IN THE SUPREME COURT OF FLORIDA

DARYL L. LAVENDER,

Petitioner,

v. Case No. SC01-1977

Fifth DCA Case No. 5D00-1512

STATE OF FLORIDA,

Respondent.________________________________/

ON DISCRETIONARY REVIEW FROMTHE FIFTH DISTRICT COURT OF APPEAL

MERIT BRIEF OF RESPONDENT

CHARLES J. CRIST, JR.ATTORNEY GENERAL

JUDY TAYLOR RUSHASSISTANT ATTORNEY GENERALFla. Bar No. 0438847444 Seabreeze BoulevardFifth FloorDaytona Beach, FL 32118(386) 238-4990 (Phone)(386) 238-4997 (FAX)

COUNSEL FOR RESPONDENT

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 24

ARGUMENTTHE DECISION OF THE FIFTH DISTRICT COURT OFAPPEAL UPHOLDING THE TRIAL COURT’S DENIAL OFPETITIONER’S MOTIONS FOR DIRECTED VERDICT,OR FOR NEW TRIAL, BASED ON CLAIMS THATHEARSAY WAS IMPROPERLY ADMITTED THROUGH THESTATE’S EXPERT WITNESSES IN THIS RYCE ACTCIVIL COMMITMENT PROCEEDING SHOULD BEAFFIRMED

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 49

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 50

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 50

iii

TABLE OF AUTHORITIES

Cases:

Florida Cases:

Cherry v. State, 781 So. 2d 1040 (Fla. 2000),cert. denied, 122 S.Ct. 179 (2001) . . . . . . . . 40-41

Clark v. State, 613 So. 2d 412 (Fla. 1992),cert. denied, 510 U.S. 836 (1993). . . . . . . . . . . . . . 48

Damren v. State, 696 So. 2d 709(Fla. 1995),cert. denied, 522 U.S. 1054 (1993). . . . . . . . . . . . . . 48

Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997). . . . . . . . . . . 30

Finney v. State, 660 So. 2d 674 (Fla. 1995),cert. denied, 516 U.S. 1096 (1996). . . . . . . . . . . . . . 48

Gonzalez v. State, 786 So. 2d 559 (Fla. 2001) . . . . . . . . . . . . . . 40

Kloster Cruise, Ltd. v. Rentz, 733 So. 2d 1102 (Fla. 3d DCA 1999) . . . . . . . 38,39,40

Jenkins v. State, 803 So. 2d 783 (Fla. 5th DCA 2001) . . . . . . . . . . 43

Jones v. State, 612 So. 2d 1370 (Fla. 1992),cert. denied, 510 U.S. 836 (1993) . . . . . . . . . . 40

Lavender v. State, 791 So. 2d 1255 (Fla. 5th DCA 2001) . . . . . . . . . . 25

Lawrence v. State, 691 So. 2d 1068 (Fla. 1997),cert. denied, 522 U.S. 880 (1997) . . . . . . . . . . 48

iv

Lockhart v. State, 655 So. 2d 69 (Fla. 1995),cert. denied, 516 U.S. 896 (1995) . . . . . . . . . . 48

Maharaj v. State, 597 So. 2d 786 (Fla. 1992),cert. denied, 506 U.S. 1072 (1993) . . . . . . . . . . 27

Murray v. Regier, 27 Fla. L. Weekly S1008 (Fla. Dec. 5, 2002) . . . . . 45

Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989) . . . . . . . . 30,31

San Martin v. State, 717 So. 2d 462 (Fla. 1998),cert. denied, 526 U.S. 1071 (1999) . . . . . . . . . . 27

Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA 2000). . . . . . . . . 25,37

Westerheide v. State, 831 So. 2d 93 (Fla. 2002). . . . . . . . . . . . . 37-38

Zack v. State, 753 So. 2d 9 (Fla. 2000),cert. denied, 531 U.S. 858 (2000) . . . . . . . . . . 48

Out-Of-State Cases:

Commonwealth v. Tucker, 502 N.E. 2d 948 (Mass. App. 1987) . . . . . . . . . . 37

In re Detention of Aguilar, 892 P. 2d 1091 (Wash. App. 1995) . . . . . . . . . . . 36

In re Linehan, 557 N.W. 2d 171 (Minn. 1996) . . . . . . . . . . . . . 37

In re Young, 857 P. 2d 989, 994 (Wash. 1993). . . . . . . . . . . . 36

People v. Green,

v

94 Cal. Rptr. 2d 355 (Cal. App. 2000) . . . . . . . . 47

People v. Hubbart, 106 Cal. Rptr. 2d 490 (Cal. App. 2001) . . . . . . . . 36

People v. Mendoza, 96 Cal. Rptr. 2d 431 (Cal. App. 2000), rev. granted, 6 P. 3d 149 (Cal. 2000) . . . . . . . . 47

People v. Otto, 109 Cal. Rptr. 2d 327 (Cal. 2001) . . . . . . . . 46-47

People v. Superior Court (Howard), 82 Cal. Rptr. 2d 481 (Cal. App. 1999) . . . . . . . . 45

State v. Montey, 2000 WL 19749 (Wis. App. 2000) . . . . . . . . . . . . 31

State v. Watson, 595 N.W. 2d 403 (Wis. 1999) . . . . . . . . . . . . . 37

Other Authorities:

Fla. R. App. P. 9.030(a)(2)(A)(V) . . . . . . . . . . . . . 26

§ 90.704, Fla. Stat. (2002) . . . . . . . . . . . 29,30,31,40

§ 394.9155(5), Fla. Stat. (1999) . . . . . . . . . . . 29,41

§ 90.803(8), Fla. Stat. (1999). . . . . . . . . . . . . . . 31

§921.141(1), Fla. Stat. (2002) . . . . . . . . . . . . . . 47

The Sexual Predator: Law, Policy, Evaluation and Treatment, (Anita Schlank and Fred Cohen, eds., Civic Research Institute: Kingston, N.J., 1999) . 32-34

“What We Know and Do Not Know About Assessing and Treating Sex Offenders,” 4 Psychology, Public Policy, and Law 116 (1998) . 34-35

The Sex Offender: Corrections, Treatment and Legal Practice,

vi

(Barbara K. Schwartz and Henry R. Cellini, eds., Civic Research Institute: Kingston, N.J.) . . . . 35-36

1

STATEMENT OF FACTS

Florida Supreme Court Proceedings:

On September 4, 2001, Petitioner, Daryl L. Lavender, filed

a Notice to Invoke Discretionary Jurisdiction in this Honorable

Court. In his notice, Lavender alleged that this Court has

jurisdiction because the order of the Fifth District Court of

Appeal, entered on August 24, 2001, “certified a question” to

this Court. (Notice 1). He specified that jurisdiction rested

upon “Florida Rule of Appellate Procedure 9.030(a)(2)(A)(V).”

Id. That rule provides jurisdiction to “pass upon a question

certified to be of great public importance.” Fla. R. App. P.

9.030(a)(2)(A)(V). In Lavender v. State, 791 So. 2d 1255 (Fla.

5th DCA 2001), the district court certified four questions, being

“the same questions” certified in Westerheide v. State, 767 So.

2d 637 (Fla. 5th DCA 2000), “to be of great public importance.”

791 So. 2d at 1256.

On October 18, 2001, this Court stayed the proceedings in

the instant case “pending disposition of Westerheide v. State,

Case No. SC00-2124 . . ..” After this Court decided

Westerheide, answering all of the questions in the negative,

Lavender’s appellate counsel filed a “Motion For Briefing

Schedule” in which she attempted to distinguish the instant case

from Westerheide, and assert two new issues which she claimed

2

should be reviewed by this Court. One of those issues was a

jury instruction claim, and the other was a hearsay claim.

(Motion at 1, 2).

On December 6, 2002, this Court issued its “Order Postponing

Decision On Jurisdiction And Briefing Schedule.” Lavender’s

brief on the merits was served on January 21, 2003. Respondent’s

answer brief on the merits follows.

5th DCA Proceedings (Case No. 5D00-1512):

Lavender served an “Appellant’s Amended Initial Brief” in

the district court on November 20, 2000. He raised four issues:

1. Hearsay - State’s expert witnesses became mere conduits for

hearsay; 2. Constitutional attacks on Ryce Act; 3. Objection to

testimony on an ultimate legal issue; and, 4. Proposed jury

instructions. The State responded, opposing any relief. On

August 24, 2001, the Fifth District Court of Appeal issued a per

curiam affirmance, certifying to this Honorable Court, the same

four questions certified to be of great public importance in

Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA 2000).

Trial Court Proceedings:

The State’s first witness was Daryl Lavender. (T 71). During

Lavender’s testimony, his conviction in “criminal case CF93-883

. . . September 15th of 1993" for “[l]ewd and lascivious on a

child” was identified, and the court took judicial notice

3

thereof. (T 71-72). When asked about previous arrests for

charges of sexual offenses against a child, Lavender said he has

“been harassed about (sic) the Jacksonville Sheriff’s Department

for 25 years. Let’s just put it like that.” (T 73). When the

“ever been arrested” question was repeated, he said “I have no

convictions . . . of any kind of sex charge whatsoever.” (T 74).

He went on to volunteer that he has “never committed a violent

offense in my life.” (T 74).

