In re the DETENTION OF Clinton MORGAN, Appellant.
Court of Appeals of Washington, Division 2.
*396 Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.
Joshua Choate, Office of the Washington State Attorney, Seattle, WA, for Respondent.
QUINN-BRINTNALL, J.
¶ 1 Clinton Morgan appeals a 2008 jury determination that he is a sexually violent predator (SVP), under ch. 71.09 RCW, and his resulting civil commitment. Morgan asserts that a 2006 chambers meeting, which he did not attend, discussing the possibility of forcibly medicating him during the commitment proceedings, violated (1) his right to personally attend all proceedings to assist his counsel and (2) his Washington constitutional right to open proceedings. In addition, he argues that the trial court violated his due process rights when it (1) held his SVP civil commitment jury trial despite his incompetence and (2) forcibly medicated him during the proceedings. Finally, Morgan claims that paraphilia not otherwise specified (NOS) (nonconsent) is an invalid diagnosis that could not form the basis for his civil commitment. We hold that the 2006 chambers meeting concerned purely ministerial and legal matters and did not violate any of Morgan's rights, Morgan's procedural due process rights were not violated by holding SVP proceedings despite his incompetence, the record is not adequately developed to consider the alleged forced medication error, and Morgan failed to preserve for review his challenge to an expert's diagnosis. We affirm.
FACTS
¶ 2 Morgan, who was born on February 25, 1980, pleaded guilty to indecent liberties in 1993. This juvenile adjudication stemmed from a school incident in which Morgan prevented 15-year-old J.W., a stranger to him at the time, from leaving a classroom while he forcibly kissed her, grabbed her breasts, and rubbed her other private parts. The juvenile court sentenced Morgan to 65 weeks in a Juvenile Rehabilitation Administration program. As part of his rehabilitation program, Morgan participated in sexual deviancy treatment during which he disclosed problems distinguishing between fantasy and reality; masturbating to rape fantasies; and having sadistic sexual fantasies involving murder, humiliation, and disfigurement. After his release in 1994, Morgan continued receiving community based sex offender treatment until early 1997.
¶ 3 In 1997, approximately two weeks after completing a sex offender treatment program, Morgan molested two girls at a hotel swimming pool while pretending to be a lifeguard. Six-year-old K.S. told her parents that Morgan had touched her chest area and between her legs. Five-year-old R.B. told her parents that Morgan had been "tickling her on her `peepee' on the outside of her swimming suit." Clerk's Papers (CP) at 5. An adult at the pool witnessed Morgan touching R.B. on her back and buttocks and observed that Morgan had an erection when he got out of the pool after touching R.B. Morgan later stated that he just wanted to see if he could handle being around children, but things "got out of hand" once he touched the girls and that he "had no control over the situation, period." 2 Report of Proceedings (RP) at 255.
¶ 4 Morgan pleaded guilty to one count of first degree child molestation for the swimming pool incident and received an 89-month sentence.[1] During his incarceration, Morgan was moved to the Special Offender Unit at the Monroe Correctional Complex after he developed psychotic symptoms. While at Monroe, he completed a sex offender treatment program making limited rehabilitative progress. Even after completing treatment, the program considered Morgan as having a high risk of reoffending.
*397 ¶ 5 On August 31, 2004, the day before his scheduled release into the community, the State filed a petition seeking Morgan's involuntary commitment as an SVP. The petition alleged in pertinent part as follows:
1. [Morgan] has been convicted of the following sexually violent offense(s), as that term is defined in [former] RCW 71.09.020(15) [(2003)]: On or about May 30, 1997, in Grays Harbor County Superior Court, Grays Harbor, Washington, [Morgan] was convicted of Child Molestation in the First Degree.
2. [Morgan] currently suffers from:
a) A mental abnormality, as that term is defined in [former] RCW 71.09.020(8) [(2003)], specifically: Paraphilia NOS (Non-Consent); Pedophilia, Sexually Attracted to Females, Nonexclusive Type; and provisionally Sexual Sadism; and
b) A personality disorder, specifically: Antisocial Personality Disorder.
3. [Morgan's] mental abnormality and personality disorder cause him to have serious difficulty in controlling his dangerous behavior and make him likely to engage in predatory acts of sexual violence unless confined to a secure facility.
