Opinion
No. 35927-8-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 05-2-00440-1, Craddock D. Verser, J., entered January 17, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Hunt, J.
The State seeks discretionary review of the trial court's order appointing a second expert for an evaluation of Christopher Gaylord, whom the State seeks to commit as a sexually violent predator. The State argues that RCW 71.09.050(2) allows indigent respondents only one expert. Alternatively, the State argues that WAC 388-885-010 allows a second expert only for good cause and that the trial court lacked good cause to appoint a second expert for Gaylord. Because the statute allows the court to appoint more than one expert for an accused sexually violent predator and the trial court did not abuse its discretion in appointing a second expert, we affirm.
FACTS
The State filed a petition to civilly commit Christopher Gaylord as a sexually violent predator (SVP), chapter 71.09 RCW, supported by a psychological evaluation of Gaylord documenting his history of sexually deviant behavior. Gaylord stipulated that the State had established probable cause to believe that the criteria for civil commitment had been met, and the trial court ordered Gaylord detained and evaluated.
On January 18, 2006, the trial court authorized funds for Dr. Natalie Novick Brown to examine Gaylord. On November 28, 2006, Gaylord moved for an order authorizing funds for an additional expert. The motion itself offered no supporting argument, aside from a reference to RCW 71.09.050(2), the relevant statutory section. The State responded that WAC 388-885-010(3) allows a defendant one expert and that the trial judge may approve additional experts only for "good cause." Clerk's Papers at 51-52.
During oral argument, the trial court asked Gaylord's counsel why he needed an additional expert. Gaylord's counsel first replied that the initial expert's findings "were not that different than the State's expert." Report of Proceedings (RP) at 2. Counsel then stated that Dr. Brown examined Gaylord with the understanding that he would be referred to a "special program" in South Carolina instead of facing trial. RP at 3. Dr. Brown based her findings on that belief and did not generate a formal report. For reasons unclear from the record, the parties later determined that Gaylord would not be sent to that special program but would instead face trial. The State argued that Washington law clearly requires good cause to appoint a second expert at public expense and contended that Gaylord was merely searching for a more favorable expert. The State also argued that the parties never agreed that Gaylord would attend the South Carolina program; they merely understood that the program would be an option.
The trial court granted Gaylord's motion for a second expert, explaining that it wanted to proceed with an "abundance of . . . caution" because Gaylord could be locked up for life. RP at 7. The court also expressed its concern that the previous expert's examination of Gaylord "wouldn't do us any good at trial." RP at 6. The trial court entered an order authorizing funds for the expert services of Richard Wollert, Ph.D. on January 17, 2007.
ANALYSIS
The State first argues that the SVP statute limits the respondent to a single expert at public expense. We review the trial court's interpretation of a statute de novo. Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, Page 3 947 P.2d 721 (1997). The State argues in the alternative that if we find the statute allows a second expert, the trial court must find good cause for that expert. We review the trial court's finding of good cause for an abuse of discretion. State v. Hermanson, 65 Wn. App. 450, 452, 829 P.2d 193 (1992); State v. Young, 125 Wn.2d 688, 691, 888 P.2d 142 (1995).
A. Statutory Interpretation
Washington's SVP statute provides in part: "In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." RCW 71.09.050(2). Washington's Administrative Code interprets this statutory directive to mean that, upon a showing of "good cause," a trial judge may appoint additional experts to assist an indigent person at public expense. WAC 388-885-010(3). Contrary to the Code interpretation, the State argues that the singular article "an" limits an indigent defendant to a single expert at the public's expense.
We disagree with the State that RCW 71.09.050(2) allows indigent defendants only a single expert. To support its assertion, the State cites to criminal cases interpreting the article "a" to authorize charging a separate unit of a crime for each instance where it occurred. State v. Leyda, 157 Wn.2d 335, 346 n. 9, 138 P.3d 610 (2006). In that context, the State is likely correct that in using the singular article "a," the legislature intended the singular. But generally, we construe "a" or "an" "as applying to the plural as well as the singular, unless a contrary intention appears on the face of the statute." Rabanco Ltd. v. King County, 125 Wn. App. 794, 802, 106 P.3d 802 (2005) (quoting Hinton v. Johnson, 87 Wn. App. 670, 675, 942 P.2d 1061 (1997)).
Read as the State argues, Washington's provisions for committing the criminally insane would also limit all persons subject to that statute (not just the indigent) to one expert. See RCW 10.77.020. The applicable portion of the statute reads:
Whenever any person is subjected to an examination pursuant to any provision of this chapter, he or she may retain an expert or professional person to perform an examination in his or her behalf. In the case of a person who is indigent, the court shall upon his or her request assist the person in obtaining an expert or professional person to perform an examination or participate in the hearing on his or her behalf.
RCW 10.77.020(2) (emphasis added). We are satisfied that the legislature did not intend to limit a criminal defendant to a single expert evaluation of the often complex issue of criminal insanity. Likewise, Washington case law does not support the State's reading. See e.g. In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 208, 53 P.3d 17 (2002) (discussing the potential testimony of multiple psychological experts in considering a claim raised under chapter 10.77 RCW without mention of limiting the defendant to one expert). Moreover, the State's interpretation runs counter to WAC 388-885-010(3), which specifies the good cause requirement for appointing a second expert for an indigent defendant. This requirement would be unnecessary if RCW 71.09.050(2) disallowed a second expert.
B. Good Cause
Lastly, the State argues that the trial court abused its discretion in granting Gaylord a second expert because Gaylord did not show good cause as WAC 388-885-010(3) mandates. The State reasons that Gaylord was merely "expert shopping" for a favorable opinion, and the trial court abused its discretion by accommodating him. Br. of Appellant at 7-8. A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
We have found good cause to appoint an additional expert when the defendant would otherwise be denied the services of a trial expert to rebut the State's evidence. In re Det. of Anderson, 134 Wn. App. 309, 321, 139 P.3d 396 (2006), review granted, 160 Wn.2d 1005 (2007). In Anderson, the defendant had severed ties with his initial expert several years earlier and would have been unable to rebut the State's evidence of his current dangerousness without a new expert. Anderson, 134 Wn. App. at 321. We held that the defendant's inability to meet the State's evidence constituted good cause to appoint a second expert. Anderson, 134 Wn. App. at 321.
Although the record here is spare, the trial court expressed concern that, similar to Anderson, the first expert's work "really doesn't count, it wouldn't do us any good at trial." RP at 6. And the trial court was concerned that Gaylord was facing the possibility of lifetime commitment. Balancing Gaylord's need for expert help against the possible consequences of trial, the trial court properly exercised its discretion by granting Gaylord a second expert.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and HUNT, J., concur.