Opinion
112,972.
07-31-2015
In the Matter of the Care and Treatment of Dustin J. MERRYFIELD.
Donald R. Snapp, of Newton, for appellant. Natalie Chalmers, assistant solicitor general, of Office of the Kansas Attorney General, for appellee.
Donald R. Snapp, of Newton, for appellant.
Natalie Chalmers, assistant solicitor general, of Office of the Kansas Attorney General, for appellee.
Before BRUNS, P.J., Hill and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dustin J. Merryfield appeals the district court's determination that he failed to establish probable cause that his antisocial personality disorder has so changed as to warrant advancement in the Kansas Sexual Predator Treatment Program (SPTP) or to be placed in transitional release. He contends that the district court was obligated to appoint an independent examiner on his behalf as well as to hold a separate hearing to determine if the licensed clinical psychotherapist who conducted his annual review was an expert witness. But the plain and unambiguous language of both K.S.A.2014 Supp. 59–29a08(a) and K.S.A.2014 Supp. 60–457(b) indicate that such decisions are discretionary with the district court. Furthermore, Merryfield has failed to show that he has a constitutional right to an independent examiner under the circumstances presented.
Merryfield also asserts that the report of his annual review was irrelevant and that it was inappropriate for the district court to rely on the report. We find, however, that the report was relevant to establish the current state of Merryfield's personality disorder as well as the progress—or lack thereof—he made in the SPTP. Moreover, we do not find that the district court relied on inadmissible hearsay evidence in making its probable cause determination. Lastly, we find that Merryfield failed to carry his burden at the probable cause hearing to establish that his antisocial personality disorder has so changed as to warrant advancement in the SPTP or to be placed in transitional release. Thus, we affirm.
Facts
In 2000, Merryfield was found to have suffered from an antisocial personality disorder and was civilly committed to the SPTP. On December 3, 2013, Merryfield received an Annual Notice of Right to Petition for Release from Treatment over the Secretary's Objection. See K.S.A.2014 Supp. 59–29a08(a). At the time, Merryfield was in phase three of a seven-phase program—the final phase of the SPTP is also known as transitional release.
Attached to the notice was a report prepared by Keri Applequist, M.S., LCP—a licensed clinical psychotherapist employed at Lamed State Hospital. Her report detailed Merryfield's progress in the SPTP between November 2012 and November 2013. Ultimately, Applequist found that Merryfield had made only “slight progress” during the previous year. Accordingly, she concluded that Merryfield continued to suffer from a mental abnormality or personality disorder that made it likely that he would engage in repeated acts of sexual violence. As such, Applequist recommended that Merryfield not advance to transitional release.
Shortly thereafter, Merryfield filed a pro se petition for annual review, motion for appointment of independent examiner, and motion to be allowed discovery. Through appointed counsel, Merryfield also filed motions in limine seeking to exclude Applequist's report from evidence as well as any testimony related to his progress in the SPTP, claiming that such evidence was not relevant to his petition for annual review. In addition, Merryfield's counsel filed a motion to request a hearing to determine whether Applequist qualified as an expert or to determine whether she could present relevant evidence at the probable cause hearing. Lastly, Merryfield's counsel filed an objection entitled “Respondent's Formal Objection to the Court Setting or Holding an Annual Review,” claiming that Applequist did not conduct a proper examination.
The district court conducted a probable cause hearing on November 3, 2014, at which Merryfield appeared in person and with counsel. Before Applequist testified, the State offered her report into evidence but Merryfield's attorney objected. The district court then took the matter under advisement. Ultimately, the district court denied Merryfield's motions in limine and admitted the report into evidence. The report confirmed that Merryfield was in phase three of the SPTP. The report also stated that Merryfield told a therapist other than Applequist that he was not interested in advancing to phase four of the program, having previously done so.
Applequist testified that she personally interviewed Merryfield on November 13, 2013. During the interview, Merryfield stated that he had been attending group therapy sessions about 80 percent of the time but that he had not been presenting to the group. When asked by Applequist about what he had accomplished in treatment over the previous year, Merryfield replied “ain't really been nothing this past year.” In addition, Applequist testified that therapists emphasize the importance of persons in the SPTP preparing a relapse prevention plan to assist them in transitioning back into society but that Merryfield had not presented one. Accordingly, Applequist concluded that although Merryfield had made slight progress in the SPTP, his personality disorder had not so changed that it would be safe to advance him to transitional release.
