In Re The Detention Of: Duane Brennan ( 2015 )

Filed
Washington State
Court of Appeals
Division Two
October 20, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of: No. 46524-8-II
DUANE BRENNAN,
UNPUBLISHED OPINION
Appellant.
LEE, J. — Duane Brennan was found in contempt of court for refusing to comply with an
order compelling penile plethysmograph (PPG) testing as part of a pre-civil commitment trial
evaluation.1 Brennan appeals both the order compelling PPG testing and the order holding him in
contempt. He argues that (1) the order compelling PPG testing violated his constitutional right to
privacy and (2) he received ineffective assistance of counsel. Brennan’s claims fail because (1)
he has limited privacy rights as a sexual offender and (2) he fails to demonstrate that his counsel
was deficient. Thus, we affirm.
FACTS
The underlying facts are not in dispute. Brennan was convicted of a sexually violent
offense. At the end of his incarceration in November 2012, the State petitioned to civilly commit
Brennan as a sexually violent predator under chapter RCW 71.09. In support of the petition, the
State included Dr. Amy Phenix’s psychological evaluation of Brennan. Dr. Phenix concluded that
Brennan met “the criteria as a sexually violent predator as described in [chapter] RCW 71.09.”
1
Civil commitment pursuant to chapter RCW 71.09—Sexually Violent Predators.
No. 46524-8-II
Clerk’s Papers (CP) at 137. Dr. Phenix’s report details Brennan’s extensive criminal history,
including Brennan’s own admissions related to his history of violence and sexually assaulting
minors. Brennan reported that “he did not see himself being able to stop his sexually deviant
behavior.” CP at 137.
In December 2012, Brennan stipulated to the existence of probable cause and agreed to
undergo an evaluation by the State’s expert. In the stipulated order, Brennan agreed, “Consistent
with RCW 71.09.050(1), [he] shall now submit to an evaluation by an expert chosen by the State.
The evaluation may include any of the following procedures or tests if requested by the State’s
expert: . . . Penile plethysmograph testing (PPG).”2 Suppl. CP at 11.
In November 2013,3 before Brennan’s civil commitment trial, Brennan retained an expert,
Dr. Brian Abbott, to conduct an evaluation. CP at 63. Brennan told Dr. Abbott that “he made up
the extent of his deviant interests in prepubescent children and his history of sexually offending
against children in order to convince [the State’s experts] to recommend commitment because he
was afraid of being released from prison with no resources nor community support.” CP at 63-64;
In light of Brennan’s statements to Dr. Abbott and in preparation for trial, Dr. Phenix
requested a current evaluation of Brennan, including a polygraph and a PPG. Brennan argued that
the PPG testing was unnecessary because Dr. Phenix had the necessary information that she sought
to obtain through the PPG testing. Brennan further argued that the stipulated order was
2
Brennan did not challenge the stipulated order at the time nor does he assign error to it in this
appeal.
3
While RCW 71.09.50(1) provides for a trial within 45 days of the probable cause determination,
the parties agreed to trial continuances.
2
No. 46524-8-II
inconsistent with the statute because the stipulation fails to provide for judicial discretion. VRP at
34-35, 7. Brennan also argued that the PPG testing violated his constitutional rights. Brennan
claimed that “[c]ases where the courts have permitted PPG testing involve the testing as a direct
consequence of a criminal defendant’s conviction or sentence. On the other hand, cases where the
courts have not permitted PPG examinations involve instances, like the case at bar, of civil pre-
trial discovery.” CP at 33 (citations omitted).
The superior court rejected Brennan’s arguments, finding that PPG testing is authorized by
RCW 71.09.050(1) and that Brennan agreed to the testing. Accordingly, the superior court ordered
Brennan to participate in the testing requested by Dr. Phenix. Brennan refused to comply with the
court’s order. The superior court found Brennan in contempt and stayed the commitment
proceedings until he fully complied with the order compelling PPG testing. Brennan appeals. CP
at 2.
ANALYSIS
Brennan appeals the order compelling PPG testing and the order finding him in contempt
of the court for refusing to submit to PPG testing.4 He argues that the underlying order compelling
PPG testing is illegal, and therefore, we should reverse the order finding him in contempt. We
disagree.
4
Brennan assigns error to the superior court’s finding of fact 3 and conclusion of law 2. However,
he does not offer substantive argument or authority regarding the assignments of error. “A party
that offers no argument in its opening brief on a claimed assignment of error waives the
assignment.” Brown v. Vail, 169 Wash. 2d 318, 336 n.11, 237 P.3d 263 (2010); RAP 10.3. We do
not address his assignments of error without argument.
