In re Detention of Halgren

Decision Date13 April 2006
Docket NumberNo. 76161-2.,76161-2.
Citation156 Wn.2d 795,132 P.3d 714
CourtWashington Supreme Court
PartiesIn re the Matter of the Detention of Michael Allen HALGREN, Petitioner.

Nancy P. Collins, Washington Appellate Project, Seattle, for Petitioner/Appellant.

David J.W. Hackett, Brooke Elizabeth Burbank, Jeffrey C. Dernbach, Carla Barbieri Carlstrom, King County Prosecutors Office, Seattle, for Appellee/Respondent.

Brian William Elser, Miller Nash LLP, Seattle, for Amicus Curiae Washington Association for the Treatment of Sexual Abusers.

OWENS, J.

¶ 1 Pursuant to the sexually violent predators act (SVPA), chapter 71.09 RCW, the trial court ordered the involuntary commitment of petitioner Michael Halgren after a unanimous jury found beyond a reasonable doubt that Halgren was a sexually violent predator (SVP). Halgren appealed the commitment to Division One of the Court of Appeals, which affirmed the trial court in all respects. We accepted review of three issues addressed by Division One and hold that the trial court did not err in admitting Dr. Robert Wheeler's testimony or in declining to give Halgren's proposed unanimity instruction to the jury. Furthermore, because Halgren has not provided a record that the trial court actually ordered him to submit to a CR 35 mental examination, we decline to review whether such an order would have been erroneous. Accordingly, we affirm the Court of Appeals.

FACTS

¶ 2 Halgren was convicted of rape in 1989 and unlawful imprisonment in 1995. In the days before his release from prison, the State filed an SVP petition pursuant to RCW 71.09.030. The trial court found probable cause to believe that Halgren was an SVP and ordered him placed in custody pending a jury trial. In February 2002, a unanimous jury found that Halgren was an SVP beyond a reasonable doubt, and the trial court ordered that Halgren be committed.

¶ 3 Prior to trial, the State requested that Halgren submit to a mental examination by its psychological expert, Dr. Wheeler. Halgren initially agreed to submit to an examination to be conducted at the special commitment center (SCC) on August 29, 2001. Unfortunately, Dr. Wheeler required a medical procedure in mid-August and was unable to travel to the SCC for the scheduled examination. As a result, the State requested the examination be moved to Dr. Wheeler's office. The change in location would have required that the State transport Halgren in shackles and under guard. Halgren refused to submit to the change of location and refused to reschedule the examination because of the proximity of trial, which was originally set for November 2001.

¶ 4 The State responded with a motion to compel an examination pursuant to CR 35. Halgren filed a brief in opposition to the CR 35 motion, arguing that the State failed to show "good cause" and that it was unduly burdensome and prejudicial for armed Department of Corrections personnel to transport him in shackles to the examination. In so arguing, Halgren cited favorably to the Court of Appeals opinion in In re Detention of Williams, 106 Wash.App. 85, 22 P.3d 283 (2001), rev'd, 147 Wash.2d 476, 55 P.3d 597 (2002), in which Division One held that there is nothing in the SVPA preventing additional discovery beyond that provided for in the statute. Id. at 95, 22 P.3d 283. The record provided by Halgren on appeal reveals no indication as to how the trial court ultimately resolved the State's motion to compel the CR 35 examination. The record only indicates that Halgren was ultimately subject to a mental examination and that Dr. Wheeler extensively relied on the results of the examination in his trial testimony.

¶ 5 At trial, Dr. Wheeler testified regarding his reliance on the results of Halgren's penile plethysmograph (PPG) examination under ER 703.1 Dr. Wheeler first referred to the PPG examination results, obtained by another mental health evaluator during Halgren's prior incarceration and treatment, in support of his conclusion that Halgren was a sexual deviant. Dr. Wheeler went on to opine that the combination of Halgren's sexual deviancy and psychopathy made him more likely than not to reoffend. Halgren objected to the PPG examination testimony in a motion in limine and during trial on the grounds that it was prohibited by Frye,2 ER 702, and ER 403. The trial court overruled Halgren's objections.

