Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65761-1
Title of Case: State of Washington
v.
Joey Ellis
File Date: 10/01/98
Oral Argument Date: 03/24/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 96-1-00143-2
Judgment or order under review
Date filed: 07/29/97
Judge signing: Hon. Vicki L. Hogan
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: James M. Dolliver
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Gerry L. Alexander
Richard P. Guy
Dissenting: Barbara Durham
Philip A. Talmadge
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Rita J. Griffith
Attorney At Law
Ste 221
4756 Univ Village Pl NE
Seattle, WA 98105-5021
Counsel for Respondent(s)
Barbara L. Corey-Boulet
Pierce County Deputy Pros Atty
County City Bldg
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2177
Gerald T. Costello
Rm 946 Prsctg Attys Ofc
930 Tacoma Ave S
Tacoma, WA 98402
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) Number 65761-1
)
Respondent )
)
v. ) En Banc
)
JOEY C. ELLIS, )
)
Petitioner )
) Filed October 1, 1998
)
SMITH, J. Petitioner Joey C. Ellis seeks discretionary review of
an order of the Pierce County Superior Court dated July 29, 1997 granting
Respondent State of Washington's motion in limine to exclude expert
testimony on diminished capacity and denying Petitioner's motion to allow
the testimony in a pending trial in which Petitioner is charged with two
counts of aggravated murder in the first degree and in which the State
seeks the death penalty. We granted review on September 4, 1997 staying
Petitioner's trial which had been scheduled for September 15, 1997. We
reverse the Superior Court.
QUESTION PRESENTED
The question presented in this case is whether the trial court
erred in excluding proffered defense expert testimony on diminished
capacity, thus denying Petitioner an opportunity to establish a diminished
capacity defense.
STATEMENT OF FACTS
On February 16, 1996, the Pierce County Prosecuting Attorney filed
a corrected information in the Pierce County Superior Court charging
Petitioner Joey C. Ellis with two counts of aggravated first degree murder1
for the deaths of his mother, Lindy Lou Ellis, and his two-year-old half-
sister, Jaime Jane Ellis.2 The information states that on or about January
8, 1996 Petitioner, with premeditated intent,3 bludgeoned his mother and
half-sister to death with a breadboard.4 The information claimed as an
aggravating circumstance that "the murders were part of a common scheme or
plan, or the result of a single act of the defendant, or ". . ." was {sic}
committed in the course of, in furtherance of, or in immediate flight from
Robbery in the First or Second Degree. . . ."5
On September 19, 1996, the State filed a discovery motion for
disclosure of any mental defense Petitioner intended to present at trial.
The State acknowledged receipt from Petitioner, as part of a mitigation
package, of a report by Dr. Lloyd I. Cripe, Ph.D., a clinical
neuropsychologist. The State observed that "Dr. Cripe discusses in detail
his analysis of the {Petitioner's} state of mind when he killed the
victims. However, Dr. Cripe does not address, one way or the other, the
question of diminished capacity. Based upon past experience and the nature
of this case legally and factually the {State} anticipates that diminished
capacity (or even insanity) will be raised at trial."6
On September 23 , 1996, the State filed a notice of intent to seek
the death penalty, stating that "either no mitigating circumstances have
been brought to the attention of this office, or such mitigating
circumstances as have been submitted have been received and considered and
are not sufficient to merit leniency."7 By letter dated January 3, 1997,
Petitioner's assigned counsel informed the State of his diminished capacity
defense, naming three psychologists as expert witnesses, "Mark Whitehill,
Ph.D., Lloyd Cripe, Ph.D., and Jon Conte, Ph.D." 8
In his mitigation report dated August 7, 1996, Dr. Cripe stated that
he reviewed police reports and records, interviewed a close family friend,
interviewed Petitioner's probation officer, and conducted a
neuropsychological evaluation of Petitioner. He determined that Petitioner
"suffered extreme psychological pain and a damaged self-esteem" as a result
of growing up in a very dysfunctional and abusive environment.9
In an addendum to his report dated January 2, 1997, Dr. Cripe
determined that Petitioner suffered from a "mental illness related to a
long history of child and adolescent abuse which combined with drug abuse
and the circumstances the night of the homicides resulted in a diminished
capacity to normally control his mind and behavior." Dr. Cripe recommended
that Petitioner "be defended with an understanding {sic} a diminished
capacity at the time of his extreme actions."10
In a summary of findings dated January 3, 1997, Dr. Mark B.
Whitehill, Ph.D., clinical and forensic psychologist, stated that he
reviewed taped statements Petitioner made to the police following his
arrest, examined the results of Petitioner's polygraph examination,
interviewed a long-time family friend, and conducted a battery of
psychological tests of Petitioner. He concluded that Petitioner satisfied
the "statutory criteria . . . in State v. Edmon (26 Wn. App. 98, 621 P.2d
1310) for diminished capacity defense".11
On June 4, 1997, the State filed a motion in limine to exclude or
limit expert testimony.12 On June 7, 1997 Petitioner filed a motion to
admit expert testimony on diminished capacity.13 Both parties cited a 1981
Court of Appeals decision, State v. Edmon,14 which stated nine foundational
requirements for admitting expert testimony on diminished capacity. At a
hearing before the Honorable Vicki L. Hogan on June 16, 1997, defense
counsel elected not to call witnesses, but relied upon their written
motions. The State called as "hostile witnesses" defense experts Dr.
Conte, Dr. Cripe and Dr. Whitehill and appropriately asked leading
questions. Over defense objections, the court allowed testimony by Dr.
Greg J. Gagliardi, Ph.D., of Western State Hospital, who gave his opinion
concerning the appropriate methodology for diagnosing diminished capacity
and application of "Edmon factors" in psychological diagnosis.15 In an
oral ruling on June 17, 1997, Judge Hogan granted the State's motion in
limine to exclude the testimony of defense expert witnesses Dr. Conte, Dr.
Cripe and Dr. Whitehill.16 Petitioner moved for reconsideration, requesting
the court to allow an offer of proof through further testimony and
declarations.17 The court granted the motion. After hearing the testimony
of Dr. Cripe on July 28, 1997, Judge Hogan affirmed her prior ruling.18 The
court did not allow further testimony from Dr. Whitehill, determining there
was "nothing new in Dr. Whitehill's July 23rd declaration that indicates
anything new than as testified."19
On July 29, 1997,20 Judge Hogan signed an order granting the State's
motion in limine to exclude or limit expert testimony and denying
Petitioner's motion to admit expert evidence on diminished capacity.21 On
August 8, 1997 Petitioner sought discretionary review by this Court.22
Review was granted on September 4, 1997.23
DISCUSSION
The usual rule is that admissibility of evidence is within the
sound discretion of the trial court and the court's decision24 will not be
reversed absent abuse of that discretion.25 "An abuse of discretion occurs
only when no reasonable person would take the view adopted by the trial
court."26
Petitioner asserts that diminished capacity is a mental condition,
not amounting to insanity, that causes an inability to form the requisite
intent for the crime charged.27 Citing State v. Eakins, Petitioner
acknowledges that for a defendant to maintain a diminished capacity
defense, the defendant must present expert testimony establishing a mental
disorder that impaired the ability to form the specific intent28 to commit
the offense charged.29 Petitioner argues that determination of the
credibility of expert witnesses is for the jury.30
Asserting that State v. Edmon establishes the foundational criteria
for admitting the opinion of an expert regarding a defendant's ability to
form a specific intent, Petitioner argues that he has satisfied all nine
"Edmon factors"31 and therefore the trial court erred in excluding his
expert testimony.
Petitioner argues that "Edmon factor" one has been satisfied
because, in the expert opinion of Dr. Cripe, Petitioner could not have
formed a specific intent at the time of the killings.32 Petitioner
contends that "Edmon factor" two has been satisfied because the experts'
qualifications were not challenged and the court, either expressly or
implicitly, acknowledged that the experts were qualified to testify.33
Petitioner argues that "Edmon factor" three has been satisfied through the
testimony of Dr. Whitehill on June 16, 1997 and Dr. Cripe on July 28, 1997,
when they stated that they examined and diagnosed Petitioner and were able
to state an opinion with reasonable medical certainty.34
According to Petitioner, the expert testimony is based upon
substantial supporting evidence in the record and therefore "Edmon factor"
four has been satisfied. Dr. Whitehill testified he relied on his
discussions with Petitioner and additional information, including a
previous mental health examination.35 Dr. Cripe testified he relied upon
examination of Petitioner and "records surrounding the case and the police
and legal aspects of the case." He stated he received "some input from Dr.
Whitehill," and interviewed a woman with whom Petitioner and his mother had
lived and interviewed Petitioner's grandfather.36
Petitioner contends he has satisfied "Edmon factor" five because
expert testimony concluded his mental disorder, and not ordinary emotions,
prevented him from forming a specific intent. Dr. Whitehill testified he
would characterize Petitioner's personality disorder on multiple levels, a
behavioral component, a cognitive component, an interpersonal relations
component, and an emotional component.37
During his testimony, Dr. Cripe explained that Petitioner was not
experiencing mere transient emotion, but the emotion was a component of an
underlying mental disorder.38
Arguing that "Edmon factor" six has been satisfied, Petitioner
contends defense experts explained that his mental disorders caused his
inability to form intent. Dr. Whitehill testified that Petitioner
experienced an aberrant reaction, "We are talking about extreme pathology
here, and breakdowns of mental observations that are not just an
overreaction. We are talking about defects of mental functioning."39 Dr.
Cripe explained that, due to the unusual and extraordinary nature of the
crime, he believes Petitioner was not merely experiencing reduced
perception or other irrelevant mental states.40
Petitioner asserts that "Edmon factor" seven has been satisfied
because in Dr. Whitehill's expert opinion, Petitioner's inability to form a
specific intent occurred at the time of the killings.41 Petitioner also
refers to Dr. Cripe's statement that "when the situation evolved that night
and interacted with {Petitioner's} mental defect and impairment, there was
just a breakdown in the way the mind works and the way the mind would
normally prethink or deliberately reason things out and think about cause
and effect and then make a decision."42
Petitioner argues that the testimony of Dr. Whitehill and of Dr.
Cripe satisfies "Edmon factor" eight, which requires that the mental
disorder must substantially reduce the probability that Petitioner formed
the necessary intent. Dr. Whitehill described Petitioner's ability to form
specific intent as "severely compromised" and estimated that Petitioner's
capacity to form intent was roughly at 25%, or reduced by 75%.43 Dr. Cripe
testified that Petitioner's mental disorders substantially reduced the
probability that Petitioner formed the necessary intent.44
Petitioner contends "Edmon factor" nine has been satisfied because
defense experts explained how his mental disorders caused an inability to
form specific intent. Dr. Whitehill testified that, in his professional
opinion as a forensic psychologist, Petitioner suffered diminished capacity
on the night of the killings.45 In a declaration dated July 28, 1997, Dr.
Cripe concluded that what happened on the night of the killings was not
premeditated or intended.46
Petitioner concludes that because all nine foundational
requirements of Edmon have been satisfied, the trial court erred in
excluding the expert testimony of Dr. Whitehill and Dr. Cripe. According
to Petitioner, this case and State v. Edmon are "virtually
indistinguishable." Petitioner argues that in Edmon, the Court of Appeals
reversed the defendant's conviction because the trial court excluded expert
testimony similar to testimony excluded in this case.
In Edmon, the defendant, who filed a grievance against his
supervisor, believed he was a victim of racial discrimination. One night
he arrived at work after drinking and partying and entered into an angry
discussion with his supervisor. The defendant threatened, hit, and shot
his supervisor in the stomach. One hour later, the defendant had a blood
alcohol reading of .13. At trial, the defendant testified he had only
three hours of sleep during the 24 hours preceding the shooting and that he
could not recall the incident.47 The trial court excluded psychiatric
testimony offered to show the defendant did not have the ability to form
certain mental states as a result of the medically recognized mental
disorders of anxiety and depression. The trial court also excluded expert
testimony offered to prove greater impairment caused by the combined effect
of alcohol, lack of sleep, and mental disorders.48 In an offer of proof, a
psychiatrist testified that given the defendant's background, his mental
disorders, the difficulties with his supervisor, and the other
circumstances surrounding the shooting, the defendant was "likely to be
severely impaired in his ability to form the intent to kill or to injure."
