In re Detention of Davenport
| Decision Date | 05 August 2010 |
| Docket Number | 23545-9-III,27434-9-III |
| Parties | In re the Detention of William Davenport, aka William Cummings STATE OF WASHINGTON, Respondent, v. WILLIAM DAVENPORT, aka WILLIAM CUMMINGS, Appellant. In re the Detention of William Davenport, aka WILLIAM CUMMINGS STATE OF WASHINGTON, Appellant, v. WILLIAM DAVENPORT, aka WILLIAM CUMMINGS, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
In consolidated appeals, we first consider William Davenport's challenges to the 2004 Franklin County Superior Court order civilly committing him as a sexually violent predator (SVP). He mainly contends (1) his SVP hearing was untimely and noncompliant with the SVP statute (chapter 71.09 RCW); (2) the SVP statute violates due process; (3) the court committed evidentiary error especially in allowing evidence of actuarial instruments to predict future dangerousness; (4) insufficient evidence supports the jury's SVP finding; and (5) ineffective assistance of counsel. We reject Mr. Davenport's contentions and affirm.
Second we consider the State's appeal of the court's order granting Mr. Davenport a new trial on the question whether he remains an SVP. The State mainly contends Mr. Davenport failed to produce evidence of a change in his mental condition brought about through participation in treatment as required by RCW 71.09.090(4). We agree with the State and reverse the new trial order.
Four days before his scheduled March 26, 1996 prison release date for a 1992 second degree child molestation conviction, the State petitioned to civilly commit Mr. Davenport as an SVP under chapter 71.09 RCW. He was transferred from prison to the Franklin County Jail on March 26. The probable cause hearing set the same day did not occur due to Mr.
Davenport's multiple continuance requests and his stay request pending the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), which upheld the constitutionality of sexual predator statutes. Mr. Davenport later moved to dismiss the State's petition on various grounds, including violation of his right to a probable cause hearing within 72 hours of his civil commitment detention. On June 24, 1999, the trial court issued a memorandum opinion dismissing the State's petition without prejudice.
On June 29, 1999, the State filed its second civil commitment petition. A probable cause hearing was held on July 1, 1999. The State's expert, Dr. Robert Wheeler, testified that actuarial tests "predict that Mr. Davenport is quite likely to reoffend sexually." Report of Proceedings (RP) at 38. The court found probable cause that Mr. Davenport is an SVP and ordered him detained at the Special Commitment Center (SCC) for evaluation.
Mr. Davenport directly appealed the June 24 memorandum opinion and August 27, 1999 following order dismissing the first petition without prejudice. On July 30, 1999, Mr. Davenport petitioned for discretionary review of the court's detention order in the second petition. In a consolidated review, this court held the trial court properly dismissed the first petition without prejudice, the State was not precluded from filing the second petition on June 29, and the trial court did not otherwise commit probable error in its rulings. See In re Det. of Davenport, No. 18653-9-III (Wash.Ct.App. 2001), review denied, 145 Wn.2d 1030, 42 P.3d 975 (2002). Mr. Davenport has remained in total confinement since 1992, including being housed at the SCC (or in county jail during court proceedings) since the filing of the first SVP petition in 1996.
Mr. Davenport now challenges the court's failure to dismiss his 2004 SVP commitment proceedings on multiple grounds. First, the trial court rejected his argument that the State failed to evaluate him within 45 days of his initial detention, reasoning he had refused to participate in his evaluation and no statutory time limit is required. Second, the trial court rejected Mr. Davenport's theory that his 1992 child molestation conviction alleged as a predicate for his SVP determination was legally inadequate because it was based upon an Alford[1] plea, not a full factual adjudication.
Third, Mr. Davenport challenges several evidentiary rulings. Mr. Davenport unsuccessfully moved pretrial for a Frye[2] hearing regarding admissibility of actuarial tables predicting sex offender recidivism. He sought to exclude use of the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) and the Sex Offender Risk Appraisal Guide (SORAG) on the theory that the instruments fail to properly consider decreasing recidivism rates of aging offenders. Mr. Davenport was age 51 at the time of trial. The court decided actuarial instruments are generally accepted by the scientific community for use in SVP cases, and debate about their efficacy goes to weight and not admissibility.
