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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON -c•-or- Map x>'-artt ChM =>° In the Matter of the Detention of: ) ) No. 72306-5-I CALVIN MALONE, ) to< ) DIVISION ONE Appellant. ) ) UNPUBLISHED OPINION ) ) ) FILED: May 30, 2017 ) APPELWICK, J. — Malone appeals his order of commitment after a jury found
that he is a sexually violent predator. He challenges the admission of an expert's
diagnosis of other specified paraphilic disorder, nonconsent. Malone argues that
the trial court erred in denying a jury instruction on the possibility of a new civil
commitment petition if he is released. He contends that the prosecutor committed
misconduct during closing argument and that the trial court failed to investigate
potential juror misconduct. Malone asks that costs not be imposed if the State
prevails. We affirm.
FACTS
On September 20, 2012, the State petitioned to involuntarily commit Calvin
Malone as a sexually violent predator(SVP)under chapter 71.09 RCW. The State
alleged that in 1993, Malone was convicted of three sexually violent offenses: rape
of a child in the first degree and two counts of child molestation in the first degree. No. 72306-5-1/2
And, the State alleged that Malone suffered from pedophilia, which qualifies as a
mental abnormality for purposes of RCW 71.09.020(8).
Malone's first civil commitment trial ended in a mistrial. The jury was unable
to reach a unanimous verdict. The case proceeded to trial again in July 2014.
The State presented evidence of Malone's lengthy history of molesting
young boys. The jury watched Malone's own videotaped deposition, in which he
admitted to molesting boys for nearly his entire adult life, when not incarcerated.
In 1970, when Malone was 19, he got a job in California with the Boy Scouts of
America. There, Malone first molested a young boy, who was 13 or 14.
Malone joined the army in 1971 and was stationed in Germany. Malone
began a Boy Scout troop there, and molested six or seven of the boys in the troop.
He molested one particular boy for around two years, from the time that the boy
was about 12 to 14 years old.
In 1974, Malone moved to Portland, Oregon and started a Boy Scout troop
at an elementary school. He molested about six or seven boys there. In 1976,
Malone moved to Monterey, California and became associated with a nearby Boy
Scout troop. That year, Malone fondled a 12 year old boy in Yosemite National
Park, and the boy reported him to the rangers. But, the rangers let Malone go
when he denied the allegations. Malone moved to Alabama in 1977, where he
established another Boy Scout troop and continued molesting young boys.
Malone moved to Montana about two years later and started another Boy
Scout troop. He admitted to molesting about three boys in Montana. D.L. and T.E.
both testified that Malone was their Boy Scout troop leader in Montana in 1979.
2 No. 72306-5-1/3
D.L. was around 12 years old while T.E. was around 10 or 11. D.L. recounted
several instances when Malone touched him and made him perform oral sex on
Malone. T.E. testified that he once spent the night at Malone's house and woke
up to Malone touching his genitals. And, T.E. described his Boy Scout troop's
overnight skiing trip. Malone molested five of the boys on the trip, including T.E.
From 1981 to 1982, Malone worked at a program for delinquent youth. He
molested two boys who were around 13 years old there. Then, he became a
counselor at the Gina House, a home for troubled boys in Portland. He molested
at least seven boys there, who ranged in age from 13 to 15. The mother of one of
these boys offered to pay Malone to take her son to Europe to travel. So, from
November 1984 to September 1985, Malone traveled Europe with 13 year old
B.M., where he molested the boy. B.M.'s deposition was also read into the record.
B.M. believed that the sexual abuse was a condition of his continued freedom in
Europe. When he resisted the sexual abuse, Malone made physical threats.
Malone was first arrested on a charge of molestation in 1986. He pleaded
guilty to battery for fondling an 11 year old boy in California years earlier. Around
the same time, Malone pleaded guilty to lewd and lascivious acts for molesting a
13 year old boy. Upon his release in 1987, Malone was extradited to Oregon to
face charges related to the boys at the Gina House. He pleaded guilty to one count
of sodomy in the third degree and one count of sexual abuse in the second degree.
He was released in 1989. Malone was sent back to prison in 1990 for violating his
probation.
3 No. 72306-5-1/4
In 1991, Malone was released and came to Washington. Here, Malone
began working as a caregiver for the terminally ill. A neighbor of his client had an
11 or 12 year old son. Malone molested that boy until September 1992, when he
was arrested. He pleaded guilty to one count of rape of a child in the first degree
and two counts of child molestation in the first degree. Malone has not been in the
community since that arrest. The State filed this petition to commit Malone while
he was still incarcerated.
Dr. Amy Phenix testified on behalf of the State. Dr. Phenix diagnosed
Malone with three psychological disorders, two of which are paraphilias, or sexual
abnormalities. She diagnosed Malone with pedophilic disorder, sexually attracted
to males, nonexclusive type. Dr. Phenix relied on the Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013)(DSM-5) to form her opinion. She
testified that for pedophilia, the DSM-5 suggests that there be a period of at least
six months of recurrent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child. It generally defines
a prepubescent child as a child that is 13 years old or younger. Dr. Phenix noted
that Malone's victims often depended on the age of boys available, but he
displayed a clear sexual preference for boys from about age 11 to age 16.
