In re Quary

50 Kan.App.2d 296

324 P.3d 331

In the Matter of the Care and Treatment of William N. QUARY.

No. 110,178.

Court of Appeals of Kansas.

May 9, 2014.

Review Denied Aug. 14, 2014.

Syllabus by the Court

1. Under K.S.A. 2013 Supp. 59–29a06(c) of the Sexually Violent Predator Act, expert witnesses testifying at a commitment proceeding may base their opinions on hearsay or other inadmissible information if that material is of the sort reasonably relied upon by professionals in their field.

2. Otherwise inadmissible information on which an expert relies in forming his or her opinion under K.S.A. 2013 Supp. 59–29a06(c) may not be admitted as substantive evidence. A factfinder cannot rely on that information—in contrast to the expert opinion itself—to support a verdict or judgment.

3. The hearsay exceptions for business records, K.S.A. 2013 Supp. 60–460(m), and official records, K.S.A. 2013 Supp. 60–460( o ), are discussed and applied.

Ian T. Otte, of Herlocker, Roberts & Herlocker, L.L.C., of Winfield, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and BRUNS, JJ.

ATCHESON, J.

Respondent William N. Quary appeals the judgment of the Cowley County District Court involuntarily committing him as a sexually violent predator following a bench trial. Quary argues—correctly in our view—that the district court improperly handled evidence the State offered through a pair of psychological experts. First, Quary contends the district court should not have considered otherwise inadmissible information the experts relied upon in reaching their conclusions as substantive evidence supporting the State's case. Second, he contends the expert reports themselves should not have been admitted as evidence over his objection and reviewed by the district court as the finder of fact. But the errors are harmless because ample evidence properly considered and admitted supports the judgment, including Quary's admissions and court records from his juvenile adjudications and criminal prosecutions. We, therefore, affirm.

The issues before us present comparatively narrow, interlocking evidentiary questions. We, therefore, dispense with a general narrative of the factual renditions the State and Quary presented during the trial. We discuss particular aspects of the record evidence as they bear on the points on appeal.

I. Sexually Violent Predator Act: General Precepts and Expert TestimonyStatutory Provisions

Under the Sexually Violent Predator Act, K.S.A. 59–29a01 et seq., a person may be indefinitely committed for treatment to a secured facility on the grounds of the Larned State Hospital. The State must prove the individual: (1) has been convicted of or charged with a crime designated as a sexually violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to commit an act of sexual violence because of that abnormality or disorder; and (4) displays serious difficulty controlling his or her dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see K.S.A. 2013 Supp. 59–29a02(a). Although a commitment action is civil rather than criminal, a respondent receives a broad range of procedural protections. The State must prove the required elements beyond a reasonable doubt. K.S.A. 2013 Supp. 59–29a07(a). The respondent has the right to legal representation, to cross-examine witnesses, and to present evidence. K.S.A. 2013 Supp. 59–29a06; In re Care & Treatment of Ontiberos, 295 Kan. 10, 25, 40–42, 287 P.3d 855 (2012) (right to counsel; reversing commitment and remanding under Act where counsel for respondent was ineffective in challenging State's evidence); In re Care & Treatment of Chadwick, No. 104,500, 2011 WL 3795483, at *4 (Kan.App.2011) (unpublished opinion) (acknowledging respondent in commitment proceeding under the Act must be afforded an “opportunity to challenge the State's evidence [and] present evidence of his own”). The respondent may request a jury trial. K.S.A. 2013 Supp. 59–29a06. If adjudged a sexually violent predator, the respondent has the right to appeal that determination. K.S.A. 2013 Supp. 59–29a07(a).

