In re the Detention of Kistenmacher

178 P.3d 949, 163 Wash. 2d 166

• Court: Washington Supreme Court
• Decided: February 21, 2008
• Docket: No. 79064-7
• Status: Published

Opinions

f 1

The Washington State Legislature has created a special civil commitment system for sexually violent predators, chapter 71.09 RCW. “At all stages of the proceedings,” those facing civil commitment as sexually violent predators are “entitled to the assistance of counsel.” RCW 71.09.050(1). We must decide whether a statutorily mandated precommitment psychological examination is a “proceeding” under this chapter. We hold that it is. We also hold that the error in the case before us was harmless and affirm the Court of Appeals on different grounds.

Chambers, J.

FACTS

¶2 In 1996, Alfred Kistenmacher pleaded guilty to two counts of first degree rape of a child. His victims were two young sisters who lived next door. The older child was between eight and nine, the younger child was seven years old. Kistenmacher had been abusing the older girl for some months. This abuse came to light after he digitally raped the younger girl.

¶3 While in prison, Kistenmacher reported that he had had a long history of sexual contact with children, starting from when he was a young child himself. His victims were mostly girls between the ages of 5 and 17. Kistenmacher also disclosed acts of exhibitionism, voyeurism, and masturbation with stolen underwear. Before Kistenmacher finished serving his sentence, the State filed a sexually violent predator petition against him.

¶4 Kistenmacher stipulated there was probable cause to find he was a sexually violent predator, and he was transferred to the Special Commitment Center (SCC) on McNeil Island. During an intake interview, Kistenmacher was given and signed an apparently standardized form titled “Notice of Evaluation as a Sexually Violent Predator.” Clerk’s Papers at 65. Among other things, this form contained a ‘Waiver of Attorney Presence.” Kistenmacher checked the box next to the option on the form that said, “I request that my attorney be present during the clinical interview(s) for commitment as a Sexually Violent Predator.” Id.

¶5 About two weeks later, Kistenmacher was evaluated by Dr. Harry Goldberg, PhD, a California forensic psychologist. Kistenmacher’s counsel was not present. The record suggests counsel was not notified of the examination. It also suggests that Dr. Goldberg was not aware that counsel’s presence had been requested. Before the examination, Dr. Goldberg gave Kistenmacher his own standardized consent form that did not mention any right to counsel. Kistenmacher did not ask for his lawyer. Instead, he signed the form and proceeded with the interview. Dr, Goldberg later testified that the presence of a third person would have interfered with his evaluation.

¶[6 Prior to the examination, Dr. Goldberg had reviewed Kistenmacher’s records. Among other things, these records detailed Kistenmacher’s long history of nonadjudicated acts of sexual misconduct. During the clinical examination, Kistenmacher confirmed all but two of these prior acts. After the examination, Dr. Goldberg diagnosed Kistenmacher with pedophilia and exhibitionism.

¶7 About six months later and about three weeks before trial, the State’s attorney deposed Kistenmacher. Kistenmacher’s counsel was present and the deposition was videotaped. Without objection from his counsel, Kistenmacher again detailed multiple incidents of sexual contact with children, rape, frottage, exhibitionism, and voyeurism. That videotaped deposition was played for the jury without objection.¹

¶8 At trial, Kistenmacher unsuccessfully moved to suppress the testimony of Dr. Goldberg. The trial judge concluded that Kistenmacher did not have a right to counsel based on either the sexually violent predator statute or the constitution and that an erroneous form could not create such a right by estoppel. The trial court explicitly found that if a right existed, Kistenmacher did not waive it. The trial judge also found that Kistenmacher was not prejudiced by the denial of the motion to suppress Dr. Goldberg’s testimony. Kistenmacher assigned error to that ruling.

