In Re The Detention Of Dale E. Roush
48150-2
| Wash. Ct. App. | Apr 4, 2017Background
- Dale E. Roush was civilly committed as a sexually violent predator (SVP) in 2002 and confined at the Special Commitment Center (SCC).
- In 2014 Roush established probable cause for a jury trial to determine conditional release to a proposed less restrictive alternative (LRA) involving a Tacoma group home and treatment.
- At the 2015 conditional release trial the State’s expert opined Roush remained high risk and that no conditions would adequately protect the community; Roush’s expert opined risk had decreased and conditions could protect the community.
- The State requested a jury instruction stating, “Respondent is a sexually violent predator,” which the court gave; Roush proposed an alternative instruction noting the prior 2002 adjudication.
- The jury found the State proved beyond a reasonable doubt the proposed LRA did not include conditions that would adequately protect the community; the trial court denied conditional release.
- Roush appealed, arguing the instruction impermissibly commented on the evidence by telling the jury he is an SVP as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructing the jury that Roush is an SVP was an improper comment on the evidence | Roush: the instruction told jurors a factual matter had been established and removed a disputed issue from the jury | State: Roush’s SVP status was not disputed at a conditional-release trial, so the instruction was a correct legal statement | Court: Instruction was a proper statement of law and not an improper comment because SVP status was not in dispute in a conditional-release hearing |
Key Cases Cited
- State v. Pirtle, 127 Wn.2d 628 (discusses standard for reviewing jury instructions)
- State v. Levy, 156 Wn.2d 709 (prohibits judicial comments conveying personal attitudes or declaring facts established)
- State v. Becker, 132 Wn.2d 54 (jury instruction that removes disputed factual issues relieves burden of proof)
- State v. Johnson, 152 Wn. App. 924 (accurate legal instructions supported by substantial evidence are not improper comments on evidence)
- In re the Detention of R.W., 98 Wn. App. 140 (instruction that improperly assigns weight to evidence or rests on nonoperative legislative intent is impermissible)