In Re The Detention Of: Calvin E. Malone, 72306-5

Background

The State sought involuntary civil commitment of Calvin Malone as a sexually violent predator (SVP) under RCW 71.09 after his 1993 convictions for rape of a child and two counts of child molestation; the petition followed extensive admissions and victim testimony recounting decades of molestation of boys.
Malone's first SVP trial ended in a mistrial; a second trial in 2014 produced a jury verdict finding him an SVP and the trial court ordered commitment.
The State's expert, Dr. Amy Phenix, diagnosed Malone with (1) pedophilic disorder (male-attracted, nonexclusive), (2) other specified paraphilic disorder, nonconsent (describing arousal to pubescent/postpubescent boys with a nonconsent descriptor), and (3) opioid use disorder.
Malone moved pretrial to exclude the other specified paraphilic disorder diagnosis (arguing it was essentially hebephilia and unreliable), but the trial court denied exclusion under ER 702/703; Malone did not request a Frye hearing below.
Post-trial Malone raised multiple appellate issues: admissibility of the other specified paraphilic diagnosis (and ineffective assistance for not seeking Frye), refusal to give a jury instruction about potential new civil petitions for "recent overt acts," alleged prosecutorial misconduct in rebuttal, and alleged juror misconduct (sleeping juror, jurors who "made up" their minds early, and deliberations with jurors absent).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of "other specified paraphilic disorder, nonconsent" diagnosis	Malone: diagnosis was essentially hebephilia (not generally accepted); trial court should have held a Frye hearing and excluded it under ER 702/703; counsel ineffective for not requesting Frye	State: Malone did not preserve a Frye challenge; ER 702 challenge was litigated and admissibility was within trial court discretion; even without this diagnosis, pedophilia diagnosis alone supported SVP verdict	Court: Malone failed to preserve Frye claim; no ineffective assistance because pedophilia diagnosis independently supports SVP finding; any error was not prejudicial, so no reversal
Jury instruction re: possibility of a new SVP petition for "recent overt act" if released	Malone: instruction was supported by Post and relevant because such a possibility could deter reoffending and thus bear on dangerousness	State: Malone presented no proof that he knew of or would be deterred by this provision; limited testimony did not supply substantial evidence to warrant instruction	Court: Trial court did not abuse discretion in refusing instruction; defense could still argue potential conditions and jury instructions allowed consideration of placement conditions
Prosecutorial misconduct in rebuttal closing (attacks on defense counsel/integrity)	Malone: AAG disparaged defense counsel (called arguments "misdirection," used quote about being "bamboozled"), impugning counsel's integrity and prejudicing the jury	State: Comments addressed alleged misrepresentations in defense argument; Malone did not object at trial; any curative instruction could have cured prejudice	Court: Some comments improperly suggested counsel was dishonest but were not so flagrant or prejudicial given overwhelming evidence; no new trial warranted
Juror misconduct (sleeping juror; jurors decided early; deliberations while juror absent)	Malone: Post-trial juror questionnaire disclosed sleeping juror, jurors who said they "made up" minds by day 3, and deliberation continued while a juror briefly left; court should hold evidentiary hearing	State: Many of these matters inhere in verdict or were not timely raised; internal deliberation details are not examinable	Court: Sleeping-juror claim not preserved below; allegations about jurors having preformed opinions and deliberation timing inhere in the verdict or are prohibited inquiry—trial court did not err in refusing broader investigation

Key Cases Cited

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (established general-acceptance standard for novel scientific evidence)
In re Det. of Post, 170 Wn.2d 302 (Wash. 2010) (evidence about post-release consequences and recent-overt-act petitions may be relevant to dangerousness)
State v. Cheatam, 150 Wn.2d 626 (Wash. 2003) (ER 702 standards for expert testimony)
In re Det. of Thorell, 149 Wn.2d 724 (Wash. 2003) (Frye standard discussion in SVP context)
In re Personal Restraint of Meirhofer, 182 Wn.2d 632 (Wash. 2015) (discussion of paraphilia diagnoses and sufficiency to establish SVP status)
State v. Lindsay, 180 Wn.2d 423 (Wash. 2014) (prosecutor may not impugn defense counsel's integrity)
State v. Thorgerson, 172 Wn.2d 438 (Wash. 2011) (limits on prosecutorial disparagement of defense)
State v. Lamar, 180 Wn.2d 576 (Wash. 2014) (prohibition on intrusive inquiry into internal jury deliberations)
State v. Long, 19 Wn. App. 900 (Wash. Ct. App. 1978) (trial court discretion on number and sufficiency of jury instructions)