Oral Argument April 9, 2015.
Appeal from Clark Superior Court. Docket No: 01-2-03870-6. Judge signing: Honorable Scott a Collier. Judgment or order under review. Date filed: 09/27/2013.
Jodi R. Backlund and Skylar T. Brett (of Backlund & Mistry ), for appellant.
Robert W. Ferguson, Attorney General, and Mary E. Robnett, Managing Assistant, for respondent.
Authored by Lisa Worswick. Concurring: Jill M Johanson, Rich Melnick.
[188 Wn.App. 200] Lisa
[¶1] Brent Pettis appeals his continued civil commitment to the Special Commitment Center (SCC) following a jury verdict in an unconditional discharge trial. He argues that (1) the trial court erred under Frye  by admitting testimony based on the Structured Risk Assessment--Forensic Version (SRA-FV) tool at trial, (2) his commitment to the SCC rather than the less restrictive Secure Community Treatment Facility (SCTF) violates his substantive and procedural due process rights, (3) the trial court impermissibly commented on the evidence by instructing the jury to disregard Pettis's expert's statements [188 Wn.App. 201] about the law, (4) he received ineffective assistance of counsel because his attorneys made no attempt to rebut the State's expert or to rehabilitate Pettis's expert's testimony, and (5) the trial court erred by admitting evidence of what Pettis's living circumstances would be if unconditionally discharged. In the published portion of this opinion, we hold that the trial court did not err by admitting testimony based on the SRA-FV tool under Frye. In the unpublished portion of the opinion, we disagree with the remainder of Pettis's assignments of error and affirm.
[¶2] In 2002, Brent Pettis stipulated to an order committing him to indefinite total confinement in the SCC. In 2010, 2012, and 2013 annual reviews of Pettis, it was concluded that he remained a sexually violent predator (SVP). Some of these annual reviews opined that Pettis could be treated at a less restrictive alternative (LRA) such as the SCTF, while others did not.
[¶3] In 2011, Pettis stopped formal sex offender treatment at the SCC. In 2013 he petitioned for a trial to determine whether he could be unconditionally discharged from the
SCC. The trial court granted Pettis's motion for a trial.
[¶4] After filing his petition for unconditional release, Pettis moved to " seek conditional release in the alternative ... during the unconditional release jury trial." Clerk's Papers (CP) at 100. The State opposed this motion to expand the scope of the unconditional discharge trial. Pettis later withdrew this motion.
[¶5] Dr. Amy Phenix, retained by the State, evaluated Pettis. Dr. Phenix based her evaluation of Pettis on, among other things, actuarial and clinical risk assessment tools, including the SRA-FV. Dr. Phenix concluded that Pettis continued to meet the definition of an SVP. She also opined that he was " appropriate for release to a less restrictive placement, the SCTF[,]" but he was " not appropriate for unconditional release." Suppl. CP at 404.
[188 Wn.App. 202] [¶6] Shortly before the unconditional discharge trial was set to commence, Pettis moved the court for a summary order placing him in the SCTF. He alleged that all of the experts who had examined him thought an LRA, such as confinement at the SCTF, would be appropriate. Beyond requesting transfer to the SCTF, Pettis did not provide the statutorily required details about his proposed LRA. The trial court denied this motion.
[¶7] In preparation for trial, Pettis deposed two administrators at the SCC: administrative services chief Cathi Harris and consulting psychologist and former SCC director Dr. Holly Coryell. Both Harris and Dr. Coryell testified that it was the general practice at the SCC not to recommend for transfer to the SCTF any patient not currently in treatment.
[¶8] At the unconditional discharge trial, the State presented expert opinion testimony from Dr. Phenix. In response to Dr. Phenix's potential testimony about her evaluation of Pettis, which was based partially on the SRA-FV risk evaluation tool, the trial court held a Frye hearing. Dr. Phenix testified that the SRA-FV was widely accepted in the scientific community. At trial, the trial court admitted Dr. Phenix's testimony about the SRA-FV.
[¶9] On the basis of the SRA-FV and other evaluation tools, Dr. Phenix testified that Pettis was likely to reoffend if unconditionally discharged. She testified that he was in a high risk group when evaluated under either the SRA-FV or other risk assessment tools.
[¶10] At the time of trial, Pettis hoped to remain at the SCC for about 30 days if released, but he had no fixed plans to do so. He also did not have fixed plans to obtain housing in the community. Pettis moved in limine to exclude certain evidence relating to his release plans. He moved to exclude evidence that he had no plans for where to live if released and lacked a source of income and a social support network. The State made an offer of proof outside the presence of the jury that Pettis's lack of housing or income were factors in [188 Wn.App. 203] Dr. Phenix's opinion that Pettis might lack structure and be likely to reoffend if released. The trial court ruled that Dr. Phenix could testify to the relationship between risk of reoffending and a lack of structure. But the trial court excluded any use of words such as " homelessness," " destitute," and " poverty." Verbatim Report of Proceedings (VRP) at 255, 258-59. Over Pettis's objection, Dr. Phenix then testified that support and structure were very important upon release and that Pettis did not have a source of income, a place to live, or a support network.
[¶11] Dr. Fisher testified as Pettis's expert witness. On cross-examination, the State engaged in the following questioning with Dr. Fisher:
Q. Do you know what [Pettis's] housing arrangements are, if any?
A. His housing arrangements are that the social worker will find a place for him to go. They're not going to just kick out of the SCC with 20 bucks for a bus ticket.
Q. This is speculation that they will find him a place to live?
A. No, that's the plan. I don't think that--I mean we know that if he were to be released after this trial, he has to stay in the SCC for a minimum of 30 days for the community notification process to happen.
So I--I think that's enough time to obtain his [supplemental security income] for disability, get him hooked up with medical insurance providers, and find a place to live with the assistance of the social worker.
VRP at 1055-56 (emphasis added). The State began to impeach Fisher on his understanding of the sexually violent predator act, and Pettis objected.
[¶12] Outside the presence of the jury, Pettis's attorneys told the trial court that Dr. Fisher was " testifying based on discussions he's had with us," during which the attorneys appear to have told Fisher that SVPs remained in custody for 30 days after release. After hearing argument from both [188 Wn.App. 204] parties about whether the court should permit the State to continue to cross-examine Fisher about the law, the court concluded, " I'm going to instruct the jury that Dr. Fisher's last comments on stating what the law is was inaccurate, to disregard it." VRP at 1065. Then, the trial court instructed the jury as follows:
Okay. I'm going to give you an instruction. As you heard throughout this trial and particularly at the beginning, there will be times when the Court's going to instruct you on the law. At the conclusion of this trial, I'm going to give you some additional instruction on the law. At this point, one comment I have to make is Dr. Fisher's last statements about what the law was in Washington and the housing, you are to disregard. It was not accurate. It wa--and disregard it. You may move on.
VRP at 1065-66. Pettis did not object. On redirect examination, Pettis's attorneys did not question Fisher further about Pettis's release plans.
[¶13] The jury answered yes to the question: " Has the State proved beyond a reasonable doubt that Brent W. Pettis continues to be a sexually-violent predator?" VRP at 1294. Accordingly, the trial court entered an order committing Pettis to the SCC. Pettis appeals.
[¶14] Pettis argues that the trial court erred by allowing the State's expert witness to testify based on the SRA-FV tool, because it was a novel risk assessment that did not meet the ...