Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 40882-8-I
Title of Case: State of Washington, Appellant
v.
David Israel, Et. al., Respondents
File Date: 00/00/00
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 96-1-07984-3
Judgment or order under review
Date filed: 07/07/97
Judge signing: Hon. Charles W. Mertel
JUDGES
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COUNSEL OF RECORD
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Counsel for Appellant(s)
Marilyn B. Brenneman
900 4th Ave Ste 1002
Seattle, WA 98164
Barbara A. MacK
1002 Bank of Calif Bldg.
900 Fourth Ave.
Seattle, WA 98164
Richard B. Cowan
119 1st Ave S Ste 500
Seattle, WA 98104
Counsel for Respondent(s)
John W. Wolfe
Wolfe & Rodihan
6110 Columbia Center
701 5th Ave.
Seattle, WA 98104
Joseph Chalverus
Attorney At Law
Ste 220
2611 NE 125th St
Seattle, WA 98125
Marcus S. Topel
832 Sansome St.
4th Floor
San Francisco, CA 94111
Gary Dubcoff
832 Sansome St.
4th Floor
San Francisco, CA 94111
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 40882-8-I
)
Appellant, ) DIVISION ONE
)
v. )
)
DAVID R. ISRAEL, WILLIE JAMES )
KING, )
)
Respondents, )
)
VINCENT LEE BRYANT, JEFFREY )
O. DORMAN, and each of them, ) PUBLISHED
)
Defendants. ) FILED:
COX, J. -- Mental examinations of witnesses providing testimony at
trial are permissible only where compelling reasons exist for such
examinations. Moreover, judges determine the competency of witnesses,1 and
juries determine their credibility.2 Here, there are no compelling reasons
that justify the order in limine directing a trial witness to submit to a
psychological examination. Likewise, a second order in limine that
provides for the admission of expert testimony on antisocial personality
disorder is in error. Accordingly, we reverse both orders in limine and
remand for trial.
David Israel is one of four defendants named in a 32-count indictment
that is based on a series of robberies that were committed in King,
Snohomish, and Cowlitz Counties. The defendants allegedly robbed various
victims in their homes. Physical and/or sexual assaults of the victims
accompanied the robberies. Hundreds of thousands of dollars were allegedly
stolen during the course of these events.
The State charged Israel and his three codefendants--Jeffrey O.
Dorman, Willie James King, and Vincent Lee Bryant--with conspiracy to
commit first degree robbery as well as substantive crimes in furtherance of
the conspiracy. The State also charged Israel with two counts of first
degree kidnapping, three counts of money laundering, and two counts of
first degree robbery.
The State charged Dorman with 15 counts of first degree robbery with a
deadly weapon, 13 counts of first degree kidnapping, and one count of
residential burglary. Dorman entered into a plea agreement with the State,
under which he agreed to testify at trial and otherwise cooperate with the
State in the prosecution of his codefendants. In exchange for these
commitments, the State agreed to drop all charges except the conspiracy
charge. Dorman agreed to plead guilty to that charge only.
Prior to trial, Israel and King (collectively, "Israel") moved in
limine for the admission of expert testimony about "antisocial personality
disorder" based on the assertion that Dorman suffers from this disorder.
The court granted the motion, subject to certain conditions.
Shortly thereafter and on the eve of trial, Israel moved for an order
compelling Dorman to submit to psychological tests administered by defense
experts. The court granted the motion.
A commissioner of this court denied the State's motion for
discretionary review of the two orders in limine. But a panel of judges
granted the State's motion to modify the commissioner's ruling and granted
discretionary review of both orders.
I. Compelling Reasons
The decision to order a witness to submit to psychiatric testing is
within the discretion of the trial court.3 The court abuses its discretion
when its ruling is manifestly unreasonable or based on untenable grounds or
untenable reasons.4 We hold that granting discovery that directed Dorman
to submit to psychological testing under the circumstances here was
improper.