Dr. Phenix also diagnosed Malone with a more general category called
other specified paraphilic disorder, which also comes from the DSM-5. She
explained that the other specified paraphilic disorder category is used when an
individual has an abnormal sexual arousal pattern over at least a six month period
and there is no other paraphilia diagnosis that describes the disorder. Dr. Phenix
4 No. 72306-5-1/5
described this diagnosis as a disorder where Malone engages in and is aroused
by sexual activity with boys who are going through puberty and just postpuberty.
She added a descriptor of nonconsent, to indicate that this arousal pattern applied
to nonconsenting victims. This was both because Malone's victims could not
legally consent and because they did not choose to willingly engage in sexual
activity with Malone.
Lastly, Dr. Phenix diagnosed Malone with opioid use disorder, because
Malone has used many substances, and heroin has caused him distress and
impairment. Dr. Phenix believed that the driving force behind Malone's sex
offending was his paraphilic disorders, but his use of substances disinhibited him
and made it easier to act on his urges.
The jury returned a verdict that the State had proved beyond a reasonable
doubt that Malone is an SVP. Accordingly, the trial court ordered Malone to be
civilly committed. Malone appeals.
DISCUSSION
Malone argues that the trial court erroneously admitted Dr. Phenix's
diagnosis of other specified paraphilic disorder, nonconsent. He asserts that this
disorder was actually a "hebephilia" diagnosis and should have been excluded
under Frvel or ER 702. Malone further contends that the trial court erred in
rejecting his requested jury instruction on the possibility of a new petition for civil
commitment if he is released. He alleges that the State committed prosecutorial
misconduct during closing argument. He argues that the court should remand for
1 Frye v. United States, 293 F. 1013(D.C. Cir. 1923).
5 No. 72306-5-1/6
an evidentiary hearing on potential juror misconduct. And, he contends that
cumulative error deprived him of a fair trial.
Under chapter 71.09 RCW, the State may civilly commit an individual who
is determined to be a sexually violent predator(SVP). In re Det. of Post, 170 Wn.2d
302, 309, 241 P.3d 1234 (2010). At an SVP determination trial, the question for
the finder of fact is whether the State has proved beyond a reasonable doubt that
the respondent is an SVP. Id.; RCW 71.09.060(1). To answer this question, the
jury must find three elements: (1) the respondent has been convicted or charged
with a crime of sexual violence, (2) the respondent suffers from a mental
abnormality or personality disorder, and (3)that the abnormality or disorder makes
the person likely to engage in predatory acts of sexual violence if not confined.
Post, 170 Wn.2d at 309-10; RCW 71.09.020(18).
I. Other Specified Paraphilic Disorder, Nonconsent Diagnosis
Malone contends that Dr. Phenix's diagnosis of "other specified paraphilic
disorder, nonconsent" was actually a diagnosis of hebephilia. Malone argues that
the trial court erred in admitting this diagnosis. First, he argues that the trial court
erred in deciding that a Frye hearing was not needed to resolve this issue. He
asserts that to the extent his trial counsel failed to request a Frye hearing, he
received ineffective assistance of counsel. Second, Malone argues that the trial
court abused its discretion in admitting this diagnosis under ER 702.
Pretrial, Malone moved to exclude evidence that Dr. Phenix diagnosed him
with other specified paraphilic disorder, nonconsent. He argued that this diagnosis
was inadmissible under ER 702 and 703. He asserted that the diagnosis was
6 No. 72306-5-1/7
unreliable, because it is not widely recognized or accepted in the scientific
community and was rejected by the DSM-5.
The trial court denied this motion. It noted that case law indicates that this
type of diagnosis is permitted. As a result, Dr. Phenix testified that she diagnosed
Malone with a disorder characterized by engaging in and being aroused by sexual
activity with boys who are pubescent and postpubescent. Malone cross-examined
Dr. Phenix extensively about this diagnosis. Counsel noted that the diagnosis
described by Dr. Phenix is generally called hebephilia or pedohebephilia, which
has been rejected for inclusion in the DSM-5. Dr. Phenix confirmed that her
diagnosis was really a hebephilia or pedohebephilia diagnosis.
Under Frye, evidence based on novel scientific procedures is admissible
only if the theory or principle has achieved general acceptance in the relevant
scientific community. In re Det. of Thorell, 149 Wn.2d 724, 754, 72 P.3d 708
(2003). The core concern is whether the evidence is based upon established
scientific methodology. Id.
ER 702 provides, "If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise." For scientific
testimony, the expert (1) must qualify as an expert, (2) the expert's opinion must
be based on a theory generally accepted in the relevant scientific community, and
(3) the testimony must be helpful to the trier of fact. State v. Cheatam, 150 Wn.2d
626, 645, 81 P.3d 830(2003).
