Harper v. State

• Decision Date: 21 November 2018
• Docket Number: NO. 95511-5,95511-5
• Citation: 429 P.3d 1071 (Mem)
• Parties: Cathy HARPER, Individually, as Personal Representative of the Estate of Tricia Patricelli, as Guardian Ad Litem for Khalani Michael, a Minor Child, and as Guardian Ad Litem for Niyerrah Michael, a Minor Child, Respondent, v. STATE of Washington; Washington Department of Corrections, a Governmental Entity, Petitioner, and Rhonda Freeland and John Doe Freeland and their Marital Community, Defendants.
• Court: Washington Supreme Court

429 P.3d 1071 (Mem)

Cathy HARPER, Individually, as Personal Representative of the Estate of Tricia Patricelli, as Guardian Ad Litem for Khalani Michael, a Minor Child, and as Guardian Ad Litem for Niyerrah Michael, a Minor Child, Respondent,

v. STATE of Washington; Washington Department of Corrections, a Governmental Entity, Petitioner,andRhonda Freeland and John Doe Freeland and their Marital Community, Defendants.

NO. 95511-5

Supreme Court of Washington.

Filed November 21, 2018

Argued September 11, 2018

Paul J. Triesch, Attorney General's Office, Kaylynn What, Attorney General, Torts, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Petitioner.

Sean P. Gillespie, Kenan Lee Isitt, Christopher R. Carney, Carney Gillespie Isitt PLLP, 600 1st Ave. Ste. Ll08, Seattle, WA, 98104-2679, Respondent.

Christopher R. Carney, Sean P. Gillespie, Carney Gillespie Isitt PLLP, 600 1st Ave. Ste. Ll08, Seattle, WA, 98104-2679, Counsel for Minor.

Michael E. Tardif, Jeffrey A.O. Freimund, Freimund Jackson & Tardif PLLC, 711 Capitol Way S Ste. 602, Olympia, WA, 98501-1236, for Amicus Curiae on behalf of Washington Cities Insurance Authority, Washington Counties Risk Pool.

GORDON McCLOUD, J.

¶ 1 Scottye Miller murdered his longtime girlfriend, Tricia Patricelli, 15 days after he was released from prison on Department of Corrections (DOC)-supervised probation. It is undisputed that everyone involved—Patricelli, Patricelli’s family and friends, and DOC—knew that Miller had physically abused Patricelli in the past and would likely do so again if they resumed their relationship.

¶ 2 They did resume that relationship. But Patricelli hid the renewed relationship from her friends, family members, and DOC. In fact, Patricelli explicitly assured DOC that she was not in a relationship with Miller, that she was moving to a place where he could not find her, and that she would call the police if she saw him. Miller’s mother also verified in writing that he was sleeping at her home, though it turns out that he was actually living with Patricelli.

¶ 3 The question here is whether DOC is liable for Patricelli’s death, despite Patricelli’s, Miller’s, and his mother’s active and successful efforts to prevent DOC from knowing that Miller was in contact with Patricelli. The parties agree that DOC had a duty to supervise Miller while he was on probation and that DOC is not liable unless its supervision constitutes "gross negligence." RCW 9.95.204(4) ; RCW 72.09.320. But the parties disagree on whether DOC’s actions rose to the level of gross negligence.

¶ 4 The trial court dismissed on summary judgment. Clerk’s Papers (CP) at 1286-89. The Court of Appeals reversed. Harper v. Dep’t of Corr., 2 Wash. App. 2d 80, 92-94, 408 P.3d 735, review granted , 190 Wash.2d 1025, 419 P.3d 409 (2018). It ruled that DOC’s failure to take additional steps to verify Patricelli’s statements or Miller’s housing arrangements could qualify as gross negligence. It also stated that whether a defendant acted with simple or gross negligence is basically a question for the jury, not the court. We reverse the Court of Appeals.

FACTS AND PROCEDURAL BACKGROUND ¹

1. At the time of the murder, DOC was supervising Miller pursuant to two misdemeanor convictions; one of the convictions included an order barring Miller from contacting Patricelli

A. King County Superior Court, No. 10-1-03032-4 KNT

¶ 5 Miller had a lengthy criminal history. In 2010, the superior court sentenced Miller to 12 months in jail for a misdemeanor violation of a court order barring him from contacting Patricelli. CP at 80, 980. The superior court suspended that sentence on condition that Miller serve 180 days in jail and submit to 24 months of DOC-supervised probation. CP at 80-81. In addition to probation, the superior court imposed various conditions, ordering Miller to (1) "enter into, make reasonable progress and successfully complete a state certified domestic violence treatment program," (2) "commit no criminal offenses," and (3) "comply with the standard rules and regulations of supervision." CP at 81-82.²

¶ 6 DOC imposed numerous additional conditions, including that Miller (1) remain within King County, (2) obtain written permission before leaving King County or Washington State, (3) notify DOC before changing residences or employment, (4) abide by written or verbal instructions issued by his community corrections officer, (5) inform DOC of any prescribed medications, (6) not operate a vehicle without a license, (7) not possess or consume alcohol or controlled substances, (8) not frequent places where liquor is sold, (9) submit to breath alcohol concentration and urinalysis testing, (10) complete requested chemical dependency evaluations, (11) complete a mental health evaluation and enter into treatment as directed, (12) not change treatment providers without prior DOC approval, and (13) consent to home visits. CP at 576.

