IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84016-9-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
DAVID LATHEN NIEUWENHUIS,
Appellant.
FELDMAN, J. — A jury convicted David Nieuwenhuis of second-degree
murder for the killing of Candice Black. Nieuwenhuis asserted at trial that Black
attacked him while she was high on methamphetamine and heroin, she was
“incredibly strong” and “overpowering,” and he killed her in self-defense. The jury
rejected that defense. Nieuwenhuis argues on appeal that he was denied the
right to present a defense when the trial court excluded the testimony of his
expert witness, Dr. Granville Storey, that the drugs in Black’s system could lead
to a “rush of adrenaline” or “extra strength.” We disagree.
To determine whether Nieuwenhuis was denied the right to present a
defense, we apply the two-part test from State v. Jennings, 199 Wn.2d 53, 502
P.3d 1255 (2022). The first part of this test requires us to determine whether the
trial court abused its discretion when it excluded Dr. Storey’s testimony. Id. at No. 84016-9-I/2
57-58. Addressing this issue in Jennings, the court held that the trial court did
not abuse its discretion by excluding under ER 403 1 a toxicology report showing
the victim had methamphetamine in his system at the time of his death. Id. at 63.
The court reasoned that because the defendant did not know how the
methamphetamine was affecting the victim, and the defendant offered no witness
to testify as to the potential effects of methamphetamine on the victim, “the
toxicology report was speculative and might confuse the jury.” Id. at 62-63.
In State v. Lewis, 141 Wn. App. 367, 166 P.3d 786 (2007), this court
likewise held that the trial court did not abuse its discretion by excluding a
medical examiner’s testimony that methamphetamine can cause some users to
experience “paranoia, irritability, or irrational behavior, and that some can
become violent.” Id. at 379 (internal quotation marks omitted). Similar to
Jennings, the court reasoned that the medical examiner’s testimony would not be
helpful to the jury under ER 702 2 “[b]ecause of the wide range of effects of
various quantities of methamphetamine on diverse individuals, and because [the
medical examiner] had never observed [the victim] alive, with or without
methamphetamine in his system, [the medical examiner] had no idea how the
methamphetamine might have affected [the victim].” Id. at 389.
1 ER 403 states, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 2 ER 702 states, “[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, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” 2 No. 84016-9-I/3
Nieuwenhuis argues that “[t]he circumstances here are the exact opposite
of Jennings — Nieuwenhuis had an expert testify as to the potential effects on
[Black].” To distinguish both Jennings and Lewis, Nieuwenhuis emphasizes Dr.
Storey’s testimony that Black had several risk factors that “are associated with an
increased risk for some sort of irrational or violent behavior.” While Dr. Storey
was able to identify these potential risk factors, he repeatedly conceded that he
could not say whether Black acted more aggressively while on
methamphetamine. Dr. Storey was asked, “Can you say whether or not Ms.
Black acted violently because of methamphetamine consumption at the time of
her death?” Dr. Storey answered: “There’s no scientific evidence that would— to
a direct cause. It could be correlatory but not a direct cause.” Dr. Storey
ultimately agreed with the prosecution that he could not “say what effects of
methamphetamine, if any, Ms. Black was exhibiting at the time of her death.”
Dr. Storey’s written report also conceded these issues. There, Dr. Storey
conceded that “[i]t is impossible to know exactly how this combination [of
methamphetamine and heroin] was affecting Ms. Black.” He stated that “[i]t
would be important to know if her baseline behavior exhibited paranoid thoughts,
ill-tempered mood swings, or more aggressive behavior when high,” but he
conceded that he never personally observed Black’s baseline behavior off
methamphetamine or Black’s behavior on methamphetamine. On this record,
the trial court did not abuse its discretion when it excluded Dr. Storey’s testimony
under ER 403 and ER 702 in accordance with both Jennings and Lewis.
