State v. Kolocotronis

• Decision Date: 09 May 1983
• Docket Number: No. 10887-5-I,10887-5-I
• Parties: STATE of Washington, Respondent, v. Cyril KOLOCOTRONIS, Appellant.
• Court: Washington Court of Appeals

Page 613

34 Wn.App. 613

663 P.2d 1360

STATE of Washington, Respondent, v. Cyril KOLOCOTRONIS, Appellant.

No. 10887-5-I.

Court of Appeals of Washington Division 1.

May 9, 1983.

Rehearing Denied June 9, 1983.

Norman R. Leopold, Bellevue, for appellant.

Norman K. Maleng, King County Pros. Atty., Gerald Smith, Deputy Pros. Atty., Seattle, for respondent. CALLOW, Judge.

Cyril Kolocotronis appeals a judgment of the superior court which denied his motion for a jury trial following a remand from this court and which denied him a jury trial pursuant to his petition for final discharge under RCW 10.77.200(3), filed March 18, 1981, based on his failure to show a change of circumstances. The sole issue is whether under RCW 10.77.200(3) a trial court may require an individual to show that his condition has changed since his previous petition for final discharge in order to qualify for a jury trial on the merits.

On June 25, 1976, Cyril Kolocotronis was acquitted by reason of insanity of the crime of indecent exposure, then a felony, and committed to Western State Hospital. In 1978, Kolocotronis petitioned for final discharge pursuant to RCW 10.77.200(3). He proceeded pro se assisted by an attorney acting as co-counsel. On May 3, 1979, a jury rendered a verdict finding Kolocotronis to be a substantial danger to other persons or that he presented a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control. His petition for final discharge was denied. See RCW 10.77.200(3).

Kolocotronis appealed the denial of his petition. This court held that the "highly probable" burden of proof was not applicable but that a petitioner need only prove by a preponderance of evidence that he or she is entitled to final discharge under RCW 10.77.200. We remanded the cause for further proceedings. State v. Kolocotronis, 27 Wash.App. 883, 620 P.2d 546 (1980).

Prior to the filing of the decision in State v. Kolocotronis, supra, Kolocotronis re-petitioned the trial court for final discharge pursuant to RCW 10.77.200(3), proceeding pro se with an attorney acting as his co-counsel. On July 9, 1980, a jury rendered the same verdict which had been rendered in his May 3, 1979 jury trial and his petition for final discharge was again denied. The jury was instructed properly concerning the burden of proof and Kolocotronis did not appeal the denial of his petition.

The instant appeal has arisen as a result of the remand by the court in State v. Kolocotronis, supra, of the original final discharge proceedings. The record is incomplete, but it appears that on March 18, 1981, following the decision in State v. Kolocotronis, Kolocotronis filed a third petition for final discharge pursuant to RCW 10.77.200(3). He then moved for and was denied a new jury trial based upon the remand in State v. Kolocotronis, supra. The court further ordered that a hearing be conducted on Kolocotronis' third final discharge petition, filed March 18, 1981, to determine whether Kolocotronis' condition had changed or improved to warrant the granting of a new jury trial on the issue of his safety to be at large. This hearing was set for June 24, 1981.

On that date, Kolocotronis appeared pro se with an attorney as co-counsel. Prior to the hearing, Kolocotronis again moved, on the record, for a new trial. This was denied. Kolocotronis also raised a continuing objection to the requirement of the hearing contending that the trial court had no statutory authority to interpose a threshold requirement showing a change of circumstances. The hearing was then conducted in which only the petitioner and the court appointed psychiatrist testified. At the conclusion of the hearing, the trial court denied Kolocotronis' request for a jury trial and dismissed his petition finding that he had failed to present new evidence supporting the factual showing necessary for final discharge.

Kolocotronis has appealed the order of the trial court which refused to set a jury trial following the remand of the appellate court and which denied him a jury trial pursuant to his petition for final discharge, filed March 18, 1981, based on his failure to show a change of circumstances. However, it appears that on April 30, 1982, Kolocotronis was conditionally released from hospitalization to the authorities of the Fulton State Hospital in Missouri, where he currently is residing. While this release may make some of the issues Kolocotronis raises on appeal moot, "where the case involves a question of substantial public interest and would probably reoccur, we have nonetheless retained the case." In re Wilson, 94 Wash.2d 885, 887, 621 P.2d 151 (1980); see Hartman v. State Game Comm'n, 85 Wash.2d 176, 532 P.2d 614 (1975). An issue is before us which is of substantial public interest and is likely to reoccur.