The Kansas rules of evidence generally govern proceedings under the Act. See K.S.A. 60–402 (rules “apply in every proceeding, both criminal and civil, conducted by ... a court in which evidence is produced” unless otherwise provided in a “statute applicable to the specific situation”). Particularly pertinent here, however, the Act modifies the way expert testimony may be presented and received as evidence during commitment proceedings. K.S.A. 2013 Supp. 59–29a06(c). By its express terms, K.S.A. 2013 Supp. 59–29a06(c) rejects K.S.A. 60–456(b), the evidence rule governing expert testimony, to expand the sources of information experts may use in forming their opinions. In material part, K.S.A. 2013 Supp. 59–29a06(c) states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.”

That language is drawn almost verbatim from the version of Federal Rule of Evidence 703 in effect until 2011. (The Federal Rules of Evidence were redrafted in 2011 to make them more comprehensible without altering their substantive effect). See Fed.R.Evid. 703 advisory committee note, 2011 Amendments. Accordingly, federal caselaw is instructive on how K.S.A. 2013 Supp. 59–29a06(c) should be construed. See State v. Prine, 297 Kan. 460, 476–77, 303 P.3d 662 (2013) (court looks to federal authority construing Fed.R.Evid. 413 and 414 to apply comparable provision added to K.S.A. 60–455); State v. Miller, 284 Kan. 682, 690, 163 P.3d 267 (2007) (court reviews federal cases under Fed.R.Evid. 403 to construe similar language in K.S.A. 60–445); cf. In re Patterson, No. 107,232, 2013 WL 2395313, at *10 (Kan.App.2013) (unpublished opinion) (noting Fed.R.Evid. 703 to be “nearly identical” to K.S.A. 59–29a06(c)).

The State's Expert Evidence

Given the issues to be decided in a sexually violent predator commitment action, expert testimony commonly forms the backbone of the State's case. The proceeding against Quary fits that pattern. Everyone agrees Quary has been convicted of a sexually violent crime. The State relied on the expert opinions of Dr. Jane Kohrs, a forensic psychologist employed by a private company providing services to the Department of Corrections, and Dr. Stephanie Adam, a psychologist at Larned State Hospital. Both experts found Quary to have psychological defects satisfying the criteria for commitment under the Act. Each expert prepared a detailed written report outlining the salient historical information on which she relied and the relevant clinical conclusions she reached about Quary. Dr. Kohrs and Dr. Adam separately interviewed Quary as part of their clinical assessments of him. In those interviews, they gathered historical information from Quary and formed diagnostic impressions of him. They also reviewed court records, files from the Department of Corrections, and other documents in arriving at their expert opinions.

Quary opted to have the district court, rather than a jury, decide the case. During the trial, the State offered as exhibits the reports of Dr. Kohrs and Dr. Adam and the documentary materials upon which they relied. Quary's lawyer objected on the grounds that the reports and documents were or contained inadmissible hearsay. The district court overruled the objection and admitted the reports and documents as evidence. On direct examination, the expert witnesses testified briefly and in general terms confirming the findings in their respective reports. Quary's lawyer cross-examined them. The State called another witness and presented additional evidence. Quary testified but offered no countering experts or other witnesses. The district court found Quary to be a sexually violent predator under the Act and involuntarily committed him to the treatment program at Larned State Hospital. Quary has timely appealed that judgment.

II. Standard of Review

The points on appeal address the admission and use of evidence—information on which the State's experts relied in forming their opinions and their reports outlining both that information and their conclusions—despite a contemporaneous hearsay objection from Quary. Relevance and materiality are undisputed, so those considerations do not shape our review. See State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010) (an appellate court reviews de novo a contested determination of materiality); Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002) (admission or exclusion of otherwise material evidence largely rests in district court's sound discretion). The district court's admission of evidence challenged as hearsay is subject to appellate review for abuse of discretion. See State v. James, 48 Kan.App.2d 310, 323, 288 P.3d 504 (2012); Brick Masters, Inc. v. Murray & Sons Const. Co., Inc., No. 107,426, 2013 WL 1729249, at *2 (Kan.App.2013) (unpublished opinion).

A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision “ ‘goes outside the framework of or fails to...