In re Detention of Duncan

• Decision Date: 04 December 2007
• Docket Number: No. 24820-8-III.,24820-8-III.
• Citation: 142 Wn. App. 97,174 P.3d 136
• Parties: In the Matter of the DETENTION OF Bryan DUNCAN, Appellant.
• Court: Washington Court of Appeals

174 P.3d 136

142 Wn. App. 97

In the Matter of the DETENTION OF Bryan DUNCAN, Appellant.

No. 24820-8-III.

Court of Appeals of Washington, Division 3.

December 4, 2007.

Reconsideration Denied January 11, 2008.

Valerie Marushige, Attorney at Law, Kent, WA, for Appellant.

Sarah Sappington, Office of The Atty General, Joshua Choate, Office of the Washington State Attorney, Seattle, WA, for Respondents.

SWEENEY, C.J.

¶ 1 This is an appeal from a jury verdict that found Bryan Duncan to be a sexually violent predator (SVP) as defined in chapter 71.09 RCW. He assigns error to several of the court's rulings on evidence. But we conclude they were discretionary decisions and that the judge did not abuse his discretion. And we therefore affirm the judgment.

FACTS

¶ 2 Mr. Duncan was born in March 1975. He molested a 7-year-old boy in 1992 and was found guilty of first degree child molestation. Mr. Duncan was then 16 or 17 years old. He pleaded guilty in January 1993 to two additional counts of first degree child molestation. The first of these counts involved a 9-year-old girl. Mr. Duncan had sexual intercourse with her when he was 13 years old. The second count involved acts against a 10-year-old boy when Mr. Duncan was 13 years old. All of these incidents occurred in Benton County and all were defined as sexually violent offenses in former RCW 71.09.020(6) (1995). Mr. Duncan was also adjudged guilty in separate actions for two counts of communication with a minor for immoral purposes. Mr. Duncan was committed to the Department of Juvenile Rehabilitation for three consecutive 52-week sentences following these adjudications. He served his sentences at Maple Lane School, a juvenile facility in Centralia.

¶ 3 Mr. Duncan participated in a sex offender treatment program while at Maple Lane. He admitted sexual acts with more than 20 children between 1984 and 1992. One Maple Lane case manager reported that Mr. Duncan claimed between 70 and 100 victims. During a mental health assessment in 1996, Mr. Duncan admitted to sexual activity with as many as 40 children. These victims, mostly male, ranged in age from 2 to 13 years old. The sexual acts included vaginal and anal intercourse, forced sexual games, fellatio, fondling, and masturbation. Mr. Duncan also revealed in counseling that he fantasized about sex with children and that these fantasies sometimes involved the mutilation, killing, and eating of his victims. He received over 75 infraction reports for non-compliance with staff orders, acting out, and violence during his stay at Maple Lane.

¶ 4 Mr. Duncan was due to be released from Maple Lane School in late March 1996, on his 21st birthday. On March 22, 1996, the State filed a petition for commitment of Mr. Duncan as an SVP. RCW 71.09.030. He was then moved to the Special Commitment Center (SCC) pending the outcome of the petition. For a variety of reasons — mostly at the request of Mr. Duncan's counsel — the commitment trial was delayed until October 2005. The jury concluded that Mr. Duncan was a sexually violent predator.

DISCUSSION

¶ 5 Mr. Duncan assigns error to a number of the court's rulings on evidence. The trial court has wide discretion on questions of evidence. In re Det. of Bedker, 134 Wash.App. 775, 777, 146 P.3d 442 (2006). Evidentiary rulings usually are not of constitutional magnitude. So even an erroneous ruling must materially affect the outcome of the trial to warrant reversal. State v. Halstien, 122 Wash.2d 109, 127, 857 P.2d 270 (1993).

UNFAIR PREJUDICE

¶ 6 Mr. Duncan first contends the trial court abused its discretion by admitting evidence that he refused to submit to a psychological examination during pretrial discovery. He contends this evidence was unfairly prejudicial.

¶ 7 Dr. Leslie Rawlings is a psychologist. He evaluated Mr. Duncan in 1996 just before the State filed its petition for commitment. He considered his 1996 evaluation and Mr. Duncan's history of sex offenses. He reviewed his records. And he undertook an actuarial risk assessment. The actuarial approach to risk assessment uses a statistical analysis to identify a limited set of risk factors that assist in the prediction of future dangerousness. In re Det. of Thorell, 149 Wash.2d 724, 753, 72 P.3d 708 (2003). Dr. Rawlings concluded that Mr. Duncan exhibited schizophrenia and severe pedophilia and had great difficulty controlling his sexual behavior. He testified that this mental abnormality made it more likely than not that Mr. Duncan would commit acts of predatory violence if not confined.

¶ 8 Dr. Rawlings admitted that his conclusion that Mr. Duncan still fantasized about children was based "on what others have written." Report of Proceedings (RP) at 1256. The State then asked whether he would have liked an opportunity to update his evaluation of Mr. Duncan. Dr. Rawlings said yes. The State then asked, "And what stopped you from doing that?" Id. at 1328.

