[No. 24820-8-III. Division Three. December 4, 2007.]
In the Matter of the Detention of BRYAN DUNCAN, Appellant.
[1] Evidence Discretion of Court In General. A trial court has wide discretion in ruling on questions of evidence.
[2] Evidence Review Harmless Error Outcome of Trial. An erroneous evidentiary ruling that is not of constitutional magnitude is harmless and does not require reversal of the judgment if the error did not materially affect the outcome of the trial.
[3] Mental Health Involuntary Commitment Sexually Violent Predators Evaluation Psychological Examination Discovery Request Validity. A sex offender who is the subject of a petition for commitment as a sexually violent predator under chapter 71.09 RCW cannot be compelled to submit to a mental examination during pretrial discovery apart from what is authorized by chapter 71.09 RCW.
[4] Evidence Relevance Balanced Against Prejudice Unfair Prejudice What Constitutes. Evidence is unfairly prejudicial if it is likely to provoke an emotional response from the jury rather than a rational decision.
[5] Evidence Relevance Balanced Against Prejudice Considered in Context. In deciding whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice under ER 403, a court must weigh the evidence in context.
[6] Evidence Relevance Balanced Against Prejudice Review Preservation for Review. A party preserves for review the issue of whether the probative value of evidence sought to be admitted at trial is substantially outweighed by the danger of unfair prejudice under ER 403 if the party objects to the admission of the evidence and the trial court considers both its relevance and its fairness.
[7] Mental Health Involuntary Commitment Sexually Violent Predators Evaluation Psychological Examination Discovery Request Refusal To Submit Right To Remain Silent. A sex offender who is the subject of a petition for commitment as a sexually violent predator has the right to refuse to submit to a psychological examination during pretrial discovery. But that right is only statutory and not constitutional. So the offender does not have a Fifth Amendment right to remain silent about a refusal to submit to such an examination.
[8] Mental Health Involuntary Commitment Sexually Violent Predators Proof Central Issues. The central issues in a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW are the offender's current mental state and the likelihood that the offender will engage in predatory acts of sexual violence if released from confinement.
[9] Mental Health Involuntary Commitment Sexually Violent Predators Trial Evidence Refusal To Submit to Psychological Evaluation. In a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW, the trial court may admit evidence that the offender refused to submit to a psychological evaluation requested by the State during pretrial discovery for the purpose of allowing the State to explain why the State's expert had to rely on outdated hearsay information to assess the offender's current mental state and to render an opinion about the offender's likelihood of engaging in predatory acts of sexual violence if released from confinement.
[10] Mental Health Involuntary Commitment Sexually Violent Predators Trial Evidence Offender's Intention To Reside with Convicted Child Molester. In a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW, the trial court may admit evidence that the offender, if released from confinement, intends to reside with a convicted child molester with whom the offender has had a sexual relationship during confinement. Although the court may admit evidence of the proposed roommate's history of sexual offenses, that does not necessarily open the door to evidence of the dismissal of a sexually violent predator commitment petition against the roommate or as to why the petition was dismissed.
[11] Witnesses Cross-Examination Scope Discretion of Court. Under ER 611(b), the scope of cross-examination in a trial is a matter of trial court discretion.
[12] Witnesses Cross-Examination Scope Review. A trial court's ruling on the scope of cross-examination in a trial will not be reversed on appeal absent a manifest abuse of discretion.
[13] Witnesses Cross-Examination Scope In General. Under ER 611(b), cross-examination in a trial generally should be limited to the subject matter of the direct examination and to the credibility of the witness, although inquiry into other matters may be allowed.
[14] Mental Health Involuntary Commitment Sexually Violent Predators Statutory Provisions Civil or Criminal. A proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW is civil in nature.
[15] Mental Health Involuntary Commitment Sexually Violent Predators Trial Right To Confront Witnesses. The Sixth Amendment right to confront adverse witnesses does not apply in a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW.
[16] Mental Health Involuntary Commitment Sexually Violent Predators Trial Cross-Examination Right To Cross-Examine Due Process Factors. Whether a sex offender who is the subject of a sexually violent predator commitment petition under chapter 71.09 RCW has a due process right to cross-examine a witness about a particular subject depends on three factors: (1) the private interest affected, (2) the risk of an erroneous deprivation of such interest through existing procedures and the value of the additional procedural safeguard of cross-examination, and (3) the governmental interest.