The psychiatrist described the defendant's circumstances as an "explosive
scenario" and also testified that the alcohol and lack of sleep would tend
to further dilute ego control.49
Petitioner Ellis argues that in his case, defense experts similarly
explained that, as a result of his mental disorders, he suffered from a
"significant loss of (already severely attenuated) ego-control"50 at the
time of the killings. Petitioner challenges the State's argument that the
expert testimony only proves an "irresistible impulse,"51 a defense not
accepted in this State. Petitioner asserts that in Edmon, the court
determined that ego-control, an entirely different matter from irresistible
impulse, refers to the perceptive powers, and not to the volitive powers.
Petitioner contends that under Edmon, mere reference to an "explosive
scenario" does not convert expert testimony into testimony on irresistible
impulse.52 The Court of Appeals stated in that case that "substantial
reduction" of the probability that the defendant formed the challenged
mental state is the required showing, not absolute certainty and "the jury
then gives the opinion whatever weight it deserves."53
Petitioner claims this case is an even stronger one to support
diminished capacity than Edmon54 because he presented two experts who
testified he suffered from two long-standing mental disorders, the State's
expert agreed he suffered from a personality disorder,55 he has been
precluded from presenting a diminished capacity defense, and murder in the
first degree requires premeditation, which necessitates a greater mental
capacity than intent.
Relying on State v. Eakins,56 Petitioner claims the facts in this
case are more compelling than in other cases in which this Court allowed
expert testimony on diminished capacity. In Eakins, the defendant was
convicted of two counts of second degree assault while armed with a deadly
weapon. This Court affirmed reversal by the Court of Appeals. The
defendant went to a restaurant where his estranged girlfriend worked and
pointed a loaded revolver at her and the kitchen manager. Admitting he had
pointed the gun, defendant claimed diminished capacity induced by drugs and
alcohol. His therapist testified the defendant was depressed and suffered
from a personality disorder for which he was taking prescription
tranquilizers with alcohol. The therapist said he believed the defendant
had consumed as much as 24 ounces of alcohol on the night of the assaults.
A psychiatrist testified the defendant was incapable of forming the intent
to assault because of his depression and the consumption of alcohol with
his medication. He described the defendant's behavior during the assaults
as a "delirium induced by drugs and alcohol." The two victims and two
other witnesses testified the defendant appeared angry but not intoxicated
or delirious the night of the assaults. Two police officers who
interviewed the defendant four hours after the assaults testified he did
not appear intoxicated and spoke clearly and coherently.
Petitioner argues the cases of Edmon and Eakins lead to the
conclusion that the trial court erred in excluding his expert testimony on
diminished capacity.
The State to the contrary asserts the trial court properly
exercised its discretion to exclude expert testimony on diminished capacity
because Petitioner has not satisfied the nine foundational requirements of
Edmon. The State contends that Washington courts have consistently applied
the "Edmon factors" in determining admissibility of expert testimony on
diminished capacity.
Citing State v. Griffin, the State argues that a diminished
capacity defense requires substantial evidence of a mental condition and
requires that the evidence "logically and reasonably connects the
defendant's alleged mental condition with the inability to possess the
required level of culpability to commit the crime charged."57
In Griffin, the defendant was convicted by a jury on three counts
of forgery. Upon returning from service in Vietnam, he had been
hospitalized for psychiatric treatment five times. A clinical psychologist
and a psychoanalyst testified the defendant suffered from a catatonic
paranoid schizophrenia and chronic alcoholism and therefore would be
incapable of forming an intent to injure or defraud. The trial court
refused an instruction on diminished capacity. The Court reversed the
conviction, concluding that "{s}uch expert opinion on diminished capacity
is admissible when relevant to the issue of defendant's mental intent."
The Court determined there was "abundant evidence in the record to show
defendant's mental disorders impeded his ability to formulate the requisite
intent" and denial of an instruction on diminished capacity was reversible
error.
The State asserts that in State v. Davis58 the court applied the
"Edmon factors" in excluding expert testimony on diminished capacity. In
that case, the defendant was convicted of second-degree felony murder and
second-degree assault. Citing Edmon, the Court of Appeals upheld the trial
court's decision to exclude expert testimony.
The State asserts that in State v. Thamert59 the court applied the
"Edmon factors" in affirming the trial court's decision to exclude expert
testimony on diminished capacity. In that case, the defendant, who was
convicted of two counts of second-degree robbery, confessed to the crimes,
explaining that "voices told him to rob the banks." A psychiatrist
testified the defendant suffered from chronic paranoid schizophrenia, an
incurable disorder characterized by identity confusion, hearing voices,
indecisive thinking, and poor impulse control and was therefore unable to
form the intent to steal at the time of the robbery. The court excluded
the testimony of another psychiatrist, determining the offer of proof
regarding that expert did not comply with three of the nine "Edmon factors"
and that the testimony would be cumulative.
The State argues this case is distinguishable from Edmon,
contending that defendant Edmon was diagnosed with the medically well-
established mental disorders of anxiety and depression. The State claims
that, in contrast, Petitioner Ellis has been diagnosed only with
nonspecific mental disorders60 and the experts' diagnoses were inconsistent.
The State refers to the testimony of Dr. Whitehill on June 16,
1997, in which he stated61 that Petitioner suffered from borderline
personality disorder,62 although he was not in a dissociative63 state at the
time of the killings. At a later point in his testimony, he described
Petitioner's mental disorders as borderline personality not otherwise
specified64 and intermittent explosive disorder65 or the parallel condition
of impulse control disorder.66 In his summary of findings dated January 3,
1997, Dr. Whitehill concluded that Petitioner suffered from a severe
personality disorder67 and impulse control disorder or intermittent
explosive disorder.68
In testimony on June 16, 1997, Dr. Cripe stated that Petitioner
suffered from impulse control disorders.69 In his neuropsychological
evaluation report dated August 7, 1996, he determined that the homicides
were a "result of very complicated and powerful psychological and
interpersonal factors which developed over many years, but were suddenly
impulsively unleashed while in an intoxicated state." He explained that
Petitioner was "instantly flooded with angry emotion, a cauldron of stored
up aggression was released, and he lost control."70 In an addendum to his
report dated January 2, 1997, Dr. Cripe stated that, after reviewing his
evaluation and considering Edmon and other cases, he concluded that
Petitioner suffered from a "severe antisocial personality disorder with
episodic dyscontrol which is the result of complex biosocial-psychological
causes."71 But in that same report he also concluded that Petitioner
suffers from "a mental illness related to a long history of child and
adolescent abuse which combined with drug abuse and the circumstances of
the homicides resulted in a diminished capacity to normally control his
mind and behavior".72 In a declaration dated July 28, 1997, Dr. Cripe
stated that "Mr. Ellis suffers from a severe personality disorder. There
are mixed features to this personality disorder, but one of the features is
antisocial. Additionally, he has an impulse control disorder. These
disorders are the result of complex biological, social, and psychological
factors."73
The State contends Dr. Whitehill's testimony was not based upon
substantial supporting evidence in the record and he did not state an
opinion with reasonable medical certainty as required under "Edmon factors"
three and four.74
The State asserts that because the defense experts relied upon
Petitioner's "self-serving statements," their opinions were grounded in
speculation.75 Referring to Dr. Cripe's testimony, the State claims he
disregarded the fact that Petitioner contradicted himself in statements
about using drugs and alcohol before the killings.76 The State argues that
defense experts testified that Petitioner's actions resulted from extreme
"explosive rage" and "emotional flooding," which describes an irresistible
impulse, a defense not available in this State. The State concludes that
consequently Petitioner has not satisfied "Edmon factor" five, which
requires that the cause of the inability to form a specific intent must be
a mental disorder, and not emotions like jealousy, fear, anger, and hatred.77
According to the State, Petitioner has not satisfied "Edmon
factors" six, seven, eight, and nine because defense experts did not
explain how Petitioner's mental disorders caused an inability to form
intent. The State claims the expert testimony was conclusory only and did
not logically and reasonably connect Petitioner's alleged mental condition
with the asserted inability to form the required specific intent to commit
the crime charged. The State argues that, after being given another
opportunity on the motion for reconsideration, Dr. Cripe could not
reasonably and logically connect Petitioner's mental disorders with lack of
intent.78
The State contends this Court affirmed the trial court's refusal to
instruct the jury on diminished capacity on similar grounds in State v.
Ferrick.79 In that case, the defendant, who was convicted of first degree
murder, had been committed to and discharged from Western State Hospital
three times. Shortly after her last discharge, the defendant stopped
taking her prescribed medication and brutally stabbed her mother to death
upon learning her mother had talked about having her recommitted. The
Court concluded there was "no substantial evidence to establish that
{defendant's} alleged mental condition diminished or destroyed her capacity
to form the specific intent to kill her mother."80
The State asserts that defense experts in this case similarly did
not provide the necessary nexus. The State noted that its expert, Dr.
Gagliardi, testified that ideally the causal nexus between the disability
and lack of intent requires either a scientific or very good clinical
explanation and the disability has to relate to a relatively well-defined
and very serious mental disorder and not a minor mental disorder or
personality disorder.81
The State concludes that the trial court properly exercised its
discretion in excluding Petitioner's expert testimony on diminished
capacity because Petitioner did not satisfy the nine foundational
requirements of Edmon. The State asserts that the court's decision to
exclude evidence may be "reversed only upon a manifest abuse of discretion"
and "sustained on any proper basis within the record and will not be
reversed simply because the trial court gave a wrong or insufficient reason
for its determination."82 The State gratuitously emphasizes that the
court's ruling would not preclude Petitioner from presenting diminished
capacity testimony as mitigation evidence in the sentencing phase83 of the
trial, in the event the case proceeds to that stage.
Petitioner argues that the expert testimony in this case has
satisfied the foundational requirements of Edmon and that it is also
admissible under Evidence Rule(ER) 702.84 According to Petitioner, in recent
cases since Edmon this Court has held that ER 702 governs admissibility of expert
testimony which does not involve new or novel scientific evidence. He asserts that
diminished capacity is a well-recognized defense and does not involve new
or novel scientific principles and therefore courts should allow expert
testimony on diminished capacity when the requirements of ER 702 have been
satisfied. Petitioner contends the qualifications of the defense experts
were unchallenged and their testimony would be helpful to the trier of fact
because mental disorders are beyond the ordinary understanding of lay
persons. The State to the contrary asserts that because Petitioner did not
argue ER 702 admissibility before the trial court, he is precluded from
presenting that argument on appeal. This is not necessarily so. We
accept Petitioner's argument under the circumstances of this case.85
The State argues that expert testimony on diminished capacity would
not be admissible under ER 702, which is at most a general rule for
admissibility of expert testimony. The State asserts that if this Court
allows expert testimony on diminished capacity under ER 702, it would be
overruling Edmon which requires a defendant to satisfy nine foundational
requirements before presenting to the trier of fact expert testimony on
diminished capacity.
Petitioner argues that the trial court's ruling excluding his
expert testimony, which precludes him from establishing diminished capacity
in the guilt phase of his trial, deprives him of his constitutional right
to present his own defense. He contends the United States Supreme Court
has held that under the Fifth, Sixth, and Fourteenth amendments, criminal
defendants have a constitutional right to testify in their own defense.
Petitioner cites Rock v. Arkansas86 in which the Court stated that, although
the right to present relevant testimony is not without limitation,
"restrictions of a defendant's right to testify may not be arbitrary or
disproportionate to the purposes they are designed to serve. In applying
its evidentiary rules a State must evaluate whether the interests served by
a rule justify the limitation imposed on the defendant's constitutional
right to testify."
