In Re The Detention Of Gregory Eugene Coley ( 2017 )

FILED
GOURT OF APPEALS 01V 1
STATE OF WASHINGTON
20110C1 16 Am 9: 19
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of ) No. 74770-3-1
)
GREGORY COLEY, )
)
Appellant. )
)
)
STATE OF WASHINGTON, )
)
Respondent, )
v. )
)
GREGORY COLEY, ) UNPUBLISHED OPINION
)
Defendant. ) FILED: October 16, 2017
)
VERELLEN, C.J. — During voir dire in a sexually violent predator unconditional
release trial, the State exercised a peremptory challenge against a black juror. The
next morning, Gregory Coley objected based on Batson v. Kentucky.' Because the
objection occurred before any evidence was presented, we conclude it was timely.
The State offered two race-neutral reasons for challenging juror 5. The trial
court accepted those reasons and found that the State was not motivated by racial
animus. Because the reasons are supported by the record and do not reveal pretext,
we conclude the trial court's decision was not clearly erroneous.
1 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
No. 74770-3-1/2
At trial, the court excluded a defense witness because she was not timely
disclosed. Because the testimony would have been cumulative, we conclude Coley
was not prejudiced by the exclusion and his counsel was not ineffective.
The trial court limited the testimony of Dr. Richard Wollert, a defense expert
witness. Dr. Wollert was not allowed to testify beyond his report. Because Coley did
not make an adequate offer of proof as to the nature of Dr. Wollert's excluded
testimony, we conclude the trial court was unable to conduct a harmless error
analysis under the rules of evidence or Burnet v. Spokane Ambulance.2 We decline
to grant any relief on appeal.
Dr. Wollert was also precluded from relating a nontestifying expert's opinion
consistent with his opinion that Coley was a juvenile-only offender. Because an
expert should not act as a conduit to restate a nontestifying expert's opinions, we
conclude it was within the discretion of the trial court to limit Dr. Wollert's testimony.
We conclude there was no cumulative error. Therefore, we affirm.
FACTS
Since 2002, Coley has been civilly committed at the Special Commitment
Center(SCC)as a sexually violent predator. In 2016, a trial was held to determine
whether Coley continued to be a sexually violent predator subject to continued
commitment.
During voir dire, the State exercised a peremptory challenge against juror 5.
Coley and juror 5 are both black. The next morning before opening statements,
2 131 Wash. 2d 484, 933 P.2d 1036 (1997).
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Coley raised a Batson challenge to juror 5's dismissal and moved for mistrial. The
trial judge denied the motion.
At trial, Coley called six witnesses from the SCC to discuss his positive
behavioral changes. He also tried to offer testimony from a seventh SCC witness,
but the trial court excluded the testimony because Coley did not timely disclose the
witness.
The State's expert, Dr. Dale Arnold, diagnosed Coley with other specified
paraphilic disorder with pedophilic, coercive, and sadistic traits under the Diagnostic
and Statistical Manual of Mental Disorders 5(DSM-5)(American Psychiatric
Association 2013).
Coley offered the expert testimony of Dr. Wollert. In his report, Dr. Wollert
relied on the older DSM-IV and declined to diagnose Coley with paraphilia not
otherwise specified nonconsent. When Dr. Wollert began to critique Dr. Arnold's
diagnosis and his use of the DSM-5, the trial court limited Dr. Wollert's testimony to
the opinions contained in his report. Dr. Wollert also testified that Coley was a
juvenile-only offender with minimal risk to reoffend, but the court prohibited Dr.
Wollert from bolstering his juvenile-only offender opinion with statements by another
expert.
The jury found that Coley continued to be a sexually violent predator. As a
result, the court entered an order of commitment to the SCC "until such time as
[Coley's] mental abnormality and/or personality disorder has so changed that[he] is
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safe to be conditionally released to a less restrictive alternative or unconditionally
discharged."3
Coley appeals.
ANALYSIS
I. Batson Challenge
Coley argues the trial court erred in denying his Batson challenge.
A trial court's decision to deny a Batson challenge "will be reversed only if the
defendant can show it was clearly erroneous." To determine whether the State's
peremptory challenge is discriminatory:
First, the defendant must establish a prima facie case that 'gives rise to
an inference of discriminatory purpose.' Second, if a prima facie case
is made, the burden shifts to the prosecutor to provide an adequate,
race-neutral justification for the strike. Finally, if a race-neutral
explanation is provided, the court must weigh all relevant circumstances
and decide if the strike was motived by racial animus.[61
A. Timeliness
As a threshold matter, the State contends Coley waived any objection to the
State's peremptory challenge by not raising it before the venire was dismissed.
