Opinion
No. 47279-8-I Consolidated with No. 47778-1-I.
Filed: September 15, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 94-2-07248-8. Judgment or order under review. Date filed: 08/18/2000.
Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Paul Stern, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Mitchell Gaff appeals the order that he remain in custody at the Special Commitment Center (SCC) based on an adverse jury verdict following the evidentiary hearing on his petition for conditional release under former RCW 71.09.090(1). The jury found that a proposed Less Restrictive Alternative (LRA) to total confinement was not adequate to protect the community. Specifically, it determined that Gaff's mental abnormality or personal disorder remained such that he is not safe to be at large, and if conditionally released to a LRA he is likely to engage in predatory acts of violence. The trial court correctly denied his motions for judgment as a matter of law.
Gaff's attorney provided effective assistance of counsel, and Gaff did not show that alleged prosecutorial misconduct denied him a fair trial. Gaff invited instructional error, waiving his claim on appeal that the State show volitional impairment. And Gaff did not show cumulative error that denied him the right to a fair trial. We affirm.
Gaff committed violent sex offenses for which he was found guilty and sentenced to prison. Near the end of that sentence, the State petitioned for his confinement as a sexually violent predator. Following hearings on that petition, he was committed to the SCC as a sexually violent predator in 1995. Thereafter, the SCC performed the required annual reviews of Gaff's status. In 1999, Gaff petitioned, unsuccessfully, for release to a LRA.
In 2000, the SCC's annual report concluded that it was appropriate to release Gaff to a LRA. The trial court ordered the required evidentiary hearing under former RCW 71.09.090.
At that hearing, the State presented the testimony of two witnesses as well as other evidence. The witnesses were Gaff and Dr. Vincent Gollogly, who works at the SCC. At the close of this evidence, the State rested. Gaff then moved for a directed verdict, claiming that the State failed to meet its burden to show the statutory criteria for continued commitment. Noting the alleged absence of any expert opinion that Gaff should not be released and the evidence that the SCC's experts recommended release, Gaff argued that the court should order conditional release. The court denied the motion. Following presentation of additional evidence, Gaff renewed the motion after the close of his evidence. The court denied this motion.
Thereafter, the jury returned a verdict adverse to Gaff. He moved for judgment notwithstanding the verdict. The court denied this motion as well.
Gaff appeals.
THE STATE'S BURDEN OF PRODUCTION OR PERSUASION
Gaff first argues that the State failed to satisfy its burden of production or persuasion under former RCW 71.09.090(1). He states that the LRA statute mandates more rigorous procedural protections when the SCC recommends conditional release than when it does not. For example, an individual need not show probable cause and the matter is automatically set for trial in the former case. Based on that premise, Gaff argues that it would make no sense for the State to bear the burden of production in the latter case, but not the former. We do not disagree. But the argument begs the question: Whether the State met its statutory burden in this case without calling its own expert to offer an opinion contrary to that of the SCC.
Gaff next argues that two provisions of former RCW 71.09.090(1) support the conclusion that the State must provide its own expert at the hearing to meet its statutory burden of proof. The first provision provides '{t}he prosecuting attorney shall have the right to have the petitioner examined by an expert or professional person of his or her choice.' The second provision states:
The burden of proof shall be upon the prosecuting attorney or attorney general to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that if conditionally released to a less restrictive alternative or unconditionally discharged is likely to engage in predatory acts of sexual violence.
Gaff argues that these provisions are 'linked,' and consequently the State must have its own expert testify against a LRA. This is not convincing.
The statutory language regarding the 'right' to such an examination is permissive, not mandatory. Moreover, the statute is silent on whether such an expert must testify at the evidentiary hearing. Had the Legislature wished to make either such expert examination or expert testimony at the evidentiary hearing mandatory, it could easily have done so. It did not, and we will not read into the statute such a requirement.
To the extent that Gaff relies on 2001 amendments to the statute, they are irrelevant to this 2000 proceeding. Likewise, they are unpersuasive.