Petitioner argues that, as a criminal defendant in a capital case,
his constitutional right to present a defense outweighs any interest served
by excluding his expert testimony. Petitioner suggests the State seems
fearful that the jury might be influenced by the expert testimony and
possibly acquit on the basis of irresistible impulse or mere emotion
instead of diminished capacity. Petitioner asserts that actually a jury
is not bound by the opinion of an expert and will properly evaluate the
credibility of the testimony under proper instructions from the court such
as Washington Pattern Instruction (WPIC) 6.51.87
The State asserts the United States Supreme Court stated in Montana
v. Egelhoff that "the proposition that the Due Process Clause guarantees
the right to introduce all relevant evidence is simply indefensible. . . .
The accused does not have an unfettered right to offer {evidence} that is
incompetent, privileged, or otherwise inadmissible under standard rules of
evidence." In that case, the Court rejected a due process challenge to a
state statute which precluded defendants from claiming diminished capacity
occasioned by voluntary intoxication. The Court ruled it is "`within the
power of the State to regulate procedures under which its laws are carried
out,' . . . and its decision in this regard is not subject to proscription
under the Due Process Clause unless `it offends some principle of justice
so rooted in the traditions and conscience of our people as to be ranked as
fundamental.'"88 The State contends Petitioner has not shown that his
"right to present a diminished capacity defense" is a fundamental principle
of justice and therefore neither Washington law on diminished capacity nor
the ruling of the trial court is unconstitutional.
In reversing the trial court on allowing expert testimony on
diminished capacity, the Court of Appeals in Edmon explained that "{t}he
psychiatrist properly testified to a mental condition, i.e., reduced
perception, that, in his opinion, was part of the mechanism flowing from
the mental disorder and impairing Edmon's ability to form the intent to
kill or injure. An opinion unsupported by this explanation would have
been inadmissible."89
In this case defense expert Dr. Whitehill testified that Petitioner
suffered from a borderline personality disorder and intermittent explosive
disorder. He explained these disorders underlay Petitioner's killing of
his mother because he misperceived her remarks about his girlfriend and
interpreted them as "extremely deflammatory {sic}, as denying him his self.
There would be some diminished ego function there, and then the capper, of
course, is the reaction to the interpretation. This is what I have termed
emotional discontrol. . . . So we have an individual whose perceptional
process, whose interpreting process, his decision making capacity and his
ability to properly regulate his behavior, was severely compromised as a
direct result of this ongoing personality disturbance." Dr. Whitehill
testified that in Petitioner's "continuously disregulated stated" he killed
his sister because he believed "that this was a child who symbolized all of
what he did not receive with respect to maternal attachment, all of what
Jamie, his young sister received. . . . {s}he awakened as a stimulus,
someone which reminded him, which triggered another intense exacerbation of
an already existing level of emotional discontrol."
Defense expert Dr. Cripe testified that Petitioner suffered from an
antisocial personality disorder and impulse control disorder. When asked
by defense counsel how the mental disorder causally connected to lack of
intent, Dr. Cripe responded that "when he went over there in that situation
with his mother, he walked in there with this history of problems, this
history of mental disorder. . . . He is in a situation where certain
stressors arise. And given the weaknesses in his psychological makeup, the
mind is overpowered basically by there is a breakdown in the deliberation
process, in forming judgments and decisions, and the person ends up acting
from disarray and from confusion and emotional forces, rather than from a
deliberate forming of intent. . . ." Dr. Cripe stated that he believed
Petitioner did not act with intent partly because "it's not very common
that human beings kill their mothers and little sisters. This is an
extraordinary thing. . . . I mean people who plan and deliberately kill
people, like hit men, don't do it with breadboards."
The trial court in this case intelligently evaluated the testimony
and reports of defense expert witnesses. The court, however, placed too
much reliance upon foundational criteria announced in State v. Edmon, a
1981 Court of Appeals case. We do not consider Edmon controlling in this
case. Strict application of Edmon results in at least a questionable
result in this capitol case by depriving Petitioner Ellis, before trial, of
an opportunity to present a diminished capacity defense. The question of
admissibility of the testimony of defense experts is better determined
under ER 702, 401 and 402.90 If at trial the court allows any such
testimony, its weight and value would then be determined by the trier of
fact, the jury, under proper instructions, including an instruction such as
WPIC 6.51.
SUMMARY AND CONCLUSION
To maintain a diminished capacity defense, a defendant must produce
expert testimony demonstrating that a mental disorder, not amounting to
insanity, impaired the defendant's ability to form the specific intent to
commit the crime charged.
Considering the defense expert testimony in its entirety, the trial
court correctly determined the foundational requirements for admitting
expert testimony on diminished capacity as announced in the 1981 Court of
Appeals case of State v. Edmon91 had not been satisfied. But we do not
consider that case controlling in our decision in this case.
For some reason, not quite evident, the 1981 Court of Appeals
decision, State v. Edmon, has been elevated to the status of the last,
absolute and definitive word on foundational requirements for presentation
or admissibility of expert testimony on diminished capacity. In fact the
nine foundational requirements the opinion states must be satisfied before
"{a}n expert may give an opinion regarding a defendant's ability to form a
specific intent" have been referred to as "Edmon factors." Petitioner
Ellis and Respondent State both address their primary attention to whether
the nine "Edmon factors" have been satisfied. The trial court made her
decision by strict application of the "Edmon factors."
We do not adopt the foundational requirements announced in Edmon as
absolute. Even assuming their applicability in this case, it was error
for the trial court to exclude the proffered defense expert testimony on
diminished capacity prior to trial on a motion in limine in this case which
is an aggravated first degree murder case in which the State intends to ask
for the death penalty. There is sufficient basis in the record at this
stage to allow expert testimony on diminished capacity at trial during the
guilt phase.
The defense expert witnesses all qualified to give opinions will
testify that Petitioner Ellis experienced diminished capacity at the time
he committed the offenses charged. Their testimony should be allowed at
trial under ER 702. They would be subject to cross-examination as they
were as "hostile witnesses" in the pre-trial proceeding on the motion in
limine. The trier of fact the jury can then determine what weight, if
any, it will give to their testimony. This is fundamentally fair and
consistent with due process.
Evidence Rule 702 states the general rule for admissibility of
expert testimony, although it does not refer specifically to expert opinion
on diminished capacity. The decision of the trial court to exclude expert
testimony on diminished capacity prior to trial upon the record before us
deprives Petitioner Ellis of his constitutional right to present evidence
in his defense, notwithstanding the trial court's understandable
interpretation of State v. Edmon.
"Admissibility of evidence lies within the sound discretion of the
trial court and the court's decision will not be reversed absent abuse of
that discretion."92 "An abuse of discretion occurs only when no reasonable
person would take the view adopted by the trial court."93 Under the
circumstances of this case, a pre-trial proceeding in a capital case, the
abuse of discretion rule must be applied in order to achieve a
fundamentally fair result. In excluding the expert testimony on
diminished capacity in the State's motion in limine, the court unreasonably
and prematurely concluded the foundation for admissibility had not been
satisfied. The court should have considered admissibility under ER 702 and
application of ER 401 and 402.
We reverse the Superior Court and allow Petitioner Joey C. Ellis
to proceed with presentation of expert testimony in the guilt phase of his
case to establish his diminished capacity defense subject to admissibility
under Evidence Rule 702 and subject to appropriate instructions to the
jury.
FOOTNOTES
1 "RCW 10.95.020 Definition. A person is guilty of aggravated first
degree murder if he or she commits first degree murder as defined by RCW
9A.32.030(1)(a), as now or hereafter amended, and one or more of the
following aggravating circumstances exist:
". . . .
"(10) There was more than one victim and the murders were part of a
common scheme or plan or the result of a single act of the person;
"(11) The murder was committed in the course of, in furtherance of, or
in immediate flight from one of the following crimes:
"(a) Robbery in the first or second degree;
". . . ."
"RCW 9A.32.030 Murder in the first degree. (1) A person is guilty of
murder in the first degree when:
"(a) With a premeditated intent to cause the death of another person,
he or she causes the death of such person or of a third person; or
". . . ."
2 Clerk's Papers at 1-2.
3 "RCW 9A.32.020 Premeditation Limitations. (1) As used in this chapter,
the premeditation required in order to support a conviction of the crime of
murder in the first degree must involve more than a moment in point of
time.
". . . ."
"RCW 9A.08.010 General requirement of culpability. (1) Kinds of
Culpability Defined.
"(a) INTENT. A person acts with intent or intentionally when he acts
with the objective or purpose to accomplish a result which constitutes a
crime."
4 Clerk's Papers at 1-2.
5 Clerk's Papers at 11-12.
6 Clerk's Papers at 5. See State v. Eakins, 127 Wn.2d 490, 502, 902
P.2d 1236 (1995) ("To show diminished capacity, a criminal defendant must
produce expert testimony demonstrating the defendant suffered from a mental
condition that impaired his or her ability to form the requisite specific
intent.").
7 Clerk's Papers at 11-13.
8 Mem. from Pierce County Dep't of Assigned Counsel, Resp. to Mot. for
Review, App. B.
9 Resp. to Mot. for Review, App. C.
10 Clerk's Papers at 44.
11 Clerk's Papers at 43.
12 Clerk's Papers at 17-30.
13 Clerk's Papers at 31-44.
14 28 Wn. App. 98, 621 P.2d 1310 (1981).
15 Report of Proceedings (RP) June 16, 1997 at 80-81.
16 RP June 17, 1997, Court's Oral Ruling at 4-5.
17 Clerk's Papers at 45
18 RP July 28, 1997 at 86.
19 RP July 28, 1997 at 18.
20 Dated July 29, 1997 but stamped as filed on July 28, 1997.
21 Clerk's Papers at 73.
22 Clerk's Papers at 72.
23 Letter to counsel from Supreme Court Clerk.
24 Petitioner argues that the trial court erred in excluding expert
testimony on diminished capacity because (1) the foundational requirements
for admitting expert testimony have been satisfied; (2) the expert
testimony is otherwise admissible under ER 702; and (3) the exclusion of
such testimony deprives Petitioner of his constitutional right to present a
defense.
25 State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997) (citing
State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992)).
26 State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997) (citing
State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)).
27 State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860, cert. denied, 414
U.S. 1094 (1973).
28 See 28 Wn. App. at 104 (specific intent is "an intent to produce a
specific result," as opposed to an intent to do the physical act).
29 127 Wn.2d 490, 502, 902 P.2d 1236 (1995).
30 127 Wn.2d at 503.
31 See 28 Wn. App at 102-03. The "Edmon factors" are:
"1. The defendant lacked the ability to form a specific intent due to a
mental disorder not amounting to insanity.
"2. The expert is qualified to testify on the subject.
"3. The expert personally examines and diagnoses the defendant and is
able to testify to an opinion with reasonable medical certainty.
"4. The expert's testimony is based on substantial supporting evidence
in the record relating to the defendant and the case, or there must be an
offer to prove such evidence. The supporting evidence must accurately
reflect the record and cannot consist solely of uncertain estimates or
speculation.
"5. The cause of the inability to form a specific intent must be a
mental disorder, not emotions like jealousy, fear, anger, and hatred.
"6. The mental disorder must be causally connected to a lack of specific
intent, not just reduced perception, overreaction or other irrelevant
mental states.
"7. The inability to form a specific intent must occur at a time
relevant to the offense.
"8. The mental disorder must substantially reduce the probability that
the defendant formed the alleged intent.
"9. The lack of specific intent may not be inferred from evidence of the
mental disorder, and it is insufficient to only give conclusory testimony
that a mental disorder caused an inability to form specific intent. The
opinion must contain an explanation of how the mental disorder had this
effect." (Citations ommitted.)
32 RP July 28, 1997 at 45-46.
33 RP July 28, 1997 at 86. ("As to Dr. Cripe, first for the record,
there was and has been no doubt in this court's mind as to his
qualifications as an expert in the medical profession for which he is
licensed and demonstrates significant expertise. . . .")
