In re Detention of Pouncy

• Decision Date: 19 May 2008
• Docket Number: No. 59034-1-I.
• Citation: In re Detention of Pouncy, 184 P.3d 651, 144 Wn. App. 609 (Wash. App. 2008)
• Court: Washington Court of Appeals
• Parties: In the Matter of the DETENTION OF Curtis N. POUNCY.

184 P.3d 651

144 Wn. App. 609

In the Matter of the DETENTION OF Curtis N. POUNCY.

No. 59034-1-I.

Court of Appeals of Washington, Division 1.

May 19, 2008.

Casey Grannis, Christopher Gibson, Nielsen Broman & Koch, Seattle, for Appellant.

Barbara A. Flemming, Timothy A. Bradshaw, King County Prosecutor's Office, Seattle, for Respondent.

DWYER, J.

¶ 1 Curtis Pouncy appeals from an order authorizing his commitment as a sexually violent predator (SVP) pursuant to chapter 71.09 RCW, the sexually violent predator act. He raises four assignments of error: (1) that his right to a unanimous jury verdict was violated; (2) that the trial court erred by not instructing the jury on the definition of "personality disorder;" (3) that the trial court improperly commented on the evidence; and (4) that the trial court erred by allowing Pouncy's expert witness to be impeached through the use of findings of fact entered in an unrelated Yakima County Superior Court matter. Finding merit in the latter contention, we reverse.

I

¶ 2 On April 1, 2003, the State filed a petition seeking Pouncy's commitment pursuant to chapter 71.09 RCW. A commitment proceeding was held before a jury.

¶ 3 To establish that Pouncy was a sexually violent predator, the State was required to prove the following elements beyond a reasonable doubt: (1) that Pouncy had been convicted of or charged with a crime of sexual violence; (2) that Pouncy suffered from a mental abnormality¹ or personality disorder; and (3) that such mental abnormality or personality disorder made Pouncy likely to engage in predatory acts of sexual violence if not confined in a secure facility. RCW 71.09.020(16); In re Det. of Audett, 158 Wash.2d 712, 727, 147 P.3d 982 (2006) (quoting In re Det. of Thorell, 149 Wash.2d 724, 758-59, 72 P.3d 708 (2003)).

¶ 4 Dr. Richard Packard, a licensed psychologist and certified sex offender treatment provider, testified on behalf of the State. Dr. Richard Wollert, a clinical psychologist, testified on behalf of Pouncy. Dr. Packard opined that Pouncy suffered from a mental abnormality called paraphilia, not otherwise specified, nonconsent (paraphilia NOS nonconsent). Dr. Packard also diagnosed Pouncy with anti-social personality disorder.

¶ 5 During the trial there was much testimony regarding pedophilia, including Pouncy's treatment, or lack thereof, for pedophilia. Dr. Packard, the State's expert, testified that there was "evidence indicating that it's reasonable" to consider the possibility that Pouncy suffered from pedophilia. Verbatim Report of Proceedings (VRP) (Sept. 26, 2006) at 23-26. Dr. Packard testified to incidents in Pouncy's past history that were "pretty strongly suggestive that pedophilia may also be a problem for him." VRP (Sept. 26, 2006) at 23-26. However, Dr. Packard testified that he "did not conclude that Mr. Pouncy definitely has pedophilia." VRP (Sept. 26, 2006) at 26. Pouncy did not object at trial to this testimony concerning pedophilia.

¶ 6 Dr. Packard also opined that Pouncy was likely to reoffend. Dr. Wollert disagreed and further opined that Pouncy did not suffer from a mental abnormality or personality disorder. In addition, the experts disputed the validity and reliability of the paraphilia NOS nonconsent diagnosis, as well as whether Pouncy met the criteria for having anti-social personality disorder.

¶ 7 In cross-examination, after challenging Dr. Wollert's adherence to the "Null hypothesis,"² the State questioned him about findings of fact made by a Yakima County Superior Court judge in an unrelated proceeding:

Q. And you're aware, are you not, of who Dr. Hanson is?

A. Yes.

Q. And Dr. Hanson is the person that developed the Static 99, the only instrument that you used in this case, right?

A. Yes.

Q. And Dr. Hanson was specifically asked about your technique of using the Null hypothesis testing in SVP evaluation, right?

A. Yes.

Q. And I'm going to hand you what's been marked Exhibit 155. That's a letter from Dr. Hanson, right?

A. Yes, it is.

Q. On page two of that letter, Dr. Hanson states: Dr. Wollert's criticism of Dr. Rawlings, another evaluator, were from the standpoint of the Null logic model of hypothesis testing, quote unquote. To my knowledge, this Null hypothesis approach to psychological evaluations as presented by Dr. Wollert is original to Dr. Wollert. That's what Dr. Hanson said, right?