7 No. 72306-5-1/8
We review the admissibility of evidence under Frye de novo and under ER
702 for abuse of discretion. State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024
(1999). An evidentiary error is prejudicial if, within reasonable probabilities, the
outcome of the trial would have been materially affected if the error had not
occurred. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
Here, Malone's challenge to this diagnosis was under ER 702 and 703. He
did not object on the basis of Frye. He did not request a Frye_ hearing. The trial
court ruled on this issue under ER 702 and 703. Making an ER 702 challenge
does not preserve a Frye challenge for appeal. We conclude that Malone did not
preserve for appeal the issue of whether Dr. Phenix's diagnosis satisfies Frye,. See
In re Det. of Taylor, 132 Wn. App. 827, 836, 134 P.3d 254 (2006)("When a party
fails to raise a Frye argument below, a reviewing court need not consider it on
appeal."). We decline to address the merits of this issue.
Malone asserts that his counsel's failure to request a Frye hearing
constituted ineffective assistance of counsel. To succeed on an ineffective
assistance claim, the defendant must show that counsel's conduct was deficient
and that the deficient performance resulted in prejudice. State v. Nichols, 161
Wn.2d 1, 8, 162 P.3d 1122 (2007). Courts strongly presume counsel's
representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1251 (1995). To show deficient representation, the defendant must show that the
performance fell below an objective standard of reasonableness, based on all the
circumstances. Nichols, 161 Wn.2d at 8. To show prejudice, the defendant must
8 No. 72306-5-1/9
show that there is a reasonable probability that, but for counsel's errors, the
outcome of the proceeding would have been different. Id.
Malone cannot show that he was prejudiced by the failure to request a Frye
hearing. Dr. Phenix's pedophilia diagnosis provided an independent basis to
sustain the SVP finding. Malone has not challenged that diagnosis. Dr. Phenix
testified that she diagnosed Malone with three psychological disorders: pedophilic
disorder, sexually attracted to males, nonexclusive type; other specified paraphilic
disorder, nonconsent; and opioid use disorder. She found that Malone "easily" fit
the criteria for pedophilia. While many of Malone's victims were over the age of
13, he also had victims who were 13 and under, falling under the definition of
prepubescent. Two of those victims testified at trial, and the deposition of a third
was read into evidence. Malone admitted to molesting boys who were 13 and
under in his videotaped deposition, which the jury watched at trial.
This case is analogous to In re Personal Restraint of Meirhofer, 182 Wn.2d
632, 343 P.3d 731 (2015). Meirhofer was found to be an SVP in 2000. jçj. at 637.
At his civil commitment trial, the State presented evidence that he suffered from
pedophilia, paraphilia not otherwise specified (NOS) nonconsent, a personality
disorder with antisocial features, and alcohol and amphetamine dependence. Id.
In the 2010 report on Meirhofer's condition, the State's expert stated that there was
insufficient evidence to diagnose Meirhofer with pedophilia. Id. at 639. The expert
diagnosed Meirhofer with paraphilia NOS hebephilia, paraphilia NOS nonconsent,
and personality disorder NOS with antisocial and borderline traits. Id. at 640. The
9 No. 72306-5-1/10
trial court found that the State had met its prima facie burden of showing that
Meirhofer continued to meet the definition of an SVP. Id. at 642.
On appeal, Meirhofer argued that because the State's expert did not
diagnose him with pedophilia, the State could not show that he continued to meet
the definition of an SVP. Id. at 643. Meirhofer contended that hebephilia could not
serve as a qualifying mental abnormality or personality disorder. Id. at 644. But,
the Supreme Court declined to reach this issue. Id. at 645. It noted, "But
regardless of whether hebephilia is an accepted diagnosis in the relevant scientific
community (a question we need not decide), the State presented sufficient prima
facie evidence that Meirhofer has consistently suffered from paraphilia NOS
nonconsent and a personality disorder." Id. These diagnoses showed that
Meirhofer suffers from a mental abnormality or personality disorder, so the State
met its prima facie burden. Id.
While the procedural posture of this case differs from Meirhofer, we
consider it instructive. Here, the State presented abundant evidence that Malone
suffered from pedophilia, which is a basis to make an SVP finding. Malone was
not prejudiced by counsel's failure to request a Frye hearing, because even without
Dr. Phenix's other specified paraphilic disorder, nonconsent diagnosis, the jury
could have found that Malone was an SVP.