The trial court should not order a witness to submit to a
psychological examination absent a compelling reason.5 The compelling
reason requirement initially appeared in sexual assault cases.6 In Demos,
the defendant sought a psychological examination of the complaining
witness. He argued that such an examination could provide information that
could assist the trier of fact in assessing the "credibility and perceptual
ability" of the witness.7 Rejecting that argument, the court held that the
accused must provide a compelling reason before a victim could be ordered
to undergo a possibly traumatic psychological examination when other more
traditional and less intrusive means to assess credibility and perceptual
ability are available. In reaching this conclusion, the Demos court placed
the courts of this state with the majority of courts in other jurisdictions
on this question.8
The prohibition against ordering psychological examinations of trial
witnesses absent compelling reasons is not confined to sexual assault
cases. In Hoffman,9 our Supreme Court applied the rule to the proposed
examination of a crime witness. At trial, Hoffman moved for a psychological
examination of the surviving police officer in a shoot-out, arguing that it
was necessary for Hoffman's effective cross examination of that witness.10
The Supreme Court concluded that the trial court did not abuse its
discretion by denying the motion. The court noted that no question had
been raised about the officer's competency to testify. Moreover, no
compelling reason for the mental examination had been demonstrated:
As we have made clear in sexual offense cases, a crime witness or victim
should not be ordered to submit to psychiatric examination unless a
defendant demonstrates a compelling reason. We perceive no reason for a
different rule in this case. To conclude otherwise would smack of our
countenancing a practice of placing victims and witnesses on trial in place
of defendants; this we decline to do.{11}
The question we must decide is whether the compelling reason
requirement should apply to the proposed compulsory psychological
examination of a witness who is also an alleged co-conspirator. Under the
facts of this case, we see no reason to distinguish between a crime
witness, as in Hoffman, and a crime witness who is also an alleged co-
conspirator. 12
In its oral ruling, granting the requested psychological examination
of Dorman, the court stated:
I think the compelling reasons are that he is an admitted co-conspirator in
the performance of these crimes. His testimony implicating his alleged
other co-conspirators to crimes that he's already pled guilty to, and the
issues of credibility that this jury is going to have to weigh are the
unusual, if you will, compelling reasons for allowing this exam.
In its order in limine, the court stated:
Mr. Dorman's admitted involvement in the criminal activity at issue
and his central role in the prosecution{'}s case constitute compelling
reasons to direct the State of Washington to produce Mr. Dorman to submit
to a court ordered evaluation given the theory of Mr. Israel's defense and
the court's fundamental obligation under the due process clause of the
State and Federal Constitution and CrR 4.7(e) to provide Mr. Israel and his
counsel with the opportunity to discover those facts which support his
theory of defense.
We see nothing unusual in the fact that Dorman, who has pleaded guilty
to the conspiracy charge, has agreed to give testimony against Israel, his
alleged co-conspirator. Moreover, there is nothing unusual in the fact
that Dorman's credibility will be at issue. Likewise, we see nothing here
that offends due process under the state or federal constitutions. This
situation is no different from any arrangement whereby an accused agrees to
testify at trial under a plea agreement against accomplices or co-
conspirators in a charged crime.
The argument that these circumstances constitute compelling reasons
might be more convincing if there was something unusual about this case and
there were no other means to challenge Dorman's credibility.13 But here
there are readily available means to challenge his testimony without a
compelled examination of Dorman. The State has represented both to us and
to the trial court that it shall disclose to the jury Dorman's plea
agreement and other aspects of his background. But even if the State fails
to do this, Israel is free to offer evidence of Dorman's prior convictions
for crimes of dishonesty.14 Presumably, this would include the conspiracy
charge to which he pleaded guilty here. Israel may also introduce evidence
about Dorman's plea agreement, including his commitment to cooperate with
the State in exchange for the dismissal of numerous other charges against
him.
Israel has failed to demonstrate that these alternatives are
ineffective means to challenge Dorman's credibility. In short, there are
no compelling reasons here to overcome the strong presumption that
psychological examinations of witnesses to crimes shall not be allowed.
II. Expert Opinion on Witness Credibility
The more troubling issue we must decide is whether it is proper here
for an expert to render an opinion that Dorman may be diagnosed with
antisocial personality disorder. This is a condition that is described in
the Diagnostic and Statistical Manual of Mental Disorders.15 We hold that
such testimony is not admissible here.
The decision to admit expert testimony about the psychological
condition of a witness is within the sound discretion of the trial court.16
We will not disturb such a ruling unless it is based on untenable grounds
or untenable reasons.17
We begin our analysis by observing that the competency of Dorman to
testify is not at issue in this case. ER 601 expressly provides that:
Every person is competent to be a witness except as otherwise provided
by statute or by court rule.
