Bell v. State

• Decision Date: 22 August 2002
• Docket Number: No. 71485-1.,71485-1.
• Court: Washington Supreme Court
• Parties: Barbara J. BELL, Petitioner, v. STATE of Washington, Respondent, Randy Garrett and Jane Doe Garrett, husband and wife; Cedar Bridge Associates; John W. Colson and Jane Doe Colson, husband and wife; John W. Colson & Associates, Defendants.

52 P.3d 503

147 Wash.2d 166

Barbara J. BELL, Petitioner, v. STATE of Washington, Respondent, Randy Garrett and Jane Doe Garrett, husband and wife; Cedar Bridge Associates; John W. Colson and Jane Doe Colson, husband and wife; John W. Colson & Associates, Defendants.

No. 71485-1.

Supreme Court of Washington, En Banc.

Argued May 9, 2002.

Decided August 22, 2002.

Reconsideration Denied October 16, 2002.

Williams Kastner & Gibbs, Kenneth Petty, Lisa Wiese, Schroeter Goldmark & Bender, Janet Rice, Seattle, Cornell Paris & Dean, William Cornell, Bellevue, Mark Leemon, Seattle, for Petitioner.

Christine Gregoire, Attorney General, Paul Triesch, Catherine Hendricks, Assistants, Seattle, Michael Lynch, Assistant, Olympia, for Respondent.

Debra Stephens, Bryan Harnetiaux, Spokane, Amicus Curiae on Behalf of Washington State Trial Lawyers Assoc.

SANDERS, J.

A plaintiff in a negligent parole supervision action must prove the inadequate supervision proximately caused the complained—of injuries.

Here Barbara Bell, abducted and raped by a sex offender on parole, sued the State of Washington for failing to use reasonable care to supervise the parolee. The jury found the state breached its duty to reasonably supervise but also found that breach was not a proximate cause of the injury. The Court of Appeals affirmed. We accepted review to consider whether the trial court erred when it (1) refused Bell's proposed jury instructions on the standard of proof and factors governing decisions on parole; (2) admitted testimony from a former member of the Indeterminate Sentence Review Board on the minimum standard of proof required to establish a parole violation at a revocation hearing; and (3) refused to admit into evidence a sexually explicit magazine found at the scene of the abduction.

FACTS

Barbara Bell worked as a real estate agent in the Spokane area. In early October 1995 she received a phone call from Byron Scherf about a home she had listed in Homes Magazine. The house was in a remote location between Spangle and Cheney. Bell and Scherf agreed to meet the following day at the house. Although Scherf stated his wife would accompany him, Bell found Scherf waiting for her alone when she arrived at the house. While Bell showed Scherf the master bedroom, he suddenly attacked her. Scherf grabbed Bell by the throat, choked her, and fell on top of her. Bell started screaming, but stopped when Scherf told her he would snap her neck if she continued. Scherf told Bell he had killed several women before and would not hesitate to kill her as well. Scherf grabbed Bell by the neck and took her to the kitchen, where he picked up a butcher knife. With the knife pressed against Bell's ribs, Scherf took her by the neck to the trunk of his car and made her get in. Scherf drove out into the woods, brought Bell out of the trunk, and raped her. Afterward, Scherf again threatened to kill Bell, but she managed to convince Scherf to release her without further harm by promising she would not report him to the police. Scherf took Bell back to the prospect house, where he set her free.

What Bell could not know when she agreed to meet Scherf at the remotely located house was that he was a two-time felon on parole for kidnapping, raping, and setting another woman on fire. In the late 70s Scherf was convicted of second degree assault and served 2 years of a 10 year prison term. He was paroled in the spring of 1980. While on parole Scherf kidnapped a young waitress and brought her to an abandoned house where he bound and raped her. Scherf then poured gasoline over the waitress, lit it, and left. The waitress survived by wriggling, still bound, through a second-story window. Her fall was broken by a veranda porch, after which she managed to free herself and call for help. It was for this conviction Scherf was on parole when he attacked Bell.

His parole began on December 30, 1993, approximately two years before this attack. Among the original conditions of release were that Scherf obey all laws, report regularly to his community corrections officer (CCO), complete inpatient chemical or mental-health counseling, submit to periodic polygraph examinations on matters related to conformity with parole conditions and sexual deviancy, register as a sex offender, and obtain approval from his CCO for all living, employment, and educational arrangements.

