Superior Court County: King. Superior Court Cause No: 93-1-04641-0. Date filed in Superior Court: February 13, 1995. Superior Court Judge Signing: Robert Alsdorf.
Petition for Review Granted February 6, 1997,
Written by: Kennedy, A.c.j., Concurred by: Cox, J., Coleman, J.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J.-- Roderick Hamlet appeals his conviction of first degree assault, contending that the trial court erred in allowing the State discovery and use of a defense-retained psychiatric expert as a witness to rebut his diminished capacity defense, and in admitting the expert's testimony that he was originally retained by the defense. *fn1 Finding no abuse of discretion, we affirm.
In July 1993, Roderick Hamlet was a Seattle police officer who had served on the force for over nineteen years. Before joining the police force, Hamlet served as a United States Marine Corps rifleman in Vietnam. During his tour of duty, Hamlet was wounded three times in combat and was awarded the purple heart. Hamlet has been diagnosed with post-traumatic stress disorder stemming from his service in Vietnam and on the Seattle police force.
On July 8, 1993, Hamlet was at home with his family when a confrontation developed between him and his wife. Ms. Hamlet testified that Hamlet picked up a gun, put it to her head, and cocked it. According to Ms. Hamlet, Hamlet told her: "Today you are going to go to heaven." Ms. Hamlet responded: "God allow it to be so. So be it." Report of Proceedings at 190. Ms. Hamlet walked from the room, and Hamlet followed her outside. As they were leaving the house, Raymond Washington, a family friend, arrived to retrieve a set of keys the Hamlets had been holding for him. Hamlet confronted Washington, pointing a gun at him. Washington testified that Hamlet stated: "I lost everything. I lost it now. I lost everything." Report of Proceedings at 112. Hamlet then ordered Washington to walk away, but as Washington complied, Hamlet appeared to change his mind and ordered him to return. Noticing that Hamlet appeared very tense, Washington turned and began to run away. Hamlet followed Washington, firing his gun at him. Washington sustained several gunshot wounds. Hamlet was arrested at the scene, without incident.
On July 13, 1993, Hamlet was charged with one count of first degree assault for the shooting of Washington. In November 1993, the prosecutor filed an amended information adding a charge of second degree assault of Ms. Hamlet.
Prior to trial, Hamlet notified the State of his intent to rely on a defense of diminished capacity. He disclosed the name of the expert whose testimony he intended to present at trial, but refused to disclose the name of another expert who had examined him and who would not be called at trial. In January 1994, the State moved under CrR 4.7(g) to compel disclosure of the name, reports, and statements of the non-testifying expert, who had examined Hamlet shortly after his arrest. Following a hearing on February 2, 1994, the trial court granted the State's motion, ordering the defense: (1) to provide the name of the non-testifying expert; (2) to provide all written reports, tests and notes prepared by the expert; and (3) to permit the State to conduct an oral interview with the expert. The court ruled, however, that discovery would not be permitted of written communications between defense counsel and the expert.
Hamlet sought emergency discretionary review of the trial court's ruling the following day. On March 15, 1994, Supreme Court Commissioner Crooks denied Hamlet's motion. Citing State v. Pawlyk, 115 Wash. 2d 457, 800 P.2d 338 (1990) and State v. Hutchinson, 111 Wash. 2d 872, 766 P.2d 447 (1989), Commissioner Crooks concluded that Hamlet had failed to demonstrate that the trial court committed obvious or probable error. Hamlet's motion to modify Commissioner Crooks's ruling was denied by five members of the Supreme Court on June 9, 1994. Following the denial of his motion for discretionary review, Hamlet disclosed the identity of the non-testifying expert, Dr. George Christian Harris, to the State.
At trial, Hamlet presented the testimony of Dr. John Liebert in support of his diminished capacity defense. Dr. Liebert testified that Hamlet suffers from a very severe post-traumatic stress disorder resulting from multiple traumas he experienced as a police officer as well as during his service in Vietnam. Dr. Liebert concluded that Hamlet was in at least a partial dissociative state at the time of the shooting, and that his mental capacity to form specific intent was substantially impaired. In rebuttal, the State offered the testimony of Drs. Harris and McFall. Dr. Harris testified that based on his interview of Hamlet on August 13, 1993, he concluded that Hamlet was not experiencing a dissociative state at the time of the shooting. Similarly, Dr. McFall testified that based on his more recent interview of Hamlet, he concluded that Hamlet was not experiencing a dissociative state at the time of the shooting.
Over Hamlet's objection, the State was permitted to elicit testimony from Dr. Harris that he had originally been retained by the defense. By agreement of the parties, Hamlet then submitted into evidence a stipulation explaining that the defense chose to call Dr. Liebert rather than Dr. Harris because it learned that Dr. Liebert had experience treating both Vietnam veterans and police officers who suffered from post-traumatic stress disorder.
The jury found Hamlet guilty of first degree assault of Washington, but not guilty of second degree assault of Ms. Hamlet. The trial court imposed a standard ...