Yet, Malone argues that the jury would not have done so. He contends that
the primary difference between his first SVP trial, where the jury could not reach a
verdict, and the second, where it did, was the other specified paraphilic disorder,
nonconsent diagnosis. Malone relies on Post to support this argument. Post's first
10 No. 72306-5-1/11
SVP trial ended in a mistrial, because the jury was unable to reach a verdict. 170
Wn.2d at 306. At the second trial, the State introduced evidence about the
treatment that would be available to Post if he were committed. Id. at 306-07. The
Supreme Court held that the trial court abused its discretion by permitting the State
to present this evidence. Id. at 314. It further held the admission of this evidence
was not harmless error, because there was a reasonable probability that it affected
the outcome. Id. at 314-15. The court found that the fact that the jury deadlocked
in the first trial, but found that Post was an SVP at the second trial, where this
evidence was presented, was persuasive evidence that the evidence affected the
outcome. Id. It also noted that this evidence was not merely presented in passing,
but was thorough, systematic, and repeated. Id. at 315. And, the court pointed to
the fact that the jury submitted multiple questions to witnesses about treatment
options that would be available to Post if he were committed. Id.
Here, Dr. Phenix's diagnosis of other specified paraphilic disorder,
nonconsent was not the only difference between the trials. The jury in the first trial,
when asked why it could not reach a verdict, focused on Malone's release plan. In
response, during the second trial, the State spent greater effort to show that
Malone's proposed release plan was inadequate. Also, the experts were different.
Their credentials and experience was different, and their diagnoses were different.
Dr. Matthew Logan testified at the first trial. He diagnosed Malone with
nonexclusive pedophilia, polysubstance dependence, and adult antisocial
behavior. Dr. Phenix's diagnosis was pedophilic disorder, sexually attracted to
males, non-exclusive type, other specified paraphilic disorder, nonconsent; and
11 No. 72306-5-1/12
opioid use disorder. Which of these differences was significant to the jury's
decision is not discernable from the record.
Unlike in Post, we cannot say that the second jury would not have found
Malone to be an SVP but for Dr. Phenix's additional diagnosis. Malone has not
established that any error in admitting this evidence was prejudicial. Therefore,
we hold that counsel's failure to request a Frye hearing did not constitute
ineffective assistance.
Any error in admitting this evidence was not prejudicial. Because we
conclude that admission of this diagnosis did not prejudice Malone, we need not
decide whether the court abused its discretion in admitting it under ER 702.
II. Jury Instruction
Malone asserts that the trial court erred in refusing to give his requested
jury instruction regarding the State's ability to file a new petition to civilly commit
Malone if he commits a recent overt act upon his release. Malone contends that
the evidence supported this instruction.
The standard of review on this issue depends on whether the trial court's
refusal to give the jury instruction was based on law or fact. State v. Walker, 136
Wn.2d 767, 771, 966 P.2d 863 (1998). This court reviews a denial of a jury
instruction for abuse of discretion if based on a factual dispute, but de novo if based
on a ruling of law. j.çj.
The trial court has discretion in determining how many instructions are
necessary to present a party's theories. State v. Long, 19 Wn. App. 900, 902, 578
P.2d 871 (1978). Jury instructions are sufficient if: "(1) they permit the party to
12 No. 72306-5-1/13
argue his or her theory of the case;(2)they are not misleading, and (3) when read
as a whole they properly inform the trier of the fact on the applicable law." Id.
Malone proposed a jury instruction that provided in part:
Placement conditions that do exist in the community is the fact the state may file a new Petition charging Calvin Malone as a sexually violent predator if it learns he has committed a 'recent overt act.'
A 'recent overt act' means any act, threat, or combination thereof that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act or behaviors.
The trial court denied this proposed language. Malone asserts that this was an
error of law, because the instruction was consistent with Washington case law. He
points to Post as support for this argument. In Post, the trial court prohibited Post
from introducing evidence that he could be subject to a new SVP commitment
petition if he committed a recent overt act after being released into the community.
170 Wn.2d_at 307.
On appeal, the Supreme Court ruled that such evidence is relevant and
does not violate RCW 71.09.060(1). Id. at 317. It noted that if released, Post
would be subject to RCW 71.09.030(1)(e), which permits the State to bring a
petition to civilly commit a person who has previously been convicted of a sexually
violent offense and has committed a recent overt act since being released. Id. at
316. The court acknowledged, "Post's knowledge of the consequences for
engaging in such conduct may well serve as a deterrent to such conduct and,
therefore, has some tendency to diminish the likelihood of his committing another
13 No. 72306-5-1/14
predatory act of sexual violence." Id. at 316-17. Because Post's likelihood of
committing another predatory act of sexual violence was an element before the
jury, this evidence was relevant to determining whether Post was an SVP. Id. at
317. But, the court declined to answer whether the evidence was admissible,
noting that ER 403 issues of unfair prejudice and confusion are best addressed by
the trial court. Id.
The trial court does not abuse its discretion in refusing to give a jury
instruction that is unsupported by substantial evidence.2 See State v. Picard, 90
Wn. App. 890, 902, 954 P.2d 336 (1998). Here, evidence that the possibility of a
new petition for civil commitment would serve as a condition on Malone's release
could have been relevant. But, Malone did not present any such evidence. During
his testimony, Malone did not suggest that he knows about the consequences of
committing a recent overt act. He did not suggest that he would be less likely to
reoffend because of this possibility. In fact, Malone presented no evidence of the
possibility of a new petition for civil commitment.
