Opinion
No. 46028-5-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Island County. Docket No: 97-2-00476-9. Judgment or order under review. Date filed: 01/12/2000. Judge signing: Hon. Alan R. Hancock.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Todd Richard Bowers, Attorney General-CJD, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Curtis Brogi appeals from a determination that he is a sexually violent predator. Over his objection, the trial court ordered him to undergo a mental examination as provided for by Civil Rule 35. After the commitment verdict in Brogi's trial, the Supreme Court held that a CR 35 examination is not available to the State as a tool of discovery in sexually violent predator proceedings. Under that holding, the trial court's order permitting the examination was error. But because there is no reasonable probability that the jury would have reached a different verdict if the CR 35 examination had not been conducted, we find the error harmless and affirm.
FACTS
The State initiated an action to have Brogi civilly committed as a sexually violent predator by filing a petition and certification for determination of probable cause under RCW ch. 71.09. The State supported its petition, filed in August 1997, with an assessment by Dr. Barry Maletzky. Because Brogi refused to participate in a clinical interview, Dr. Maletzky based his assessment on records relating to Brogi, his criminal acts, and his mental and social history.
The trial court held an adversarial probable cause hearing in the fall of 1997. Brogi agreed to stipulate to his identity for purposes of the probable cause hearing. The court found probable cause to believe that Brogi was a sexually violent predator and ordered him transported to the Special Commitment Center in Monroe for an evaluation by the professional staff there to determine whether he met the criteria for civil commitment found in RCW 71.09.040(4). Dr. Janet Schaeffer, a licensed psychologist, and Dr. Jay Eskenazi, a staff psychologist, conducted the evaluation. Both concluded that Brogi met the statutory definition of a sexually violent predator.
In March 1998, the State successfully moved under CR 35 for an order requiring Brogi to participate in a mental examination by Dr. Maletzky, who was expected to be the State's expert witness at trial. Before the examination took place, Brogi discovered that Dr. Maletzky had perjured himself in another proceeding by misrepresenting his credentials. Based on this discovery, Brogi moved to have the court reconsider its probable cause determination and requested a new probable cause hearing. In response, and with the leave of the court, the State filed an amended certification for probable cause that excised the opinions of Dr. Maletzky and substituted the opinions of Drs. Schaeffer and Eskenazi.
The trial court held a new probable cause hearing in August 1998. Based on the opinions of Drs. Schaeffer and Eskenazi presented at the new hearing, the court concluded that probable cause still existed to believe that Brogi was a sexually violent predator.
Over Brogi's objection, the trial court also entered an order under CR 35 requiring him to participate in a CR 35 mental examination with Dr. Richard L. Packard. The State was now planning to call Dr. Packard as an expert witness at trial instead of Dr. Maletzky.
Brogi then moved to dismiss the probable cause petition or in the alternative, reopen the probable cause hearing. He argued that because the evaluation by Drs. Schaefer and Eskanazi was obtained after the court made a finding of probable cause, it could not be used to support the State's petition and should have been suppressed. The trial court denied the motion.
The jury trial began on January 10, 2000, with Brogi present in the courtroom. Three women testified for the State. Two were victims of Brogi's sexual crimes that resulted in convictions. The third witness was a former girlfriend who testified that Brogi forced her to submit to painful and humiliating sexual acts as punishment throughout their relationship. None of the witnesses who testified at trial about Brogi's treatment of them identified the person in the courtroom as the perpetrator of the acts. Nor did Dr. Packard identify Brogi for the jury. At the close of evidence, Brogi moved to dismiss on the basis that the State had failed to prove his identity beyond a reasonable doubt. The prosecution objected. The court took judicial notice that the person in the courtroom was the Curtis Brogi discussed during the trial, and denied Brogi's motion to dismiss.
The jury found Brogi to be a sexually violent predator. The court entered an order committing Brogi to the Special Commitment Center.
Brogi appealed to this court raising three issues: (1) whether the court erred by failing to require the jury to specifically find that he lacked volitional control; (2) whether the court erred when it allowed the State to amend the probable cause petition and substitute the expert opinions of Drs. Schaeffer and Eskanazi; and (3) whether identity is an essential element that must be proved beyond a reasonable doubt in a sexually violent predator proceeding.
After the parties submitted their briefs, this court set a motion on the merits. A commissioner affirmed the trial court in all respects in December 2001.
