In re the Det. of Clinton Morgan

• Citation: 161 Wash.App. 66,253 P.3d 394
• Decision Date: 01 June 2011
• Docket Number: No. 38337–3–II.,38337–3–II.
• Parties: In re the DETENTION OF Clinton MORGAN, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 66

253 P.3d 394

In re the DETENTION OF Clinton MORGAN, Appellant.

No. 38337–3–II.

Court of Appeals of Washington, Division 2.

April 8, 2011.As Amended on Denial of Reconsideration June 1, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalMPR 1.3

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.Joshua Choate, Office of the Washington State Attorney, Seattle, WA, for Respondent.QUINN–BRINTNALL, J.

[161 Wash.App. 69] ¶ 1 Clinton Morgan appeals a 2008 jury determination that he is a sexually violent predator (SVP), under ch. 71.09 RCW, and his resulting civil commitment. Morgan asserts that a 2006 chambers meeting, which he did not attend, discussing the possibility of forcibly medicating him during the commitment proceedings, violated (1) his right to personally attend all proceedings to assist his counsel and (2) his Washington constitutional right to open proceedings. In addition, he argues that the trial court violated his due process rights when it (1) held his SVP civil commitment jury trial despite his incompetence and (2) forcibly medicated him during the proceedings. Finally, Morgan claims that paraphilia not otherwise specified (NOS) (nonconsent) is an invalid diagnosis that could not form the basis for his civil commitment. We hold that the 2006 chambers meeting concerned purely ministerial and legal matters and did not violate any of Morgan's rights, Morgan's procedural due process rights were not violated by holding SVP proceedings despite his incompetence, the record is not adequately developed to consider the alleged forced medication error, and Morgan failed to preserve for review his challenge to an expert's diagnosis. We affirm.

FACTS

¶ 2 Morgan, who was born on February 25, 1980, pleaded guilty to indecent liberties in 1993. This juvenile adjudication stemmed from a school incident in which Morgan prevented 15–year–old J.W., a stranger to him at the time, from leaving a classroom while he forcibly kissed her, grabbed her breasts, and rubbed her other private parts. The juvenile court sentenced Morgan to 65 weeks in a Juvenile Rehabilitation Administration program. As part of his rehabilitation program, Morgan participated in sexual deviancy treatment during which he disclosed problems distinguishing between fantasy and reality; masturbating to rape fantasies; and having sadistic sexual fantasies involving murder, humiliation, and disfigurement. After his release in 1994, Morgan continued receiving community based sex offender treatment until early 1997.

¶ 3 In 1997, approximately two weeks after completing a sex offender treatment program, Morgan molested two girls at a hotel swimming pool while pretending to be a lifeguard. Six-year-old K.S. told her parents that Morgan had touched her chest area and between her legs. Five-year-old R.B. told her parents that Morgan had been “tickling her on her ‘peepee’ on the outside of her swimming suit.” Clerk's Papers (CP) at 5. An adult at the pool witnessed Morgan touching R.B. on her back and buttocks and observed that Morgan had an erection when he got out of the pool after touching R.B. Morgan later stated that he just wanted to see if he could handle being around children, but things “got out of hand” once he touched the girls and that he “had no control over the situation, period.” 2 Report of Proceedings (RP) at 255.

¶ 4 Morgan pleaded guilty to one count of first degree child molestation for the swimming pool incident and received an 89–month sentence.¹ During his incarceration, Morgan was moved to the Special Offender Unit at the Monroe Correctional Complex after he developed psychotic symptoms. While at Monroe, he completed a sex offender treatment program making limited rehabilitative progress. Even after completing treatment, the program considered Morgan as having a high risk of reoffending.

¶ 5 On August 31, 2004, the day before his scheduled release into the community, the State filed a petition seeking Morgan's involuntary commitment as an SVP. The petition alleged in pertinent part as follows:

1. [Morgan] has been convicted of the following sexually violent offense(s), as that term is defined in [former] RCW 71.09.020(15) [ (2003) ]: On or about May 30, 1997, in Grays Harbor County Superior Court, Grays Harbor, Washington, [Morgan] was convicted of Child Molestation in the First Degree.

2. [Morgan] currently suffers from:

a) A mental abnormality, as that term is defined in [former] RCW 71.09.020(8) [ (2003) ], specifically: Paraphilia NOS (Non–Consent); Pedophilia, Sexually Attracted to Females, Nonexclusive Type; and provisionally Sexual Sadism; and

b) A personality disorder, specifically: Antisocial Personality Disorder.

