Bradley v. State

Counsel

OPINION FILED: May 9, 2018 Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2018 Application for Transfer Denied September 25, 2018, Chelseá R. Mitchell, Assistant Public Defender, Columbia, MO, Attorney for Appellant., Joshua D. Hawley, Attorney General, and Christine Lesicko, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent., Karen King Mitchell, Presiding Judge *444Lester Bradley appeals, following a jury trial, a judgment finding him to be a sexually violent predator and committing him to the Department of Mental Health for control, care, and treatment. Bradley raises eight points on appeal. The first two points challenge the trial court's denial of his motion to dismiss based upon the court's failure to hold a probable cause hearing within 72 hours of Bradley's detention, as required by § 632.489.1 Bradley's third and fourth points challenge the admission of testimony from the State's expert witness Dr. Kimberly Weitl. His fifth point challenges the sufficiency of the evidence to support the jury's determination that Bradley is a sexually violent predator. And his final three points raise constitutional challenges to the Sexually Violent Predator Act (SVPA). Finding no error, we affirm., Following the trial, the jury found Bradley to be a sexually violent predator, and he appealed. Id. at 550. Bradley raised three claims on appeal; he claimed that the evidence was insufficient to support the jury's determination, that the trial 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 that the trial court erred in excluding evidence regarding the MDT assessment. Id. This court addressed Bradley's second claim first, holding that *447there was "no basis for determining that the 72-hour time limit for holding the probable cause hearing [wa]s a jurisdictional prerequisite to proceeding on the State's petition. Rather, it appear[ed] to be mere error, subject to waiver and requiring a showing of prejudice to warrant reversal." Id. at 554. We then addressed the State's claim that Bradley had waived his challenge to the timing of the probable cause hearing and held that "Bradley waived his claim of error by failing to raise a timely objection to the court's noncompliance with the statutory time period." Id. at 555. In a footnote, we stated:, Following remand, the court set the matter for a new trial. On August 26, 2016, Bradley filed a renewed motion to dismiss based upon the court's failure to hold his probable cause hearing within 72 hours of his detention on the petition. In the motion, Bradley again claimed that Randall Schlegel did not represent him at the time Schlegel entered his appearance and waived the 72-hour requirement for the probable cause hearing. Bradley argued that he was prejudiced insofar as "the court could not have found that probable cause existed" if it had held the probable cause hearing at the originally scheduled time because the State's expert was unable to appear at that time, and Bradley surmised that, without the expert testimony, the State would have been unable to establish probable cause and Bradley would have been released. In response, the State argued that Bradley's motion should be denied based upon the law-of-the-case doctrine insofar as the issues raised had been addressed by this court in the first appeal. The trial court denied the motion to dismiss, finding "that at the time, Mr. Schlegel was the attorney of record for Mr. Bradley and did do a proper effect of that consent of that waiver, of that 72-hour period.", At trial, the State's evidence was largely the same as that introduced at Bradley's first trial with the exception that it came in through Dr. Weitl, rather than Dr. Stanislaus. Like Dr. Stanislaus, Dr. Weitl diagnosed Bradley with pedophilia, opined that it constituted a mental abnormality under the definition provided by the SVPA, and determined that Bradley was more likely than not to reoffend if not confined. Dr. Steffan's testimony was also largely the same in the second trial as the first; he diagnosed Bradley with antisocial personality disorder, which he opined constituted a mental abnormality under the statutory definition, but he determined that Bradley's risk of reoffending was not more likely than not. And, pursuant to this court's opinion in the first appeal, Bradley offered testimony from Dr. Greg Markway, a member of the MDT, reflecting the fact that the MDT unanimously voted against a determination that Bradley was a sexually violent predator. After receiving all the evidence, the jury found Bradley to be a sexually violent predator, and the court ordered him committed to the Department of Mental Health for control, care, and treatment. Bradley appeals., In Points VI, VII, and VIII, Bradley argues that the SVPA is unconstitutional in that it violates his rights