In re Campbell

427 S.C. 183

830 S.E.2d 14

In the MATTER OF the Care and Treatment of Kenneth CAMPBELL, Petitioner.

Appellate Case No. 2016-001566

Opinion No. 27898

Supreme Court of South Carolina.

Heard March 29, 2018

Filed June 26, 2019

Appellate Defender Susan Barber Hackett, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia, for Respondent.

CHIEF JUSTICE BEATTY :

A Lancaster County jury found Kenneth Campbell met the statutory definition of a sexually violent predator (SVP) under South Carolina's SVP Act, S.C. Code Ann. §§ 44-48-10 to -170 (2018). Campbell appealed, and the court of appeals affirmed. In re Care & Treatment of Campbell , Op. No. 2016-UP-198, 2016 WL 2757342 (S.C. Ct. App. filed May 11, 2016). On certiorari, Campbell contends the court of appeals erred in affirming his civil commitment because the State inappropriately impeached the credibility of Campbell's expert witness by introducing evidence of a recent arrest warrant for an unrelated sex offender whom the expert had opined was unlikely to reoffend. We find the admission of testimony about a mere arrest warrant of an unrelated individual in a collateral matter unduly prejudiced Campbell and, therefore, reverse and remand for a new commitment proceeding.

I. Factual / Procedural History

The State referred Campbell to the SVP program due to his four alleged sexual assaults of three minor children with whom Campbell slept in the same house. For two of the assaults, the four-year-old victims recanted, and the State either dropped the charges or declined to press charges. For the remaining two assaults, one of which was committed while Campbell was out on bond for the other, Campbell entered an Alford¹ plea to criminal sexual conduct with a minor in the first degree (CSCM-1st) and pled no contest to committing a lewd act on a child under the age of sixteen. He received an aggregate sentence of twenty years' imprisonment, suspended upon the service of twelve years' imprisonment and three years' probation.

Prior to Campbell's release, the State filed a petition pursuant to the SVP Act seeking Campbell's civil commitment for long-term control, care, and treatment. See S.C. Code Ann. § 44-48-30(1) (defining an SVP as "a person who: (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment"). The trial court made a determination of probable cause and appointed Dr. Marie Gehle to perform a psychiatric evaluation of Campbell. Dr. Gehle diagnosed Campbell with pedophilia but opined he was not at a high risk to reoffend. The State then obtained an independent evaluation from Dr. Ana Gomez.

At the jury trial, Dr. Gomez testified on behalf of the State and was qualified as an expert in psychiatry and forensic psychiatry. Dr. Gomez stated that after interviewing Campbell, conducting seven different psychiatric tests that accounted for various risk factors for reoffending, and examining the pertinent records in his file, she diagnosed him with pedophilic disorder, non-exclusive, indicating he was attracted to children of both sexes. She explained pedophilic disorder cannot be cured but can be managed through appropriate strategies and intervention.

Dr. Gomez testified Campbell's proposed strategies to avoid reoffending—including finding religion and "walking away" from children any time he was around them—were wholly unrealistic. Additionally, Dr. Gomez expressed concern over Campbell's refusal to seek sex offender treatment while incarcerated, which is in itself a significant risk factor for reoffending. Dr. Gomez testified Campbell's pedophilic disorder caused him serious difficulty in controlling his behavior, and his lewd act offense—committed while out on bond for the CSCM-1st offense—indicated his difficulty in controlling his behavior was ongoing.

As a result, Dr. Gomez opined Campbell was extremely likely to reoffend if he was not civilly committed. Further, Dr. Gomez testified the potential risk Campbell posed to future child victims was more imminent because, after his release, Campbell planned to live with his sister, and her grandchildren and great-grandchildren would frequently be sleeping in the same house as Campbell, as had his previous victims. In conclusion, Dr. Gomez testified it was her medical opinion Campbell met the criteria for designation as an SVP and he was in need of long-term control, care, and treatment at a secure facility.

Dr. Gehle then testified on behalf of Campbell and was qualified as an expert in forensic psychiatry. Dr. Gehle stated that after performing a similar interview and review of Campbell's file, she had also diagnosed him with pedophilic disorder, non-exclusive type. Dr. Gehle explained that in coming to her diagnosis, she had used only one of the seven psychiatric tests performed by Dr. Gomez. However, on that test, both doctors scored Campbell in the low- to moderate-risk group for reoffending, which equated to a rate of reoffending of 15.8% in the next five years and 24.3% in the next ten years, approximately the average rate for reoffending for all sex offenders.

