In re Det. of Kevin Coe A/K/A Fredrick Harlan Coe

• Decision Date: 24 March 2011
• Docket Number: No. 27520–5–III.
• Citation: In re Det. of Kevin Coe A/K/A Fredrick Harlan Coe, 160 Wash.App. 809, 250 P.3d 1056 (Wash. App. 2011)
• Parties: In re Detention of Kevin COE a/k/a Fredrick Harlan Coe,State of Washington, Respondent,v.Kevin Coe, Appellant.
• Court: Washington Court of Appeals

160 Wash.App. 809

250 P.3d 1056

In re Detention of Kevin COE a/k/a Fredrick Harlan Coe,State of Washington, Respondent,

v.Kevin Coe, Appellant.

No. 27520–5–III.

Court of Appeals of Washington, Division 3.

March 24, 2011.

Eric J. Nielsen, Casey Grannis, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Malcolm Ross, Attorney General of Washington, Seattle, WA, for Respondent.BROWN, J.

[160 Wash.App. 815] ¶ 1 Kevin Coe, having served 25 years for first degree rape, appeals his later civil commitment as a sexually violent predator (SVP) under RCW 71.09.060. The State's psychological expert opined Mr. Coe suffers from a mental abnormality or personality disorder making him likely to engage in acts of sexual violence if not confined. Mr. Coe contends the trial court erred in admitting (1) other expert testimony regarding Mr. Coe's unique combination-of-behavior “signature” indicating he committed multiple sexual offenses other than the underlying rape, (2) unadjudicated offenses identified from a statistical database, (3) testimony by some unadjudicated-offense victims, and (4) the psychological expert's opinion because it was partly based on the first three admission errors. Further, Mr. Coe asserts (5) he was denied due-process confrontation, and (6) ineffective assistance of his trial counsel in failing to offer a jury instruction defining “personality disorder.” We reject his contentions and affirm.

FACTS

¶ 2 During the late 1970s through the early 1980s, multiple rapes were committed against women living primarily on the south side of Spokane. Most of the victims were attacked on the city's South Hill, outdoors, in the dark, while the victims were jogging or walking near bus stops. Multiple indecent exposure incidents were similarly reported.

[160 Wash.App. 816] ¶ 3 Police investigators targeted Mr. Coe as the rapist. He was charged in 1981 with five counts of first degree rape and one count of second degree rape. A jury found him guilty of four counts of first degree rape. State v. Coe, 101 Wash.2d 772, 774, 684 P.2d 668 (1984). In 1984, our state Supreme Court reversed the convictions mainly due to possible trial prejudice from testimony of witnesses hypnotized before his arrest. Id. at 786, 684 P.2d 668. At retrial, the jury found Mr. Coe guilty of three of the four rapes. State v. Coe, 109 Wash.2d 832, 836, 750 P.2d 208 (1988). Two convictions were again reversed due to the post-hypnotic identification testimony. Id. at 850, 750 P.2d 208. Mr. Coe's first degree rape conviction concerning victim Julie H. was affirmed; Mr. Coe was sentenced to 25 years.

¶ 4 In August 2006, before Mr. Coe was scheduled for release, the State petitioned the Spokane County Superior Court seeking his involuntary SVP commitment under chapter 71.09 RCW. The court found probable cause and set the matter for trial. Before trial, Mr. Coe moved to exclude certain victim testimony; evidence of unadjudicated offenses; and the testimony of Dr. Robert Keppel, a signature analysis expert regarding the Homicide Investigation Tracking System (HITS) database. And, Mr. Coe asked to limit psychologist Dr. Amy Phenix's testimony to prevent her from relying on that challenged evidence. The court admitted most of the challenged evidence. The jury found that Mr. Coe was an SVP, and the court committed him on October 16, 2008. Mr. Coe appealed.

OVERVIEW AND STANDARD OF REVIEW

¶ 5 The sexually violent predators act, chapter 71.09 RCW, provides detailed procedures for civil commitment of persons found to be an SVP. In re Det. of Post, 170 Wash.2d 302, 309, 241 P.3d 1234 (2010). Typically, the process begins with the State filing a petition when a person convicted of a sexually violent offense is about to be released from total confinement. RCW 71.09.030(1). The petition alleges the offender is an SVP, defined as a person 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.” ¹ Former RCW 71.09.020(16) (2006). In re Det. of Marshall, 156 Wash.2d 150, 156–57, 125 P.3d 111 (2005). If, after a probable cause hearing, the court decides probable cause exists to believe that the offender is an SVP, the offender is evaluated by a mental health professional and a trial date is set. Former RCW 71.09.040(4) (2001); former RCW 71.09.050(1) (1995).