Our examination of the record confirms our conclusion that the proffered
expert testimony was intended solely to aid the jury in assessing Dorman's
credibility, not to aid the court in determining competency. During
colloquy, the court stated to counsel:
Let me just say that the jury is going to be, as the cases repeatedly
state, they're going to be the final arbiter of who is credible and who's
not credible, but I want--I believe I am under an obligation to give them
the tools to make those decisions.
Israel contends that he should be permitted to present expert
testimony that Dorman shows signs of antisocial personality disorder and
that this disorder affects his credibility. The trial court granted
Israel's motion in limine to admit the expert testimony.18
There is no Washington case law that supports admission of expert
testimony under the circumstances here. Israel relies on Stamm19 and
Froehlich.20 That reliance is misplaced.
In Froehlich, both the competency and the credibility of the State's
witness were called into question by his nervous demeanor on the stand.
Because the defense impeached the witness through cross examination about
prior mental problems, the trial court allowed the State to admit expert
testimony to corroborate the witness' credibility.21 Accordingly, a
psychiatrist testified about the witness' "anxiety reaction," the absence
of brain damage, and his ability to distinguish between truth and untruth.
Our Supreme Court concluded that, under the facts of that case, the expert
testimony was properly admitted for the purpose of enlightening the jury.22
The reason Froehlich is distinguishable from this case is that the
holding there was expressly limited to its particular facts. The court
stated:
Where, as here, the mental disability of a witness is clearly apparent
and his competency is a central issue in the case, the jury need not be
left in ignorance about that condition or its consequences.{23}
A subsequent decision by our court recognized this limitation when it
stated:
Where the mental disability of a witness is clearly apparent and his
competency is a central issue in the case, appropriate expert testimony is
admissible to define the mental condition or its consequences.{24}
Here, competency is not at issue, and there is nothing to show that Dorman
has a clearly apparent mental disability. Accordingly, the reasoning of
the Froehlich court is inapplicable here.
Israel's reliance on Stamm, a case decided by this court before the
Supreme Court's decision in Froehlich, is equally misplaced. There, Stamm
challenged the competency of the State's chief witness at trial. The trial
court ordered a psychiatric examination to determine the competency of that
witness. The court also permitted expert testimony about the results of
that examination.
On appeal, Stamm argued that the court erred by not permitting her to
select the examining psychiatrist and by limiting the scope of the
examination to a determination of whether the witness was competent to
testify.25 The court concluded that the trial court did not abuse its
discretion in either respect. The admission of the expert psychiatric
testimony itself was not at issue.
Israel relies on a footnote in Stamm to support his argument that,
under our case law, questions as to a witness' competency are not a
prerequisite to the admission of expert testimony. The footnote states:
Competence to testify and credibility are intertwined though separate areas
for investigation. The trial court has discretionary control in both areas
of inquiry.{26}
This statement does not support Israel's argument. As our Supreme Court
made clear in Froehlich, expert testimony regarding the effect of a
witness' mental disability on his or her credibility is only proper when
that disability is clearly apparent and the witness' competency is a
central issue in the case. The Stamm footnote cannot and does not alter
that rule.
Because no Washington case precisely addresses the question presented
here, both Israel and the State invite our attention to the law of other
jurisdictions to support their respective arguments. After carefully
reviewing the cases, we conclude that admission of expert testimony on
antisocial personality disorder cannot be sustained here.
Persuasive authority that such expert testimony is not admissible is
found in United States v. Barnard.27 There, the trial court excluded expert
testimony that the State's witness, a co-conspirator testifying pursuant to
a plea agreement with the State, was a "sociopath." The Ninth Circuit
affirmed, expressing "grave doubt" that the expert testimony would be
helpful to the jury. The court further expressed its concern that such
testimony may "cause juries to abandon their own common sense in weighing
testimony" and produce a "trial within a trial" on a collateral matter.28
The court emphasized that such testimony should be admitted only in
"unusual cases."29
Israel attempts to distinguish Barnard. He cites several other cases
for the proposition that expert testimony about whether a witness has a
psychopathic personality is admissible to aid the jury in assessing
credibility. None of these cases support that proposition.
