State v. Mounger

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED

NOVEMBER 1998 SESSION

February 25, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) No. 03C01-9802-CR-00081

)

Appellee )

) Sullivan County

vs. )

) Honorable Phyllis H. Miller, Judge

WOODROW WILSON MOUNGER, )

) (Denial of Probation)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

BURKETT C. McINTURFF JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

132 Broad St.

Kingsport, TN 37662 CLINTON J. MORGAN

Counsel for the State

Criminal Justice Division

425 Fifth Ave. North

2d Floor, Cordell Hull Bldg.

Nashville, TN 37243-0493

H. GREELEY WELLS, JR.

District Attorney General

BARRY STAUBUS

TERESA MURRAY SMITH

Assistant District Attorney Generals

140 Blountville Bypass

Box 526

Blountville, TN 37617-0526

OPINION FILED: ____________________

REVERSED AND REMANDED

JAMES CURWOOD WITT, JR.

JUDGE

OPINION

The defendant, Woodrow Wilson Mounger, pleaded guilty in the

Sullivan County Criminal Court to incest, a Class C felony, statutory rape, a Class

E felony, and three counts of sexual battery, also Class E felonies. In accordance

with the plea agreement, the defendant received an effective six-year sentence.1

After a sentencing hearing, the trial court denied the defendant’s request for

alternative sentencing and ordered him to serve his sentence in the Department of

Correction. The defendant appeals pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure contending that the trial court erred by refusing to permit Dr.

Thomas Schacht to testify at the sentencing hearing and by denying the defendant

full probation or another form of alternative sentence. For the reasons discussed

below, we reverse the judgment and remand the case to the trial court for a new

sentencing hearing.

When an accused challenges the length, range, or manner of service

of a sentence, this court has the duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement that

1

The plea agreement provided for two-year sentences for each of

the Class E felonies and a six-year sentence for incest. All sentences run

concurrently to each other and to a Sevier County conviction on a related

charge.

2

the defendant made regarding sentencing; and (g) the potential or lack of potential

for rehabilitation or treatment. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.

App. 1987); Tenn. Code Ann. §§ 40-35-102,-103,-210.

At the time of sentencing, the defendant was fifty-two years old. He

had been married to the same woman for twenty-seven years and was the father

of a twenty-six year old son. He had been employed at Eastman Kodak Company

since 1971.2 He served in Viet Nam and received an honorable discharge from the

Air Force. He had no prior criminal record except for a contempt of court citation in

1963 and an arrest in 1985 for carrying a weapon, a charge that was dismissed.

The victim in this case was the defendant’s fourteen-year old niece, the daughter

of Mrs. Mounger’s sister. The charges resulted from a series of incidents that

occurred in May of 1996 in which the defendant admitted he had kissed, fondled,

and digitally penetrated the victim.

On March 21, 1997, the defendant pleaded guilty to one count of

statutory rape, one count of incest, and three counts of sexual battery. The trial

court imposed the effective six-year sentence included in the plea agreement and

scheduled a hearing to consider alternative sentencing possibilities. Pursuant to

Tennessee Code Annotated section 39-13-705, the trial court ordered the defendant

to submit to an evaluation by Counseling and Consultation Services (C.C.S.), an

entity certified by the State of Tennessee as competent to evaluate and treat sex

offenders. See Tenn. Code Ann. § 39-13-707 (1997). As required by statute, the

C.C.S. evaluation became part of the pre-sentence report and was considered by

the trial court in determining the sentencing issues. See Tenn. Code Ann. § 39-13-

705(b) (Supp. 1998). According to the report, C.C.S. concluded that the defendant

was likely to reoffend and was untreatable at that time “due to his unwillingness to

2

He and his wife divorced as result of these charges, and he was

fired from his job when the trial court denied probation. He was four years away

from being eligible for full retirement benefits.

3

be honest about his sexual offending history.”3 The report also notes that “Mr.

Mounger reported that he was not fully disclosing of his sexually offensive history

at the advice of his attorney.”4 According to the report, the defendant, at first,

refused to discuss any prior history of sexual activity with a minor. However, after

he failed a lie detector test, he admitted that he had kissed a friend of the victim.

