DENNIS GILBERT HALL v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 7, 2000; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000518-MR
DENNIS GILBERT HALL
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE ROBERT B. OVERSTREET, JUDGE
ACTION NO. 92-CR-00052
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Dennis Hall has appealed from an order of the
Woodford Circuit Court that found him to be a high risk sex
offender.
In this appeal, he raises issues concerning the
admissibility of certain evidence and the constitutionality of
Kentucky’s Sex Offender Registration Act.1
Having concluded that
Hall’s rights to procedural due process were not violated and
1
The act applies to those persons convicted of a “felony
offense defined in KRS Chapter 510 [sex offenses], KRS 530.020
[incest], 530.064 [unlawful transaction with a minor in the first
degree], or 531.310 [use of a minor in a sexual performance], a
felony attempt to commit a sex crime, or similar offenses in
another jurisdiction.” Kentucky Revised Statutes (KRS)
17.500(4).
that the statutory scheme does not offend the constitutional
prohibitions against double jeopardy, we affirm.
In 1992, Hall, then 22 years old, was indicted on one
count of sexual abuse in the first degree and on one count of
sodomy in the first degree.
These charges stemmed from
allegations that he unclothed, fondled and performed oral sex on
a six-year old boy who attended a class Hall taught at his
church.
Hall was convicted of both offenses and sentenced to
prison to serve four years on the conviction for sexual abuse and
seven years on the sodomy conviction.
The sentences were run
concurrently for a total of seven years.
In June 1996, Hall was
paroled and, as a condition of that parole, he was required to
attend a sex offender treatment program.
In July 1997, Hall’s
parole was revoked after he was terminated from the treatment
program.
Also in that year, Hall was charged with violating the
Child Pornography Prevention Act,2 by having in his possession
visual depictions, obtained from the Internet, of minors
appearing to engage in sexually explicit conduct.
On November 25, 1998, prior to his anticipated release
on the state convictions, the Woodford Circuit Court ordered that
Hall undergo a sex offender risk assessment for the purpose of
determining his status as either a high, moderate, or low risk
sex offender pursuant to KRS 17.570.3
Hall was transported to
2
18 U.S.C. §2252A.
3
KRS 17.570(1) reads:
Upon conviction of a “sex crime” as
defined in KRS 17.500 and within sixty (60)
calendar days prior to the discharge,
(continued...)
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the Kentucky State Reformatory where the assessment was performed
by a “certified provider,” a psychologist, who, after
interviewing Hall and conducting a battery of tests, concluded in
the report that Hall exhibited a “high risk to reoffend
sexually”[emphasis original].
On January 29, 1999, a hearing was conducted pursuant
to KRS 17.570(4).
Hall, who was represented by counsel, moved
the trial court to dismiss the proceeding as being in violation
of his constitutional protection against double jeopardy.
He
further argued that the sex offender risk assessment report could
not be admitted as evidence since the author of the report was
not present.
The Commonwealth argued that the rules of evidence
prohibiting the admission of hearsay were not applicable as the
proceeding was similar to a preliminary hearing or parole
revocation hearing.
The trial court agreed with the Commonwealth
and denied Hall’s motion to dismiss the proceeding.
3
(...continued)
release, or parole of a sex offender, the
sentencing court shall order a sex offender
risk assessment by a certified provider for
the following purposes:
(a) To determine whether the offender should
be classified as a high, moderate, or low
risk sex offender;
(b) To designate the length of time a sex
offender shall register pursuant to KRS
17.500 to 17.540; and
(c) To designate the type of community
notification that shall be provided upon the
release of the sex offender pursuant to KRS
17.500 to 17.540.
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The Commonwealth was allowed to introduce into evidence
the sex offender risk assessment report.
Hall testified to some
minor inaccuracies in the report; however, he acknowledged the
accuracy of most of the factual material in the report, including
his version of the crime.
In the order entered on February 3, 1999, the trial
court found that
[Hall’s] criminal history and the nature of
these offenses combined with his psychiatric
profile and his past inability to conform
with the requirements of his sexual offender
treatment program further substantiate the
evaluation of the Certified Provider which
the Court accepts.