The only evidence of the possibility of a new petition for civil commitment
came up during the State's rebuttal case. The State called Christopher Ervin, a
community corrections officer. Ervin testified about the conditions that would be
imposed on Malone if he were released. On cross-examination, Malone elicited
2We review the court's denial of Malone's requested instruction for an abuse of discretion. In denying the instruction, the trial court focused on Post and the evidence that arose during trial. Because the court denied the instruction based on a factual dispute, not an interpretation of law, abuse of discretion is the proper standard.
14 No. 72306-5-1/15
information about recent overt acts. Ervin stated that he was familiar with the
concept. Malone continued,
And a recent overt act means that someone who is a sex offender, if someone commits an act or threat or combination thereof that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in that act or behavior, that if that happens someone can be confined, correct?
Ervin responded, "It depends." Malone clarified, asking if a petition for civil
commitment could be filed, and Ervin responded that potentially, a petition could
be filed. Malone summarized:"So even if someone is released for example, if Mr.
Malone were released after this trial and he went, for example, to the Lambert
House[an organization for lesbian, gay, bisexual, and transgender youth], he could
potentially have a new petition filed on him, correct?" Ervin answered yes.
Without proffered evidence that Malone knew of this provision, understood
what it meant, and believed that it would make him less likely to reoffend, the trial
court could not consider admitting evidence on this issue. Because whether a new
petition for civil commitment would make Malone less likely to reoffend was not
factually at issue, an instruction on the law was not necessary. The trial court did
not abuse its discretion by refusing to give the instruction.
Moreover, Malone was not prevented from arguing to the jury that the
possibility of a new petition for civil commitment would function as a condition upon
15 No. 72306-5-1/16
his release. During closing argument, Malone's counsel emphasized the
conditions to which Malone would be subject upon his release. Counsel said,
So what we know is that he will have these things for two years, but for the rest of his life he will be subject to the recent overt act. And Mr. Ervin explained to you a little bit what that is. He said you don't even have to attempt a crime. If you are in the neighborhood and loitering around the Lambert House, that's a recent overt act. He'd go back.
And, the jury instructions that were given provided that the jury could consider
placement conditions or voluntary treatment options that would exist if Malone
were unconditionally released from detention. Thus, the argument was not
inconsistent with the jury instructions, and counsel was not prevented in making
this argument to the jury. We conclude that the trial court did not err in refusing to
give the instruction on the possibility of a new civil commitment petition if he were
released.
III. Prosecutorial Misconduct
Malone argues that the State purposefully disparaged the defense, thereby
depriving him of a fair trial. He contends that the Assistant Attorney General(AAG)
called defense counsel's integrity into question during closing argument.
Prosecutorial misconduct warrants reversal where actual misconduct
occurs and there is a substantial likelihood that the misconduct affected the verdict.
In re Det. of Law, 146 Wn. App. 28, 50, 204 P.3d 230(2008). The defendant bears
the burden of proving both elements. Id. We view alleged prosecutorial
misconduct in light of the entire argument, the issues in the case, the evidence
addressed in the argument, and the jury instructions. Id. When the defendant did
16 No. 72306-5-1/17
not object to the argument at trial, we will not reverse a verdict on the basis of
prosecutorial misconduct unless the prosecutor's conduct was so flagrant and ill-
intentioned that no curative instruction could have removed the prejudice. Id. at
50-51.
The State's rebuttal closing argument focused almost entirely on
statements made during Malone's closing argument. The State began,
So Mr. Malone's presentation of evidence and his closing argument consist of little more than misdirections, idle threats, half truths, and lots of evidence of selective listening as to what happened during the last two and a half weeks. And until I heard the argument I thought it was just limited to Mr. Malone and [Malone's expert] that those two things were true. But let's just talk about a little bit of the selective listening and selective readings that was just described for you for the last hour and 20 minutes.
The AAG proceeded to identify certain aspects of Malone's closing argument that
misdirected the jury. First, the AAG pointed to counsel's argument that Dr. Phenix
admitted to using unstructured methodology during her testimony. The AAG said,
"That is objectively not true" and "that is one piece of selective listening." Then,
the AAG pointed to counsel's comments that Dr. Phenix did not interview Malone
in person. The State called this "misdirection." Next, the AAG pointed to counsel's
chart about the possibility of re-offending, and called that chart "misdirection." The
AAG said that the data was "misrepresented" on the slides that counsel used. The
AAG also addressed counsel's comment about Malone's jail time, saying,
"Something that was also objectively false is the slap on the wrist. So they said
that the only time he's ever been to jail was a year in Oregon. That is not what
happened." The AAG commented that the "last one that I am bothering to talk
17 No. 72306-5-1/18
about is how these young boys in prison looked," calling that "another piece of
misdirection."
