In re Personal Restraint of Duncan

• Decision Date: 22 October 2009
• Docket Number: No. 81230-6.,81230-6.
• Citation: 219 P.3d 666,167 Wn.2d 398
• Parties: In the Matter of the PERSONAL RESTRAINT OF Bryan DUNCAN, Appellant.
• Court: Washington Supreme Court

219 P.3d 666

167 Wn.2d 398

In the Matter of the PERSONAL RESTRAINT OF Bryan DUNCAN, Appellant.

No. 81230-6.

Supreme Court of Washington, En Banc.

Argued May 12, 2009.

Decided October 22, 2009.

Valerie Marsushige, Kent, for Petitioner/Appellant.

Sarah Sappington, Joshua Choate, Brooke Elizabeth Burbank, Seattle, for Appellee/Respondent.

CHAMBERS, J.

¶ 1 Bryan Duncan was convicted of three counts of first degree child molestation in 1992 and 1993. In 1996, the State petitioned to have Duncan civilly committed as a sexually violent predator (SVP) under chapter 71.09 RCW. Nine years later, in 2005, a jury found that Duncan was an SVP and the trial court ordered him committed to the Special Commitment Center (SCC). Duncan argues that the trial court abused its discretion in making several evidentiary rulings and that he did not receive a fair trial. Upon careful review of the record, we hold that the trial court did not abuse its discretion and affirm the Court of Appeals.

FACTS

¶ 2 In 1992, Duncan, then 16 years old, was convicted of first degree child molestation and was committed to the Department of Juvenile Rehabilitation. He was convicted of two more counts of first degree child molestation in 1993¹ and was committed to the Maple Lane School, a juvenile facility in Centralia.

¶ 3 While a resident at Maple Lane, Duncan had a variety of disciplinary problems. He had trouble controlling his anger and was often abusive to staff and other residents. On numerous occasions he was found masturbating and exposing himself to staff members. While participating in sex offender treatment, Duncan admitted to sexually abusing between 20 and 40 children and that he continued to fantasize about having sex with children. Some of these fantasies included mutilating and cannibalizing children.

¶ 4 In 1996, just prior to his scheduled release from Maple Lane, Duncan was evaluated by Dr. Leslie Rawlings, a licensed psychologist. Dr. Rawlings concluded that Duncan suffered from schizophrenia and pedophilia and that he was more likely than not to reoffend if released into the community. Following that report, the State filed a petition to have Duncan civilly committed as an SVP under chapter 71.09 RCW. Duncan was transferred to the SCC while he awaited trial.

¶ 5 Despite numerous trial dates set over the next four years, by 2000, Duncan's trial had still not been held. On May 9, 2000, the court granted the State's CR 35 motion to have Duncan reevaluated by Dr. Rawlings during pretrial discovery. Though no formal objection was filed, Duncan refused to submit to any further examinations by Dr. Rawlings and the court granted CR 37 sanctions. Dr. Rawlings never personally reevaluated Duncan.

¶ 6 Trial finally began in October 2005.² As part of its case the State offered the expert testimony of Dr. Rawlings who, in addition to his initial evaluation of Duncan in 1996, testified he was basing his opinion on reports filed by others while Duncan was confined at Maple Lane and the SCC. On cross examination defense counsel emphasized that Dr. Rawlings's opinions about Duncan's behavior after 1996 were "based on what others have written." Report of Proceedings (RP) (Nov. 3, 2005) at 1256. On redirect the State asked Dr. Rawlings if he would have liked the opportunity to meet with Duncan to update his evaluation. Dr. Rawlings responded, "yes." Id. at 1328. When the State asked Dr. Rawlings what prevented him from conducting an updated evaluation, defense counsel motioned for a mistrial arguing that after this court's decision in In re Detention of Williams, 147 Wash.2d 476, 55 P.3d 597 (2002), the State is not entitled to a pretrial CR 35 examination and to highlight Duncan's decision not to participate in one was unfairly prejudicial. After considering the issue overnight, the trial judge concluded that the State could show that Dr. Rawlings was denied an opportunity to conduct another interview with Duncan.

¶ 7 Trial testimony also established that if released Duncan planned to live with Dion Walls. Walls was a former sex offender with whom Duncan entered into a friendship while confined at the SCC. On cross examination, and over objection, the State asked defense expert Dr. Robert Wollert if he was aware that Duncan planned to live with Walls after release and whether he knew that Walls had a criminal history of sexually offending against children. Dr. Wollert responded, "yes." RP (Nov. 9, 2005) at 1815. Despite allowing the State to elicit this testimony regarding Walls's past criminal history, the court refused to allow Duncan to offer evidence regarding aspects of Walls's own SVP case including the fact that Walls, apparently, had not reoffended.