The Court further finds there is sufficient
evidence to find that [Hall] does pose a high
risk of recommitting a sex crime and is a
threat to the public safety.
Hall was determined by the trial court to be a high risk sex
offender, a designation which requires that he register for his
lifetime “unless redesignated.”4
This appeal followed.
Hall first argues that he was deprived of a fair
hearing by the trial court’s admission into evidence of the sex
offender risk assessment report without its preparer being
present.
He contends that he should have been afforded
“the constitutional protections implicit in the rules of evidence
(i.e., the prohibition against hearsay),” especially since the
reliability of the assessment was suspect, the report having been
prepared by “the social worker,” whom he characterizes as “a
4
KRS 17.572(3).
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sexual offender’s traditional opponent.”
He further contends, in
this vein, that the assessment was inherently unreliable because
social workers are the historical enemies of
child abuse offenders, and as such are
vulnerable to claims of falsifying evidence,
not out of malice perhaps, but out of
appropriate compassion, not with intent to do
harm, but simply because social workers can
in no way be considered dispassionate
observers. If their opinions are to be given
that special aura of reliability granted to
experts, then the supposed scientific
findings should be given at least the
scrutiny given other scientific conclusions
before they are accepted by the courts.5
We find no merit to Hall’s due process concerns in the admission
of the risk assessment report, or to his argument that the report
was not trustworthy.
In order to ensure that sex offenders are afforded due
process in determining the appropriate tier of sex offender
status to be applied to them, the Legislature created a statutory
scheme containing several important procedural requirements,
including that the trial court “review the recommendations of the
certified provider along with any statement by a victim or
5
This is apparently in reference to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.E.d 2d
469 (1993), which requires a trial court to inquire into the
scientific reliability and the relevance of expert evidence prior
to its admission at trial. The appellant’s criticism of the
trial court for failing to perform this inquiry with respect to
the various psychological tests to which he was subjected, the
results of which were used to support the recommendations
contained in the risk assessment, is clearly not reviewable as he
made no Daubert challenge to the admission of this evidence in
the trial court. Clearly, if Hall believed the tests were not
valid indicators of his propensity to reoffend, it was his duty
to raise the issue in the trial court.
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victims and any materials submitted by the sex offender;”6 that
the hearing be held “in accordance with the Rules of Criminal
Procedure” and that the sex offender be allowed “to appear and be
heard;”7 that the sex offender have the right to counsel;8 and,
that the trial court make “findings of fact and conclusions of
law” which are subject to judicial review.9
It is clear that the statutory scheme contemplates that
an assessment will be prepared by a mental health professional
and that it will be available for the trial court to review.
There is no question that the procedure employed by the trial
court complied with that mandated by KRS 17.570.
Thus, Hall’s
complaint is not really with the trial court, but with the scheme
as designed by the Legislature.
Before we address Hall’s claim
that the scheme is defective and that he has been denied his
rights to procedural due process, we will first comment on Hall’s
assertion that the trial court “blindly accepted as the truth”
the conclusions reached by the author of the report.
There was,
as discussed by the trial court in its order, evidence other than
the risk assessment report which supports the trial court’s
determination that upon his release from prison Hall would pose a
high risk to male children.
This other evidence included Hall’s
known history and conviction, the fact that his parole had been
revoked for failure to remain in the sex offender treatment
6
KRS 17.570(3).
7
KRS 17.570(4).
8
KRS 17.570(5).
9
KRS 17.570(6) and (7).
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program, his possession of child pornography during his parole,
his own admissions concerning the underlying crime, and the fact
that he had been convicted in federal court on the 1997
pornography charges.
Stated differently, in addition to the
recommendation in the assessment by the certified provider, there
was other evidence of substance upon which the trial court could
reasonably rely to support its determination of the appropriate
risk that Hall posed to the community.
It is settled, under both Kentucky law and federal law,
that “the concept of procedural due process is flexible.”10
Not always does due process require a
trial or the strict application of
evidentiary rules and/or unlimited discovery.