A Batson challenge must "be brought at the earliest reasonable time while the
trial court still has the ability to remedy the wrong."6 In City of Seattle v. Erickson, the
defendant did not object until after the jury had been impaneled and the venire had
been dismissed for the day, but before the parties presented any evidence.7 Our
3 Clerk's Papers(CP)at 152.
4 City of Seattle v. Erickson, 188 Wash. 2d 721, 727, 398 P.3d 1124 (2017).
5 Id. at 726-27 (citations omitted)(quoting Batson, 476 U.S. at 94).
6 Id. at 729.
7 188 Wash. 2d 721, 729, 398 P.3d 1124(2017).
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No. 74770-3-1/5
Supreme Court concluded the timing was not ideal, but Erickson's challenge was
timely.8
Here, Coley objected the morning after the jury had been impaneled and the
venire dismissed, but before opening statements. Consistent with Erickson, Coley's
objection was timely, even though he could have raised it earlier.
Because Coley's Batson challenge was timely, we need not address Coley's
argument that his counsel was ineffective for failing to timely object.
B. Prima Fade Purposeful Discrimination
The State also argues Coley has failed to present a prima facie case of
purposeful discrimination. "The trial court must recognize a prima facie case of
discriminatory purpose when the sole member of a racially cognizable group has
been struck from the jury."8 But a "prima facie showing is unnecessary once the
State has offered a purported race-neutral explanation and the trial court has ruled
on the ultimate question of intentional discrimination."10
In its oral ruling, the trial court mentioned it could not discern "a pattern by the
State of excusing . . . minority candidates"11 and concluded the State's peremptory
challenge of juror 5 did "not constitute prima facie purposeful discrimination."12 But
the trial court still considered the State's race-neutral explanations and concluded the
8 Id. at 730.
9 Id. at 734.
10 State v. Cook, 175 Wash. App. 36, 39, 312 P.3d 653(2013).
11 Report of Proceedings(RP)(Jan. 12, 2016) at 143(emphasis added).
12 CP at 164.
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No. 74770-3-1/6
challenge of juror 5"was based on factors other than race which are adequate and
neutral reasons for exercising the peremptory challenge."13
In Erickson, our Supreme Court determined the trial court improperly applied
the first step of the Batson analysis when it required a pattern of discrimination to
show prima facie purposeful discrimination.14
Here, the trial court's references to a "pattern" of discrimination relates to the
first step of Batson. Although the trial court did not have the benefit of the 2017
Erickson decision, it was mistaken as to the standard for establishing a prima facie
case of discrimination. But the court heard the State's reasons for striking the juror
and reached the final step of Batson.
C. Race-Neutral Explanation
Under the second step in the Batson analysis, the court only considers the
facial validity of the State's rationale.15 This consideration "does not demand an
explanation that is persuasive, or even plausible."16 "A venireperson's specific
responses and demeanor during voir dire may constitute neutral explanations for
exercising a peremptory challenge."17 Here, the State challenged juror 5 based on
his specific response concerning brain chemistry and his demeanor during voir dire.
13 Id.
14 Erickson, 188 Wn.2d at 732-33.
15Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834(1995)
(quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L. Ed. 2d
395 (1991)).
16 Id. at 767-68.
17 State v. Burch, 65 Wash. App. 828, 840, 830 P.2d 357(1992).
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No. 74770-3-1/7
D. Racial Animus
Coley's argument that the State's proffered rationale was a pretext for race
concerns the third step of Batson—whether the State's reasons given for the
peremptory challenge were motivated by racial animus.
The State's reasons must be supported by the record and not be a pretext or
proxy for race; otherwise, the challenge is presumed to be motivated by
discriminatory intent.18 "[A] neutral explanation is one based on something other than
the race of the juror and need not rise to the level justifying a challenge for cause."18
The reviewing court considers the overall circumstances, including any "red flags" of
a discriminatory motive.20 The State's explanation may be a pretext for purposeful
discrimination if the proffered reason for striking a minority panelist applies just as
well to an otherwise similar nonminority panelist who is permitted to serve.21
Here, the State expressed concern about juror 5's ability to "listen to
psychologists and take in that testimony" because he had strong opinions on brain
chemistry. During voir dire, Coley's counsel posed the question, "[D]o you think there
will be a day when race is not an issue[?]"22 Juror 5 gave a comparatively lengthy
18 Batson, 476 U.S. at 98; see also Reed v. Quarterman, 555 F.3d 364, 368 (5th
Cir. 2009); Purkett, 514 U.S. at 768 ("implausible or fantastic justifications may(and
probably will) be found to be pretexts for purposeful discrimination").