Then, in wrapping up closing argument, the AAG addressed Malone's
theme of the case. Malone's counsel began closing with a song: "I don't want the
world to see me because I don't think that they'd understand. When everything
has broken I just want you to know who I am." Defense counsel suggested that
this song was an appropriate anthem for Malone's case and his life, because he
has done terrible things and is afraid people will not understand who he is today.
The AAG ended her rebuttal closing argument by suggesting a more appropriate
anthem for this case, a quote:
It says, one of the saddest lessons of history is this. If we've been bamboozled long enough we tend to reject any evidence of the bamboozle. We're no longer interested in finding out the truth. The bamboozle has captured us. It's simply too painful to acknowledge even to ourselves that we've been had. Once you give a charlatan power over you, you almost never get it back.
Malone did not object to any of the above statements during closing
argument.3 Therefore, we must decide whether the comments were improper and
if so, whether they were so flagrant and ill-intentioned that an instruction could not
have cured the prejudice. State v. Neorete, 72 Wn. App. 62, 67, 863 P.2d 137
(1993).
3 Malone did make one objection on the basis of prosecutorial misconduct. But, this was to an entirely different portion of the State's rebuttal closing argument, and the objection was on the basis that the State was stating things that were not true. This objection was not sufficient to preserve the issues discussed in Malone's brief for appeal.
18 No. 72306-5-1/19
Washington courts have previously recognized that the prosecutor severely
damages a defendant's opportunity to present his or her case by making
statements that impugn the role or integrity of defense counsel. State v. Lindsay,
180 Wn.2d 423,431-32, 326 P.3d 125(2014). In Lindsay, the Supreme Court held
that the prosecutor committed misconduct by responding to defense counsel's
closing argument: "'This is a crock. What you've been pitched for the last four
hours is a crock.' " Id. at 433. The court reasoned that the term "crock" implies
deception and dishonesty. Id.
Similarly, in State v. Thorgerson, 172 Wn.2d 438, 450-51, 258 P.3d 43
(2011), the prosecutor's theme during closing argument was that the defense
engaged in "sleight of hand." The prosecutor argued, " 'The entire defense is
sl[e]ight of hand. Look over here, but don't pay attention to there.' " Id. at 451
(alteration in original). And, the prosecutor used words like "bogus" and
"desperation" in describing the defense. Id. at 450. The Supreme Court reasoned
that insofar as these comments focused on the evidence before the jury, there was
no misconduct. Id. at 451. But, it determined that the prosecutor went too far by
disparaging defense counsel's integrity, suggesting that he presented a bogus,
sleight of hand case. Id. at 451-52. These phrases implied wrongful deception or
even dishonesty. Id. at 452. Even so, the court concluded that the statements
were not prejudicial, because they essentially told the jury to disregard what the
prosecutor believed to be irrelevant evidence, and could not be construed as
having had a significant likelihood of altering the jury's verdict. Id.
19 No. 72306-5-1/20
Like in Lindsay and Thorgerson, the AAG's comments here suggested that
defense counsel herself was dishonest. The AAG's theme of rebuttal was that
defense counsel's closing argument was comprised of "selective listening" and
"misdirection." After listing multiple examples of defense counsel's
misrepresentations, the AAG ended with a quote about being bamboozled. Rather
than simply comparing and contrasting Malone's interpretation of the evidence with
the State's, the AAG repeatedly suggested that defense counsel was misdirecting
the jury and misrepresenting the evidence. This called counsel's integrity into
question, and was likely improper.
However, these statements were not prejudicial. The AAG's "misdirection"
and "selective listening" comments do not rise to the same level as calling defense
counsel's argument a "crock" or "bogus." These comments did not suggest that
counsel's entire case was a sham. And, given the wealth of evidence against
Malone—Dr. Phenix's multiple diagnoses, Malone's own admitted history of child
molestation, and the testimony of several of his victims, we cannot conclude that
these comments affected the verdict. Had Malone objected, an instruction could
have cured any potential prejudice. We conclude that Malone is not entitled to a
new trial on the basis of prosecutorial misconduct.
IV. Juror Misconduct
Malone contends that the trial court failed to properly investigate allegations
of juror misconduct that came to light after his trial. He points to three alleged
instances of juror misconduct: a sleeping juror, jurors who announced that they
had made up their minds on the third day of trial, and deliberations that proceeded
20 No. 72306-5-1/21
without all jurors present. Malone asks us to remand for an evidentiary hearing to
determine the extent and prejudice of this potential misconduct.
A juror, Shirley Mukhar, responded to the jury exit questionnaire with
comments that she believed would make the jury process better. These comments
included "NO SLEEPING DURING TESTIMONY or maybe the question could be
asked in Voir Dire if anyone has a problem staying awake during the day." She
stated that a particular juror worked nights and "had trouble staying awake."
