IN THE MATTER OF DETENTION OF BROER, 126 Wn. App. 1060 (2005)

No. 52330-9-IThe Court of Appeals of Washington, Division One.
Filed: April 18, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 02-2-07986-5. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. Paris K. Kallas.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), Sarah Sappington, Office of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.

PER CURIAM.

Mark Broer contends that the trial court improperly relied upon his refusal to take a polygraph and penile plethysmograph (PPG) in concluding that he should be committed as a sexually violent predator. But Broer waived this issue when he expressly withdrew his motion to exclude any references to such evidence.

Prior to his sexual deviancy trial, Broer waived his right to a jury. A series of pretrial motions in limine were presented to the court, including Broer’s motion number 12 to exclude any evidence of his refusal to take a polygraph and PPG. Broer argued that neither test meets the Frye[1] standard, the refusal to take those tests is more prejudicial than probative, and the admission of his refusal to take the tests would improperly shift the burden of proof.

At the initial pre-trial hearing on this issue, the State argued that even though the results of a polygraph or PPG are not admissible, those are tools commonly used in treating sexual deviancy and the lack of any test results is a valid consideration for the experts who use those tools to evaluate risk and the likely success if released to the community. When the trial court asked about the need for a Frye hearing on the significance of the refusal to take a polygraph or PPG, Broer’s counsel agreed that the court should conduct a Frye hearing on the issue “whether anything at all can be inferred” from a person’s failure to participate in those tests. The court reserved the issue “pending a Frye hearing determination.”

A week later, at a pretrial conference, the assistant attorney general noted the remaining issue whether the polygraph and PPG need to meet the Frye standard. The trial court clarified:

[t]he question before the court is not whether the test results of either one of those would be admissible and subject to Frye, the question before the court is much more narrow than that, its whether within the relevant community, which I think in this case would be sex offender treatment providers, whether within that community these are deemed or used and considered generally accepted as treatment tools, as tools in the course of treatment.

Broer’s counsel agreed: “Your Honor, that was my issue, and that was how I perceive proceeding as well, that this would be a foundational matter that [the State’s counsel] will deal with her expert, then after you had heard from the expert there would be perhaps oral argument before a ruling is made.”

Four weeks later, after the completion of the testimony, the court reviewed various pre-trial issues that had been reserved:

Regarding motion number 12, the previous stance was that the court ordered that whether the polygraph and the PPG are used by relevant treatment providers in the course of sexual offender treatment and whether they need to qualify [under] Frye was something the State would have to go through a Frye hearing on that, and I understand that the defense has changed its position in that regard.

Broer’s counsel advised the court that the motion to exclude any references to Broer’s failure to take the polygraph or PPG was withdrawn:

We were moving to exclude reference to inadmissible test results and tests which had not been administered, so the lie detector and the PPG had not been administered and we did not want any reference to that, but we are withdrawing our motion.

And just to clarify, that also means that the defense [has] withdrawn any request to have a Frye hearing regarding the use of those tools in the course of sexual offender treatment.

The trial court relied upon the testimony of the State’s expert, Dr. Wheeler, who diagnosed Broer with 1) Pedophelia, same sex, non-exclusive type (provisional), 2) Paraphilia, Not Otherwise Specified Hebephilia, non-exclusive type (provisional), and 3) Paraphilia Not Otherwise Specified Rape, non-exclusive type (provisional). The trial court rejected the testimony of Dr. Wollert, that Broer’s Pedophilia is in remission. The court relied upon the testimony of Dr. Wheeler that paraphilias do not spontaneously remit and that the Broer’s condition is chronic and enduring, as well as Dr. Spizman’s testimony that the current thinking is that pedophilia never goes into remission.

The court noted that Dr. Wheeler testified that absent clinical evidence that Broer’s propensities have changed (such as a polygraph and PPG), he would continue to exhibit his mental abnormalities. The court observed that Broer initially requested a Frye hearing for the PPG and polygraph and “then later withdrew that request.” As an aside, the court relied upon Dr. Wheeler’s testimony to expressly find that both the PPG and polygraph are widely used in the treatment and assessment of sexual offenders and routinely used in monitoring sexual offenders. The court noted that even Dr. Wollert requested that Broer undergo a sexual history polygraph because it would provide useful information. The court concluded that the State met its burden of establishing that Broer is a sexually violent predator.

On appeal, Broer argues that he “only withdrew the defense demand for a Frye hearing after . . the trial court had narrowed the issue to use of these tests in treatment.” He contends that he did not waive an objection to the admission of his refusal to take the polygraph and PPG tests as evidence that he is a sexually violent predator. He relies upon cases where this court has held that a pre-trial objection is sufficient even if the objection is not renewed at trial[2] and held that an ambiguous stipulation to admit evidence does not constitute a waiver.[3] But such cases do not address an express and unequivocal withdrawal of the pre-trial motion in limine. There is no ambiguity in the acknowledgement in open court that Broer both withdrew his motion in limine to preclude any reference to the polygraph and PPG tests and also withdrew any request for a Frye hearing. Broer’s counsel clearly and unequivocally waived any objection to the admission of his failure to undertake a polygraph or PPG.

Further, even assuming that the constitutional claim of “burden shifting” was not waived, Broer does not establish that allowing the State’s experts to discuss the significance and use of polygraph and PPG in risk assessment and as part of a treatment program in any way relieved the State of its burden of proving that he is a sexually violent predator. The State’s experts simply testified and the trial court determined that based upon the accepted standards and methods for treating and assessing sexual offenders, the available information establishes that Broer currently has mental abnormalities that make him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.

We affirm.

Coleman, Kennedy and Cox, JJ., Concur.