34 RP June 16, 1997 at 39-40, 44. RP July 28, 1997 at 28-29, 44-46.
35 RP June 16, 1997 at 44-45,50.
36 RP July 28, 1997 at 29-30.
37 RP June 16, 1997 at 29-30.
38 RP July 28, 1997 at 48.
39 RP June 16, 1997 at 29-30.
40 RP July 28,1997 at 54-55.
41 RP June 16, 1997 at 41-42.
42 RP July 28, 1997 at 45-46.
43 RP June 16, 1997 at 34-35; RP July 28, 1997 at 52.
44 RP July 28, 1997 at 57.
45 RP July 28, 1997 at 51-53.
46 Clerk's Papers at 66-67.
47 28 Wn. App. at 99-100.
48 28 Wn.App. at 100-01.
49 28 Wn.App. at 101-02.
50 Clerk's Papers at 48-49.
51 28 Wn. App. at 105 ("An irresistible impulse is one induced by a
mental disease affecting the volitive powers so that the person afflicted
is unable to resist the impulse to commit the act charged against him. He
cannot control his own behavior even though his perceptive powers are
unaffected and he understands the nature and consequences of the act
charged and perceives that it is wrong.").
52 28 Wn. App. at 107.
53 Id.
54 In Edmon, one expert testified; the defendant was not completely
denied of a diminished capacity defense because the court allowed expert
testimony on the effects of alcohol and lack of sleep on his ability to
form intent; and the requisite mental state involved intent, not
premeditation.
55 RP June 16, 1997 at 105.
56 127 Wn.2d at 492-94. See also State v. Brand, 55 Wn. App. 780, 782-
83, 780 P.2d 894 (1989) (Despite "incontrovertible evidence of planning,"
the court allowed expert testimony that defendant's ability to premeditate
the intent to kill his wife was diminished because he suffered from a major
depressive disorder and from narcissistic personality).
57 100 Wn.2d 417, 419, 420, 670 P.2d. 265 (1983).
58 64 Wn. App. 511, 515, 827 P.2d 298 (1992), conviction in part, 121
Wn.2d 1, 846 P.2d 527 (1993).
59 45 Wn. App. 143, 723 P.2d 1204, review denied, 107 Wn.2d 1014 (1986).
60 Inclusion of a diagnosis in the Diagnostic and Statistical Manual of
Mental Disorders, (4th ed. 1994) (DSM-IV) "does not imply that the
condition meets legal or other nonmedical criteria for what constitutes
mental disease, mental disorder, or mental disability. The clinical and
scientific considerations involved in categorization of these conditions as
mental disorders may not be wholly relevant to legal judgments, for
example, that take into acount such issues as individual responsibility,
disability determination, and competency." DSM-IV, xxvii (1994).
61 RP June 16, 1997 at 41.
62 DSM-IV at 654. "Diagnostic criteria for 301.83 Borderline Personality
Disorder A pervasive pattern of instability of interpersonal
relationships, self-image, and affects, and marked impulsivity beginning by
early adulthood and present in a variety of contexts, as indicated by five
(or more) of the following:
"(1) frantic efforts to avoid real or imagined abandonment. . . .
"(2) a pattern of unstable and intense interpersonal
relationships characterized by alternating between extremes of idealization
and devaluation
"(3) identity disturbance: markedly and persistently unstable self-
image or sense of self
"(4) impulsivity in at least two areas that are
potentially self-damaging (e.g., spending, sex, substance abuse, reckless
driving, binge eating). . .
.
"(5) recurrent suicidal behavior, gestures, or threats, or self-
mutilating behavior
"(6) affective instability due to a marked reactivity of mood
(e.g., intense episodic dysphoria, irritability, or anxiety usually lasting
a few hours and only rarely more than a few days)
"(7) chronic feelings of emptiness
"(8) inappropriate, intense anger or difficulty controlling
anger (e.g., frequent displays of temper, constant anger, recurrent physical fights)
"(9) transient, stress-related paranoid ideation or severe dissociative
symptoms"
63 "The essential feature of Dissociative Disorders is a disruption in
the usually integrated functions of consciousness, memory, identity, or
perception of the environment." DSM-IV at 477.
64 The diagnosis of borderline personality disorder not otherwise
specified is not a category listed in DSM-IV.
65 DSM-IV at 612. "Diagnostic criteria for 312.34 Intermittent Explosive
Disorder
"A. Several discrete episodes of failure to resist aggressive
impulses that result in serious assaultive acts or destruction of property.
"B. The degree of aggressiveness expressed during the episodes
is grossly out of proportion to any precipitating psychosocial stressors.
"C. The aggressive episodes are not better accounted for by another
mental disorder (e.g., Antisocial Personality Disorder, Borderline Personality
Disorder. . .) and are not due to the direct physiological effects of a
substance (e.g., a drug of abuse. . .)."
Reliable information is lacking, but Intermittent Explosive
Disorder is apparently rare.
66 RP June 16, 1997 at 48, 58.
67 DSM-IV at 673. 301.9 Personality Disorder Not Otherwise Specified
"This category is for disorders of personality functioning that do not meet
criteria for any specific Personality Disorder. An example is the presence
of features of more than one specific Personality Disorder that do not meet
the full criteria for any one Personality Disorder ("mixed personality"),
but that together cause clinically significant distress or impairment in
one or more important areas of functioning (e.g., social or occupational).
This category can also be used when the clinician judges that a specific
Personality Disorder that is not included in the Classification is
appropriate."
68 Clerk's Papers at 43.
69 RP June 16, 1997 at 71-72.
70 Resp. to Mot. for Review, App. C at 7.
71 DSM-IV at 649-50. Diagnostic criteria for 301.7 Antisocial
Personality Disorder
"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
behavior 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
". . . ."
72 Clerk's Papers at 44.
73 Clerk's Papers at 64.
74 RP June 16, 1997 at 63-64.
75 See State v. Tyler, 77 Wn.2d 726, 466 P.2d 120 (1970) (court excluded
expert opinion based on the defendant's testimony as to the amount of drugs
and alcohol he had consumed, which testimony was so vague, indefinite, and
uncertain that it provided no basis for a competent medical opinion).
76 RP July 28, 1997 at 69-70.
77 See also State v. Moore, 61 Wn.2d 165, 377 P.2d 456 (1963).
78 RP July 28, 1997 at 53-55.
79 81 Wn.2d 942, 506 P.2d 860 (1973).
80 81 Wn.2d at 945.
81 RP June 16, 1997 at 92-93, 104-06.
82 State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992).
83 See RCW 9.94A.390
84 "Evidence Rule 702. If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise."
85 Under Rule 2.5 of the Rules of Appellate Procedure, an "appellate
court may refuse to review any claim of error which was not raised in the
trial court."
86 483 U.S. 44, 55-56, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (a state
evidentiary rule excluding all post-hypnosis testimony unconstitutionally
burdened the defendant's right to testify at trial). See also State v.
Baird, 83 Wn. App. 477, 482, 922 P.2d 157 (1996), review denied, 131 Wn.2d
1012 (1997).
87 "WPIC 6.51 EXPERT TESTIMONY A witness who has special training,
education or experience in a particular science, profession or calling, may
be allowed to express an opinion in addition to giving testimony as to
facts. You are not bound, however, by such an opinion. In determining the
credibility and weight to be given such opinion evidence, you may consider,
among other things, the education, training, experience, knowledge and
ability of that witness, the reasons given for the opinion, the sources of
the witness' information, together with the factors already given you for
evaluating the testimony of any other witness."
88 518 U.S. 37, 116 S. Ct. 2013, 2017, 135 L. Ed. 2d 361 (1996) (citing
Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed. 2d
798 (1988)).
89 28 Wn. App. at 106.
90 "Evidence Rule 401. `Relevent evidence' means having any tendency to
make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence."
"Evidence Rule 402. All relevant evidence is admissable, except as
limited by constitutional requirements or as otherwise provided by statute,
by these rules, or by other rules or regulations applicable in the courts
of this state. Evidence which is not relevant is not admissable."
91 28 Wn. App. at 102-03 (citing State v. Ferrick, 81 Wn.2d 942, 506 P.2d
860, cert. denied, 414 U.S. 1094, 94 S. Ct. 726, 38 L. Ed. 2d 552 (1973);
State v. Martin, 14 Wn.App. 74, 538 P.2d 873 (1975); State v. Tyler, 77
Wn.2d 726, 466 P.2d 120 (1970), vacated as to imposition of death sentence,
408 U.S. 937, 92 S. Ct. 2865, 33 L. Ed. 2d 756 (1972); State v. Moore, 61
Wn.2d 165, 377 P.2d 456 (1963); see also State v. Cogswell, 54 Wn.2d 240,
339 P.2d 465 (1959); State v. Upton, 16 Wn. App. 195, 556 P.2d 239 (1976);
State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973); State v. White, 60 Wn.2d
551, 374 P.2d 942 (1962), cert. denied, 375 U.S. 883, 84 S. Ct. 154, 11 L.
Ed. 2d 113 (1963); State v. Carter, 5 Wn. App. 802, 490 P.2d 1346 (1971)).
92 133 Wn.2d at 324.
93 132 Wn.2d at 97.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65761-1
Title of Case: State of Washington
v.
Joey Ellis
File Date: 10/01/98
Oral Argument Date: 03/24/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 96-1-00143-2
Judgment or order under review
Date filed: 07/29/97
Judge signing: Hon. Vicki L. Hogan
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: James M. Dolliver
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Gerry L. Alexander
Richard P. Guy
Dissenting: Barbara Durham
Philip A. Talmadge
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Rita J. Griffith
Attorney At Law
Ste 221
4756 Univ Village Pl NE
Seattle, WA 98105-5021
Counsel for Respondent(s)
Barbara L. Corey-Boulet
Pierce County Deputy Pros Atty
County City Bldg
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2177
Gerald T. Costello
Rm 946 Prsctg Attys Ofc
930 Tacoma Ave S
Tacoma, WA 98402
State v. Ellis
Majority by Smith, J.
Dissent by Talmadge, J.
No. 65761-1
TALMADGE, J. (dissenting) -- The majority applies the principles of ER
402, 702, and 703 to the admissibility of expert testimony on a defendant's
diminished capacity. I agree with the majority these evidentiary
principles for the general admission of expert testimony are appropriate.
But the majority does not analyze the admissibility of the experts'
testimony here against time-honored principles of testimonial capacity for
expert witnesses.
In addition, the majority also determines the test for diminished
capacity set forth in State v. Edmon, 28 Wn. App. 98, 621 P.2d 1310 (1981),
is no longer applicable. It would appear any type of expert testimony that
negates a specific intent must be admitted under the majority's analysis.
This goes too far.
Under the circumstances of this case, the trial court carefully
assessed the question of whether Ellis demonstrated a causal connection
between his alleged mental disorders and the requisite ability to form the
criminal intent. Consequently, the trial court did not abuse its
discretion in excluding the defense expert testimony.
The language of psychology and the law is often incongruous. As a
result, much confusion has arisen not only in Washington courts, but in
courts around the country, regarding what has been termed the diminished
capacity defense. Rather than illuminate this confusion the majority
decision exacerbates it by eliminating the Edmon guidelines our courts have
employed for more than 15 years to evaluate the admissibility of
psychological evidence, without offering new guidance. Because I believe
it unwise for us to embark on uncharted seas in this difficult area of the
law, and because the trial court correctly decided the proffered testimony
of two psychologists in this case was not relevant to any issue to be
determined at trial, I dissent.
ANALYSIS
A. The Trial Court did not Err in Excluding the Experts' Opinions
The facts of this case are egregious. Ellis and his mother were
drinking and smoking marijuana and, allegedly because of the mother's
statement regarding Ellis's girlfriend, his personality disorders were
engaged to such a degree that he beat her to death with a breadboard and
then proceeded to beat his baby sister to death with the breadboard as
well. The trial court, however, properly concluded the experts simply did
not demonstrate that Ellis's "disorders" rendered him incapable of
intending the crime of which he was convicted.