3
No. 46524-8-II
A. PRIVACY IMPLICATIONS OF PPG TESTING
Brennan claims that the superior court violated his substantive due process right to privacy
by ordering him to undergo PPG testing. We disagree.
RCW 71.09.050(1) authorizes the court to order a sex offender to submit to PPG testing
after probable cause has been determined. Brennan acknowledges that RCW 71.09.050 authorizes
PPG testing. And Brennan does not appear to challenge the constitutionality of RCW
71.09.050(1). Rather, Brennan appears to challenge the constitutionality of the order requiring
him to undergo PPG testing.
Brennan contends that “[a]rticle I, section 7 protects the right to privacy with no express
limitations.” Br. of Appellant at 19. Brennan misunderstands his privacy rights.
Washington recognizes a fundamental right to privacy. In re Det. of Williams, 163 Wn.
App. 89, 97, 264 P.3d 570 (2011). However, in “Washington, sex offenders have reduced privacy
interests because they threaten public safety.” Id.; see also In re Det. of Campbell, 139 Wash. 2d
341, 355-56, 986 P.2d 771 (1999), cert. denied, 531 U.S. 1125 (2011). Thus, “[t]he privacy that
Washington’s article I, section 7 protects is not absolute, and the State ‘may reasonably regulate
this right [in order] to safeguard society.’” Williams, 163 Wash. App. at 97 (second alteration in
original) (quoting State v. Meacham, 93 Wash. 2d 735, 738, 612 P.2d 795 (1980)). Even Brennan
recognizes the State has a compelling interest both in treating sex offenders and protecting society
from their actions.
Brennan argues that the PPG testing violated his privacy rights, and “although the superior
court found that such testing is ‘routinely relied upon . . . this does not answer the question of
4
No. 46524-8-II
whether such mandatory testing satisfies strict scrutiny.” Br. of Appellant at 23. His argument
fails.
In Williams, the sexually violent predator argued that the court-ordered, statutorily-
authorized, pre-trial evaluations violated his constitutional right to privacy.5 163 Wash. App. at 97.
The court considered the authorized pre-trial evaluations, which included PPG testing, and
weighed the nature of the testing against the State’s compelling need to “‘safeguard society.’”
Williams, 163 Wash. App. at 97 (quoting Meacham, 93 Wash. 2d at 738). The court rejected the
sexually violent predator’s claim, and held that the evaluations, authorized by statute, did not
improperly infringe on the sex offender’s constitutional right to privacy. Williams, 163 Wash. App.
at 97. The court held that “substantial public safety interest outweighs the truncated privacy
interests of the convicted sex offender.” Williams, 163 Wash. App. at 97 (quoting Campbell, 139
Wash. 2d at 356). Accordingly, Brennan’s claim that the superior court’s order compelling PPG
testing violated his privacy rights fails because, as in Williams, the “substantial public safety
interest outweighs [Brennan’s] truncated privacy interests.” Williams, 163 Wash. App. at 97.
Brennan suggests that we follow the analysis in United States v. Weber, 451 F.3d 552 (9th
Cir. 2006). But, Weber did not hold PPG testing unconstitutional.6 Weber, 451 F.3d at 569-70.
5
In Williams, the court addressed whether the pre-trial mental health examinations
unconstitutionally invaded the sex offender’s privacy. Williams, 163 Wash. App. at 98. Although
the applicable statutes have changed since Williams, PPG testing was among the available testing
both then and now.
6
Furthermore, the defendant in Weber objected to PPG testing based on “statutory grounds-that
such testing is not reasonably related to the goals of supervised release.” The Weber court stated
that it “express[es] no opinion on the question whether requiring [PPG] testing as a condition of
supervised release amounts to a substantive due process violation.” Weber, 451 F.3d at 563, n.14.
5
No. 46524-8-II
Instead, Weber held that before PPG testing can be imposed as a term of supervised release, the
trial court must make an individualized determination that the testing is necessary, considering the
constitutional rights of the offender. Weber, 451 F.3d at 569-70.
Furthermore, Brennan fails to demonstrate how Weber is applicable to the civil
commitment proceedings under chapter RCW 71.09. RCW 71.09.050(1) explicitly authorizes
PPG testing, and Brennan agreed to submit to PPG testing, if requested. Brennan fails to provide
authority requiring a court to make an individualized determination regarding the necessity of PPG
testing in sexually violent predator civil commitment proceedings.7 Thus, Weber is not applicable
to the circumstances in this case.