¶ 8 Duncan also attempted to show at trial that his refusal to participate in sex offender treatment while at the SCC was due to the ineffectiveness of the treatment offered. While the trial court allowed Duncan to testify on his opinion about the effectiveness of the program, the court refused to allow Duncan to elicit expert testimony about the quality of treatment at the SCC. The trial court specifically refused to allow Duncan's attorney to cross-examine the State's expert witness, Dr. Paul Spizman, about his opinion regarding the success or failure of the treatment program, finding that such evidence was beyond the scope of the proceeding. The trial court also prohibited Duncan from eliciting testimony from his own expert, Dr. Robert Halon, about the quality of treatment at the SCC.

¶ 9 After a two week trial with extensive expert testimony on both sides, the jury found that Duncan was an SVP. Duncan appealed arguing the trial court made several erroneous evidentiary rulings. The Court of Appeals affirmed. In re Det. of Duncan, 142 Wash.App. 97, 110, 174 P.3d 136 (2007). This court accepted review. In re Det. of Duncan, 164 Wash.2d 1024, 196 P.3d 137 (2008).

ANALYSIS

¶ 10 Duncan's arguments focus on the various evidentiary rulings the trial judge made during the trial. A trial court's evidentiary rulings are reviewed for abuse of discretion. State v. McDonald, 138 Wash.2d 680, 693, 981 P.2d 443 (1999). A trial court abuses its discretion if its decision is manifestly unreasonable or is based on "`untenable grounds, or for untenable reasons.'" Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 684, 132 P.3d 115 (2006) (quoting Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wash.App. 223, 229, 548 P.2d 558 (1976)). A trial court's decision is manifestly unreasonable if it "adopts a view that `no reasonable person would take.'" Id. (quoting State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003)). A decision is based on untenable grounds or for untenable reasons if the trial court applies the wrong legal standard or relies on unsupported facts. Id.

Dr. Rawlings

¶ 11 Duncan first argues that the trial court abused its discretion by admitting testimony regarding his refusal to submit to a second mental examination by Dr. Rawlings. CR 35 allows a court to order a party to submit to a mental examination by a psychologist if the party's mental condition is in controversy. However, in 2002, we held that "the State is not entitled to a CR 35 mental examination of an individual for whom the State seeks commitment as a sexually violent predator." In re Det. of Williams, 147 Wash.2d 476, 479, 55 P.3d 597 (2002). After analyzing CR 35 against chapter 71.09 RCW, we concluded that the civil rule was inconsistent with the special proceedings set out in the SVP statute. Id. at 491, 55 P.3d 597. We limited the State's ability to conduct mental examinations in SVP proceedings to the procedures set forth in RCW 71.09.040(4).³ Id.

¶ 12 Duncan contends that the trial court's decision was based on an erroneous understanding of the law and that because the court had no authority to force him to submit to a CR 35 examination, evidence of his refusal was irrelevant and prejudicial. Specifically he asserts that evidence regarding his refusal to agree to a second examination allowed the jury to believe he "had reason to be apprehensive about another evaluation and that he was being less than honest and open about his rehabilitation." Pet. for Review at 10. But, as the trial court noted, it was Duncan who first raised the issue of Dr. Rawlings's failure to examine him after the initial examination in 1996. In explaining his decision, the trial court specifically noted that "the defense has raised a point that this [Rawlings's conclusion] was all based on hearsay reports." RP (Nov. 4, 2005) at 1340. The trial court concluded that Duncan had opened the door to the State's questioning in this area. Under the circumstances, it was reasonable for the trial judge to conclude that allowing the State's response was appropriate in light of Duncan's attack on Dr. Rawlings's credibility.

¶ 13 With regard to Duncan's claim that Dr. Rawlings's testimony was overly prejudicial, the record demonstrates that in fact very little was said about the refusal to submit to a second examination. After the court made its ruling the following exchange took place between counsel for the State and Dr. Rawlings:

Q. When we broke yesterday I was just in the process of asking you whether you would like to have had an opportunity to meet with Mr. Duncan again.

A. Yes.

Q. That is yes, you would have liked to?

A. Yes, you were asking me that, and, yes, I would like to have.

Q. And did you request an opportunity to interview him again?

A. I did through the Attorney General's Office.

Q. And were you able to interview him?

A. No.

RP (Nov. 4, 2005) at 1341. No further testimony was offered regarding Duncan's decision not to be reevaluated by Dr. Rawlings. When the jury asked Duncan why he chose not to be reevaluated for the trial,⁴ the court answered for Duncan stating, "[a]nd to the members of this jury, Mr. Duncan did not wish to do so, and the Court did not order him to participate in further evaluation." RP (Nov. 9,...