[17] Mental Health Involuntary Commitment Sexually Violent Predators Trial Cross-Examination Treatment Program's General Success Rate. In a proceeding to involuntarily commit a sex offender as a sexually violent predator under chapter 71.09 RCW, the trial court may refuse to permit the offender to cross-examine a State's expert witness regarding the general success rate of the State's sexual predator treatment program.
[18] Evidence Opinion Evidence Expert Testimony Review Standard of Review. A trial court's decision to exclude expert testimony is reviewed for an abuse of discretion.
[19] Mental Health Involuntary Commitment Sexually Violent Predators Trial Witnesses Due Process. In a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW, the right of the offender to present the testimony of favorable witnesses is a fundamental element of due process of law. This right is not unfettered, however. The proffered evidence must be relevant in that it must be helpful to the trier of fact.
[20] Mental Health Involuntary Commitment Sexually Violent Predators Trial Evidence Expert Testimony Admissibility. The admissibility of expert testimony in a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW is determined under ER 702 and is not a matter of due process analysis.
[21] Mental Health Involuntary Commitment Sexually Violent Predators Trial Evidence Expert Testimony Treatment Program's General Success Rate. In a proceeding to commit a sex offender as a sexually violent predator under chapter 71.09 RCW, the trial court may refuse to permit the offender to present expert testimony regarding the general success rate of the State's sexual predator treatment program.
[22] Mental Health Involuntary Commitment Sexually Violent Predators Review Harmless Error Cumulative Error Absence of Prejudicial Error.The commitment of a sex offender as a sexually violent predator under chapter 71.09 RCW will not be overturned on the basis of cumulative error if there is insufficient prejudicial error to cumulate.
Nature of Action: Petition to commit a sex offender as a sexually violent predator.
Superior Court: The Superior Court for Benton County, No. 96-2-00446-1, Craig J. Matheson, J., on November 14, 2005, entered a judgment of commitment on a verdict finding the offender to be a sexually violent predator.
Court of Appeals: Holding that the trial court did not abuse its discretion in its evidentiary rulings, the court affirms the judgment.
Valerie Marushige-, for appellant.
Robert M. McKenna-, Attorney General, and Sarah B. Sappington- and Joshua Choate-, Assistants, for respondent.
Ά1 SWEENEY, C.J. This is an appeal from a jury verdict that found Bryan Duncan to be a sexually violent predator (SVP) as defined in chapter 71.09 RCW. He assigns error to several of the court's rulings on evidence. But we conclude they were discretionary decisions and that the judge did not abuse his discretion. And we therefore affirm the judgment.
FACTS
Ά2 Mr. Duncan was born in March 1975. He molested a seven-year-old boy in 1992 and was found guilty of first degree child molestation. Mr. Duncan was then 16 or 17 years old. He pleaded guilty in January 1993 to two additional counts of first degree child molestation. The first of these counts involved a nine-year-old girl. Mr. Duncan had sexual intercourse with her when he was 13 years old. The second count involved acts against a 10-year-old boy when Mr. Duncan was 13 years old. All of these incidents occurred in Benton County and all were defined as sexually violent offenses in former RCW 71.09.020(6) (1995). Mr. Duncan was also adjudged guilty in separate actions for two counts of communication with a minor for immoral purposes. Mr. Duncan was committed to the Department of Juvenile Rehabilitation for three consecutive 52-week sentences following these adjudications. He served his sentences at Maple Lane School, a juvenile facility in Centralia.
Ά3 Mr. Duncan participated in a sex offender treatment program while at Maple Lane. He admitted sexual acts with more than 20 children between 1984 and 1992. One Maple Lane case manager reported that Mr. Duncan claimed between 70 and 100 victims. During a mental health assessment in 1996, Mr. Duncan admitted to sexual activity with as many as 40 children. These victims, mostly male, ranged in age from 2 to 13 years old. The sexual acts included vaginal and anal intercourse, forced sexual games, fellatio, fondling, and masturbation. Mr. Duncan also revealed in counseling that he fantasized about sex with children and that these fantasies sometimes involved the mutilation, killing, and eating of his victims. He received over 75 infraction reports for noncompliance with staff orders, acting out, and violence during his stay at Maple Lane.