To rebut the C.C.S. evaluation which concluded that he was

untreatable and likely to re-offend, the defendant hired Dr. Thomas Schacht, a

tenured full professor in the Department of Psychiatry and Behavioral Sciences at

the College of Medicine at East Tennessee State University where he was the

director of the post-graduate residency in forensic psychiatry. Dr. Schacht holds

dual board certification by the American Board of Professional Psychology in

Clinical Psychology and in Forensic Psychology, a doctorate in clinical psychology,

an internship in medical psychology, a residency in pediatric medical psychology

and developmental disabilities, and he has completed a two-year post-doctoral

research fellowship. Dr. Schacht interviewed the defendant and reviewed the report

prepared by C.C.S. As part of his review of the C.C.S. report, he requested that

C.C.S. provide copies of the raw data upon which their conclusions were based.

The defendant signed a written consent for the release of the information, but

C.C.S. refused to release the information. The defendant asked the court to order

C.C.S. to comply and requested a hearing on the motion.

At the hearing, the state presented the trial court with a letter from

Lenny Lococo, the chairman of the Tennessee Sex Offender Board in which Lococo

3

The defendant’s marriage was troubled, and according to the

defendant, he stayed with his wife only because of his son. The defendant freely

admitted that he had carried on numerous affairs during the first fifteen years of

his marriage. While in Viet Nam, he acknowledged that he had occasionally

engaged in sexual activity with prostitutes.

4

During the hearing, defense counsel explained to the trial court that

he advised the defendant not to reveal to C.C.S. any other incidents that might

give rise to more criminal charges against him because C.C.S. was required to

turn over such information to the authorities. In an earlier case, one of defense

counsel’s clients had openly discussed his sexual history with the C.C.S.

interviewer and, as a result, was convicted of a number of serious charges.

4

noted that although Dr. Schacht has a range of clinical expertise, he had not been

certified by the Tennessee Sex Offender Board as a treatment provider. Because

Dr. Schacht’s affidavit contained no references to formal training in the area of

sexual offender dynamics or victimology, Mr. Lococo concluded, it would be difficult

for Dr. Schacht to interpret accurately the specific materials and assessments

relating to sex offenders. 5 The state also referred the trial judge to a previous case

in which Judge R. Jerry Beck had ruled that Dr. Schacht was not qualified to

evaluate or treat a convicted sex offender absent certification by the Department of

Correction.6

The trial court found that Dr. Schacht had not been certified by the

Department of Correction and therefore was not qualified to treat the defendant or

testify at the sentencing hearing. 7 The trial judge stated that those convicted of sex

offenses were required to cooperate fully with the evaluation and that when the

defendant refuses to cooperate that the court could assume the worst.

At the sentencing hearing, defense counsel requested that Dr.

Schacht’s report be admitted into evidence. The trial court reiterated its earlier

position that neither Dr. Schacht’s testimony nor his report would be admitted. The

court stated:

If the Defendant had cooperated with the organization

that was certified to evaluate him, and then, you come

in with evidence from another professional on that

issue, then I think I might consider that; but I will not if

5

We glean from the record that the Department of Correction had

conducted its first five day training program just previous to the December, 1997

court hearing in this case. Dr. Adler of Counseling and Consultation Services

was the only provider in the Tri-Cities area that had received certification at the

time.

6

See State v. Glenn Kermit Lilly, No. S38627, Sullivan County,

Second Judicial District. Upon a motion by the defense, the trial court admitted

the complete transcript of the relevant hearing in the Lilly case as evidence in

this case. We discuss Judge Beck’s ruling in greater detail below.

7

The trial court’s ruling rendered moot the defendant’s motion for

the release of the raw data to Dr. Schacht. The defendant has not raised the

issue, and we express no opinion on the appropriateness of C.C.S.’s refusal to

release the data.

5

he didn’t cooperate with the organization that was

certified by the State to evaluate. Because Dr. Schacht

is just, you know, just - - he’s not qualified.