¶9 Dr. Goldberg did testify about Kistenmacher’s history and about his diagnosis and likelihood of reoffending. The record is not crystal clear as to what Dr. Goldberg based his opinions on. When asked the basis for his opinion, his answer suggests he was describing what he usually reviews in similar cases rather than what he specifically considered in Kistenmacher’s case. Dr. Goldberg testified that he relied upon such things as records from prison treatment providers and legal records such as police reports, probation officer reports, and other materials provided by the State. Dr. Goldberg estimated he reviewed between 1,200 and 1,500 pages of materials. Dr. Goldberg also relied upon two actuarial tests (the Static 99 and the MnSOST-R (Minnesota Sex Offender Screening Tool))² and his own clinical examination in making his diagnosis.

¶10 Much of Dr. Goldberg’s testimony recapitulated Kistenmacher’s own videotaped deposition that was played for the jury. Dr. Goldberg also testified that Kistenmacher was “likely to reoffend in a sexual predatory manner violently.” 3 Verbatim Report of Proceedings (VRP) at 95. Kistenmacher offered the testimony of his own clinical psychologist, Dr. Theodore Donaldson. Dr. Donaldson had also examined Kistenmacher and concluded (“with some degree of uncertainty”) that he suffered from a mental abnormality, but that he was not dangerous because of his age, 63. 4 VRP at 77-78, 84.

f 11 The jury concluded that Kistenmacher was a sexually violent predator. The Court of Appeals affirmed. In re Det. of Kistenmacher, 134 Wn. App. 72, 138 P.3d 648 (2006). We granted review. In re Det. of Kistenmacher, 159 Wn.2d 1019, 157 P.3d 404 (2007).

RIGHT TO COUNSEL

¶12 We turn first to whether there is a statutory right to counsel at sexually violent predator forensic examinations under chapter 71.09 RCW.³ This is a question of law and our review is de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The primary goal of statutory interpretation is the determination of legislative intent. In re Pers. Restraint of Young, 122 Wn.2d 1, 48, 857 P.2d 989 (1993) (citing Anderson v. O’Brien, 84 Wn.2d 64, 67, 524 P.2d 390 (1974)). In most relevant part, chapter 71.09 RCW says:

At all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to the assistance of counsel.

RCW 71.09.050(1). The chapter’s definition section does not define “proceedings.” See RCW 71.09.020. Eight years ago, this court examined RCW 71.09.050(1) in the context of the postcommitment annual examinations that SCC residents undergo. We acknowledged:

This language, by referring to “all stages of the proceedings,” rather than just to “proceedings,” seems broad enough to include the annual evaluations.

But the Legislature created the right to counsel only as to all stages leading to the initial trial of whether the person is a sexually violent predator, and not to further proceedings.

In re Det. of Petersen, 138 Wn.2d 70, 92, 980 P.2d 1204 (1999) (emphasis added). We noted in Petersen that not only does the chapter create a right to counsel for the proceedings leading up to the commitment trial, it also grants a right to counsel if a committed person petitions for release or for less restrictive alternatives. Id.; see also RCW 71.09.090(2). We concluded that the second grant of the right to counsel would be surplusage if the right to counsel granted by RCW 71.09.050 continued through every statutory stage. Petersen, 138 Wn.2d at 92.

¶13 Our language in Petersen supports, but does not compel, a conclusion that the statutory right to counsel extends to the pretrial examination. Again, the statute creates a right of counsel at “all stages of the proceedings.” RCW 71.09.050(1). There are only three specific events set forth in the chapter that the legislature might have explicitly considered to be “proceedings.” First, the probable cause hearing. RCW 71.09.040(2). Second, the statutorily mandated examination. RCW 71.09.040(4). Finally, the trial itself. RCW 71.09.050. It seems unlikely to us that the legislature would have used the broad term “proceedings” if it meant to exclude the statutorily mandated examination mentioned in the very same statute.

¶14 The State directs our attention to the different treatment of psychological examinations in other legal arenas. In the general civil commitment statutory schema, the legislature has explicitly created a right for the presence of an attorney (or other advocate) during the admitting psychological examination. Former RCW 71.05.150(l)(c) (1998) (“An attorney ... shall be permitted to be present.”). Chapter 71.09 RCW is not nearly so explicit, and the State argues that this is evidence that no statutory right exists.