Lavender reluctantly admitted that he had been “charged with

an L&L charge” in 1989. (T 74). The State asked “Lewd and

lascivious assault on three children?” to which Lavender said:

“No. It was one child,” whom he identified as “Timothy Holt.” (T

74-75). He then went into detail regarding his version of the

events that led to the charges against him. (T 75).

Lavender said that the kids “chose to skip school” and hang

out with him. (T 75). He “took them to Wendy’s and bought them

lunch. . . . [W]hen they finished their Cokes, there was three

or four hot beers in the back of my car.” (T 75). The children

drank them. (T 75). He claimed he was trying to take beer from

one of the kids when he “put his legs in between my neck and put

me in a headlock.” (T 75). He said he “bit him on the leg is

all it was.” (T 75). He emphatically denied any sexual activity.

(T 75-76).

4

Lavender admitted that he was charged in 1978, maintaining

it was “harassment of the Jacksonville Sheriff’s Department.” (T

77). He said depositions were taken of all of the kids involved.

(T 77). He addressed the jury directly: “[H]e’s trying to make

you think that I’m some kind – I did something. And I didn’t.

Okay? All the kids – I had – they don’t have all the witnesses

here today.” (T 77). He alleged “the depositions from the

children” said he “never did nothing to them. And that’s why the

case was nolle prossed. Okay?” (T 78). He said that his former

attorney, Peter Fryefield, was now a judge, and although he

asked his present attorneys to subpoena him and get the

depositions of the children and give them to the jury, his

“attorneys have failed to do so.” (T 78). He reiterated: “The

case was nolle prossed. It was dropped. . . . There was no

evidence of any kind of wrong-doing by me.” (T 78).

Lavender admitted that “the victim in that case” was “Keith

Davies” and conceded that the “original charge” was sexual

battery. (T 79). He explained that the younger brother of a boy

he hung around with told the police and the parents in the

neighborhood that he “was gay or something.” (T 79). He

dismissed the complaint as “a rumor from this crazy guy that

wanted to get himself out of trouble . . ..” (T 79).

On cross, Lavender admitted that in 1989, he “pled to a

5

misdemeanor battery charge” on the Holt child. (T 80). He added:

“They took the deposition of Timothy Holt. He said: “All he did

was bite me.” And he said we were wrestling or whatever. He

told the truth. And that’s it.” (T 91). Lavender added: “There

was no sex – nothing, any kind of sexual acts, inclinations,

anything with any of them children from myself that day. All I

did was baby-sit them and the incident with the beer and that

was it. . . . I was just kidding. We were wrestling with the

kid. . . ..” (T 81).

The State called Dr. Michael D’Errico, who was accepted as

an expert in “forensic psychology.” (T 82, 85, 87). Dr. D’Errico

“attempted to interview” Lavender on January 10, 2000, but

Lavender refused. (T 87-88). He reviewed “records from the

Florida Department of Children and Families, which included a

presentence investigation report, a detailed case history of

arrests, and specifically his history of arrests with regard to

a lewd and lascivious assault case in 1993, and a brief summary

of a 1989 assault case.” (T 87). He also reviewed “Lavender’s

prison classification file, which included information regarding

his history of adjustment to the prison system.” (T 87). The

doctor “also reviewed medical documents dealing with his intake

psychological evaluation, his performance on those tests, and .

. . an attempt by a prison official to do a sex offender

6

screening” on him. (T 87). Furthermore, he reviewed “a report

received from the State Attorney’s Office in St. Johns County

relative to the 1993 lewd and lascivious assault case.” (T 87).

A month later, he reviewed “additional information” from

“the Department of Children and Families” which included “arrest

reports and summary investigation reports relative to a 1978

sexual battery charge for which Mr. Lavender was arrested and

more detailed information on the 1989 sexual assault charges,

also for which Mr. Lavender was arrested.” (T 88). The State

asked whether “as a result of the information that you

received,” he was “able to reach a conclusion . . . whether . .

. Mr. Lavender suffers from a mental condition that would be

included within the statute.” (T 88). When asked “what,” Defense

Counsel said: “Judge, I object at this time.” (T 88). The

court overruled the objection, commenting “[y]ou can cross-

examine him on it.” (T 88).

Dr. D’Errico testified that Lavender suffers from the mental

condition known as “[p]edophilia, exclusive-type, sexually

attracted to males.” (T 88). That diagnosis is a mental

condition included within the sexual predator statute. (T 89).

When the doctor was asked if he reached a conclusion

regarding whether Lavender “is likely to re-offend,” Defense

7

Counsel said: “Judge, I would object again.” (T 89). The judge

overruled the objection. (T 89). The doctor testified that

Lavender “is highly likely to re-offend.” He said this is true

of all pedophiles “unless receiving some type of treatment.” (T

89).

Dr. D’Errico’s diagnosis of pedophilia is “based totally on

his behavioral history . . ..” (T 89). His history showed “a

sexual interest in teenage prepubescent males.” (T 89). His

prior arrests were important considerations in that diagnosis.

(T 89).

Dr. D’Errico interviewed the victims of the 1989 and 1993

cases. (T 89-90). Although he “had enough information prior to

talking to these victims” to conclude “that he suffers from

pedophilia,” he still spoke with the victims for corroboration.

(T 90). The State then asked: “[W]hat did the victims tell

you?” (T 90). Defense Counsel said: “Judge, we would object.”

(T 90). The judge sustained the objection, stating he can

“report what results he reached from discussing things with the

victim. I don’t think he can repeat the victims’ statement.” (T

90).

The State then asked: “Did the victims confirm with you

essentially the same elements that were contained in the

conviction record?” (T 90). Dr. D’Errico replied: “Yes, sir.”

8

(T 90).

On cross, Dr. D’Errico said he did not talk to the victims

of the 1978 incident and had seen no sworn statement from those

persons. (T 91). However, he “reviewed a fairly detailed police

report . . . of investigation.” (T 92). That report summarized

“statements made by the victim.” (T 92).

Regarding the 1989 case, Dr. D’Errico spoke with the victim

who was bitten by Lavender. (T 93). That victim reported that

Lavender “fondled the penis of another victim.” (T 93).

Regarding the 1993 case, Dr. D’Errico spoke with the victim.

(T 93). That is the case on which Lavender “was sent to prison”

and was the index case for the civil commitment. (T 93-94).

A diagnosis of pedophilia is not dependent on a conviction.

(T 95). Regarding the 1989 case, the State asked: “[W]hat were

the facts in that case from which you drew your conclusion that

sexual activity had occurred?” (T 96). Defense Counsel

objected: “Judge, that calls for hearsay . . ..” (T 96). The

court responded: “No, he can . . . testify to that, . . . the

facts in the case file. He can do that without repeating

statements.” (T 96).

Dr. D’Errico answered the question as follows:

The arrest report in that case . . . reported that Mr.Lavender befriended two 11-year-old boys and one 10-year-old boy in his neighborhood. And on a particularday, those boys skipped school. Mr. Lavender took

9

them riding in his car. He bought a case of beer. Andthe boys were riding around drinking the beer all day.Near the end of the day, Mr. Lavender, . . .physically assaulted one of the boys by biting him onhis buttocks. Shortly thereafter, he is reported tohave fondled the penis of another boy who was in hiscar in the front seat through his pants.

(T 96-97). Dr. D’Errico discussed the incident with the victim

who “confirmed pretty much what the police report said.” (T 97).

The “sexual contact” was specifically confirmed. (T 97).

The State then asked Dr. D’Errico about the police report

on the 1978 incident. (T 97). He replied: “The police reports

on the ‘78 case also involved a similar situation that Mr.

Lavender had befriended several boys in his neighborhood. The

victim in this case was 11 years old;” Lavender “was about 23

years old at that time.” (T 97, 100). Thereafter, Defense

Counsel said: “Your Honor, again, I’d object to hearsay.” (T

97). Lavender interjected: “It was no victims. There was no

case. He’s talking about –-.” (T 97). The court overruled the

objection “because he’s relating what his opinion is based on.”

(T 97).

Dr. D’Errico continued, describing the 1989 incident from

the report:

It involved – reportedly it was a situation where Mr.Lavender had been providing marijuana to thesechildren in the neighborhood. And the victim of thesexual behavior in this case reported to police thathe, Mr. Lavender, at one time unzipped his pants,pulled out the victim’s penis, and performed fellato

1Lavender “was probably over 40 at that time.” (T 100-01).

10

on the victim.

(T 98). Lavender was in his late 30's at this time. (T 100).

The State asked in regard to the 1993 case for “the “facts

. . . as you knew them.” (T 98). Defense Counsel objected “to

the terminology ‘facts’,” and Lavender interjected: “Paul Harris

hasn’t even shown up. Now, how can he –.” (T 98). The judge

sustained the objection to the terminology and said the doctor

could testify to “what he gleaned from the reports.” (T 98).

Dr. D’Errico testified:

The police reports in that case indicated that Mr.Lavender, again, befriended a 14-year-old boy in hisneighborhood, and had been lavishing this boy withvarious treats to include, you know, free marijuana,beer, and had been taking him [to] the movies. On thenight of the offense, he took him out to dinner. Andon the way after dinner, while driving in his car, hemade sexual advances towards the victim, and ended upraping the victim anally before the victim escaped.1

(T 99). “[S]peaking with the victim on the telephone, he

basically confirmed this information.” (T 99). That information

was “factored into” his opinion in the instant case. (T 99).