CP at 1-2. Over the next four years, the parties requested various continuances and addressed a variety of issues not relevant to this appeal. During this time, Morgan lived at the Special Commitment Center (SCC) on McNeil Island.
¶ 6 In February 2006, at Morgan's counsel's request, the trial court held a hearing to determine Morgan's competency for his SVP trial. Morgan's expert witness opined that he was not competent. The trial court determined that Morgan was not competent and expressed "very great concerns regarding the ability of Mr. Morgan to assist in [his] representation in these matters." RP (Feb. 23, 2006) at 9. Primarily based on their understanding of In re Detention of Greenwood,
¶ 7 In June 2006, Morgan's attorney asked that Morgan be forcibly medicated to control his behavior during the SVP proceedings. The trial court initially granted the motion in an oral ruling, but then accepted the State's request to take more evidence and weigh different interests before entering a final ruling. On August 30, the trial court discussed the forced medication motion process in chambers. The trial judge, a court reporter, and the GAL were physically present in the trial court's chambers. The State's and Morgan's attorneys were present via phone. Morgan was not present. The State reviewed the trial court's standard for ruling on the medication motion. Morgan's attorney asserted that, without medication, Morgan's behavior would prejudice the jury. The GAL recommended learning whether medication might help control Morgan's disruptive and delusional outbursts and noted that "Morgan himself is violently [and] vehemently against any kind of involuntary medication." RP (Aug. 30, 2006) at 31. Ultimately, the trial court decided to delay ruling on the merits of the motion until after receiving more information, including a report from Morgan's psychiatrist and an update from the GAL.
¶ 8 SCC psychiatrist Dr. Leslie Sziebert's subsequent report detailed Morgan's medication history over the years. Sziebert noted that Morgan presently was not taking any medication and had not taken antipsychotic medication for the past 17 months (since April 2005). She opined about the efficacy of involuntary medication in Morgan's case and indicated that Morgan did not meet the SCC's requirements for being involuntarily medicated because he did not have a grave disability or present a danger to himself or others. After reviewing Sziebert's report, the GAL recommended to the trial court, over Morgan's acknowledged objections, that it forcibly medicate Morgan during his civil commitment hearing. On December 6, 2006, the trial court entered a written order to involuntarily medicate Morgan.
*398 ¶ 9 Morgan's civil commitment trial did not begin until August 4, 2008.[2] At the trial, the State's expert, Dr. Brian Judd, explained his diagnosis of Morgan as presently suffering from (1) paraphilia NOS (nonconsent); (2) pedophilia, sexually attracted to females, non-exclusive type; (3) antisocial personality disorder; and (4) schizophrenia. Morgan's expert, Dr. Wollert, disagreed with several of Judd's diagnoses and testified that Morgan's brain had likely matured since his offenses, lowering his recidivism risk. The jury entered a verdict finding that Morgan met the definition of an SVP. Morgan timely appeals.
ANALYSIS
RIGHT TO ATTEND THE 2006 CHAMBERS MEETING
¶ 10 Morgan asserts that he had a right to attend the 2006 chambers meeting where the trial court considered issues related to forcibly medicating him. Specifically, he argues that former RCW 71.09.050(1) (1995) includes an implicit right to attend the meeting to assist his counsel and that failing to include him violated his due process rights. The State argues that Morgan's counsel's and GAL's presence at the meeting adequately protected his due process rights. We discern no error.
¶ 11 "A defendant has the right to be present at proceedings where his or her presence has a reasonably substantial relation `to the ful[l]ness of his opportunity to defend against the charge.'" In re Pers. Restraint of Pirtle,
¶ 12 Morgan did not have a right to personally attend the chambers meeting where purely legal questions about the process of deciding a forced medication motion were discussed. As the transcript of the chambers meeting evinces, the meeting included a discussion of the legal standard that the trial court should apply when ruling on the involuntary medication motion and whether the trial court had adequate information to rule on the motion. No ruling was made during the meeting, and Morgan's presence would not have influenced the ultimate outcome of the matters discussed at the meeting.[3] Accordingly, Morgan's rights were represented fully and not violated by his lack of attendance at the meeting.
