In re the Detention of Jason Muns ( 2013 )

FILED
JUNE 18,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Detention of Jason Muns, ) No. 29920-1-111
)
STATE OF WASHINGTON, )
)
Respondent, )
) UNPUBLISHED OPINION
v. )
)
JASONMUNS, )
)
Appellant. )
KORSMO, C.J. - Jason Muns challenges the jury's determination that he is a
sexually violent predator (SVP), arguing that the legislature wrongly denied him a
defense and that the trial court erred by allowing the State's expert to use a risk
assessment tool without frrst conducting a Frye l hearing. We disagree with his
description of the assessment guide and with his constitutional challenges. The judgment
is affirmed.
1 Frye v. United States, 54 App. D.C. 46,293 F. 1013 (1923).
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FACTS
The facts underlying the sexually violent predator determination are largely not
relevant to the disposition of the case. Mr. Muns has suffered from fetal alcohol
spectrum disorder (FASD) since his birth in 1972. 2 He has been classified as
developmentally disabled and has received Social Security Disability payments his entire
adult life.
Mr. Muns began having run-ins with the law as an adult. He was investigated in
1994 at age 22 for possible child molestation while working as a bagger at a grocery store
after he felt the crotch area of a baby's diaper while removing the child from the cart. No
charges were filed. In 1997 he put his mouth to the breasts of a developmentally disabled
woman on a bus during a group outing. He ultimately pleaded guilty to fourth degree
assault for that incident. Later that year he was arrested for stealing women's panties
from a clothesline; he admitted using them to masturbate. He received a suspended 90­
day sentence for that offense.
The following year, Mr. Muns was charged with child molestation after again
being accused of feeling a baby's diaper. The incident did not result in a conviction,
although the specific disposition is unclear in this record. Later in 1998 he was convicted
2 FASD describes a series of alcohol-related birth defects which include fetal
alcohol syndrome.
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of first degree child molestation for licking the vagina of a four-year-old girl. He was
given a Special Sexual Offender Sentencing Alternative sentence, but he failed to live up
to the requirements of that sentence and had his placement revoked. He was sent to the
Twin Rivers facility at Monroe.
When his sentence was about to expire, the State petitioned to have Mr. Muns
committed as a sexually violent predator to the Special Commitment Center (SCC). Trial
testimony would eventually show that treatment providers did not consider him a
pedophile, but it was uncontested that he had a paraphilia NOS (not otherwise
specified)-urolagnia and fetishism. Additional recognized mental illnesses included
bipolar disorder, a mood disorder NOS, borderline personality disorder, and a cognitive
disorder NOS.
Prior to trial, the court granted the State's motion in limine to exclude evidence
that Mr. Muns might be eligible to participate in the Community Protection Program
(CPP), RCW 71A.12.200 et seq. The court noted that RCW 71.09.060(1) precluded
consideration of the CPP in an SVP trial.
Mr. Muns filed a motion to preclude the State's expert, Dr. Shoba Sreenivasan,
from using her unpublished dynamic risk assessment guide at trial. During the period
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between the filing of the motion and the ruling, the assessment guide was published. 3
Mr. Muns subsequently filed a supplemental motion to exclude the guide or hold a Frye
hearing concerning it. The trial court denied the motions, concluding that the guide was
an actuarial instrument that did not involve novel scientific theory.
Dr. Sreenivasan testified extensively at trial; her guide was featured during the
testimony. She told the jury that the static risk tools available to her did not answer the
question of whether Mr. Muns was likely to reoffend. However, her clinical jUdgment,
backed by her own guide, convinced her that he was likely to reoffend.
The defense argued the case to the jury on the basis that the State had not met its
burden. The static risk tools did not suggest he was a candidate for reoffense and the
defense expert's clinical judgment was that he would not reoffend. After the jury
concluded that Mr. Muns was a sexually violent predator, he timely appealed to this
court.
ANALYSIS
Mr. Muns argues that the trial court erred in not conducting a Frye hearing. He
also argues, on several different bases, that RCW 71.09.060(1) is unconstitutional. We
3 Amy Phenix & Shoba Sreenivasan, A Practical Guide for the Evaluation of
Sexual Recidivism Risk in Mentally Retarded Sex Offenders, 37 J. AM. ACAD.
PSYCHIATRY LAW 509·24 (Issue 4, Dec. 2009).
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first address his argument concerning the assessment guide before turning to his
constitutional challenges.
