Opinion
No. 57828-6-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-07753-2, Helen Halpert, J., entered February 17, 2006.
Affirmed by unpublished per curiam opinion.
Wlliam Duncan appeals his civil commitment as a sexually violent predator under chapter 71.09 RCW. He contends the trial court erred in allowing the State to cross-examine a defense expert about a past competency evaluation the expert conducted. We disagree and affirm.
FACTS
Duncan has a history of sexual crimes against children dating from 1960 through 2000. Several attempts at treatment by different providers over the years have not prevented Duncan from reoffending. As Duncan neared the end of his term of imprisonment for his latest offense, the State filed a petition for his involuntary civil commitment as a sexually violent predator.
The parties each called several expert witnesses at trial. The principal defense expert was Dr. Richard Krueger, a psychiatrist with expertise in sex offender treatment who examined and evaluated Duncan. Dr. Krueger testified at length regarding diagnostic issues, critiqued the approach of the State's experts, and concluded Duncan was a suitable candidate for Depo-Lupron, an anti-androgen designed to reduce testosterone and reduce an offender's propensity to act out sexually. Based on his examination and review of Duncan's offense and treatment record, Dr. Krueger offered his expert opinion that Duncan did not meet the statutory definition of a sexually violent predator.
Dr. Krueger's testimony took most of two days of the twelve-day trial. The State's lengthy cross-examination, on many topics, included twelve questions related to a past competency evaluation Dr. Krueger had conducted of an elderly deaf and nearly blind woman who wished to refuse medical treatment. Duncan's counsel did not object to the initial questions regarding the incident, but objected when the prosecutor asked if the woman had been intubated. The trial court asked for a sidebar and overruled the objection. During subsequent questions on the topic, Dr. Krueger testified his recollection was vague because the incident was many years earlier. He acknowledged, however, that despite the woman's physical condition, her inaccurate references to him as her nephew and the need to repeatedly reorient her, he had found her competent based primarily on an hour and half-long written question and answer session. Counsel made no further objection, and neither counsel referred to the issue later in evidence or argument.
The jury found the State had proved beyond a reasonable doubt that Duncan was a sexually violent predator. Duncan appeals.
ANALYSIS
Duncan challenges the trial court's ruling allowing questioning regarding the competency evaluation of the elderly woman. He argues that the evidence was irrelevant and prejudicial because the incident occurred many years before and the legal issue of competency to refuse medical treatment is unrelated to the question of whether a particular person is a sexually violent predator.
A sexually violent predator is "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." RCW 71.09.020(16).
As a threshold matter, we consider whether Duncan's counsel's objection in the trial court preserved the issue he now raises. In general, an objection must be specific rather than general to preserve an issue for appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). However, an appellate court may consider the propriety of a ruling on a general objection if the specific basis for the objection is "`"apparent from the context."'" State v. Braham, 67 Wn. App. 930, 935, 841 P.2d 785 (1992) (quoting State v. Pittman, 54 Wn. App. 58, 66, 772 P.2d 516 (1989)); see also State v. Black, 109 Wn.2d 336, 340, 745 P.2d 12 (1987); ER 103(a)(1).
The record before us provides scant context. Defense counsel did not object when the prosecutor first asked Dr. Krueger if he had been involved in an evaluation of an 88-year-old woman who wanted to refuse a tracheotomy. Nor did counsel object when the prosecutor asked if the woman had been deaf and nearly blind. Only when the prosecutor asked if the woman had been intubated did counsel object by saying, "Objection, relevance, Your Honor. It's the first I've heard of this." Report of Proceedings (RP) (Feb. 15, 2006) at 77-78. Duncan now contends that this constituted dual objections on the basis of relevance to the entire line of questioning and a lack of discovery, but it appears the trial court viewed counsel's remarks as a single, unclear objection, because the court responded, "On that basis, that's not an objection." RP (Feb. 15, 2006) at 77-78.
Duncan does not contend on appeal, however, that there was any discovery violation.
The court apparently then gave Duncan's counsel an opportunity to reframe his objection at a sidebar conference, but the sidebar was not reported, and unlike other such conferences during trial, counsel made no record to memorialize the conference later. All that the record reflects is that after the conference, the court again overruled Duncan's objection.