Dr. D’Errico agrees with the diagnostic manual’s statement

that “[t]he recidivism rate for individuals with pedophilia

involving preference for males is roughly twice that for those

who prefer females.” (T 101). That manual is “considered an

authoritative treatise” in his profession. (T 101). The manual

11

referred to was the DSM-IV. (See T 94).

On recross, Defense Counsel established that the victim of

the 1989 incident with whom he spoke by phone was “Ronnie

Smith.” (T 102). Through Dr. D’Errico, Defense Counsel

established that “three boys” were involved in the 1989 case. (T

102). Mr. Smith was not the one bitten by Lavender; that child

was “Tim.” (T 102).

Defense Counsel asked Dr. D’Errico “what is it that Ronnie

Smith alleged was done to him.” (T 103). The witness clarified

whether Defense Counsel wanted him to “tell you what he told

me?” (T 103). Thereafter, Defense Counsel asked specifically

“what did he allege that he did?” (T 103). The doctor answered:

“He alleged that Mr. Lavender fondled his penis from the outside

of his pants.” (T 103). Lavender interjected: “Well, that’s not

what he told the public defender’s office back in 1989. Where

are they at?” (T 103).

Defense Counsel asked the witness: “So, what he told you now

is that Mr. Lavender fondled his penis on the outside of his

pants?” (T 103). The doctor replied: “Through the outside of

his pants, sir.” (T 103). Lavender interjected: “I was never

charged with it.” He continued to interrupt the proceedings,

and again, the judge had to warn Lavender that he would be

expelled from the courtroom for his disruptive behavior. (T

12

104). Lavender continued: “I’d like to see one of these

witnesses in here talking. I don’t see none of them here at my

face.” (T 104).

Defense Counsel continued to ask the doctor what Ronnie

Smith told him about the incident. (T 104). Dr. D’Errico

replied: “His words to me were that he fondled – “He fondled my

penis.” (T 104). Defense Counsel pressed for even more details,

asking if Ronnie Smith indicated to him where the fondling event

occurred. (T 105). Dr. D’Errico replied: “He told me that . . .

they were in the car. He was sitting in the passenger’s seat.

And the two other boys were sitting in the back seat. And it

actually occurred shortly after the biting incident on Tim. And

they were actually at Tim’s house giving Tim a ride home.” (T

105).

Lavender again interjected, arguing with the witness,

claiming he “is exaggerating.” (T 106). The judge admonished

Lavender for a third time, and said he would exclude him from

the courtroom if he continued with his outbursts. (T 106).

Nonetheless, Lavender persisted in his disruptive behavior,

asking questions of the witness from the table where he sat. (T

107).

Upon Defense Counsel’s directive, Dr. D’Errico read the 1989

arrest report and answered the question: “Actually the arrest

13

report says that the Defendant grabbed all three of the boys by

their penis outside of their clothes.” (T 107). Lavender

addressed his attorney: “You ask him if it is a usual procedure

for them to exaggerate police reports –.” (T 108).

Asked how many counts of “molesting the penis” Lavender was

charged with in regard to the 1989 incident, Dr. D’Errico said:

“Well, actually, there was a . . . grand jury indictment form,

where he was charged with lewd and lascivious or indecent act,

battery, and contributing to the delinquency of a minor. Three

counts.” (T 108). The information Dr. D’Errico had was that he

“pled no contest” to a single count of battery and a single

count of contributing to the delinquency of a minor. (T 109).

At that point, the defense called their psychological

expert, Dr. Jack Merwin, out of order to convenience his

schedule. (T 111-12). Dr. Merwin identified the manual Dr.

D’Errico had referred to as an authoritative treatise and said

“most psychologists and psychiatrists offer diagnoses from” the

DSM-IV. (T 114).

Dr. Merwin “apparently evaluated him some years ago, and .

. . just encountered him for this evaluation yesterday.” (T

115). Dr. Merwin had “insufficient time and insufficient

information to actually come up with a diagnosis . . ..” (T

115). He had “a file provided by the State in terms of the

14

prior history,” but “had none of the documents to review that

the other psychologists had to look at.” (T 115). He declined to

render a diagnostic opinion. (T 115).

Defense Counsel asked him the following hypothetical:

If the evidence before you is that the person hascommitted a sexual act upon a 14-year-old, and thereis (sic) allegations of other acts, but you have notbeen able to substantiate them, would that in and ofitself render you an ability to make the diagnosis ofpedophilia?

(T 116). To which Dr. Merwin replied: “Well, I wouldn’t – I

wouldn’t make a diagnosis if they were unsubstantiated, unless

I had some clear documentation or some – something to convince

me that it in fact happened.” (T 116).

On cross examination, Dr. Merwin testified that in

diagnosing persons arrests are “[c]ertainly” important. (T 116).

He said that he did not have the police reports from the 1978 or

1989 incidents. (T 117-18). However, was aware that in 1978,

Lavender was arrested for charges of a sexual nature, and in

1989, he pled and was convicted after having been arrested on

charges which included sexual conduct. (T 117-18). The victims

in those incidents were between the ages of 10 and 12. (T 117-

18).

Dr. Merwin was asked whether information in the 1989 police

report to the effect that “the officers were told by the three

victims that all three of them were grabbed by their penises”

15

was important to a diagnosis of the sexual disorder, pedophilia.

(T 118). He replied: “Certainly, yes.” (T 118).

Dr. Merwin said he did not have the arrest report on the

1993 case, either, although he had a trial transcript on that

case. (T 118-19). Dr. Merwin acknowledged that the trial

transcript included the victim’s testimony “that Mr. Lavender

had thrown him on the ground, raised him to . . . kneeling

position . . . and raped him from the rear.” (T 119). The

doctor said that the fact that the victim was 14 and the DSM-IV

says sexual contact with children “generally 13 years of age or

younger” is considered in making a diagnosis of pedophilia would

not preclude consideration of the incident with the 14-year-old

child. (T 119). That information would be relevant. (T 119).

On redirect, Dr. Merwin also testified that he could only

“come to a clear diagnosis” if he had some substantiation or

corroboration of the incidents in Lavender’s history. (T 120).

On recross, the doctor said that he would want to talk to the

victims of the incidents, as that “[c]ertainly . . . would be

usual.” (T 120). Moreover, he would want to “review other

documents” because “that would be helpful.” (T 120). He did not

have time to do either in the instant case. (T 120).

The State then called Dr. Jeffrey L. Benoit, who was

admitted as an expert in forensic psychology. (T 121, 124, 130).

16

Dr. Benoit detailed the information he used in evaluating

Lavender, who adamantly refused an interview with the doctor.

That information included DCF records, including records from

The Department of Corrections and the State Attorney’s Office,

records of arrest history, investigations done by the probation

office, three arrest reports involving sexually inappropriate

behavior with children, and disciplinary reports from the DOC.

(T 133). He reviewed records from DOC reflecting “attempts to

get him into sex offender treatment, which he refused every

time.” (T 133). At one point, Lavender interjected: “I’m not a

sex offender, sir. So, why would I need treatment.” (T 135).

When Lavender entered “the examination room,” where Dr.

Benoit planned to interview him, he was “very hostile, yelling,

threatening to make a fool of me if I ever recommended long-term

hospitalization for him.” (T 134). Lavender interrupted, but

the witness continued: “So, after about eight minutes, he made

one last threat and left. He stormed out of the room and that

was the end of that.” (T 134-35). Lavender again interrupted.

(T 135).

The doctor said the arrest reports and the criminal history

and time in the prison system was very important. (T 135). It

was clear that Lavender was “having adjustment problems in a

very structured environment” that rewards one who obeys the

17

rules with a significantly reduced sentence. (T 135). Lavender

“had trouble with that.” (T 135). In fact, Lavender was

regarded “a threat to the security of the [penal] institution.”

(T 135).

Lavender repeatedly interrupted with outbursts,

protestations, and accusations. (See, e.g., T 66, 90, 97-100,

103-08, 118, 135, 136, 137, 139, 140, 141, 144). The State

asked Dr. Benoit what offenses he considered in his evaluation

and diagnosis of Lavender. (T 136). Dr. Benoit responded with a

detailed report of each of the three incidents, 1978, 1989, and

1993. (T 136). There was no objection whatsoever, much less a

hearsay objection, to the question or his extensive, detailed

testimony. (T 136-39).

Dr. Benoit said that in the 1978 incident, three children,

ages 10 to 12 were involved. (T 136). Two of them were

brothers. (T 136). Lavender provided them with marijuana, and

smoked it with them “at least 12 times.” (T 136). All three

boys reported that Lavender rubbed and fondled their penises at

various times. (T 136-137). Lavender asked the oldest child,

Robert, age 12, “to fellate him, . . . but the child refused .

. ..” (T 137). Lavender “fellated” Keith, who was the youngest

child, age 10. (T 137).

Regarding the 1989 offense, Dr. Benoit “spoke to two of the

18

three victims, Ronnie, who was 11 years old at the time, and

Timothy, who was also 11. (T 137, 139). They reported that

Lavender “was providing them with beer,” and that “he was

grabbing Zeb’s penis outside his clothing.” (T 137). Zeb was

also 11. (T 137).