¶ 13 Morgan also asserts that former RCW 71.09.050(1) includes an implicit right *399 for him to attend this meeting. In relevant part, former RCW 71.09.050(1) provides that "[a]t all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to the assistance of counsel." Morgan claims that he must be present at all proceedings in order to receive assistance of counsel. This argument fails because when a purely legal matter is under consideration, Morgan's presence is irrelevant to the proceedings. Pirtle,
PUBLIC TRIAL RIGHTS
¶ 14 Morgan next contends that the trial court's 2006 chambers meeting also violated his right to open proceedings under the Washington Constitution, article I, section 10. Specifically, he argues that the trial court failed to consider and apply the five courtroom closure steps in Seattle Times Co. v. Ishikawa,
¶ 15 Article I, section 10 of the Washington Constitution requires that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." "`Whether a trial court procedure violates the right to a public trial is a question of law we review de novo.'" In re Det. of D.F.F.,
¶ 16 We have previously held that the right to a public trial applies to evidentiary phases of the trial as well as other "`adversary proceedings,'" including suppression hearings, voir dire, and the jury selection process. Sadler,
¶ 17 Here, the chambers meeting about the standard for the trial court to apply when deciding whether to forcibly medicate Morgan concerned purely legal and procedural matters. Because the chambers meeting here solely addressed ministerial matters regarding legal questions related to the process of deciding the defendant's counsel's forced medication motion, it did not implicate Morgan's public trial rights.
RIGHT TO COMPETENCY DURING SVP Proceedings
¶ 18 Morgan argues that the State cannot seek to commit him as an SVP under ch. 71.09 RCW while he is incompetent because it violates his due process rights. Specifically, he asserts a general right to competency during SVP proceedings to ensure that he understands them and has the ability to assist his attorney. We hold that a respondent's due process rights are not violated when he or she is incompetent during SVP proceedings.
¶ 19 We review questions of law, including the guaranty of constitutional due process, de novo. In re Det. of Fair,
¶ 20 Procedural due process prohibits the State from depriving an individual of protected liberty interests without appropriate procedural safeguards.[6]In re Pers. Restraint of Bush,
¶ 21 Whether a respondent in civil SVP commitment proceedings must be competent to satisfy procedural due process requirements is a matter of first impression. As an initial matter, we note that the parties' arguments do not persuade us that our analysis in *401 Greenwood controls. In Greenwood, we considered whether RCW 10.77.050's prohibition on trying and convicting incompetent criminal defendants applied to RCW 71.09.060(2) SVP commitment proceedings.
¶ 22 The State also suggests that the plain language of former RCW 71.09.060(2) (2001) indicates that a respondent does not have a general competency right in SVP civil commitment hearings. Former RCW 71.09.060(2) relates to an SVP bench hearing where the trial court must determine whether the respondent committed the predicate sexually violent offense when he or she was incompetent to stand trial in a criminal proceeding. Accordingly, former RCW 71.09.060(2) explicitly relates only to whether the requisite predicate offense to qualify as an SVP exists. This statutory provision does not address a respondent's right to competency during any other SVP proceedings.
¶ 23 Here, a review and weighing of the Mathews factors indicates that there is no right to competency during SVP civil commitment proceedings. The first factor, regarding Morgan's private interests at stake, clearly weighs in favor of Morgan as his civil commitment deprives him of significant liberty interests. Addington,
¶ 24 For the second factor, "the risk of erroneous deprivation of [private] interest[s] through existing procedures and the probable value, if any, of additional procedural safeguards," there were no additional safeguards that could have been put into place that would have minimized or prevented an erroneous deprivation of Morgan's rights. Stout,
¶ 25 We previously addressed an argument similar to Morgan's that his right to assist his counsel at his civil commitment hearing implies a right to competency. In In re Det. of Ransleben,
*402 ¶ 26 The third Mathews factor, "the governmental interest, including costs and administrative burdens of additional procedures," also weighs heavily in the State's favor. Stout,
¶ 27 Accordingly, the Mathews factors weigh in favor of the State. We hold that due process does not require that a respondent be competent during any SVP proceedings, and Morgan's procedural due process argument fails.