Ά4 Mr. Duncan was due to be released from Maple Lane School in late March 1996, on his 21st birthday. On March 22, 1996, the State filed a petition for commitment of Mr. Duncan as an SVP. RCW 71.09.030. He was then moved to the Special Commitment Center (SCC) pending the outcome of the petition. For a variety of reasonsmostly at the request of Mr. Duncan's counselthe commitment trial was delayed until October 2005. The jury concluded that Mr. Duncan was an SVP.
DISCUSSION
UNFAIR PREJUDICE Ά6 Mr. Duncan first contends the trial court abused its discretion by admitting evidence that he refused to submit to a psychological examination during pretrial discovery. He contends this evidence was unfairly prejudicial. Ά7 Dr. Leslie Rawlings is a psychologist. He evaluated Mr. Duncan in 1996 just before the State filed its petition for commitment. He considered his 1996 evaluation and Mr. Duncan's history of sex offenses. He reviewed his records. And he undertook an actuarial risk assessment. The actuarial approach to risk assessment uses a statistical analysis to identify a limited set of risk factors that assist in the prediction of future dangerousness. In re Det. of Thorell, 149 Wn.2d 724, 753, 72 P.3d 708 (2003). Dr. Rawlings concluded that Mr. Duncan exhibited schizophrenia and severe pedophilia and had great difficulty controlling his sexual behavior. He testified that this mental abnormality made it more likely than not that Mr. Duncan would commit acts of predatory violence if not confined. Ά8 Dr. Rawlings admitted that his conclusion that Mr. Duncan still fantasized about children was based "on what others have written." Report of Proceedings (RP) at 1256. The State then asked whether he would have liked an opportunity to update his evaluation of Mr. Duncan. Dr. Rawlings said yes. The State then asked, "And what stopped you from doing that?" Id. at 1328. Ά10 The trial judge ruled that the State could ask whether Mr. Duncan had refused a mental examination because this was a civil action and Mr. Duncan therefore had no right to confrontation or to remain silent. The court also concluded that fairness entitled the State to ask whether Mr. Duncan had consented to a more recent interview because he had made the point that Dr. Rawlings' opinion was to some degree based on hearsay reports. The court denied Mr. Duncan's motion for mistrial. The State then asked Dr. Rawlings if he had asked to interview Mr. Duncan again. Dr. Rawlings answered, "Yes." RP at 1341. The State then asked, "And were you able to interview him?" Id. Dr. Rawlings answered, "No." Id. No further testimony was presented on this subject. Ά14 This was an SVP civil commitment proceeding. A central issue then was Mr. Duncan's current mental state and his likelihood to engage in predatory acts of sexual violence if released. In re Det. of Kelley, 133 Wn. App. 289, 292, 135 P.3d 554 (2006), review denied, 159 Wn.2d 1019 (2007). Reliable, up-to-date information on Mr. Duncan's psychological state was highly relevant. And an explanation why the State could not provide current information was also therefore relevant. The trial court did not abuse its discretion in allowing the State to pursue this line of questioning. Stackhouse, 90 Wn. App. at 356. Ά16 The State showed on cross-examination of Dr. Wollert that Mr. Duncan intended to move in with Mr. Walls. Mr. Duncan argued, outside the presence of the jury, that this opened the door to inquiry about the Walls proceeding and specifically to inquiry about why the SVP proceeding against Mr. Walls was dismissed. The court disagreed and refused to allow the inquiry of Dr. Wollert. Ά17 Mr. Duncan now contends the admission of Mr. Walls' criminal sexual history was unfairly prejudicial. He did not object on the basis of prejudice at trial. But that aside, we conclude that the trial court did not abuse its discretion. Mr. Duncan testified that he had an adult sexual relationship with Mr. Walls and now had appropriate masturbatory fantasies as a result. The fact that Mr. Walls had a history of sexually abusing children was relevant, given the fact that Mr. Duncan intended to live with him. Ά18 Moreover, Mr. Duncan had the opportunity to address that fear. In response to a juror who asked what he would do if he found out Mr. Walls was sexually molesting children in their apartment, Mr. Duncan answered that he would leave and call the police. Information that Mr. Duncan's intended roommate had a history of sexual offenses against children was not then unfairly prejudicial under the circumstances. Stackhouse, 90 