The court may construct, especially under
special statutory proceedings, a more
flexible procedure to account for the
affected interest or potential deprivation.
Procedural due process is not a static
concept, but calls for such procedural
protections as the particular situation may
demand.11
In our opinion, the statute is consistent with the
Kentucky Rules of Evidence which provide that the rules
pertaining to hearsay are not applicable in similar types of
proceedings, including “[p]roceedings for extradition or
rendition; preliminary hearing in criminal cases; sentencing by a
judge; granting or revoking probation; issuance of warrants for
arrest, criminal summonses, and search warrants; and proceedings
10
Smith v. O’Dea, Ky.App., 939 S.W.2d 353, 357 (1997).
11
Kentucky Central Life Insurance Co. v. Stephens, Ky., 897
S.W.2d 583, 590 (1995)(citing Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
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with respect to release on bail or otherwise.”12
Although Hall
contends that “[r]evocation hearings are qualitatively different
from classification hearings,” we do not believe that the
difference inures to his benefit.
Indeed, we are of the opinion
that the liberty interest at stake in the classification hearing
is not nearly as intrusive as the liberty interest at stake in a
revocation hearing.
It must be remembered that the hearing in
the case sub judice was conducted merely to determine Hall’s
status as a potential re-offender, and to determine how long he
would have to comply with the registration and notification
provisions of the statute.
In addressing this identical issue and applying a
evidentiary rule similar to our rule, KRE 1101(5), the Supreme
Court of Ohio held that
[a] sexual predator determination hearing is
similar to sentencing or probation hearings
where it is well settled that the Rules of
Evidence do not strictly apply. A
determination hearing does not occur until
after the offender has been convicted of the
underlying offense. Further, the
determination hearing is intended to
determine the offender’s status, not to
determine the guilt or innocence of the
offender. Accordingly, we hold that the Ohio
Rules of Evidence do not strictly apply to
sexual predator determination hearings.
Thus, reliable hearsay, such as a presentence
investigation report, may be relied upon by
the trial judge.13
Hall attempts to overcome the application of KRE
1101(5), which the trial court determined allowed it to admit the
12
KRE 1101(5).
13
State v. Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570, 587
(1998).
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risk assessment report without the testimony of its preparer, by
arguing that it is inherently unreliable as having been prepared
by social workers.
While Hall complains vehemently about the
bias exhibited by social workers against sex offenders, the risk
assessment report indicates that it was prepared by two trained
psychologists.14
Further, the statutory scheme does not support
Hall’s contention that any social worker can be “certified” to
render the sex offender risk assessments.
The Legislature
created a Sex Offender Risk Assessment Board,15 to certify
providers who are required to be “mental health
professional[s].16
Thus, any social worker certified by the
Board as competent to make these assessments would necessarily
qualify as a mental health professional, that is, be licensed for
the practice of clinical social work, or have experience as a
psychiatric social worker.17
Despite Hall’s contention that the assessment may
represent only the “personal opinion,” of the assessor, the Board
has been additionally charged with establishing “a risk
assessment procedure that shall be used by certified providers in
assessing the risk of recommitting a sex crime by a sex offender
14
The “examiner” is identified on the first page of the
assessment as Dawn H. Snyder, M.A., Psychological Associate
Certified, Treatment Supervisor, Sex Offender Treatment Program,
Luther Luckett Correctional Complex. The seven-page report was
also signed by Dennis E. Wagner, Ed.D., Licensed Psychologist,
Chief.
15
KRS 17.554(1).
16
KRS 17.550(8).
17
See e.g., KRS 202A.011(12)(e).
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and the threat posed to public safety.”18
Thus, the scheme has
articulated appropriate guidelines which the certified provider,
a mental health professional, must consider to avoid an
inaccurate risk assessment.
Thus, we hold that the trial court
did not err in admitting the sex offender risk assessment report
as evidence.
Hall’s final argument is that the statutory scheme
violated his right not to be subjected to double jeopardy.