Ellis is charged with aggravated murder in the first degree. To be
guilty of this crime, a person must have caused the death of another with
"a premeditated intent" to cause that death.1 RCW 9A.32.030(1)(a). Thus,
not just intent, but "premeditated intent" is one of the elements of the
crime the State must prove beyond a reasonable doubt in order for Ellis to
be found guilty of the crime with which he is charged. State v. Crediford,
130 Wn.2d 747, 759, 927 P.2d 1129 (1996) (citing In re Winship, 397 U.S.
358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970)). As we said in
State v. Lane, 112 Wn.2d 464, 472-73, 771 P.2d 1150 (1989):
Premeditation is an element separate and distinct from the
specific intent to kill required for first degree murder; it also
distinguishes first degree murder from second degree murder. The
failure of the State to sufficiently establish premeditation has
been held to require reversal of a conviction for aggravated
first degree murder. Clearly, therefore, premeditation
constitutes an essential element of the crime of aggravated first
degree murder.
(Footnotes omitted.)
WPIC 26.01.01 defines premeditation as follows:2
Premeditated means thought over beforehand. When a person,
after any deliberation, forms an intent to take human life, the
killing may follow immediately after the formation of the settled
purpose and it will still be premeditated. Premeditation must
involve more than a moment in point of time. The law requires
some time, however long or short, in which a design to kill is
deliberately formed.
We first approved this formulation in State v. Rice, 110 Wn.2d 577, 604,
757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105
L. Ed. 2d 707 (1989), and more recently affirmed it in State v. Benn, 120
Wn.2d 631, 658 n.4, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S. Ct.
382, 126 L. Ed. 2d 331 (1993). The key considerations for the jury's
ultimate determination are (1) did Ellis form the intent to take human
life, and (2) did he deliberately form a designto kill over some period of
time longer than a moment.
1. The Experts Lacked Testimonial Knowledge
The right to present witnesses in one's own defense is a fundamental
element of due process of law. State v. Maupin, 128 Wn.2d 918, 924, 913
P.2d 808 (1996). It follows that one must be allowed to present witnesses
to rebut or negate the State's presentation of proof as to an element of
the crime with which one is charged. Thus, if the State in this case,
presents, as it must, some evidence to the jury to suggest premeditation by
Ellis, he must have the right to present evidence to the contrary. To deny
him this right would be to deny him a fundamental element of due process of
law.
But the right to present evidence in one's own defense is not utterly
unfettered. That evidence must be relevant. There is no constitutional
right to introduce irrelevant evidence. Maupin, 128 Wn.2d at 925; State v.
Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Accord United States v.
Becker, 444 F.2d 510, 511 (4th Cir. 1971); People v. Grisset, 288 Ill. App.
3d 620, 681 N.E.2d 1010, 1019, 224 Ill. Dec. 389, appeal denied, 174 Ill.
2d 576, 686 N.E.2d 1167, 227 Ill. Dec. 11 (1997); O'Rourke v. State, 166
Neb. 866, 90 N.W.2d 820, 823 (1958); State v. Cardenas-Hernandez, 579
N.W.2d 678, 687 (Wis. 1998). At issue in this case is the relevance of the
testimony of two psychologists to the jury's task. Both Dr. Whitehill
and Dr. Cripe opined Ellis was not able to premeditate the murder of his
mother and half-sister. Even though the question of premeditation is the
ultimate and central fact for the jury to decide, Ellis argues persuasively
he should be allowed to introduce this testimony at his trial as rebuttal
to negate the premeditation element of the crime of which he is accused.
Beginning in 1940, however, in a steady line of cases we have never
questioned or overruled, we have held such testimony to be inadmissible
because the experts lacked testimonial knowledge.
In State v. Davis, 6 Wn.2d 696, 108 P.2d 641 (1940), the defendant in
a first degree murder case attempted to introduce the written report of an
"expert alienist"3 who had examined the defendant in jail and had concluded
the defendant had not premeditated the murder. The trial court disallowed
the evidence, and we affirmed because "{t}he witness, of course, had no
personal knowledge concerning the facts of the case, and his opinion on the
question of premeditation or the lack of premeditation was inadmissible."
Id. at 707. Dr. Whitehill and Dr. Cripe likewise have no personal
knowledge of the facts of the murders; they know only what Ellis told them
and what is in the police reports.
In State v. Farley, 48 Wn.2d 11, 290 P.2d 987 (1955), cert. denied,
352 U.S. 858, 77 S. Ct. 79, 1 L. Ed. 2d 65 (1956), we explained the reasons
for the personal knowledge requirement where the defendant attempted to
present the testimony of a doctor regarding the defendant's state of mind
during a homicide:
The question involved in the concluding assignment of error
was:
"Doctor, would you state whether or not you formed
an opinion as to whether or not the specific reaction
at the time of the killing was or was not an outbreak
of rage and destructive hostility under severe stress?"
(Italics ours.)
It appears from the record that the doctor, whose
qualifications are admitted, had examined appellant on three
occasions while he was in custody, and had seen the reports of
two other doctors' examinations of appellant.
The purpose of the question here involved was not to elicit
a diagnosis of appellant's mental condition as revealed by the
examinations. Counsel was trying to rebut the inference of
premeditation and intent, which could be drawn from the
circumstances of the killing, by having the doctor testify as to
a fact with regard to specific mental reaction of appellant at
the time he committed the crime. Since the doctor was not
present at the murder, he had no testimonial knowledge of
appellant's appearance, statements, acts, and demeanor, or the
circumstances surrounding the crime. His diagnosis of
appellant's state of mental health, as revealed by subsequent
examinations, cannot be related to the particular instant of the
crime. Nevertheless, counsel contend that, if a layman can
express an opinion as to the mental condition of a defendant at
the time of committing a crime, there is even more reason for
permitting a doctor to do so. This contention misconceives the
Washington rule. In State v. Gaul, 88 Wash. 295, 152 P. 1029{,
1032,} with regard to a layman's testimony, we said:
"The intent with which an act is done is a mental process,
and as such generally remains hidden within the mind where it is
conceived, and is rarely, if ever, susceptible of proof by direct
evidence, but may be inferred or gathered from the outward
manifestations, by the words or acts of the person entertaining
it, and the facts or circumstances surrounding or attendant upon
the offense with which he is charged."
Accordingly, a layman who sees the commission of a crime can
describe the acts, the appearance, and demeanor of a defendant,
from which inferences as to a defendant's mental processes may be
drawn, but a doctor who was not present at a crime has no
testimonial knowledge of the circumstances needed to support such
inferences.
Id. at 20-21 (emphasis omitted). Accord State v. Craig, 82 Wn.2d 777, 779-
80, 514 P.2d 151 (1973) ("doctor who was not a witness to the crime and
does not have firsthand knowledge of the defendant's state of mind at the
time, may not give his opinion at to what that mental state was"); State v.
Moore, 61 Wn.2d 165, 172-73, 377 P.2d 456 (1963) (psychiatrist's opinion
that defendant was incapable of forming intent not sufficient to require a
manslaughter instruction); State v. Cogswell, 54 Wn.2d 240, 248, 339 P.2d
465 (1959) (testimonial knowledge of demeanor of defendant at proximate
time of offense required for admission of testimony as to defendant's
capacity to form specific intent); State v. Upton, 16 Wn. App. 195, 201,
556 P.2d 239 (1976) (doctor's opinion regarding defendant's mental state at
the time of the shooting, absent testimonial knowledge, properly excluded),
review denied, 88 Wn.2d 1007 (1977); State v. Fullen, 7 Wn. App. 369, 382-
83, 499 P.2d 893, review denied, 81 Wn.2d 1006 (1972), cert. denied, 411
U.S. 985, 93 S. Ct. 2282, 36 L. Ed. 2d 962 (1973).4 Even hypothetical
questions to a doctor as to a defendant's state of mind at the time of an
offense are barred under this rule. State v. Tyler, 77 Wn.2d 726, 759, 466
P.2d 120 (1970) (answers to hypothetical questions are "no more than
conjecture and speculation"), vacated in part by 408 U.S. 937, 92 S. Ct.
2865, 33 L. Ed. 2d 756 (1972). This line of cases remains the law.5
As a rule of evidence, the testimonial knowledge requirement makes
eminent good sense. It mirrors the common law rule that laypersons may
opine on the mental responsibility of others providing they personally
observed the facts to which they are testifying. Carr v. Deking, 52 Wn.
App. 880, 886, 765 P.2d 40 (1988), review denied, 112 Wn.2d 1019 (1989).
Dr. Whitehill and Dr. Cripe do not have testimonial knowledge of the
murders. For all they or anybody else knows, Ellis awakened the morning of
the murders with the intent to murder his mother and sister that night.
For all they or anybody else knows, Ellis attacked them with the breadboard
without any provocation whatsoever, in furtherance of the murderous design
he formed early that morning. The psychologists' testimony as to Ellis's
state of mind at the time of the murders would be no more than conjecture
and speculation.6 Under case law that has been on the books for nearly 50
years, the trial court properly excluded it.
Although on its face the proffered testimony seems precisely apropos
to the question of premeditation, what is missing from this case and from
the trial court's analysis is the precise legal definition of
premeditation. The psychologists spoke about premeditation in terms that
evidently had some meaning to them from a diagnostic viewpoint, but no one
asked them to apply their diagnoses to the meaning of premeditation under
Washington law set forth above.
These legal questions of premeditation are vastly different from the
aspects of Ellis's behavior the psychologists testified about. The
psychologists gave reasons stemming from psychodynamic factors to establish
why Ellis did what he did, not whether he formed the intent to kill. They
said he could not have premeditated because, according to what Ellis told
them, he reacted on the spur of the moment, enraged by a derogatory remark
his mother made about his girlfriend.
But acting impulsively does not negate premeditation. The question
is: did Ellis form the intent to kill his mother and then act on that
intent after some, albeit brief, deliberation? The experts did not speak
to Ellis's intent, or the formation of a design to kill. They said only
that he could not control his "ragefulness" because of his multiple
personality disorders. These diagnostic conclusions do not answer the
relevant legal question stemming from the legal definition of premeditation
the jury will have to apply to the facts. That being the case, the trial
court properly excluded the psychologists' proffered testimony as being
irrelevant.
2.The Experts' Testimony was Inadmissible Under ER 702
Another reason for excluding the psychologists' testimony is the ER
702 requirement that testimony by an expert, to be admissible, must be
helpful to the jury:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
ER 702 permits expert testimony only if it will assist the trier of
fact. Testimony that is confusing, arcane, or otherwise unintelligible7
will not assist the trier of fact. I cannot say the trial court abused its
discretion in ruling such testimony inadmissible.
To the extent the testimony of Dr. Whitehill and Dr. Cripe did not
address the question of premeditation from a legal point of view, but only
from a psychological point of view, it could not possibly assist the jury
in determining whether Ellis premeditated as a matter of law. An
indication of the cross purposes between the testimony of the psychologists
and the law occurred in the following colloquy:
Q. {The State} Dr. Cripe, how did Mr. Ellis's mental disorder
prevent him from forming premeditation that night? In other
words, how did he pick up the breadboard without being able to
intend what happened? . . .
A. What I am saying in the Ellis case here is, first of all,
from everything that I can assess, I do not believe that this man
went over there that night with the premeditated idea of killing
his mother and his half-sister. I do not believe that at all. I
think he went over there distressed. He went over there with his
mental condition and disorder.{8}
This emerged into a series of moments of distress and stress
stimuli that, given this defect of mind, he became overwhelmed
and disorganized psychologically. And these actions that
occurred, the grabbing of the breadboard, the hitting of the
mother and later the sister, were not the result of beforehand
thinking and intending to do those things. These were sort of
automatically{9} driven by this breakdown of mind. And that's
where I am coming from.
Report of Proceedings (July 28, 1997) at 51-52. Dr. Cripe plainly believes
Ellis can be found to have premeditated the murders only if he had planned
them in advance of entering his mother's abode. While such a belief may
comport with a lay understanding of premeditation, it has little to do with
the legal definition of premeditation, especially as applied to the facts
of this case.
