In Re The Detention Of: Joel S. Reimer

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 49881-2-II
JOEL REIMER,
Appellant.
UNPUBLISHED OPINION
SUTTON, J. — Joel Reimer appeals the trial court’s order committing him to the Special
Commitment Center (SCC) as a sexually violent predator (SVP). Reimer argues that (1) his right
to testify was violated, (2) the trial court erred by denying his motion for a mistrial after the State
impeached his expert with Reimer’s prior diagnoses, (3) the prosecutor committed misconduct in
his cross-examination of Reimer’s expert witness, and (4) the SVP statute is unconstitutional. We
affirm.
FACTS
In 1992, Reimer was found to be an SVP and was committed to the SCC. After 22 years,
Reimer was granted an unconditional discharge trial under RCW 71.09.090(2)(c)(ii)(A). At trial,
the State relied on the expert opinion of Dr. Harry Hoberman to argue that Reimer continued to
meet the statutory definition of an SVP. Reimer relied on the expert testimony of Dr. Henry
Richards to argue that he no longer met the definition of an SVP.1 The jury found that the State
1 “‘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 engaged in predatory acts of sexual violence if not confined in a secure
facility.” RCW 71.09.020(18).
Filed
Washington State
Court of Appeals
Division Two
December 18, 2018

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proved beyond a reasonable doubt that Reimer continued to be an SVP. Based on the jury’s
verdict, the trial court entered an order of commitment which ordered that Reimer remain
committed at the SCC.
I. REIMER’S TRIAL PARTICIPATION
Before trial, Reimer expressly waived his presence for the majority of the trial. However,
Reimer did not waive his right to testify. And Reimer agreed to come to court to testify if the State
called him as a witness during the State’s case-in-chief. Reimer’s testimony was scheduled for
October 19, 2016, and the trial court made arrangements to have him transported from the SCC on
October 18. The trial court also informed Reimer to notify his attorneys if he changed his mind
and wanted to be present.
On October 18, the State called Reimer to testify. The next day, the trial court informed
Reimer’s attorneys that Reimer wanted to speak with them before he returned to the SCC. After
the verdict, the trial court held a hearing on Reimer’s attorneys’ motion to withdraw. At the
hearing, Reimer stated that his relationship with his attorneys had broken down, he was dissatisfied
with their representation, and he wanted to proceed pro se. After some discussion, Reimer decided
to allow the trial court to appoint new counsel rather than to proceed pro se. However, Reimer
requested that copies of his pro se “[p]ost-[v]erdict [m]otions,” previously rejected by the trial
court, be filed. IX Verbatim Report of Proceedings (VRP) at 1411-12. The trial court agreed to
file Reimer’s pro se motions “for posterity.” IX VRP at 1411. However, based on the record
before this court, the trial court did not consider or rule on the motions.

No. 49881-2-II
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Reimer’s post-verdict CR 592 motion for a new trial was based in part on the denial of his
right to testify in his defense. In his declaration supporting the motion, Reimer stated that, while
in jail on October 19, he sent messages to his attorneys requesting to attend court on any of the
days he was still being held in jail prior to being transported back to the SCC. Reimer also stated
that, despite knowing that he was being held in the jail, his attorneys did not contact him to
determine whether he wanted to testify.
Reimer also asserted that his attorneys left him in jail and prevented him from testifying
because they did not agree with his position that spiritual Native American healing practices
constituted treatment for an SVP. Reimer also set out his proposed testimony regarding his Native
American heritage, which he had intended to present on his own behalf.
II. EXPERT TESTIMONY
Reimer filed a pretrial motion in limine to prevent the State from impeaching expert
witnesses with contradicting opinions of non-testifying experts as prohibited by ER 705.3 After
hearing arguments by both parties, the trial court ruled,
2 CR 59(a) states, “On the motion of the party aggrieved, a verdict may be vacated and a new trial
granted to all or any of the parties, and on all issues, or on some of the issues when such issues are
clearly and fairly separable and distinct, or any other decision or order may be vacated and
reconsideration granted.” CR 59(a) provides nine specific grounds on which a motion for a new
trial may be granted.
3 ER 705 states,
The expert may testify in terms of opinion or inference and give reasons therefor
without prior disclosure of the underlying facts or data, unless the judge requires
otherwise. The expert may in any event be required to disclose the underlying facts
or data on cross examination.