Merryfield argued during the hearing that Applequist's report was inadmissible hearsay. In denying Merryfield's motion in limine, the district court found that Applequist's report was based on facts or data reasonably relied upon by professionals in this particular field. In addition, the district court stated that the report was largely based on her interview of Merryfield rather than on inadmissible evidence. The district court also denied Merryfield's other motions filed prior to the probable cause hearing. Lastly, the district court determined that no probable cause existed to believe that Merryfield's antisocial personality disorder had so changed that it was safe to advance him from phase three of the SPTP to transitional release.
Analysis
On appeal, Merryfield raises several arguments. He initially argues that the district court erred by denying his motion to appoint an independent examiner. In addition, he briefly argues that the district court was statutorily required to hold a separate hearing to determine whether Applequist qualified as an expert witness. Merryfield also argues that Applequist's report is irrelevant and that the district court relied on inadmissible hearsay contained in the report when it made its probable cause determination. Lastly, Merryfield generally argues that Applequist's report was somehow insufficient.
Both the Kansas Supreme Court and panels of this court have provided significant overviews of the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59–29a01 et seq. See In re Care & Treatment of Burch, 296 Kan. 215, 219–22, 291 P.3d 78 (2012) ; In re Care & Treatment of Twilleger, 46 Kan.App.2d 302, 306–07, 263 P.3d 199 (2011) ; In re Care & Treatment of Merryfield, No. 110,529, 2014 WL 2229141, at *2–3 (Kan.App.) (unpublished opinion), rev. denied 300 Kan. –––– (2014). In summary, the SPTP is a seven-phase program, in which the first four phases represent the intensive inpatient treatment portion of the program while the last three phases focus on assisting committed individuals to transition back into society. See Burch, 296 Kan. at 219–20. As indicated above, the last phase of the program—which Merryfield seeks to be placed in—is known as transitional release. At all times relevant to this appeal, however, Merryfield was in phase three of the SPTP.
Appointment of Independent Expert
Merryfield contends that upon his request, the district court was obligated to appoint an independent examiner on his behalf. K.S.A.2014 Supp. 59–29a08(a) —which addresses the procedure for annual review of the mental condition of a person committed to the SPTP—provides that “[t]he person may retain, or if the person is indigent and so requests the court may appoint a qualified professional person to examine such person ....“ (Emphasis added .) Hence, whether an independent examiner should be appointed at the annual review stage should be left to the discretion of the district court. Twilleger, 46 Kan.App.2d at 310 ; see In re Care & Treatment of Miles, 42 Kan.App.2d 471, 474, 213 P.3d 1077 (2009).
Abuse of discretion means that a district court's decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). Merryfield does not attempt to show that the district court's decision not to appoint an independent examiner was arbitrary, fanciful, or unreasonable. Likewise, he does not attempt to show that the district court's decision was based on an error of fact. Instead, he offers only legal arguments to support his interpretation of K.S.A.2014 Supp. 59–29a08.
Initially, Merryfield argues that the Kansas Supreme Court's ruling in Burch, 296 Kan. 215, alters Twilleger and prior caselaw that held that the decision to appoint an independent examiner is within the discretion of the district court. Specifically, Merryfield points to language in Burch stating that “[t]he committed individual also has rights under this section, including (1) the right to retain or, if indigent, to have appointed a qualified professional person to examine such person; and (2) to have such expert or professional person have access to all records concerning the person.” 296 Kan. at 220. Not only is it important to note that our Supreme Court was simply paraphrasing—not quoting—K.S.A.2011 Supp. 59–29a08(a), it is also important to note that the district court in Burch had in fact appointed an independent examiner on behalf of the committed person. See In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271, at *1 (Kan.App.2010) (unpublished opinion), aff'd 296 Kan. 215. Thus, unlike the present appeal, the issue of whether the appointment of an independent examiner is discretionary was not before our Supreme Court in Burch.
When a statute is plain and unambiguous, we are not to speculate about the legislative intent behind that language or read something into the statute that is not readily found in its words. Cady v. Schroll, 298 Kan. 731, 738–39, 317 P.3d 90 (2014). On its face, K.S.A.2014 Supp. 59–29a08(a) clearly states that the district court may appoint an independent examiner. In other words, “[u]nlike K.S.A. 59–29a08(c)(3), which states that a district court ‘shall’ appoint an expert if an indigent person so requests in preparation for a second hearing or trial, a district court clearly has the discretion to determine whether to appoint an independent expert at the annual review stage pursuant to K.S.A. 59–29a08(a).” Twilleger, 46 Kan.App.2d at 311. Thus, although a district court has the authority to appoint an independent examiner at the annual review stage, we conclude that it is not obligated to do so.