A short time later, the Supreme Court issued a decision holding that there must be proof that the respondent in a sexually violent predator proceeding lacks volitional control. Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). Brogi moved to modify the commissioner's ruling in light of Crane. We allowed him to submit supplemental briefing on the Crane issue. Because the State Supreme Court had accepted review of six cases raising the same issue of volitional control, we stayed Brogi's appeal awaiting the outcome of that review
While that case was pending in the State Supreme Court, we allowed Brogi to file a supplemental assignment of error based upon a recent Washington Supreme Court decision which holds that mental examinations under CR 35 are not to be ordered in sexually violent predator proceedings. Detention of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002).
In 2003, the Supreme Court decided the Crane issue adversely to Brogi's position. Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). The stay is now lifted and we proceed to decide Brogi's appeal.
Thorell controls the volitional control issue Brogi raised in his first supplemental brief. The instruction considered by the jury in Brogi's commitment proceeding tracks the language of the standard to commit instruction approved in Thorell as constitutionally sufficient. Brogi's assertion that Thorell is not controlling because of the `significant errors in its reasoning' is an argument to be considered by the Supreme Court, not this court.
Appellant's Supplemental Brief at 5 regarding Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).
Detention of Williams controls the CR 35 issue Brogi raised in his second supplemental brief. Because RCW ch. 71.09 expressly provides for postcommitment evaluations but is silent regarding mental examinations during pretrial discovery, the Legislature did not intend to have pretrial evaluations in sexually violent predator proceedings. Thus, CR 35 and the sexually violent predator statute are inconsistent. The statute controls over the inconsistent rule, and therefore the State may not seek a CR 35 examination of one whom the State seeks to commit as a sexually violent predator. Detention of Williams, 147 Wn.2d at 491.
The State claims that the trial court did not err because when the trial court entered the order, CR 35 evaluations were legally permissible. The State relies on this court's decision in Detention of Smith, 117 Wn. App. 611, 72 P.3d 186 (2003). In Smith, we held it was not error for the trial court to order a CR 35 examination because at the time, it was permissible under the Court of Appeals decision in Williams to do so. Smith, 117 Wn. App. at 617-18.
Division II recently declined to follow Smith and relied instead on the principle that when the Supreme Court interprets a statute for the first time, such interpretation is effective from the date of the statute's enactment, a principle that applies with equal force to court rules. Detention of Meints, 123 Wn. App. 99, 105, 96 P.3d 1004 (2004), citing Overton v. Econ. Assistance Auth., 96 Wn.2d 552, 558, 637 P.2d 652 (1981); City of Seattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003). It does not appear that this principle was argued to the Smith court. Because it is a new argument that we did not consider in Smith, the precedent of Smith is not especially compelling. Finding the reasoning in Meints persuasive, we follow it instead of Smith.
The State argues that Brogi, in order to preserve his claim of error, needed to object at trial each time Dr. Packard's testimony touched on information he obtained in the erroneously ordered CR 35 examination. We reject this argument. Brogi's objection to undergoing the CR 35 examination sufficiently preserved the error of which he now complains. Under Williams, the trial court did err when it entered an order for Brogi to participate in a mental examination with Dr. Packard under the civil discovery rules.
Error without prejudice is not grounds for reversal. Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). `Error will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial.' Thomas v. French, 99 Wn.2d at 104.
In Meints, the trial court disallowed the respondent's expert witness from testifying at the commitment proceeding as a sanction for the respondent's refusal to participate in the CR 35 examination. In that situation, a new trial was necessary to cure the error. The present case presents a different situation. Brogi complied, albeit reluctantly, with the court's order to undergo a CR 35 examination. The trial court did not preclude him from presenting an expert witness, although he did not do so.
Dr. Packard, who performed the CR 35 examination, testified for the State. He gave his professional opinion that Brogi met the statutory criteria for civil commitment as a sexually violent predator. Dr. Packard testified that he interviewed Brogi during the two-day examination, `asking him questions about his family and his background and education history and certainly about his sexual history and these crimes.' He testified that he also administered psychological tests during this examination. The question now is whether Dr. Packard used the information from the erroneously ordered interview in a way that affected the outcome of the trial.
Verbatim Report of Proceedings, 1/10/00 at 127.
