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State v. Clark

Supreme Court of Washington, En Banc

February 2, 2017


          YU, J.

         At his trial for premeditated first degree murder, petitioner Anthony Tyrone Clark sought to introduce expert testimony regarding his intellectual deficits. Clark asserted this testimony would be relevant to contesting the State's mens rea evidence and to helping the jury understand Clark's affect while testifying. The trial court excluded Clark's proffered expert testimony, but it did allow relevant observation testimony about Clark's education history, Social Security disability benefits, affect, and actions on the day of the murder.

         We hold that the trial court properly exercised its discretion in making its evidentiary rulings. The court did allow relevant observation testimony from lay witnesses to rebut the State's mens rea evidence, and Clark does not challenge the scope of this testimony on review. However, because Clark purposefully did not assert or plead diminished capacity and the proposed expert testimony was not relevant to any other purpose, the expert testimony was properly excluded. Clark also cannot establish ineffective assistance of counsel or cumulative error, so we affirm his convictions.


         Clark killed the victim, D.D., [1] with a single gunshot to the back of his head. D.D.'s body was found in a garbage can behind the triplex apartment building where Clark lived. There were no eyewitnesses to the shooting other than Clark himself. Clark testified that D.D. was trying to get Clark's mother's necklace from a high shelf in a closet. Before reaching for the necklace, D.D. removed a gun from his coat pocket, removed the "clip" from the gun, and handed the gun to Clark. 13 Verbatim Report of Proceedings (VRP) (Apr. 15, 2013) at 1594. Clark was sitting on the floor "messing around with the gun, " aimed it "towards the ceiling of the closet, " and shot D.D. Id. at 1595. Several other witnesses testified about Clark's actions on the day of the shooting, including Clark asking his neighbors to help sell D.D.'s cocaine and get rid of D.D.'s body. The State theorized that Clark killed D.D. with premeditation in order to steal D.D.'s gun and cocaine. Clark contended the shooting was an accident. The primary disputed issue was thus Clark's level of intent.


         By amended information, the State charged Clark with premeditated first degree murder, first degree felony murder, first degree robbery, unlawful possession of a controlled substance with intent to deliver, and second degree unlawful possession of a firearm. Clark pleaded not guilty on all counts.

         Before trial, the defense moved to suppress statements Clark made to police after the shooting, contending that he did not validly waive his Miranda[2] rights before speaking to police. To support its motion, the defense offered an expert evaluation by Dr. Brent Oneal.[3] At the suppression hearing, Dr. Oneal testified that Clark scored in the bottom first to third percentile in standardized intelligence tests. The court found that Dr. Oneal was a credible witness but denied Clark's motion to suppress.

         The State then moved to exclude testimony about Clark's "intellectual deficits" for trial purposes. Clerk's Papers (CP) at 213 (underlining omitted). Clark argued that Dr. Oneal's testimony was admissible for three purposes: (1) to help the jury understand Clark's affect during testimony, (2) to explain why Clark does not work, and (3) to contest the State's mens rea evidence. The court granted the State's motion in part and excluded Dr. Oneal's testimony because, in light of the fact that Clark specifically disavowed any intention to argue diminished capacity, expert testimony on Clark's intellectual deficits would be irrelevant and confusing to the jury. It did, however, allow for relevant observation testimony bearing on Clark's intellectual deficits, including his participation in special education, his receipt of Social Security disability benefits, and "that people [who] knew him considered him slow or tended to discount his testimony." VRP (Dec. 17, 2012) at 20. The court also left open the possibility for additional evidence regarding Clark's circumstances and abilities if the State "unfairly sanitized" those facts at trial. VRP (Feb. 15, 2013) at 20.

         At the beginning of jury selection, outside the presence of the jury panel, the court noted that some jurors might be confused about whether the death penalty was being sought, given that Clark was charged with murder. The court invited counsel to handle that issue as it felt was appropriate. During individual questioning, the State informed one prospective juror, who was not ultimately seated in this case, that it was not seeking the death penalty. 2 VRP (Mar. 11, 2013) at 120; 5 VRP (Mar. 13, 2013) at 490. It twice repeated that information in front of all the prospective jurors. 5 VRP (Mar. 13, 2013) at 372, 419. The defense did not object at any time.

         The defense renewed its request to admit Dr. Oneal's testimony several times throughout the course of the trial, arguing that the testimony was necessary to rebut the State's mens rea evidence and to explain Clark's affect when he testified. Nevertheless, the defense consistently maintained that it was not asserting diminished capacity. The court adhered to its ruling excluding Dr. Oneal's testimony and reminded counsel that relevant observation testimony by lay witnesses was admissible.

         The defense elicited testimony that Clark had been in special education, had an individualized education plan, and received Social Security disability benefits.[4]It relied on this evidence in its closing argument, emphasizing that Clark was "not your average 20 year old" and arguing that in light of Clark's actual intellectual abilities, the State had not proved mens rea on the murder change. 15 VRP (Apr. 17, 2013) at 1826.