Coffin v. Reichard30 was an appeal from an order dismissing Coffin's
habeas corpus petition. The Sixth Circuit concluded that Coffin had failed
to establish that he was treated in a cruel and inhuman manner during his
commitment for medical treatment. In reaching this conclusion, the court
considered the testimony of the treating physicians, the guard who Coffin
alleged had mistreated him, and a fellow inmate who witnessed Coffin's
interaction with the guard. The court further noted that the trial court
properly considered Coffin's hospital records, demonstrating that he was a
psychopathic personality with paranoid tendencies, in evaluating his
testimony.
In Commonwealth v. Towber,31 the court ordered a new trial for Towber
based on serious violations of his fifth amendment rights. As an
additional reason for a new trial, the court noted that the trial court
improperly excluded medical records regarding the psychiatric commitment of
a self-confessed accomplice who testified against Towber at trial. Because
the witness was released from psychiatric treatment less than seven months
before his confession implicating Towber, the court concluded that the
hospital records should have been admitted to aid the jury in assessing his
credibility.
Neither Coffin nor Towber supports Israel's argument. In both cases,
only the admission of medical records was at issue, not the admissibility
of expert testimony about psychopathic personality disorder. Israel's
reliance on these cases is misplaced.
In United States v. Butt, 32 the First Circuit held that the trial
court properly excluded expert testimony regarding an informal diagnosis
that a witness suffered from depression or a personality defect. This
holding does not support Israel's argument.
Israel appears to rely on dicta in the case, which states that "{f}or
over forty years, federal courts have permitted the impeachment of
government witnesses based on their mental condition at the time of the
events testified to."33 The court's authority for this statement is United
States v. Hiss.34 There, Hiss sought to introduce psychiatric evidence
about the government's main witness, Whittaker Chambers. In a brief
memorandum opinion, the District Court concluded that, because the outcome
of the trial was completely dependent on the testimony of Chambers, the
testimony should be allowed to aid the jury in assessing his credibility.
Israel cites the case deciding Hiss' subsequent appeal from his
conviction as authority for the admission of expert testimony about
psychopathic personality disorder.35 But the propriety of the admission of
the expert testimony was not an issue on appeal, so that case is not
relevant here.
Therefore, of all the cases cited by Israel, only the District Court's
memorandum opinion in United States v. Hiss36 offers any support for
Israel's position. But we reject the Hiss case as authority for the
admission of the expert testimony here.
In reaching this conclusion, we heed the dictates of the Ninth
Circuit's decision in Barnard. There, the court emphasized that expert
psychiatric testimony on a collateral matter should be admitted only in
unusual cases, citing Hiss as an example of such a case.37 But here, as in
Barnard, there is nothing unusual. The situation where a co-conspirator
enters into a plea agreement and agrees to testify against his co-
conspirators is not uncommon.
Our conclusion is further buttressed by our Supreme Court's holding in
Froehlich, which expressly limits the admission of expert psychiatric
testimony to the situation where a witness' mental impairment is clearly
apparent and his or her competency is a central issue in the case. None of
the cases from other jurisdictions cited by Israel apply these limits.
This divergence from our State case law strengthens our conclusion that the
reasoning of these cases is inapplicable here.
Under these circumstances, there is no tenable basis for the admission
of the expert testimony on Dorman's alleged disorder.
In light of our resolution of this issue, we need not reach the
remainder of the State's arguments against the admissibility of the expert
testimony.
We reverse the trial court's orders in limine and remand the case for
trial.
WE CONCUR:
FOOTNOTES
1 State v. Froehlich, 96 Wn.2d 301, 304, 635 P.2d 127 (1981).
2 Froehlich, 96 Wn.2d at 304. See also State v. Myers, 133 Wn.2d 26, 941
P.2d 1102 (1997) (credibility determinations are solely for the jury and
will not be disturbed on appeal).
3 State v. Demos, 94 Wn.2d 733, 738, 619 P.2d 968 (1980).
4 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
5 State v. Hoffman, 116 Wn.2d 51, 89, 804 P.2d 577 (1991).
6 See, e.g., Demos, 94 Wn.2d at 738; State v. Tobias, 53 Wn. App. 635, 637,
769 P.2d 868 (1989); State v. Braxton, 20 Wn. App. 489, 492-93, 580 P.2d
1116 (1978), review denied, 91 Wn.2d 1018 (1979).