18 Cook, 175 Wash. App. at 43.
28 Id. at 44 (prosecutor's peremptory challenge based in part on defense
counsel's use of the term "brother" when speaking to an African-American juror and
prosecutor's purportedly "confusing" one African-American juror with another "raises a
red flag that there is some discriminatory intent").
21 Id. at 41.
22 RP (Jan. 11, 2016) at 87.
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No. 74770-3-1/8
response, noting that the "brain chemistry of homo sapiens is still in the Stone Age."23
When asked whether individuals can be objective, juror 5 stated individuals
attempting to be objective resort to "Stone Age brain chemistry" when a topic touches
their core issues.24
The State's case turned largely on expert testimony regarding Coley's mental
impairments and his ability to overcome those impairments. A juror with a strongly
held view on how individuals' brains work when trying to remain objective may also
have a rigid mindset on other aspects of mental functioning. The State's concern did
not equate to racial animus.
The State was also worried about juror 5's ability to deliberate with other jurors
because he dominated the conversation during voir dire. Juror 5 spoke five separate
times during voir dire. In one instance, Coley's counsel asked juror 5 about his
feelings concerning jury duty, and juror 5 provided a narrative response about the
history of sex abuse in his family. He also spoke two times without being called on,
including the response about brain chemistry.
Other members of the venire actively participated and were not excused, but
the record does reveal juror 5 responded and interjected more than other prospective
jurors. And the trial judge acknowledged, "I had concerns myself after hearing some
of his answers."25 While demeanor has been recognized as a potential proxy for
23 Id. at 88.
24 Id. at 88-90.
25 RP (Jan. 15, 2016) at 959.
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No. 74770-3-1/9
racial animus,26 trial courts are still afforded "great deference" when it determines the
credibility of the State's reasons.27 The trial court was able to observe juror 5's
demeanor, it shared the State's concern, and the record supports that there was a
difference.
Viewing the State's challenge under the totality of the circumstances, the
record does not raise a red flag of discriminatory intent. We conclude the record
supports the trial court's ruling that the State did not have a discriminatory motive in
exercising its peremptory challenge of juror 5.
E. New Standard to Replace Batson
Alternatively, Coley argues for a new "reasonable probability" standard to
replace Batson. Our Supreme Court has repeatedly acknowledged its strong
concerns that the existing standard of purposeful discrimination fails to remove racial
discrimination from jury selection.28 A proposed rule addressing these concerns is
pending before our Supreme Court in its administrative rule-making capacity. In
Erickson, our Supreme Court adopted a change to the first step in Batson "to ensure
a robust equal protection guaranty."29 The Supreme Court also confirmed it "has the
26 Proposed General Rule 37(Wash. 2017), https://perma.ccNB3Q-U4ZL
(demeanor has "historically been used to perpetuate exclusion of minority jurors"). The
rule was published as GR 36 but was renumbered as GR 37 after adoption of a court
security rule numbered GR 36. Erickson, 188 Wash. 2d at 738 n.5.
27 State v. Evans, 100 Wash. App. 757, 764, 998 P.2d 373(2000)(citing Burch,65
Wn. App. at 840-41).
28 State v. Saintcalle, 178 Wash. 2d 34, 48-49, 309 P.3d 326 (2013), abrogated by
Erickson; Erickson, 188 Wash. 2d at 737-38(Stephens, J. concurring)("We are unlikely to
see different outcomes unless courts are willing to more critically evaluate proffered
race-neutral justifications in future cases.").
28 Erickson, 188 Wn.2d at 734(on remand for new trial, it appears the core of the
existing Batson standard remains in place).
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No. 74770-3-1/10
power to alter or replace the Batson framework" and did not adopt a change to the
current standard of purposeful discrimination•30
If not clear before Erickson, it is clear now that our Supreme Court is the
architect of efforts to address the inadequacies of Batson. Out of deference, we
decline to adopt a new standard and potentially run afoul of the ongoing work of our
Supreme Court.