         The jury was instructed on premeditated first degree murder and the lesser-included offenses of intentional second degree murder, reckless first degree manslaughter, and negligent second degree manslaughter. Clark was convicted of premeditated first degree murder as charged, as well as all the other charged counts, so no verdict was returned on the lesser-included offenses.

         The court denied Clark's request for an exceptional sentence downward and imposed sentences at the bottom of the standard range.[5] The Court of Appeals affirmed in all relevant aspects. State v. Clark, No. 45103-4-II (Wash.Ct.App. June 23, 2015) (unpublished),[6] We granted Clark's petition for review. State v. Clark, 184 Wn.2d 1019, 361 P.3d 746 (2015).


         A. Did the trial court properly exclude expert testimony regarding Clark's intellectual deficits?

         B. Was trial counsel ineffective for failing to object when the State informed prospective jurors that it was not seeking the death penalty?

         C. Did cumulative error deprive Clark of his right to a fair trial?


         We review the trial court's evidentiary rulings for abuse of discretion and defer to those rulings unless '"no reasonable person would take the view adopted by the trial court.'" State v. Atsbeha, 142 Wn.2d 904, 914, 16 P, 3d 626 (2001) (internal quotation marks omitted) (quoting State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843 (1998)). If the court excluded relevant defense evidence, we determine as a matter of law whether the exclusion violated the constitutional right to present a defense. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).

         To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel's performance was "deficient, " and that, "but for counsel's deficient performance, there is a 'reasonable probability' that the outcome would have been different." State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008) (quoting State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001)). For relief based on the cumulative error doctrine, the defendant must show that while multiple trial errors, "standing alone, might not be of sufficient gravity to constitute grounds for a new trial, the combined effect of the accumulation of errors most certainly requires a new trial." State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Both ineffective assistance of counsel and cumulative error present constitutional issues, which we review de novo. State v. Samalia, 186 Wn.2d 262, 269, 375 P.3d 1082 (2016).


         Clark argues the trial court erred in excluding Dr. Oneal's expert testimony because it was relevant to his defense, even though he never asserted or pleaded diminished capacity. It is true that observation testimony regarding relevant facts is generally admissible and does not implicate the pleading requirements for diminished capacity, even if offered to rebut the State's mens rea evidence. However, expert opinion testimony that a defendant has a mental disorder that impaired the defendant's ability to form the requisite mens rea is relevant only to diminished capacity. Diminished capacity must be affirmatively pleaded before trial, and in this case, Clark specifically disavowed any intent to plead diminished capacity. The court thus properly allowed relevant observation testimony tending to rebut the State's mens rea evidence and properly excluded expert testimony that was not relevant absent a diminished capacity defense. To the extent, if any, that the court unduly restricted the scope of allowable observation testimony by lay witnesses, Clark does not raise that issue on review. He does not otherwise show reversible error, and we therefore affirm.

         A. The court properly excluded Dr. Oneal's testimony

         Expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." ER 702. The defense contends that Dr. Oneal's expert testimony would have assisted the jury to determine a fact in issue-Clark's level of intent- and would also have helped the jury to understand the evidence by explaining Clark's unusually flat affect while he was testifying. However, because the defense did not plead diminished capacity or show that Dr. Oneal's testimony was otherwise relevant, his expert testimony was properly excluded.

         1. Dr. Oneal's testimony was not admissible to rebut the State's mens rea evidence

         Clark argues that Dr. Oneal's expert testimony should have been admitted for the purpose of rebutting the State's mens rea evidence even though Clark did not plead diminished capacity because Dr. Oneal's testimony was not actually diminished capacity evidence. Alternatively, he argues that trial counsel's failure to assert diminished capacity did not warrant exclusion of Dr. Oneal's testimony. These arguments are inconsistent with both the record and the law.

         Diminished capacity "allows a defendant to undermine a specific element of the offense, a culpable mental state, by showing that a given mental disorder had a specific effect by which his ability to entertain that mental state was diminished." State v. Gough,53 Wn.App. 619, 622, 768 P.2d 1028 (1989). The intent to assert diminished capacity must "be declared pretrial." State v. Harris,122 Wn.App. 498, 506, 94 P.3d 379 (2004) (citing CrR 4.7(b)(1), (2)(xiv)). Pretrial disclosure is required because when asserting diminished capacity, the defense "must obtain a corroborating expert opinion and disclose that evidence to the prosecution pretrial, " giving the State a reasonable opportunity to decide whether to obtain its own evaluation "[depending on the strength of the defense's showing." Id. (citing CrR 4.7(b)(1), (b)(2)(viii), (g); In re Pers. Restraint of Hutchinson,147 Wn.2d 197, 204, 53 P.3d 17 (2002)). Diminished capacity evidence is thus distinguished from observation testimony about relevant facts tending to rebut the State's mens rea evidence because ...

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