3. [Morgan's] mental abnormality and personality disorder cause him to have serious difficulty in controlling his dangerous behavior and make him likely to engage in predatory acts of sexual violence unless confined to a secure facility.

CP at 1–2. Over the next four years, the parties requested various continuances and addressed a variety of issues not relevant to this appeal. During this time, Morgan lived at the Special Commitment Center (SCC) on McNeil Island.

¶ 6 In February 2006, at Morgan's counsel's request, the trial court held a hearing to determine Morgan's competency for his SVP trial. Morgan's expert witness opined that he was not competent. The trial court determined that Morgan was not competent and expressed “very great concerns regarding the ability of Mr. Morgan to assist in [his] representation in these matters.” RP (Feb. 23, 2006) at 9. Primarily based on their understanding of In re Detention of Greenwood, 130 Wash.App. 277, 122 P.3d 747 (2005), review denied, 158 Wash.2d 1010, 143 P.3d 830 (2006), Morgan's attorney, the State, and the trial court agreed that, in civil commitment hearings, a person does not have to be competent for a matter to proceed. But the parties and trial court agreed that a guardian ad litem (GAL) should be appointed to represent Morgan's interests. On April 19, 2006, the trial court entered its final order appointing Morgan a GAL under RCW 4.08.060.

¶ 7 In June 2006, Morgan's attorney asked that Morgan be forcibly medicated to control his behavior during the SVP proceedings. The trial court initially granted the motion in an oral ruling, but then accepted the State's request to take more evidence and weigh different interests before entering a final ruling. On August 30, the trial court discussed the forced medication motion process in chambers. The trial judge, a court reporter, and the GAL were physically present in the trial court's chambers. The State's and Morgan's attorneys were present via phone. Morgan was not present. The State reviewed the trial court's standard for ruling on the medication motion. Morgan's attorney asserted that, without medication, Morgan's behavior would prejudice the jury. The GAL recommended learning whether medication might help control Morgan's disruptive and delusional outbursts and noted that “Morgan himself is violently [and] vehemently against any kind of involuntary medication.” RP (Aug. 30, 2006) at 31. Ultimately, the trial court decided to delay ruling on the merits of the motion until after receiving more information, including a report from Morgan's psychiatrist and an update from the GAL.

¶ 8 SCC psychiatrist Dr. Leslie Sziebert's subsequent report detailed Morgan's medication history over the years. Sziebert noted that Morgan presently was not taking any medication and had not taken antipsychotic medication for the past 17 months (since April 2005). She opined about the efficacy of involuntary medication in Morgan's case and indicated that Morgan did not meet the SCC's requirements for being involuntarily medicated because he did not have a grave disability or present a danger to himself or others. After reviewing Sziebert's report, the GAL recommended to the trial court, over Morgan's acknowledged objections, that it forcibly medicate Morgan during his civil commitment hearing. On December 6, 2006, the trial court entered a written order to involuntarily medicate Morgan.

¶ 9 Morgan's civil commitment trial did not begin until August 4, 2008.² At the trial, the State's expert, Dr. Brian Judd, explained his diagnosis of Morgan as presently suffering from (1) paraphilia NOS (nonconsent); (2) pedophilia, sexually attracted to females, non-exclusive type; (3) antisocial personality disorder; and (4) schizophrenia. Morgan's expert, Dr. Wollert, disagreed with several of Judd's diagnoses and testified that Morgan's brain had likely matured since his offenses, lowering his recidivism risk. The jury entered a verdict finding that Morgan met the definition of an SVP. Morgan timely appeals.

ANALYSIS

Right to Attend the 2006 Chambers Meeting

¶ 10 Morgan asserts that he had a right to attend the 2006 chambers meeting where the trial court considered issues related to forcibly medicating him. Specifically, he argues that former RCW 71.09.050(1) (1995) includes an implicit right to attend the meeting to assist his counsel and that failing to include him violated his due process rights. The State argues that Morgan's counsel's and GAL's presence at the meeting adequately protected his due process rights. We discern no error.

¶ 11 “A defendant has the right to be present at proceedings where his or her presence has a reasonably substantial relation ‘to the ful [l]ness of his opportunity to defend against the charge.’ ” In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 483, 965 P.2d 593 (1998) (internal quotation marks omitted) (quoting In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994)). But a defendant “ ‘does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters.’ ” Pirtle, 136 Wash.2d at 484, 965 P.2d 593 (quoting Lord, 123 Wash.2d...