In re Detention of Strand

• Decision Date: 08 October 2009
• Docket Number: No. 80570-9.,80570-9.
• Citation: 167 Wn.2d 180,217 P.3d 1159
• Court: Washington Supreme Court
• Parties: In re the DETENTION OF John L. STRAND, Petitioner.

217 P.3d 1159

167 Wn.2d 180

In re the DETENTION OF John L. STRAND, Petitioner.

No. 80570-9.

Supreme Court of Washington, En Banc.

October 8, 2009.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Petitioner.

Sarah Sappington, Office of The Attorney General, Seattle, WA, Kimberly Diane Frinell, Washington State Attorney General's Office Olympia, WA, for Respondents.

OWENS, J.

¶ At issue in this case is whether the sexually violent predator (SVP) statute, chapter 71.09 RCW, allows the State to perform "[a] current mental health evaluation" of a prisoner prior to the commencement of SVP commitment proceedings. RCW 71.09.025(1)(b)(v). Here, the State authorized the examination of John Strand in advance of his release from prison for purposes of providing "[a] current mental health evaluation" under RCW 71.09.025(1)(b)(v). Relying on documentary and testimonial evidence, as well as its expert's opinion, the State then petitioned to commit Strand pursuant to the SVP statute and was successful in doing so. Strand appealed, contending that the State could not conduct a mental health evaluation prior to the commencement of proceedings, that he had been denied access to counsel, and that it had not proved that his statements were made voluntarily. The Court of Appeals upheld his commitment. We affirm.

FACTS

¶ 2 In December 1992, Strand was convicted of first degree child molestation and resisting arrest in connection with an incident where he put his hands inside a four-year-old girl's underpants. Strand was given an exceptional sentence of 150 months and an additional 36 months in community placement.

¶ 3 Prior to Strand's scheduled release date of February 9, 2005, the State filed a petition alleging that Strand was an SVP as defined in chapter 71.09 RCW. This petition relied, in part, on a mental health evaluation that had been conducted "pursuant to RCW 71.09" by Dr. Kathleen Longwell on January 5, 2004. Clerk's Papers at 104. Prior to her evaluation of Strand, Dr. Longwell informed him that the interview was not confidential and that the information he volunteered to her could be used against him in an SVP commitment proceeding. Strand agreed to the evaluation and signed a consent form. Id.¹ During the evaluation, Dr. Longwell asked Strand about a number of unadjudicated sexual offenses which Strand was alleged to have committed. Strand denied any sexual misconduct, including the unadjudicated offenses and the first degree child molestation of which he was convicted. However, Strand did admit to having contact with the unadjudicated victims at the times and places described.

¶ 4 On May 16, 2005, the trial court found probable cause that Strand was an SVP. Strand did not object to Dr. Longwell's prefiling examination. On November 8, 2005, Dr. Longwell met with Strand with counsel present in accordance with the trial court's order directing an evaluation pursuant to RCW 71.09.040(4). At this time, Strand did not object to Dr. Longwell's pre- or postfiling examination.

¶ 5 Prior to trial, Strand sought to exclude the testimony of the unadjudicated victims, arguing that their testimony was irrelevant and prejudicial. In part based upon Strand's unintentional corroboration of the victims' accounts, the trial court determined that it was more likely than not that all but one of the unadjudicated offenses had taken place. After testimony from the unadjudicated victims and Dr. Longwell, Strand testified and again denied any sexual misconduct, but placed himself in the same location as each of the victims. On February 6, 2006, a jury found that Strand was subject to confinement as an SVP.

¶ 6 Strand appealed his commitment to the Court of Appeals, arguing that the State had no authority to examine him until after the probable cause hearing, that he was denied effective assistance of counsel, that his statements were involuntary and inadmissible, and that the loss of a portion of the verbatim trial transcript required reversal of his commitment. In re Det. of Strand, 139 Wash. App. 904, 162 P.3d 1195 (2007). The Court of Appeals affirmed Strand's commitment. Id. at 915, 162 P.3d 1195.

¶ 7 Strand petitioned this court for review. We granted review of two issues: whether a mental examination of Strand as a potential SVP is authorized prior to a judicial finding of probable cause and whether the trial court was required to determine if Strand's statements were voluntary before admitting them in the SVP proceeding. In re Det. of Strand, 163 Wash.2d 1022, 185 P.3d 1195 (2008).