Ronnie reported two incidents where Lavender touched him

sexually. (T 137-38). Once, he “had this child put his head on

his lap and . . . was stroking his head and rubbing down his

body.” (T 138). The other occurred when Lavender put “the

child’s head down in his own lap, so his father wouldn’t see

him, and . . . he rubbed his hair, and then went down his body

until he got to his crotch.” (T 138). Ronnie reported that

Lavender “stayed there . . . for about a minute and a half,” and

the boy “became afraid.” (T 138). When Lavender suggested he

“could come and live with me and I’ll take care of you,” the

child said “okay,” to put Lavender off guard and bolted. (T

138). The child hid in the woods while Lavender searched for

him, but eventually made his way home. (T 138-39).

Timothy reported to Dr. Benoit that he and the other boys

were in the car with Lavender, and they began “to wrestle.” (T

139). Lavender “reached over and started stroking the leg of

Ronnie . . ..” (T 138). Lavender bit Timothy on the buttocks,

so severely that the child “could not go [to] school . . .

19

because he couldn’t sit, and he ended up telling his parents

that night.” (T 139).

Dr. Benoit made what he called “a Freudian slip,” referring

to the victim of the third incident as “Poor Paul.” (T 140). He

explained that he was thinking how “these crimes had gotten more

serious;” they had “gone from simple fondling to biting a

child.” (T 140). Then, came the incident with Paul Harris,

“[t]he level of violence was increasing,” and in the doctor’s

“opinion, the ‘93 crime was quite aggressive” and was the most

violent. (T 140, 142).

After many, many interruptions and disruptive behavior from

Lavender, the judge again warned him that he would be removed,

if any more such incidents occurred. (T 142).

Dr. Benoit continued that while in prison, Lavender

“received a number of those warnings to behave himself,” and

demonstrated “antisocial behavior in prison . . . even though

there’s severe consequences for it.” (T 143). Although

Lavender would not speak with Dr. Benoit, there was a release

plan on file at the prison which called for him “to live with

his stepfather” upon release. (T 143). However, the stepfather

had written a letter to the department, stating that Lavender

“was not welcome to return to his home for any reason due to the

verbal threats.” (T 144). Lavender interjected: “Who cares?” (T

20

144).

When asked whether the doctor had concluded within a

reasonable degree of medical certainty whether Lavender had a

condition included under the Act, Defense Counsel objected

because it “calls for a conclusion.” (T 144). The court

overruled the objection, and permitted “the opinion to be

offered.” (T 144). Dr. Benoit testified that Lavender “meets

the diagnostic criteria for pedophilia. . . . And he also has a

very severe personality disorder.” (T 145). Lavender’s

pedophilia was “exclusively to male children.” (T 145). The

diagnosis of attraction to males was important because “men who

are sexually attracted to male children tend to have a chronic

condition. That is, it’s hard to alter. . . . This is there all

the time, and that they tend to do these crimes again about

twice as often as people who are offend[ing] against little

girls.” (T 145). He cited to professional “literature” in

general, and the DSM-IV diagnostic manual in specific, in

support of this statement. (T 145). Dr. Benoit opined that

“Lavender is highly likely to re-offend if he does not get in-

patient sex offender treatment.” (T 146).

Defense Counsel began cross examination by inquiring whether

Dr. Benoit had spoken to any of the three victims from the 1978

events. (T 146). Dr. Benoit testified that the fact that the

21

crimes in 1989 and 1993 were “quite similar to the one in ‘78"

provided some corroboration of the 1978 police report. (T 148).

Defense Counsel asked which victims of the 1989 incident the

doctor spoke to. (T 148). He asked Dr. Benoit about the details

of his conversations with the victims. (T 148-49). Counsel drew

out specific details which had not before been mentioned, such

as that Ronnie said “Lavender rubbed his penis on the top of his

clothes . . . in a secluded . . . wooded area” and that

“Timothy reported that . . . Ronnie got touched.” (T 149).

In Dr. Benoit’s experience, some prisoners participate in

sex offender treatment and others do not. (T 150-51). One reason

suggested for not participating is that they sometimes become

targets for violence by other inmates. (T 151). The doctor

agreed that being in fear of physical violation in the event of

participation “would be a good reason” not to participate. (T

151).

Dr. Benoit testified that most prisoners “say they are

innocent,” but still “conform their behavior to the rules of the

institution.” (T 151-52). Only three out of one hundred and

twenty prisoners being evaluated for potential Ryce Act

commitment “refused to be evaluated.” (T 152). Out of those

three, Lavender “was the most hostile . . ..” (T 152).

Regarding the 1993 crimes, Dr. Benoit spoke with the victim,

22

who gave him a version of events that “was entirely consistent

with the record, and when I started looking for symptoms of –

that would be related to that type of a crime, this young man

had a number of symptoms. He looks like he’s been damaged,

traumatized.” (T 157-58). When repeatedly pressed about an

absence of medical verification of penetration, Dr. Benoit said:

I doubt if anybody would do that. It was anal sodomy and that’s

very difficult to – sphincter muscles stretches so much, it’s

very difficult to find on a medical examination.” (T 158).

Moreover, Lavender was convicted of the 1993 sexual offense

after a jury trial. (T 161). The 1993 victim’s account to Dr.

Benoit was “[h]ighly consistent with the facts” he had reviewed

about that crime. (T 161).

The State rested. (T 163). Defense Counsel moved for a

directed verdict on the authority of “Malcowitz versus Benton,

cited at 652 Southern Second, 1995 case . . . that an expert may

not . . . testify as to the hearsay evidence from witnesses.” (T

164). Lavender complained that the victim of the 1993 crime was

“local” and could have been brought in to testify. (T 164). The

court denied the motion. (T 165).

Turning to the defense case, Defense Counsel announced that

Lavender “wishes to testify.” (T 165). His attorney made it

clear that his doing so was against their recommendation. (T

23

165-66). Lavendar insisted on “testifying.” (T 166). Defense

Counsel introduced “these misdemeanors in Duval County” into

evidence. (T 167). Lavender attempted to introduce two pictures

of the 1993 victim, Paul Harris, into evidence. (T 168). The

State “strongly object[ed], and the judge sustained the

objection. (T 168).

Lavender testified. (T 171). He admitted that he hung out

with Craig Davies, and they “used to drink, smoke pot, whatever

. . ..” (T 172). Craig’s brother, Keith “filed charges on me .

. ..” (T 172). He said he allowed these children to hang around

with him “because the father and mother had been divorced,” and

“there was allegations . . . that the child’s father had

molested the child . . ..” (T 172-73).

Lavender said: “I don’t have a specific attraction to a

child.” (T 173). He followed with: “My attraction stems from a

personality disorder that develops in a child, like, at puberty

. . .. . . . [T]hat’s my attraction.” (T 173). Lavender

explained that he is attracted to boys who begin to act

“feminine,” when they reach the approximate age of 12. (T 173).

He denied that the attraction was “sexually.” (T 173). He said

that these children “used to act gay and feminine, and I used to

allow them to be around . . . so people started rumors saying

that I was having some sort of sex with them, just because they

24

act feminine.” (T 174).

Regarding the 1978 events, Lavender said that the younger

boy, Keith, got jealous of the relationship he had with the

older boy, Craig. (T 174). This was because the “two brothers”

had “some kind of sexually (sic) together.” (T 174).

Lavender said “[t]he 19878 (sic) event never happened.” (T

175). He was riding around in his car with “this kid, Craig, in

the back . . . with me.” (T 175). Craig was “12 or 13 years

old.” (T 175). Craig’s mother “was running around” and did not

feed the children, so he let Craig hang out with him. (T 175-

76). Lavender alleged she knew Craig was smoking pot. (T 177).

Lavender went on at great length, telling his version of

events which boiled down to the children, the parents, the

police, and virtually everyone were out to get him for various

reasons. (T 176-180). Going into the details of the 1989

events, he admitted that he “bit the one kid on the butt . . ..”

(T 181). He described the 1993 events as “a seriously

complicated incident.” (T 182).

Lavender described himself as “a totally responsible person”

who “can tell a sexually abused child.” (T 182, 193). He first

met Paul Harris when he and another kid were “running around .

. . with no clothes on -- just about no clothes on.” (T 183).

Claiming “immediately I get protective about children . . .,” he

25

approached the boy. (T 184). Lavender said the child came to

his door the next morning, and he was “just dealing with this

child, I just knew that this child needed some kind of – he had

some serious psychological problems.” (T 185). Lavender said he

felt “there was some kind of sexual abuse going on with this kid

right from the very start.” (T 185). So, he “put this kid in

some kind of . . . protective, like, custody.” (T 186).

The boy’s mother “was never home,” and “[t]hese kids were

left to run whatever, with no food, no money, no nothing.” (T

186). Lavender said he “knew there was some kind of problem

with this kid, because he was a mental wreck.” (T 186). He

added: “I got pictures. I took pictures of this one.” (T 186).

He went on to tell the jury that Paul Harris “had been

sexually active with one of the other alleged witnesses.” (T

186). He said the child told him “he was raped by his father.”