¶15 Turning to other rights-depriving laws, by statute, parents facing a child dependency or termination action are entitled to counsel at all stages of proceedings. RCW 13-.34.090. In such cases, a court may order a psychological examination of the child’s parents. See, e.g., In re Dependency of J.R.U.-S., 126 Wn. App. 786, 110 P.3d 773 (2005). The Court of Appeals held that there was no statutory (or constitutional) right to counsel’s presence at a court ordered psychological examination. Id. at 794, 802.

¶16 The Court of Appeals in J.R.U.-S. based its conclusion less on the statutory text and more on its evaluation of the overarching dependency scheme. Parents facing termination or restriction of their parental rights are often ordered by the court to do many things. Id. at 802. The Court of Appeals concluded that if every court ordered act was a proceeding, it would lead to absurd results (not to mention a huge drain on state funded dependency counsel). Id.

f 17 The statutory schemes governing child dependency actions and sexually violent predator proceedings are quite different from one another. Compare ch. 13.34 RCW with ch. 71.09 RCW; cf. State v. Hutchinson, 111 Wn.2d 872, 884, 766 P.2d 447 (1989). For one thing, those subject to commitment as sexually violent predators are statutorily required to undergo a psychological examination. RCW 71-.09.040(4). Parents facing possible termination of their parental rights are not. See ch. 13.34 RCW. More importantly, the chapters serve different goals. Chapter 13.34 RCW seeks to protect families “unless a child’s right to conditions of basic nurture, health, or safety is jeopardized.” RCW 13.34.020. The State provides services to parents in an attempt to avoid breaking up those families. RCW 13-.34.025; see also ch. 74.14A RCW (children and family services); ch. 74.14C RCW (family preservation services). These services can easily include months of counseling and supervised visits. See RCW 74.14C.020. The primary purpose of chapter 71.09 RCW is to protect the public. RCW 71.09.010. No such preadjudication services are necessarily provided, and chapter 71.09 RCW to some extent mimics the proceedings necessary for criminal convictions before an offender may be committed. Finally, and strikingly, there are only three events in the sexually violent predator statute that could be deemed “proceedings” — the probable cause hearing, the evaluation, and the trial. RCW 71.09-.040, .050. There are a myriad of possible proceedings under the child dependency statutes. Cf. J.R.U.-S., 126 Wn. App. at 802 (alluding to appointments, visitations, and other dispositional activities). The Court of Appeals certainly may have been right that providing counsel at every court ordered event in a termination or dependency action would be absurd just from the potential number of events. No such numerical absurdity appears here.

f 18 Petersen held that the statutory right to counsel at “all stages of the proceedings” did not include postcommitment psychological examinations, but might include precommitment examinations. Petersen, 138 Wn.2d at 92. We agree and conclude the plain language of the statute and the structure of the sexually violent predator act gave Kistenmacher a statutory right to counsel at his precommitment psychological examination.⁴

RELIEF

f 19 We turn now to whether Kistenmacher is entitled to relief for the State’s violation of his statutory right to counsel. Kistenmacher argues that Dr. Goldberg’s testimony should have been excluded, and, since it was not, the proper thing for us to do is vacate the jury’s verdict and order a new trial. He contends that no other approach would meaningfully protect his rights. The State argues that any error was harmless.

¶20 We agree with the State. We note that Kistenmacher did have counsel at the time of the examination, and nothing in the record before us leads us to believe that the State took any steps to prevent counsel’s presence at the examination. Instead, the record leads us to conclude that counsel would have been allowed to attend, but he was simply not told of it. E.g., 1 VKP at 20-21.⁵ While we do not hold that Kistenmacher had to do more to assert his statutory right to counsel than he did, we do note that he proceeded with the examination without informing Dr. Goldberg that he wanted or expected his attorney to be present. Our analysis might be different had Kistenmacher told the doctor he wanted his attorney.