The defendant presented the testimony of two employees of the

Kodak Company, both of whom had known and worked with the defendant for many

years. Both testified that he was an excellent worker and a good, dependable

person. They recommended that he be placed on probation. The defendant did

not testify.

According to the pre-sentence report, neither the victim nor the

victim’s mother wished the defendant to be incarcerated. The victim’s mother

reported that her daughter was doing well and had put the incident behind her. The

defendant had made no attempt to contact the victim. Other than the pre-sentence

report and the C.C.S. evaluation, the state put on no evidence at the sentencing

hearing.

At the conclusion of the hearing, the trial judge found that although the

defendant had not been a faithful husband, he was a good employee and a veteran

with an honorable discharge. She found that the offenses were not the result of

one-time impulsive behavior but extended over a considerable period of time. She

found that the defendant’s remorse as expressed in the presentence report was not

sincere because in his C.C.S. interview he continued to minimize his role in the

offense and to shift some of the responsibility onto the victim and his former wife.

She noted that the defendant was experiencing some physical problems and had

undertaken some counseling after he was charged but had not continued the

sessions. In addition, she found that the C.C.S. evaluation indicated that he was

sexually aroused most strongly by minors. She noted that he had answered

deceptively to two polygraph questions that were part of the evaluation and, when

confronted, admitted that he had kissed the victim’s friend on the mouth at a

6

basketball game. As result of his refusal to tell the truth and to accept responsibility

for his actions, the trial court denied the defendant alternative sentencing.

The trial court refused to consider Dr. Schacht’s report or to allow him

to testify because he was not certified according to the recently adopted criteria and

requirements of the state’s Sex Offender Treatment Board pursuant to Tennessee

Code Annotated section 39-13-704(d)(2) and because the defendant had not

cooperated with his court-ordered evaluation. Under the facts and circumstances

presented in the record, neither of these reasons is sufficient to deprive the

defendant of his opportunity to be heard and to rebut the conclusions in the C.C.S.

report.

The Sex Offender Treatment Board prescribes standardized

procedures for evaluating and identifying sex offenders and standards for programs

for treating sex offenses. Tenn. Code Ann. § 39-13-704 (d)(1), (2) (1997).

Tennessee Code Annotated section 39-13-705 requires any convicted sex offender

who is seeking probation to participate in an evaluation for the purposes of

identification and assessment of risk potential and to establish a treatment plan and

procedures for monitoring behavior. Tenn. Code Ann. § 39-13-705(b) (Supp. 1998).

If the trial court grants probation or alternative sentencing, any treatment plan

recommended by the evaluation becomes a condition of probation. Id. Section

39-13-704(a) created the Sex Offender Treatment Board to develop and prescribe

a standardized procedure for performing the evaluation and for providing treatment

to and monitoring of convicted sex offenders.

Tennessee Code Annotated section 39-13-707 provides that “[t]he

department of correction, the judicial branch, or the department of children’s

services shall not employ or contract with any individual or entity to provide

treatment services pursuant to this part unless the treatment services to be provided

7

by such individual or entity conform with the standards developed pursuant to § 39-

13-704(d)(2).”

Lococo’s testimony in the Lilly hearing on June 27, 1997, was

exhibited to the sentencing hearing in the present case. It reflects that Lococo, the

Chairperson of the Sex Offender Treatment Board, holds a master’s degree in

counseling and psychology with an “area of expertise . . . in domestic violence and

sexual offender behaviors” and has thirteen years of experience. He testified the

Board had only recently completed its task of developing the standardized

procedures. In conjunction with these standards, he testified that the Board

adopted a “certification” program for those who would be eligible to provide

treatment pursuant to section 39-13-707, “a lot of [which] we’re putting together . .