Next, Gaff argues that former RCW 71.09.090(1) parallels former RCW 71.09.090(2), which case law suggests creates burdens of production. Former RCW 71.09.090(2) outlined the procedure for petitioning for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. In In re Detention of Petersen, our supreme court held that Petersen had an affirmative burden at the show cause hearing to present evidence that 'facts exist{ed}' to justify a full evidentiary hearing. And in In re Detention of Turay, our supreme court confirmed that due process requires that the State bear the burden of proof at show cause hearings under RCW 71.09.090. But the language of the statute at issue here expressly places the burden of proof on the State, and the State does not contest that it bears that burden. Thus, these cases do not help us decide the question at issue here.
138 Wn.2d 70, 980 P.2d 1204 (1999).
Petersen, 138 Wn.2d at 90. The statute stated: 'If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person's condition has so changed that he or she is safe to be conditionally released to a less restrictive alternative or unconditionally discharged.'
139 Wn.2d 379, 986 P.2d 790 (1999), cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001).
Turay, 139 Wn.2d at 423.
Next, Gaff cites to a series of Sexually Violent Predator Act (SVPA) cases that show that expert testimony is a central feature of litigation on these issues. Gaff also cites to In re Detention of A.S., in which our supreme court stated that a physician's testimony is required to justify a 14-day involuntary commitment under RCW 71.05. Gaff correctly argues that the question of whether a person committed as a sexually violent offender is likely to engage in predatory acts of sexual violence, based on evidence like actuarial instruments, clinical treatment, and conditions of release, is the type of question for which expert evidence is normally required in Washington. But the State does not argue that it may meet its burden without relying on any expert testimony. Rather, it relies on expert testimony by the four expert witnesses who testified at trial. The State called one of those witnesses, Dr. Vincent Gollogly, the clinical director at the SCC. Gaff called three expert witnesses, Dr. James Manley, Dr. Mark Whitehall, and therapist John Rockwell.
138 Wn.2d 898, 982 P.2d 1156 (1999).
A.S., 138 Wn.2d at 915, n. 7.
Gaff fails to cite any authority, statutory or case law, to support his argument that the State, in presenting expert testimony to support its argument, must also present an expert opinion agreeing with that argument. While the State's decision not to call such an expert is unusual, it is not prohibited by any authority Gaff cites. Because he has cited no authority, we must presume he has found none.
State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171, cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978) (courts may assume that where no authority is cited, counsel has found none after search).
And the cases Gaff does cite simply do not support his argument. In In re Dependency of C.B., this court discussed the concept of the burden of production in relation to the test for substantial evidence to support a verdict. We cited the United States Supreme Court's holding in Jackson v. Virginia for the proposition that '{i}n criminal cases, the State meets its burden of production by introducing evidence from which a rational trier of fact could find beyond a reasonable doubt the facts required by the substantive criminal statute.' And McCormick on Evidence, which we cited in C.B., states, 'One burden {the burden of production} is that of producing evidence, satisfactory to the judge, of a particular fact in issue.' These statements require merely that the party produce evidence sufficient to demonstrate that there is a question of fact. No authority indicates that burden of production requires a specific type of evidence — here, a separate expert opinion supporting the State's position.
61 Wn. App. 280, 810 P.2d 518 (1991).
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
C.B., 61 Wn. App. at 285 (citing Jackson, 443 U.S. at 324; State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980) (italics ours)).
McCormick on Evidence, Vol. 2, 409 (5th ed. 1999).
The remaining question before us is whether the evidence introduced at trial, including both expert testimony and other evidence, was sufficient to withstand Gaff's motions for judgment as a matter of law. We hold that it was. Gaff argues that, because the State failed to meet its burden of production, the trial court erred in denying his motions for a directed verdict at the close of the State's case and at the close of the Gaff's case, and his motion for judgment notwithstanding the verdict. A party waives any error in the denial of a motion to dismiss following the plaintiff's case by presenting evidence in his own behalf, as Gaff did here. Thus we look at all of the evidence presented at trial in reviewing the remaining motions for judgment as a matter of law, made at the close of Gaff's case and after the jury's verdict.
Hume v. American Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 905, 130 L.Ed.2d 788 (1995).
The State does not argue that a motion for a directed verdict or a motion to set aside a verdict is unavailable in a SVPA proceeding. This court determined in In re Detention of Mathers that a summary judgment in favor of the State was appropriate in a proceeding brought under RCW 71.09.090. In re Detention of Mathers, 100 Wn. App. 336, 341, 998 P.2d 336 (2000).