No. 49881-2-II
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The best explanation I’ve ever been able to give on this particular issue, the
704/705 thing, is the experts can testify to facts other people have. The experts
can’t testify to opinions other people have, and that’s going to be our starting point.
Again, this is one where the field can really change as we’re going along,
depending on the questions that are asked. So I guess I would just use that as my
beginning point.
If anybody thinks that it’s really opened up, my preference would be that
we get the high sign and can talk about it outside the presence of the jury.
II VRP at 131.
The State’s expert, Dr. Hoberman, testified that he diagnosed Reimer with sexual sadism,
antisocial personality disorder, and high psychopathy. Dr. Hoberman also testified that, based on
his diagnosis, Reimer continued to meet the definition of an SVP.
Reimer’s expert, Dr. Richards, was the superintendent of the SCC from 2004 to 2007. Dr.
Richards diagnosed Reimer with narcissistic personality disorder and a mild mood disorder.
Dr. Richards testified that Reimer did not meet the criteria for a sexual sadism diagnosis.
During cross-examination, Dr. Richards testified that when he was superintendent of the
SCC, he would review SVP evaluations and, if he disagreed with a particular evaluation, he would
send the evaluator a letter. If the evaluator addressed the issues Dr. Richards identified and Dr.
Richards continued to disagree with the recommendation in the report, he would allow the
evaluator to submit the report, but he would send the court a letter indicating his disagreements
with the evaluator’s report. Then the following exchange took place:
[STATE]: And so, Dr. Richards, while you were there for several years there was
[sic] several evaluations at that time on Mr. Reimer, and, in fact, each of those
evaluations diagnosed him with several paraphilias --
[DEFENSE]: Objection --
[STATE]: -- antisocial --
[DEFENSE]: -- pretrial motions.

No. 49881-2-II
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[COURT]: I’ll allow it.
[DEFENSE]: Your Honor --
[COURT]: I’ll allow it.
[STATE]: He was diagnosed with multiple paraphilias, including sexual sadism.
He was diagnosed with antisocial personality and high psychopathy by all of them.
So you never wrote a letter to them in regards to Mr. Reimer in terms of those cases;
is that right?
[RICHARDS]: That’s correct. Because it doesn’t fit the scenario that I told you.
They didn’t write a report that undermined the basis of his commitment which
would have brought it to my attention. They didn’t write a report saying he now
has so much control he has changed. If they had done that, I would have gotten
involved because of the history, and I would have had to decide, do I have enough
problem [sic] with this to ask the psychologist to revisit the issues.
So I think that explains why, and I do believe I would have followed my
routine with Mr. Reimer like anyone else, but . . . it was on an exception basis
because the superintendent’s job is to decide is an exception needed.
VIII VRP 1179-80.
Reimer then moved for a mistrial based on the State’s reference to Reimer’s prior SVP
evaluations during cross-examination. The trial court denied the motion for a mistrial, but did
agree that the testimony was improper. Therefore, the trial court agreed to give the jury an oral
curative instruction:
Ladies and gentlemen, previously, there was a ruling that we were not going to
discuss or consider prior evaluations of Mr. Reimer by people who were not
brought in here as witnesses for a variety of reasons, including the fact that they’re
not subject to cross-examination. It wouldn’t be proper to consider that evidence
in this case.
To the extent that there’s any discussion about that, I’m asking you now or
ordering you now to disregard that evidence and not consider it in your
deliberations.
VIII VRP 1190-91. The trial court also agreed to include a written curative instruction in the jury
instructions. The written curative instruction stated,

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You have heard testimony about the diagnostic opinions of forensic
evaluators at the Special Commitment Center who have offered their opinions in
prior reports. This evidence is not admissible. You must not consider it for any
reason in your deliberations.
Clerks Papers at 1249.
After the jury returned its verdict finding that the State proved beyond a reasonable doubt
that Reimer continued to meet the definition of an SVP, Reimer filed a CR 59 motion for
reconsideration of the trial court’s ruling on the motion for a mistrial, again based on the State’s
cross-examination of Dr. Richards. The trial court denied the motion for reconsideration.
Based on the jury’s verdict, the trial court entered an order of commitment which ordered
that Reimer remain committed at the SCC. Reimer appeals.
ANALYSIS
I. RIGHT TO TESTIFY
Reimer argues that he is entitled to a new trial because he was denied his constitutional
right to testify in his own defense. We disagree.
As explained below, because Reimer is arguing that his attorneys, not the trial court,
interfered with his right to testify, we address his argument as an ineffective assistance of counsel
claim. Compare State v. Thomas, 128 Wn.2d 553, 910 P.2d 475 (1996) (trial counsel allegedly
prevented the disruptive defendant from testifying by removing the defendant from the courtroom
until the court obtained assurances that the defendant would conduct himself appropriately) with
State v. Robinson, 138 Wn.2d 753, 982 P.2d 590 (1999) (defense counsel interfered with the right
to testify by refusing to make a motion to the court to reopen the defendant’s case to allow the