Assessment Guide
Appellant contends that Dr. Sreenivasan's guide was a dynamic risk assessment
tool that needed to be subjected to analysis under Frye before the jury could hear about it.
We disagree.
The question to be decided in an SVP proceeding is whether the State has shown
that the subject of its petition, due to a mental abnormality or personality disorder,
presents a high risk of engaging in predatory acts of sexual violence. In re Pers.
Restraint ofYoung, 122 Wash. 2d I, 12,857 P.2d 989 (1993). By its very nature, these
actions are dependent upon expert testimony. In re Det. ofCampbell, 139 Wash. 2d 341,
357-58, 986 P.2d 771 (1999).
Before scientific evidence is admitted at trial, Washington courts require that it
first be accepted in the scientific community. State v. Copeland, 130 Wn.2d 244,255,
922 P.2d 1304 (1996). This is the essence of the Frye standard as applied in Washington.
Id. The reviewing court considers the issue de novo and is expected to conduct a
searching review that may include scientific materials developed after trial. Id. at 255-56.
Although the standard for admission of scientific evidence has long been
understood, the question of whether a specific type of evidence is subject to a Frye-type
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review continues to be litigated. E.g., State v. Noltie, 116 Wash. 2d 831, 809 P .2d 190
(1991) (colposcope); State v. Vermillion, 112 Wn. App. 844,51 P.3d 188 (2002)
(tracking device). SVP litigation, because it is heavily dependent upon informed expert
testimony, likewise sees regular Frye challenges. E.g., In re Det. ofStrauss, 106 Wn.
App. 1,20 P.3d 1022 (2001), aff'd, 149 Wash. 2d 724, 72 P.3d 708 (2003).
In making their predictions of future dangerousness, the experts frequently rely
upon assessment tools to support their own clinical judgment. Id. at 6. Most established
tools track what are known as static risk factors-those that are immutable once they
become present. Robert J. McGrath, Joy A. Livingston, & Gail Falk, A Structured
Method ofAssessing Dynamic Risk Factors Among Sexual Abusers with Intellectual
Disabilities, 112 AM. 1. ON MENTAL RETARDATION 221-22 (May 2007).4 Because risk
fluctuates with treatment and other changing factors, many professionals believe that
recidivism can be more accurately predicted through the combined use of static risk
factors along with an individual's dynamic risk factors, which can aggravate or mitigate
the risk of reoffending. Learn A. Craig, Controversies in Assessing Risk and Deviancy in
Sex Offenders with Intellectual Disabilities, 16 PSYCHOLOGY; CRIME & LAW 75, 88
(2010).
4 An example is the Static-99 which bases recidivism on 10 dichotomous (Le.
yes/no) questions including "any convictions for non-contact sex offences," "any
unrelated victims," "any stranger victims," "any male victims."
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Dynamic risk factors are divided into two groups: stable and acute. Stable
dynamic factors are "factors which are enduring but amenable to change over long
periods of time." Id. at 80. "Acute dynamic factors are rapidly changing factors that
change day-by-day or hour-by-hour." Id. 5
Static risk factor assessment tools are actuarially based and no longer subject to a
Frye challenge in Washington. In re Det. ofThorell, 149 Wash. 2d 724, 755-56, 72 P.3d
708 (2003).6 Frye likewise is inapplicable to the exercise of clinical judgment. Id. at 756
(citing Campbell, 139 Wn.2d at 358). Washington cases do not yet appear to have
addressed the application of Frye to dynamic risk assessment tools. We agree with Mr.
Muns's argument that a dynamic risk assessment instrument used to diagnose future
dangerousness or assign a probability of reoffense rate would need to be the subject of a
Frye analysis before use at trial. Our review of the literature7 confirms the trial testimony
5Examples of stable dynamic factors include attitudes toward treatment and
supervision, knowledge of own risk factors, sexual knowledge, mental health problems,
and substance abuse; examples of acute factors include changes in behavior and attitude
toward treatment providers, family, treatment itself, substance abuse, isolation, and
change in routine. Douglas P. Boer, Susan Tough, & James Haaven, Assessment ofRisk
Manageability ofIntellectually Disabled Sex Offenders, JOURNAL OF ApPLIED RESEARCH
IN INTELLECTUAL DISABILITIES 275, 280-82 (2004).
6 Det. ofStrauss, 106 Wash. App. 1, had previously identified three static risk
assessments that could be used without a Frye hearing.