to due process, equal protection, freedom from ex post facto laws, and freedom from double jeopardy. Because these claims raise constitutional challenges to a Missouri statute, an issue normally reserved for the exclusive jurisdiction of the Missouri Supreme Court, we must determine whether we have jurisdiction to decide these claims., "In determining whether a constitutional claim is real and substantial or merely colorable, [the reviewing c]ourt makes a preliminary inquiry as to whether [the claim] presents a contested matter of right that involves fair doubt and reasonable room for disagreement." Id. (quoting Mo. Hwy. & Transp. Comm'n v. Merritt , 204 S.W.3d 278, 285 (Mo. App. E.D. 2006) ). "If this initial inquiry shows that the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable." Id. (quoting Merritt , 204 S.W.3d at 285 )., Here, as Bradley concedes in his brief, each of the constitutional challenges he raises have been addressed and rejected by the Missouri Supreme Court.3 "Thus, they do not involve fair doubt or reasonable room for disagreement. Rather, they are merely colorable. Accordingly, we have jurisdiction over this appeal." Id., Bradley's first and second points both challenge the trial court's denial of his renewed motion to dismiss based upon the court's failure to hold a probable cause hearing within 72 hours of Bradley's detention on the petition.5 His first point argues that "the trial court lost authority to conduct any further proceedings once it failed to meet the deadline." And his second point argues that the trial court erred in finding that Bradley, through counsel, waived the timing requirement for the probable cause hearing, because Randall Schlegel did not represent Bradley at the time Schlegel consented to the probable cause hearing outside of the 72-hour window. These claims are virtually indistinguishable from those raised in Bradley's *451first appeal and, therefore, are barred by the law-of-the-case doctrine., "The doctrine of law of the case governs successive adjudications involving the same issues and facts." Snelling v. Kenny , 491 S.W.3d 606, 613 (Mo. App. E.D. 2016). "Generally, the decision of a court is the law of the case for all points presented and decided, as well as for matters that arose prior to the first adjudication and might have been raised but were not. " Id. (quoting Walton v. City of Berkeley , 223 S.W.3d 126, 129 (Mo. banc 2007) ) (emphasis added). "The doctrine ensures uniformity of decisions, protects the parties' expectations, and promotes judicial economy." Id. "The law of the case can advance these goals only if it applies nearly all the time, and discretion to disregard it is exercised only in rare and compelling situations." Id., Here, Bradley's Point I raises the same claim of error based upon the same facts as the second point raised in his first appeal.6 See Bradley , 440 S.W.3d at 553 (rejecting Bradley's claim that the court's failure to hold the probable cause hearing within 72 hours of his detention deprived the court of jurisdiction to proceed and holding that "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, "noncompliance does not divest a court of jurisdiction."). The only distinction between the claim raised in his first appeal and that raised in Point I here is that he is now claiming the trial court lacked "authority" to proceed rather than "jurisdiction.", "[T]he decision of a court is the law of the case for all points presented and decided, as well as for matters that arose prior to the first adjudication and might have been raised but were not. " Walton , 223 S.W.3d at 129 (emphasis added). Nothing precluded Bradley from presenting evidence in support of his contention regarding Schlegel's representation at the first trial. He is not now entitled to a second bite of the proverbial apple., In Bradley's third and fourth points on appeal, he challenges Dr. Weitl's testimony as a whole and, specifically, with respect to her statements regarding the conclusions of other experts she relied on in reaching her opinion. Bradley's Point III argues that, because Dr. Weitl authored Bradley's end-of-confinement report, she was barred by § 632.489.4 from serving as a retained expert for the State. Bradley's Point IV argues that Dr. Weitl was improperly allowed to testify to the conclusions of other non-testifying experts in violation of § 490.065 and his right to confrontation. Neither point is meritorious., "We review a trial court's admission or exclusion of expert testimony for abuse of discretion." Pisoni v. Steak 'N Shake Operations, Inc. , 468 S.W.3d 922, 928 (Mo. App. E.D. 2015). "A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. "An appellant bears the burden of proving that the trial court abused its discretion and showing that [he] has suffered prejudice." Id.