The State contends the error did not affect the outcome of the trial because the examination did not change Dr. Packard's opinion and diagnosis. Dr. Packard conducted a psychological evaluation of Brogi based solely on the forensic records in 1998. After the CR 35 examination, Dr. Packard completed a second evaluation `intended to supersede the earlier report'. Only the second evaluation is part of the record before this court. Because we cannot compare the two evaluations, we cannot assess whether, as the State claims, Dr. Packard's opinions were the same before and after the examination.
Clerk's Papers at 74.
The State contends the error in ordering the CR 35 examination did not affect the outcome of the trial for the further reason that Dr. Packard made only limited references to the information he learned during the examination during his testimony, and such information was typically consistent with other sources. Brogi contends the information from the CR 35 examination was far more significant. He says the clinical interview and tests `were used to diagnose Mr. Brogi's mental abnormalities, personal disorder, and likelihood of future dangerousness.' But Brogi provides very few specific references to the record to support this argument, and does not acknowledge the numerous other sources of information Dr. Packard relied on in reaching the opinions about which he testified. It is true that Dr. Packard said his opinion was based on his `interviews with Mr. Brogi', as well as on his education and experience and his review of all of the documents. But Dr. Packard's testimony referred almost entirely to facts provided in the extensive documentary evidence and repeated by Brogi's victims on the witnesses stand.
Appellant's Supplemental Brief Addressing The Prejudice Caused by the Improper CR 35 Examination at 9.
Verbatim Report of Proceedings 1/11/00 at 13.
Dr. Packard testified that he considered a stack of documents approximately 10 inches high. He explained the sources of the documentary evidence, and the significance of each. These sources included Brogi's official criminal history records, police reports, victim statements and interviews, presentence investigations, school records, department of corrections health records, prior psychological evaluations, including the evaluation performed by Drs. Schaeffer and Eskenazi at the Special Commitment Center, and deposition testimony of Brogi, Brogi's parents, Brogi's former spouses and girlfriends, as well as depositions from each of his victims.
Dr. Packard told the jury that to find an individual to be a sexually violent predator, that person must be shown to suffer, beyond a reasonable doubt, from a `mental abnormality or personality disorder'. See RCW 71.09.020(16). Dr. Packard testified that Brogi suffered from two specific conditions that met the statutory definition of `mental abnormality' — paraphilia, not otherwise specified (nonconsent) and sexual sadism. See RCW 71.09.020(8).
Dr. Packard explained the clinical definitions of Brogi's diagnosed mental abnormalities and testified as to the specific factual basis supporting each diagnosis. He first explained that the clinical definition of paraphilia (nonconsent) is a condition where a person experiences `sexual arousal towards people who are not consenting to engage in sexual behavior with them and that creates for them some sort of impairment or social distress such that it's affected their life in some kind of negative way.' He said Brogi's `two convictions for offenses that involve sexual acts with people who did not consent to those sexual acts' were evidence that Brogi suffers from the abnormality and that it had affected his life in a negative way.
Verbatim Report of Proceedings, 1/11/00 at 14.
Verbatim Report of Proceedings, 1/11/00 at 17.
He next gave the clinical definition of sexual sadism, and explained that a person with this diagnosis experiences sexual arousal at the idea of causing another person physical or psychological pain, or both. `The part that is sexually arousing is the pain and humiliation inflicted on the other person. That in and of itself is sexually arousing for the person.' He told the jury the specific factual basis for his opinion that Brogi suffered from sadism:
Verbatim Report of Proceedings 1/11/00 at 25.
As we heard yesterday from the three different witnesses and has also been documented in the various reports from the two convictions, with [TC], there was forcing [TC] at knife point, the demonstration of the sharpness of the knife, forcing her to pose for photographs telling her to smile while this was going on, sexually assaulting her while running the knife down her body, threatening to kill her or blackmail her with the photographs if she told, threatening to use the knife to cut her anus for anal intercourse. These are the sorts of behaviors that appear to provide a lot of stimulation, heightening of Mr. Brogi's arousal, turning him on even more so.
Verbatim Report of Proceedings 1/11/00 at 26.
The record does not indicate that the information Dr. Packard obtained in the CR 35 examination was used in any significant way at trial to establish that Brogi suffered from mental abnormalities.
Dr. Packard also opined that Brogi suffered from an antisocial personality disorder. He testified that individuals with antisocial personality disorders do not conform to the usual social norms, use deceit and have a demonstrated disregard for the safety of themselves or others. Other cardinal characteristics of this disorder are irresponsibility and lack of remorse when caught doing something that is illegal or harmful.