¶ 6 Dr. Wheeler also testified that Halgren suffered from at least one mental abnormality (paraphilia not otherwise specified (n.o.s.) nonconsent) and one personality disorder (antisocial personality disorder).3 At the close of trial, Halgren requested a jury instruction that would have required unanimous agreement as to the specific mental abnormality or personality disorder necessary for involuntary commitment under RCW 71.09.020(16), which defines an SVP as one "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." The trial court denied the request and, instead, instructed the jury as follows:

To establish that the Respondent Michael A. Halgren is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt:

(1) That the Respondent has been convicted of a crime of sexual violence;

(2) That the Respondent currently suffers from a mental abnormality and/or a personality disorder making it difficult, if not impossible, for him to control his behavior; and

(3) That this mental abnormality and/or personality disorder make the Respondent likely to engage in predatory acts of sexual violence if not confined to a secure facility.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict that the Respondent is a sexually violent predator.

Clerk's Papers at 395 (Instruction 6).

¶ 7 A unanimous jury found that Halgren was an SVP, and the trial court ordered Halgren committed. On October 10, 2002, while Halgren's appeal was pending, this court reversed Division One's Williams decision and held that chapter 71.09 RCW precludes the use of CR 35 and is the exclusive means for obtaining mental examinations in SVP proceedings. Williams, 147 Wash.2d at 491, 55 P.3d 597.

¶ 8 On appeal, Halgren relied on our Williams decision and assigned error to the alleged order of the trial court requiring him to submit to the CR 35 examination. Halgren argued that the trial court had no authority to order a CR 35 examination in September 2001 (over a year before our Williams opinion was published) because our interpretation of chapter 71.09 RCW is presumed to take effect from the inception of the statute. Division One disagreed. Reviewing for an abuse of discretion, the court stated that "the law at the time of the motion supported the State's motion" and held this sufficient to affirm the trial court. In re Det. of Halgren, 124 Wash.App. 206, 219, 98 P.3d 1206 (2004). Division One also affirmed Halgren's objections to Dr. Wheeler's testimony, id. at 224, 98 P.3d 1206, and the jury instruction, id. at 216, 98 P.3d 1206.

ISSUES

¶ 9 1. Should this court review the propriety of the CR 35 examination when Halgren has provided no record that the trial court actually ordered him to submit to the examination?

¶ 10 2. Did the trial court err in admitting Dr. Wheeler's testimony concerning the results of Halgren's PPG examination in discussing deviancy and recidivism?

¶ 11 3. Did the trial court err in declining to instruct the jury that it must be unanimous as to whether Halgren suffered from a "mental abnormality" or a "personality disorder" in order to find that Halgren was an SVP?

ANALYSIS

¶ 12 Standard of Review. Halgren contends that the trial court erred in ordering the CR 35 examination; in admitting Dr. Wheeler's opinion regarding the PPG examination evidence under Frye, ER 702, and ER 403; and in declining to give the proposed unanimity jury instruction. This court reviews discovery rulings, the admissibility of expert opinion under ER 702, and the trial court's balancing of probative value against prejudicial effect under ER 403 for an abuse of discretion. State v. Brown, 132 Wash.2d 529, 626, 940 P.2d 546 (1997) (discovery rulings); Philippides v. Bernard, 151 Wash.2d 376, 393, 88 P.3d 939 (2004) (ER 702); State v. Vreen, 143 Wash.2d 923, 932, 26 P.3d 236 (2001) (ER 403). We review the admissibility of scientific evidence under the Frye test and the propriety of jury instructions de novo. State v. Gore, 143 Wash.2d 288, 304, 21 P.3d 262 (2001) (the Frye test), overruled on other grounds by State v. Hughes, 154 Wash.2d 118, 131 n. 2, 110 P.3d 192 (2005); Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash.2d 447, 453, 105 P.3d 378 (2005) (jury instructions).

¶ 13 The CR 35 Examination. In Williams, we held that chapter 71.09 RCW provides the exclusive means for obtaining mental examinations in SVP proceedings and precludes the use of CR 35. 147 Wash.2d at 491, 55 P.3d 597. In light of Williams, Halgren argues that the trial court committed reversible error when it ordered the CR 35 examination. Halgren relies on the following rule:

It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into it. In other words, there is no "retroactive" effect of the court's construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment.

Johnson v. Morris, 87 Wash.2d 922, 927-28, 557 P.2d 1299 (1976) (citations omitted); accord State v. Roggenkamp, 153 Wash.2d 614, 629, 106 P.3d 196 (2005).

¶ 14 Applying the Johnson rule to the Williams decision, Halgren argues that the trial court never had the authority to order the CR 35 examination and the results were therefore...

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