. through my own experience.” Included in the certification program is a 40-hour

training session. Lococo testified that the workshop was intended for “people who

have Masters Degrees, Social Workers who have some rudimentary knowledge of

this particular field.” He also stated that medical doctors and psychiatrists who

claim to be sex offender treatment providers but in actuality only provided

antidepressants as treatment would be required to take the training and to have

some community linkage with a professional that had the expertise to understand

the behavioral aspects of sex offenders. Waivers would be available for those who

had the appropriate experience or educational background. The Board conducted

the first training session in October, 1997, just two months before the hearing on the

defendant’s motion.

We have carefully considered the statutes and the explanation by the

chairman of the Sex Offenders Treatment Board and have found no justification

therein for refusing to admit Dr. Schacht’s testimony and report at the sentencing

hearing. In the first place, the statute only forbids the court or other state agencies

to employ or contract with any individual or entity whose treatment services do not

conform with the standards developed by the Board. Tenn. Code Ann. § 39-13-707

8

(Supp. 1998). The statute does not per se authorize nor mandate the Board to

certify anyone, and moreover, the prohibition against state contracting with non-

conforming entities is directed toward those entities which “provide treatment

services.” See Tenn. Code Ann. § 39-13-707 (emphasis added). It does not speak

to the qualifications of a provider whose activity is evaluative only, nor does it

preclude a court from considering the information and knowledge of any qualified

expert witness in making its sentencing determinations. It merely requires that the

court consider the evaluation report in determining the sentencing issues. Tenn.

Code Ann. § 39-13-705(b) (1997).

Additionally, the state’s reliance upon Lilly was misplaced. The trial

court in Lilly did not find that the testimony of Dr. Schacht and the other experts

were inadmissible at the hearing. In fact, a careful reading of that hearing

demonstrates that the reports of Dr. Schacht and the other experts were admitted

as exhibits. The issue in Lilly was whether the court could employ one of the

doctors who had not yet received certification to treat the defendant, and the trial

court found that because only C.C.S. had received the appropriate certification, only

C.C.S. could perform the statutory evaluation and carry out the mandatory treatment

program. Because only Dr. Adler of C.C.S. could provide the requisite report, the

trial judge continued the probation hearing to allow for the evaluation. The trial court

remarked that if Dr. Adler found that Lilly was likely to reoffend, he could bring back

Dr. Schacht or one of the other doctors to testify at the probation hearing. Under

those circumstances, the court would have to choose between the doctors on this

issue of whether to grant probation. Nothing in Lilly supports the prosecution’s

contention that Dr. Schacht’s testimony was inadmissible at the defendant’s

probation hearing.

The Rules of Evidence apply at sentencing hearings. State v. Taylor,

744 S.W.2d 919, 921 (Tenn. Crim. App. 1987); Tenn. Code Ann. § 40-35-209(b)

(1997). The testimony of experts is governed by Rules 702 and 703. Tennessee’s

9

rules allow for the admission of expert testimony if “the specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact

in issue.” Tenn. R. Evid.702. An expert is one who is qualified “by knowledge, skill,

experience, training, or education” to provide specialized knowledge. Id.

It is uncontested that Dr. Schacht, a tenured professor of clinical

psychology at East Tennessee State University’s medical school, had not received

state certification as a treatment provider at the time of the hearing. He may well

have no desire or need for such certification in his professional life. His lack of

certification, although it precludes him from contracting with the state as a

treatment provider, does not necessarily mean that he has no “knowledge, skill,

experience, training, or education” that would substantially assist a trier of fact in

determining whether the defendant should receive probation. In his affidavit, which

the trial court refused to consider, Dr. Schacht outlined his educational and

professional background which includes board certification in clinical psychology

and forensic psychology, residencies in pediatric medical psychology and post-

doctoral research. If Dr. Schacht had been placed on the stand, defense counsel

and the state could have explored the doctor’s background in detail and the trial

court could have formed a reasoned judgment concerning the doctor’s qualifications

based on his actual experiences. The trial court could then have allowed or

disallowed his testimony based on whether it would be of “substantial assistance”

to the court, and, if allowed, could have afforded the testimony such weight as the

court thought was warranted. The fact that Dr. Schacht was not certified by the

State of Tennessee as a treatment provider may or may not be a factor for the court

to consider in determining the weight to be given to the testimony.

