Opinion
Nos. 59037-5-I; 59931-3-I.
March 24, 2008.
Appeals from a judgment of the Superior Court for King County, No. 05-1-01491-8, Andrea A. Darvis, J., entered October 13, 2006.
Affirmed by unpublished per curiam opinion.
On appeal, Kerry McMurtrey claims the sentencing court violated his right to due process by denying his motion for in camera review of the victim's counseling records to refute the amount of restitution. Because McMurtrey did not show that the records were likely to contain material relevant to the defense, we affirm.
In January 2005, 54 year old McMurtrey was charged with two counts of first degree rape of eight year old R.M. and one count of child molestation in the first degree. After trial had begun, in April 2005, McMurtrey entered an Alford plea to an amended information of assault in the second degree with intent to commit child molestation in the first degree and communication with a minor for immoral purposes. In the plea agreement, McMurtrey agreed to the facts as set forth in the certification for the determination of probable cause and agreed to pay restitution in an amount to be determined.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The agreed facts described McMurtrey as a close friend of R.M.'s family. He was at their house every day for the past three or four years. McMurtrey was particularly close with R.M. In September 2004, R.M.'s 12 year old sister, L.M., observed R.M. straddling McMurtrey's pelvic area and moving back and forth. In December 2004, their 11 year old sister observed R.M. on top of McMurtrey with her buttocks moving up and down. She told L.M., who told their mother. When R.M.'s parents talked to R.M. about it, R.M. said that whenever other people were not around, McMurtrey put his tongue and his fingers in her vagina. He would lick his fingers first so that it hurt less. King County Prosecuting Attorney's Office child interview specialist Ashley Wilske interviewed R.M. R.M. gave a detailed account of multiple incidents of sexual abuse by McMurtrey. R.M. said that beginning when she was six years old, McMurtrey would touch her in a sexual way whenever they were alone. He touched her vaginal area with his tongue and hands. He would also ask her to straddle his pelvic area and move back and forth. On one occasion, McMurtrey was in R.M.'s bedroom while she was getting dressed. His pants and underwear were off, and his penis was erect. He asked R.M. if she would have sex with him. She replied no because she had to go to school.
Prior to sentencing, in August 2006, McMurtrey made a motion to appoint a new attorney to file a motion to withdraw his guilty plea. The court allowed counsel to withdraw and appointed new counsel. McMurtrey filed a declaration stating his guilty plea was coerced because his attorney told him the case was hopeless and because the court excluded evidence that another person had committed the crimes against R.M. He stated that, if permitted to withdraw the guilty plea, he intended to develop evidence that another suspect, "a family member" of the girls, committed the crimes against R.M. The court denied the motion to withdraw the guilty plea.
On appeal, McMurtrey has abandoned his challenge to the judgment and sentence.
The State requested restitution in the amount of $81 for the cost of R.M.'s sexual assault exam and $2,250 for R.M.'s 18 counseling sessions at the King County Sexual Assault Resource Center (KCSARC). In support of the request for restitution, the State submitted a declaration of KCSARC Deputy Executive Director DeAnn Yamamoto. Yamamoto stated that she "direct[s] and supervise[s] the clinical staff at KCSARC." She stated that the 18 hours of counseling KCSARC provided to R.M. were "directly related to the crime committed by Kerry McMurtrey for which [he] was sentenced" and totaled $2,250. Based on her review of KCSARC's records, Yamamoto also stated:
Because of the confidential therapeutic relationship that we have/had with our client, we cannot report the specific details of his/her treatment with you. I can, however, state that the entirety of the treatment services . . . are directly related to the impact [that] the crime(s) committed in this case had on the victim.
In October 2006, McMurtrey's counsel sent a letter to the court asking for in camera review of R.M.'s counseling records to see whether the records contained information or references to R.M.'s older brother, to see whether any other information supported his effort to withdraw his guilty plea, and to determine the justification for the amount of restitution. In March 2007, McMurtrey filed a motion asking the court to conduct an in camera examination of R.M.'s counseling records and attached the October 2006 letter. McMurtrey argued that in camera review was necessary "for testing the restitution claim and for discovering information pertinent to his motion to withdraw the plea." He also argued that the Yamamoto declaration did not support the State's request for restitution.
The court denied McMurtrey's motion. The court found that the State had met its burden of proof for the requested restitution and entered an order requiring McMurtrey to pay $81 for the sexual assault exam and $2,250 for the counseling. McMurtrey appeals.