II. Ineffective Assistance of Counsel—Witness Disclosure
Coley contends his trial counsel provided ineffective assistance of counsel by
failing to timely disclose the SCC witness, Hudson.31
To establish ineffective assistance of counsel, a defendant must show
(1) defense counsel's representation was deficient, i.e., it fell below an
objective standard of reasonableness based on consideration of all the
circumstances; and (2) defense counsel's deficient representation
prejudiced the defendant, i.e., there is a reasonable probability that,
except for counsel's unprofessional errors, the result of the proceeding
would have been different.E32]
The likelihood of a different result must be substantial and not merely
speculative.33 "A reviewing court need not address whether counsel's performance
was deficient if it can first say that the defendant was not prejudiced."34
Here, the State contends the exclusion did not prejudice Coley. Coley's
counsel advised the trial court that Hudson had worked with Coley "significantly" over
30 Id. at 732.
31 The record does not reveal Hudson's first name.
32 State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995)(citing
Strickland v. Washinqton, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052(1984)).
33 State v. Crawford, 159 Wash. 2d 86, 99-100, 147 P.3d 1288 (2006).
34 In re Pers. Restraint of Rice, 118 Wash. 2d 876, 889, 828 P.2d 1086(1992)
(citing Strickland, 466 U.S. at 697).
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No. 74770-3-1/11
several years and was expected to testify concerning the positive changes in Coley's
behavior. But Coley presented six other witnesses from SCC, including rehabilitation
counselors and case managers who worked with Coley for several years and who
testified concerning his positive behavioral changes. After the fifth witness, the court
remarked,"Mlle SCC witnesses are getting a bit cumulative and monotonous....
They're all saying pretty much the same thing."36 Coley does not establish that
Hudson's testimony would not be cumulative given the testimony of the other six
SCC witnesses.
We conclude that Coley did not receive ineffective assistance of counsel
because Coley does not establish a reasonable probability that the result would have
been different if Hudson had been allowed to testify.
III. Dr. Wollert's Expert Testimony
Coley argues the trial court abused its discretion when it limited the testimony
of his expert witness, Dr. Wollert.
We review a trial court's decision to exclude expert witness testimony for
abuse of discretion.36 Even if a court's evidentiary decision is erroneous, the
appellant must establish the error was prejudicia1.37 "Error will not be considered
prejudicial unless it affects, or presumptively affects, the outcome of the Warm The
35 RP (Jan. 14, 2016) at 678.
36 State v. Willis, 151 Wash. 2d 255, 262, 87 P.3d 1164 (2004).
37 Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wash. 2d 188, 196, 668
P.2d 571 (1983).
38 Id.
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No. 74770-3-1/12
improper exclusion of evidence is harmless if the evidence was inconsequential or
cumulative.39
"In order to obtain appellate review of trial court action in excluding evidence,
there must be an offer of proof."4° The burden is on the proponent of the evidence to
make an adequate offer of proof.41
An offer of proof serves three purposes: it informs the court of the legal
theory under which the offered evidence is admissible; it informs the
judge of the specific nature of the offered evidence so that the court can
assess its admissibility; and it creates a record adequate for review.(421
A formal offer of proof is not necessary if the substance of the excluded
evidence is apparent from an extended colloquy on the record.43 But an offer of
proof, extended colloquy, or context must be "sufficient to advise the appellate court
whether the party was prejudiced by the exclusion of the evidence."44
Here, the State's expert, Dr. Arnold, diagnosed Coley with other specified
paraphilic disorder with pedophilic, coercive, and sadistic traits under the DSM-5. In
his report, Dr. Wollert relied on the DSM-IV and stated:
[Coley] does not meet the criteria for the Paraphilia Not Otherwise
Specified Nonconsent because this term medicalizes the crime of rape,
and the American Psychiatric Association has never accepted a
proposed paraphilia that would allow rapists to argue that special legal
exceptions should be made for them because they suffer from a mental
39 Id.; Holmes v. Raffo, 60 Wash. 2d 421, 424, 374 P.2d 536 (1962).
4° Jankelson v. Cisel, 3 Wash. App. 139, 143, 473 P.2d 202(1970).
41 ER 103(a)(2); Estate of Bordon ex rel. Anderson v. State, Dep't of
Corrections, 122 Wash. App. 227, 246, 95 P.3d 764(2004)(appellate court declined to
determine admissibility of testimony by purported expert where proponent had made
no offer of proof of what the expert would say if allowed to testify).