Mukhar mentioned that the same juror admitted that he had done outside research
during the trial. She said that a couple of the jurors commented that their minds
were made up by the third day of trial. And, she stated that a juror had to use the
bathroom in the middle of a discussion during deliberation, but the discussion
continued.
Both Malone and the State submitted proposed questions to ask Mukhar
about her questionnaire. Malone's questions focused on several topics: the other
juror's outside research, jurors' comments that their minds were made up, and jury
deliberations when some jurors were absent. Malone later submitted
supplemental proposed questions on the jurors' knowledge of Malone's book. The
trial court ruled on which series of questions would be appropriate. It ruled that
Malone's questions about whether jurors did outside research were appropriate,
but the other lines of questioning were not. At a hearing, both Mukhar and Thomas
Reilly, the juror Mukhar identified as having conducted outside research, testified.
21 No. 72306-5-1/22
A. Sleeping Juror
Malone asserts that his right to a fair trial might have been compromised by
a sleeping juror. He argues that Mukhar's allegation that a juror was having trouble
staying awake obligated the trial court to investigate this allegation.
Unlike the other instances of potential juror misconduct, Malone never
raised concern about a possible sleeping juror in the court below. This issue was
not included in Malone's proposed questions for Mukhar or his motion for a new
trial. Because Malone raises this issue for the first time on appeal, we need not
address it. See RAP 2.51(a).
Moreover, the cases upon which Malone relies do not support his position.
He cites State v. Jorden, 103 Wn. App. 221, 11 P.3d 866(2000) and United States
v. Barrett, 703 F.2d 1076 (9th Cir. 1983). In Jorden, the State moved multiple
times to disqualify a juror who was sleeping during trial. 103 Wn. App. at 224-25.
Ultimately, the court excused the juror. Id. at 226. In doing so, the judge relied on
his own observations of the juror as yawning, dozing, and sitting with her eyes
closed during witness testimony. Id. On appeal, Jorden argued that the trial court
was required to question the juror to determine if misconduct had occurred. Id.
In Barrett, a juror asked to be removed prior to deliberations, because he
had been sleeping during the trial. 703 F.2d at 1082. Barrett moved to dismiss
the juror, but the trial court denied the motion. Id. The jury found Barrett guilty.
Id. Barrett then sought to interview the juror, but the trial court denied the motion,
stating that there was no juror asleep during trial. Id. at 1082-83. The Ninth Circuit
held that the trial court abused its discretion by failing to conduct a hearing or
22 No. 72306-5-1/23
investigate the potential sleeping juror issue. Id. at 1083. It remanded for a hearing
to determine whether the juror was sleeping, and if so, whether Barrett was
prejudiced. Id.
This case differs significantly from both Jorden and Barrett. In those cases,
the parties and the court were aware of the potential sleeping juror before a verdict
was entered. Jorden, 103 Wn. App. at 224-25; Barrett, 703 F.2d at 1082. Thus,
the court had an obligation to inquire into the possibility that a juror was sleeping.
We decline to extend Jorden and Barrett to apply to this kind of allegation when it
is first raised after a verdict.
B. Jurors Absent During Deliberations
Malone contends that jury deliberations took place when fewer than 12
jurors were present. He points to Mukhar's comment in the exit questionnaire that
a juror had to use the bathroom during deliberations. In response, the State
contends that the trial court was not authorized to inquire into any possible 11 juror
deliberations. It suggests that such internal processes inhere in the verdict.
Under RCW 71.09.060(1), when a jury determines that a person is a
sexually violent predator, the verdict must be unanimous. Even though SVP
proceedings are civil, principles regarding the right to unanimous jury verdicts in
criminal proceedings apply equally. In re Det. of Pouncv, 144 Wn. App. 609, 617,
184 P.3d 651 (2008), aff'd, 168 Wn.2d 382, 229 P.3d 678 (2010); In re Det. of
Halgren, 156 Wn.2d 795, 807-09, 132 P.3d 714 (2006). A unanimous verdict
means that the "12 jurors must reach their consensus through deliberations which
23 No. 72306-5-1/24
are the common experience of all of them." State v. Fisch, 22 Wn. App. 381, 383,
588 P.2d 1389 (1979).
A jury's decision is contained entirely within the verdict. State v. Young,48
Wn. App. 406, 414, 739 P.2d 1170 (1987). Thus, courts must not impeach a
verdict based on the details of the jury's deliberations. Long v. Brusco Tug &
Barge, Inc., 185 Wn.2d 127, 131, 368 P.3d 478 (2016). Facts connected to the
juror's motive, intent, or belief inhere in the verdict. Id. So, a court cannot consider
facts about the mental processes through which individual jurors reached the
verdict, the effect of the evidence on the jurors, or the weight that particular jurors
may have given to particular evidence. Id. at 131-32.
Malone relies on State v. Lamar, 180 Wn.2d 576, 327 P.3d 46 (2014) to
argue that his right to a unanimous verdict was violated where deliberations took
place without all 12 jurors present. In Lamar,the jury began deliberating on Friday
afternoon. Id. at 580. On Monday, the court replaced a juror who had become ill.
