In re Detention of Coe
| Decision Date | 27 September 2012 |
| Docket Number | No. 85965–5.,85965–5. |
| Citation | 175 Wash.2d 482,286 P.3d 29 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the DETENTION OF Kevin COE a/k/a Frederick Harlan Coe. |
OPINION TEXT STARTS HERE
Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Petitioner.
Malcolm Ross, Attorney General of Washington, Seattle, WA, for Respondent.
[175 Wash.2d 487]¶ 1 Kevin Coe challenges a Court of Appeals decision affirming his 2008 commitment as a sexually violent predator (SVP). He is primarily challenging the trial court's decision to admit evidence of several unadjudicated sexual offenses. He is also challenging the trial court's decision to allow an expert psychologist to rely on that evidence. In addition to these challenges, Coe is claiming his trial counsel was ineffective, that his due process confrontation rights were violated, and that he is entitled to a new trial under the cumulative error doctrine. Finding no reversible error in any of Coe's claims, we affirm his commitment.
¶ 2 Coe was originally convicted in 1981 of four counts of first degree rape. State v. Coe, 101 Wash.2d 772, 774, 684 P.2d 668 (1984)( Coe I). But those convictions were overturned on appeal primarily because some of the victims identified Coe only after being hypnotized. Id. at 785–86, 788–89, 684 P.2d 668. At Coe's second trial in 1985, Coe was convicted of three counts of first degree rape. State v. Coe, 109 Wash.2d 832, 834, 750 P.2d 208 (1988)( Coe II). Again, Coe appealed and this court reversed two of the three counts because of the “admission of posthypnotic identification testimony.” Id. at 850, 750 P.2d 208. Ultimately, Coe's 1985 conviction for the first degree rape of Julie H. was his sole conviction, and he was sentenced to 25 years.
¶ 3 On August 30, 2006, the State filed a petition seeking to have Coe committed as an SVP pursuant to chapter 71.09 RCW. During the trial, the State sought to link Coe to 40 unadjudicated sexual offenses. These 40 offenses included both rapes and indecent exposure incidents. The trial court admitted 36 of these offenses after finding by a preponderance of the evidence that Coe was the offender.
¶ 4 The State proved these offenses through multiple sources. For example, it relied on Dr. Robert Keppel, the State's “signature analysis” expert, who linked Coe to 18 rapes, including the Julie H. rape. Additionally, it relied on statistical results from the Homicide Investigation Tracking System (HITS) database, which linked Coe to 13 rapes that were admitted at trial. Dr. Keppel corroborated his signature analysis with the HITS results but did not rely on them. The State also had several victims identified by the signature analysis and HITS results testify at the SVP trial.
[175 Wash.2d 489]¶ 5 Further, because the above evidence alone does not prove SVP status, seeRCW 71.09.020(18), the State's psychologist, Dr. Amy Phenix, testified that Coe suffered from the following mental abnormalities: (1) paraphilia, not otherwise specified (NOS), nonconsenting females, with sadistic traits, (2) paraphilia NOS, urophilia and coprophilia, and (3) exhibitionism. Additionally, she testified that Coe had a personality disorder NOS, with narcissistic and antisocial traits.
¶ 6 Her opinion was based on her review of over 74,000 pages of material, which included the other offenses. She considered identifications by Coe's victims, blood typing evidence, and Coe's own admission to two offenses. She also incorporated the signature analysis and HITS results into her diagnosis.
¶ 7 On October 15, 2008, after a month-long trial, the jury found Coe was an SVP. The trial court then ordered Coe's civil commitment. Coe appealed and the Court of Appeals affirmed the trial court. He then petitioned for review, which we granted. In re Det. of Coe, 172 Wash.2d 1001, 258 P.3d 685 (2011).
¶ 8 1. Did Coe receive ineffective assistance of counsel when his trial counsel failed to offer a jury instruction defining “personality disorder”?
¶ 9 2. Was the signature identified by Dr. Keppel in his signature analysis sufficiently unique to identify Coe as the offender under ER 404(b)?
¶ 10 3. Were the HITS results properly admitted by the trial court?
¶ 11 4. Did the trial court err in allowing seven victims, identified by the signature analysis and HITS evidence, to testify at trial?
¶ 12 5. During the trial, the State's expert psychologist relied on several offenses where the victims were unavailableto testify, and the expert disclosed those offenses to the jury. Does Coe have a due process right to confront those victims?
