Opinion
No. 61298-1-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-07708-3, Bruce W. Heller, J., entered January 25, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, C.J., and Lau, J.
Darrel Stewart appeals his civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. He contends the trial court should have declared a mistrial when the expert called by the State testified about the possibility that Stewart suffered from a previously undisclosed mental disorder. But the court instructed the jury to disregard the testimony in its entirety. We find the trial court did not abuse its discretion in denying a mistrial. Accordingly, we affirm.
FACTS
The State filed a petition for Stewart's commitment as he neared the end of his prison sentence for two counts of attempted kidnapping in the first degree and two counts of assault in the second degree. Based on his most recent offenses, and other crimes and incidents dating back to when he was only 15 years old, the State alleged that Stewart met the statutory definition of an SVP.
At the commitment trial, the jury heard abundant testimony about Stewart's past criminal and deviant sexual history. The jury also heard from Dr. Richard Packard. Dr. Packard conducted an in-person interview with Stewart. He relied on that interview, the results of several psychological tests he administered, and Stewart's offense history, in forming his opinions. He determined that Stewart suffered form an anti-social personality disorder. Dr. Packard also stated there was a substantial possibility Stewart suffered from "Paraphilia Not Otherwise Specified: Non-Consent," a mental abnormality. While discussing other possibilities to explain Stewart's behavior, Dr. Packard explained:
Yes. As Mr. Stewart describes how these events come about, and he describes them in the sense of saying like he was in the movie theater for the first time, he saw a woman, he said he wanted to get laid.
He described the circumstances with his cousin, female cousin. He was at her house. He didn't go over to her house with the intent to rape her but he is there, "And my brother used to get some, so I am going to, too." A very sudden, quick think it, begin acting on it.
The circumstances in the theater, although he describes it as an accident, walking into the women's room by accident, even his response, according to him, at the time was to start to panic and then grab her around the throat. However, if you consider the victim's statement on that, again, this was something that happened very quickly in the course of the movie theater.
All of these incidents seemed to occur with relatively little premeditation or planning or any extended period of time going on about that. So in his description of these events, it also sounds that it's possible that he has what's called impulse control disorder.
(Emphasis added).
Stewart moved for a mistrial on the ground that Dr. Packard had not previously included the possibility of impulse control disorder in either of the reports he wrote or his earlier deposition testimony, but the trial court determined that Stewart had not been "fatally" prejudiced and denied the motion. The court nevertheless instructed the jury as follows:
Good morning, ladies and gentlemen. In case you did not know, we haven't been idly sitting about when you've been in the jury room. We have been working hard on some significant issues. I'm very sorry for all the waiting, but issues have come up that we had to deal with. We dealt with them, so we are going to proceed.
Before we do that, I'm going to issue you a couple of instructions. They are called limiting instructions, and they are very important.
Yesterday you heard Dr. Packard mention as a possible explanation for Mr. Stewart's behavior that he might have an impulse control disorder. He did not testify that this was a medical diagnosis, but he did mention it as a possible explanation. You are to disregard that testimony entirely, and you are not to consider it in your deliberations for any purpose.
The second matter has to do with Dr. Packard's reference to neurological issues by Mr. Stewart based on difficulties when he was born. You may recall some testimony about just some physical difficult[y] he had that could have caused an injury to his head, which could have caused some neurological problems. You are also to disregard that testimony entirely, and you are not to consider it in your deliberations for any purpose.
Stewart called his own expert, who disagreed with Dr. Packard's diagnosis of a mental abnormality or personality disorder. The jury found that Stewart met the elements of the SVP statute and the trial court entered an order of commitment. Stewart appeals.
ANALYSIS
In order to involuntarily commit a person under the SVP statute, the State must provide evidence to prove beyond a reasonable doubt that the person is a sexually violent predator (SVP). An SVP is defined as "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility."
Stewart contends the trial court erred in denying his motion for a mistrial. He argues that Dr. Packard's opinion testimony regarding impulse control order as a possible explanation for Steward's behavior was both a discovery violation and a trial irregularity that denied him his right to a fair trial. Thus, Stewart argues the order of commitment must be reversed and the matter remanded for a new trial. We disagree.
A respondent in a civil commitment proceeding has a constitutional right to a fair trial. A mistrial is appropriate only when a trial irregularity so prejudices a defendant that nothing short of a new trial can ensure that the defendant will be tried fairly. "Whether to grant a motion for mistrial is a matter addressed to the sound discretion of the trial court and is reviewed for an abuse of discretion." A trial court abuses its discretion when its decision is based on untenable grounds or is manifestly unreasonable. In determining whether the effect of an irregular occurrence at trial affected the trial's outcome, we examine: (1) the seriousness of the irregularity; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it. Here, the impulse control disorder testimony by Dr. Packard is not so prejudicial as to warrant a mistrial. Dr. Packard only discussed the possibility of an impulse control disorder. References to Stewart's neurological problems occurred outside the presence of the jury. At its core, Stewart's mistrial motion was based on a diagnosis that Dr. Packard never made and a comment about a neurological issue that the jury never heard. In any event, the trial court instructed the jury to disregard the offending testimony in its entirety. The jury is presumed to follow cautionary instructions. Moreover, the trial court is in a much better position to judge potential prejudice. We therefore defer to the trial court's determination of prejudice. We find no manifest abuse of discretion. The trial court properly denied Stewart's motion for a mistrial.
In re Det. of Ross, 114 Wn. App. 113, 121-22, 56 P.3d 602 (2002).
State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994).
In re Det. of Broten, 130 Wn. App. 326, 336, 122 P.3d 942 (2005).
Broten, 130 Wn. App. at 336.
State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000).
Stewart cites a criminal rule, CrR 4.7, in support of his argument that the State committed a discovery violation that could only be remedied by a mistrial. But the SVP statute is civil, not criminal, in nature. In re Pers. Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993). "[The civil] rules govern the procedure in the superior court in all suits of a civil nature . . . with the exceptions stated in rule 81." CR 1. "Except where inconsistent with rules or statutes applicable to special proceedings, these rules shall govern all civil proceedings." CR 81(a). Since SVP proceedings are civil, the civil rules apply to SVP proceedings unless the "statutes applicable to special proceedings" are inconsistent with the civil rules. CR 81(a).
State v. Warren, 165 Wn.2d 1, 28, 195 P.3d 945 (2008).
Discargar v. City of Seattle, 30 Wn.2d 461, 470, 191 P.2d 870 (1948).
We affirm the order of commitment.
WE CONCUR.