Id. The court instructed the jury to spend some time reviewing the discussions
from Friday with the alternate. Id. The Supreme Court held that the trial court
erred in affirmatively instructing the jury not to revisit and deliberate together
anything discussed on Friday. Id. at 587. In reaching this conclusion, the court
specifically noted, "Of course we do not know what actually occurred on Friday
and so do not know what was addressed. And a court must not intrude into the
jury deliberations to determine what the jury has decided or why, or how the jury
viewed the evidence." Id.
24 No. 72306-5-1/25
Here, Malone does not contend that erroneous jury instructions invited the
jury to reach a verdict that was not unanimous. Instead, he argues that the trial
court should have looked into the internal processes of the jury to examine how
many jurors were in the room at what time, when jury deliberations occurred, and
whether deliberations continued during bathroom breaks. Lamar does not permit
this type of inquiry. In fact, it explicitly prohibits it. Therefore, we conclude that an
evidentiary hearing on this issue is not warranted.
C. Jurors Made up Their Minds
Malone further argues that the trial court erroneously refused to investigate
Mukhar's comments that a couple of jurors had made up their minds by the third
day of trial. Malone contends that these jurors demonstrated that they could not
follow the court's instructions. He asserts that this error does not inhere in the
verdict.
This court has previously addressed the issue of whether courts may
consider the time that jurors made up their minds. State v. Hatlev, 41 Wn. App.
789,793,706 P.2d 1083(1985). Hatley moved for a new trial after a juror's alleged
misconduct came to light. Id. at 792. The trial court held an evidentiary hearing.
Id. At the hearing, the juror admitted that he had talked to an acquaintance about
the trial during the second week of the three week trial. Id. He denied stating an
opinion about Hatley's guilt to that acquaintance, but admitted that he made up his
mind before the jury began to deliberate. Id. The trial court found that the juror
made his final decision about Hatley's guilt before the jury deliberated, and that
this misconduct prejudiced Hatley's right to a fair trial. Id.
25 No. 72306-5-1/26
The Court of Appeals reversed the order granting Hatley a new trial. Id. at
795. It determined that the trial court improperly considered the juror's testimony
as well of that of the juror's acquaintance, because the facts in this testimony were
linked to the juror's motive, intent, or belief. Id. at 794. Such evidence of jurors'
mental processes, including their expressed opinions and when they made up their
minds, inheres in the verdict. Id. at 793-94. And, the court noted that even if the
juror made up his mind before deliberations began, this misconduct was not
prejudicial. Id. at 794. It reasoned that if a new trial were required every time a
juror revealed his private opinion during trial, it would open the door to widespread
interrogation of jurors after trial. Id. at 795.
Malone contends that the facts alleged here did not inhere in the verdict,
because if jurors announced their private opinions in front of the rest of the jury,
they indicated their inability to follow instructions. But, this argument is at odds
with Hatley. Evidence of when any particular juror made up their mind or
expressed their opinions to the rest of the jury is linked to that juror's motive, intent,
or belief. Id. at 793-94. It inheres in the verdict. Id. We conclude that the trial
court did not err in refusing to investigate this alleged juror misconduct.
V. Cumulative Error
Malone asserts that the alleged errors resulted in cumulative error. The
cumulative error doctrine applies where multiple trial errors combine to deny the
accused a fair trial, even if the errors individually would not warrant reversal. In re
Det. of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). We conclude that
cumulative error did not deprive Malone of a fair trial.
26 No. 72306-5-1/27
VI. Appellate Costs
Lastly, Malone asserts that appellate costs should not be imposed. He
contends that the reasoning of State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612,
review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016), should apply here. The
State responds that since SVP proceedings are civil, not criminal, Sinclair does not
apply.
In Sinclair, this court recognized that RCW 10.73.160(1) and RAP 14.2 give
the appellate court discretion to deny the State's request for appellate costs when
a criminal defendant is unsuccessful on appeal. 192 Wn. App. at 385-86, 388.
The court exercised its discretion to rule that an award of appellate costs was not
appropriate where the criminal defendant was found to be indigent for purposes of
appeal, and there was no realistic possibility that his financial condition would
improve. Id. at 393.
Sinclair was limited to the context of an indigent criminal defendant. It relied
largely on RCW 10.73.160(1), which provides that the Court of Appeals may
require an adult offender convicted of an offense to pay appellate costs. Id. at 385,
388.
An SVP proceeding is a civil proceeding, not a criminal trial. See In re
Det. of Strand, 167 Wn.2d 180, 191, 217 P.3d 1159 (2009). Malone appeals his
order of commitment, not a conviction. We decline to extend the logic of Sinclair
27 No. 72306-5-1/28
to civil proceedings involving indigent individuals. An award of appellate costs to
the State is appropriate.
We affirm.
WE CONCUR: