In The Matter Of The Detention Of Calvin Ticeson
| Decision Date | 18 January 2011 |
| Docket Number | No. 63122-5-I,63122-5-I |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Detention of CALVIN TICESON, Appellant. |
Ellington, J. — Calvin Ticeson was committed as a sexually violent predator. In this appeal, he contends the court erred by failing to require jury unanimity as to whether he suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Ticeson also assigns error to the court's in-chambers conferences, arguing this violated his rights to an open, public trial. We hold the court did not err in failing to provide a unanimity instruction, Ticeson is not a criminal defendant and has no rights under article I, section 22 of the Washington Constitution, and the public right to an open proceeding under article I, section 10 was not violated by in-chambers conferences that dealt with purely legal matters. We affirm.
On February 13, 2009, a jury found Calvin Ticeson to be a sexually violent predator (SVP) under chapter 71.09 RCW (SVP statute), and the court entered anorder of commitment for his indefinite confinement.
The SVP statute required the State to prove beyond a reasonable doubt that (1) Ticeson has been convicted of a crime of sexual violence; (2) Ticeson suffers from a mental abnormality and/or personality disorder which causes serious difficulty in controlling his sexually violent behavior; and (3) Ticeson's mental abnormality and/or personality disorder makes him likely to engage in predatory acts of sexual violence if not confined to a secure facility.1
Ticeson's convictions for crimes of sexual violence are undisputed. As to the second and third statutory elements, the jury heard testimony from the State's expert, Dr. Brian Judd, and from Ticeson's expert, Dr. Theodore Donaldson.
Briefly summarized, Judd testified Ticeson suffers from a mental abnormality called paraphilia not otherwise specified, nonconsent (paraphilia NOS-NC), which predisposes Ticeson to committing violent sexual acts. Judd testified that, if released, Ticeson would be a menace to the health and safety of others.
Judd also diagnosed Ticeson with a personality disorder called personality disorder not otherwise specified, with antisocial traits (personality disorder NOS), which in his opinion causes Ticeson to have difficulty controlling his behavior. He noted that Ticeson continued committing assaults despite repetitive incarcerations, concurrent supervision, or within short periods of time after release from custody. Judd agreed that this disorder does not usually cause a person to engage in predatory acts of sexual violence.
Donaldson disagreed with Judd's diagnosis of paraphilia NOS-NC. He did not dispute Judd's diagnosis of personality disorder NOS, but did not agree that Ticeson currently suffers from the disorder, and noted that even if he did, it would not cause difficulty controlling sexually violent behavior.
The court instructed the jury it must determine whether Ticeson suffers from "a mental abnormality and/or personality disorder"2 that makes him likely to reoffend, and that "to return a verdict all jurors must agree."3
On the first day of proceedings, the court held an in-chambers conference during the lunch break to discuss the admissibility of certain deposition testimony. After the break, the court recapped on the record what had occurred in chambers.
At the start of proceedings on the second day of trial, the court explained it had held another in-chambers conference: 4 The court did not further specify what had occurred.
Ticeson contends the in-chambers conferences violated his right to a public trial under the Washington Constitution, article I, section 22 and his public right to open proceedings under the Washington Constitution, article I, section 10. Whether the rightto a public trial has been violated is a question of law reviewed de novo.5 "This standard applies to civil as well as criminal appeals."6
Article I, section 10 (Section 10) of the Washington Constitution provides, "Justice... shall be administered openly."7 The Sixth Amendment to the United States Constitution and article I, section 22 (Section 22) of the Washington Constitution also guarantee criminal defendants the right to a public trial. To protect both Section 10 and Section 22 rights, a trial court must address the five Bone-Club factors before restricting public access to judicial proceedings:
The court has an independent obligation to perform a Bone-Club analysis where appropriate.9
Ticeson contends the right of a criminal defendant to a public trial conferred by Section 22 should extend to respondents in civil SVP cases.
As Ticeson points out, SVP proceedings share some characteristics of a criminal trial, including the beyond a reasonable doubt standard and the requirement that the jury be unanimous.10 These guarantees are necessary to satisfy due process because of the serious restraint on liberty resulting from civil commitment as an SVP.11
An SVP case is, however, a civil proceeding, 12 and the consequences of an SVP finding are not equivalent to a criminal conviction. Punishment is not the purpose of confinement under the SVP statute.13 Washington courts have recognized this, and have repeatedly refused to confer upon SVP respondents the same rights as criminaldefendants.14 Ticeson's argument rests upon his view that the public right to open proceedings and the criminal's right to a public trial are "inextricably intertwined" and upon the fact that SVP proceedings "share other characteristics of a criminal trial."15 Both those observations are true, but neither separately nor together do they support extending Section 22 beyond its express intent. Further, as discussed below, Section 10 protects public trial rights in civil cases.
The SVP statute is resolutely civil. We decline to extend Section 22 to civil cases.
Section 10 reads, in full: "Justice in all cases shall be administered openly, and without unnecessary delay."16
The State contends Ticeson cannot assert rights under this section because a right belonging to others may be raised by a litigant only when the litigant can establish third party standing.17 But Ticeson is a member of the public, and like everyone else is protected by Section 10. We see no reason to apply the third party standing rule to rights granted to the public at large. We thus reject the approach taken in State v. Wise, 18 in which Division Two of this court held a criminal appellant could not raise Section 10 rights because he lacked third party standing.19
As Ticeson contends, Section 22 and Section 10 are closely related, and in several Section 22 cases, our Supreme Court has, often sua sponte, also discussed Section 10.20 It seems clear that although they have somewhat different purposes, the two sections confer essentially the same rights and share a common concern of fairness.21 Further, the two sections require the same analysis before proceedings are closed to the public.22
It is well settled that a criminal defendant may raise the Section 22 right to a public trial for the first time on appeal and will enjoy a presumption of prejudice wherethe right has been violated.23 Washington courts have not, however, discussed whether the Section 10 right, standing alone, may be raised for the first time in a civil appeal. We hold it may, under RAP 2.5.
RAP 2.5(a)(3) allows a party to raise a manifest constitutional error for the first time on appeal. Improper courtroom closure is a constitutional error. Thus, Ticeson may raise the issue for the first time in this civil appeal. As required by RAP 2.5, however, he must demonstrate that the constitutional error had identifiable and practical consequences in his trial.24 He has not done so. Rather, he relies on the presumption of prejudice enjoyed by criminal defendants. This does not satisfy the rule. Ticeson's failure to object below therefore constitutes waiver of review.
We reject Ticeson's argument that his silence did not waive his public trial rights for another reason, as well. In criminal cases, the court must ensure that any waiver of Section 22 rights is knowing, intelligent and voluntary—which means the court must be sure the defendant knew he possessed such a right and knowingly waived it.25 But if the same test applies to Section 10 rights, the court would be required to ensure, sua sponte, that all parties (and possibly, everyone in the courtroom), know about and waive any rights under Section 10. Otherwise, the losing party may raise the issue for the first time on appeal, and the only remedy is reversal. This is an unjust and costly proposition and the rule does not permit it. A party who perceives a possible violation of Section 10 must make its argument to the trial judge, thereby ensuring a record forreview.
Had Ticeson lodged an objection, however, our...
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