The State concedes that Dr. Packard did support his opinion that Brogi had an antisocial personality disorder in part with information obtained in the CR 35 examination. Dr. Packard mentioned the CR 35 examination when discussing why he concluded that Brogi lacked remorse:
Mr. Brogi, in both the depositions in which he was sworn to tell the truth under oath as well as in his interviews with me, has steadfastly denied ever committing any kind of sexual assaults against anyone. Has stated straightforwardly I never did any of those things.
Verbatim Report of Proceedings 1/11/00 at 34 (emphasis added).
He cited Brogi's acknowledgment that `he got in lots of fights from a very early age' as a basis for establishing aggressiveness, one of the criteria for an antisocial personality disorder. And with respect to Brogi's disregard for the safely of others, another criterion for the disorder, Dr. Packard referred to Brogi's acknowledgement during the interview that he used alcohol even while in confinement:
Verbatim Report of Proceedings 1/11/00 at 35.
Not only can the sexual assaults for which he's been convicted certainly be very dangerous and disregarding for the safety of others, there are also the DWI offenses which show a pretty callous disregard for what you can do to other people. Mr. Brogi has also acknowledged to me that he's used alcohol while within the Special Commitment Center.
Verbatim Report of Proceedings 1/11/00 at 35.
The State nevertheless claims the primary basis for the diagnosis of antisocial personality disorder was the documentary evidence and the victims' testimony at trial. The record supports the State's claim. Dr. Packard testified that his opinion was based on evidence that Brogi, in addition to his sexual assault convictions, had `repeated arrests' beginning at age 16. Dr. Packard gave several examples of Brogi's deceitful and manipulative behavior from the records and trial testimony, such as the elaborate ruses he employed to manipulate the victims of his sex offenses. He testified that the criterion of irresponsibility was met from information available from the depositions of Brogi's parents and other individuals, `that he has a history of losing jobs and being fired from jobs for being late and not establishing a pattern of being able to support himself.' We conclude that the information Dr. Packard gained by interviewing Brogi provided marginal support at best for a diagnosis that rested solidly on information available from other sources.
Verbatim Report of Proceedings 1/11/00 at 32.
Verbatim Report of Proceedings 1/11/00 at 34.
In the final portion of Dr. Packard's testimony, he discussed his opinion that Brogi is likely to engage in future acts of sexual violence if not confined to a secure facility. Dr. Packard made no reference to any information he learned during the CR 35 examination. He based his risk assessment upon the results of three different actuarial risk instruments. He demonstrated for the jury the use of the scoring sheet for the widely-used Minnesota Sex Offender Screening Tool.
Verbatim Report of Proceedings 1/11/00 at 50.
The factors relevant to the screening tool are the number of sex-related convictions; the length of sex-offending history; whether the offender was under supervision when he committed a new sex offense; whether the offender committed an offense in a public place; whether force or threat of force was used to achieve compliance; whether an offense involved multiple acts on a single victim during an assault; number of different age groups victimized; whether the victims were strangers to the offender; evidence of adolescent antisocial behavior; pattern of drug or alcohol abuse within the 12 months prior to the most recent offense; employment history in the year before the most recent offense; disciplinary history while incarcerated; chemical dependency treatment while incarcerated; sex offender treatment while incarcerated, and the age of the offender.
Dr. Packard explained each factor, its clinical significance, and cited to those portions of the documentary evidence that supported his use of the factors to score Brogi. He testified that Brogi's score placed him in the 94th percentile of violent sexual offenders in the sample used to develop the instrument. He testified that statistically, 88 percent of those who received the same or higher score were re-arrested for new offenses within six years.
Dr. Packard opined, to a reasonable degree of psychological certainty, that Brogi's future sexually violent acts would be predatory in nature. He based this opinion on `a review of Mr. Brogi's behavior historically and the types of offenses that he has conducted' which have been predatory in nature. The record does not indicate that the information Dr. Packard obtained from the CR 35 examination was used in any significant way at trial to establish Brogi's risk of future offenses.
Verbatim Report of Proceedings 1/11/00 at 89.
Brogi claims the error in permitting Dr. Packard to conduct a CR 35 examination is presumed to have resulted in reversible prejudice because it bolstered the credibility of the sole expert to testify at trial. In support of this position, Brogi relies on Thomas v. French, 99 Wn.2d 95, 659 P.2d 1097 (1983).