We review a ruling on a CR 50 motion for judgment as a matter of law de novo. In reviewing a trial court's denial of a CR 50 motion, we apply the same standard as that applied by the trial court. Judgment as a matter of law is proper only when we determine as a matter of law that there is no evidence, or reasonable inference from it, to support the verdict. We interpret the evidence in the light most favorable to the nonmoving party, assuming the truth of that evidence and all inferences that flow from it. The State introduced evidence, through Dr. Gollogly, that Gaff suffers from a mental abnormality, including five paraphilias: rape, sexual sadism, exhibitionism, voyeurism, and telephone scatalogia. He also has antisocial personality disorder traits. Dr. Gollogly testified that past behavior is the single best predictor of future sexual behavior. Gaff has admitted to at least eight rapes, and several attempted rapes. Dr. Gollogly agreed that the more paraphilias an individual has, the more difficult they are to treat. Dr. Gollogly stated that actuarial instruments are needed to evaluate the risk that an individual will reoffend because clinical judgment alone is not reliable enough. Dr. Gollogly testified that one of these actuarial instruments, the VRAG, showed that Gaff has a 55 percent chance of reoffending over seven years, and a 64 percent chance of reoffending over 10 years. The risk of reoffense increases one to two percent each year after ten years.
Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 528, 20 P.3d 447, review denied, 145 Wn.2d 1004 (2001).
Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995).
Goodman, 128 Wn.2d at 371.
Goodman, 128 Wn.2d at 371.
Gaff was tested for psychopathy and, at least once, scored within the range of standard error for being a psychopath. Regardless of treatment, 45 percent of psychopaths will reoffend. In one study, some psychopaths who went through sexual deviancy treatment with high ratings were four times as likely to reoffend as offenders with lower ratings. Dr. Gollogly stated that these psychopaths likely learned in treatment how to con people into believing they were less likely to reoffend, thus they were 'more dangerous' than offenders who scored lower in psychopathy and treatment behavior. Dr. Gollogly also testified about risk factors affecting Gaff. Alcohol or drug use can be a factor for Gaff in his reoffense cycle. Despite treatment for alcohol and drug abuse, Gaff used marijuana six to ten times in 1997 and 1998, even though he was confined in the SCC at that time. Another risk factor for Gaff would be rejection by the community. If Gaff were unable to find work, that would be another risk factor.
Viewing this evidence in the light most favorable to the State, we cannot say, as a matter of law, 'that there is no evidence, or reasonable inference from it, to support the verdict.' Gaff challenges the State's evidence, arguing that the experts' testimony contradicted or ameliorated the testimony on which the State relies. But this argument is directed to the weight the jury gave to the evidence, not the sufficiency of evidence to support the verdict. We will not reweigh the evidence here; rather we must accept the truth of the State's evidence and reasonable inferences.
The trial court did not err in denying Gaff's motions for judgment as a matter of law. Gaff next argues that the State's failure to produce expert testimony sufficient to meet its burden denied him procedural and substantive due process as well as equal protection. Because we hold that the State did not fail to meet its burdens of production and persuasion, we need not reach these arguments.
IMPEACHMENT
Gaff also argues that the State presented insufficient evidence because impeachment evidence is not substantive evidence, and a party may not call a witness for the primary purpose of impeachment. But this argument mischaracterizes the nature of the evidence presented to support the State's position. As Gaff asserts, it is settled law that '{i}mpeachment evidence affects a witness' credibility and is not proof of the substantive facts encompassed in such evidence.' But the 'impeachment evidence' referred to in the opinions cited is not the kind of evidence Gaff describes as impeachment evidence. Gaff asserts that evidence contradicting or calling into question the expert's opinions or sources of information was impeachment evidence. But all of that evidence was substantive evidence offered as proof of the facts asserted. The impeachment evidence referred to in Johnson and Fliehman were prior inconsistent statements used to impeach the credibility of witnesses, and were not admissible on other grounds as substantive evidence. The question in Johnson was whether the trial court improperly instructed the jury that it could not consider the out-of-court statements as substantive evidence. The issue in Fliehman was whether the State had laid a proper foundation for impeachment by self-contradiction before the evidence was admitted. Neither case is apposite here. Gaff also argues that a party may not call a witness for the primary purpose of impeachment, and thus Dr. Gollogly's testimony was erroneously admitted. State v. Hancock, which Gaff cites for this proposition, is also inapposite. The issue in that case was whether ER 607 allows 'a prosecutor to call a witness for the primary purpose of later impeaching his testimony with prior inconsistent statements made out of court and which are otherwise inadmissible hearsay.'