(T 186). His “heart went out to this kid,” and all he did was

“provide some kind of healing relationship for the kid . . .

automatically.” (T 187). Lavender testified: “I just have a

habit of just doing some kind of – it heals – when a kid is

raped, I know from my first relationship, that – Paul Harris had

an attraction to an older guy.” (T 187). Lavender said he

“established a total loving relationship with the kid is what I

did. Okay? Like he was my own kid is exactly what I did.” (T

26

187).

Lavender admitted that Paul Harris “told the jury that I

raped him.” (T 188). Lavender denied it, but admitted that he

“was in a motel room with the boy” on the relevant date. (T

188). Lavender said the child told him that he had sex with

another boy his age and with his younger brother. (T 189-90).

Lavender told the jury: “I have never done any kind of violent

sexual act to anything, anyone, at no time, at any time in my

life. And all you have to do is look at my record.” (T 191).

The Defense rested. (T 192). A motion for judgment of

acquittal based on the only proof of the crimes being hearsay

was made and denied. (T 204).

The jury found Lavender to be “a sexually violent predator.”

(T 235).

SUMMARY OF ARGUMENT

This Court should affirm the decision of the district court

of appeal in this case. There is no basis for Supreme Court

jurisdiction. Moreover, the claim presented for review was not

preserved below. Neither does the claim have any merit. The

hearsay at issue was admitted as part of the basis of the

opinions of the mental state experts, which is authorized by

27

Florida Statute Section 90.704. In addition to the testimony of

the experts at trial, professional treatises and case law from

Florida and other states support the admission of such evidence.

Moreover, much of it was otherwise admissible, apart from

Section 90.704, and had an indicia of reliability which

supported its admission. The subject statute specifically

provides for the admission of such evidence at the civil

commitment trial. This provision is similar to that found in

Florida’s death penalty scheme. The provision authorizing

hearsay in civil commitment proceedings under the Ryce Act

comports with the due process requirements applicable to such

proceedings. Finally, the evidence was not more prejudicial than

probative. Precluding such evidence would be contrary to

Legislative intent and would undermine the legitimate and

compelling goal of protecting the public from violent sexual

predators.

28

ARGUMENT

THE DECISION OF THE FIFTH DISTRICT COURT OFAPPEAL UPHOLDING THE TRIAL COURT’S DENIAL OFPETITIONER’S MOTIONS FOR DIRECTED VERDICT,OR FOR NEW TRIAL, BASED ON CLAIMS THATHEARSAY WAS IMPROPERLY ADMITTED THROUGH THESTATE’S EXPERT WITNESSES IN THIS RYCE ACTCIVIL COMMITMENT PROCEEDING SHOULD BEAFFIRMED.

Jurisdiction:

The State suggests that while this Honorable Court may have

discretionary jurisdiction of this case because questions of

great public importance were certified by the district court,

same should not be exercised in favor of review where none of

the questions are argued in the initial brief. On September 4,

2001, Lavender filed a Notice to Invoke Discretionary

Jurisdiction in this Court, alleging jurisdiction based on the

district court’s order issued on August 24, 2001. He specified

that jurisdiction rested upon “Florida Rule of Appellate

Procedure 9.030(a)(2)(A)(V);” that rule provides jurisdiction to

“pass upon a question certified to be of great public

importance.” Fla. R. App. P. 9.030(a)(2)(A)(V). In Lavender v.

State, 791 So. 2d 1255 (Fla. 5th DCA 2001), the district court

certified four questions, being “the same questions” certified

in Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA 2000), “to

be of great public importance.” 791 So. 2d at 1256.

29

Moreover, there is no special reason why this Court should

exercise jurisdiction over an admission of hearsay issue. Such

matters are routinely handled by the district courts of appeal.

Unless and until a conflict develops among those courts, they

should be trusted to handle the issue as they normally do.

Lavender has offered no compelling reason to depart from the

established manner of handling such cases. Therefore, the State

contends that this Court should decline to exercise jurisdiction

over the instant hearsay claim, and should dismiss this case

forthwith.

Preservation:

The State submits that the hearsay issues raised herein are

not preserved for appellate review. In the trial court, Lavender

filed a motion in limine regarding hearsay. (R 150). Therein, he

asserted that the provision authorizing hearsay in the Ryce Act

was not sufficient to permit the hearsay because this Honorable

Court had not adopted it, which made it “an unconstitutional

infringement of the separation of powers doctrine.” (R 151).

Although it stated that “hearsay is not admissible unless it

falls into an exception enumerated in Sections 90.803 or 90.804

. . .,” the motion made no reference to section 90.704, and

raised no claim that the hearsay was not admissible as the basis

of the mental state experts’ opinions. (R 151). Neither was

30

there any meaningful claim based on due process raised in the

motion. (R 150-52).

Moreover, at the time the hearsay was testified to, there

was no objection on the basis set out in the motion in limine.

Such a motion does not preserve an error of this nature for

appellate review in the absence of a contemporaneous objection

when the evidence is offered at trial. See San Martin v. State,

717 So. 2d 462 (Fla. 1998); Maharaj v. State, 597 So. 2d 786,

790 (Fla. 1992).

Indeed, at the time Dr. D’Errico was asked what conclusion

he reached regarding Lavender’s mental condition, Defense

Counsel’s objection was a barebones one, i.e., “I object at this

time.” (T 88). The court overruled the objection, commenting

that the defense could “cross-examine him on it.” (T 88).

Later, when the doctor was asked for his conclusion regarding

likelihood of reoffending, the objection was another barebones

one, i.e., “I would object again.” (T 89). Still later, when

the State asked the doctor what the victims told him in regard

to the offenses, the objection was “Judge, we would object.” (T

90). The State submits that these barebones objections were

insufficient to preserve the issue raised in this Court for

review.

Still later, the State asked about the facts from which the

31

doctor reached his conclusion that sexual activity had occurred.

(T 96). Defense Counsel objected: “Judge, that calls for

hearsay . . ..” (T 96). The court replied that the witness can

testify to what he considered “in the case file . . . without

repeating statements.” (T 96). Defense Counsel made no further

objection, and appears to have acquiesced in the ruling that the

expert could report the basis of his opinion without making

direct quotes.

Later, when the doctor stated that the police reports of the

1978 case indicated that the victim was 11 years old, Defense

Counsel objected “again, . . . to hearsay.” (T 97). The court

overruled the objection - which was not made until the answer

had been given - “because he’s relating what his opinion is

based on.” (T 97). No further, or specific, objection was made.

On cross examination, Defense Counsel clearly, specifically,

and intentionally elicited direct quote testimony from the

witness. (T 103). He began with: “[W]hat is it that Ronnie

Smith alleged was done to him.” (T 103). Dr. D’Errico clarified

whether he wanted him to “tell you what he told me?” (T 103).

Defense Counsel responded: “[W]hat did he allege that he did?”

(T 103). The doctor answered: “He alleged that Mr. Lavender

fondled his penis from the outside of his pants.” (T 103).

Defense Counsel continued to press for exact allegations, and

32

Dr. D’Errico replied: “His words to me were that he fondled -

“He fondled my penis.” (T 104). Defense Counsel pressed for even

more details, where they were, who was present, what happened

afterwards. (T 104-05). Dr. D’Errico replied: “He told me that

. . . they were in the car. . . ..” (T 105). Thereafter,

Defense Counsel asked for specific information from the arrest

report of the 1989 incidents, to which the doctor responded:

“Actually the arrest report says that the Defendant grabbed all

three of the boys by their penis outside of their clothes.” (T

107). Defense Counsel also pressed for specific information from

the grand jury indictment form. (T 108). Thus, the State

submits that by this cross examination, insisting on direct

quotes and specific statements in the documents or from the

victim(s), the defense waived any hearsay objection it had

otherwise made to the subject evidence.

Moreover, there was no hearsay objection made to Dr.

Benoit’s testimony which followed that of Dr. D’Errico and

Defense Expert Dr. Merwin. The State submits that the failure

to make a hearsay objection to Dr. Benoit’s testimony further

indicates that a waiver of the hearsay objection occurred.

Finally, Dr. Benoit’s testimony was more detailed and

arguably more damaging than that of Dr. D’Errico. As a result,

the failure to object to the hearsay during his testimony

33

rendered the objected-to testimony of Dr. D’Errico harmless at

best because it was merely cumulative to the unobjected-to

testimony of Dr. Benoit. Merits:

The testimony of the expert witnesses, Dr. D’Errico and Dr.

Benoit, was properly admitted at trial. The law has long been

that experts are permitted to rely on otherwise inadmissible

evidence, including hearsay, when such matters are of a type

reasonably relied upon by experts in the field. Section 90.704,

Fla. Stat. (2002). Second, the sexually violent predators act,

in §394.9155(5), Fla. Stat. (1999), specifically provides that

hearsay evidence is admissible in proceedings thereunder “unless

the court finds that such evidence is not reliable.”

The two psychologists who testified for the State, as well

as the one who testified for the defense, Dr. Merwin, detailed

the types of matters upon which they base their opinions in such

matters. All relied on the same types of materials as the basis

of their professional opinions. These included police reports,

prison documents and reports, criminal history, trial

transcripts and other court documents, including convictions,

and interviews with Lavender’s victims. While Dr. Merwin did

not complete an evaluation due to time constraints, he testified

that the subject materials are proper and relevant materials

which should be, and usually are, considered in making a

34

diagnosis under the Act. (T 115-20). Moreover, during his case-

in-chief, Lavender, himself, urged the jury to examine and

consider his record. (T 191).

