In the Matter of The Det. of Gale West

• Decision Date: 05 May 2011
• Docket Number: No. 82568–8.
• Citation: In the Matter of The Det. of Gale West, 171 Wash.2d 383, 256 P.3d 302 (Wash. 2011)
• Court: Washington Supreme Court
• Parties: In the Matter of the DETENTION OF Gale WEST, Petitioner.

171 Wash.2d 383

256 P.3d 302

In the Matter of the DETENTION OF Gale WEST, Petitioner.

No. 82568–8.

Supreme Court of Washington, En Banc.

Argued May 27, 2010.Decided May 5, 2011.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.David J.W. Hackett, King County Prosecutor's Office, Seattle, WA, for Respondent.FAIRHURST, J.

[171 Wash.2d 390] ¶ 1 A jury found Gale West to be a sexually violent predator (SVP), and the trial court entered a civil commitment order under chapter 71.09 RCW. The Court of Appeals affirmed. In re Det. of West, noted at 147 Wash.App. 1017, 2008 WL 4867147 (2008). West requests a new trial for two reasons. First, West claims he was prejudiced by the trial court's evidentiary rulings. Second, he believes he was entitled to discovery of the SVP evaluations done for other persons by the State's testifying expert witness, Dr. Leslie Rawlings. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 After West's 1974 conviction for two counts of sodomy, he was committed to Western State Hospital for treatment as a sex offender. Over two years later, he was discharged and declared not amenable to treatment. While West was on work release in 1981, he kidnapped and attempted to rape a girl and was later convicted and sentenced to 20 years of imprisonment. During his incarceration, state officials repeatedly recommended that he get treatment for sexual deviancy. He refused. He claimed the programs were ineffective, created a risk of additional punishment, and resulted in negative evaluations based on only brief interviews. Before West's scheduled release from prison, the State filed an SVP petition on June 4, 2002. Pending his civil commitment trial, West was committed to the Special Commitment Center (SCC), where he voluntarily participated in the SCC's treatment program for 14 months. He quit treatment in 2003.

A. Evidentiary issues

¶ 3 Before trial, West moved to strike Dr. Henry Richards, the superintendent of the SCC, from the State's witness list. The trial court denied West's motion, ruling the State could “elicit testimony of a brief overview of the program in general and West's participation or lack of participation in the program.” Clerk's Papers (CP) at 640. The court permitted West to “testify why he chose to terminate treatment, and give any information as to his understanding as to deficiencies in the treatment to support his reasons for terminating.” Id. However, the court concluded, “This does not open the door to collateral evidence on the strengths and weakness[es] of the program, including federal litigation.” Id. at 640–41.

¶ 4 Dr. Richards testified:

The Special Commitment Center's treatment program is, I would say, it really has three components. One is just the environment of the Special Commitment Center itself. So we have different environments that comprise part of the treatment.

The initial environment that a resident might enter would be our total confinement center on McNeil[ ] Island, and that facility, as implied, is really designed to contain an individual and provide all the supports and security that make treatment possible.

The other environments we have are our transition facilities, one on McNeil [ ] Island and one here in Seattle. Those facilities are different, have somewhat of a different treatment, and are designed to have more access into the community and transition into the community. So that first component of the treatment is the holding environment itself and the staff, rules comprised in that facility.

Verbatim Report of Proceedings (VRP) (Jan. 31, 2007) at 158–59. West objected, and the trial court told the State to move on. Dr. Richards' testimony continued:

[State]: At the facility on McNeil[ ] Island, are there phases of treatment in the treatment program?

[Dr. Richards]: Yes, there are. The cognitive behavioral treatment itself, the programs are directed by professional staff, consist of six phases of treatment, beginning with introduction, accepting and learning about one's disorders, all the way through to practicing, showing that you can—you've learned and mastered certain skills that will reduce your recidivism risk and that you have chosen and demonstrated that you'll likely continue to choose to exercise those skills in the future. So those are the phases one through six, with the sixth phase being a community transition phase.

Id. at 159. Dr. Richards further testified that West was held in the SCC and that he had participated in the voluntary treatment program for 14 months before stopping in 2003. West moved for a mistrial and, in the alternative, requested the court to instruct the jury that it was not to consider the community transition phases and must focus on the elements of an SVP finding. The court denied West's motion and did not instruct the jury. The jury did not ask Dr. Richards any follow-up questions.¹

¶ 5 In closing arguments, the State did not discuss the SCC, the treatment generally available there, or its transition facilities. The prosecutor focused solely on the conclusions that the jury should draw from West's previous crimes, his treatment history or lack thereof, and Dr. Leslie Rawlings' assessment of West.