¶ 6 Although SVP commitment proceedings are not criminal proceedings, they include some of the same protections as a criminal trial, including the rights to appointment of counsel, a jury trial, proof beyond a reasonable doubt that the offender is an SVP, and jury unanimity. Former RCW 71.09.050(1), (3); RCW 71.09.060(1); In re Det. of Stout, 159 Wash.2d 357, 370–71, 150 P.3d 86 (2007). At trial, the State must prove three elements beyond a reasonable doubt: (1) the offender has been charged with or convicted of a crime of sexual violence; (2) the offender suffers from a mental abnormality or personality disorder; and (3) the abnormality or disorder makes the offender “likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Former RCW 71.09.020(16). The third element requires finding both causation and the probability of reoffense exceeds 50 percent. Post, 170 Wash.2d at 310, 241 P.3d 1234. The trier of fact must conclude beyond a reasonable doubt that it is more likely than not that the respondent will engage in predatory acts of sexual violence if not confined. Id.

¶ 7 Mr. Coe first raises challenges to the admission of evidence at the SVP hearing. We review the trial court's decisions to admit or exclude evidence for abuse of discretion. State v. Thomas, 150 Wash.2d 821, 856, 83 P.3d 970 (2004).

ANALYSIS

A. Dr. Keppel

¶ 8 The issue is whether the trial court erred in admitting Dr. Keppel's “signature analysis” testimony of multiple sexual offenses he attributed to Mr. Coe. Dr. Keppel is a criminal justice professor. Expert testimony is admissible under ER 702 if the witness qualifies as an expert and if the witness's testimony would be helpful to the jury. State v. Russell, 125 Wash.2d 24, 69, 882 P.2d 747 (1994). Admission of expert testimony under ER 702 is reviewed for abuse of discretion and we will not disturb the trial court's ruling if the reasons for admitting or excluding the testimony are fairly debatable. Id.; Miller v. Likins, 109 Wash.App. 140, 147, 34 P.3d 835 (2001).

¶ 9 Mr. Coe does not challenge Dr. Keppel's expert witness qualifications. See Russell, 125 Wash.2d at 69, 882 P.2d 747 (Dr. Keppel has extensive experience in serial crime analysis). He contends Dr. Keppel's signature analysis was not helpful to the jury because (1) the analysis did not show a unique modus operandi (MO), and (2) many of the sexual offenses did not exhibit the unique signature. Basically, Mr. Coe argues this violates ER 404(b). See State v. Fortin, 189 N.J. 579, 594, 917 A.2d 746 (2007) (signature crime evidence falls within the category of other crime evidence governed by rule 404(b)).

¶ 10 ER 404(b) prevents a trial court from admitting evidence of other crimes or acts to prove the character of a person and to imply that the person acted in conformity with that character. State v. Foxhoven, 161 Wash.2d 168, 174–75, 163 P.3d 786 (2007). Such evidence may be admissible for another purpose, however, such as to prove motive, plan or identity. ER 404(b). To admit evidence of prior misconduct, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify the purpose of the evidence; (3) decide whether the evidence is relevant to prove an element of the State's case; and (4) find that the probative value of the evidence outweighs its prejudice. Foxhoven, 161 Wash.2d at 175, 163 P.3d 786. “This analysis must be conducted on the record.” Id. If the evidence is admitted, the trial court must give the jury a limiting instruction. Id.

¶ 11 The trial court wrote a memorandum opinion analyzing the existence, purpose, relevance, and prejudice of the sexual offenses used by Dr. Keppel in his signature analysis. Mr. Coe did not challenge the occurrence of the unadjudicated offenses, solely his identity as the perpetrator. The court found by a preponderance of the evidence that the offenses occurred and found the reason the State sought admission of uncharged sexual offenses was to show Mr. Coe's “prior sexual history demonstrates his propensity for future violence.” Clerk's Papers (CP) at 894. As noted in In re Detention of Turay, 139 Wash.2d 379, 401, 986 P.2d 790 (1999), prior sexual history is highly probative of an offender's propensity for future sexual violence. Therefore, the unadjudicated offenses, if committed by Mr. Coe, would be indicative of his threat to the community if not confined. Former RCW 71.09.020(16).

¶ 12 Mr. Coe argues the unadjudicated sexual offenses are irrelevant because they are insufficiently unique to establish his identity based on MO. Generally, relevant evidence has the tendency to make the existence of any consequential fact more probable or less probable than it would be without the evidence. ER 401; Post, 170 Wash.2d at 311, 241 P.3d 1234; Foxhoven, 161 Wash.2d at 176, 163 P.3d 786. The trial court's role is to weigh the relevance of particular evidence, and we review the trial court's decision for abuse of discretion. Foxhoven, 161 Wash.2d at 176, 163 P.3d 786.

¶ 13 When evidence of prior crimes is introduced to show identity by establishing a unique MO, the evidence is relevant solely if the method used to commit the crimes is so unique that proof the offender committed one of the crimes creates a high probability he committed the others. Foxhoven, 161 Wash.2d at 176, 163 P.3d 786 (quoting State v. Thang, 145 Wash.2d 630, 643, 41 P.3d 1159 (2002)). The greater the distinctiveness of the method used to commit the crimes, the higher the probability the offender...