Dr. Gehle testified that although she agreed with much of Dr. Gomez's testimony and diagnosis, she disagreed Campbell was likely to reoffend. Dr. Gehle stated not every person convicted of a sex offense posed a high risk to the public upon his or her release, and Campbell's lack of prison referrals or disciplinary problems showed his ability to control his behavior on a day-to-day basis. Dr. Gehle also testified she was less concerned than Dr. Gomez about Campbell living with his sister and young children upon his release because it was unclear to her whether the children would actually spend the night or merely visit while other adult family members were present. Dr. Gehle then opined that, were Campbell to be released, there were safeguards in place to protect the public, such as placing him on the sex offender registry and monitoring him while on probation, including through the use of a GPS anklet. Ultimately, Dr. Gehle concluded that while Campbell suffered from a mental abnormality, there was insufficient evidence to believe Campbell's abnormality made him likely to reoffend, and he therefore did not meet the criteria for designation as an SVP.

On cross-examination, the State questioned Dr. Gehle's exclusive reliance on the results of the single psychiatric test, particularly when Dr. Gomez had testified the test did not account for all of the risk factors associated with sexually reoffending, nor was the test intended by its creators as a stand-alone assessment. Furthermore, at the State's prompting, Dr. Gehle conceded Campbell had "meaningful risk factors" for reoffending, including a dysfunctional coping style, a resistance to rules and supervision, and a refusal to receive mental health treatment unless it was court-ordered. Finally, Dr. Gehle testified Campbell did not have an "ideal relapse prevention plan" due to his failure to receive sex offender treatment and his post-release "access to children" who would sleep in the same house as Campbell, similar to his prior victims. However, Dr. Gehle stated she gave Campbell credit for claiming he would "walk away" from children and not be around them in "that way."

On re-direct examination, Campbell attempted to rehabilitate Dr. Gehle's methodology for evaluating SVPs, emphasizing Dr. Gehle's vast experience in evaluating SVPs and having her reiterate her opinion that Campbell was unlikely to reoffend.

On re-cross examination, the State's attorney asked if Dr. Gehle had ever wrongly opined an SVP candidate was unlikely to reoffend, to which Dr. Gehle responded she did not know. The State's questioning then focused on Dr. Gehle's pre-commitment evaluation of an unrelated sex offender, Michael Thomas. In doing so, the State's attorney handed Dr. Gehle her report on Thomas and requested Dr. Gehle read the portion of the report aloud where she had opined Thomas was unlikely to reoffend and, therefore, should not be civilly committed as an SVP. The State's attorney next handed Dr. Gehle an arrest warrant for Thomas dated approximately six months before Campbell's commitment proceeding and requested Dr. Gehle read portions of the arrest warrant into the record. The arrest warrant stated Thomas was wanted for rape, and his DNA was a match for that of the alleged rapist. The State emphasized Thomas had reoffended within two years of his evaluation by Dr. Gehle and the resultant failure to commit Thomas as an SVP, stating that due to Dr. Gehle's error in opining Thomas should be released from custody, "another woman ha[d] been raped."

During closing arguments, the State's attorney concluded her remarks by reminding the jury that Dr. Gehle had been wrong before in opining other sex offenders were unlikely to reoffend, and that if Dr. Gomez was correct and Dr. Gehle was wrong again, Campbell was going to "get out and ... hurt another kid." Hammering that point home, she stated:

So I leave you with this: You have a person who on more than one occasion [ ] has sexually assaulted children. He takes no accountability [for] what he's done and he hasn't had sex offender treatment and he's refused it when it has been offered. He's going to go live in a house where people are going to allow him to be around children. You heard the testimony. What do you think is going to happen?

At the conclusion of the hearing, the jury found beyond a reasonable doubt that Campbell met the statutory definition of an SVP, and the trial court ordered Campbell's civil commitment. The court of appeals affirmed Campbell's commitment in an unpublished opinion.

II. Standard of Review

In general, the admission or exclusion of evidence is a matter left to the...