¶ 7 Because the probation period "tolled during any period of confinement," CP at 81, it remained in effect at the time of the murder.

B. King County Superior Court, No. 12-1-00643-8 KNT

¶ 8 In 2011, during an argument about Miller’s infidelity, Miller pushed Patricelli, punched her in the eye, and threatened to kill her. CP at 1051-52. Miller pleaded guilty to felony harassment and misdemeanor assault. CP at 84 (felony harassment), 93 (misdemeanor assault).

¶ 9 For the felony harassment, the superior court gave Miller a special drug offender sentencing alternative (DOSA). CP at 88. That DOSA required Miller to undergo residential chemical dependency treatment for 3 to 6 months, followed by 24 months of community custody supervision. Id. The superior court memorialized the sentence in a felony judgment and sentence (J&S). CP at 84-89. But that court subsequently revoked Miller’s DOSA, resentenced him to 366 days of confinement, and rescinded the terms of community custody. CP at 97-99.

¶ 10 For the misdemeanor assault, the superior court sentenced Miller to 364 days in jail but suspended it all on condition that Miller serve only a few days in jail and submit to 24 months of DOC-supervised probation. CP at 93-95. The superior court ordered the following probation conditions: (1) "have no contact with [ ] Tricia Patricelli per the [separate no-contact order ]," (2) "comply with the standard rules and regulations of supervision," (3) "commit no criminal offenses," and (4) "abide by conditions on [the DOSA]." Id. (emphasis added). The cross-referenced DOSA conditions were to (1) "not use illegal controlled substances," (2) "not use any alcohol or controlled substances without prescription," (3) "report as directed to a community corrections officer," (4) "[p]ay all court ordered legal financial obligations," and again, (5) "have no contact with Tricia Patricelli per the separate [no-contact order ]." CP at 88-89 (emphasis added). The superior court memorialized the sentence in a separate misdemeanor J&S under the same cause number as the felony. CP at 93-95. The 2012 conviction’s probation period, like the 2010 conviction’s probation period, was "tolled during any period of confinement." CP at 93-94.

¶ 11 The separate no-contact order barred Miller from contacting Patricelli for five years, although it gave Miller permission to call and visit with her while he was in custody and enrolled in treatment. CP at 101. As mentioned above, the superior court directly incorporated by reference this no-contact order as a sentence condition in the misdemeanor J&S. CP at 95.

¶ 12 The no-contact order says that Miller (1) "shall not cause, attempt, or threaten to cause bodily injury to, assault, sexually assault, harass, stalk, or keep under surveillance [Tricia Patricelli]," (2) "shall not contact the protected person, directly, indirectly, in person or through others, by phone, mail or electronic means, except for mailing or service of process of court documents through a third party, or contact by the defendant’s lawyers," and (3) "shall not knowingly enter, remain, or come within 1000 feet ... of the [protected person or that] person’s residence, school, [or] workplace, ... [e]xcept the defendant may have telephonic contact with the protected person and may be visited by the protected person while in custody and in treatment after the [b]lack out [p]eriod." CP at 101.

¶ 13 In addition to the court-ordered conditions, DOC required Miller to (1) "[w]ork at a DOC approved education, employment, and/or community restitution," (2) "[n]ot possess or consume controlled substances except pursuant to lawfully issued prescriptions," (3) "[p]ay supervision fees as determined by the DOC," (4) "[r]eceive prior approval for living arrangements and residence location," (5) "[n]ot own, use, or possess a firearm or ammunition," (6) "[n]otify [his community custody supervisor] of any change in address or employment," (7) "[u]pon request of the DOC, notify [it] of court-ordered treatment," and (8) "not consume any alcohol." CP at 577.

¶ 14 On October 15, 2012, Miller completed his felony sentence and was released. CP at 1125. Fifteen days later, he killed Patricelli. CP at 575. As outlined above and discussed below, the record shows that during those 15 days, DOC was actively supervising Miller on both the 2010 misdemeanor probation, which had very few conditions, and the 2012 misdemeanor probation, which included a no-contact order.

2. DOC communicated with Patricelli several times prior to Miller’s release

¶ 15 Before Miller was released on the balance of his 2010 and 2012 misdemeanor probation terms, Angella Coker, a victim services liaison from DOC, contacted Patricelli four times to inform her of Miller’s impending release and to help her develop a safety plan. CP at 138-39. Patricelli assured Coker that she did not intend to resume her relationship with Miller and that she planned to move without informing Miller of her new address. Id. Coker also wrote a letter, which Patricelli had requested, confirming Patricelli’s status...