Mr. Davenport sought to exclude evidence of an alleged 1979 rape for which a jury acquitted him. The court ruled the incident was relevant and admissible based upon the State's proof by a preponderance that the rape in fact occurred.
Mr. Davenport unsuccessfully sought to preclude the State from questioning his expert psychologist, Dr. Robert Halon, about disciplinary action taken against him by the California Board of Psychology in 1998. The discipline arose from acts of alleged dishonesty, including his failure to file a mandatory child abuse report, billing improprieties, failure to contact other psychologists to review treatment records, and an affirmative misstatement of a patient's test results. Dr. Halon signed a stipulated settlement and discipline order admitting to sufficient evidence to prove the allegations. The parties in the California stipulation agreed that the disciplinary action could not be used as evidence in any civil or criminal case. Here, the trial court ruled it was not bound by the stipulation and reasoned the impeachment evidence was relevant to Dr. Halon's qualifications as an expert and his credibility as a witness.
At the 2004 jury trial, the court asked prospective jurors if they knew any of the trial witnesses. Juror Blake Osborn indicated he knew two witnesses as school classmates 30 to 40 years earlier. The witnesses were two of Mr. Davenport's alleged victims-L.M. in an unprosecuted 1981 incident and D.B. in an uncharged 1975 attack. After extensive colloquy with the court and counsel regarding possible bias, Mr. Osborn was seated for the jury without challenge by either party.
The jury heard certain sexual misconduct evidence against Mr. Davenport:
Uncharged 1975 assault.
D.B. testified Mr. Davenport was a high school acquaintance and that he attacked her in her home in Pasco in April 1975. She recalled he came to her door to apologize for backing into her car. But he instead pushed her into her bedroom, ripped off her shirt, and pinned her on the bed. She tried to fight him off. Her roommate, D.W., appeared with a frying pan and told him to leave. D.W. called the police. They declined to pursue charges because D.W. foiled the assault and Mr. Davenport had fled. Mr. Davenport testified at the current commitment trial that the incident never occurred and he does not know D.B.
Acquittal on 1979 rape charge.
R.G. testified that in April 1979, Mr. Davenport knocked on her door asking for directions and to use the telephone and restroom. She let him inside. He threatened he had a gun and then repeatedly raped her. She was terrified he would kill her. She called police when Mr. Davenport left. He was charged with rape but was acquitted. He testified at the commitment trial that he and R.G. had consensual sex.
1980 Indecent liberties conviction.
Mr. Davenport pleaded guilty to indecent liberties involving 13-year-old, S.W. Mr. Davenport forced S.W. to engage in oral sex and masturbate him. He was released to community supervision in December 1980.
Uncharged 1981 assault.
L.M. testified that in April 1981, Mr. Davenport attacked her while she was bartending at the Kennewick Inn. After closing time, when all other customers had left, he pushed her onto a pool table, climbed on top of her, and groped her breasts. She fought him off and called police the next day. A warrant was issued for his arrest, but the case was never prosecuted because he fled the State (without his parole officer's permission) after the incident. At the commitment trial, Mr. Davenport denied pushing L.M. onto a pool table but did admit to touching her breasts.
1981 California conviction for assault with intent to rape.
In November 1981, Mr. Davenport was convicted by guilty plea in Ukiah, California for assault with intent to commit rape after he attacked a woman outside a bar. He served a six-year prison sentence and was then transferred to Washington to serve the suspended portion of his indecent liberties sentence involving S.W. He remained incarcerated until early 1988. At the commitment trial, Mr. Davenport denied attacking the woman and said it started as a consensual encounter in which he only touched her breasts.
1992 Alford plea.
Mr. Davenport was convicted of second degree child molestation after he entered his ex-girlfriend's trailer and molested her daughter, S.N. He was imprisoned on this conviction until his March 26, 1996 transfer to the Franklin County Jail on the SVP petition. At the commitment trial, he testified he did not intend to touch S.N.; he thought he was touching her mother.
Expert testimony.
Dr Robert Wheeler, a specialist in forensic psychology, testified as the State's expert. He initially reviewed Mr. Davenport's file in 1995, and then again as new information emerged in 1998, 2003, and 2004. The file...
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