It is difficult to conclude that the grounds stated in the record would have alerted the trial court to the alleged error Duncan now asserts on appeal. But assuming, without deciding, that counsel's remarks were sufficiently specific to preserve any objection at all, at most Duncan preserved an objection on the basis of relevance, not on the ground that the evidence was unduly prejudicial under ER 403. Guloy, 104 Wn.2d at 421; see also State v. Kendrick, 47 Wn. App. 620, 634, 736 P.2d 1079 (1987) (relevance objection does not preserve ER 404(b) review), State v. Fredrick, 45 Wn. App. 916, 922, 729 P.2d 56 (1986) (objection that evidence is prejudicial does not invoke ER 404(b)). We therefore consider only whether the trial court abused its discretion by determining the evidence was relevant under ER 401. Braham, 67 Wn. App. at 935.
See 5 Karl B. Tegland, Washington Practice: Evidence § 103.11, at 43 (4th ed. 1999) (objection only that evidence is "irrelevant" is merely a general objection unless some indication of the reason for irrelevancy is stated).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. The threshold is low, and even minimally relevant evidence is generally admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002); State v. Bebb, 44 Wn. App. 803, 814, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515, 740 P.2d 829 (1987) (citing 5 Karl B. Tegland, Washington Practice: Evidence § 83, at 170 (2d ed. 1982)). We review a trial court's decision on the admissibility of evidence under an abuse of discretion standard. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when it rules for untenable reasons or on untenable grounds. Darden, 145 Wn.2d at 619.
Here, defense counsel elicited not only Dr. Krueger's opinion on the ultimate issue before the jury, but his assessment of the analysis used by the State's experts in reaching their opinions. Dr. Krueger's credibility and professional competence therefore were clearly facts of consequence to the litigation and appropriate subjects for vigorous cross-examination. State v. Allen S., 98 Wn. App. 452, 459-60, 989 P.2d 1222 (1999). This evidence met the test of minimal legal relevance by calling Dr. Krueger's professional competence into question. 5B Karl B. Tegland, Washington Practice: Evidence § 705.7 (4th ed. 1999). The trial court therefore possessed a tenable basis to overrule a relevance objection and did not abuse its discretion.
Duncan essentially acknowledges that the evidence spoke to the issue of Dr. Krueger's professional competence and credibility because it suggested that "if he could make such an obvious mistake in a simple competency matter, he clearly should not be trusted to make the more complicated determination required by RCW 71.09.020(16)." Brief of Appellant, at 11. Duncan nonetheless contends relevance was lacking because the legal test for competence to refuse medical treatment is unrelated to the legal definition of a sexually violent predator.
But Dr. Krueger, lacking extensive experience with forensic evaluations under the Washington sexual predator statute, had established his expertise through his education and experience in clinical and forensic psychiatry in other states and in other legal settings, including forensic competency evaluations. Because the Washington Evidence Rules follow the preexisting common law view that wide latitude should be given in the cross-examination of an expert, the trial court could reasonably conclude the distinction Duncan now raises went to the weight of the evidence, not its admissibility.
5B Karl B. Tegland, Washington Practice: Evidence § 705.7 (4th ed. 1999). Duncan also emphasizes that Dr. Krueger testified that this particular competency evaluation was conducted "many years ago." RP (Feb. 15, 2006) at 78. But that testimony did not take place until after Duncan's objection was overruled and, thus, could not have informed the court's exercise of discretion when it made its ruling. We also note that Duncan made no further objections and did not ask the court for a continuing objection to the entire line of questioning.
Finally, the State alternatively contends that the evidence, if erroneously admitted, constituted at most harmless error. We agree. Any such error would not have been of constitutional magnitude and, accordingly, would require reversal only if, within reasonable probabilities, it materially affected the outcome of the trial. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).
Given the brevity of the questioning on the topic, the nature of Dr. Krueger's answers, the other means employed by the State to challenge Dr. Krueger's opinion, and the overall strength of the State's case, we are satisfied that even if the court erred in allowing the questions, that error was harmless.
We affirm.
FOR THE COURT: