In re Detention of Strand v. State

• Decision Date: 31 July 2007
• Docket Number: No. 34442-4-II.,34442-4-II.
• Court: Washington Court of Appeals
• Parties: In re the DETENTION of John L. STRAND, Appellant, v. STATE of Washington, Respondent.

162 P.3d 1195

139 Wn. App. 904

In re the DETENTION of John L. STRAND, Appellant, v. STATE of Washington, Respondent.

No. 34442-4-II.

Court of Appeals of Washington, Division 2.

July 31, 2007.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Sarah Sappington, Office of the Atty General, Seattle, WA, for Respondent.

VAN DEREN, A.C.J.

¶ 1 John Leonard Strand appeals his commitment as a sexually violent predator (SVP)¹ arguing that: (1) he had a constitutional right to counsel at a chapter 71.09 RCW psychological evaluation conducted before the State filed a petition to have him adjudicated as a SVP and before the required probable cause hearing, (2) his counsel's failure to object to either the pre-filing or the post-filing psychological evaluations constituted ineffective assistance of counsel, and (3) the court's failure to record the testimony of his expert witness deprived him of an official record of that portion of the proceedings. Finding no error, we affirm.

FACTS

¶ 2 In 1992, a jury convicted John Strand of first degree child molestation and the trial court sentenced him to a 150-month exceptional sentence. In January 2004, Dr. Kathleen Longwell interviewed him and completed an evaluation under chapter 71.09 RCW. Longwell informed Strand that the interview was not confidential and that State could use the information gathered against him in a SVP case. Strand signed a consent form agreeing to an evaluation interview with Longwell.

¶ 3 During the interview, Strand denied committing any sex crimes, including the child molestation offense for which he was incarcerated. He denied any sexual interest, contact, or fantasies involving children. Based on the interview and a review of his records, Longwell diagnosed Strand with pedophilia, antisocial personality disorder, and alcohol dependence, concluding that these disorders predisposed him to commit violent sex crimes. She determined that he was in the highest risk range for sexual recidivism.

¶ 4 On February 7, 2005, the State filed a SVP commitment petition and a certification for determination of probable cause under Chapter 71.09 RCW. The following day, the trial court appointed an attorney to represent Strand. Thereafter, Strand submitted to a second evaluation on November 8, 2005, and to a deposition on December 6, 2005.

¶ 5 Before trial, Strand moved to exclude testimony from the State's witnesses about prior unadjudicated sex offenses, arguing that the incidents were not relevant because they may not have occurred and he may not have been the perpetrator. But, during his interviews and in his deposition and trial testimony, Strand admitted to having nonsexual contact with the witnesses at the described times and places. The trial court concluded that it was more likely than not that the incidents occurred and allowed the State's witnesses to testify.

¶ 6 At trial, consistent with the court's ruling, the State introduced testimony from six witnesses, including Strand's sister, about actual and attempted acts of abuse against children. One of the incidents led to a conviction for lewdness; the remaining incidents were either unreported or the charges were dismissed.

¶ 7 Longwell testified about her conclusions based on interviews with Strand and review of his records. In her opinion, Strand felt no remorse about his behaviors and their consequences did not trouble him. She believed he would likely sexually re-offend in a violent, predatory manner.

¶ 8 The defense called its own expert, Dr. Theodore Donaldson, who testified that Strand did not meet the SVP criteria. But, due to an error, the trial court did not activate its recording system and Donaldson's testimony was not preserved. As soon as the error was discovered, Strand moved for a mistrial, arguing that a reconstructed record could not substitute for Donaldson's complex testimony. The trial court denied his motion for mistrial, ruling that the parties could reconstruct the testimony from Donaldson's deposition.

¶ 9 The jury determined that Strand was a SVP. After the jury returned its verdict, the trial court directed the parties to reconstruct Donaldson's testimony. Strand objected to several portions of the State's proposed narrative and moved for a new trial. After making several changes to incorporate Strand's objections, the trial court was satisfied that the reconstructed record, with Donaldson's deposition incorporated, was accurate and sufficient.

¶ 10 Strand appeals.

ANALYSIS

I. Evaluation Before Filing SVP Petition

¶ 11 Strand argues that the State violated his rights because Longwell evaluated him before the State filed a SVP petition because RCW 71.09.040² provides for evaluation only after the probable cause determination. He claims that under In re Detention of Williams, 147 Wash.2d 476, 491, 55 P.3d 597 (2002), RCW 71.09.040 is the exclusive means of evaluating whether an individual is a SVP and the State failed to follow the statute.