Wn. App. at 356. And the trial judge did not, therefore, abuse his discretion by refusing further inquiry into the Walls proceeding. LIMITATION ON CROSS-EXAMINATION RE: SUCCESS OF THE SCC PROGRAM Ά19 Dr. Paul Spizman is a psychologist at the SCC. He testified for the State. He related Mr. Duncan's history of treatment and infractions at the SCC. He also stated that untreated sexual offenders have great difficulty learning to control criminal sexual behavior. On cross-examination, Mr. Duncan's counsel asked Dr. Spizman if he was aware of complaints about treatment at the SCC, including a federal lawsuit filed by Mr. Duncan alleging inadequate treatment. The State objected and argued that the parties had agreed that the federal lawsuit, which was still unresolved, was irrelevant to this civil commitment proceeding. Mr. Duncan argued that the success of the treatment program was now relevant due to the emphasis placed on his refusal to seek therapy. The trial court ruled that evidence about the federal lawsuit and the success or failure of the SCC's treatment program was "not the issue before this Court, and we can't possibly do it justice in any reasonable length of time." RP at 1424. Ά20 Mr. Duncan now assigns error to the trial court's refusal to allow him to ask about the success of the SCC programs generally. Ά23 The private interest affected here is Mr. Duncan's freedom from involuntary commitment. This interest is substantial. Id. But so is the State's interest in limiting testimony to relevant issues. See id. (finding substantial government interest in limiting expert witnesses at SVP show cause hearing when documentary evidence is sufficient). In light of the relatively equal weight of these interests, the second factor becomes dispositive. Ά24 The court allowed Mr. Duncan to cross-examine Dr. Spizman. But the court refused to allow inquiry of Dr. Spizman as to the treatment program's success rate. Mr. Duncan was allowed to testify that he chose not to attend treatment at the SCC because he did not find it meaningful for him. It was within the trial court's discretion to limit a foray into the side issue of the program's general success rate for other participants. ER 611(b); State v. King, 113 Wn. App. 243, 289, 54 P.3d 1218 (2002) (scope of cross-examination is within the trial court's sound discretion). Ά25 The relevant question here was whether Mr. Duncan currently had a mental abnormality that made him likely to engage in predatory acts of sexual violence. Former RCW 71.09.020(1) (1995). The trial court's refusal to allow cross-examination into the general success of the SCC's treatment program did not increase the risk that Mr. Duncan would be erroneously committed. Brock, 126 Wn. App. at 964. The trial court did not deny Mr. Duncan's right to due process of law. Accordingly, the trial judge did not abuse his discretion by limiting the scope of questions put to Dr. Spizman on cross-examination. EXCLUSION OF EXPERT TESTIMONY Ά26 Finally, Mr. Duncan contends the trial court denied him his right to due process by preventing another witness from testifying about the effectiveness of the mental health treatment at the SCC. Dr. Robert Halon is a forensic psychologist and marriage therapist. He testified that he gave Mr. Duncan a Rorschach (ink blot) test that indicated Mr. Duncan was not a schizophrenic. Dr. Halon felt that Mr. Duncan was impulsive, still fantasized about children, and could reoffend if angered. But he did not think the evidence established that Mr. Duncan had a mental abnormality such as pedophilia. Ά27 Mr. Duncan's lawyer asked Dr. Halon if he had reviewed the treatment program at the SCC. Dr. Halon answered that he had reviewed the protocol and the deposition of an employee at the SCC. The State objected to Dr. Halon giving an opinion on the quality of treatment at the SCC. The State argued that this testimony was not relevant. The trial court agreed. It noted that Mr. Duncan could testify that he did not pursue treatment at the SCC because it did not help him. An expert's opinion on the general success rate of treatment at the SCC, the court continued, was just too much of a side issue. Mr. Duncan contends this limitation on expert testimony prevented him from rebutting the State's evidence that he simply chose not to participate in treatment. He asserts the inadequacy of the SCC treatment program was an essential element of his defense. CUMULATIVE ERROR Ά31 We affirm the order declaring Mr. Duncan an SVP. SCHULTHEIS and STEPHENS, JJ., concur. Reconsideration denied January 11, 2008.