A. Yes, yes.

Q. And by his admission, it's not widely shared among other evaluators, right?

A. Yes.

Q. And he goes on to say that, although Dr. Wollert claims the Null hypothesis approach is superior to other models, I was not convinced that his approach is an improvement over existing practice or that it has a robust logical foundation.

A. That's what he says.

Q. And then he goes on to say, in particular, the logical basis of the default position, Null hypothesis, is not given by the model. Why, for example, should the default position be that an offender does not meet criteria, rather than the default position being that an offender meets criteria, particularly when an offender has previously been determined to meet the criteria? So that was Dr. Hanson's response to this Null hypothesis testing, right?

A. That's what he wrote, yes.³

....

Q. You testified in a case of In Re: Robinson, right?

A. Yes.

Q. Do you recall that case?

A. It's quite some time ago. I recall—I recall portions of it, but certainly not all of it.

Q. In that case you testified about the Null hypothesis testing approach that you used, right?

A. Yes.

Q. And I asked you about this in your deposition, right?

A. Meaning what?

Q. I asked you about the Robinson case in your deposition?

A. Yes, you asked me about the Robinson case, yes.

Q. And when you say this was some time ago, the findings and conclusions came out in March of 2006, right?

A. Right. The testimony was some time before that.

Q. And in the Robinson case—I'm going to hand you what's been marked Exhibit 156. I want you to look at finding of fact number 19, which is on page four.

A. Yes.

Q. And it states, Dr. Wollert's methods of assessing the impact of age on recidivism are generally not accepted in the—

[DEFENSE COUNSEL]: Objection, Your Honor, foundation.

THE COURT: On that basis the objection is overruled.

Q. In the community of mental health professionals who evaluate and assess persons in SVP matters. This includes his use of Bayes theorem⁴ and Null hypothesis, right?

A. Yes, that's what the judge signed.

Q. And that's the finding of fact in this case, that your methodologies are not generally accepted in the scientific community, right?

A. That is what the judge signed.

Q. And when I asked you about that in your deposition, you said, geez, I didn't even know anything about that, right?

A. Right. I had not received a copy of that, so that it was new information to me, yes.

VRP (Oct. 10, 2006) at 157-61. Later, the State returned to the prior judicial factual findings during continued cross-examination of Dr. Wollert:

Q. You testified in the Robinson case, right?

A. Yes.

Q. We've talked about that before?

A. We have.

Q. We've talked about the court's finding that you—your Null hypothesis testing was not generally accepted in the scientific community, correct?

A. That is what the judge—that one judge signed off on, yes.

Q. That one judge also signed off on that same statement regarding the Bayes theorem, right?

A. That's right.

Q. Dr. Wollert's methods of assessing the impact of age on sexual recidivism are not generally accepted in the community of mental health professionals who evaluate and assess persons in SVP matters. This includes his use of Bayes theorem and Null hypothesis, right?

A. That's what the judge signed off on.

VRP (Oct. 11, 2006) at 35-36. On redirect examination, Dr. Wollert stated that he had testified in many cases in which he referenced both the Null hypothesis and the Bayes theorem subsequent to the issuance of the Yakima court's factual findings in the Robinson matter.

¶ 8 Later in the trial, the State informed the trial court that it intended to seek the introduction of evidence of another court's factual findings from yet another prior unrelated case in which it was concluded that one of Pouncy's witnesses, a private investigator, was not credible. The trial court excluded the evidence, reasoning:

It is not appropriate for a witness to testify as to the credibility of another witness, and I would—and I don't find this relevant, unless somehow an issue of bias is raised. Had [defense counsel] objected on the issue of relevance to the findings of the Yakima judge, I would have sustained that objection.

VRP (Oct. 11, 2006) at 140.

¶ 9 In closing argument, the State discussed the issue of pedophilia, without objection from Pouncy.

II

¶ 10 Pouncy first contends that because the State presented evidence of alternative means to prove the mental illness element of RCW 71.09.020, while failing to introduce substantial evidence as to each alternative, he was denied his right to a unanimous jury verdict. We disagree.

¶ 11 The right to a unanimous jury verdict applies in SVP civil commitment hearings. RCW 71.09.060(1); In re Det. of Keeney, 141 Wash.App. 318, 327, 169 P.3d 852 (2007). Principles regarding the right to unanimous jury verdicts in criminal proceedings apply equally in SVP civil commitment hearings. In re Det. of Halgren, 156 Wash.2d 795, 809-11, 132 P.3d 714 (2006); Keeney, 141 Wash.App. at 327, 169 P.3d 852. One such principle is the rule that

when there is a single offense committable in more than one way, "it is unnecessary to a guilty verdict that there be more than unanimity concerning guilt as to the single crime charged ... regardless of unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged."

Halgren, 156 Wash.2d at 809, 132 P.3d 714 (quoting State v. Arndt, 87 Wash.2d 374, 377, 553 P.2d 1328 (1976)).

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