State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985) (citing State v. Fliehman, 35 Wn.2d 243, 212 P.2d 794 (1949)).
Johnson, 40 Wn. App. at 377.
Fliehman, 35 Wn.2d at 245.
109 Wn.2d 760, 748 P.2d 611 (1988).
Hancock, 109 Wn.2d at 763.
Our supreme court characterized the 'underlying concern' as a concern that 'prosecutors may abuse the rule by calling a witness they know will not provide useful evidence for the primary purpose of introducing hearsay evidence against the defendant' as a tactic to 'exploit a jury's difficulty in making the subtle distinction between impeachment and substantive evidence.' In that case, the court rejected the defendant's argument because it held that, in calling the challenged witness, the 'State was not primarily motivated by a desire to impeach her testimony with otherwise inadmissible hearsay.' Rather, looking at the whole of the witness's testimony, it was clear that the witness, the defendant's wife, was a logical witness and was called by both sides. In contrast, the expert evidence here was introduced to support the finding that Gaff's release to an LRA was not proper under the statutory standards, notwithstanding the SCC's recommendation to the contrary. And we note that the State elicited testimony from Dr. Gollogly that both supported and called into question his ultimate opinion. The State did not primarily call him to impeach his credibility with prior inconsistent statements.
Hancock, 109 Wn.2d at 763.
Hancock, 109 Wn.2d at 764.
Hancock, 109 Wn.2d at 764.
EFFECTIVE ASSISTANCE OF COUNSEL
Gaff argues that he received ineffective assistance of counsel because his attorney failed to request a limiting instruction for the State's impeachment evidence and failed to request a missing witness instruction.
We disagree.
In Strickland v. Washington, the United States Supreme Court established a two-part test for ineffective assistance of counsel. First, the defendant must show deficient performance. This court's scrutiny of counsel's performance is highly deferential and we will indulge in a strong presumption of reasonableness. Second, the defendant must show prejudice — 'that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' To meet the second prong, defendant must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Failure to offer a jury instruction may constitute ineffective assistance of counsel. First, Gaff argues that his counsel's performance was deficient because he failed to offer a limiting instruction regarding the State's use of impeachment. We disagree, and need not reach the prejudice prong on this claim. Gaff argues that his counsel should have offered an instruction to the jury stating that impeachment evidence affects a witness's credibility, and is not proof of the substantive facts encompassed in the evidence. He argues that this instruction should have been offered to counter the State's 'impeachment' of the expert witnesses. But this instruction would not be available in this case. As discussed above, in this case, the State did not introduce the evidence Gaff characterizes as 'impeachment' evidence to show that the experts were untrustworthy liars.
466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Strickland, 466 U.S. at 688-89.
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 687.
Strickland, 466 U.S. at 694.
Thomas, 109 Wn.2d at 228.
Rather, it introduced the evidence as substantive evidence contradicting evidence presented by the experts. The cited rule is thus inapposite and the trial court would not have, as Gaff asserts, been obliged to give the instruction. Gaff's counsel was not deficient in failing to propose the instruction. Next, Gaff argues that his attorney's performance was deficient because he failed to offer a 'missing witness' instruction. He contends that his attorney should have offered a jury instruction suggesting that the jury could infer from the fact that the State did not call an expert witness to testify that Gaff could not safely be released to a LRA that the State was unable to find an expert who would testify to that proposition. We disagree because such an instruction was not appropriate for this case. Where evidence that would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, the jury may draw an inference that it would be unfavorable to him.
State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991).
But for a witness to be 'available' to one party to an action, there must be such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, that it is reasonably probable that the witness would have been called to testify except for the fact that this testimony would have been damaging. But the instruction is not appropriate in this case. Typically, the missing witness is a particular individual with some knowledge of the facts in the case. For example, in Davis, the uncalled witness was a member of the same law enforcement agency as the testifying officer, and was the only other witness to the defendant's interrogation.