Following release Scherf lived with his wife, whom he had married while in prison, and attended Eastern Washington University. Initially Scherf substantially complied with these original parole conditions, but three months into his parole he told his CCO Steven Holmes about his sexual addiction and use of pornography. At a polygraph examination during the same period Scherf also admitted to using sex shops, including masturbating in film booths at least twice, "for his own version of intervention for his sexual deviant fantasies and feelings ...." Ex. D-220A, at 2-3.

Concerned about Scherf's potential to violently reoffend, CCO Holmes reported Scherf's admissions to the Indeterminate Sentence Review Board (ISRB). At Holmes' recommendation the ISRB imposed additional conditions on Scherf's parole, including prohibitions against driving without prior CCO authorization, against picking up "any strangers while operating a motor vehicle," and against possession of "hardcore/illegal or violent pornography." Ex. P-140; D-223.

Scherf continued to use sexually explicit materials. At one point he admitted to his CCO that he had bought a Playboy magazine within the past two months. Although Scherf's parole was conditioned on his consent to searches of his personal belongings, none of the three CCOs¹ assigned to supervise Scherf throughout his parole conducted such a search to determine whether the material Scherf admitted possessing was of the kind prohibited by the additional conditions.

Bell filed this action in the Spokane County Superior Court against the state alleging her injuries were the result of its negligent supervision of Scherf.² She claims had Department of Corrections (DOC) adequately supervised Scherf he would not have had the opportunity to attack her because adequate supervision would have discovered parole violations by Scherf which would have justified restrictive measures to limit Scherf's freedom.

Bell called William Stough, a former parole official, as an expert to testify about what he considered inadequate supervision of Scherf. According to Stough, Scherf's conduct on parole was troublesome from the very beginning and resulted in several parole violations. In particular, Stough opined Scherf's masturbating in film booths violated the original condition of his parole that Scherf obey all laws.³ Bell also called Dr. Irwin Dreiblatt, an experienced psychologist specializing in sexual offenses. Dr. Dreiblatt opined that in light of Scherf's history of sexual assaults and his conduct on parole, his CCOs should have recommended to the ISRB that Scherf's parole be revoked.

The state's theory of defense has consistently been that there was nothing DOC realistically could have done to prevent Scherf's attack. According to the state Scherf was in substantial compliance with his parole conditions until he raped Bell and the only potential violations of parole known to DOC were timely reported to the ISRB. The state points out Scherf's admitted use of sexually explicit materials and his frequenting of sex shops were reported to the ISRB, which decided not to revoke his parole or even hold a revocation hearing.

To counter Bell's suggestions that Scherf's parole would have been revoked but for DOC's inadequate supervision, the state called former ISRB member David Carlson who explained how the ISRB decides whether to hold a parole revocation hearing. He testified mere admissions of parole violations, such as Scherf's admitted masturbation in film booths in possible violation of a local lewd conduct ordinance, are insufficient to even commence a revocation hearing as the ISRB requires some corroboration before deciding to hold a hearing, let alone revoke parole.

Carlson also testified about the decision-making process at revocation hearings. He stated an alleged parole violation must be established with an 85 to 90 percent certainty before the ISRB would take action. Bell objected and moved to strike, noting that not only was Carlson's opinion testimony an incorrect statement of the law⁴ but since the matter was a question of law, opinion testimony would be impermissible. The court granted the motion in part, but nevertheless allowed Carlson to testify as to his understanding of the applicable standard of proof. The standard of proof at revocation hearings reappeared during the subsequent testimony of another former ISRB member, Katherine Bail. Seemingly contradicting Carlson's testimony that the ISRB is looking for something in the 85 to 90 percent range, Bail testified the standard of proof is a preponderance standard. At the conclusion of the trial Bell proposed the jury be instructed on the standard of proof so as to clear up any lingering confusion on the jury's part (Bell's proposed instruction 12).⁵ The trial court rejected the instruction citing the ISRB's discretion not to revoke parole even if a parole violation has been established by a preponderance of the evidence. Therefore, according to the court, Bell's proposed instruction 12 "is not a formal predictor of what the Board will do" and would not help the jury. Report of Proceedings (RP) at 666.

Bell also proposed two instructions intended to supplement the court's general instructions. Bell's proposed instructions 11 and 13⁶ purportedly set forth factors the ISRB must employ when determining whether to revoke parole. The trial court rejected these instructions as well. Referring to the ISRB's discretion not to revoke parole even if a violation has been established, the court concluded it would not be helpful for the jury to know...