42 State v. Ray, 116 Wash. 2d 531, 538, 806 P.2d 1220 (1991).
43 Id. at 539.
44 State v. Vargas, 25 Wash. App. 809, 817, 610 P.2d 1 (1980).
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No. 74770-3-1/13
illness. In the course of compiling DSM-5, for example, it rejected a
proposed paraphilia called "Paraphilic Coercive Disorder" that was the
equivalent of Paraphilia Not Otherwise Specified Nonconsent. Other
proposals for the medicalization of rape were also rejected when DSM-
III, DSM-IIIR, and DSM-IV were compiled.[45]
During Dr. Wollert's testimony, the State raised several objections to Coley's
questions that went beyond the scope of Dr. Wollert's report. In colloquy, Coley
argued,"[Dr. Wollert] talks about paraphilic coercive disorder. He talks about the old
paraphilia not otherwise specified. He's talking about all these things that are the
exact same thing. The only difference is we've got new terminology and that's it."46
The trial court limited Dr. Wollert's testimony to the opinions in his report.
Dr. Wollert later testified about why he did not diagnose Coley with paraphilia
or paraphilia not otherwise specified nonconsent. He also explained why he rejected
other potential diagnoses, including paraphilic coercive disorder and sexual sadism.
And he testified, without objection, that he did not find pedophilia as a diagnosis for
Coley.
Dr. Wollert testified that Coley had changed and "his behavior is under his
control."47 Dr. Wollert also testified that he did not believe Coley had ever committed
an adult sexually violent offense. And Dr. Wollert believed Coley's prior sexual
misconduct was merely typical juvenile delinquent behavior and he was a juvenile-
only offender in the context of risk assessment.
As emphasized at oral argument, Coley suggests the questions the State
objected to reveal that Dr. Wollert would have testified that Dr. Arnold's diagnosis
45 Ex. 62 at 74(emphasis added).
46 RP (Jan. 15, 2016) at 853.
47 Id. at 869.
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No. 74770-3-1/14
was incorrect. But the record offers no articulation of the specific testimony
Dr. Wollert would offer to address Dr. Arnold's use of DSM-5; it merely suggests
Dr. WoIlert's general disapproval of Dr. Arnold's diagnosis.
Dr. WoIlert's proffered testimony was clear for some of the sustained
objections, e.g., his opinion that paraphilias of a juvenile do not carry over into
adulthood. But for most of the excluded testimony, Coley made no offer of proof and
it is not clear from the colloquy or context what specific testimony was being
proffered. Coley identified general topics he wanted to explore, but failed to identify
what specific criticism Dr. WoVert would offer, especially as to Dr. Arnold's diagnosis
of other specified paraphilic disorder with pedophilic, coercive, and sadistic traits.
Because the record does not include a formal offer of proof or other equivalent
showing, the trial court was unable to assess the admissibility of the evidence. And
on this record, we cannot conduct a meaningful review concerning whether Coley
suffered any prejudice. .
Alternatively, Coley argues the trial court failed to conduct a Burnet analysis
when it limited Dr. Wollert's testimony as a sanction for a discovery violation.
"Discovery sanctions may be imposed under CR 26 or CR 37.'48 Before
imposing one of the harsher sanctions allowed under CR 37, "the trial court must
consider on the record (1) whether a lesser sanction would probably suffice,(2)
48 Carlson v. Lake Chelan Cmty. Hosp., 116 Wash. App. 718, 737, 75 P.3d 533
(2003).
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No. 74770-3-1/15
whether the violation at issue was willful or deliberate, and (3) whether the violation
substantially prejudiced the opposing party's ability to prepare for trial."49
Here, the trial court did not conduct a Burnet analysis. But accepting the
limitations on Dr. Wollert's testimony implicate Burnet, Coley does not establish a
basis for relief on appeal.
A lack of Burnet findings is harmless if excluded testimony is irrelevant,
cumulative, or otherwise inadmissible.° The majority of cases applying Burnet
involve the complete exclusion of witnesses rather than mere limitation of a permitted
witness's testimony.51 Our Supreme Court has acknowledged the policies underlying
this distinction and reasoned an offer of proof is not necessary "when a key witness is
struck as a sanction for a purported discovery violation," but an offer of proof is
required "where a court refuses to admit a particular piece of testimony during trial."52
Here, the trial court did not completely exclude Dr. WoIlert; the court limited
particular pieces of his testimony. As discussed, Coley failed to make a sufficient
offer of proof regarding the nature of the excluded testimony.
Additionally, most of the cases applying Burnet involve pretrial discovery
rulings and not mid-testimony exclusion of particular testimony. Especially in the
setting of a mid-testimony ruling on the scope of an expert's testimony, efficiency
49 Foss Maritime Co. v. Brandewiede, 190 Wash. App. 186, 194, 359 P.3d 905
(2015)(citing Burnet, 131 Wash. 2d at 494), review denied, 185 Wn.2d 1012(2016).