It may be correct that Ellis did not plan to kill his mother before he
called on her (although the experts report this only because that is what
Ellis told them). That does not mean he did not premeditate her death,
however. Premeditation can occur in a variety of circumstances where
hardly any deliberation occurs. See State v. Gentry, 125 Wn.2d 570, 598-
99, 888 P.2d 1105 (1995) (describing such cases). Because Dr. Cripe did
not address premeditation as it is defined in Washington law, his testimony
about premeditation is therefore irrelevant and would not assist the jury.
Dr. Whitehill's testimony illustrates the same point:
Q. {The State} Would you agree that the homicides in this case
were impulsive in nature?
A. {Dr. Whitehill} Yes, in that they happened suddenly and were
not planned, and were very rapid. . . .
Q. Do you believe that {Ellis} has impulse control disorders;
is that correct?
A. Yes, I do.
Q. All right. And the result of that is he has great
difficulty, if not impossible, for him to control impulses under
certain circumstances?
A. That's right.
Q. It's essentially very difficult for him to resist these
impulses.
A. We certainly would say that clinically, whether or not it
fits exactly your definition of that I am not real certain of,
but we are talking about someone who under certain situations
will act very rapidly without thought, and very extremely driven
by abnormal levels of emotion, and with abnormal control
mechanism, that is sort of what we are talking about here.
Report of Proceedings (June 16, 1997) at 70-72. Once again, the testimony
focused on Ellis's inability to control himself, not on the central
question of premeditation, i.e., whether he intended to take a human life
and whether he deliberately formed a design to kill over some period of
time longer than a moment. That Ellis exploded with anger over the remark
his mother made about his girlfriend, and this explosion was a
manifestation of a mental defect, do not preclude the possibility that when
the anger washed over him he did indeed deliberately form the design to
kill his mother.
Dr. Whitehill wrote: "To believe that Mr. Ellis premeditated the
deaths of his mother and sister is to believe, as per WPIC 26.01.01, that
he thought these events over beforehand, which is to say, that he
deliberated and formed the intent to take their lives." Clerk's Papers at
51. Here, Dr. Whitehill, like Dr. Cripe, seems to be relying on a lay
definition of premeditation as a planning process that takes place well
before the commission of a crime. As noted above, however, that is not the
definition Washington law applies to premeditation. A brief, but discrete,
instant of deliberation suffices for premeditation.
Perhaps the best illustration of the incongruity between the meaning
of premeditation in Washington law and the concept of premeditation as the
psychologists have used it in this case is the following excerpt from Dr.
Cripe's declaration:
In the Edmon case and in Mr. Ellis' case, the State and
their expert Dr. Gagliardi appear to be promoting an unrealistic
absolutistic view regarding diminished capacity. They would like
us to believe that unless a person had "no capacity" to form an
intent, then the requirement of the law is not met. Their
interpretation in this matter seems extreme and ultra
conservative. I am convinced that with their view only a person
in a coma or dead would lack the ability to form the intent of an
action.{10} With their interpretation of diminished capacity,
they would have argued that Mr. Edmon did not have any problem
with intent and the doctor's testimony regarding Mr. Edmon's
mental condition should be withheld from the trier of fact. I am
convinced that with such a conservative stance, if Dr. Gagliardi
had seen Mr. Edmon, he would have concluded that there was no
basis for diminished capacity. After all, Edmon carried out
"purposeful goal-directed" behaviors. He got up and went to
work. He deliberately put a loaded gun on his person. He was
able to direct specific punches at his boss. He was able to pull
a gun out and pull the trigger while aiming at the target (the
boss). All of these actions appear as goal directed and
purposeful to an onlooker. Edmon was not psychotic. He knew
where he was and what he was doing. He was "just" depressed and
stressed. This kind of thinking only focuses upon the acts and
does not consider the mental condition or state of the person
before and during the actions.
In reality, although Edmon engaged in actions that appeared
goal directed, the behavior all occurred in the context of a
mental disorder (although not of psychotic proportions) and
alcohol effects which were adversely affecting his perception,
reasoning, emotion, judgment, decisions, and that ultimately
resulted in his actions. His capacity to control and regulate he
actions in a manner normally expected of a rational person with
normal mind was adversely affected and eroded by his mental
problems. This mental state diminished his capacity to
rationally understand the situation, logically plan, make normal
judgments and control emotion. In sum, because of his mental
condition, he had a diminished ability to form a specific intent.
Clerk's Papers 60-61. Earnestly, eloquently, and in evident good faith,
Dr. Cripe has here set forth precisely why his testimony is not relevant to
the ultimate determination of Ellis's guilt for the premeditated murders of
his mother and half-sister. As is evident, the final sentence is a non
sequitur: Dr. Cripe fails utterly to say how Edmon's diminished ability
"to rationally understand the situation, logically plan, make normal
judgments and control emotion" related to his capacity to intend to kill
his boss. Edmon certainly exercised poor judgment because of the various
psychological and emotional factors besetting him, but he also certainly
intended to do what he did, i.e., kill his boss.
Likewise, Dr. Cripe sets forth his psychological diagnoses as the
reasons why Ellis killed, then attempts to leap across a vast logical chasm
to equate these reasons with Ellis's purported inability to premeditate the
deaths. He gives no reasons why the diagnosed disorders prevented Ellis
from premeditating. If anything, the circumstances Dr. Cripe considered
support premeditation, rather than negate it. Surely when Ellis's mother
made the remark that angered Ellis, the thought went through his mind,
however explosively or uncontrollably, "That is the last straw. I will
kill her." He surely then formed the design to move to the breadboard,
take it from its place, move back to his mother, and strike her with it,
not once but several times. If he had not intended to kill his mother, she
might still be alive. That his psychologists believe Ellis could not
control his urge to kill his mother is not the same thing as saying he did
not intend to do it. The psychologists offered no evidence that Ellis's
volitional difficulties negated his mental state; they simply asserted as
much conclusorily. Their testimony fails the relevance test because it
simply does not address -- in legal terms -- the question of whether Ellis
premeditated the deaths.
Dr. Cripe evidently believes Ellis is less morally responsible for the
murders than some paradigmatic killer not beset with the same array of
disorders who kills because he is evil. But a cold-blooded killer, say,
for instance, someone who kills solely for money, might be diagnosed as
having a severe Antisocial Personality Disorder. These are people we used
to refer to as psychopaths or sociopaths. American Psychiatric Ass'n
Diagnostic and Statistical Manual of Mental Disorders {DSM-IV} 645 (4th ed.
1994). Such people have a pervasive pattern of disregard for and violation
of the rights of others, as evidenced by repeated acts that subject them to
arrest, deceitfulness, impulsivity, irritability and aggressiveness,
reckless disregard for the safety of others, consistent irresponsibility,
and "lack of remorse, as indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another." DSM-IV at 649-50.
Perhaps Dr. Cripe would diagnose such a person as having severe Antisocial
Personality Disorder, and conclude he could not have formed the specific
intent to commit murder because he could not feel remorse and was deceitful
and impulsive. Again, this last sentence is a non sequitur. The legal
question is, did the accused premeditate, not did his personality disorders
keep him from feeling remorse.
Dr. Cripe's reports give further evidence his conclusions are based
solely on his psychological diagnoses and his belief that Ellis's mental
condition should be considered in mitigation of his punishment, as opposed
to bearing on the legal ramifications as they relate to Ellis's guilt:
The homicides were impulsive. There is no evidence that Mr.
Ellis planned all of this.{11} While he and his mother were under
the influence of drugs and alcohol, he was significantly stressed
by being put down by his estranged mother. He was instantly
flooded with angry emotion, a cauldron of stored up aggression
was released, and he lost control. He impulsively grabbed an
unlikely weapon, a bread board, and bludgeoned his mother to
death. The fact that he was putting on his shoes to leave, heard
his sister stirring, and suddenly turned on her is another
indication of an impulsive and unplanned act.{12} These homicides
are the result of very complicated and powerful psychological and
interpersonal factors which developed over many years, but were
suddenly impulsively unleashed while in an intoxicated state.
There are mitigating factors in this case. . . .
There is no question that Mr. Ellis' problems are deep, long-
standing, and resistant to change, and because of this he cannot
be trusted to be loose in the community, but his extreme actions
were the result of complicated forces and not an act of normal
free will. The regrettable homicide behavior is the result of
complicated interpersonal and psychological factors rather than a
simple act of deliberate free will.{13} All involved, Mr. Ellis,
his mother, and his sister are best seen as unfortunate victims
of a most regrettable dysfunctional situation. I urge all
concerned to think about these matters carefully before making
final judgments.
Clerk's Papers at 63. These thoughts belong to mitigation considerations,
not considerations of guilt.
Finally, the majority opinion suggests any deficiencies in the
psychologists' testimony would be subject to cross-examination and
therefore curable. I would not so lightly eliminate the trial judge's
function as arbiter of the rules of evidence. We surely would not permit
someone to testify about Ellis's mental state without some certification of
his or her credentials as an expert on mental health, even though cross-
examination would expose the lack of credentials. Only relevant, competent,
and not unduly prejudicial evidence is admissible. The trial court has a
gatekeeping function under the rules of evidence. Sometimes admissibility
questions are close. Nevertheless, we must not abdicate our gatekeeping
role by receding from difficult decisions and letting the jury decide how
much weight to give to evidence that is in fact irrelevant. The trial
court must have the authority to exclude irrelevant evidence, as the trial
court did here.
In summary, the trial court did not err in excluding the expert
testimony. The testimony of Drs. Cripe and Whitehill neither would help
the jury nor would be relevant to the central issue of premeditation in
this case. At best, the testimony was conclusory and speculative. The
trial court read the psychologists' reports, their declarations, and heard
their testimony. We entrust the admissibility of expert testimony on
diminished capacity to the discretion of the trial court, and overturn such
decisions only upon a demonstration of abuse of discretion. State v.
Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). Such an abuse of
discretion is present only when no reasonable person would take the view
adopted by the trial court. State v. Castellanos, 132 Wn.2d 94, 97, 935
P.2d 1353 (1997). There was no abuse of discretion here.
B. Diminished Capacity Under Washington Law
Although I conclude the testimony of Ellis's two experts on diminished
capacity was inadmissible and Ellis therefore failed to establish
diminished capacity, as our cases have described it, I feel compelled to
discuss the doctrine of diminished capacity under Washington law in light
of the majority's resolve to abandon the Edmon guidelines.
The concept of diminished capacity was introduced into Washington law
without discussion or debate in a five-page opinion in 1973. In State v.
Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973), we baldly stated, "The
presence of a mental condition not amounting to criminal insanity is
relevant to the elements or degrees of certain crimes involving specific
intent." We cited as authority a New York case,14 a New Jersey case,15 a
California case,16 and an earlier case of our own, State v. White, 60 Wn.2d
551, 588, 374 P.2d 942 (1962), where we said as obiter dictum,
The presence of a mental disease or defect which falls short of
criminal insanity may well be relevant to issues involving the
elements or degrees of certain crimes, e.g., where malice,
premeditation or intent are in issue.
In most recent diminished capacity cases, Washington courts have
indicated such evidence may be admissible if an expert testifies a
defendant suffers from a mental condition that impaired the defendant's
ability to form the requisite specific intent of a crime. State v. Eakins,
127 Wn.2d 490, 502, 902 P.2d 1236 (1995). Historically, our courts have
been reluctant to admit all expert opinion on diminished capacity. The
Edmon court, for example, specifically held that expert opinion that
amounts to nothing more than testimony the defendant was emotional or had
engaged in impulsive behavior would not constitute evidence of diminished
capacity. Edmon, 28 Wn. App. at 105. Moreover, we have held the evidence
of the mental condition to which the expert is testifying must be
"substantial" and the evidence must "logically and reasonably connect the
defendant's alleged mental condition with the inability to possess the
required level of culpability to commit the crime charged." State v.
Griffin, 100 Wn.2d 417, 419, 670 P.2d 265 (1983); State v. Ferrick, 81
Wn.2d 942, 506 P.2d 860 (1973); State v. Martin, 14 Wn. App. 74, 538 P.2d
873 (1975); State v. Carter, 5 Wn. App. 802, 490 P.2d 1346 (1971).