Hall
has not cited a single authority in support of his argument that
the statute under which the trial court proceeded violated either
the state or federal constitutional provisions that prohibit
multiple punishment for the same offense.19
While it is
inappropriate for a party to expect this Court to perform
research to support his arguments,20 nevertheless in an effort to
afford Hall’s arguments full consideration, we have examined
several opinions from other state and federal jurisdictions.
We
agree with the Commonwealth’s position that double jeopardy
18
KRS 17.554(2)(a)-(h). The factors the statute outlines
include the offender’s “[c]riminal history,” the “[n]ature of
[his] offense,” the “[c]onditions of release that minimize risk,”
“[p]hysical conditions that minimize risk,” “[p]sychological or
psychiatric profiles,” “[r]ecent behavior that indicates an
increased risk of recommitting a sex crime,” “[r]ecent threats or
gestures against persons or expressions of an intent to commit
additional offenses,” and a “[r]eview of the victim impact
statement.”
19
See Fifth Amendment to the United States Constitution (no
person “shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb”) and a similar provision
contained in Section 13 of the Kentucky Constitution.
20
See Kentucky Rules of Civil Procedure 76.12(c)(ii) and
(iv), which require appellant’s brief to contain a “statement of
points and authorities and an “argument” with “citations of
authority pertinent to each issue of law.”
-10-
protections are not implicated by the sex offender classification
statute.
As many other court’s have observed, the
classification, registration and notification scheme is designed
to reduce the threat to the public created by the release from
incarceration of those sex offenders likely to recommit sex
offenses and not to impose additional punishment on the
offender.21
Without the threshold showing that the sanctions
contained in the scheme constitute “punishment,” Hall cannot
establish a double jeopardy violation.
Further, it is apparent
to this Court, as the Commonwealth has suggested, that if a
scheme to involuntarily commit sex offenders upon release from
prison can pass a double jeopardy challenge as being nonpunitive, a registration/notification scheme which is far less
onerous, would also pass constitutional muster.22
21
See e.g., E. B. v. Verniero, 119 F.3d 1077, 1105 (3rd Cir.
1997) (New Jersey’s scheme for classification/notification of sex
offenders did not constitute “punishment” for purposes of double
jeopardy analysis); State v. Matthews, 159 Or.App. 580, 978 P.2d
423 (1999) (“intended purpose of the sex offender registration
requirement was to assist law enforcement in protecting the
community from future sex crimes”); Cutshall v. Sundquist, 193
F.3d 466 (6th Cir.1999) (After considering the factors for
evaluating a double jeopardy claim set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644
(1963), the Court concluded that the provisions of Tennessee’s
Sex Offender Registration and Monitoring Act did not offend the
double jeopardy clause of the U.S. Constitution. The Court noted
that it was “mindful of the burdens the Act imposes on convicted
sex offenders,” and of the “potential abuse of registry
information by the public,” but “[g]iven the gravity of the
state’s interest in protecting the public from recidivist sex
offenders, and the small burdens imposed on registrants,” could
not “say that the requirements of the Act exceed its remedial
purpose.” Cutshall, supra 193 F.3d at 476.)
22
See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138
(continued...)
-11-
Accordingly, the judgment of the Woodford Circuit Court
is affirmed.
BARBER, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
SCHRODER, JUDGE, DISSENTING:
The sex-offender
registration system23 seems to have a worthy purpose of providing
notice to law enforcement agencies of the impending release of a
person convicted of a sex crime and the intended residence or
address for said person.
The length of registration or period
requested for registration depends upon the inmate’s
classification as a high-risk sex offender - which requires
lifetime registration,24 or as a low- or moderate-risk sex
offender - which requires registration for ten years.25
The
legislative scheme is for persons convicted to serve their time,
but within sixty days prior to their discharge, release, or
parole, the sentencing court shall order a sex-offender risk
assessment and conduct a hearing to determine whether the
defendant is to be classified as a high-, moderate-, or low-risk
22
(...continued)
L.Ed.2d 501 (1997), in which the Court upheld the state’s
involuntary commitment program against a constitutional challenge
based on substantive due process, ex post facto and double
jeopardy grounds. In rejecting all claims of
unconstitutionality, the Court looked at the purpose of the
statute and held that “[n]othing on the face of the statute
suggest[ed] that the legislature sought to create anything other
than a civil commitment scheme designed to protect the public
from harm.” Id. 138 L.Ed.2d at 515.
