State presented sufficient evidence when respondent's alcoholism combined with his pedophilia to create a risk of recidivism
How later courts described this case
- State presented sufficient evidence when respondent's alcoholism combined with his pedophilia to create a risk of recidivism
Written by the judges who cited it.
The opinion
Sanders, J.
(dissenting) — In In re Detention of Williams, 147 Wn.2d 476 , 55 P.3d 597 (2002), we held a CR 35 exam is inconsistent with sexually violent predator proceedings, and the majority now holds Williams applies retroactively to Daniel Audett’s hearing and “the trial court improperly ordered a CR 35 exam.” Majority at 715. However the majority refuses to exclude Rawlings’s testimony because it claims Audett failed to preserve the error. Majority at 724-25.1 disagree. Daniel Audett timely objected to his CR 35 exam and deserves a meaningful remedy. By leaving the trial court’s error uncorrected, the majority renders Williams meaningless.
I. The trial court’s error was preserved
¶33 Audett’s objection to the CR 35 exam preserved the trial court’s error. The remedy is exclusion of any testimony resulting from the exam. Furthermore, Audett did not need to reraise an already overruled objection simply because Dr. Rawlings testified. Any objection must “(1) allow opportunity for the trial court to correct the asserted error, and (2) put all parties on notice of the contended issue.” State v. McCorkle, 137 Wn.2d 490, 498 , 973 P.2d 461 (1999) (Talmadge, J., concurring). Audett’s objection to the CR 35 exam was clear enough to preserve the error.
II. A remedy must be provided since the trial court acted improperly
¶34 Even if satisfied with Audett’s objection, it is unclear whether the majority would reverse had Audett objected specifically to the testimony in addition to the examination itself. See majority at 723 (“[W]e do not agree with Audett’s contention that Williams mandates exclusion of evidence derived from the CR 35 exam.”). The majority is “comfortable” not excluding the evidence because “the trial court’s error in admitting the CR 35 exam was not an error of constitutional magnitude.” Majority at 726. And what rule provides nonconstitutional errors have no remedy? The *731 majority improperly surrenders its constitutional duty to “protect and maintain individual rights.” Const, art. I, § 1.
¶35 I dissent.