State v. Mosteller
| Decision Date | 28 June 2011 |
| Docket Number | No. 39954–7–II.,39954–7–II. |
| Citation | 162 Wash.App. 418,254 P.3d 201 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington,v.David Howard MOSTELLER, Appellant. |
OPINION TEXT STARTS HERE
Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.
PART PUBLISHED OPINION
[162 Wash.App. 421] ¶ 1 David Howard Mosteller appeals his convictions for third degree assault and first degree criminal trespass. He argues that he did not receive a fair trial because the trial court ordered the administration of antipsychotic medications to restore his competency to stand trial without first balancing the State's interest in his competency to stand trial with his interest in personal autonomy. We hold that Mosteller received a fair trial and that he waived his right to challenge the trial court's order on this appeal because he failed to object at the time of the order and did not otherwise move to terminate the order at or before trial.
¶ 2 Mosteller has a long history of mental illness and has been diagnosed with paranoid schizophrenia. In November 2008, he was harassing customers in Starbucks by going to their tables and saying obscenities. When asked to leave, Mosteller continued harassing customers at the tables outside. He then went back inside and threw his coffee into one of Starbucks' display buckets.
¶ 3 As Mosteller walked out the door to leave Starbucks, a police officer met him. When the officer put his hand up to motion Mosteller to wait for a minute, Mosteller began swinging at him. Mosteller hit the officer in the jaw. He was arrested and charged with third degree assault and first degree criminal trespass.
¶ 4 In January 2009, Mosteller was sent to Western State Hospital (WSH) for a competency evaluation. WSH found that Mosteller was incompetent to stand trial, that medication could render him competent, and that there was no less restrictive alternative.
¶ 5 At a pretrial hearing on February 12, the State moved to commit Mosteller to WSH for competency restoration. With Mosteller present, the following exchange took place between his counsel and the State:
[State]: Western State did send back a report dated February 9, 2009 in which it was the opinion of the doctor that did the review that Mr. Mosteller is not competent to stand trial. I've discussed this with counsel. I prepared an order of commitment to Western State for 90 days to restore competency. Included in there is a provision as suggested by the report that any medications be administered without consent if necessary.
....
[Defense Counsel]: I have got the report from Western State Hospital and have reviewed it. I understand that under the statute the prosecutor has the right to request he be sent back up there. For the record, Mr. Mosteller has been up there numerous times, has not worked that well in the past, but I think the court has enough discretion [to] go ahead and recommit [him].
Report of Proceedings (RP) (Feb. 12, 2009) at 3. Mosteller's counsel did not object, and the trial court signed the order. The order stated:
Western State Hospital shall administer such psychotrophic drugs as is deemed medically appropriate by Western State Hospital staff to assist the defendant in recovering his competency. Said medication shall be administered without the defendant's consent, if necessary.
¶ 6 During this stay at WSH, Mosteller was “medication compliant and appeared to quickly benefit from treatment.” Suppl. CP at 107. By April 2, WSH reported that it had restored his competency. On April 16, the trial court found Mosteller competent to stand trial. He agreed to waive his speedy trial right, and trial was set for June 1.
¶ 7 While awaiting trial, Mosteller stopped taking his medications. On July 15, the trial court again found him incompetent and ordered him to undergo psychiatric treatment at WSH to restore competency. The second order committing Mosteller was identical to the first order.
¶ 8 Upon readmission to WSH on July 29, Mosteller told his doctors that he adamantly did not want to take any antipsychotic medications. His psychiatrist prescribed Risperdal. Despite his initial refusals to take medications, Mosteller began participating in treatment, and his psychotic symptoms improved. During a mental status examination on September 23, Mosteller had organized and logical thoughts. He acknowledged that the medication reduces his stress and anger, and he planned to continue taking the medication because he did not want to return to WSH. On September 24, WSH believed competency was restored.
[162 Wash.App. 424] ¶ 9 On October 1, the following pre-trial colloquy occurred:
[State]: Case comes on for the parties requesting the court find Mr. Mosteller competent....
...