7 No dynamic risk assessment instrument appears to have proceeded further than
the third step of the scientific theory process. See generally, Moore v. Harley-Davidson
Motor Co. Grp., Inc., 158 Wash. App. 407, 419,241 P.3d 808 (2010).
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of Dr. Sreenivasan that most 8 dynamic risk tools are not used in the same manner as the
static risk tools. Most certainly she did not treat her guide in that manner in this case.
Dr. Sreenivasan's assessment guide looks for stable and acute risk factors in sex
offenders, checking for the presence or absence of over 40 different dynamic risk factors.
They are divided into 8 sub-groups: global, diagnosis, social skills deficits, behavioral
tendencies, knowledge levels, treatment progress, release environment, and acute factors.
Pl.'s Ex. 16. In the course of her testimony, she went through each of the risk factors
within each of the 8 groups, explaining to the jury which she saw present in Mr. Muns
and which she did not.
Critically, she did not use her guide as a predictive tool. There was no scoring of
answers or attempt to use the device to assign a level of probability to the risk of
reoffense. She repeatedly rebuffed defense counsel's attempts during cross-examination
to treat her "tool" as a scientifically validated risk assessment instrument. Report of
Proceedings (RP) at 470-83. Instead, she used it as no more than a memory aid9 designed
to help her, and other clinicians, look for factors that other researchers suggested might
8 One exception is the SONAR, an actuarially based dynamic risk tool designed to
mitigate the results of static testing. See R. KARL HANSON & ANDREW HARRIS, PUBLIC
SAFETY CANADA, SEX OFFENDER NEED ASSESSMENT RATING (SONAR): A METHOD FOR
MEASURING CHANGE IN RISK LEVELS (2000).
9One of the early discussions of dynamic risk assessment tools noted that they
were intended to be merely an "aide memoire." Boer, supra n.5, at 276.
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have predictive value. The weight, if any, to be given the factors was left to her own
clinical judgment.
The trial court denied the motion to exclude the test on the basis that it was an
actuarial device. The court erred in that conclusion; both parties argued in their briefing
to the trial court, and again in this court, that it was not. Despite this error, the trial court
correctly concluded that no Frye hearing was necessary because the guide was not used
as a scientific tool. We may affirm the trial court on any basis present in the record.
Swinehart v. City ojSpokane, 145 Wash. App. 836, 844, 187 P.3d 345 (2008).
D~. Sreenivasan did not use the guide in any manner that would have required
examination under Frye. There is no question that she could properly testify to the jury
about the same factors without the presence of her written list. The fact that she wrote
those factors down on a form-or even the back of an old envelope-did not add a
scientific gloss requiring court inquiry into the scientific acceptance of her approach.
Frye is not implicated by Dr. Sreenivasan's testimony. Her tool was admitted into
evidence only to illustrate her testimony and explain the factors used in informing her
clinical judgment; it did not go to the jury as an exhibit. She did not claim it to be a
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device of scientific truth or theory. 10 It was nothing more than a checklist of factors to
consider.
The trial court properly denied the motion to exclude.
RCW71.09.060(1)
Mr. Muns mounts several constitutional challenges to RCW 71.09 .060( 1). He
asserts that its provision prohibiting him from arguing the existence of the CPP as an
alternative placement violates his rights to equal protection of the laws as well as both
procedural and substantive due process. The State contends that Mr. Muns lacks standing
to make these challenges. We conclude that he has standing, but that the legislature
could properly exclude mentally ill offenders from the CPP.
The problem arises from the fact that Mr. Muns is at an intersection of two
statutes. The CPP, RCW 71A.l2.200 et seq., was codified in 2006. It provides voluntary
residential treatment in a supervised environment for people (1) who have been
determined to have a developmental disability, (2) who have been charged with or
convicted of a crime of sexual violence, and (3) who constitute "a current risk to others as
10Somewhat problematically, counsel for the State touted the guide in closing
argument as being peer-reviewed, tending to suggest that Dr. Sreenivasan's judgment
was more scientifically sound than the defense experts. RP at 1239. To the extent this
argument attempted to attribute more to the guide than the State's own expert did, it was
improper. However, there was no objection and we assume that defense counsel did not
consider this to be error.
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determined by a qualified professional." RCW 71A.12.21O. The CPP is a restrictive
placement. RCW 71A.12.230. A person accepted into the program may transition into
lesser restrictive settings. RCW 71A.12.250, .260, .290.