No. 49881-2-II
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defendant to testify). Because Reimer fails to establish that his attorneys’ performance was
deficient, based on the record here, his ineffective assistance of counsel claim fails.
“In Washington, a criminal defendant’s right to testify is explicitly protected under [the]
state constitution.” Robinson, 138 Wn.2d at 758. This right is extended to defendants facing
commitment under the SVP statute. RCW 71.09.060(2); In re Det. of Haga, 87 Wn. App. 937,
943 P.2d 395 (1997), abrogated on other grounds by Robinson, 138 Wn.2d at 768.
The right to testify is fundamental and “cannot be abrogated by defense counsel or by the
court.” Robinson, 138 Wn.2d at 758. Only the defendant may decide to waive the right to testify.
Robinson, 138 Wn.2d at 758. Although the defendant’s waiver of the right to testify need not be
obtained on the record, the waiver must be made knowingly, voluntarily, and intelligently.
Robinson, 138 Wn.2d at 758-59.
When an appellant alleges that his right to testify was interfered with by defense counsel,
we address that claim as a claim of ineffective assistance of counsel. Robinson, 138 Wn.2d at 765-
66. Therefore, we apply the Strickland test to determine whether the appellant has met his burden
to establish an ineffective assistance of counsel claim. Robinson, 138 Wn.2d at 765-66 (citing
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Under the Strickland test, the appellant must prove both that the attorney’s performance
“‘fell below the objective standard of reasonableness’ and that he was prejudiced by the attorney’s
deficient performance.” Robinson, 138 Wn.2d at 766 (quoting Strickland, 466 U.S. at 694).
Prejudice is met by showing that there is “‘a reasonable probability that, but for counsel’s

No. 49881-2-II
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unprofessional errors, the result of the proceeding would have been different.’” Robinson, 138
Wn.2d at 766 (quoting Strickland, 466 U.S. at 694).4
An appellant who is able to prove that his attorney actually prevented him from testifying
has shown that his attorney’s performance fell below the objective standard of reasonableness.
Robinson, 138 Wn.2d at 766. An attorney may actually prevent his client from testifying by using
misrepresentation or coercion. Robinson, 138 Wn.2d at 762-63. An attorney can also prevent a
client from testifying “by refusing to call the defendant as a witness even though the attorney
knows that the defendant wants to testify.” Robinson, 138 Wn.2d at 763. “If the decision to testify
is made against the will of the defendant, it is axiomatic that the defendant has not made a knowing,
voluntary, and intelligent waiver of his right to testify.” Robinson, 138 Wn.2d at 763.
Here, Reimer affirmatively waived his right to be present at his trial. Reimer did not
expressly waive his right to testify; however, he waived his right to be present which implicitly
waived his right to testify because a person must be present in court to testify in court. At any
point, he could have affirmatively asserted that he wanted to exercise his right to testify. He could
have communicated his desire to testify to either the trial court or his attorneys. The trial court
also expressly informed Reimer that he should inform the trial court or his attorneys if he changed
his mind about being present in court. Reimer failed to do so.
The record before us establishes only that Reimer requested to speak to his attorneys before
he was transported back to the SCC. The substance of what Reimer wished to discuss with his
4 Reimer asserts that violation of the right to testify is per se prejudicial and, therefore, should be
treated as structural error subject to automatic reversal. However, this argument was explicitly
rejected by our Supreme Court. Robinson, 138 Wn.2d at 767.

No. 49881-2-II
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attorneys is not in the record before this court. Because the contents of the discussion are not
before us, Reimer has failed to establish that he affirmatively asserted to his attorneys his desire to
testify after previously waiving his right to attend trial. The burden shifted to him only because
he waived his right to be present. Therefore, the record before us does not establish that Reimer’s
attorneys actually prevented him from testifying.
We hold that Reimer has not established deficient performance on behalf of his attorneys.
Accordingly, Reimer’s ineffective assistance of counsel claim must fail.
II. MOTION FOR A MISTRIAL
Reimer argues that the trial court abused its discretion by denying his motion for a mistrial
and admitting Dr. Richards’s testimony regarding non-testifying experts at the SCC over the
defense’s objection, and in violation of the court’s pretrial ruling. Dr. Richards testified that
“[Reimer] was diagnosed with multiple paraphilias, including sexual sadism. He was diagnosed
with antisocial personality and high psychopathy by all of them,” referring to prior evaluators at
the SCC who did not testify. VIII VRP 11780. Because the trial court gave multiple instructions,
oral and written, to disregard the improper testimony, the trial court did not abuse its discretion in
denying Reimer’s motion for a mistrial.
We review a trial court’s denial of a motion for a mistrial for an abuse of discretion. State
v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A trial court abuses its discretion when no
reasonable judge would have reached the same conclusion. Emery, 174 Wn.2d at 765. We
determine whether a mistrial should have been granted by considering (1) the seriousness of the
trial irregularity, (2) whether the trial irregularity involved cumulative evidence, and (3) whether
a proper instruction to disregard the evidence cured the prejudice against the defendant. Emery,