State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968).
Davis, 73 Wn.2d at 277-78.
Our supreme court held that this officer was 'peculiarly available' to the prosecution because he 'worked so closely and continually with the county prosecutor's office with respect to this and other criminal cases as to indicate a community of interest between the prosecutor and the uncalled witness.' By contrast, Gaff has not identified an expert here who had such a relationship with the State and was not called to testify. Gaff has not cited to any case that has found that the missing witness could be an unidentified hypothetical expert who would testify in support of one party's theory. Certainly, the jury, using common sense, could assume that the State would have called an expert to testify that Gaff could not be safely placed in an LRA if it had found such an expert. And Gaff was free to comment on the State's failure to present such testimony. But Gaff has not shown that a missing witness instruction was appropriate in this case. His trial counsel's performance was not deficient in failing to request such an instruction.
Davis, 73 Wn.2d at 278.
PROSECUTORIAL MISCONDUCT
Gaff argues that the prosecutor committed egregious prosecutorial misconduct that denied him a fair trial. We disagree.
A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. This court views the prosecutor's allegedly improper remarks in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. When the alleged misconduct is such that its prejudicial effect may not be corrected by an appropriate admonition to the jury, the proper remedy is to call the matter to the trial court's attention, claim a mistrial, and ask that the jury be discharged. Failure to object to an improper remark constitutes a waiver of error unless the remark is so 'flagrant and ill intentioned' that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Brown, 132 Wn.2d at 561.
Brown, 132 Wn.2d at 561.
State v. Beard, 74 Wn.2d 335, 339-40, 444 P.2d 651 (1968).
Brown, 132 Wn.2d at 561 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
First, Gaff argues that the prosecutor committed prejudicial misconduct when he asked two witnesses whether the cost of the proposed LRA would be $150,000 a year. Gaff argues that the prosecutor was aware that this information was inadmissible because the trial court had excluded it in Gaff's initial commitment trial. But there was no motion in limine in this case regarding the issue.
Gaff asserts that this court 'cited that ruling with approval.' This greatly overstates the case. This court noted the ruling in the facts section of an opinion reviewing Gaff's commitment trial, but did not analyze the ruling itself. In re Detention of Gaff, 90 Wn. App. 834, 839, 954 P.2d 943 (1998).
Gaff's attorney failed to object to the question the first time the prosecutor posed it. After the prosecutor asked the question of a second witness, Gaff's attorney objected, and the court sustained the objection stating that cost was not a relevant consideration for the jury. Gaff did not seek a curative instruction or move for a mistrial at that time. The court's Instruction No. 11 to the jury stated, 'The cost of any less restrictive alternatives may not be considered in your deliberations.' The jury is presumed to follow the court's instructions. Gaff argues that the question was nevertheless so flagrant and so damaging that a curative instruction could not erase the damage. We disagree. Gaff argues first that the instruction merely highlighted evidence for the jury, which the jury would be unable to disregard. This is unconvincing. The evidence was not, as Gaff asserts, so extremely prejudicial that a juror could not allow Gaff a fair trial after hearing the sum. And even in the absence of the repeated statement of the figure '$150,000', the jury could have concluded that the cost of the LRA would be great. It would be evident to any reasonable juror that the extensive measures described in Gaff's proposed LRA would not be without cost.
State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996).
Nor is Gaff's argument that the prosecutor clearly asked the question with deliberate malice convincing. Gaff did not raise the issue in a pretrial motion, and did not even object the first time the question was asked. He has not shown that the prosecutor's questions were so flagrant and ill-intentioned that they could not have been cured by the court's instruction. Next, Gaff argues that the State committed prosecutorial misconduct by asking four questions that assumed factual predicates that the State did not prove by introducing evidence into the record. Gaff argues that a prosecutor 'may not ask questions which assume a factual predicate, then fail to prove up that predicate.' In Beard, our supreme court held that the examination of a witness by the state with regard to prior convictions, when the prosecutor is either unwilling or unable to prove the alleged convictions upon the witness's denial, was erroneous. In State v. Yoakum, our supreme court held that a prosecutor may not impeach a witness with alleged inconsistent statements, without then placing the alleged statement into evidence. In State v. Babich, this court held that a prosecutor erred in impeaching a witness by reading portions of a conversation he allegedly had with a person wearing a body wire, but failing to introduce evidence of the conversation. But even if the remarks were improper, none was prejudicial. Gaff failed to object to two of the allegedly erroneous questions.