23
KRS 17.510, et seq.
24
KRS 17.520(1)
25
KRS 17.520(2)
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sex offender.26
I have a problem with reopening a final judgment
after the prison door has already closed on the defendant.
Once
the judgment becomes final, the defendant becomes a ward of the
executive branch.
For a court to reopen a case, would it not
impinge upon the powers reserved for the executive branch by our
Constitution?27
Thus, the issue is whether it is constitutional
for the General Assembly, through enactment of KRS 17.570, to
mandate the actions of the judicial branch regarding the
procedures related to the risk assessment of a sex offender
awaiting release.
A statute that is subject to the scrutiny of the
separation of powers doctrine “should be judged by a strict
construction of those time-tested provisions.”28
Our
Constitution empowers the Supreme Court “to prescribe . . . rules
of practice and procedure for the Court of Justice.”29
If KRS
17.570 invades the rule-making authority of the Supreme Court,
then it is in violation of the separation of powers doctrine.30
In Commonwealth v. Reneer,31 the Supreme Court
considered whether KRS 532.055 violated the separation of powers
doctrine.
KRS 532.055, commonly referred to as the “Truth-in-
26
KRS 17.570
27
Sections 27 & 28 of our Constitution.
28
Vaughn v. Webb, Ky. App., 911 S.W.2d 273, 276 (1995)
(quoting Legislative Research Commission By and Through Prather
v. Brown, Ky., 664 S.W.2d 907, 914 (1984)).
29
Ky. Const. § 116.
30
Ky., 734 S.W.2d 794, 796 (1987).
31
Id.
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Sentencing” statute, provided procedures by which a court would
impose a sentence on a defendant after a jury verdict of guilty
or guilty but mentally ill was returned.32
The statute provided
for a bifurcated trial where the jury would hear certain evidence
concerning the defendant’s prior record in the sentencing phase
of the trial that they were not allowed to consider in the guilt
phase.33
The Supreme Court held that since the statute was
procedural in nature, it violated the separation of powers
doctrine because:
(1) the provisions of the statute set forth
the procedure to be followed by the courts in sentencing in
felony trials; (2) the statute did not add or remove any elements
necessary to convict the defendant of the crime; (3) the statute
did not increase or decrease the penalty upon conviction; and (4)
the statute did not address the guilt or innocence of the
defendant.34
Likewise, KRS 17.570 is procedural in nature.
KRS
17.570 directs the sentencing court to order a sex-offender risk
assessment, to review the assessment provider’s findings, to
conduct a hearing on the assessment, to inform the sex offender
of the right to have counsel, to issue findings of fact and
conclusions of law, to enter an order designating the offender’s
risk level, to issue notice of the ruling to the county sheriff
where the offender is released, and to grant the offender a right
32
Id. at 795.
33
Id.
34
Id. at 796.
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to appeal.35
Thus, the Legislature has established the procedure
and rules by which the courts of this state are to assess a sex
offender’s risk level and release that assessment to the public.
As in Reneer, 734 S.W.2d at 794:
(1) the assessment does not
change the judgment already entered against the defendant; (2)
the provisions of the statute set forth the procedure to be
followed by the courts in making the assessment; (3) the
assessment does not add or remove any element of the crime
necessary to convict the defendant; (4) the assessment does not
add or remove any penalty upon conviction; and (5) the assessment
does not address the guilt or innocence of the defendant.
Accordingly, I would hold KRS 17.570 to be
unconstitutional.
In enacting this statute, the Legislature has
abrogated the Supreme Court’s authority in violation of the
separation of powers doctrine.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
A.B. Chandler, III
Attorney General
Elizabeth Shaw
Richmond, KY
Anitria M. Franklin
Asst. Attorney General
Frankfort, KY
ORAL ARGUMENT FOR APPELLEE:
Anitria M. Franklin
Frankfort, KY
35
KRS 17.570.
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