126 Wash. App. 957 | Wash. Ct. App. | 2005
FACTS
¶2 In 1991, a jury found that Louis W. Brock was a sexually violent predator (SVP) under chapter 71.09 RCW, and the court committed him to the SCC. In September 2003, Brock filed a pro se petition for unconditional discharge, and the court held the mandatory show cause hearing in January 2004.
¶3 Brock argues that RCW 71.09.090(2)(b) violates due process by allowing the State to rely solely on the annual report to show that a committed person continues to meet the definition of a sexually violent predator. RCW 71.09.090(2)(b) states:
The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting attorney or attorney general shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to RCW 71.09.070. The committed person may present responsive affidavits or declarations to which the state may reply.
This section must be read in the context of the provision that immediately follows it, RCW 71.09.090(2)(c):
If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person’s condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
¶5 Brock argues that RCW 71.09.090(2)(b) violates due process because the committed person cannot cross-examine documentary evidence at the show cause hearing. Recently, in Crawford v. Washington,
¶6 In determining what procedures due process requires, we balance three factors: (1) the private interest affected; (2) the risk of erroneous deprivation of that interest through existing procedures and the value of additional procedural safeguards; and (3) the governmental interest, including costs and administrative burdens of additional procedures.
¶7 In In re Detention of Petersen, the Washington Supreme Court held that the State has the burden of proof at a show cause hearing.
Even if the State carries its burden to prove a prima facie case for continued imprisonment, the prisoner may present his own evidence which, if believed, would show (1) the prisoner no longer suffers from a mental abnormality or personality disorder, i.e., the prisoner has “so changed,” or (2) if the prisoner still suffers from a mental abnormality or personality disorder, the mental abnormality or personality disorder would not likely cause the prisoner to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged . . . ,[15 ]
Because courts do not weigh evidence to determine probable cause,
¶8 Existing show cause hearing procedures ensure a minimal risk that the court will erroneously deprive the committed person of his or her liberty. In Petersen the court held that, as with any civil proceeding, the committed person “is allowed to depose any of the State’s expert witnesses and conduct such discovery as is permitted by the civil rules.”
¶9 Brock argues that detainees must be able to cross-examine the State’s experts in order to challenge their conclusions in the annual reports. He cites two recent New Jersey appellate decisions that applied Crawford-like protections to sexually violent predator civil commitment hearings. In both In re Civil Commitment of E.S.T.
¶10 Brock has sufficient avenues at his disposal to gather that evidence. While cross-examination of the State’s experts at a show cause hearing could conceivably elicit information helpful to the committed person, he or she can do the same thing by using the civil discovery rules. Evidence garnered before the show cause hearing is just as useful, if not more so, to the committed person than evidence elicited at the hearing itself. There is minimal value to allowing cross-examination at a show cause hearing.
fll We hold that RCW 71.09.090(2)(b) does not violate due process because existing show cause hearing procedures sufficiently minimize the risk of an erroneous deprivation of a committed person’s liberty interest, and the probable value of cross-examination at a show cause hearing is minimal. We affirm.
Baker and Kennedy, JJ., concur.
A committed SVP has the right to petition annually for unconditional release or conditional release to a less restrictive alternative. If he or she does not affirmatively waive this right, the court must set a show cause hearing. RCW
If a party fails to assign error, we cannot review the issue. Escude ex reí. Escude v. King County Pub. Hasp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69 P.3d 895 (2003) (citing Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); CTVC of Haw. Co. v. Shinawatra, 82 Wn. App. 699, 706 n.2, 919 P.2d 1243, 932 P.2d 664 (1996), review denied, 131 Wn.2d 1020 (1997)).
Brock contends he was not given notice of the hearing date and had only a few minutes to gather his things when the sheriff’s office picked him up at the SCC. Brock’s attorney learned of the hearing only the day before when Brock telephoned him.
RCW 71.09.070 provides that each committed SVP
shall have a current examination of his or her mental condition made by the department of social and health services at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that would adequately protect the community. ...
The trial court specifically entered the order without prejudice to allow Brock to file another petition after the Department completed his 2004 annual report.
State v. Mertens, 148 Wn.2d 820, 826, 64 P.3d 633 (2003) (citing State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997); Island County v. State, 135 Wn.2d 141, 146, 955 P.2d 377 (1998)).
In re Pers. Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993).
Chmela v. Dep’t of Motor Vehicles, 88 Wn.2d 385, 561 P.2d 1085 (1977). The sixth amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him .. ..” Article I, section 22 of the Washington Constitution provides that “[i]n criminal prosecutions, the accused shall have the right to .. . meet the witnesses against him face to face .. ..”
In re Det. of Thorell, 149 Wn.2d 724, 731, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
Id. (citing Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)).
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Guardianship Estate of Keffeler v. Dep’t of Soc. & Health Servs., 151 Wn.2d 331, 343, 88 P.3d 949 (2004) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
145 Wn.2d 789, 796, 42 P.3d 952 (2002).
Id. at 797.
Id. at 798.
Id. at 798-99.
Id. at 798.
In re Det. of Jacobson, 120 Wn. App. 770, 781, 86 P.3d 1202 (2004).
In re Det. of Young, 120 Wn. App. 753, 759, 86 P.3d 810, review denied, 152 Wn.2d 1035 (2004).
Petersen, 145 Wn.2d at 801. The court cites former RCW 71.09.090(2) (1995), but any changes in the statute’s language do not affect its holding.
RCW 71.09.070 provides in part: “The committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person.”
371 N.J. Super. Ct. App. Div. 562, 854 A.2d 936 (2004).
372 N.J. Super. Ct. App. Div. 42, 855 A.2d 569 (2004).
In re Civil Commitment of E.S.T., 371 N.J. Super. Ct. App. Div. at 573; In re Civil Commitment of G.G.N., 372 N.J. Super. Ct. App. Div. at 58.
In his brief, Brock points to Dr. Barbaree’s opinions about the aging process diminishing an offender's risk of recidivism. Brock never offered this theory at his show cause hearing.