Commitment Upheld Over Frye and CR 35 Challenges

Before he was to be released from prison (having been convicted of rape and unlawful imprisonment), the state petitioned to have Michael Halgren involuntarily committed, under the Sexually Violent Predator Act (SVPA), RCW 71.09. The trial judge ordered the commitment, after a jury found beyond a reasonable doubt that he was a sexually violent predator; Division 1 affirmed; and, last month, the Washington Supreme Court affirmed. In re Detention of Halgren, --- P.3d ---, 2006 WL 975857 (April 13, 2006), Westlaw.

The appellant made these arguments: (1) use of a certain test to show his likelihood of reoffending violated the Frye standard of admissibility; (2) the trial court erred in refusing a requested unanimity instruction; (3) the court erred in compelling a CR 35 examination.

Writing for the majority, Justice Owens rejected each of these. First, the state's expert psychiatrist used the PPG (penile plethysmograph) as "one component among many in diagnosing Halgren as a sexual deviant." The test is not novel as a diagnostic tool. It was not used to show likelihood of reoffending.

The issue about the unanimity instruction relates to the definition:

"Sexually violent predator" means 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)(emphasis added). Halgren's attorney requested an instruction that the jury must be unanimous in finding a "mental abnormality" or unanimous in finding a "personality disorder" rather than the "and/or" instruction the court gave. The Supreme Court said that the instruction given was fine. And there was sufficient evidence for a reasonable jury to have concluded beyond a reasonable doubt that Halgren had both a mental abnormality (paraphilia n.o.s. nonconsent) and an antisocial personality disorder.

The majority declined to address the CR 35 issue because the appellate record did not include proof that the trial court in fact ordered a CR 35 exam. Justice Sanders, in dissent, argued that it strained credulity to assume that Halgren had voluntarily submitted to the exam when he had vigorously opposed it. Justice Sanders would have reversed, based on In re Detention of Williams, 147 Wash.2d 476, 55 P.3d 597 (2002), which held that the the state may not administer CR 35 exams in the course of a civil commitment under the Sexually Violent Predator Act.

Filed under: cases, 703, 702, Frye, experts, PPG, sex-offenders, involuntary-commitment, SVPA, CR-35, Owens, Sanders