Brennan’s claim fails because he does not make considered constitutional arguments that
account for his limited right to privacy, rendering his arguments lacking in relevant authority and
analysis. “Parties raising constitutional issues must present considered arguments to this court”—
“‘naked castings into the constitutional sea are not sufficient to command judicial consideration
and discussion.’” State v. Johnson, 119 Wash. 2d 167, 171, 829 P.2d 1082 (1992) (quoting In re
Rosier, 105 Wash. 2d 606, 616, 717 P.2d 1353 (1986); State v. Bonds, 174 Wash. App. 553, 567 n.3,
299 P.3d 663, review denied, 178 Wash. 2d 1011 (2013). Moreover, Brennan does not make
arguments based on his limited privacy interest. Rather, Brennan’s arguments are based on his
misconception that sex offenders have limitless privacy rights. Thus, we reject Brennan’s
constitutional challenge.
7
“Where no authorities are cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle
Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962).
6
No. 46524-8-II
B. RELIABILITY OF PPG TESTING
Brennan next challenges the superior court’s finding that courts routinely rely upon PPG
testing. We reject Brennan’s challenge.
Brennan appears to argue that courts should not utilize PPG testing because it is unreliable.
Although Brennan identifies criticisms of PPG testing, he does not establish, or argue, that it is no
longer accepted or authorized.
Washington courts have held that PPG testing is useful as part of a diagnostic process. In
re the Det. of Halgren, 156 Wash. 2d 795, 807, 132 P.3d 714 (2006); State v. Riles, 135 Wash. 2d 326,
352, 957 P.2d 655 (1998); cf. State v. Johnson, 184 Wash. App. 777, 780, 340 P.3d 230 (2014)
(holding PPG testing is a valid condition of community placement “‘within the context of a
comprehensive evaluation or treatment process’”) (quoting Riles, 135 Wash. 2d at 352); State v.
Castro, 141 Wash. App. 485, 494, 170 P.3d 78 (2007) (holding that PPG testing is a valid sentencing
condition and “is regarded as a ‘treatment device’ for diagnosing and treating sex offenders”).
Furthermore, the legislature has deemed it permissible to utilize PPG testing as evidenced by RCW
71.09.050(1)’s express authorization. RCW 71.09.050(1); see In re Det. of Hawkins, 169 Wash. 2d
796, 803, 238 P.3d 1175 (2010) (noting that the legislature deems an evaluation method
permissible when a statute specifically authorizes the method).
In addition, Brennan’s challenge of a generally accepted test goes to the weight of the
evidence, not the constitutionality of the superior court’s order.8 See In re Det. of Berry, 160 Wash.
8
To the extent that Brennan asserts that the admissibility of PPG testing at trial affects his
constitutional privacy rights, that argument fails. First, the trial court did not rule on whether the
results of the specific PPG test ordered would be admissible in Brennan’s commitment trial,
expressly reserving the issue for trial. Further, Brennan’s commitment trial has been stayed.
7
No. 46524-8-II
App. 374, 382, 248 P.3d 592, review denied, 172 Wash. 2d 1005 (2011). The weight of evidence is
an issue reserved for the finder of fact. State v. Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 (2004).
Thus, Brennan’s challenge to the superior court’s finding that courts routinely rely on PPG testing
fails.
C. LANGUAGE OF THE PPG TESTING ORDER
Brennan appears to argue that the order compelling PPG testing is unlawful because it
relied on the stipulated order, which “did not track the language of the statute, but inexplicably
removed judicial oversight.” See Br. of Appellant at 13. Brennan’s challenge is to the stipulated
order, which he did not assign error to. He offers no authority for the proposition that he can now
challenge an unappealed stipulated order for the first time with no assignment of error. See RAP
10.3. Brennan also fails to offer argument or authority suggesting that the superior court erred by
relying on an order, to which Brennan agreed and did not challenge. Therefore, we need not
address Brennan’s argument. RAP 10.3; Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d
801, 809, 828 P.2d 549 (1992); DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d
193 (1962). However, even if we do address the issue, Brennan’s argument fails.
Brennan contends that the stipulated order was illegal because it not include all of the
language from RCW 71.09.050(1). We disagree.
Therefore, the superior court did not make a decision regarding admissibility that we can review.
Second, Washington courts have held that the results of PPG testing are not subject to a Frye
examination because PPG testing does not involve novel science, and that discussion of results of
PPG testing “as one component among many in diagnosing” a sexual deviant may be admissible.
Halgren, 156 Wash. 2d at 806-07. Third, Brennan makes no argument and offers no authority for
the claim that the admissibility of expert discussion about the results of PPG testing controls
whether a sex offender can be ordered to undergo PPG testing prior to a civil commitment trial.
8
No. 46524-8-II
While the stipulated order does not recite RCW 71.09.050(1)’s language verbatim,
Brennan provides no authority for the proposition that a stipulated order must contain all of the
language of the applicable statute. “Where no authorities are cited in support of a proposition, the
court is not required to search out authorities, but may assume that counsel, after diligent search,
has found none.” DeHeer, 60 Wash. 2d at 126.
