In re Detention of Post
| Decision Date | 14 July 2008 |
| Docket Number | No. 55572-3-1.,55572-3-1. |
| Citation | 145 Wn. App. 728,187 P.3d 803 |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the DETENTION OF Charles W. POST. |
Eric Broman, Nielsen Broman Koch PLLC, Seattle, WA, for Appellant.
Brooke Elizabeth Burbank, Assistant Attorney General, Seattle, WA, for Respondent.
¶ 1 Charles Post appeals his commitment as a sexually violent predator (SVP) pursuant to chapter 71.09 RCW, the sexually violent predator act (SVPA). At trial, Post presented evidence of a voluntary community-based treatment program in which he could participate, if released from custody, so as to lessen the likelihood that he would reoffend. In response, the State presented evidence concerning the Special Commitment Center's (SCC) treatment program that would be available to Post only if he was committed as an SVP. Post had voluntarily participated in the first phases of the SCC program and evidence of his unsatisfactory performance in the program was presented by the State. In addition, the State presented evidence to the jury regarding the content of subsequent treatment phases in which Post had not participated. The State also presented to the jury evidence of potential less restrictive alternatives (LRAs) to confinement, such as release with conditions, that might also be ultimately available to Post, but only if he were first committed as an SVP.
¶ 2 We hold that the trial court erred by admitting evidence regarding potential LRAs and the content of the SCC treatment program phases in which Post had not participated. Such evidence was not relevant to the issues before the jury, but was highly and unfairly prejudicial to Post. Admission of this evidence allowed the jury to premise its verdict on considerations of the desirability of the LRAs and SCC treatment phases available to Post only if he was first committed as an SVP, rather than focusing the jury's attention on the question before it: whether the State had proved that Post was an SVP. Accordingly, we reverse the judgment committing Post as an SVP and remand the cause to the trial court for further proceedings.
¶ 3 The day before Post was scheduled for release from a prison term he began serving in 1988, the State filed a petition requesting that he be committed as an SVP. Ultimately, two trials were held. In the first, the parties agreed to exclude any evidence concerning the SCC program and Post's participation in the program. The first trial ended with the jury deadlocked, resulting in the declaration of a mistrial.
¶ 4 The second trial included 14 days of testimony from 12 State witnesses and 23 defense witnesses, including multiple expert witnesses for both sides. Each of the lead expert witnesses reviewed between 13,000 and 14,000 pages of records related to Post. To prove that Post had committed a crime of sexual violence, the State relied on evidence that Post was convicted of two counts of rape in 1974 and one count of rape in the first degree in 1988. Post did not dispute the existence of these convictions.
¶ 5 Post served part of his criminal sentence at Twin Rivers Corrections Center (Twin Rivers) where he participated in a sexual offender treatment program. However, Post was transferred out of Twin Rivers to another institution after having been found to have committed two infractions at Twin Rivers. Later, Post participated in the SCC's sex offender treatment program, reaching phase two of a six-phase program by the time of trial.
¶ 6 Post moved, in limine, pursuant to ER 4011 and ER 403,2 to exclude all evidence regarding the SCC treatment program, including evidence regarding the phases of treatment in which he had participated, as well as evidence of any potential LRAs. The trial court denied each request.3 Post unsuccessfully moved for reconsideration, arguing that, at most, the only evidence that was potentially relevant was evidence of Post's behavior in the SCC treatment phases in which he had participated, rather than evidence concerning the entire SCC program.4
¶ 7 At trial, Dr. Les Rawlings, a State's expert witness, testified that Post suffered from paraphilia, not otherwise specified, nonconsent or rape (paraphilia NOS rape). Dr. Sally Wing, Post's proposed community treatment therapist, also testified that Post suffered from paraphilia NOS rape. The parties presented conflicting evidence regarding the propriety of a diagnosis of paraphilia NOS rape and the necessary criteria to be considered in determining such a diagnosis. Defense expert witness Dr. Theodore Donaldson, a clinical psychologist specializing in forensic psychology, testified that there was insufficient evidence to conclude that Post met the essential features of the paraphilia diagnosis. Dr. Donaldson also testified that there was no known reliability or validity for the diagnosis of paraphilia NOS rape.