B. Pretrial discovery issue

¶ 6 At a pretrial deposition, Dr. Rawlings, the State's expert witness, told West's counsel that he had evaluated 37 other persons for SVP status and had concluded that 22 of them qualified as an SVP and 15 did not. West subsequently served Dr. Rawlings with a notice to continue the deposition. The notice included a subpoena duces tecum requesting Dr. Rawlings to produce copies of the SVP evaluations and risk assessments (hereinafter, collectively, evaluations) that Dr. Rawlings had done for the 37 other persons. These evaluations break down into three categories: (1) evaluations of persons for whom the King County prosecutor's office filed an SVP petition (the practice of King County is to attach evaluations to SVP petitions, and they thus become public records) and Dr. Rawlings testified at trial; (2) evaluations of persons for whom the attorney general's office (AGO) filed an SVP petition (the practice of the AGO is to attach evaluations under seal to SVP petitions) and Dr. Rawlings testified at trial; and (3) evaluations of persons for whom the State did not file an SVP petition and thus Dr. Rawlings did not testify. Dr. Rawlings refused to comply.

¶ 7 West filed a motion to compel, citing four reasons why he needed the documents:

[F]irst, it is important for the respondent to examine other reports for fact similarities and outcome consistency; second, it is important to know the circumstances under which Dr. Rawlings was unable to reach a conclusion and compare the evidence cited in those cases to the evidence he cites supporting his opinion in Mr. West's case; [third], we think it necessary to determine whether all those individuals whom Dr. Rawlings found did not meet the criteria submitted to interviews; and finally, to verify the claims Dr. Rawlings has made about his reports.

CP at 1011. The trial court ultimately quashed the subpoena in part, concluding that “reports generated by Dr. Rawlings for cases in which he was retained as a consulting expert by the state, and for which legal proceedings were not filed, were prepared in anticipation of litigation.” CP at 519. The court concluded these reports were not discoverable because West had not “demonstrated a substantial need of the materials in the preparation of his case nor that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Id.

¶ 8 In an order clarifying the ruling and denying West's motion for reconsideration, the court stated that the evaluations filed under seal by the AGO were included in the protective order. The court acknowledged work product protections might not apply to the evaluations, but said the “privacy rights of those evaluated” justified the protection. CP at 525. West was free to discover only the evaluations by Dr. Rawlings that were attached to King County's SVP petitions.

¶ 9 At trial, Dr. Rawlings testified for two-and-one-half days, and the prosecutor began the direct examination of Dr. Rawlings by bolstering his credentials and objectivity, as follows:

Q: And when you're hired by the Joint Forensic Unit to do a sexually violent predator evaluation, is it expected that you're going to have any particular outcome when you do that evaluation, or not?

A: No, not at all.

Q. Okay. So what are the expectations when you conduct an evaluation for the Joint Forensic Unit?

A: The expectation is that you do a neutral, objective evaluation.

Q: Now, in your—I think you said you have done 37 or 38 sexually violent predator evaluations. Do you have a sense or a figure of how many times you have found somebody met criteria as a sexually violent predator, and how many times you have found that they do not meet criteria?

[West objects. After a sidebar conference, the court overrules.]

Q: Dr. Rawlings, if you could tell the jury of the 37 or 38 sexually violent predator evaluations, how often have you found somebody has met criteria versus how many times they did not meet criteria?

A: Yes. Approximately 60 percent of the time it's been my conclusion that they have met the criteria, 40 percent of the time not.

VRP (Feb. 5, 2007) at 23–24.

¶ 10 The prosecutor relied on this testimony during closing argument after observing that Dr. Rawlings was “the only credentialed expert that you heard from.” VRP (Feb. 13, 2007) at 9. (West had initially planned to call his own expert witness, Dr. Richard Wollert, who believed that West did not meet the criteria. But West did not actually call Dr. Wollert or any other expert.) In arguing why the jury should credit Dr. Rawlings' testimony, the prosecutor relied on the doctor's testimony about his 60 percent rate of finding an evaluated person as meeting the criteria for being...