A. Opinion Testimony Including Hearsay Under § 90.704

Section 90.704, Fla. Stat., provides:

The facts or data upon which an expert basesan opinion or inference may be thoseperceived by, or made known to, the expertat or before the trial. If the facts ordata are of a type reasonably relied upon byexperts in the subject to support theopinion expressed, the facts or data neednot be admissible evidence.

As a rule “experts are generally permitted to express opinions

which are based, at least in part, upon inadmissible

information.” Riggins v. Mariner Boat Works, Inc., 545 So. 2d

430, 431-32 (Fla. 2d DCA 1989). See Erwin v. Todd, 699 So. 2d

275, 277 (Fla. 5th DCA 1997). The exception to that general rule

“prohibits the use of expert testimony merely to serve as a

conduit to place otherwise inadmissible evidence before a jury.”

Id. at 432. In Riggins, that prohibition was applied in the

context of (a) a piece of evidence which had previously been

ruled inadmissible due to its unreliability; and (b) a case in

which that unreliable and otherwise inadmissible evidence

constituted the sole basis for the expert’s ultimate opinion.

Id.

35

In the instant case, the opinions of the experts were

predicated upon a wide variety of evidence, much of which was

not hearsay at all. Moreover, much of that material was

admissible pursuant to other hearsay exceptions had the State

wanted to introduce it at trial. With the exception of the

convictions, the materials were relegated to a role in the

diagnosis made by the experts and served as a part of the basis

of their opinions.

Records from the Department of Corrections or Department of

Children and Families, regarding Lavender’s behavior while in

the custody of those departments would be admissible under the

hearsay exception for public records. See § 90.803(8), Fla.

Stat.; State v. Montey, 2000 WL 19749 (Wis. App. 2000)[state DOC

records properly admitted at sexually violent predator

commitment trial under public records exception to hearsay

rule]. The most significant point, however, is that under §

90.704, experts may rely on facts or data which “are of a type

reasonably relied upon by experts in the subject to support the

opinion expressed.” Both of the State’s experts relied upon

those types of materials, and the defense expert agreed that

those materials were certainly important and the type usually

relied upon. The State submits that this is prima facie

evidence that the records relied upon herein “are of a type

36

reasonably relied upon by experts in the subject . . ..”

Moreover, there is an extensive body of literature, both

academic and judicial, reflecting that experts routinely rely on

such materials in commitment cases, as well as in other similar

circumstances. In addition to the DSM-IV, which is a primary

diagnostic tool routinely used in the mental state profession,

a number of published works are often consulted, especially in

regard to sexual predators. One of them, a treatise, The Sexual

Predator: Law, Policy, Evaluation and Treatment (Anita Schlank

and Fred Cohen, eds., Civic Research Institute: Kingston, N.J.,

1999), contains a chapter entitled “The Forensic Evaluation of

Sex Offenders in Civil Commitment Proceedings” [hereinafter

“Hoberman Treatise”]. Therein, the author, Harry M. Hoberman, a

clinical and forensic psychologist on the faculty of the

University of Minnesota Medical School, details the materials

which an evaluating mental health professional should review and

consider. (See Appendix A). Dr. Hoberman states that it is a

basic “principle of forensic psychological evaluations” to

review “all relevant records made available for the purposes of

the evaluation and report.” Hoberman Treatise, Chapter 7, at 7-

11. Furthermore, “[t]he types of records that should be made

available to an evaluator include,” although they are not

limited to:

37

Criminal investigation reports, interviewswith both offenders and victims about sexualoffenses, including those that remainallegations and those that result inconvictions;

Mental health records and previousassessments, including actual test resultsor interpretive reports;

Legal proceedings where charged sexualoffenses were adjudicated;

Pre-sentence investigations, parole, andprobation reports and records;

Correctional system records, including thosepertaining to education, work, generalmental health, medical, discipline,disposition plans and specific sex offenderevaluations and treatment records; and

Juvenile records of criminal behavior andcorrectional and treatment experiences,particularly if a history of juvenile sexoffending exists.

Id. at 7-12. “[T]he records can be critical to the determination

of a respondent’s sexual offending history and the presence of

psychiatric conditions; they are also essential for providing

the basis . . . a determination of the relative probability of

sexual reoffending.” Id.

Moreover, documentary history takes on an important role,

as a red flag for possible falsehoods by the defendant. Id. at

7-22, et seq. It also serves to highlight psychologically

significant minimizations or rationalizations contained in the

38

defendant’s version of physical and/or emotional events. Id.

Absent such documentation, the expert would be limited to “self-

reporting” by the interviewed person - one who has an obvious

interest in falsifying events to manipulate the evaluation.

In addition to documentary records, the experts conducting

forensic evaluations should rely on information from “collateral

sources” as well. Id. at 7-12. “Collateral information is

usually obtained from persons who have varying degrees of

familiarity with the party, particularly in capacities that

relate to the psychological questions at hand.” Id. at 7-13.

The forensic evaluation of PPSPs almostalways involve substantial amounts ofrecords, which are, in effect, collateralsources. However, the evaluator may feelthe need to contact particular individuals,including victims, treatment providers, andcorrectional case managers orparole/probation officers to obtainadditional information or clarifications ofsuch material in the records.

Id. at 7-13 (emphasis added).

Similar points are made by mental health professionals,

Judith V. Becker, a psychologist on the faculty of the

University of Arizona, and William D. Murphy, with the

Department of Psychiatry of the University of Tennessee, in

their article, “What We Know and Do Not Know About Assessing and

Treating Sex Offenders,” 4 Psychology, Public Policy, and Law

39

116 (1998)[hereinafter “Becker/Murphy Treatise”]:

Guidelines for assessing sex offendersstrongly advise that the clinician collectcollateral material as part of theassessment process before evaluation.Because of the problem of denial amongoffenders, it is very important that anassessor attempt to gather information frommore than just the offender. Generally,sources of data are victim statements,police reports, previous mental health andmedical records, juvenile and adult criminalrecords, and probation or parole reportswhen available. The key part of anyassessment of an offender is the collectionof a detailed psychosocial and psychosexualhistory. The psychosocial history includesfamily, medical, criminal, and mental healthhistory in addition to history of substanceabuse. . . .

Becker/Murphy Treatise, at 121-22. (See Appendix B). Yet another

psychologist, Michael Dougher, the Chairman of the Psychology

Department of the University of New Mexico, makes the same point

in another treatise, The Sex Offender: Corrections, Treatment

and Legal Practice (Barbara K. Schwartz and Henry R. Cellini,

eds., Civic Research Institute: Kingston, N.J.)[hereinafter

“Dougher Treatise”](See Appendix C). In Chapter 11, “Clinical

Assessment of Sex Offenders,” Dougher states:

Clinical interviews are by far the mostcommonly used assessment procedure. It mayalso be the most important. However, it isimportant to remember that sex offenders arenotoriously unreliable and deceptive intheir verbal reports, and all information soobtained must be viewed with skepticism. In

2 The same point is made in Maletzky, Barry and McGovern, Treatingthe Sexual Offender (SAGE Publications 1991), where the authors assertthat the therapist should conduct “interviews with the victim(s), iffeasible,” and try to “gain as much material as possible.” Id. at 39.They should review “police reports, victim statements, past criminalrecords, collaborating evidence, presentence investigation reports,medical reports, prior psychological evaluations, and any other relateddocuments that have already been accumulated by the police, mentalhealth care providers, or the defendant’s attorney. . . .” Id.

40

this regard it is useful to obtain as muchcollateral information as possible whenconducting an interview. Such informationincludes police reports, arrest records, anyprevious psychological and medical reports,previous statements made by the offender,and any information that can be obtainedfrom others who know the offender. Theinformation obtained can then be used tocorroborate the offender’s statements in anattempt to assess their veracity andreliability or to confront the offender whendiscrepant information is uncovered.

Dougher Treatise, Chapter 11, at 11-6 - 11-7.2

Thus, it is clear that the types of materials to which

Lavender objects are those which specialists in the field

typically rely upon. This is further corroborated by numerous

judicial opinions emanating from sexually violent predator

commitment cases across the country. See, e.g., People v.

Hubbart, 106 Cal. Rptr. 2d 490, 498 (Cal. App. 2001)[two mental

state experts for each side said their evaluations included a

review of the man’s history and records]; In re Young, 857 P. 2d

989, 994 (Wash. 1993)[State expert testified as to Young’s

41

mental condition and dangerousness “[b]ased upon a records

review.”]; In re Detention of Aguilar, 892 P. 2d 1091, 1092-93

(Wash. App. 1995)[expert testimony on likelihood of recidivism

was “based on police reports (including statements of victims),

documents from the Department of Corrections, progress reports

from the SC, psychological test data from the SCC, and

diagnostic interviews during Mr. Aguilar’s detention at the

SCC.”]. See also State v. Watson, 595 N.W. 2d 403 (Wis.

1999)[psychologist could render opinion based on otherwise

inadmissible evidence such as victim hearsay statements in a PSI

report]; In re Linehan, 557 N.W. 2d 171, 176 (Minn.