Beard, 74 Wn.2d at 339 (citing State v. Goodwin, 29 Wn.2d 276, 186 P.2d 935 (1947)).
37 Wn.2d 137, 222 P.2d 181 (1950).
Yoakum, 37 Wn.2d at 144.
68 Wn. App. 438, 842 P.2d 1053, review denied, 121 Wn.2d 1015 (1993).
Thus, he has waived these claims unless the remarks were so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Neither was. In the first, the prosecutor stated to Dr. Manley that intelligence tests placed Gaff in the top ten percent of the population. Gaff argues that this implied that Gaff could outsmart the experts. The remark would not create an enduring and resulting prejudice. Gaff also failed to object to the prosecutor's statement that Gaff learned to wire security devices while in prison, suggesting that the experts were deficient in failing to consider this skill when evaluating Gaff's rehabilitation. Again, while this information was somewhat inflammatory, it could have been neutralized by a curative instruction. Gaff did object to two of the remarks, but he has not shown that there was a substantial likelihood that either remark affected the jury's verdict.
In the first instance, the prosecutor asked if an expert had seen a police report showing that they took a pistol, not a toy gun, from Gaff, suggesting that Gaff continued to lie about his acts. But Gaff himself testified that he pointed 'a gun' in that incident. The remark could not have affected the jury's verdict. Finally, Gaff objected when the prosecutor asked an expert if he was aware that Gaff's wife had had an affair after their marriage. When Gaff objected, the State offered to call a witness to testify on the issue, but did not do so. Again, Gaff has not shown a substantial likelihood that this remark affected the jury's verdict.
Finally, Gaff argues that the State impermissibly shifted the burden of proof to him when the prosecutor stated in closing argument that none of the experts who testified were able to cite 'a single study that says treatment is effective for sexual sadists.' We disagree. This statement did not shift the burden of proof to Gaff, but merely pointed to the absence of evidence on that issue. This is permissible. In the criminal context, our supreme court has rejected the argument that any comment referring to a defendant's failure to produce witnesses is an impermissible shifting of the burden of proof. And, as Gaff argues in his previous arguments regarding the missing witness instruction, a party may point out the other party's failure to present evidence and even draw inferences from the failure in some instances. The prosecutor's comment in this case merely pointed out the absence of evidence, without shifting the burden of proof to Gaff.
Blair, 117 Wn.2d at 491.
5 Karl B. Tegland, Wash. Prac., Evidence Law and Practice §§ 402.7, 402.8, at 238-44 (4th ed. 1999).
VOLITIONAL ELEMENT
Gaff argues that, under the United States Supreme Court's decision in Kansas v. Crane, the jury instructions presented at trial unconstitutionally omitted any requirement that the State prove a volitional element of inability to control dangerous behavior. Because Gaff invited the instructional error, if any, this argument fails.
534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).
In Crane, the Court reviewed the Kansas State Supreme Court's interpretation of its decision in Kansas v. Hendricks. The Court held that Hendricks requires proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
Crane, 534 U.S. at 413. After oral argument in this case, our supreme court held that 'Crane requires a determination that a potential SVP has serious difficulty controlling dangerous, sexually predatory behavior, but does not require a separate finding to that effect.' In re Detention of Thorell, 72 P.3d 708, 715 (2003) (italics in original).
But Gaff invited this error. Under the 'invited error' doctrine, a party who requests an instruction is barred from challenging that instruction on appeal. Gaff's proposed instructions, though not identical to the court's instructions, were substantially similar, and also omitted any reference to volitional control. Thus, he may not challenge the alleged constitutional error here.
State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999).
CUMULATIVE ERROR
The combined effect of an accumulation of errors may require a new trial, even where some of these errors, standing alone, might not be of sufficient gravity to require reversal. Because there were no errors, there was no cumulative error.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
We affirm the order that Gaff remain in custody at the SCC.
SCHINDLER and AGID, JJ., concur.