The peremptory announcement of the new diminished capacity rule in
Ferrick is puzzling, given our earlier observation that "the legislature
has established a policy in this state that only the most extreme degree of
insanity will relieve a defendant of criminal liability. Any arguments for
change in policy should, therefore, be addressed to the legislature."
White, 60 Wn.2d at 589. We not only failed to defer to the traditional and
quintessential legislative prerogative to prescribe the rules for crime and
punishment when we adopted diminished capacity in Ferrick, we did so
without judicial discussion or debate on the necessity for or desirability
of the rule as a matter of public policy. Cf. State v. Wilcox, 70 Ohio St.
2d 182, 436 N.E.2d 523, 525 (1982) ("The diminished capacity defense
developed as a covert judicial response to perceived inequities in the
criminal law."). No debate in our cases has appeared since, and Ferrick
remains the law. See, e.g., State v. Warden, 133 Wn.2d 559, 563, 947
P.2d 708 (1997) ("Diminished capacity is a mental condition not amounting
to insanity which prevents the defendant from possessing the requisite
mental state necessary to commit the crime charged.").
In the meantime, however, California, which had pioneered the concept
of diminished capacity, abolished the diminished capacity defense by
statute in 1981, Cal. Penal Code sec. 28 (West 1988), and statutorily
prohibits testimony by an expert as to a defendant's mental state required
for the crime charged. Cal. Penal Code sec. 29 (West 1988).17 See People
v. Saille, 54 Cal. 3d 1103, 820 P.2d 588, 2 Cal. Rptr. 2d 364 (1991)
(discussing history of diminished capacity defense in California and the
origins of the legislation abolishing it). Other states in powerful and
persuasive opinions have rejected diminished capacity as well. See, e.g.,
State v. Bouwman, 328 N.W.2d 703 (Minn. 1982) (psychiatric testimony
inadmissible as to premeditation); State v. Wilcox, 70 Ohio St. 2d 182, 436
N.E.2d 523 (1982); Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682,
688 (1985 (evidence of mental state at time of offense, in absence of an
insanity defense, irrelevant).
One court criticized the diminished capacity defense in the following
way: "{T}he more brutal, bizarre, or sensational the crime, the greater is
the likelihood of a successful diminished capacity defense. . . . In other
words, the commission of the offense in most instances becomes ipso facto
evidence of diminished capacity." State v. Wilcox, 70 Ohio St. 2d 182, 436
N.E.2d 523, 532 (1982). That is precisely what the proffered testimony in
this case indicates. In assessing Ellis's mental condition, Dr. Whitehill
in part used the evidence of the murders to conclude Ellis was disturbed:
The level of violence in this crime is such as to bolster my
contention that what we have is severe emotional discontrol as a
manifestation of the borderline aspect of his personality
disorder, not as a state of anger or rage; there certainly was
rage, but not rage standing apart from mental disorder, rage as a
component of an intense and impulsive reaction to his internal
process, his borderline personality.
Report of Proceedings (June 16, 1997) at 42-43.18 Dr. Whitehill reverse-
engineered the psychology in this case to conclude that because Ellis
committed violent homicides he suffers from "severe emotional discontrol."
Dr. Cripe did the same thing:
It is very unusual that even persons with severe antisocial
disorders kill their own parents, especially their mothers. Such
extreme actions are often associated with an abnormal loss of
control that is the result of a complicated mental/physical abuse
history, chemical abuse/intoxication, and a stressful stimulus
situation.
Clerk's Papers at 64.19 In Dr. Cripe's view, one has to be afflicted with
really serious problems to kill one's mother; therefore, Ellis must have
serious enough problems to preclude his capacity to premeditate. In Fisher
v. United States, 149 F.2d 28, 29 (D.C. Cir. 1945), aff'd, 328 U.S. 463, 66
S. Ct. 1318, 90 L. Ed. 1382 (1946), overruled by United States v. Brawner,
471 F.2d 969 (D.C. Cir. 1972), after the defendant introduced the testimony
of a psychiatrist to the effect he was a "psychopathic personality of the
predominantly aggressive type of behavior, and with an apathetic reaction
to emotional situations," the defendant asked the trial court to issue an
instruction allowing the jury to take into account the defendant's "entire
personality" in considering the question of premeditation. The trial court
refused to give the instruction and the Court of Appeals upheld the ruling,
noting:
But it is obvious that brutal murders are not committed by normal
people. To give an instruction like the above is to tell the
jury that they are at liberty to acquit one who commits a brutal
crime because he has the abnormal tendencies of persons capable
of such crimes.
Fisher, 149 F.2d at 29. The proffered testimony of the psychologists in
this case is subject to the same deficiency. The fatal deficiency, of
course, is that while such testimony describes what impelled the
defendant's criminal act, it says nothing about whether the defendant was
able to premeditate his actions once his psychology impelled him to act.
An additional reason to question the diminished capacity defense is
that unconscious mental states as causes of criminal behavior do not
necessarily translate into compulsions to commit criminal behavior. "To be
caused to act by one's character, one's environment, or one's synaptic
firing patterns is not to be compelled to act. . . . One must point to
something other than causation to make out the excuse of compulsion."
Michael S. Moore, Responsibility and the Unconscious, 53 S. Cal. L. Rev.
1563, 1642, 1665 (1980). Dr. Whitehill made precisely this point when he
testified: "It wasn't only that Mr. Ellis was in a rage, because people
get in rages all the time without killing their mother, or two year old
half sister." Report of Proceedings (June 16, 1997) at 31. The core
question is, to what level of moral and legal culpability do the people of
Washington hold Ellis for failing to restrain himself when he experienced
rage. This question is not susceptible to being answered by science.20 It
is a question for a jury.
Ellis does not claim he did not know it was wrong to murder his mother
and sister. He does not claim he committed the killings on orders from
space aliens or disembodied spirits. He does not raise an insanity
defense. He claims only that he is less culpable, i.e., can be guilty only
of second degree murder rather than first degree murder, because his mental
disorder prevented him from premeditating.21 But society has not yet
decided to hold one less responsible for an act simply because a
psychologist may have discovered the cause of the act.
A third problem with diminished capacity not amounting to insanity is
the universality of its application. If Ellis is less responsible for his
actions because of his unconscious mental state, then everyone is always
excused. The concept of moral responsibility vanishes. We are all slaves
to our unconscious and are therefore not fully responsible for anything we
might do that is criminal or otherwise socially unacceptable. "The
strongest conceptual objection to the use of psychodynamic explanations to
reduce responsibility is that these explanations lead to the conclusion
that no one is responsible." Stephen J. Morse, Failed Explanations and
Criminal Responsibility: Experts and the Unconscious, 68 Va. L. Rev. 971,
1036 (1982). This reductio argument is both inescapable and contrary to
hundreds of years of English and American criminal law:
Few persons have not suffered from such emotions or problems
as depression, frustration, thought disorder and fury, and most
persons have occasionally wished, often intensely, to harm others
or to behave lawlessly. Moreover, all persons differ in their
cognitive and control capacities. But a person who knows what he
or she is doing and has sufficient control to be legally
responsible at all should be fully accountable for his or her
conduct. Our expectation in a civilized society is that all of
us will control ourselves, obey the law, and not harm others
because of our moods and furies, no matter how intense or
sustained they may be. . . . It is not unjust to hold fully
responsible those whose choices may be hard, but who are legally
sane. If they know what they are doing and offend, they should
be convicted and punished without reduction in the degree of
offense or punishment.
Stephen J. Morse, Diminished Capacity: A Moral and Legal Conundrum, 2
Int'l J. Law & Psychiatry 271, 296-97 (1979).
Perhaps the clearest exposition of the problem with employing
psychiatric testimony to assist the trier of fact in determining guilt (but
not mitigation) is this:
Psychiatry and the law stand in essential contradiction or
opposition. The legal view of behavior is in essence moralistic;
an action is approved or disapproved, right or wrong, acceptable
or unacceptable. A person is guilty or innocent as more or less
clearly defined in advance by law. But psychiatry is a brand of
medicine, and in medicine nothing is wrong, only sick. A man can
be no more guilty of crime than he is guilty of an abscess.
Limiting the Insanity Defense: Hearings Before the Senate Subcomm. on
Criminal Law, 97th Cong., 2d Sess. 172 (1982). The most acute example of
the essential dissonance in discourse between mental health professionals
and the law appears in Dr. Cripe's bloodless description of the murders as
"regrettable homicide behavior." Clerk's Papers at 63. This is Dr. Cripe
appropriately speaking in his professional capacity as a diagnostician:
what Ellis did was a "behavior," albeit regrettable because it involved
homicides. Such testimony does nothing to inform the ultimate moral and
legal judgment the jury must make.
Society may one day conclude there should be a diminished level of
responsibility for criminal acts related to mental disorders not amounting
to insanity. The Washington Legislature has yet to make such a decision,
however. In fact, the Washington Legislature has indicated it may be
rather disinclined to adopt psychological or psychiatric evaluations as
justifications for diminished responsibility. Although the Legislature has
never recognized diminished capacity with regard to culpability, it has
provided circumstances under which a court may depart from sentencing
guidelines in the Sentencing Reform Act of 1981. RCW 9.94A.390. Among the
list of mitigating circumstances justifying a downward departure from the
sentencing guidelines is the following: "The defendant's capacity to
appreciate the wrongfulness of his or her conduct or to conform his or her
conduct to the requirements of the law, was significantly impaired
(voluntary use of drugs or alcohol is excluded)." RCW 9.94A.390(1)(e).
This wording is nearly identical to the American Law Institute's Model
Penal Code definition of insanity:
A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks
substantial capacity either to appreciate the criminality
{wrongfulness} of his conduct or to conform his conduct to the
requirements of law.
2 Charles E. Torcia, Wharton's Criminal Law sec. 103, at 28 (15th ed.
1994). Thus, one of the criteria for obtaining mitigation in sentencing in
Washington amounts to proving insanity under the Model Penal Code.
CONCLUSION
The trial court did not abuse its discretion in excluding the
testimony of Ellis's experts. Further, it is past time for us to
reconsider the role of diminished capacity in Washington law. We should
abolish diminished capacity as a doctrine for negating the presence of
intent in a criminal case, except in those instances where objective
measures of incapacity, such as for intoxication, are present. The
Legislature created an insanity defense to criminal conduct in RCW 10.77.
It has not seen fit to create a diminished capacity exception to
culpability. Instead, the Legislature installed mental state as a
mitigating factor in criminal sentencing. Until the Legislature
specifically adopts diminished capacity as a defense to criminal
culpability, we should not do so by judicial fiat.
FOOTNOTES
1 There is some confusion in the defense theory, stemming from some
imprecise language in the experts' reports and testimony, as to whether
Ellis's alleged diminished capacity prevented him from premeditating the
crime, or having any intent whatsoever to commit the crime. As Ellis does
not claim he is insane within the meaning of RCW 10.77, it would appear his
theory is actually that he was unable to premeditate the murders of his
mother and sister, and therefore cannot be guilty of aggravated murder in
the first degree.
2 The verb premeditate "encompasses the mental process of thinking
beforehand, deliberation, reflection, weighing or reasoning for a period of
time, however short." State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217
(1982) (emphasis added). This has been the law in Washington at least
since State v. Rutten, 13 Wash. 203, 212, 43 P. 30 (1895).
3 "Alienist" is an old term for psychiatrist.
4 I can find only one case to the contrary. In State v. Crenshaw, 27
Wn. App. 326, 333, 617 P.2d 1041 (1980), aff'd, 98 Wn.2d 789, 659 P.2d 488
(1983), the Court of Appeals said: "Psychiatric opinion evidence regarding
a defendant's mental condition at a particular point in time is admissible
when relevant to the question of a defendant's sanity even though the
expert witness did not personally observe the defendant at the time of the
offense." The only authority the court cited was Upton. The opinion was
evidently simply mistaken in its reading of Upton, as the court in that
case did in fact require testimonial knowledge.