1996)[“Expert concluded from written records that Linehan meets

the criteria for APD, paraphilia . . . and voyeurism. . . .”];

Commonwealth v. Tucker, 502 N.E. 2d 948 (Mass. App. 1987)[expert

opinion at commitment trial could be based on otherwise

inadmissible evidence].

Moreover, it is clear from the district court’s opinion in

Westerheide v. State, 767 So. 2d 637, 641 (Fla. 5th DCA 2000)

that the experts’ diagnoses therein “were based on consideration

and review of extensive sources of information including the

facts and circumstances surrounding the underlying offense for

which the appellant was convicted, personal interviews with the

appellant, police reports, reports from the Department of

42

Corrections, . . . interviews with the victim, the appellant’s

father, and the appellant’s friends . . ..” In Westerheide v.

State, 831 So. 2d 93, 97 (Fla. 2002), this Court said:

During the trial, the State presented testimony fromtwo expert witnesses who diagnosed Westerheide asbeing a sexual sadist and having an antisocialpersonality disorder. The experts based theirdiagnoses on the facts and circumstances surroundingthe underlying offense for which Westerheide wasconvicted (lewd and lascivious assault on a child andsexual performance by a child), personal interviewswith Westerheide, police reports, reports from theDepartment of Corrections, correspondence betweenWesterheide and other individuals, videotapes of thesex acts between Westerheide and the victim of theunderlying offense, interviews with the victim andWesterheide’s father and friends, Westerheide’s diary,and tests administered by the experts.

This Court went on to reject all of Westerheide’s constitutional

challenges to the Ryce Act, utilizing the testimony of the

experts, based on the foregoing materials and sources of

information, to “conclude that the evidence bears out

Westerheide’s serious difficulty in controlling his behavior.”

831 So. 2d at 109.

In Kloster Cruise, Ltd. v. Rentz, 733 So. 2d 1102 (Fla. 3d

DCA 1999), the court held that “the trial court acted within its

discretion in allowing the expert,” who testified as to “weather

data from the National Climatic Data Center, “to present the

data as the basis for his expert opinion.” The court explained

that this was so “because the underlying data was the beginning

43

point for analysis, but some further analysis was required by

the expert in order to apply the date” to the specific matter at

issue in the case. 733 So. 2d at 1102. The court specifically

rejected the claim that “the expert acted as a mere conduit for

inadmissible hearsay” in regard to the weather data which was a

part of the basis of his opinion. Id. Moreover, the court said

that even assuming for discussion that the “objection should

have been sustained and that the underlying weather data should

not have been placed before the jury on direct examination, we

conclude that any error was entirely harmless.” Id. The court

explained that “[t]he expert’s opinion on wind speed and

direction was admissible even if the underlying data were not,

. . . and defendant presented no expert opinion to the

contrary.” Id.

It is clear from the instant record that the reports,

records, and other materials and information, at issue here were

the beginning point for analysis. Thereafter, the experts spoke

with the victims and determined that their statements

corroborated the information in those materials. They then

applied the data to the question of whether Lavender met the

requirements for commitment. Thus, in testifying to their

expert opinions, they did not act as mere conduits for

inadmissible hearsay. Kloster Cruise, Ltd.

44

Moreover, Lavender’s expert not only did not present an

opinion contrary to that of the State’s experts, his testimony

supported their use of the materials and/or information at

issue. Dr. Merwin said that the arrest report was “[c]ertainly”

important to reaching a diagnosis of one in Lavender’s

circumstances. (T 116). He specifically said that information

in the 1989 offense reports that included statements by the

victims that Lavender had grabbed them “by their penises” was

“[c]ertainly” important to a diagnosis. (T 118). Dr. Merwin

testified that if making a diagnosis of Lavender, he would want

to talk to the victims and testified that such interviews were

“[c]ertainly . . . usual.” (T 120). Moreover, he noted that a

significant factor in his inability to reach an expert opinion

in regard to Lavender was that he “had none of the documents to

review that the other psychologists had to look at.” (T 115). He

would want to “review other documents” because “that would be

helpful” to him in formulating an expert opinion. (T 120).

Since the experts’ opinions on Lavender’s mental state and

qualification under the Ryce Act were admissible, even if the

underlying data were not, see section 90.704, Fla. Stat. (1999),

and Lavender presented no expert opinion to the contrary, any

error was harmless. Kloster Cruise, Ltd., 733 So. 2d at 1102.

Finally, in death penalty cases, the testimony of mental

45

state experts is routinely used. Mental state issues are

presented in an effort to establish, or defeat, mitigating

circumstances. Caselaw is replete with references to the use of

the same type of materials used by the experts herein to support

the basis of the expert’s opinions in capital cases. See, e.g.,

Gonzalez v. State, 786 So. 2d 559, 565 (Fla. 2001)[defense

neuropsychologist testifying about Gonzalez’s impulsive behavior

and mental distress, based his opinions upon a review of “school

records, medical records, police reports, and confession.”];

Jones v. State, 612 So. 2d 1370, 1374 (Fla. 1992)[defense expert

diagnosed Jones with borderline personality disorder, based on

consideration of his “juvenile, psychiatric, and psychological

history.” The documentary records reviewed included juvenile

school records referring to Jones having skipped classes,

setting his house on fire, and threatening a person with a

hatchet.]. See also Cherry v. State, 781 So. 2d 1040, 1049 (Fla.

2000)[defense mental health expert in penalty phase based

clinical opinions on materials, including “school, hospital,

medical and prison records.”].

It seems clear from the foregoing that the matters upon

which the experts herein relied are matters upon which

psychologists routinely rely when giving clinical opinions, both

in commitment cases and in analogous settings. Moreover, the

46

Defense expert, Dr. Merwin, testified that arrest information,

the victim interviews, the trial information, and the “other

documents” the other two psychologists had were certainly

important considerations in any diagnosis of an individual under

the Act. Thus, the subject evidence was admissible under §

90.704.

B. General Use of Hearsay Apart From Section § 90.704

Under the Ryce Act, the admission of hearsay is expressly

provided for. § 394.9155(5), Fla. Stat. (1999). Only where it

is shown that the hearsay is unreliable is it to be excluded.

Id. Lavender made no showing of any unreliability of any of the

alleged hearsay materials and/or information. While Lavender,

himself, repeatedly disrupted the proceedings, complaining that

the victims were not personally testifying and that their

depositions were not available for his use, his trial attorneys

never made any specific contention, much less a demonstration,

that any materials and/or information which formed the basis of

the experts’ opinions was unreliable. Moreover, Lavender’s

mental state expert testified that he would want to review and

consider the very materials and information about which Lavender

complains on appeal before reaching any diagnosis or opinion as

to Lavender’s qualification under the Act. Nothing, other than

Lavender’s self-serving testimony regarding the details of the

3The State submits that Lavender’s testimony that theyounger of the two brothers involved in the 1978 offenses becamejealous of the relationship he had with the other boy becausethe brothers had “some kind of sexually together” implies thatLavender’s relationship with the older brother was of a sexual

47

relevant sexual incidents, challenged the truth or veracity of

any of the materials and/or information at issue. Indeed,

through his expert, Lavender admitted that the trial transcript

from the index offense included the victim’s testimony “that Mr.

Lavender had thrown him on the ground, raised him to . . .

kneeling position . . . and raped him from the rear.” (T 119).

Moreover, in his own testimony, Lavender said that one of the

victims of the 1989 offenses, Timothy, “told the truth” when he

said Lavender bit him on the buttocks. (T 91, 181).

Lavender’s own evidence at trial acknowledged significant

parts of his prior criminal offenses, both those which resulted

in convictions and those which did not. His description of his

“attraction” to young boys who begin to act “feminine,” when

they enter “puberty,” and his “relationships” with them, as well

as how he gets close to them with alcohol, drugs, food, and

companionship corroborates the statements of the victims which

formed the basis of the experts’ opinions. (See T 171-91).

Indeed, he specifically admitted many of the details the victims

provided the experts, although he maintained that nothing sexual

happened.3 Id.

nature, and is an admission of sexual behavior with the 12 yearold child.

48

Moreover, two of the three incidents resulted in convictions

which provides a presumption of reliability. The police reports

which underlie the 1989 and 1993 offenses would be admissible

under this provision of the statute. Jenkins v. State, 803 So.

2d 783, 785 (Fla. 5th DCA 2001)[“police reports which relate to

cases in which the respondent has pled or has been convicted .

. . have an indicia of reliability,” although a plea to a lesser

including no sexual misconduct may not be automatically clothed

with such an indicia of reliability]. Lavender, unlike Jenkins,

had the opportunity to confront the witnesses against him -

repeatedly, he admits that depositions were taken of all of his

victims. See T 77, 78, 80-81, 103, 179. Although Lavender

claimed that the deposition testimony exonerated him, and that

he had asked the public defender’s office to bring the

depositions to his civil commitment trial and they refused,

there is no indication that their refusal was for any reason

other than that in their opinions, the depositions would do

their client more harm than good. The record is crystal clear

that Lavender’s attorneys well knew of the existence of these

depositions and either had them, or knew how to get them, and

the only reasonable inference from the fact that they did not

49

present them, despite their client’s apparent wishes that they

do so, is that, in the exercise of their judgment, the

depositions would not advance Lavender’s interests.