In that case, three former students brought a suit against a cosmetology school alleging breach of instructional contract and violations of cosmetology statutes. The trial court admitted into evidence a letter written to the State Director of Licensing complaining of conditions at the school. Eighteen students, including the three plaintiffs, signed the letter. The plaintiffs offered the letter to show the poor quality of services at the school. The letter was hearsay and the Supreme Court held it was error for the trial court to admit it. Even though the letter was `somewhat cumulative' of the testimony at trial, the fact that other persons signed it served to reinforce the credibility of the plaintiffs' testimony.
The Court concluded:
such reinforcement of their credibility may well have prejudiced the jury's assessment of [the plaintiffs'] testimony in other respects, especially as to damages for breach of contract and emotional distress. Because there is no way to know what value the jury placed upon the improperly admitted evidence, a new trial is necessary.
Thomas v. French, 99 Wn.2d at 105.
Brogi contends his case is similar in that the CR 35 examination bolstered Dr. Packard's credibility, and there is no way to know how much. He says that if Dr. Packard had not spent two days interviewing him face to face and performing numerous tests, his opinions would have been more vigorously attacked and the jury most likely would have viewed his credibility far less favorably. He points out that Dr. Packard is not a medical doctor, and has not treated individual patients since 1995. Brogi also points out that the instruction the court read to the jury just before Dr. Packard testified allowed the jury to consider Brogi's statements to Dr. Packard for the truth of the matter asserted, while information Dr. Packard relied on outside his personal knowledge could only be considered for deciding how much weight to give to his opinion.
Verbatim Report of Proceedings, 1/11/00 at 11-12. The instruction read as follows: `And I would inform the jury at this time this instruction. An expert witness may testify to information that is outside of the witness's personal knowledge that the witness relied upon in forming the witness's opinion. You may not consider this type of information for the truth of the matter asserted, but only for the purpose of assessing what weight should be given the expert witness's testimony. An expert witness may also testify to facts within the witness's personal knowledge, including professional opinions and statements made by the respondent directly to the expert. You may consider such facts for the truth of the matter asserted.'
This argument is highly speculative. Brogi has not shown that any particular information from the CR 35 examination bolstered the credibility of Dr. Packard's opinion. The State did not call attention to the CR 35 examination in closing argument. In our review of the record we have found no basis for a conclusion that the CR 35 examination added substance to Dr. Packard's diagnostic opinion.
Dr. Packard's credentials include a doctorate in clinical psychology in a program accredited by the American Psychological Association. The jury heard that Dr. Packard's doctoral dissertation was on the science of risk prediction — specifically a research study on risk factors that led to adolescents to commit sex offenses. Dr. Packard has been a licensed psychologist in Washington since 1982, which requires a doctoral degree and 2,500 hours of supervised practice. In his eleven years of private practice, Dr. Packard treated over 600 sex offenders. His area of expertise is in risk assessment for adult sex offenders and forensic evaluations. He has conducted training for other professionals in the field since 1996, including training on a national level for prosecutors and defense attorneys. From 1995 to 1998, Dr. Packard worked as the director of treatment and research for the Washington State Department of Corrections Sex Offender Treatment Program supervising the assessments of approximately 350 sex offenders per year.
Given the clarity of Dr. Packard's presentation, his credentials, and the insignificance of the CR 35 examination to his opinion as compared to the wealth of documentary information about Brogi's actual conduct, we find unpersuasive the suggestion that the lack of a personal interview with Brogi would have caused the jury to discount Dr. Packard's testimony. Although the jury heard that Dr. Packard considered the interview in reaching his conclusions, Dr. Packard's testimony with respect to the specific factual basis for each of his conclusions overwhelmingly relied on the documentary evidence.
We conclude Brogi was not prejudiced by the jury's hearing of evidence obtained in the CR 35 examination. The error in ordering the CR 35 examination and allowing Dr. Packard to refer to it did not affect the outcome of the trial.
There are two remaining issues from Brogi's original appeal: whether the court erroneously allowed the State to amend its probable cause petition, and whether the State must prove identity beyond a reasonable doubt in a sexually violent predator commitment proceeding. Our commissioner's ruling granting the motion on the merits properly concludes the court committed no error with respect to those issues. We adopt the reasoning of the commissioner.
Affirmed.
ELLINGTON and BAKER, JJ., Concur.