Under Tennessee law, a trial court shall afford the parties at a

sentencing hearing the opportunity to be heard and to present evidence relevant to

the sentencing. Tenn. Code Ann. § 40-35-209(b) (1997) (emphasis added).

Reliable hearsay may be admitted if the opposing party is given the fair opportunity

10

to rebut it. Id. The opportunity to rebut hearsay evidence lessens the potential for

unreliability. State v. Bud Cash, Jr., No. 286, slip op. at 24 (Tenn. Crim. App.,

Knoxville, Jan. 30, 1992). By statute, the mandatory evaluation of a convicted sex

offender becomes part of the presentence report. Tenn. Code Ann. § 39-13-705

(Supp. 1998). This court has previously held that summary refusal to review

evidence presented to rebut information contained in the presentence report is

error. State v. Bud Cash, Jr., slip op. at 24 (summary refusal to review and weigh

letters written on behalf of defendant is inappropriate).

Dr. Schacht’s lack of certification as a treatment provider by the Sex

Offender Treatment Board should not, in this context, preclude him from testifying

as an expert. Dr. Schacht was not seeking to treat or monitor the defendant but to

critique the findings of the court-ordered evaluation. At the time of the hearing, the

certification process had just begun. The first training session had ended shortly

before the hearing. C.C.S. was the only certified provider in the area. A

representative of C.C.S. did not testify, and the defendant had no opportunity to

cross-examine the psychologist who interviewed, tested and evaluated him.

Without Dr. Schacht or some other uncertified psychologist or psychiatrist, the

defendant had no way to rebut the findings of the state-funded evaluation.

Consequently, we conclude it was error to refuse to accept Dr.

Schacht as a witness and to reject his proffered report. This proof was offered to

challenge or rebut the C.C.S. report, a part of which contained the finding that the

defendant had not cooperated. Because the Schacht evidence was rejected, the

defendant’s opportunity to challenge the finding of uncooperativeness was impaired,

if not precluded. For this reason, the asserted lack of cooperation cannot justify the

rejection of the Schacht report and testimony. Accordingly, neither of the asserted

grounds supports this action of the trial court.

11

In order to assist the trial court on remand, we express our further

concern about the exclusion of Dr. Schacht’s testimony because the defendant was

uncooperative with the evaluator. The C.C.S. report drew two conclusions: (1) that

the defendant was uncooperative and (2) that he was untreatable. The trial court

relied upon some combination of these findings in rejecting Dr. Schacht as a

witness. In particular, we focus our concern upon the fact that the evaluation’s

conclusions were accepted without any inquiry into the circumstances surrounding

those conclusions or into the facts upon which the conclusions were based.

The defendant’s initial unwillingness to incriminate himself during the

interview with C.C.S. may not demonstrate an unwillingness to cooperate with the

evaluation. Tennessee Code Annotated section 37-1-605 requires health or mental

health professionals and those engaged in the admission, examination, care or

treatment of persons to report known or suspected child sexual abuse to the

appropriate local authority. Tenn. Code Ann. § 37-1-605 (a) (1), (2), (b)(1) (1996).

Both the Fifth Amendment to the United States Constitution and Article 1, Section

9 of the Tennessee Constitution provide that a person may not be compelled to

incriminate himself. Our supreme court has held that the Article 1, Section 9 is

broader and more protective of this right than the United States Constitution. See

State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992). In this instance, the defendant

was well aware of the reporting requirement in section 37-1-605. His attorney had

warned him about the possible consequences of disclosing information concerning

previous sexual contact with minors to C.C.S. personnel. He, at first, refused to

divulge any information that he believed would incriminate him further. When

pressed, he explained that his attorney had advised him not to answer such

questions and ultimately provided information about one incident. Due to the

defendant’s reluctance to disclose potentially incriminating information, C.C.S.

concluded that the defendant was uncooperative with the evaluator and was not

“honest” about his sexual history.