Paul Harris, the victim of the 1993 offenses, testified at

the criminal trial that Lavender raped him. (T 188). The victims

of the 1989 offenses corroborated each other; for example, Tim

reported to the doctor that Lavender touched Ronnie sexually,

and Ronnie made that same report separately. (T 138, 139, 149).

Further, Dr. Benoit testified that the fact that in all three

incidents, the charges “look so similar,” gives the reports an

indicia of reliability. (T 147). Indeed, the evidence shows that

Lavender’s MO is entirely consistent: He singles out feminine

acting boys entering puberty, plies them with drugs, alcohol,

food, treats, and companionship, and then touches them sexually.

The State contends the hearsay was reliable and its admission

was not error.

The State submits that should any of the offenses be deemed

unreliable, any error in admission of same was harmless. Dr.

D’Errico testified that he had enough to diagnose Lavender as a

pedophile before speaking with the victims, although they

corroborated and gave additional support for his conclusions.

The jury heard extensive testimony about the offenses, much of

which was elicited by Lavender in the form of direct quotes from

50

the victims and the various reports. Moreover, in regard to the

1989 incident, the mental state experts spoke to two of the

three victims, and what each separately told the doctor was

consistent with what the other reported and corroborated the

police report. Moreover, Lavender, himself, vouched for the

truth of the report of one of the 1989 victims, Tim, and urged

the jury to consider his “record.” Finally, parts of Lavender’s

testimony corroborated the interview reports of the victims, as

well as the police reports and other information. Although he

denied any sexual misconduct, he gave details which verified the

location and situations in which the victims said the offenses

occurred. Thus, the State submits that any error in admitting

evidence of any of the subject offenses was harmless beyond a

reasonable doubt.

Finally, Lavender’s attack on the use of hearsay in civil

commitment cases based upon a constitutional due process ground

is without merit. The Sixth Amendment confrontation clause

applies “[i]n all criminal prosecutions,” and therefore, is

simply inapplicable to the instant civil proceeding.

Nonetheless, due process concerns can be implicated in civil

cases. See Murray v. Regier, 27 Fla. L. Weekly S1008, S1009

(Fla. Dec. 5, 2002). This specific issue has been considered by

California courts, which have consistently concluded that the

51

clause is inapplicable and the use of hearsay evidence does not

otherwise offend due process.

In People v. Superior Court (Howard), 82 Cal. Rptr. 2d 481,

490 (Cal. App. 1999), the court addressed the use of hearsay,

including victim statements in probation reports, in the context

of a probable cause hearing in a commitment case. Such due

process concerns are initially assessed under four factors:

‘(1) The private interest which will be affected bythe official action, (2) The risk of erroneousdeprivation through the procedures used, (3) Theprobable value, if any, of additional or substituteprocedural safeguards, and (4) the interest ininforming individuals of the action and in allowingthem to present their side of the story.’ Id. at 492.Due process was satisfied ‘because the proceedingsmandated by the Act are adequate to enable a defendantto challenge the People’s documentary evidence. Bydoing so, the defendant has the opportunity tothoroughly present his side of the story. Moreover,hearsay statements are obviously vulnerable tochallenge by defendant as arguably unreliablesummaries of victim and witness interviews and thedefendant may rebut the hearsay statements byproviding his own version of the details underlyinghis offenses.’

Id. However, the court noted other factors: Given the State’s

strong interest in protecting the public from those whose mental

conditions make them dangerous, limiting the State to the use of

the mere document reflecting a prior conviction would “severely

limit the People’s ability to protect the public. . . .” Id.

Much of the criminal history record may be available only

52

through victim hearsay statements in probation and sentencing

reports. Id.

Moreover, the same issue has been addressed in the context

of the use of hearsay at the civil commitment. In People v.

Otto, 109 Cal. Rptr. 2d 327 (Cal. 2001), the same four factors

regarding due process interests were considered, and the State

High Court concluded that those factors did not bar the State’s

reliance on victims’ hearsay statements. Acknowledging a

significant liberty interest, the court found an insignificant

risk of an erroneous deprivation of that same, as well as

sufficient indicia of reliability of the victims’ statements.

Those hearsay statements had arisen in the context of the

defendant’s own convictions. Id.

The risk of a deprivation of the liberty interest was

considered insignificant given the procedural safeguards,

including the right to counsel, to cross-examine witnesses, and

to present experts or other witnesses. Id. at 337-38. In so

holding, the court specifically noted that the Sixth Amendment

confrontation clause was inapplicable to civil commitment

proceedings. Id. at 338.

The Court further considered the state’s strong governmental

interest in protecting the public, and “[r]equiring the

government to adduce live testimony from the victims could

53

potentially impede this purpose,” given the length of time which

has passed from the prior offenses. Id. The use of hearsay did

not in any way impede the defense from being informed of the

nature, grounds, and consequences of the proceedings, or disable

the defense from presenting its side of the story. Id. See also

People v. Mendoza, 96 Cal. Rptr. 2d 431 (Cal. App. 2000)[hearsay

in probation report admissible in commitment action], rev.

granted, 6 P. 3d 149 (Cal. 2000); People v. Green, 94 Cal. Rptr.

2d 355 (Cal. App. 2000)[use of hearsay in documents regarding

facts of prior offenses in commitment action did not violate

equal protection principles].

It is significant that hearsay is permitted in capital

penalty phase proceedings, where the liberty interests of the

defendant are even greater than those of the persons committed

under the Ryce Act. See Section 921.141(1), Fla. Stat. (2002).

Due process interests are satisfied by the ability to rebut

hearsay evidence through the presentation of defense witnesses

and through cross-examination of prosecution witnesses. See Zack

v. State, 753 So. 2d 9, 23 (Fla. 2000); Lawrence v. State, 691

So. 2d 1068, 1073 (Fla. 1997); Lockhart v. State, 655 So. 2d 69,

72 (Fla. 1995); Damren v. State, 696 So. 2d 709, 713 (Fla.

1995); Clark v. State, 613 So. 2d 412, 415 (Fla. 1992). Indeed,

54

this Court has encouraged such use of hearsay so as to avoid the

presentation of extensive testimony from the victims’ survivors

because it would have greater prejudicial effect on the defense

as a result of the sympathy it would evoke. Finney v. State, 660

So. 2d 674, 683-84 (Fla. 1995).

Accordingly, the State contends that even apart from the

unique nature of expert testimony under § 90.704, hearsay

evidence is otherwise admissible at a Ryce Act civil commitment

trial.

C. Prejudice Does Not Exceed Probative Value

Evidence regarding the facts of prior sexual or other

violent offenses is highly relevant to the assessment of a

mental condition and the dangerousness of a person possessing

that mental condition. Absent such facts, experts could not

formulate their opinions. Thus, while such evidence is

undoubtedly prejudicial to the defense, it is an indispensable

part of the State’s case and is authorized by the statute. As

such, prejudice can not be said to outweigh probative value;

that evidence is the State’s case.

Finally, it should be noted that the reductio ad absurdum

of the Lavender’s contention is that mental state experts would

be relegated to giving opinions based solely upon a clinical

interview of the defendant, which the defendant could, and did

55

in this case, thwart by refusing to give an interview. If

Lavender’s position is followed to its logical conclusion, he

would have the power to prevent a commitment under the Act by

merely keeping his mouth shut. Moreover, even if he granted an

interview, the State’s experts would be required to render their

opinions based solely upon the self-serving and potentially

manipulative statements made by the defendant. Clearly, this

would be contrary to the Legislative intent in enacting the Ryce

Act and would gravely undermine the legitimate and compelling

goal of protecting the public from such violent sexual

predators.

CONCLUSION

Based on the foregoing argument and authority, the State

respectfully requests that this Court decline to accept

jurisdiction of this case. In the alternative, if jurisdiction

is accepted, the State asks that the decision of the Fifth

District Court of Appeal herein be affirmed.

Respectfully submitted,

CHARLES J. CRIST, JR.ATTORNEY GENERAL

______________________________JUDY TAYLOR RUSHASSISTANT ATTORNEY GENERALFla. Bar No. 0438847

56

444 Seabreeze BoulevardFifth FloorDaytona Beach, FL 32118(386) 238-4990(386) 238-4997 (FAX)

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above

and foregoing brief on jurisdiction has been furnished to Nancy

Ryan, Assistant Public Defender, Attorney for Petitioner, at the

basket of the Office of the Public Defender at the Fifth

District Court of Appeal, on this 10th day of February, 2003.

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this brief was typed

using 12 point Courier New, a font that is not proportionately

spaced.

______________________________JUDY TAYLOR RUSHCOUNSEL FOR RESPONDENT

IN THE SUPREME COURT OF FLORIDA

DARYL L. LAVENDER,

Petitioner,v. Case No. SC01-1977

Fifth DCA Case No. 5D00-1512

STATE OF FLORIDA

Respondent.________________________________/

APPENDIX

CHARLES J. CRIST, JR.ATTORNEY GENERAL

JUDY TAYLOR RUSHASSISTANT ATTORNEY GENERALFla. Bar No. 0438847444 Seabreeze BoulevardFifth FloorDaytona Beach, FL 32118(386) 238-4990 (PHONE)(386) 238-4997 (FAX)

COUNSEL FOR RESPONDENT