Detention of Marshall v. State

• Decision Date: 22 December 2005
• Docket Number: No. 75521-3.,75521-3.
• Citation: 156 Wn.2d 150,125 P.3d 111
• Court: Washington Supreme Court
• Parties: In the Matter of the DETENTION OF Raymond MARSHALL, Petitioner, v. STATE of Washington, Respondent.

Page 111

125 P.3d 111

156 Wn.2d 150

In the Matter of the DETENTION OF Raymond MARSHALL, Petitioner, v. STATE of Washington, Respondent.

No. 75521-3.

Supreme Court of Washington, En Banc.

Argued March 10, 2005.

Decided December 22, 2005.

David Schultz, Attorney at Law, Camas, for Petitioner.

Krista Kay Bush, Attorney General, Seattle, for Respondent.

MADSEN, J.

Petitioner Raymond Marshall challenges a Court of Appeals' decision affirming his commitment as a sexually violent predator. He claims that his detention is improper because the State was required to plead and prove a "recent overt act." Marshall also challenges the State's expert's testimony, arguing, among other things, that the psychologist who testified was not licensed to practice in Washington and therefore was not authorized to conduct an evaluation to determine whether he is a sexually violent predator. We affirm the Court of Appeals.

FACTS

On November 6, 2000, the State filed a petition seeking to have Mr. Marshall committed as a sexually violent predator pursuant to chapter 71.09 RCW. Marshall has a history of sex offenses, including a conviction pursuant to a plea agreement for child molestation resulting from sexual contact with a six-year-old girl in 1989. This offense was a sexually violent offense, as the term is defined in RCW 71.09.020. At the same time, Mr. Marshall pleaded guilty to communicating with a child for immoral purposes; the offense was committed in 1989, and the victim was an 11-year-old boy. Marshall was sentenced to a 27-month prison term for these offenses and was released in June 1992. Mr. Marshall was convicted in 1992 of felony communication with a minor for immoral purposes, resulting from fondling a nine-year-old girl on August 14, 1992, while he worked as a ride attendant at a county fair. In exchange for his guilty plea on this charge, an additional charge of child molestation was dismissed. Marshall was sentenced to 16 months' confinement and was released in August 1993.

In 1995, Mr. Marshall attempted to lure two 11-year-old girls to him and stared at the genital area of one of the girls. He was on community placement at the time, with conditions that prohibited him from having contact with minor girls. He received a community placement violation as a result of these acts.

In 1996, following a jury trial, Mr. Marshall was convicted of third degree rape, the offense for which he was incarcerated at the time the State filed the sexually violent predator petition. This conviction resulted from Marshall having nonconsensual sexual intercourse with an adult female on November 19, 1995. Although the victim was an adult, she was developmentally disabled and functioned at the level of a 10- to 12-year-old.

The certification of probable cause included the opinion of a Department of Corrections psychologist that Marshall met the criteria for commitment as a sexually violent predator. Neither the State's petition nor the certificate alleged that Mr. Marshall was confined as a result of a conviction for a sexually violent act or an act that would qualify as a "recent overt act" under RCW 71.09.020(10). Marshall moved to dismiss the petition, arguing that due process required that the State plead and prove a recent overt act. The trial court denied the motion.

The trial court found that there was probable cause to believe that Marshall was a sexually violent predator and ordered him detained for an evaluation pursuant to RCW 71.09.040(4) before his commitment trial. At the special commitment center, a Washington licensed psychologist conducted the evaluation and prepared a report concluding that Mr. Marshall met the criteria for commitment as a sexually violent predator. The State also obtained an evaluation by another psychologist pursuant to a CR 35 court order. Shortly before the commitment trial was to begin, the trial court granted Mr. Marshall's motion to exclude the evaluation and testimony by this psychologist in light of In re Detention of Williams, 147 Wash.2d 476, 55 P.3d 597 (2002), where this court held that CR 35 may not be used to compel a mental examination during pretrial discovery in civil commitment proceedings under chapter 71.09 RCW.

