In re Detention of Law
| Decision Date | 28 July 2008 |
| Docket Number | 59619-5-I |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Detention of DENNIS ERIK LAW. STATE OF WASHINGTON, Respondent, v. DENNIS ERIK LAW, Appellant. |
Respondent State of Washington, having filed a motion to publish the opinion filed June 2, 2008; appellant, Dennis Law, having filed a response to the motion stating he will not oppose it and the hearing panel having reconsidered its prior determination and finding that the opinion will be of precedential value; Now, therefore,
IT IS HEREBY ORDERED that the written opinion shall be published and printed in the Washington Appellate Reports.
Dennis Law appeals the trial court's order of civil commitment based on a jury's finding that he is a sexually violent predator (SVP). He argues that: (1) the trial court's exclusion of impeachment evidence and expert testimony on false confessions deprived him of his rights to confrontation and to present a defense; (2) the trial court deprived him of due process by admitting his statements to a polygrapher without determining that they were voluntary; (3) the presumption of innocence and the corpus delicti rule apply in SVP proceedings; and (4) the prosecutor committed misconduct by arguing that Law would receive appropriate treatment if committed. Because the trial court's evidentiary rulings were a proper exercise of discretion, Law has no due process right to a voluntariness determination of statements made to a polygrapher while on community placement, the presumption of innocence and corpus delicti rule are based on rights of defendants facing criminal convictions that do not apply in SVP civil proceedings, and Law fails to demonstrate that the prosecutor's comments were deliberate and prejudicial, we affirm.
In the summer of 1985, Law was charged with communicating with a minor for immoral purposes when an eight year old boy reported that Law offered him money in exchange for sex. Around the same time, Law was also arrested for approaching a seven year old boy for sex. In 1986, Law was charged with second degree statutory rape involving a 12 year old boy who was also the alleged victim in a 1984 rape investigation that was declined for prosecution. Based on these incidents, Law pled guilty to two counts of communicating with a minor for immoral purposes.
In September 1992, after his release from prison on those convictions, Seattle police received complaints from patrons of the Seattle Center that Law was watching six to eight year old children while they were in the restroom, and Law was eventually ordered to stay away from the Seattle Center. That same month, Law was arrested and charged with first degree rape of a child when he lured a five year old boy to the basement laundry room of an apartment complex and exposed his penis. Law was also arrested after showing two young brothers pornography, masturbating in front of them, and trying to persuade them to be photographed nude. Based on these incidents, he pled guilty in 1992 to first degree kidnapping with sexual motivation and communication with a minor for immoral purposes.
In 2002, Law was released from prison and put on community placement. The conditions of his community placement prohibited him, among other things, from frequenting places where minors congregate. His Community Corrections Officer (CCO), Patricia Turner, used polygraph tests to monitor his compliance with the conditions. She reported that Law was sanctioned six times for violating the conditions.
During a polygraph examination in April 2003, Law admitted that he used pornography, that he used the bathroom at a large downtown arcade, that he had seven victims in addition to the charged victims, and that he was sexually attracted to 13 and 14 year old males four or five times a day. In June 2003 University Bookstore employees reported that Law had been following males aged 13 to 20 who were in the store. Law was on escape status at this time for failing to report to his CCO and remained on escape status until July 24, 2003.
During another polygraph examination in January 2005, he admitted that he followed 30 to 40 males, some of whom were "of questionable age;" that he had sexual thoughts of past victims two to three times a week, particularly when he saw someone of a similar age; that he used public restrooms including the one at Westlake Mall while minor males were present; and that encounters with minor males in restrooms were a high risk for him.
On September 14, 2005, the State filed a petition under RCW 71.09.030(5), alleging that Law was a sexually violent predator and seeking his confinement in a secure facility.[1] The trial court entered a finding that there was probable cause to believe that he was sexually violent predator[2] and remanded Law to the custody of the Department of Social and Health Services (DSHS) at the Special Commitment Center (SCC) where he was ordered to undergo an evaluation pending trial. While at the SCC, Law refused treatment.