STANDARD OF REVIEW

¶ 8 "Statutory construction is a question of law reviewed de novo." In re Det. of Martin, 163 Wash.2d 501, 506, 182 P.3d 951 (2008). Questions involving allegations of constitutional violations are also reviewed de novo. See, e.g., State v. Eckblad, 152 Wash.2d 515, 518, 98 P.3d 1184 (2004).

ANALYSIS

¶ 9 "This court has `steadfastly adhered to the rule that a litigant cannot remain silent as to claimed error during trial and later, for the first time, urge objections thereto on appeal.'" State v. Guloy, 104 Wash.2d 412, 421, 705 P.2d 1182 (1985) (quoting Bellevue Sch. Dist. No. 405 v. Lee, 70 Wash.2d 947, 950, 425 P.2d 902 (1967)). Strand failed to object to the use of Dr. Longwell's report and failed to assert that his statements were anything but voluntary either during the two years leading up to his trial or during his trial. As such, Strand may claim a new error only if he can show a "manifest error affecting a constitutional right." RAP 2.5(a).² Strand alleges three manifest constitutional errors: (1) that Dr. Longwell's prefiling evaluation was in violation of the SVP statute and therefore violated his due process rights, (2) that he was not provided with counsel during Dr. Longwell's prefiling evaluation, and (3) that he did not receive a hearing to determine the voluntariness of his prefiling statements.

I. Dr. Longwell's Examination of Strand Was Conducted within the Statutory Framework of Chapter 71.09 RCW

¶ 10 "[S]tate statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment." Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). The "process due" to a person subject to an SVP petition is the procedure allocated by "the statute which authorizes civil incarceration." Martin, 163 Wash.2d at 511, 182 P.3d 951. Strand claims that his due process rights were violated when the State asked Dr. Longwell to examine him prior to the commencement of SVP proceedings, an examination he believes was unauthorized by the SVP statute.

¶ 11 The SVP statute, however, authorizes a prefiling psychological examination. RCW 71.09.025(1)(b) contains the pertinent statutory language: "The agency [with jurisdiction] shall provide the prosecuting agency with all relevant information including but not limited to the following information: . . . (iii) All records relating to the psychological or psychiatric evaluation and/or treatment of the person; . . . (v) A current mental health evaluation or mental health records review." RCW 71.09.025(1)(b).

¶ 12 At issue is whether the legislature intended the term "current," in the context of providing "[a] current mental health evaluation or mental health records review," to authorize a new evaluation or merely the forwarding of the last available evaluation. The primary objective of any statutory construction inquiry "is to ascertain and carry out the intent of the Legislature." Rozner v. City of Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991). "Current" has two possibly applicable definitions: "occurring in or belonging to the present time" and "in evidence or in operation at the time actually elapsing." Webster's Third New International Dictionary 557 (2002). Thus, "current" could mean either "occurring in the present time" (a new evaluation) or "in operation at the time actually elapsing" (the last available evaluation). However, a comprehensive reading of chapter 71.09 RCW shows that the plain meaning of "current" must include a new evaluation. "Plain meaning is `discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.'" Udall v. T.D. Escrow Servs., Inc., 159 Wash.2d 903, 909, 154 P.3d 882 (2007) (quoting Tingey v. Haisch, 159 Wash.2d 652, 657, 152 P.3d 1020 (2007)).

¶ 13 Reading "current" in RCW 71.09.025(1)(b)(v) as authorizing the release of only the last available evaluation does not make sense in the context the word is used. "[A] single word in a statute should not be read in isolation, and . . . `the meaning of words may be indicated or controlled by those with which they are associated.'" State v. Roggenkamp, 153 Wash.2d 614, 623, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. Jackson, 137 Wash.2d 712, 729, 976 P.2d 1229 (1999)). In this case, the statute is phrased "provide . . . [a] current" and uses the indefinite article "a" as opposed to a definite article, such as "the." "A" is "used as a function word before most singular nouns other than proper and mass nouns when the individual in question is undetermined, unidentified, or unspecified." Webster's, supra, at 1. Therefore, by choosing the use of an indefinite article instead of using a definite article, the legislature intended to provide "a current mental health evaluation" that is undetermined (i.e., yet to be done) rather than "the current mental health evaluation," which has already been determined.

¶ 14 Additionally, interpreting RCW 71.09.025(1)(b)(v) to not authorize the agency to perform a mental health evaluation would render that statutory language superfluous. Under rules of statutory construction "no part of a statute should be deemed inoperative or superfluous unless it is the result of obvious mistake or error." Klein v. Pyrodyne...