¶ 28 Our analysis and holding mirrors that of the California Supreme Court in Moore v. Superior Court,
[t]he state's interest in enforcing these procedures, and in protecting the public, would be substantially impaired if an alleged SVP could claim, based on his diagnosed mental disorders, that he was too incompetent to undergo a trial leading to such targeted confinement and treatment. Indeed, as the exhibits supporting defendant's writ petition suggest, we can reasonably assume that significant potential overlap exists between those mental disorders that qualify someone for commitment as an SVP, on the one hand, and those that produce an inability to comprehend the proceedings or assist in one's defense on the other.... To allow anyone and everyone in this situation to seek a competence determination could require unknown numbers, possibly scores, of SVP commitment trials to be stayed indefinitely, and perhaps permanently, unless and until competence was restored under circumstances not involving confinement and treatment under the SVPA. Such concerns weigh heavily, and in fact dispositively, against recognition of a due process right of this kind.
Moore,
¶ 29 The Moore court's reasoning highlights the tension between Morgan's claim to competency and the SVP civil commitment requirements. Namely, SVP civil commitment requires the existence of a mental illness, but is there a point where an individual becomes too mentally ill that he is incompetent and cannot be civilly committed? Indeed, there are likely some situations in which a person who is convicted of a sexually violent offense, and then becomes incompetent, might never regain competency for a civil commitment proceeding. We resolve this tension in a similar manner as the Moore court discerning no due process violations when a respondent is not competent during SVP proceedings.[8]
*403 ¶ 30 Finally, of the other foreign jurisdiction cases the parties discussed, only one warrants further analysis. In re Commitment of Branch,
INVOLUNTARY MEDICATION DURING THE PROCEEDINGS
¶ 31 Next, Morgan argues that the forced medication of antipsychotic drugs during his civil commitment hearing violated his due process rights. Specifically, he challenges the trial court's decision to force medication without identifying a medical necessity or a compelling government interest and in spite of a psychiatric evaluation stating the medication may not be in his best interests. See Sell v. United States,
¶ 32 As the party seeking review, Morgan has the burden to perfect the record so that, as the reviewing court, we have all the evidence relevant to the issues presented before us. RAP 9.2(b); Bulzomi v. Dep't of Labor & Indus.,
¶ 33 Here, the record does not clearly establish that Morgan was forcibly medicated during his SVP trial. The trial court entered a forcible medication order in December 2006. Morgan's SVP trial did not begin until August 2008. The only evidence in the record that Morgan took any medication during his SVP proceedings is the trial court's statement, near the end of trial, to check and "make certain that Mr. Morgan has taken his medications that have been court ordered." 4 RP at 582. At oral argument, the parties discussed incorrect inferences from trial testimony and the existence of several documents, which are not in the record on review, that allegedly support Morgan's allegations that these trial medications were forcibly taken.[9] We cannot consider matters or evidence outside the record in a direct appeal. RAP 9.2(b); State v. McFarland,
¶ 34 Morgan suggests that we can presume that he was forcibly medicated during his SVP trial because of the plain language of the trial court's December 2006 order, which *404 it never rescinded. We disagree. Even if Morgan forcibly took medication in December 2006, this fact alone does not establish that he still forcibly took medication in August 2008. Morgan may have realized the benefits of the medications in the intervening time and voluntarily taken them in August 2008. Dr. Judd's July 22, 2004 report included language suggesting that, in 2004, Morgan willingly complied with his medication treatment to "minimize the probability of [an SVP petition] filing" despite believing that he did not need to take antipsychotic medications and that they were not helping him. CP at 31. Thus, evidence exists in the record that Morgan has previously voluntarily, if reluctantly, taken ordered medications to improve his legal position. We will not engage in a speculative analysis and deny further review of this issue in this direct appeal.
PARAPHILIA NOS (NONCONSENT) DIAGNOSIS VALIDITY
¶ 35 Last, Morgan argues that the trial court erred by admitting a paraphilia NOS (nonconsent) diagnosis because that diagnosis has not gained general acceptance among the relevant scientific community as a basis for involuntary civil commitment. The State argues that Morgan has waived this argument because he failed to raise a Frye[10] objection below. In addition, the State points out that Washington courts frequently recognize paraphilia NOS (nonconsent) as a valid diagnosis eligible for use in civil commitment proceedings. We agree with the State.
