In re Detention of Kistenmacher

• Citation: 178 P.3d 949,163 Wash.2d 166
• Decision Date: 21 February 2008
• Docket Number: No. 79064-7.,79064-7.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the DETENTION OF Alfred E. KISTENMACHER, Petitioner.

178 P.3d 949

163 Wash.2d 166

In the Matter of the DETENTION OF Alfred E. KISTENMACHER, Petitioner.

No. 79064-7.

Supreme Court of Washington, En Banc.

Argued September 27, 2007.

Decided February 21, 2008.

Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Petitioner.

Melanie Tratnik, Attorney Generals Office/CJ Division, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 The Washington State Legislature has created a special civil commitment system for sexually violent predators, chapter 71.09 RCW. "At all stages of the proceedings," those facing civil commitment as sexually violent predators are "entitled to the assistance of counsel." RCW 71.09.050(1). We must decide whether a statutorily mandated precommitment psychological examination is a "proceeding" under this chapter. We hold that it is. We also hold that the error in the case before us was harmless and affirm the Court of Appeals on different grounds.

FACTS

¶ 2 In 1996, Alfred Kistenmacher pleaded guilty to two counts of first degree rape of a child. His victims were two young sisters who lived next door. The older child was between eight and nine, the younger child was seven years old. Kistenmacher had been abusing the older girl for some months. This abuse came to light after he digitally raped the younger girl.

¶ 3 While in prison, Kistenmacher reported that he had had a long history of sexual contact with children starting from when he was a young child himself. His victims were mostly girls between the ages of 5 and 17. Kistenmacher also disclosed acts of exhibitionism, voyeurism, and masturbation with stolen underwear. Before Kistenmacher finished serving his sentence the State filed a sexually violent predator petition against him.

¶ 4 Kistenmacher stipulated there was probable cause to find he was a sexually violent predator, and he was transferred to the Special Commitment Center (SCC) on McNeil Island. During an intake interview, Kistenmacher was given and signed an apparently standardized form titled "Notice of Evaluation as a Sexually Violent Predator." Clerk's Papers at 65. Among other things, this form contained a "Waiver of Attorney Presence." Kistenmacher checked the box next to the option on the form that said: "I request that my attorney be present during the clinical interview(s) for commitment as a Sexually Violent Predator." Id.

¶ 5 About two weeks later, Kistenmacher was evaluated by Dr. Harry Goldberg, Ph.D., a California forensic psychologist. Kistenmacher's counsel was not present. The record suggests counsel was not notified of the examination. It also suggests that Dr. Goldberg was not aware that counsel's presence had been requested. Before the examination, Dr. Goldberg gave Kistenmacher his own standardized consent form that did not mention any right to counsel. Kistenmacher did not ask for his lawyer. Instead, he signed the form and proceeded with the interview. Dr. Goldberg later testified that the presence of a third person would have interfered with his evaluation.

¶ 6 Prior to the examination Dr. Goldberg had reviewed Kistenmacher's records. Among other things, these records detailed Kistenmacher's long history of nonadjudicated acts of sexual misconduct. During the clinical examination, Kistenmacher confirmed all but two of these prior acts. After the examination, Dr. Goldberg diagnosed Kistenmacher with pedophilia and exhibitionism.

¶ 7 About six months later and about three weeks before trial, the State's attorney deposed Kistenmacher. Kistenmacher's counsel was present and the deposition was videotaped. Without objection from his counsel, Kistenmacher again detailed multiple incidents of sexual contact with children, rape, frottage, exhibitionism, and voyeurism. That videotaped deposition was played for the jury without objection.¹

¶ 8 At trial, Kistenmacher unsuccessfully moved to suppress the testimony of Dr. Goldberg. The trial judge concluded that Kistenmacher did not have a right to counsel based on either the sexually violent predator statute or the constitution and that an erroneous form could not create such a right by estoppel. The trial court explicitly found that if a right existed, Kistenmacher did not waive it. The trial judge also found that Kistenmacher was not prejudiced by the denial of the motion to suppress Dr. Goldberg's testimony. Kistenmacher assigned error to that ruling.

¶ 9 Dr. Goldberg did testify about Kistenmacher's history and about his diagnosis and likelihood of reoffending. The record is not crystal clear as to what Dr. Goldberg based his opinions on. When asked the basis for his opinion, his answer suggests he was describing what he usually reviews in similar cases rather than what he specifically considered in Kistenmacher's case. Dr. Goldberg testified that he relied upon such things as records from prison treatment providers, legal records such as police reports, probation officer reports, and other materials provided by the State. Dr. Goldberg estimated he reviewed between 1,200 and 1,500 pages of materials. Dr. Goldberg also relied upon two actuarial tests (the Static 99 and the MnSOSTR (Minnesota Sex Offender Screening Tool))² and his own clinical examination in making his diagnosis.