The SVP statutes apply to a person who "has been convicted of ... a crime of
sexual violence and who suffers from a mental abnormality or personality disorder which
makes the person likely to engage in predatory acts of sexual violence if not confined in a
secure facility." RCW 71.09.020(18). In determining whether confinement is required,
"the fact finder may consider only placement conditions and voluntary treatment options
that would exist ... if unconditionally released" from the SVP detention. RCW
71.09.060(1). The CPP may not be considered in making this assessment. ld. Court-
ordered less restrictive alternatives likewise may not be considered when the fact finder is
making the initial SVP determination. Thorell, 149 Wn.2d at 745-53.
The CPP covers people with developmental disabilities. The SVP program
addresses people with mental abnormalities. People with both developmental disabilities
and mental abnormalities could fall within the ambit of both programs. However,
because the legislature has expressly directed that the CPP not be considered during the
initial SVP hearing, the question arises whether this restriction is constitutionally valid.
With that backdrop in mind, we now consider the arguments presented by the parties.
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Standing. A party has standing to pursue an action when he is within the zone of
interests protected by a statute and has suffered an injury in fact. Branson v. Port 0/
Seattle, 152 Wash. 2d 862, 875-76, 101 P .3d 67 (2004). Both parties appear to agree that
Mr. Muns is within the zone of interests protected by the statute, but disagree on whether
he has suffered any injury in fact. The State argues that Mr. Muns has no standing to
present his constitutional challenges since he has not established that he would have been
accepted into the CPP. In re Det. o/Mulkins, 157 Wash. App. 400, 406, 237 P.3d 342(2010). Mr. Muns responds that he did present evidence indicating his eligibility for the
CPP and that Mulkins has been abrogated since the case it relied upon was expressly
overruled. See In re Det. o/Post, 170 Wash. 2d 302, 316, 241 P.3d 1234 (2010) (overruling
State v. Harris, 141 Wn. App. 673,174 P.3d 1171 (2007)).
We do not share Mr. Muns's skepticism about the continued vitality of Mulkins.
Harris was overruled on an evidentiary issue. Post, 170 Wn.2d at 316. Mulkins, in tum,
is a standing case. There Division One of this court refused to consider a challenge to
RCW 71.09.060(1) from an individual whose only foundation for claiming eligibility for
the CPP was a form letter indicating that he was a potential candidate for the program.
Mulkins, 157 Wn. App. at 406. Mulkins merely cited to language from Harris in its
standing analysis and did not rely upon that case for its holding. Id. We believe that the
Mulkins rule is still valid.
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Nonetheless, we conclude that Mr. Muns has standing here. He did present
evidence of his eligibility for the CPP in the form of testimony from a treatment provider
who also evaluates CPP candidates. ll In that expert's opinion, Mr. Muns did fit the
criteria of the CPP program. We believe, therefore, that Mr. Muns had demonstrated
sufficient injury to provide him standing to challenge the exclusion of the CPP from
consideration in an SVP proceeding.
Equal Protection. All persons are entitled to the equal protection of the laws in
accordance with the command of the Fourteenth Amendment. In reviewing alternative
placement challenges under the SVP laws, our courts apply a rational basis test. Thorell,
149 Wn.2d at 748-49. This highly deferential standard of review looks to see if the
government is pursuing a legitimate objective by a rational means. ld. at 749. The
challenger bears the burden of establishing that a governmental classification is arbitrary;
even unsupported rational speculation is sufficient to uphold a classification under a
rational basis review. ld.
Initially, it is necessary to define the class allegedly being treated unequally.
While facially treating all SVP respondents the same, in reality the statute affects only the
11 Evidence that Mr. Muns desired to use the program would have made this an
easier question.
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subclass that is eligible for the CPP. That subclass, in turn, consists only of the
developmentally disabled.
Despite the impact on that class of SVP respondents, we believe there are at least
three rational bases for excluding the CPP from consideration as a voluntary treatment
option. First, as argued by the State, is an interest in protecting those in the CPP
program. While all participating in the CPP program are developmentally disabled, SVP
respondents also are suspected of having mental illnesses that contribute to their
predatory behavior. Protecting others in the CPP program from those believed to have
additional problems is a rational basis for excluding SVP respondents. 12
A second basis for excluding the CPP would be to treat all SVP respondents
equally. As noted, an SVP respondent cannot present evidence of a court-ordered less
restrictive alternative (LRA) at the initial SVP trial. Thorell, 149 Wn.2d at 751-53. The
reason for this is the need for intensive in-patient treatment that follows the SVP
determination. Id. at 752-53. Given that the highly structured CPP takes place in a very
restrictive setting, it is similar in many regards to a court-ordered LRA. 13 In order to treat
all SVP respondents equally and not allow the developmentally disabled subclass to
This problem could be addressed simply by defining eligibility for the CPP
12
program in terms that would exclude those with mental illness.