Furthermore, Merryfield submitted a Kansas Supreme Court Rule 6.09 (2014 Kan. Ct. R. Annot. 52) letter, arguing that a panel of this court's opinion in In re Care & Treatment of Zishka, 51 Kan.App.2d 242, 343 P.3d 558 (2015), supports his position regarding the appointment of an expert witness. We do not, however, find the opinion to be helpful in resolving the issue presented in this appeal because the panel in Zishka merely stated that the district court—having failed to do so—should have considered appointing an independent examiner. 51 Kan.App.2d at 244–45. Here, the district court considered and rejected Merryfield's request for the appointment of an independent examiner under the circumstances presented.
Merryfield also argues that the district court's denial of his motion for appointment of an independent examiner violates his constitutional rights. Although Merryfield made a blanket statement in one of his pro se motions that he had a right to an independent examiner under “the United States Constitution,” he did not raise a constitutional argument at the probable cause hearing. Moreover, in his brief on appeal, Merryfield simply cites the case of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), with no explanation and no analysis. He has, therefore, abandoned this argument. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).
We pause to note that even if Merryfield had not abandoned this argument, it fails on the merits. In both In re Care & Treatment of Williamson, No. 99,553, 2009 WL 248229, at *4 (Kan.App.2009) (unpublished opinion), and In re Care & Treatment of Strait, No. 110,028, 2014 WL 2871348, at *3 (Kan.App.2014), rev. denied June 29, 2015, individuals who were committed to the SPTP made the same argument as Merryfield. The panels in Williamson and Strait —applying the factors articulated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) —came to the conclusion that (1) an individual who is civilly committed has a slightly diminished liberty interest since he or she was previously adjudicated a sexually violent predator; (2) existing procedures reveal that there is almost no risk of erroneous deprivation of the individual's liberty; and (3) the State has a legitimate interest in treating sexually violent individuals and protecting the public from those individuals. Williamson, 2009 WL 248229, at *5–6 ; Strait, 2014 WL 2871348, at *3. We agree.
Merryfield argues that a person committed to the SPTP has no way of producing meaningful evidence at the probable cause stage in opposition to a negative annual report. Once again, he offers little—if any—authority to support this argument. Regardless, both the United States Supreme Court and Kansas Supreme Court have upheld the constitutionality of the Kansas Sexually Violent Predator Act (KSVPA). See Kansas v. Hendricks, 521 U.S. 346, 371, 372, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Kennedy, J., concurring) (noting the importance of the KSVPA's annual review protection for committed individuals); see also In re Care & Treatment of Hay, 263 Kan. 822, 830–31, 953 P.2d 666 (1998) ; Merryfield v. State, 44 Kan.App.2d 817, 823–24, 241 P.3d 573 (2010).
Moreover, in Ake v. Oklahoma —the case cited by Merryfield in support of his constitutional argument—the United States Supreme Court held that a criminal defendant was entitled to the assistance of a psychiatrist at trial if the defendant could make a preliminary showing that his sanity at the time of the offense is likely to be a significant factor. 470 U.S. at 83. The Supreme Court further held that in a capital sentencing proceeding a defendant is entitled to a psychiatrist's assistance because “the consequence of error is so great, the relevance of responsive psychiatric testimony [is] so evident, and the burden on the State [is] so slim ....“ 470 U.S. at 84. Here, of course, we are dealing with a civil, rather than criminal matter. Further, we are dealing with an annual review well beyond Merryfield's initial commitment to the SPTP, where he was entitled to much greater constitutional protections. See K.S.A.2014 Supp. 59–29a06 ; see also Hay, 263 Kan. at 830 (“The [KSVPA] has been deemed a civil commitment which is not criminal in nature. Due to this significant holding, the foundation for Hay's constitutional challenges has been shattered ....”).
Furthermore, Merryfield's argument is premised upon the notion that the mental health professionals employed by the Kansas Department for Aging and Disability Services are inherently biased against individuals committed to the SPTP. But he has offered no evidence—nor did he establish at the probable cause hearing—that the licensed clinical psychotherapist who evaluated him was somehow biased. See People v. Burns, 209 Ill.2d 551, 562–63, 567, 809 N.E.2d 107 (2004) (finding that Ake v. Oklahoma did not apply to Illinois' Sexually Dangerous Persons Act since it was a civil, rather than criminal, law and stating that the lower court incorrectly assumed that State mental health professionals at the institution would prepare a biased and prejudiced socio-psychiatric report). In fact, by his own admission to the clinical psychotherapist, Merryfield had accomplished nothing in the SPTP during the past year.