¶ 12 But Strand consented to the pre-petition interview. And to preserve an error for appeal, counsel must call it to the trial court's attention so the trial court has an opportunity to correct it. State v. Wicke, 91 Wash.2d 638, 642, 591 P.2d 452 (1979). We do not consider errors raised for the first time on appeal except manifest errors affecting a constitutional right.³

¶ 13 Strand makes several arguments claiming that the evaluation process deprived him of his constitutional rights. We consider each in turn.

A. Right to Counsel During SVP Evaluations

¶ 14 Strand contends that the evaluation procedure was unconstitutional because it deprived him of the right to counsel during his SVP evaluation.

¶ 15 SVP offenders "have a statutory right to counsel during all stages of a commitment trial." In re Detention of Stout, 128 Wash.App. 21, 27, 114 P.3d 658 (2005). But there is no constitutional right to counsel at psychological evaluations conducted in the course of SVP proceedings. In re Detention of Kistenmacher, 134 Wash.App. 72, 73, 138 P.3d 648 (2006), review granted, 159 Wash.2d 1019, 157 P.3d 404 (2007). We reject Strand's request to reconsider our decision in Kistenmacher or to create a new requirement for counsel before a SVP petition is filed.

B. Self-Incrimination

¶ 16 Strand also asserts that by denying him counsel at the pre-petition evaluation, the State violated his Fifth Amendment privilege⁴ not to incriminate himself because he remains vulnerable to criminal prosecution for the un-adjudicated incidents.

¶ 17 To prevail on a claim of a Fifth Amendment violation, there must be a "`realistic threat of self-incrimination'" in a subsequent proceeding. State v. King, 130 Wash.2d 517, 524, 925 P.2d 606 (1996) (quoting Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). But Strand did not incriminate himself at any point. Moreover, a defendant must invoke the Fifth Amendment privilege for it to apply, except in a custodial interrogation or a situation where assertion of the privilege would be penalized. State v. Warner, 125 Wash.2d 876, 884, 889 P.2d 479 (1995). Strand was not compelled to answer any of the State's queries; to the contrary, he consented to the interview after Longwell asked him if he wanted to participate and informed him that his statements could be used against him in SVP proceedings. Absent compulsion, the interview does not constitute "interrogation." See Warner, 125 Wash.2d at 884, 889 P.2d 479. Strand fails to establish constitutional error based on violation of his Fifth Amendment privilege.

¶ 18 Strand does not demonstrate that he had a constitutional right to counsel at his psychological evaluation or that the absence of counsel deprived him of his privilege against self-incrimination. Because Strand failed to show that the pre-petition SVP evaluation affected any constitutional right, we decline to consider his objection to the State's evaluation procedure for the first time on appeal. RAP 2.5(a)(3).

II. Ineffective Assistance of Counsel

¶ 19 Next, Strand argues that his attorney provided ineffective assistance by failing to object to the evaluation procedure or dispute the voluntariness of his statements, contending that competent counsel would have preserved these issues for review.

¶ 20 To prevail on the claim, he must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the outcome. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). We give great deference to trial counsel's performance and presume that counsel was effective, viewing the representation in light of all the circumstances. McFarland, 127 Wash.2d at 335, 899 P.2d 1251; State v. Weber, 137 Wash.App. 852, 858, 155 P.3d 947 (2007). Matters of trial strategy or tactics do not establish that counsel's performance was deficient. Weber, 137 Wash.App. at 858, 155 P.3d 947. And when counsel fails to object to the admission of evidence, a defendant alleging ineffective assistance must show that the trial court would likely have sustained the objection. Detention of Stout, 159 Wash.2d 357, 377, 150 P.3d 86 (2007) (defendant entitled to effective assistance of counsel in SVP proceeding); State v. Saunders, 91 Wash.App. 575, 578, 958 P.2d 364 (1998).

¶ 21 Trial counsel's decision not to contest the State's pre-petition evaluation and failure to request a voluntariness hearing on the admissibility of his statements to Longwell was not objectively unreasonable. Strand voluntarily participated in the interview after Longwell advised him that his statements could be used against him in SVP proceedings. A reasonable attorney could conclude that because Strand acquiesced in the procedure and signed a consent form, he would probably not prevail on the issue.

¶ 22 Next, Strand argues that competent counsel would have advised him to assert his Fifth Amendment privilege and refuse...