible merely because the popular meaning and the legal meaning are approximately the same. Id. "[T]he best resolution for this problem is for the questioner to break down the legal terms into factual elements." Palmer, 691 N.W.2d at 420.
Our review of Dr. Salter's testimony indicates her use of the term predatory was preceded by a recitation of the factual elements of that term. Moreover, Dr. Salter further explained the factual elements of that term both on cross-examination and redirect. Under these circumstances, we are unable to say the trial court abused its discretion by admitting Dr. Salter's opinion testimony.
Even if we were to conclude otherwise, Hollins was not prejudiced by admission of the challenged testimony. Like the respondent in Palmer, Hollins does not claim future offenses he might commit would not be "predatory sexually violent offenses." His only claim was that he would not reoffend. Palmer, 691 N.W.2d at 482 (no prejudice from admission of undisputed testimony).
We affirm on this issue.
IV. Mistrial.
We review the district court's denial of a motion for mistrial for an abuse of discretion. Rosenberger Enters., Inc. v. Insurance Serv. Corp. of Iowa, 541 N.W.2d 904, 906 (Iowa Ct.App. 1995). However, to the extent that due process rights are implicated, our review is de novo. Connor v. State, 362 N.W.2d 449, 458 (Iowa 1985). Prosecutorial misconduct that denies a defendant a fair trial is a violation of due process. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citing State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003)). To prevail on a claim of prosecutorial misconduct, a defendant must establish that misconduct occurred and that he was so prejudiced by the misconduct that he was deprived of a fair trial. See State v. Bowers, 656 N.W.2d 349, 355 (Iowa 2002). Although there is no precedent applying prosecutorial misconduct standards in 229A proceedings, their application here does not require a new trial.
Hollins argues the earlier quoted statements by the "prosecutor" impermissibly suggested Hollins had the burden to prove he was not a sexually violent predator and the resulting prejudice requires a new trial. We disagree.
In his closing argument, Hollins's attorney relied on Dr. Rypma's testimony and opinions to discredit Dr. Salter's testimony and opinions. Counsel challenged both Salter's evaluation methods as well as her ethics. Under these circumstances, we find the challenged portions of the State's arguments amounted to no more than a permissible challenge to the credibility of Dr. Rypma's testimony and a permissible reply to Hollins's interpretation of Dr. Salter's testimony as well as other evidence in the record. See, e.g., Wycoff v. State, 382 N.W.2d 462, 468 (Iowa 1986). We find no abuse of discretion in the trial court's ruling denying Hollins's motion for a mistrial and affirm on this issue.
V. Jury Instructions.
Hollins's argument is identical to that raised in Selby, ___ N.W.2d at ___, and In re Detention of Crane, 704 N.W.2d 437, 439 (Iowa 2005). In both cases we held the instruction was not a misstatement of the law or misleading. Selby, ___ N.W.2d at ___; Crane, 704 N.W.2d at 440. Accordingly, we affirm on this issue.