¶ 8 There was also extensive testimony as to whether Post's age, 50, would reduce his risk of reoffense. Several experts testified that, generally, rates of recidivism reduce as sexually violent offenders age. The expert witnesses disagreed as to the accuracy of cited studies and actuarial instruments when applied to someone of Post's age.
¶ 9 Post presented extensive evidence regarding his proposed voluntary treatment program, including the testimony of several members of his proposed support team. Forensic psychologist Dr. Louis Rosell, testifying on behalf of Post, asserted his belief that Post would comply with the voluntary community treatment program. Dr. Rosell's opinion was partially premised on Post's then-current treatment participation and program compliance. Dr. Rosell conceded that a significant weakness of Post's proposed treatment plan was that it was not mandatory but was, instead, premised on Post's purported desire to see it through to fruition.
¶ 10 SCC forensic therapist Jim Anderson, testifying on behalf of the State, described the SCC treatment program. Anderson explained:
Treatment is divided into a series of phases of treatment and there are a total of six phases in the treatment program, ranging from one to six. The first phase is a beginning entry phase; and then progressing through the sixth phase of treatment, that's when it's considered that the residents are — will soon be considered, or likely to be considered, for a conditional release into the community.
Verbatim Report of Proceedings (VRP) (Dec. 7, 2004) at 41. Anderson testified in detail about each of the six phases of the SCC treatment program. At the time of trial, Post was in phase two of the SCC program. Before Anderson began explaining phase three, Post objected. A sidebar was held. The trial court then overruled the objection. Anderson then described in detail the different aspects of the treatment program:
Q. And the Community Transition Module, is that focused on preparing the individuals to (inaudible) the community?
A. Yes, it is.
Q. (Inaudible/tape damage) at that time that the individual will be back in the community with tight court ordered supervision?
A. That is the expected, yes.
....
Q. And looking at the Relapse Prevention VII, it's subtitled Discharge Planning, what does that pertain to?
A. By the time that the resident gets to these advanced phases, they have demonstrated an ability to manage their ... their risk to reoffend. So the relapse prevention, the advanced relapse prevention class, really looks at a lot of real world scenarios that the resident will face if he gets conditionally discharged, that he'll have to face in the community. So it's a very much reality based planning for how to deal with relapse in the community.
....
Q. So is it fair to say the goal of the treatment program is to integrate the individual back into the community while under supervision?
A. Yes and no. The ultimate goal is no more victims, and the secondary goal is to successfully transition the individual back into the community.
Q. And in phase 6, the individual will be ongoing in treatment while on court ordered conditions of release, is that right?
A. That is correct.
¶ 11 On re-direct examination, Anderson further testified concerning conditional release:
Q. Now [Defense Counsel] asked you about individuals. No individual has been released from the Special Commitment Center unconditionally, is that correct?
A. That's correct.
Q. And that means that no one who has been found to be a sexually violent predator has been later found no longer to be a sexually violent predator, is that what that means?
A. That's partly how I understood that question, yes.
Q. But there have been many individuals who have been released on conditions; is that correct?
A. That is correct.
Q. And that means that they're released with court supervision, correct?
A. That's correct.
Q. And that supervision includes electronic monitoring?
A. It can.
Q. It includes a CCO or Parole Officer?
A. It can.
Q. And it includes treatment in the community under the umbrella of the court, correct?
A. Yes, it does.
¶ 12 Near the end of Anderson's testimony, individual jurors posed questions for him regarding the SCC program,5 including the following: "Approximately how many residents who have been committed to the SCC have completed the program and [been] released?"6 Anderson answered, VRP (Dec. 7, 2004) at 119.
¶ 13 Later in the trial, the following exchange took place during the State's cross-examination of Dr. Rosell:
Q. [D]on't you think that the community would be better protected if Mr. Post completed the treatment program at the SCC?
Q. Well, is it your understanding that if Mr. Post completes the...
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