5 Although the Court of Appeals in State v. Edmon, 28 Wn. App. 98, 621
P.2d 1310 (1981), attempted to set forth a compendium of foundation
requirements for evidence about the mental state of a defendant, the
opinion failed to mention the testimonial knowledge requirement, even
though the Court of Appeals cited to Craig, Tyler, Moore, Cogswell, and
Upton for other holdings. Edmon, 28 Wn. App. at 102-03.
6 Arguably, Ellis's recitation of the facts of the murders to the
psychologists is inadmissible hearsay. All that is in the record about the
events of the homicide comes from the testimony and reports of the two
psychologists. There were no witnesses to the murders other than Ellis.
Everything the psychologists know about Ellis's actions comes primarily
from what Ellis told them. Thus, to admit the psychologists' testimony of
the events of the homicide, as Ellis told those events to them, is to admit
hearsay.
Usually, hearsay for the purposes of medical diagnosis or treatment is
admissible as an exception to the hearsay rule. ER 803(a)(4) provides:
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.
Thus, the psychologists' description of the events surrounding the murders,
as Ellis related those events, would be admissible as substantive evidence
to prove the truth of the matter asserted, as what Ellis said can be taken
as statements made for the purpose of diagnosis. The justification for
this hearsay exception is the presumption the patient has a strong
motivation to be truthful in giving information related to treatment or
diagnosis.
Precisely the opposite is present here, however. Ellis's motivation
is to describe a situation in which his mental state would negate the
State's evidence of premeditation. In fact, because he has admitted
committing the murders, the only defense he can possibly present to the
first degree murder charge is lack of premeditation. Thus, the usual index
of reliability justifying hearsay testimony of medical personnel is
entirely absent in this case. If anything, what Ellis told the
psychologists about the events of the murders has a high index of
unreliability. In the words of one of the leading treatises on evidence:
{S}tatements {made for purposes of medical diagnosis} may be extremely
unreliable as evidence of the facts related, since the condition for which
the patient is consulting the psychiatrist may have impaired the patient's
perception, memory or veracity.
5 Weinstein's Federal Evidence 803.09{8}, at 803-47 (2d ed. 1998).
7 Examples of such testimony follow:
So we have an individual whose perceptional process, whose
interpreting process, his decision making capacity and his ability to
properly regulate his behavior, was {sic} severely compromised as a direct
result of this ongoing personality disturbance, severe in nature, and quite
uncooling.
Report of Proceedings (June 16, 1997) at 52-53 (Dr. Whitehill).
We are talking about extreme pathology here, and breakdowns of mental
observations that are not just an overreaction. We are talking about
defects of mental functioning. I thought of it this way: Perhaps this
would be useful to understand where I am coming from on this. We all sort
of have little buttons on us, little red buttons, and if someone comes over
and pushes it they can set us off, and get certain reactions. But as we
grow and develop and your mind sort of develops, we sort of learn how to
work around those, and control those through the powers of mind.
We are not talking about a little button. We are talking about a big
button here, a button that is just the result of unspeakable things. And
if this man gets into certain situations, and that big abnormal button gets
pushed, you get big abnormal behavior. And so I don't think it's a fair
characterization to speak of it as just a reaction. We are talking about
an aberrant psychology.
Report of Proceedings (June 16, 1997) at 73-74 (Dr. Cripe).
Q. {The State} Now, tell us, please, what symptoms exactly were
manifested when Mr. Ellis killed.
A. {Dr. Whitehill} Well, one dimension of the borderline adaptation, his
intention on remitting emotionality unregulated in nature.
Q. So emotionality, intention.
A. Intention.
Q. Unregulated. Any others?
A. Impulsivity with respect to behavioral regulation.
Report of Proceedings (June 16, 1997) at 55.
8 Dr. Cripe's knowledge of what happened the evening of the murders
comes from Ellis's self-report of how he felt and what he did.
9 The suggestion of automatism appears also in Dr. Cripe's written
report of August 7, 1996, where he said Ellis's "extreme actions were the
result of complicated forces and not an act of normal free will." Clerk's
Papers at 63. Neither Dr. Cripe nor Dr. Whitehill has formally diagnosed
Ellis as having been an automaton when he killed his mother and half-
sister, and Ellis has not raised automatism as a defense.
10 Dr. Cripe here is evidently expressing his disagreement with the
legal standard for either intent or premeditation. He is entitled to his
opinion.
11 Here again Dr. Cripe indicates he has not focused upon the legal
definition of premeditation, but has instead considered it only in the lay
sense of having planned something well in advance.
12 Dr. Cripe continues to display the incongruity of his testimony
about Ellis's mental state with the legal question of premeditation. Ellis
surely had more time to premeditate the killing of his half-sister than of
his mother. Even from his own description of his actions to his
psychologists, he had time to deliberate before picking up the breadboard
once again and killing his little half-sister.
13 The reference to "free will" is confusing. Ellis has not claimed he
was acting as an automaton, yet the essence of the testimony of both
psychologists is that Ellis had no control of himself, and for that reason
ought not be held responsible for murder in the first degree.
14 People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928). This was a case
involving feebleness of mind rather than a personality or emotional
disorder. It offers only tangential support for the holding in Ferrick,
where the defendant claimed a mental disease.
15 State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961).
16 People v. Wells, 33 Cal. 2d 330, 202 P.2d 53, cert. denied, 338 U.S.
836, 70 S. Ct. 43, 94 L. Ed. 510 (1949).
17 Cal. Penal Code 28 reads, in part:
(a) Evidence of mental disease, mental defect, or mental disorder
shall not be admitted to show or negate the capacity to form any mental
state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental
disorder is admissible solely on the issue of whether or not the accused
actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged.
(b) As a matter of public policy there shall be no defense of
diminished capacity, diminished responsibility, or irresistible impulse in
a criminal action or juvenile adjudication hearing.
(Emphasis added.) Two commentators on the California legislation noted:
The Legislature heard ample and scientifically sound expert testimony
that convinced it that even severe mental disabilities virtually never
negate mens rea. Mental disabilities may give someone a crazy motive for
forming an intent, or may to some extent compromise a person's ability to
control himself. However, mental disabilities do not prevent the formation
of the mens rea except in exceptionally rare cases, such as Wetmore {People
v. Wetmore, 22 Cal. 3d 318, 583 P.2d 1308, 149 Cal. Rptr. 265 (1978)},
where the alleged burglar's delusional belief that he was in his own
apartment negated the felonious intent (to steal) that is part of the mens
rea of burglary.
Stephen J. Morse & Edward (Ned) Cohen, Diminishing Diminished Capacity in
California, 2 Cal. Law. 24, 25 (June 1982).
18 Dr. Whitehill apparently attempted to clarify this point later in
his testimony:
In my experience with Mr. Ellis, and in my experience of persons like him
who have committed severely violent acts, and who manifest severe
personality disorders, that which have individuals who become, or who
display what we could call borderline rage -- borderline not in the sense
that it's almost rage, this is clearly extremely rageful behavior.
Borderline rage is not -- this is rage that accompanies the borderline
personality. And there are -- my diagnosis of Mr. Ellis was not that of
borderline rage. It was borderline personality NOS, or not otherwise
specified, which there are a variety of elements present, including the
borderline and antisocial behavior.
Report of Proceedings (June 16, 1997) at 48.
19 Dr. Whitehill wrote: "In particular, I have argued that Mr. Ellis's
mixed personality disorder and intermittent explosive disorder were in
acute symptomatic presentation at the time of the slayings of his mother
and half-sister." Clerk's Papers at 52. He "presumes" these symptoms were
present, resulting in "severe impairment" on the night of the murders
because the murders occurred. Id. If Ellis had not been in "acute
symptomatic presentation" he presumably would not have committed the
murders.
20 "{T}here is no scientific basis for measuring a person's capacity
for self-control or for calibrating the impairment of that capacity. There
is, in short, no objective basis for distinguishing between offenders who
were undeterrable and those who were merely undeterred, between the impulse
that was irresistible and the impulse not resisted, or between substantial
impairment of capacity and some lesser impairment." Richard J. Bonnie, The
Moral Basis of the Insanity Defense, 69 A.B.A. J. 194, 196 (1983).
21 One wonders if Ellis's mental disorders would have prevented him
from premeditating coolly to kill his mother and sister, or whether his
mental disorders prevented him from premeditating only when he was
"rageful."
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65761-1
Title of Case: State of Washington
v.
Joey Ellis
File Date: 10/01/98
Oral Argument Date: 03/24/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 96-1-00143-2
Judgment or order under review
Date filed: 07/29/97
Judge signing: Hon. Vicki L. Hogan
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: James M. Dolliver
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Gerry L. Alexander
Richard P. Guy
Dissenting: Barbara Durham
Philip A. Talmadge
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Rita J. Griffith
Attorney At Law
Ste 221
4756 Univ Village Pl NE
Seattle, WA 98105-5021
Counsel for Respondent(s)
Barbara L. Corey-Boulet
Pierce County Deputy Pros Atty
County City Bldg
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2177
Gerald T. Costello
Rm 946 Prsctg Attys Ofc
930 Tacoma Ave S
Tacoma, WA 98402
State v. Ellis (Joey)
Majority by Smith, J.
Concurrence by Alexander, J.
Dissent by Talmadge, J.
Dissent by Durham, C.J.
65761-1
DURHAM, C.J. (dissenting) -- I agree with part A of Justice Talmadge's
dissent. The trial court did not abuse its discretion in excluding the
expert testimony in this case. Admissibility of such evidence should be
determined under the rules of evidence and the principles of testimonial
capacity for expert witnesses. However, I do not agree with part B of the
dissent. Abolishing the diminished capacity defense is not appropriate at
this time.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65761-1
Title of Case: State of Washington
v.
Joey Ellis
File Date: 10/01/98
Oral Argument Date: 03/24/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 96-1-00143-2
Judgment or order under review
Date filed: 07/29/97
Judge signing: Hon. Vicki L. Hogan
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: James M. Dolliver
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Gerry L. Alexander
Richard P. Guy
Dissenting: Barbara Durham
Philip A. Talmadge
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Rita J. Griffith
Attorney At Law
Ste 221
4756 Univ Village Pl NE
Seattle, WA 98105-5021
Counsel for Respondent(s)
Barbara L. Corey-Boulet
Pierce County Deputy Pros Atty
County City Bldg
930 Tacoma Ave S Rm 946
Tacoma, WA 98402-2177
Gerald T. Costello
Rm 946 Prsctg Attys Ofc
930 Tacoma Ave S
Tacoma, WA 98402
State v. Ellis
Majority by Smith, J.
Concurrence by Alexander, J.
Dissent by Talmadge, J.
No. 65761-1
ALEXANDER, J. (concurring) -- I concur in the result reached by the
majority. I write separately only to express my disagreement with what I
perceive is the majority's conclusion that it is error for a trial court to
exclude proffered defense expert testimony on diminished capacity "prior to
trial on a motion in limine in this case which is an aggravated first
degree murder case in which the State intends to ask for the death
penalty." Majority op. at 34. In my judgment, a trial court may, when
appropriate, grant a motion to limit evidence in a capital case. Although
the granting or denial of such a motion is always within the discretion of
the trial court, subject only to a review for abuse, I fully subscribe to
the notion that such a motion may be granted if (1) it describes the
evidence objected to with sufficient specificity to enable the trial court
to determine that it is clearly inadmissible, and (2) the evidence is so
prejudicial that the movant should be spared the necessity of calling
attention to it by objecting when offered. Douglas v. Freeman, 117 Wn.2d
242, 255, 814 P.2d 1160 (1991). I fail to see any reason why that rule
should not pertain in capital cases.
Notwithstanding this minor disagreement with the majority, I entirely
agree with it that the trial court erred here in granting the State's
motion in limine. In my view, the State did not establish that the
evidence proffered by the defendant on the issue of diminished capacity was
clearly inadmissible when it is considered in light of ER 401, 402, and
403.