¶ 36 We do not consider an issue raised for the first time on appeal unless it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). Division One of this court rejected an argument identical to Morgan's in In re Detention of Post,
¶ 37 Similarly, Morgan never objected to the testimony about the paraphilia NOS (nonconsent) diagnosis or challenged its admissibility at trial. He also never sought a Frye evidentiary hearing on the diagnosis. Like Post, Morgan is improperly attempting to recast his failure to raise an evidentiary challenge at trial as a manifest constitutional issue that he can challenge for the first time on appeal. We hold that Morgan did not preserve his Frye challenge for appeal.[11]
¶ 38 Our opinion resolves the issues in this case with two primary holdings. First, an individual's right to assist counsel and right to a public trial are not violated when a trial court holds a chambers meeting addressing purely legal and ministerial matters. Second, due process does not require that a respondent be competent during any SVP proceeding. In accordance with this opinion, we affirm.
We concur: WORSWICK, A.C.J., and WILLIAMS, J.P.T.
NOTES
Notes
[1] Morgan was charged as an adult for first degree child molestation after the juvenile court declined jurisdiction.
[2] On August 6, 2008, Morgan formally withdrew his objection to moving forward with his commitment proceedings despite his incompetency.
[3] At the meeting, the trial court did say, "[I]t sounds that [sic] basically all we're simply doing here is making sure we have the background or balancing in to order the medication. Almost like it's a foregone conclusion but I would like some medical matters taken care of first, okay?" RP (Aug. 30, 2006) at 32 (emphasis added). Although the trial court's statement implied that it would likely grant the forced medication motion after receiving all the necessary information, importantly, the trial court did not render a final written decision on this issue until December 6, 2006. As our Supreme Court previously noted, "[A] trial judge's oral decision is no more than a verbal expression of [its] informal opinion at that time. It is necessarily subject to further study and consideration, and may be altered, modified, or completely abandoned. It has no final or binding effect, unless formally incorporated into the findings, conclusions, and judgment." Ferree v. Doric Co.,
[4] In State v. Wise,
[5] D.F.F. concerned the closure of mental health proceedings under ch. 71.05 RCW. Division One of this court declared Mental Proceedings Rule (MPR) 1.3 unconstitutional because it categorically precluded court closures based on an analysis previously articulated by our Supreme Court. D.F.F.,
[6] In In re Det. of McCuistion,
[t]he "procedure" required under a constitutionally valid SVP statute reflects substantive limits on the power of the legislature to restrict an individual's fundamental rights.... [T]he question is not what procedures are required under a balance of competing interests, but rather whether the procedures set forth in the statute are narrowly tailored to meet the State's compelling interest in continuing to confine mentally ill and dangerous persons. This is and always has been a question of substantive due process.
Here, Morgan couches his due process claim as a violation of his "opportunity to be heard" (i.e., his incompetency prevented him from participating and being heard during his commitment hearing because of his inability to help his attorney), and we apply procedural due process principles.
[7] Related to the second Mathews factor, we note an additional procedural safeguard that the trial court put into place in this case. The trial court appointed a GAL to represent Morgan's "best interests" and to "make decisions in this matter related to trial strategy." CP at 63-64. And pursuant to RCW 4.08.060, a GAL has complete statutory authority to represent an incapacitated party's interests. In re Dill,
[8] We note a distinction between an individual's rights during criminal trials that precede SVP petitions and the civil SVP proceedings. In Washington, defendants have a statutory right to be competent during criminal proceedings. RCW 10.77.050. Morgan does not allege a violation of his competency rights in the criminal proceedings underlying this case where he pleaded guilty to child molestation, a serious violent offense that later formed the basis for the State to file a petition for involuntary SVP civil commitment. That a defendant has a right to competency in criminal proceedings does not control whether such a right exists in a civil proceeding.
[9] The State referenced SCC documents from 2006 to 2008 that outlined Morgan's medication history during that time period. These documents are not in the record on review. Morgan's counsel discussed Dr. Wollert's trial testimony, asserting that he met with Morgan a month prior to the SVP jury trial and that Morgan was forcibly taking medication at that time. Our review of Wollert's references to a July 2008 meeting revealed that Wollert said Morgan was on medications but Wollert did not indicate whether the medications were forcibly or voluntarily taken.
[10] Frye v. United States,
[11] We note that even if we did consider the merits of Morgan's Frye challenge, Washington courts have consistently upheld the use of paraphilia NOS in numerous civil commitment proceedings. See, e.g., Post,