RP (Oct. 1, 2009) at 6. The trial court's written order declared Mosteller competent to stand trial.
¶ 10 Mosteller waived his right to trial by jury and trial began on October 29. The trial court found him guilty of third degree assault and first degree criminal trespass. The court sentenced Mosteller to 33 months of confinement and 27 months of community custody. As a condition of community custody, the court ordered Mosteller to undergo mental health treatment, complete all recommended treatment, and take prescribed medication.
¶ 11 Mosteller argues that the trial court violated his constitutional right to due process when it ordered that antipsychotic medications be administered, involuntarily if necessary, to restore his competency, without first considering the requirements set out in Sell v. United States, 539 U.S. 166, 180–81, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). This argument fails.
¶ 12 Forcibly medicating an individual against his will “represents a substantial interference with that person's liberty.” Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). In rare circumstances, the State can forcibly administer unwanted medications solely for trial competency purposes. Sell, 539 U.S. at 180, 123 S.Ct. 2174. To order the administration of medications in such situations, however, the trial court must consider certain factors, which are known as the Sell factors.1 Sell, 539 U.S. at 180–81, 123 S.Ct. 2174.
¶ 13 The State argues that Mosteller has not preserved this issue for appeal because he failed to raise it at the trial court. Mosteller counters that, despite his failure to raise the issue, the error is reviewable for the first time as a “manifest error affecting a constitutional right.” RAP 2.5(a)(3).
¶ 14 Generally, an issue cannot be raised for the first time on appeal unless it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3); State v. McFarland, 127 Wash.2d 322, 332–33, 899 P.2d 1251 (1995). But “ ‘the constitutional error exception is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify a constitutional issue not litigated below.’ ” State v. Kirkpatrick, 160 Wash.2d 873, 879, 161 P.3d 990 (2007) (quoting State v. Scott, 110 Wash.2d 682, 687, 757 P.2d 492 (1988)). “We adopt a strict approach because trial counsel's failure to object to the error robs the court of the opportunity to correct the error and avoid a retrial.” State v. Powell, 166 Wash.2d 73, 82, 206 P.3d 321 (2009).
¶ 15 We employ a two-part analysis to determine whether an error is a “manifest error affecting a constitutional right” under RAP 2.5(a)(3). Kirkpatrick, 160 Wash.2d at 879, 161 P.3d 990. First, we determine whether the alleged error is truly constitutional. Kirkpatrick, 160 Wash.2d at 880, 161 P.3d 990. Second, we determine whether the alleged error is “manifest.” Kirkpatrick, 160 Wash.2d at 880, 161 P.3d 990. Mosteller alleges that the trial court violated his right to a fair trial and his liberty interest in being free from forced medication. These rights are constitutional in nature. Harper, 494 U.S. at 229, 110 S.Ct. 1028; Riggins v. Nevada, 504 U.S. 127, 137–38, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992).
¶ 16 The more difficult question is whether the alleged errors are “manifest.” “ ‘Manifest in RAP 2.5(a)(3) requires a showing of actual prejudice.’ ” State v. O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009) (quoting State v. Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007)). “To demonstrate actual prejudice, there must be a ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequence in the trial of the case.’ ” O'Hara, 167 Wash.2d at 99, 217 P.3d 756 (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125). “In determining whether the error was identifiable, the trial record must be sufficient to determine the merits of the claim.” O'Hara, 167 Wash.2d at 99, 217 P.3d 756. “ ‘If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.’ ” O'Hara, 167 Wash.2d at 99, 217 P.3d 756 (quoting McFarland, 127 Wash.2d at 333, 899 P.2d 1251). We must decide whether Mosteller can show practical and identifiable adverse consequences at trial as a result of the trial court's order for involuntary administration of medication to render him competent.
¶ 17 Mosteller argues that, regardless of his failure to object, the record shows that the trial court's order had practical and identifiable consequences for his trial because the side effects of taking antipsychotic medications caused an unknown degree of harm, both to him physically and to his right to a fair trial. To support this contention, he relies on Riggins, 504 U.S. 127, 112 S.Ct. 1810.
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