¶21 We conclude that the extreme remedy of reversal is inappropriate without some showing that the error was actually prejudicial and harmful or that the State willfully ignored the law. Cf. Kotteakos v. United States, 328 U.S. 750, 760, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

¶22 We now consider whether the error was harmful. Since Kistenmacher had no right to remain silent during the examination, counsel’s role would have been limited. Cf. Young, 122 Wn.2d at 51 (citing Allen v. Illinois, 478 U.S. 364, 375, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)). Suppression of inculpatory statements might be a reasonable remedy for violation of statutory rights. Cf. State v. Schulze, 116 Wn.2d 154, 164, 804 P.2d 566 (1991). But Eistenmacher does not direct us to any information that Dr. Goldberg obtained in the clinical examination that was not available from the records the doctor reviewed, the actuarial tests, and/or Eistenmacher’s deposition in the presence of counsel. Nor do we find any such statements ourselves. If Eistenmacher, without assistance of counsel, had made inculpatory admissions to Dr. Goldberg, suppression of those statements or even Dr. Goldberg’s testimony might well be the appropriate remedy. Cf. id.; City of Spokane v. Kruger, 116 Wn.2d 135, 137, 146, 803 P.2d 305 (1991).

¶23 But Eistenmacher made essentially the same admissions in the presence of counsel, and the videotape of that deposition was played to the jury without objection. Even if Dr. Goldberg had declined to examine Eistenmacher in the presence of counsel, we have no reason to think his testimony would have been different. It is perhaps true that Dr. Goldberg’s testimony would be given more credibility having personally examined Eistenmacher, but the failure to perform a clinical examination would have gone to the weight, not the admissibility, of Dr. Goldberg’s testimony. Eistenmacher’s own expert testified that he suffered from a mental abnormality.

¶24 Assuming the appropriate remedy is to strike those portions of Dr. Goldberg’s testimony that were based on information Eistenmacher would not have disclosed in the presence of counsel, Eistenmacher has not shown he is entitled to relief. He has made no effort to show that Dr. Goldberg’s testimony would be different in any respect had his lawyer been given notice of, and had been present at, the examination. “[E]rror is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” Cunningham, 93 Wn.2d at 831 (citing State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974)). We conclude the error was harmless.

¶25 For much the same reason, we find Kistenmacher’s collateral estoppel argument unpersuasive. We certainly do not countenance the State leading a man to believe counsel would be present at an examination without informing counsel. But to prevail on an estoppel claim, Kistenmacher must establish by clear, cogent, and convincing evidence three things: (1) that the language on the intake form was “an admission, statement or act” that was inconsistent with the State’s later acts; (2) that he reasonably relied on the State’s earlier actions; and (3) that he would be injured if this court allows the State to repudiate the intake form. See Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 599, 957 P.2d 1241 (1998) (citing Berschauer/ Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 831, 881 P.2d 986 (1994)). Kistenmacher has shown neither reliance nor injury.

CONCLUSION

¶26 Accordingly, we affirm the courts below and affirm Kistenmacher’s commitment as a sexually violent predator.

C. Johnson, Owens, and J.M. Johnson, JJ., concur.

1 Kistenmacher did not attend his own trial. He asked to be transported back to the SCC, alluding to discomfort in the local jail.

2 An. actuarial test “uses an equation, a formula, a graph, or an actuarial table to arrive at a probability, or expected value, of some outcome” as opposed to a clinical test, which uses “an informal, ‘in the head,’ impressionistic, subjective conclusion, reached (some-how) by a human clinical judge.” William M. Grove & Paul E. Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The Clinical-Statistical Controversy, 2 Psychol. Pub. Pol’y & L. 293, 294 (1996).

3 Whether there is a constitutional right to counsel at the examination is not before us.

4 Of course, the legislature is welcome to amend the act to clarify its intent, if providing counsel at the examination was not its intention.

5 During argument on the suppression motion, Kistenmacher’s counsel stated, “Nobody from SCO called and said when and where the evaluation was taking place. I learned after the fact.” 1 VHP at 20-21. Perhaps because counsel did not submit a sworn declaration, the trial court’s order does not mention this. Counsel for the State repeatedly stated at oral argument that the State would not have prevented counsel from attending, and we take her at her word.