7 Demos, 94 Wn.2d at 738.
8 Demos, 94 Wn.2d at 738.
9 Hoffman, 116 Wn.2d at 89.
10 Hoffman, 116 Wn.2d at 89.
11 Hoffman, 116 Wn.2d at 89 (citation omitted).
12 We note that the trial court carefully circumscribed the conditions of
the examination:
{T}here shall be a single examination of Mr. Dorman by the defense experts
consisting of three psychological tests and an interview. The tests will
be the MMCI, MMPI, and P.A.I. The interview will be limited as to
discussion of criminal acts to those which are convictions after July 1,
1986, and those admitted to in prosecution and defense interviews, and to
conduct disclosed in prison records produced to the defense by the court.
13 Cf. United States v. Gonzalez-Maldonado, 115 F.3d 9, 16 (1st Cir. 1997)
(finding admissible expert testimony that the government's witness suffered
from mental illness that made him prone to exaggeration and noting that the
case presented unusual circumstances, i.e., witness was incompetent to
testify, jury had no opportunity to evaluate his demeanor, and tapes
containing his statements were damaging to the defense).
14 ER 609(a).
15 The diagnostic criteria for the disorder are listed in the current
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-
IV), at 649-50 (4th ed. 1994):
A. There is a pervasive pattern of disregard for and violation of the
rights of others occurring since age 15 years, as indicated by three (or
more) of the following:
(1) failure to conform to social norms with respect to lawful behaviors as
indicated by repeatedly performing acts that are grounds for arrest
(2) deceitfulness, as indicated by repeated lying, use of aliases, or
conning others for personal profit or pleasure
(3) impulsivity or failure to plan ahead
(4) irritability and aggressiveness, as indicated by repeated physical
fights or assaults
(5) reckless disregard for safety of self or others
(6) consistent irresponsibility, as indicated by repeated failure to
sustain consistent work behavior or honor financial obligations
(7) lack of remorse, as indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another.
16 State v. Stamm, 16 Wn. App. 603, 605, 559 P.2d 1 (1976), review denied,
91 Wn.2d 1013 (1977).
17 Junker, 79 Wn.2d at 26.
18 The court limited the scope of the testimony, by stating:
{W}hat the doctor would be allowed to testify to is: the nature of the
disorder, the symptoms indicia . . . of that disorder. He is never going
to be allowed--or she, I have no idea who that is--to testify to this jury
that in this case this individual is lying or not lying.
19 16 Wn. App. 603.
20 96 Wn.2d 301, 307.
21 Froehlich, 96 Wn.2d at 306.
22 Froehlich, 96 Wn.2d at 308.
23 Froehlich, 96 Wn.2d at 306 (italics ours).
24 State v. Despenza, 38 Wn. App. 645, 648, 689 P.2d 87, review denied, 103
Wn.2d 1005 (1984).
25 Stamm, 16 Wn. App. at 604-05.
26 Stamm, 16 Wn. App. at 605-06 n.1 (citing 3 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Evidence æ 601{01} Commentary (1975); 3A John H.
Wigmore, Evidence sec. 876 (1970)).
27 490 F.2d 907, 912-13 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974).
28 Barnard, 490 F.2d at 912.
29 Barnard, 490 F.2d at 913. See also United States v. Awkard, 597 F.2d
667, 50 A.L.R. Fed. 594 (9th Cir.) (endorsing both the reasoning and the
result of Barnard after the adoption of the Federal Rules of Evidence),
cert. denied, 444 U.S. 885 (1979).
30 148 F.2d 278 (6th Cir.), cert. denied, 325 U.S. 887 (1945).
31 190 Pa. Super. 93, 152 A.2d 917 (1959).
32 955 F.2d 77, 83 (1992).
33 Butt, 955 F.2d at 82.
34 88 F. Supp. 559, 559-60 (S.D.N.Y. 1950).
35 In re Writ of Hiss, 542 F. Supp. 973, 993-94 (S.D.N.Y. 1982).
36 88 F. Supp. 559.
37 490 F.2d at 913.