Accordingly, we conclude that the district court acted within its discretion when it found that Merryfield's “failure to participate fully in his treatment, his continued diagnosis as having a mental abnormality or personality disorder ..., and the lack of any significant change from last year provide no grounds to grant an independent examination.” We further conclude that Merryfield has failed to show that his constitutional rights were violated by the district court's denial of his request for an independent examination.
Hearing to Determine Applequist's Qualifications
Next, Merryfield contends that K.S.A.2014 Supp. 60–457(b) required the district court to hold a hearing prior to the probable cause hearing for the purpose of determining whether Applequist qualified as an expert witness. In particular, Merryfield argues that K.S.A.2014 Supp. 60–457(b) “create[s] a right for Respondent to challenge the State's witness prior to them testifying or presenting any evidence.” Since resolution of this issue requires us to interpret a statute, our review is de novo. Cady, 298 Kan. at 734.
In relevant part, K.S.A.2014 Supp. 60–457(b) provides that “[i]f a witness is testifying as an expert, upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the witness's testimony satisfies the requirements of subsection (b) of K.S.A. 60–456, and amendments thereto.” (Emphasis added.) As such, the plain language of the statute belies Merryfield's argument on this issue. See Cady, 298 Kan. at 738. Although a district court has the authority to hold a hearing to determine whether a witness qualifies as an expert, it is not required to do so.
Nevertheless, a review of the record reflects that the State established Applequist's status as an expert at the probable cause hearing. Applequist testified that she is a licensed clinical psychotherapist and that she holds a master's degree in clinical psychology. She also testified that the annual report she prepared was based on her review of Merryfield's progress notes; on feedback from his activity therapist, psychoeducation providers, and other therapists; and on her interview of Merryfield. In addition, she testified that the records she reviewed are of a type reasonably relied upon by other experts who conduct reviews at Lamed State Hospital. This is all that is required for an expert to provide an opinion under the KSVPA. K.S.A.2014 Supp. 59–29a06(c) ; see K.S.A. 60–456(c). Thus, we conclude that the district court did not err by denying Merryfield's motion for a K.S.A.2014 Supp. 60–457(b) hearing.
Admissibility of Applequist's Report
Merryfield further contends that Applequist's report should not have been admitted into evidence because it was irrelevant to the probable cause proceeding. In support of this contention, he argues that the United States Supreme Court has held that the type of treatment available in the SPTP is irrelevant to the determination of whether someone may be declared a sexual predator. Although the citation provided by Merryfield does not support his argument, it is important to recognize that we are not reviewing the original determination that Merryfield was a sexually violent predator in this appeal.
When reviewing the admissibility of evidence, a court must first determine whether the evidence is relevant. Generally speaking, all relevant evidence is admissible. K.S.A. 60–407(f). K.S.A. 60–401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” Our Supreme Court has held that this definition means that evidence must be material and probative. In re Acquisition of Property by Eminent Domain, 299 Kan 37, 44, 320 P.3d 955 (2014). Evidence is material when the fact it supports is in dispute or at issue in the case; the court reviews this question de novo. Evidence is probative if it has a logical tendency to prove any material fact; this court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. 299 Kan. at 44. As stated above, abuse of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co., 296 Kan. at 935.
The United States Supreme Court has determined that the KSVPA is not necessarily punitive even if treatment is merely an ancillary—rather than overriding—concern of the Act. See Hendricks, 521 U.S. at 367. Furthermore, although Merryfield cites several opinions from panels of this court claiming that “any evidence concerning treatment programs or where a person is at in a treatment program is irrelevant and inadmissible in determining whether a person is a Sexually Violent Predator,” each case he cites is inapposite. In the case of In re Care & Treatment of Miles, 47 Kan.App.2d 429, 441, 276 P.3d 232 (2012), a panel of this court discounted the probative value of prior years' evaluations in light of two current expert evaluations concluding that the committed individual no longer met the criteria for pedophilia. Nowhere did the panel state that such evaluations were irrelevant or inadmissible. Similarly, the remaining cases Merryfield cites are inapplicable because they deal with the initial determination of whether a respondent is a sexual predator. See In re Care & Treatment of Lair, 28 Kan.App.2d 51, 53, 11 P.3d 517 (2000) ; In re Care & Treatment of Heide, No. 93,652, unpublished opinion filed December 29, 2006 (Kan.App.); In re Care & Treatment of Rodriguez, No. 91,467, unpublished opinion filed December 30, 2004 (Kan.App.); In re Care & Treatment of Prins, No. 80,188, unpublished opinion filed September 3, 1999 (Kan.App.).