At trial, Richard Peregrin, the polygrapher to whom Law reported, testified to the admissions Law made during the polygraph interviews. He also testified that he gave Law a consent form stating that the offender understood that providing deceptive responses or failing to submit to the polygraph may be a violation of supervision and could result in sanctions being imposed, including loss of liberty. The State also presented testimony from Roger Wolfe, who performed a sexual deviancy evaluation of Law in September 2004. He diagnosed Law with pedophilia and had grave reservations about his ability to control himself. Wolfe's opinion was based on meetings with Law statements Law made during the January 2005 polygraph interview, and other psychological testing and data. Dr. Harry Hoberman, a forensic psychologist, testified that Law suffered from a mental abnormality and personality disorder that made him "more likely than not" to engage in predatory acts of sexual violence if not confined to a secure facility.
Law presented expert testimony from Dr. John Wicks and Dr. Douglas Boer. Wicks testified that Law suffered from a brain injury that caused learning impairments and resulted in his becoming more passive and demonstrating fewer emotions. Boer also diagnosed Law with pedophilia but disagreed with Hoberman's conclusions about Law's personality disorder. He did not consider Law more likely than not to reoffend.
Law also testified and stated that he had trouble with his memory after suffering a heart attack and he could not remember his past crimes. He acknowledged going to the University Bookstore but denied that he was following or looking in a sexual way at any of the minor males there. He also testified that Peregrin warned him that he had to tell the truth or Peregrin would end the polygraph examination and Law would go to jail. Law said that Peregrin's testimony about his statements was inaccurate. He denied making the statements that he had followed 30 to 40 minors; that he had sexual thoughts of past victims two to three times a week; that when he saw someone of similar age to the victim, it triggered a sexual thought; and that he had masturbated to thoughts of minors.
The jury returned a verdict finding that the State had proved beyond a reasonable doubt that Law was a sexually violent predator. The court then ordered Law to be committed in a secure facility for control, care, and treatment pursuant to RCW 71.09.060.
Law contends that he was denied his constitutional right to confrontation when the trial court refused to admit impeachment evidence in the form of a letter criticizing Dr. Hoberman's professional judgment. The Sixth Amendment right to confront witnesses does not apply in SVP proceedings.[3] Thus, the relevant inquiry is whether the evidence was admissible as impeachment evidence.
We review a trial court's evidentiary rulings for an abuse of discretion.[4] ER 607 governs the use of impeachment evidence and provides that the credibility of witness may be attacked by any party. Thus, a party has a right to cross-examine a witness to reveal bias, prejudice, or a financial interest in the outcome.[5] But while a party may use extrinsic evidence in these instances to impeach a witness and explore subjects that would otherwise be irrelevant, if the extrinsic evidence sought for impeachment constitutes hearsay, it is inadmissible.[6] In Huynh, the defendant sought to attack a police officer's credibility and show his bias with a medical record containing allegations that the police injured him during his arrest.[7] While acknowledging that ER 607 allows a party to attack a witness' credibility, the court held that this evidence was inadmissible because it was hearsay and did not qualify as an exception to the hearsay rule under ER 803(a)(4).[8]
Here, Law offered evidence of the American Board of Professional Psychology's (ABPP) denial of Dr. Hoberman's application for membership in the professional organization. Specifically, Law sought to introduce a letter sent by ABPP's executive officer and two feedback summaries from the examining committee. The letter from the executive officer informed Hoberman that his performance on the examination did not meet the criteria for certification. The two feedback summaries assessed his strengths and weaknesses, criticizing his tendency to make inappropriate credibility determinations. The examiners who wrote the summaries were not identified.
The trial court ruled that the contents of the letter were "clearly hearsay" and would not be admissible as substantive evidence. The court said Law could...
To continue reading
Request your trial