50 See Jones v City of Seattle, 179 Wash. 2d 322, 356-67, 314 P.3d 380(2013)
(lack of findings regarding exclusion of evidence as a discovery sanction is harmless
where the proffered evidence is irrelevant, or cumulative.).
51 See In re Dependency of M.P., 185 Wash. App. 108, 340 P.3d 908 (2014);
Blair v. Ta-Seattle East No. 176, 171 Wash. 2d 342, 254 P.3d 797(2011).
52 Blair, 171 Wash. 2d at 352 n.5.
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No. 74770-3-1/16
requires a sufficient offer of proof to avoid ongoing disruptions and scheduling
conflicts for rebuttal and other witnesses. These concerns are not as pronounced in
the pretrial context.
In Jones v. City of Seattle, late-disclosed witnesses were excluded mid-
testimony.53 Our Supreme Court recognized that a lack of Burnet findings was
harmless.54 But in Jones, the trial court was provided with enough detail concerning
the proffered testimony to conduct a meaningful analysis of harmless error.
Here, in addition to a request for a new trial, Coley asks this court to speculate
whether the limitations had any meaningful impact on the outcome of the trial. But
Coley's proposition would reward a party who loses a motion to exclude evidence,
does not mention Burnet, and does not make an offer of proof. Whether intentional
or inadvertent, the party proffering evidence without an adequate offer of proof
frustrates the appellate court's ability to conduct a meaningful Burnet analysis.
Consistent with recognized policies compelling a sufficient offer of proof, we
conclude that in the context of mid-testimony exclusion of particular pieces of
testimony, the proponent of the excluded evidence has an obligation to advise the
trial court of the specific proposed testimony. The offer must be sufficient to allow
meaningful appellate review whether an exclusion implicating Burnet is harmful or
prejudicial. Because Coley has not made such an offer of proof, we decline to grant
any relief on appeal.
53 179 Wash. 2d 322, 332-36, 314 P.3d 380(2013).
54 Id. at 356-57.
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No. 74770-3-1/17
Coley also challenges the trial court ruling sustaining the State's objection that
Dr. Wollert improperly bolstered his juvenile-only offender opinion by citing another
expert's view that the prison system considered Coley a juvenile offender.
During direct examination, Coley asked Dr. Wollert, "In the records was there
indication that the prison considered Greg a juvenile sex offender?"55 Dr. Wollert
referenced the opinion of Dr. Paul Daley, a Department of Corrections(DOC)
psychologist who previously evaluated Coley's records. In his report, Dr. Wollert
stated that Dr. Daley opined Coley did not meet the criteria for sexually violent
predator status. Dr. Wollert also noted Dr. Daley's "observation that most of
Mr. Coley's sexual-offense history occurred while he was a child."56 The State
objected to Dr. Wollert "testifying about what other experts have considered" because
such testimony constituted bolstering.57
The briefing on this issue is not especially helpful. Although ER 702 and 703
allow an expert to identify facts and data that are the basis for his or her opinion, an
expert should not act as a conduit to restate a nontestifying expert's opinions.55
On this record, we conclude it was within the discretion of the trial court to
preclude Dr. Wollert from testifying that another expert had observed that the DOC
treated Coley as a juvenile offender.
55 RP (Jan. 15, 2016) at 880-81.
56 Ex. 62 at 15.
57 RP (Jan. 15, 2016) at 881.
58 DAVID H. KAY, DAVID E. BERNSTEIN, & JENNIFER L. MNOOKIN, THE NEW WIGMORE:
A TREATISE ON EVIDENCE: EXPERT EVIDENCE § 4.7.1 (2nd ed. 2017)("Rule 703 does not
permit the bolstering of one expert's testimony with a showing that other prestigious
experts concur.").
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No. 74770-3-1/18
IV. Cumulative Error
Coley argues cumulative error resulted in an unfair trial, but he does not
establish any cumulative error.59
We conclude Coley was not deprived of a fair trial. Therefore, we affirm.
WE CONCUR:
59 In re Detention of Coe, 175 Wash. 2d 482, 515, 286 P.3d 29(2012)(citing State
v. Grieff, 141 Wash. 2d 910, 929, 10 P.3d 390(2000)("The cumulative error doctrine
applies where a combination of trial errors denies the accused a fair trial even where
any one of the errors, taken individually, may not justify reversal.")).
18