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State v. Dang

Supreme Court of Washington, En Banc

October 31, 2013

STATE of Washington, Respondent,
BAO DlNH DANG, Petitioner.

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Susan F. Wilk, Washington Appellate Project, Law Office of Michael Iaria, PLLC, Seattle, WA, for Petitioner.

David J. Hackett, King County Administration Building, Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA, for Respondent.


[178 Wn.2d 870] ¶ 1 In this case, we must determine whether trial courts are required to enter a finding of dangerousness before revoking the conditional release of a person acquitted of a crime by reason of insanity. We must also decide the appropriate standard of proof governing the revocation determination. We conclude that consistent with due process principles, our statutory scheme governing [178 Wn.2d 871] insanity acquittals, chapter 10.77 RCW, requires trial courts to find conditionally released insanity acquittees dangerous before committing them to mental institutions against their will. We also conclude that a preponderance of the evidence sufficiently protects an insanity acquittee's rights in the context of revoking conditional release. Because the trial court in this case specifically determined that Bao Dinh Dang was dangerous, we hold that it properly revoked his conditional release. We thus affirm the Court of Appeals but on different grounds. We hold that the trial court erred in admitting hearsay statements at Dang's revocation hearing without finding good cause for doing so but that the error was harmless beyond a reasonable doubt.


¶ 2 In November 2006, Dang walked up to a gas pump at a Seattle Chevron station, lit newspaper on fire, and attempted to pump gas in order to ignite the gas supply. A Chevron employee successfully knocked the flaming newspaper out of Dang's hand with a window-washing squeegee while a gas station customer phoned police. Dang was arrested, and the State charged him with attempted arson in the first degree.

¶ 3 Dang moved for acquittal on the grounds of insanity. The court granted Dang's motion, finding that Dang was suffering from a mental disease but that Dang was " not a substantial danger to other persons and does not now present a substantial likelihood of committing felonious acts jeopardizing public safety or security, but ... is in need of further control by the court or other persons or institutions." Clerk's Papers (CP) at 8.

¶ 4 In the same order granting Dang's motion for acquittal by reason of insanity, the court ordered Dang conditionally released subject to various conditions, including the assignment of a Department of Corrections (DOC) probation officer, a requirement that Dang live with his mother [178 Wn.2d 872] and remain in Washington, and prohibitions against possessing explosives, breaking additional laws, and consuming alcohol. The order granting conditional release also required Dang to seek psychiatric treatment at Harborview Medical Center and to follow all treatment recommendations and to remain under the supervision of the secretary of the DOC by reporting to a community corrections officer (CCO). Finally, the order stated that Dang's conditional release was contingent on being in a state of remission from the effects of mental disease and on having no significant deterioration of his mental condition.

¶ 5 Dang's conditional release was thereafter modified a few more times to require semiannual reports by the supervising CCO, to change Dang's residence from his mother's Seattle home to his sister's home in California, and to ensure compliance with treatment. Aside from these modifications, Dang's conditional release proceeded without incident. Given Dang's compliance with the terms of conditional release, the trial court permitted Dang to travel to Vietnam for one month in the summer of 2008.

¶ 6 Following his return from Vietnam, Dang's CCO and Harborview case manager noted that Dang was exhibiting signs of depression and paranoia. Dang's CCO received word from the Harborview case manager that Dang had stated that he was not taking medication and felt like setting a gas station on fire. In addition, Dang's case manager and CCO noted that Dang was experiencing delusions with respect to his mother's power and control over him and

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that Dang had alluded to doing " something big." Report of Proceedings (RP) at 48. Dang was taken to Harborview Mental Health Services, recanted his statements, and was released.

¶ 7 In light of the concerns expressed by Dang's CCO and case manager, the State moved for an order to issue a bench warrant for Dang's arrest and commitment pending a hearing on Dang's conditional release. The court issued a bench warrant ordering Dang committed for evaluation and treatment.

[178 Wn.2d 873] ¶ 8 Following arrest, Dang was placed in Western State Hospital for evaluation. During this period, the Department of Social and Health Services (DSHS) issued several reports regarding Dang's mental health. Each report outlined Dang's treatment and recommended that Dang not return to the community because he remained at risk for future violent and criminal behavior.

¶ 9 After extensive evaluation at Western State Hospital, the State moved to revoke Dang's conditional release. The trial court then heard testimony of Dang's CCO, the Harborview case manager, a DSHS psychologist, Dang's mother, and Dang. Several of the witnesses testified that Dang's mental health condition had deteriorated and that Dang should remain hospitalized.

¶ 10 Following the hearing, the court revoked Dang's conditional release. Dang appealed. While Dang's appeal was pending, the trial court issued findings of fact and conclusions of law supporting the order revoking conditional release. Among other findings, the court determined that Dang's mental disease did not remain in a state of remission and that Dang could not be conditionally released without presenting a substantial danger to others and a substantial likelihood of committing criminal acts jeopardizing public safety.

¶ 11 The Court of Appeals affirmed the trial court's revocation of Dang's conditional release. State v. Bao Dinh Dang, 168 Wash.App. 480, 488, 280 P.3d 1118 (2012). It determined that revocation of Dang's conditional release was proper based on Dang's nonadherence to the terms and conditions of release and that a specific finding of dangerousness was not required. Id. at 484, 280 P.3d 1118. The Court of Appeals also determined that preponderance of the evidence, rather than clear, cogent, and convincing evidence, was the appropriate standard of proof for determining revocation of conditional release under the insanity acquittal statute. Id. at 486, 280 P.3d 1118. Finally, the Court of Appeals held that the cases establishing limited due process rights to confront and [178 Wn.2d 874] cross-examine witnesses in similar revocation hearings prohibited only documentary hearsay, not hearsay admitted through live testimony. We granted review. State v. Bao Dinh Dang, 175 Wash.2d 1023, 291 P.3d 253 (2012).


¶ 12 " ‘ We review questions of statutory interpretation de novo.’ " State v. Veliz, 176 Wash.2d 849, 853-54, 298 P.3d 75 (2013) (quoting State v. Morales, 173 Wash.2d 560, 567 n. 3, 269 P.3d 263 (2012)). Constitutional issues are questions of law that we also review de novo. State v. Gresham, 173 Wash.2d 405, 419, 269 P.3d 207 (2012).


¶ 13 We affirm the Court of Appeals and hold that Dang's conditional release was properly revoked by the trial court.

¶ 14 First, we hold that the trial court properly revoked Dang's conditional release because it actually found Dang dangerous. But contrary to the Court of Appeals' holding, we conclude that failure to adhere to the terms and conditions of conditional release alone is not sufficient to revoke conditional release. Rather, the constitution requires a specific finding of dangerousness before ordering the confinement of an insanity acquittee.

¶ 15 Second, we conclude that preponderance of the evidence, rather than clear, cogent, and convincing evidence, is the appropriate standard of proof in determining the revocation of conditional release. The heightened standard required for civil ...

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