We review a restitution order for abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). Restitution must be based on "actual expenses incurred for treatment for injury to persons . . . [and] may include the costs of counseling reasonably related to the offense." RCW 9.94A.753(3). The amount of restitution must be established by substantial credible evidence; the court must not rely on speculation or conjecture. State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993).
The rules of evidence do not apply at restitution hearings, but due process requirements must be met. Kisor, 68 Wn. App. at 620. At a restitution hearing, due process is satisfied if the evidence presented is reasonably reliable and the defendant has the opportunity to refute it. Kisor, 68 Wn. App. at 620. "[P]risoners seeking postconviction relief are not entitled to discovery as a matter of ordinary course, but are limited to discovery only to the extent the prisoner can show good cause to believe the discovery would prove entitlement to relief." In re Personal Restraint of Gentry, 137 Wn.2d 378, 391, 972 P.2d 1250 (1999). While below McMurtrey argued he was entitled to in camera review of R.M.'s counseling records to uncover evidence to support his other suspect defense, on appeal he argues only that he is entitled to in camera review in order to challenge the restitution order.
In State v. Kalakosky, 121 Wn.2d 525, 852 P.2d 1064 (1993), the Supreme Court set forth the test for granting in camera review of a rape victim's counseling records. "[T]he defendant must make a particularized showing that such records are likely to contain material relevant to the defense." Kalakosky, 121 Wn.2d at 550. The decision whether to conduct an in camera review of privileged records is reviewed for abuse of discretion. Kalakosky, 121 Wn.2d at 550.
Due process requires McMurtrey to have an opportunity to refute Yamamoto's declaration. McMurtrey relies on State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006), to claim that the court's failure to conduct an in camera examination of R.M.'s counseling record deprived him of the opportunity to refute Yamamoto's declaration. The defendant was charged with rape. Gregory claimed he paid to have sex with the victim and the sex was consensual. Gregory, 158 Wn.2d at 781. The victim had a prior conviction for prostitution, and Gregory sought in camera review of the victim's counseling records and the dependency files for her children to look for evidence of recent prostitution activity. The trial court denied Gregory's request for in camera review. The Supreme Court applied the test in Kalakosky and ruled that Gregory had not made a particularized showing sufficient to overcome the privilege protecting the victim's counseling records. However, based on the victim's prior conviction for prostitution, the court ruled that Gregory was entitled to in camera review of the dependency files on her children to "determine if they contained information that could lead to admissible evidence that [the victim] engaged in similar prostitution activity near to the time of this incident." Gregory, 158 Wn.2d at 795.
Unlike in Gregory, where the victim's prior prostitution conviction provided a plausible basis for the assertion that she engaged in prostitution recently, here McMurtrey's motion for in camera review provided no basis for the assertion that some of the counseling was related to another suspect's crime against R.M. McMurtrey's assertion that R.M.'s records might contradict Yamamoto's testimony that all of the counseling was "directly related to the crime committed by Kerry McMurtrey for which [he] was sentenced" was speculative and set forth no plausible basis to support his request for in camera review. McMurtrey has not made a particularized showing, as required by Gregory and Kalakosky, entitling him to in camera review.
As we held in State v. Fambrough, we do not regard the due process requirements applicable to a loss of liberty to be necessarily equivalent to those required where only restitution is at stake. 66 Wn. App. 223, 227, 831 P.2d 789 (1992) ("due process is substantially relaxed at a restitution hearing").
Relying on Kisor, McMurtrey also argues that Yamamoto's declaration is hearsay and does not satisfy due process requirements. In Kisor, the defendant was convicted of harming a police dog. In support of the amount of restitution for replacing the dog, the State submitted an affidavit from the county risk manager stating that she "checked with" the police department and canine training unit to determine the cost of the dog and attaching a canine college advertisement as proof that "`12 weeks training is usual and customary for police dog handler training.'" Kisor, 68 Wn. App. at 614 n. 2. On appeal, the court held the sentencing court abused its discretion and violated due process in ordering restitution based on "nothing more than a rough estimate of the costs" of replacing a police dog. Kisor, 68 Wn. App. at 620.
Kisor is distinguishable. Yamamoto is the director of KCSARC and supervises the clinical staff. In the certification for determination of probable cause, McMurtrey agreed to facts describing his crimes against R.M. Yamamoto testified, based on her personal knowledge of the contents of R.M.'s counseling records, that all of the counseling was related to those crimes. Yamamoto's declaration provided substantial credible evidence establishing the actual cost of R.M.'s counseling that was due to McMurtrey's crimes.
The trial court did not abuse its discretion by entering the restitution order.
We affirm.