No. 49881-2-II
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174 Wn.2d at 765. We give deference to the trial court because the trial court is in the best position
to discern any prejudice. State v. Garcia, 177 Wn. App. 769, 776-77, 313 P.3d 422 (2013).
The first factor, the seriousness of the trial irregularity, does not necessarily weigh in favor
of granting a mistrial. The questions and answers regarding the opinions of non-testifying experts
arguably were improper, as the trial court found. However, the jury knew that Reimer had been
classified as an SVP and had been detained for 22 years at the SCC. The fact that prior evaluators
had diagnosed Reimer with conditions that supported a finding that he was an SVP would not have
been surprising. Therefore, the irregularity was not so serious as to weigh in favor of granting a
mistrial..
As to the second factor, even assuming the evidence of Reimer’s prior diagnosis by non-
testifying experts was cumulative, the operative question here is whether the trial court abused its
discretion by determining that the curative instructions were sufficient to cure the prejudice. The
jury was given two specific instructions to disregard the opinions of the non-testifying experts.
We presume that the jury follows the trial court’s instructions. State v. Anderson, 153 Wn. App.
417, 428, 220 P.3d 1273 (2009). Here, the improperly admitted evidence was the result of a single
question to Dr. Richards that did not go into specific details about the prior evaluations. Therefore,
we presume that the jury followed the trial court’s instruction to disregard the improper evidence.
Because the trial court is in the best position to determine prejudice, the trial court did not
abuse its discretion by determining that curative instructions were sufficient to cure the prejudice
caused by the improper testimony.

No. 49881-2-II
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III. PROSECUTORIAL MISCONDUCT
Reimer also argues that the prosecutor committed misconduct by violating the trial court’s
ruling on motions in limine. The State argues that the prosecutor did not violate the motion in
limine because the trial court deferred a specific ruling until specific questions were asked. We
agree with the State because the prosecutor did not directly violate the trial court’s ruling on the
motions in limine.
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial. Emery, 174 Wn.2d at 756. First, we
determine whether the prosecutor’s conduct was improper. Emery, 174 Wn.2d at 759. If the
prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper
conduct resulted in prejudice. Emery, 174 Wn.2d at 760-61. Prejudice is established by showing
a substantial likelihood that the prosecutor’s misconduct affected the verdict. Emery, 174 Wn.2d
at 760.
When ruling on the motion in limine, the trial court noted the general rule regarding ER
705, but noted that specific issues would have to be dealt with by objection to specific questions.
Here, the prosecutor was not impeaching Dr. Richards’s testimony based on the opinions in reports
that he relied on. Therefore, the prosecutor’s question did not fall squarely within the trial court’s
ruling on the motion in limine.
Because the prosecutor did not directly violate the trial court’s motion in limine, the
prosecutor’s conduct was not improper. Accordingly, Reimer’s prosecutorial misconduct claim
fails.

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IV. CONSTITUTIONALITY OF RCW 70.09.020
Reimer argues that the statutory definition of an SVP is unconstitutional because it reduces
the State’s burden to a constitutionally impermissible preponderance of the evidence standard.
Reimer recognizes that his argument has been explicitly rejected by our Supreme Court in In re
Det. of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001). However, Reimer argues that we should
reexamine the holding in Brooks in light of subsequent holdings in Kansas v. Crane, 534 U.S. 407,
413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), and In re Det. of Thorell, 149 Wn.2d 724, 72 P.3d
708 (2003).
“[O]nce [the Supreme Court] has decided an issue of state law, that interpretation is binding
on all lower courts until [the Supreme Court overrules] it.” State v. Gore, 101 Wn.2d 481, 487,
681 P.2d 227 (1984). Here, neither Crane nor Thorell overrules the holding in Brooks because
those cases address a different section of the SVP statute. Crane, 534 U.S. at 413 (addressing
whether mental abnormality or personality disorder must be related to a lack of ability to control
behavior); Thorell, 149 Wn.2d at 735-36 (same). Because the Supreme Court’s holding in Brooks
is still good law and it is not our role to overrule established Supreme Court precedent, we reject
Reimer’s argument that RCW 71.09.020 is unconstitutional.

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We affirm the trial court’s order committing Reimer to the SCC.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, L.
We concur:
MAXA, C.J.
JOHANSON, J.