State v. Brown

1

STATE OF WASHINGTON, Respondent, v. STEVEN LEE BROWN, Appellant.

No. 83491-6-I

Court of Appeals of Washington, Division 1

August 29, 2022

UNPUBLISHED OPINION

SMITH A.C.J.

Steven Brown was convicted on several counts of child rape and child molestation in 2020, after undergoing multiple rounds of competency evaluation and competency restoration treatment. Brown moved for a new trial based on newly discovered evidence implicating a different suspect and on alleged juror misconduct. The court denied the motion. Brown appeals challenging the court's appointed expert, its denial of a motion to continue and the motion for a new trial, and its imposition of community custody supervision fees.

We conclude that the court did not abuse its discretion by appointing a competency evaluator who could perform the evaluation in Brown's first language, even though the evaluator had also provided Brown competency restoration treatment. We also conclude that the court did not abuse its discretion by denying the motion to continue or a motion for a new trial based on unauthenticated and tenuous newly discovered evidence and reports of jury conduct that inhered in the verdict. However, because the court appears to have erroneously imposed the supervision fees, we reverse in part and remand for the court to strike these fees from Brown's judgment and sentence.

FACTS

In 2016, Steven Brown was charged with several counts of child rape and child molestation against two victims, K.F. and C.F Brown is deaf and was friends with the victims' parents J.F. and R.F, who are also deaf. K.F. and C.F. reported that when they were in middle school, they each spent the night alone at Brown's residence and on those occasions, Brown molested them and raped C.F.

In January 2017, Brown's attorney requested and the court ordered a competency evaluation for Brown. In April, Dr. Jaime Wilson performed a psychological evaluation in American Sign Language (ASL) and found that Brown exhibited extreme impairment in his ability to consult with counsel and moderate impairment in his factual understanding of the courtroom. Dr. Wilson concluded that Brown was not competent to participate in court proceedings but recommended that he be referred for competency remediation services, ideally with a provider who could communicate directly in ASL.

Between June and August of 2017, Dr. Ray Hendrickson performed additional competency evaluations-using ASL interpreters-and also concluded that Brown was not competent, based on his limited factual understanding of court proceedings, his significantly impaired rational understanding of the proceedings, and his significantly impaired ability to consult with his attorney.

In November of 2017, the court ordered 90 days of competency restoration treatment. Brown was admitted to inpatient treatment at Western State Hospital in April of 2018. After 10 weeks of one-on-one instruction for 18 hours a week, with an ASL interpreter and a certified deaf interpreter, and visual aids and demonstrations of courtroom procedures, the evaluator concluded that Brown still lacked the capacity to understand the proceedings against him and to assist in his defense. The evaluator, Dr. Johnathan Sharrette, did not recommend any further treatment, concluding that there was "no evidence that Mr. Brown will benefit in any significant way from additional instruction."

In August 2018, Brown moved to dismiss the case based on his inability to be restored to competency, but after a contested hearing the court ordered Dr. Wilson to reevaluate Brown. After Dr. Wilson concluded that Brown was restorable, the court ordered Dr. Wilson to provide an additional 90 days of treatment. Brown moved for the court to appoint an expert other than Dr. Wilson to perform the next evaluation, claiming that Dr. Wilson had a conflict of interest based on his role as both an evaluator and restoration treatment provider. The court denied the motion. On March 8, 2019, based on Dr. Wilson's report among other evidence, the court found Brown competent to proceed in trial.

The case proceeded to trial in February 2020. On the second day of trial, after C.F. and K.F. had testified, Brown moved for a mistrial or, alternatively, a continuance based on new evidence. Brown's attorney reported that she had just been shown a Facebook message that Brown's roommate Manny Oriza had received in October 2019. The Facebook message was purportedly from Jorge German, a friend of the victims' family who had lived with them for several years, claiming that he had molested C.F. and K.F., not Brown. Citing doubts about the message's authenticity and admissibility, the court denied the motion.

On March 2, 2020, the jury found Brown guilty of second-degree child rape, second-degree child molestation, and two counts of third-degree child molestation.

On May 6, 2020, Brown moved for a new trial or relief from judgment. He cited the Facebook message purporting to be from German as newly discovered evidence. He also claimed that Juror 8 had committed misconduct based on a different juror's statement that Juror 8 told a detailed story about a close family member being sexually assaulted at the start of deliberations, stated that she believed Brown was guilty before deliberations began, and stated that she believed the victims and their parents implicitly. The court denied the motion, finding that Brown did not establish juror misconduct and that the new evidence was not material, would not change the result of trial, and could potentially have been discovered before trial with due diligence.

The court sentenced Brown to 245 months to life confinement. It found Brown indigent and stated that it would impose "only those fees and obligations as required by law," but the judgment and sentence imposed community custody supervision fees.

Brown appeals.

ANALYSIS

Appointment of Qualified Expert

Brown contends that the court failed to comply with RCW 10.77.060 because its designated expert, Dr. Wilson, was not "qualified" given that he both treated and evaluated Brown. We disagree.

"In Washington, a person is competent to stand trial if [they have] the capacity to understand the nature of the proceedings against [them] and if [they] can assist in [their] own defense." State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985). So long as there is a question about the defendant's competency, the procedures in chapter 10.77 RCW are "mandatory to satisfy due process." State v. Heddrick, 166 Wn.2d 898 909, 215 P.3d 201 (2009). RCW 10.77.060(1)(a) requires that when reason exists to doubt a defendant's competency, the court "shall . . . appoint . . . a qualified expert or professional person . . . to evaluate and report upon the mental condition of the defendant." Not only must the expert be qualified, but the court must "ensure that a statutory competency evaluation is conducted in a qualified manner." State v. Sisouvanh, 175 Wn.2d 607 621, 290 P.3d 942 (2012).

"[A] trial court's determination of the underlying adequacy of a statutory competency evaluation [is] reviewed for abuse of discretion." Id. at 620. Thus, "so long as the underlying adequacy of a given competency evaluation is 'fairly debatable,' the trial court has discretion to accept or reject that evaluation in satisfaction of RCW 10.77.060." Id. at 623 (internal quotation marks omitted) (quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)).

Here Brown contends that Dr. Wilson was not "qualified" (or did not conduct the evaluation in a qualified manner) because he violated his ethical obligations by both providing treatment for Brown and then evaluating Brown's competence. Brown points to the American Psychological Association's (APA) "Ethical Principles of Psychologists and Code of Conduct," and contends that Dr. Wilson violated its provisions with respect to multiple relationships and conflicts of interest. The relevant provisions read, in full: 3.05 Multiple Relationships

(a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical.

(b) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist takes reasonable steps to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.

(c) When psychologists are required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, at the outset they clarify role expectations and the extent of confidentiality and thereafter as changes occur. . . .

3.06 Conflict of Interest

Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence,

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