¶ 13 6. May the State's expert psychologist rely on the signature analysis and HITS results in determining that Coe was an SVP?
¶ 14 7. May the State's expert witness, in explaining the basis for her expert conclusions, disclose unadjudicated rapes that were not substantively admitted?
¶ 15 8. Is Coe entitled to a new trial under the cumulative error doctrine?
¶ 16 Committing an individual as an SVP under chapter 71.09 RCW requires the State to show beyond a reasonable doubt that the individual is an SVP. In re Det. of Post, 170 Wash.2d 302, 309–10, 241 P.3d 1234 (2010). An SVP is an individual “who has been convicted of or charged with a crime of sexual violence and 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(18) (emphasis added).
¶ 17 We address each of Coe's challenges to his commitment in turn.
¶ 18 Coe first claims his trial counsel was ineffective for failing to offer a jury instruction defining “personality disorder.” To establish ineffective assistance of counsel, a party must prove (1) that counsel's performance was deficient and (2) that it resulted in prejudice. State v. Grier, 171 Wash.2d 17, 32–34, 246 P.3d 1260 (2011). To establish deficiency, an appellant “must overcome ‘a strong presumption that counsel's performance was reasonable’ ” in order to prove that performance fell “ ‘below an objective standard of reasonableness.’ ” Id. at 33, 246 P.3d 1260 (quoting State v. Kyllo, 166 Wash.2d 856, 862, 215 P.3d 177 (2009); Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
¶ 19 Here, Coe's ineffective assistance of counsel claim fails because he cannot show that his counsel's performance was deficient. At the time of his trial, then-controlling authority stated that defining “personality disorder” was unnecessary. See In re Det. of Twining, 77 Wash.App. 882, 895–96, 894 P.2d 1331 (1995), overruled by In re Det. of Pouncy, 168 Wash.2d 382, 391, 229 P.3d 678 (2010). It was not until more recently, after Coe's trial, that we overruled Twining and held that a trial court's failure to instruct the jury on the term “personality disorder” was error. Pouncy, 168 Wash.2d at 385, 229 P.3d 678.Pouncy, however, does not affect the analysis as we make “ ‘every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.’ ” Grier, 171 Wash.2d at 34, 246 P.3d 1260 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
¶ 20 Thus, Coe's counsel had no reason to believe, at the time of trial, that he should have requested a jury instruction for the term “personality disorder.” It is difficult to imagine exactly how Coe's counsel was deficient when then-controlling authority stated an instruction was not necessary. Consequently, Coe fails to establish deficient performance and his ineffective assistance of counsel claim necessarily fails.
¶ 21 Next, Coe challenges the trial court's decision to admit Dr. Keppel's signature analysis under ER 404(b). Coe contends that the signature identified by Dr. Keppel was too common and that the identified signature was not fully present in several of the rapes. We disagree. Certainly, the decision to admit Dr. Keppel's signature analysis is debatable,but under the unique facts of this case, namely the expert opinion about the signature's uniqueness, we cannot say the trial court abused its discretion.
¶ 22 We review the trial court's decision to admit the evidence for abuse of discretion. State v. Foxhoven, 161 Wash.2d 168, 174, 163 P.3d 786 (2007). “ ‘Discretion is abused if it is exercised on untenable grounds or for untenable reasons.’ ” Id. (quoting State v. Vy Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002)).
¶ 23 Dr. Keppel's signature analysis identified a combination of ritualistic behaviors and modus operandi that allowed him to identify Coe as the perpetrator of 18 rapes. According to Dr. Keppel, ritual behaviors are those behaviors that are unnecessary to complete a crime but express the offender's underlying motivation. In contrast, modus operandi includes all the behaviors necessary to complete the actual crime.1
¶ 24 Dr. Keppel identified the following five behaviors as Coe's ritualistic signature: “1) intimidation, 2) co-opting the victim into compliance, 3) the rapist undoing his own clothing, 4) the necessity of sexual intercourse and/or ejaculation, and 5) the need for questioning and engaging in conversation of the victim.” Clerk's Papers (CP) at 4429. As for modus operandi, Dr. Keppel identified the following: (1) the assaults occurred in the South Hill area of Spokane, (2) the assaults were during the early morning hours or late at night, (3) the victims' ages varied from 14 to 51 years old, and (4) the victims were either walking or jogging before being attacked.
¶ 25 To create the signature, Dr. Keppel first analyzed Julie H.'s rape. At this time, Dr. Keppel specifically did not examine any other rapes Coe was suspected of committing because he did not...
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