On the contrary, we find Applequist's report is not only relevant, but that it is necessary for the district court to make a probable cause determination at the annual review stage. By law, the district court must conduct an annual review of Merryfield's personality disorder if requested to determine whether probable cause exists to believe that his disorder has so changed that it is safe to place him in transitional release. See K.S.A.2014 Supp. 59–29a08(a), (c)(1). Hence, the report is material because Merryfield's mental condition is in dispute. Likewise, the report is probative because it tends to establish his current state of mind. In fact, the district court would be unable to make a probable cause determination without considering the statutorily mandated examination. See K.S.A.2014 Supp. 59–29a08(a). Thus, we conclude that the report was relevant.
Merryfield further argues that Applequist's report was inadmissible because it contained hearsay. K.S.A.2014 Supp. 60–460 states, hearsay is “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” We review this issue under an abuse of discretion standard. See State v. Betancourt, 301 Kan. 282, 297, 342 P.3d 916 (2015). Again, a district court abuses its discretion only when its decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co., 296 Kan. at 935.
Merryfield cites In re Care & Treatment of Quary, 50 Kan.App.2d 296, 309, 324 P.3d 331 (2014), rev. denied August 14, 2014, in which a panel of this court stated that “[a]n expert report cannot serve as a device to smuggle otherwise inadmissible evidence into a case anymore than expert testimony can.” We do not find Quary to be particularly helpful in resolving the hearsay issue in this appeal because the statements alleged to be hearsay in that case were offered in the context of a bench trial to make the initial determination whether an individual was a sexually violent predator. Similarly, although Merryfield claims that In re Norris, No. 110,364, 2014 WL 6909650, at *4–5 (Kan.App.2014) (unpublished opinion), applied Quary to the annual review stage, this is inaccurate.
Here, the district court found at the probable cause hearing that Applequist's report “is based in large part on her own interview with Mr. Merryfield. As such, it is supported by other than inadmissible evidence.” Indeed, Applequist provided testimony that during her interview conducted on November 13, 2013, Merryfield told her that his accomplishments in the SPTP “ain't really been nothing this past year.” In other words, Merryfield admitted that he had not made progress during the prior year. See K.S.A.2014 Supp. 60–460(g) ; see also State v. Coones, 301 Kan. 64, 80, 339 P.3d 375 (2014).
Merryfield also did not show Applequist that he had developed a relapse prevention plan. This point—like the statement regarding his lack of progress in the SPTP—was relevant to prove Merryfield's then-existing state of mind, which was at issue during the annual review hearing. See K.S.A.2014 Supp. 60–460(l)(1) ; see also Eggeson v. DeLuca, 45 Kan.App.2d 435, 448–49, 252 P.3d 128 (2011). Therefore, we find that the district court did not abuse its discretion by admitting Applequist's report into evidence at the probable cause hearing.
Probable Cause
Finally, Merryfield contends that the district court erred in failing to find that probable cause exists to believe that his mental condition had so changed to justify his advancement to transitional release. Our review of a district court's probable cause determination under K.S.A.2014 Supp. 59–29a08 is de novo. Like the district court, we must draw inferences from the evidence presented and resolve conflicting evidence in the light most favorable to the committed individual. Burch, 296 Kan. 215, Syl. ¶ 9.
K.S.A.2014 Supp. 59–29a08(a) mandates that the State must complete an annual mental examination of a person committed to the SPTP. Following the examination, the district court must conduct a hearing to determine whether probable cause exists to believe that the individual's mental condition has so changed to justify transitional release. K.S.A.2014 Supp. 59–29a08(a), (c)(1). This is not an evidentiary hearing, and although the committed person's attorney must be present, the committed person is not required to be in attendance. The committed person carries the burden to establish probable cause to justify transitional release; that is, the person “must present facts ... that are sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the person's mental abnormality or personality disorder has so changed that he or she is safe to be placed in transitional release.” Burch, 296 Kan. 215, Syl. ¶¶ 5 –7.
Our review of the record reveals that Merryfield did not carry his burden at the probable cause hearing. At most, the evidence presented showed that Merryfield had made only “slight progress” over the previous year. Moreover, the licensed clinical psychotherapist who evaluated Merryfield rendered the opinion that he continued to suffer from a mental abnormality or personality disorder that made it likely that he would engage in repeated acts of sexual violence. The psychotherapist also testified that Merryfield had not presented a relapse prevention plan. Moreover, Merryfield admitted that his accomplishments in the SPTP “ain't really been nothing this past year.”
We, therefore, conclude—after drawing inferences in Merryfield's favor—that a person of ordinary prudence and action could not entertain a reasonable belief that his mental abnormality or personality disorder has so changed that he is safe to be advanced from phase three of the SPTP to transitional release.
Affirmed.