13Again, this issue also is one of definition and the legislature could have
addressed the problem by defining an LRA in terms that included the CPP.
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avoid the initial intense in-patient treatment, the legislature rationally could have decided
that the CPP was not appropriate until after the initial SVP treatment had commenced.
The third basis is related to the first. While all involved in the CPP have
developmental disabilities, not all of those eligible for that program also face challenges
from mental illness. The legislature could rationally determine that the mental illness
issues should be addressed first before turning to the developmental disabilities that also
affect behavior. This is a rational basis for limiting participation in the CPP to those who
would benefit most from it while requiring SVPs with developmental disabilities to first
undergo mental illness treatment.
There are rational bases for excluding the CPP from consideration at the initial
SVP trial. Mr. Muns therefore has not shown that the classification is arbitrary. RCW
71.09.060(1) does not violate the equal protection clause of the constitution.
Procedural Due Process. Mr. Muns next argues that the exclusion of the CPP
from the initial SVP trial violates his right to procedural due process. This argument pits
his liberty interest against the State's interests in public safety and treatment for Mr.
Muns. We conclude that he has not established any error.
To balance Mr. Muns's liberty interest against the State's counteracting interests,
the court applies the Mathews three-part balancing test:
[F]irst, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
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procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. ct. 893, 47 L. Ed. 2d 18 (1976).
The first factor heavily favors Mr. Muns; his interest in remaining free of civil
commitment is very strong. E.g., Vitek v. Jones, 445 U.S. 480, 491-92, 100 S. Ct. 1254,
63 L. Ed. 2d 552 (1980). The government has legitimate interests in providing care for
those who cannot take care ofthemselves and in protecting the public from those who are
dangerous. E.g., Addington v. Texas, 441 U.S. 418,426,99 S. Ct. 1804,60 L. Ed. 2d 323
(1979).
The second Mathews factor is the one in dispute. Mr. Muns argues that depriving
the jury of evidence of a program that he could take part in unacceptably raises the risk
that the jury will erroneously commit him as an SVP. We disagree. "Given the extensive
procedural safeguards in chapter 71.09 RCW, the risk of an erroneous deprivation of
liberty under the challenged amendments is low." State v. McCuistion, 174 Wash. 2d 369,
393,275 P.3d 1092 (2012) (rejecting procedural due process challenge to 2005
amendments to SVP statutes that altered evidence defense could present), cert. denied,
133 S. Ct. 1460, 185 L. Ed. 2d 368 (2013). The same result follows in this case.
Mr. Muns is still pennitted to present evidence that he can be treated in the
community. He simply is not permitted to use the CPP. In the absence of any evidence
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that CPP was the only voluntary program available, exclusion of the CPP from his trial
did not present a risk of a wrongful determination. On balance, the Mathews factors do
not demonstrate that Mr. Muns's procedural due process rights were violated.
Exclusion of the CPP from consideration as a voluntary community-based
program did not violate Mr. Muns's procedural due process rights.
Substantive Due Process. Mr. Muns also argues that his substantive due process
rights also were violated because exclusion of the CPP "permits the State to confine him
even if he would be ... 'safe to be in the community.'" Brief of Appellant at 28. This
argument overstates the case and is simply a relabeling of his procedural due process
argument.
Substantive due process "requires that the nature of commitment bear some
reasonable relation to the purpose for which the individual is committed." Foucha v.
Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). The
constitutionality of the State's police power to subject certain citizens to involuntary
confinement is firmly settled. Young, 122 Wn.2d at 27.
Excluding the CPP evidence did not change the State's burden of proof in this
proceeding nor did it change the fact that the State proved Mr. Muns was dangerous. The
most that can be said is that this portion of the statute removes a defense argument that
the CPP was adequate protection for the public. This question is one of procedural due
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process. Mathews, 424 U.S. at 335. Whatever its evidentiary impact on the defense
contesting one of the questions the State needed to prove, the exclusion did not change
the State's substantive obligation to prove that Mr. Muns was dangerous and in need of
treatment. Young, 122 Wn.2d at 31.
Because the exclusion only presents a question of procedural due process, Mr.
Muns's claim of substantive due process is without merit.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, C.J.
WE CONCUR:
~m 1.
Brown, 1(J
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