Furthermore, Brennan’s argument is factually incorrect. The order compelling PPG testing
mirrors the language of RCW 71.09.050(1). The order compelling PPG testing provides in
relevant part: “The forensic evaluator who is conducting the RCW 71.09.050 evaluation, Dr. Amy
Phenix, has requested [PPG testing] with specific-issue polygraph testing and a sexual history
polygraph of [Brennan] in order to obtain current information for his evaluation.” CP at 4-5
(Finding of Fact 2). The superior court also found that “RCW 71.09.050 grants [the State] the
right to a current evaluation and specifically authorizes the Court to order psychological and
physiological testing if requested by the evaluator, which can include PPG testing and polygraph
testing.” CP at 5 (Conclusion of Law 2). Based on these findings, the superior court ordered
Brennan to undergo the testing requested by Dr. Phenix.
The superior court’s order reflects both the stipulated order and the language of RCW
71.09.050. RCW 71.09.050(1) provides in relevant part:
The prosecuting agency shall have a right to a current evaluation of the person by
experts chosen by the state. The judge may require the person to complete any or
all of the following procedures or tests if requested by the evaluator: (a) A clinical
interview; (b) psychological testing; (c) plethysmograph testing; and (d) polygraph
testing. The judge may order the person to complete any other procedures and tests
relevant to the evaluation.
The stipulated order provided, in relevant part:
9
No. 46524-8-II
4. . . . Consistent with RCW 71.09.050(1), [Brennan] shall now submit to an
evaluation by an expert chosen by the State. The evaluation may include any of the
following procedures or tests if requested by the State’s expert:
....
c. Penile plethysmograph testing (PPG);
....
5. Should the evaluation become stale prior to trial, [Brennan] may be required
to submit to supplemental evaluation procedures.
Suppl. CP at 11. The stipulated order is consistent with RCW 71.09.050(1). Therefore, Brennan’s
challenge fails.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Brennan argues that “[t]o the extent that counsel agreed to [PPG] testing in the stipulated
order, counsel was ineffective.” Br. of Appellant at 27 (underlining omitted). We disagree.
To prevail on an ineffective assistance of counsel claim, the defendant must establish that
(1) defense counsel’s performance was deficient and (2) defense counsel’s deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Failure to establish either prong is fatal to an ineffective assistance of counsel
claim. Strickland, 466 U.S. at 700.
Our review of counsel’s performance is highly deferential, and we strongly presume
reasonableness. State v. Witherspoon, 180 Wash. 2d 875, 885, 329 P.3d 888 (2014). To rebut the
presumption of reasonableness, the defendant bears the burden of establishing a lack of any
legitimate trial tactic or strategy. State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011). “And
to establish prejudice, a defendant must show a reasonable probability that the outcome would
10
No. 46524-8-II
have differed absent the deficient performance.” State v. McNeal, 145 Wash. 2d 352, 362, 37 P.3d
280 (2002).
Brennan’s claim of ineffective assistance of counsel fails because Brennan fails to
demonstrate counsel’s performance was deficient. Brennan states, “While there may have been a
valid reason to stipulate to the existence of probable cause in light of the materials submitted by
the State under RCW 71.09.040(2), counsel had no legitimate reason to hand the State’s expert
unfettered discretion to conduct invasive testing.” Br. of Appellant at 28. Brennan’s argument
fails because Brennan fails to demonstrate that agreeing to the statutorily authorized testing
amounts to “unfettered discretion to conduct invasive testing.” Brennan did not receive ineffective
assistance of counsel based on counsel’s agreement to statutorily authorized testing and evaluation
procedures.9 Because Brennan fails to establish that counsel’s performance was deficient, his
claim of ineffective assistance fails.
E. CONTEMPT
Brennan asserts that the superior court erred by finding him in contempt. Specifically, he
asserts that “because the underlying order was illegal, this Court should also reverse the contempt
order.” Br. of Appellant at 29. Brennan’s claim that the underlying order is illegal fails.
Therefore, his claim that the contempt order should be reversed also fails. Brennan does not offer
any other argument or authority regarding the contempt order.
9
Brennan asserts that co-counsel “expressed dismay at the wording of the order and informed the
court he believed the order was contrary to statute and a ‘mistake[].’” Br. of Appellant at 29.
Brennan argued below that the superior court’s ruling compelling PPG testing was “an erroneous
ruling because the [s]tatute is what governs . . . ‘cause it’s based on—it’s not based in the law. It’s
based on a mistaken stipulation.” Verbatim Report of Proceeding at 34. Brennan did not explain
then, nor does he explain now, what a “mistaken stipulation” means.
11
No. 46524-8-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Bjorgen, A.C.J.
Maxa, J.
12