12

If there is no rational basis for concluding that the defendant is

uncooperative other than that he followed the advice of counsel to protect his

constitutional rights, the evaluator’s conclusion may be viewed as a punitive

response to the defendant’s attempt to assert those rights. In such a case, we

might well hold it was unfair for a trial court to use the finding of uncooperativeness

to deprive the defendant of his right to present rebuttal evidence at his sentencing

hearing or to refuse to consider him for any form of alternative sentencing for which

he was presumptively suitable. See Tenn. Code Ann. § 40-35-102(6). We

recognize that, in some instances, an assertion of constitutional rights may be

overly broad, unnecessary or unreasonable, and in some cases it may be truly

calculated to frustrate the evaluation. The trial court should make this determination

rather than accepting the untested conclusions of the evaluator. At the least, the

trial court should inquire into the evaluator’s conclusions to determine whether the

defendant was, in fact, uncooperative or dishonest.

The sex offender treatment statutes do not contemplate that the court

give unfettered deference to the evaluator. As noted above, Code section 39-13-

705(b) merely requires that the court consider the evaluation report as a part of the

sentencing determination. In a sex offense case, the report is one component of

the sentencing determination amidst the broader field of sentencing factors and

principles. Among these are the principles that (1) when defendants qualify under

Code section 40-35-102(6), the court must presume them to be favorable

candidates for alternative sentencing, and (2) a defendant whose sentence is eight

years or less is generally entitled to have the trial court consider the preferred

alternative of probation. Tenn. Code Ann. § 40-35-209(b) (1997). A demonstrated

lack of cooperation with an entity that had legitimate authority over a defendant may

justify, upon apt findings made within the broad principles of the sentencing law, a

denial of probation in a given case. However, it is only when such a determination

is made in keeping with the principles of sentencing that the trial court’s decision is

13

entitled to the deference of a presumption of correctness. Ashby, 823 S.W.2d at

169.

We share the trial court’s concern that a defendant who declines to

fully disclose his sexual history in order to frustrate the statutorily-mandated

evaluation should not profit by his actions, especially when he is seeking the

preferred sentencing alternative of probation. We agree that a defendant is

required to establish his suitability for full probation as distinguished from his

favorable candidacy for alternative sentencing in general. See Tenn. Code Ann. §

40-35-303 (b) (1997); State v. Bingham, 910 S.W.2d, 448, 455-56 (Tenn. Crim.

App. 1995). However, even though C.C.S.’s methods in this case may have been

clinically sound, they appear heavy-handed when the client is suspended above

penal abyss by only the thinnest gossamer strand of constitutional rights. 8

Nevertheless, we need not determine the bases for the C.C.S.

conclusions nor the soundness of the trial court’s reliance thereon. We have held

that Dr. Schacht’s proffered testimony may not be excluded merely because he

was not “certified” by the Sex Offender Treatment Board. Because the defendant

was denied the opportunity to present evidence on his own behalf and had no fair

opportunity to rebut the hearsay evidence presented by the state, the trial court’s

denial of probation cannot stand. All of the relevant facts and circumstances are not

before this court, and we are unable to conduct a review of the defendant’s

sentences required by statute. See State v. Smith, 735 S.W.2d 859, 863 (Tenn.

Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210 (1997).

8

We notice that C.C.S.’s certification and at least some of its

procedures are established by a board that is essentially a state agency and has

broad ties to state law enforcement. The “sex offender treatment board” is

established “in the department of correction.” Tenn. Code Ann. § 39-13-704 (a)

(1997). Of the thirteen members of the board, ten are appointed by the

Commissioner of the Department of Correction, another is appointed by the

Tennessee Bureau of Investigation, and still another is appointed by the board’s

presiding officer who in turn is designated by, and serves at the pleasure of, the

Commissioner. Id.

14

This case is remanded to the trial court for a new sentencing hearing

in which the defendant will have a fair opportunity to present relevant testimony and

other evidence on his own behalf and to rebut the information in the presentence

report.

__________________________

JAMES CURWOOD WITT JR., Judge

CONCUR:

______________________________

DAVID H. WELLES, Judge

______________________________

L. TERRY LAFFERTY, Special Judge

15