The issue presented is whether under RCW 10.77.200(3) a trial court may require an individual who petitions the court for final discharge to show that his condition has changed since his previous petition in order to qualify for a jury trial on the merits.

On June 24, 1981, the trial court conducted a hearing on Kolocotronis' motion for a jury trial pursuant to his petition for final discharge filed March 18, 1981. The court considered the following evidence: (a) the record and files in this criminal proceeding; (b) the testimony of Dr. Harlan McNutt (court appointed expert for Kolocotronis); (c) the demeanor and testimony of Mr. Kolocotronis, and (d) the reports of Western State Hospital on Mr. Kolocotronis sent to the court pursuant to RCW 10.77.140 dated December 9, 1980 and June 15, 1981. The trial court denied Kolocotronis' petition for a final discharge trial with a jury, based on the following findings of fact:

The court having received the testimony and having heard the argument of the parties makes the following findings of fact:

2.1 Previous Final Discharge Jury Trials. The court has previously granted Kolocotronis two final discharge jury trials:

a) On May 3, 1979, a jury returned a verdict finding Kolocotronis to be a danger to other persons or presenting a likelihood of committing felonious acts (Kolocotronis appealled [sic ] the decision and the case was reversed and remanded for failure to instruct on the correct burden of proof. State v. Kolocotronis, 27 App. 883, 620 P.2d 546 (1980)).

b) On July 9, 1980 a jury returned a verdict finding Kolocotronis to be a danger to other persons or presenting a likelihood of committing felonious acts. (The jury was instructed properly as to the preponderance of the evidence burden of proof and the defendant did not appeal the order of the court.)

2.2 No Authorization or Approval by the Secretary. The Secretary of the Department of Social and Health Services has not approved an application of Kolocotronis for final discharge nor has the Secretary authorized Kolocotronis to petition the court for final discharge.

2.3 No Reports from Secretary Revealing Change. The court has not received any reports from the secretary revealing any significant improvement in the defendant's condition which would justify a change of status.

2.4 Report of Defense Expert. The testimony of the expert appointed at the request of the defendant to support his petition for final discharge recommends hospitalization and in no way supports final discharge.

2.5 No New Allegations from Defendant. The allegations of the defendant supporting final discharge are not significantly different from the allegations previously made by the defendant and do not allege any material change of the defendant's own circumstances of or in the community justifying a change in status; and,

2.6 Sexual Assault Since Last Trial. The defendant sexually assaulted a woman at Western State Hospital since his last jury trial.

2.7 Prognosis for Rapid Significant Improvement Doubtful. The defendant's condition is not likely to show a rapid significant improvement.

"No error has been assigned to the findings of fact so they become the established facts of this case." Washington State Bar Ass'n v. Great W. Union Fed. Sav. & Loan Ass'n, 91 Wash.2d 48, 53, 586 P.2d 870 (1978); see Lakeside Pump & Equip., Inc. v. Austin Constr. Co., 89 Wash.2d 839, 842, 576 P.2d 392 (1978). Kolocotronis, however, contends that a jury trial must be granted in every petition brought under RCW 10.77.200(3) if the petitioner requests it. He contends that a petitioner may not be required to meet a threshold requirement of proving a change of circumstances prior to obtaining a jury trial under RCW 10.77.200(3).

RCW 10.77.200 states:

Final discharge--Procedure. (1) Upon application by the criminally insane or conditionally released person, the secretary shall determine whether or not reasonable grounds exist for final discharge. If the secretary approves the final discharge he then shall authorize said person to petition the court.

(2) The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for final discharge, shall within forty-five days order a hearing. Continuance of the hearing date shall only be allowed for good cause shown. The prosecuting attorney shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of his choice. If the petitioner is indigent, and he so requests, the court shall appoint a qualified expert or professional person to examine him. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner may be finally discharged without substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.

(3) Nothing...