¶ 9 Mr. Duncan moved for a mistrial. He argued that the question put Mr. Duncan in a "terrible light." Id. at 1329. Left dangling, the question suggested that he was hiding something. A respondent in a commitment proceeding cannot be compelled to submit to a mental examination during pretrial discovery under chapter 71.09 RCW. In re Det. of Marshall, 156 Wash.2d 150, 154, 125 P.3d 111 (2005).

¶ 10 The trial judge ruled that the State could ask whether Mr. Duncan had refused a mental examination because this was a civil action and Mr. Duncan therefore had no right to confrontation or to remain silent. The court also concluded that fairness entitled the State to ask whether Mr. Duncan had consented to a more recent interview because he had made the point that Dr. Rawlings' opinion was to some degree based on hearsay reports. The court denied Mr. Duncan's motion for mistrial. The State then asked Dr. Rawlings if he had asked to interview Mr. Duncan again. Dr. Rawlings answered, "Yes." RP at 1341. The State then asked, "And were you able to interview him?" Id. Dr. Rawlings answered, "No." Id. No further testimony was presented on this subject.

¶ 11 Mr. Duncan contends it was unfairly prejudicial to allow Dr. Rawlings to testify that he had not been able to interview Mr. Duncan. Testimony that is likely to provoke an emotional response rather than a rational decision is unfairly prejudicial. State v. Ortega, 134 Wash.App. 617, 624, 142 P.3d 175 (2006), review denied, 160 Wash.2d 1016, 161 P.3d 1027 (2007); State v. Stackhouse, 90 Wash.App. 344, 356, 957 P.2d 218 (1998); ER 403. Such testimony should be excluded if its potential prejudice substantially outweighs its probative value. Stackhouse, 90 Wash.App. at 356, 957 P.2d 218. The trial court must weigh the proffered evidence in context to make this decision. Id.

¶ 12 The State argues that Mr. Duncan waived this issue because he did not specifically ask the trial court to balance the probative value of the evidence against its prejudicial effect. But Mr. Duncan objected to the admission of this evidence. And the trial court considered both its relevance and its fairness. Accordingly, we conclude that the issue was properly preserved for appeal.

¶ 13 Mr. Duncan does not have a constitutional right to refuse a mental examination. He has a statutory right to do so. In re Det. of Audett, 158 Wash.2d 712, 726, 147 P.3d 982 (2006). Nor does he have a Fifth Amendment right to remain silent about the examination. Id. Jurors here asked him why he chose not to be reevaluated for this trial. The trial court answered: "Mr. Duncan did not wish to do so, and the Court did not order him to participate in further evaluation." RP at 1921. We conclude that the trial court did balance the possibility that this information was prejudicial against its relevance. Mr. Duncan asked about Dr. Rawlings' reliance on hearsay information. The court then concluded that it was only fair to allow the State to ask why Dr. Rawlings had to rely on secondhand information. Those are tenable grounds for the judge's ruling.

¶ 14 This was an SVP civil commitment proceeding. A central issue then was Mr. Duncan's current mental state and his likelihood to engage in predatory acts of sexual violence if released. In re Det. of Kelley, 133 Wash.App. 289, 292, 135 P.3d 554 (2006), review denied, 159 Wash.2d 1019, 157 P.3d 404 (2007). Reliable, up-to-date information on Mr. Duncan's psychological state was highly relevant. And an explanation why the State could not provide current information was also therefore relevant. The trial court did not abuse its discretion in allowing the State to pursue this line of questioning. Stackhouse, 90 Wash.App. at 356, 957 P.2d 218.

¶ 15 Mr. Duncan next assigns error to the trial court's admission of evidence that he intended to move in with convicted child molester Clarence Walls. Mr. Duncan had a sexual relationship with Mr. Walls while both were incarcerated in the SCC. Mr. Walls was released from the SCC in 2004 after the State agreed to dismiss an SVP petition against him. Mr. Duncan's expert, Dr. Richard Wollert, is a psychologist. In Mr. Walls' SVP proceeding, Dr. Wollert had questioned the effectiveness of the actuarial tools in predicting recidivism in juvenile offenders. The court ordered Mr. Duncan not to question Dr. Wollert about Mr. Walls' case in front of the jury.

¶ 16 The State showed on cross-examination of Dr. Wollert that Mr. Duncan intended to move in with Mr. Walls. Mr. Duncan argued, outside the presence of the jury, that this opened the door to inquiry about the Walls proceeding and specifically to inquiry about why the SVP proceeding against Mr. Walls was dismissed. The court disagreed and refused to allow the inquiry of Dr. Wollert.

¶ 17 Mr. Duncan now contends the admission of Mr. Walls' criminal sexual history was unfairly prejudicial. He did not object on the basis of prejudice at trial. But that aside, we conclude that the trial court did not abuse its discretion. Mr. Duncan testified that he...