The State then retained Dr. Amy Phenix, who has been licensed as a clinical psychologist since 1992 in her home state of California. Dr. Phenix specializes in sex offender risk assessment and evaluation. She has conducted over 225 evaluations of individuals under sexually violent predator statutes in California, Washington, and in other states.

Dr. Phenix did not conduct an in-person interview or evaluation of Mr. Marshall. Instead, she reviewed records of Marshall's criminal and psychiatric history, including police reports, legal records, treatment records, juvenile records, psychological and psychiatric evaluations, and medical records. At the commitment trial, which was tried to the judge, Dr. Phenix testified that these are the type of records on which professionals in her field rely when evaluating individuals to determine whether they are sexually violent predators.

Dr. Phenix determined that Mr. Marshall suffers from multiple mental abnormalities described in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-TR), a reference relied on by experts. Specifically, she found he suffers from pedophilia, sexual sadism, and paraphelia not otherwise specified (nonconsenting adults or rape-like behavior).¹ In reaching these conclusions, Dr. Phenix also relied on Mr. Marshall's self-reported fantasies and results of phallometric assessment. In addition, Dr. Phenix testified, Marshall suffers from antisocial personality disorder. Dr. Phenix testified that in her opinion Marshall's mental abnormalities made it very likely that he would commit predatory acts of sexual violence in the future if he were not confined in a secure facility.

The State also called Mr. Marshall as a witness, who admitted to a jail guard that he might pose a risk to children but denied that he would be a danger to children if released. Additionally, the jail guard testified that he had transported Marshall to the courtroom that day and that during a short conversation Marshall said that "your children aren't safe." Report of Proceedings (RP) at 229. The State introduced copies of the records of Marshall's conviction for the 1989 child molestation that was a sexually violent offense, as well as copies of the records of Marshall's convictions for other sex-related offenses.

The trial court determined that Mr. Marshall is a sexually violent predator and entered an order committing him to the custody of the Department of Social and Health Services for placement in a secure facility pursuant to chapter 71.09 RCW. Mr. Marshall appealed, arguing that the State was required to plead and prove a "recent overt act," that Dr. Phenix was not qualified to testify, and that her testimony should have been excluded because she relied on inadmissible hearsay evidence to form her testimony. The Court of Appeals affirmed. In re Det. of Marshall, 122 Wash.App. 132, 90 P.3d 1081 (2004). We granted Marshall's petition for discretionary review.

ANALYSIS

Mr. Marshall contends that because he was not incarcerated for a sexually violent offense when the sexually violent predator petition was filed, the State was required as a matter of due process to plead and prove beyond a reasonable doubt that he had committed a "recent overt act" in order to commit him as a sexually violent predator. The State maintains that the third degree rape for which Marshall was incarcerated at the time the sexually violent predator petition was filed was a crime that itself qualified as a recent overt act and therefore the State was not required to allege and prove that Marshall had committed a recent overt act.

The State may file a petition alleging an individual is a sexually violent predator when "it appears that ... [a] person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement." RCW 71.09.030(1). Under RCW 71.09.020(16) a "sexually violent predator" is one who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." RCW 71.09.020(8) defines "mental abnormality" which "is tied directly to present dangerousness." In re Det. of Henrickson v. State, 140 Wash.2d 686, 692, 2 P.3d 473 (2000). This tie to present dangerousness is constitutionally required, as recognized in In re Personal Restraint of Young, 122 Wash.2d 1, 27, 857 P.2d 989 (1993), because due process requires that an individual must be both mentally ill and presently dangerous before he or she may be indefinitely committed. Accord In re Det. of Albrecht, 147 Wash.2d 1, 7-8, 51 P.3d 73 (2002).

Proof of a recent overt act may be required to establish current dangerousness. A "recent overt act" is "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." RCW 71.09.020(10). However, RCW 71.09.060(1) provides that the State must prove beyond a reasonable doubt that an individual has committed a recent overt act only if on the day the petition is filed, the individual was living in the community after release from custody. The statute "unambiguous[ly] direct[s] that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed." Henrickson, 140 Wash.2d at 693, 2 P.3d 473.

Moreover, as we expressly held in Henrickson, due process does not require the State to prove a recent overt act "[w]hen, on the day a sexually violent predator petition is filed, an...