¶ 10 Much of Dr. Goldberg's testimony recapitulated Kistenmacher's own videotaped deposition that was played for the jury. Dr. Goldberg also testified that Kistenmacher was "likely to reoffend in a sexual predatory manner violently." 3 Verbatim Report of Proceedings (VRP) at 95. Kistenmacher offered the testimony of his own clinical psychologist, Dr. Theodore Donaldson. Dr. Donaldson had also examined Kistenmacher and concluded ("with some degree of uncertainty") that he suffered from a mental abnormality, but that he was not dangerous because of his age, 63. 4 VRP at 77-78, 84.

¶ 11 The jury concluded that Kistenmacher was a sexually violent predator. The Court of Appeals affirmed and we granted review. In re Det. of Kistenmacher, 159 Wash.2d 1019, 157 P.3d 404 (2007).

RIGHT TO COUNSEL

¶ 12 We turn first to whether there is a statutory right to counsel at sexually violent predator forensic examinations under chapter 71.09 RCW.³ This is a question of law and our review is de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). The primary goal of statutory interpretation is the determination of legislative intent. In re Pers. Restraint of Young, 122 Wash.2d 1, 48, 857 P.2d 989 (1993) (citing Anderson v. O'Brien, 84 Wash.2d 64, 67, 524 P.2d 390 (1974)). In most relevant part, chapter 71.09 RCW says:

At all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to the assistance of counsel.

RCW 71.09.050(1). The chapter's definition section does not define "proceedings." See RCW 71.09.020. Eight years ago, this court examined RCW 71.09.050(1) in the context of the postcommitment annual examinations that SCC residents undergo. We acknowledged:

This language, by referring to "all stages of the proceedings," rather than just to "proceedings," seems broad enough to include the annual evaluations.

But the Legislature created the right to counsel only as to all stages leading to the initial trial of whether the person is a sexually violent predator, and not to further proceedings.

In re Det. of Petersen, 138 Wash.2d 70, 92, 980 P.2d 1204 (1999) (emphasis added). We noted in Petersen that not only does the chapter create a right to counsel for the proceedings leading up to the commitment trial, it also grants a right to counsel if a committed person petitions for release or for less restrictive alternatives. Id.; see also RCW 71.09.090(2). We concluded that the second grant of the right to counsel would be surplusage if the right to counsel granted by RCW 71.09.050 continued through every statutory stage. Petersen, 138 Wash.2d at 92, 980 P.2d 1204.

¶ 13 Our language in Petersen supports, but does not compel, a conclusion that the statutory right to counsel extends to the pretrial examination. Again, the statute creates a right of counsel at "all stages of the proceedings." RCW 71.09.050(1). There are only three specific events set forth in the chapter that the legislature might have explicitly considered to be "proceedings." First, the probable cause hearing. RCW 71.09.040(2). Second, the statutorily mandated examination. RCW 71.09.040(4). Finally, the trial itself. RCW 71.09.050. It seems unlikely to us that the legislature would have used the broad term "proceedings" if it meant to exclude the statutorily mandated examination mentioned in the very same statute.

¶ 14 The State directs our attention to the different treatment of psychological examinations in other legal arenas. In the general civil commitment statutory schema, the legislature has explicitly created a right for the presence of an attorney (or other advocate) during the admitting psychological examination. Former RCW 71.05.150(1)(c) (1998) ("An attorney . . . shall be permitted to be present."). Chapter 71.09 RCW is not nearly so explicit, and the State argues that this is evidence that no statutory right exists.

¶ 15 Turning to other rights-depriving laws, by statute, parents facing a child dependency or termination action are entitled to counsel at all stages of proceedings. RCW 13.34.090. In such cases, a court may order a psychological examination of the child's parents. See, e.g., In re Dependency of J.R.U.-S., 126 Wash.App. 786, 110 P.3d 773 (2005). The Court of Appeals held that there was no statutory (or constitutional) right to counsel's presence at a court ordered psychological examination. Id. at 794, 802, 110 P.3d 773.

¶ 16 The Court of Appeals in J.R.U.-S. based its conclusion less on the statutory text and more on its evaluation of the overarching dependency scheme. Parents facing termination or restriction of their parental rights are often ordered by the court to do many things. Id. at 802, 110 P.3d 773. The Court...