3 No. 84016-9-I/4
Having concluded that the trial court did not abuse its discretion when it
excluded Dr. Storey’s testimony, we turn to the second part of the Jennings test,
which requires us to apply the balancing test from State v. Hudlow, 99 Wn.2d 1,
659 P.2d 514 (1983). Under Hudlow, we “balance[] the defendant’s right to
produce relevant evidence versus the state’s interest in limiting the prejudicial
effects of that evidence.” Id. at 16. Here, Dr. Storey’s testimony has little if any
probative value whereas the state has a substantial interest in limiting the
prejudicial effects of Dr. Storey’s testimony. Similar to Jennings and Lewis, if Dr.
Storey was able to testify about the general effects of methamphetamine and
heroin, the jury would have been left to speculate as to whether the
methamphetamine and heroin in Black’s system caused Black to be “incredibly
strong” and “overpower[]” Nieuwenhuis as he claimed at trial.
Our recent opinion in State v. Ritchie, 24 Wn. App. 2d 618, 520 P.3d 1105
(2022), is also instructive here. We explained in Ritchie that the “pertinent
concern” when evaluating a defendant’s right to present a defense is “whether
both parties receive a fair trial.” Id. at 634 (citing State v. Darden, 145 Wn.2d
612, 622, 41 P.3d 1189 (2002)). We noted that this concern “is heightened when
a new or antiquated rule appears to threaten the defendant’s right to a fair trial.”
Id. But when the rule being applied is a “well-established, commonly utilized rule
that has been applied time and again without any demonstrated detriment to the
fairness of proceedings,” the concern is not paramount. Id. We also held that
“‘[t]he ability of the defendant to achieve through other means the effect that the
excluded examination allegedly would have produced is a factor indicating that
4 No. 84016-9-I/5
[the defendant’s] right to’” present a defense is not violated. Id. at 635 (quoting
United States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005)).
Similar to Ritchie, the trial court in this case excluded Dr. Storey’s
testimony under ER 403 and 702. These are “well-established, commonly
utilized rule[s] that ha[ve] been applied time and again without any demonstrated
detriment to the fairness of proceedings.” Id. at 634-35. Also, contrary to
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84016-9-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
DAVID LATHEN NIEUWENHUIS,
Appellant.
FELDMAN, J. — A jury convicted David Nieuwenhuis of second-degree
murder for the killing of Candice Black. Nieuwenhuis asserted at trial that Black
attacked him while she was high on methamphetamine and heroin, she was
“incredibly strong” and “overpowering,” and he killed her in self-defense. The jury
rejected that defense. Nieuwenhuis argues on appeal that he was denied the
right to present a defense when the trial court excluded the testimony of his
expert witness, Dr. Granville Storey, that the drugs in Black’s system could lead
to a “rush of adrenaline” or “extra strength.” We disagree.
To determine whether Nieuwenhuis was denied the right to present a
defense, we apply the two-part test from State v. Jennings, 199 Wn.2d 53, 502
P.3d 1255 (2022). The first part of this test requires us to determine whether the
trial court abused its discretion when it excluded Dr. Storey’s testimony. Id. at No. 84016-9-I/2
57-58. Addressing this issue in Jennings, the court held that the trial court did
not abuse its discretion by excluding under ER 403 1 a toxicology report showing
the victim had methamphetamine in his system at the time of his death. Id. at 63.
The court reasoned that because the defendant did not know how the
methamphetamine was affecting the victim, and the defendant offered no witness
to testify as to the potential effects of methamphetamine on the victim, “the
toxicology report was speculative and might confuse the jury.” Id. at 62-63.
In State v. Lewis, 141 Wn. App. 367, 166 P.3d 786 (2007), this court
likewise held that the trial court did not abuse its discretion by excluding a
medical examiner’s testimony that methamphetamine can cause some users to
experience “paranoia, irritability, or irrational behavior, and that some can
become violent.” Id. at 379 (internal quotation marks omitted). Similar to
Jennings, the court reasoned that the medical examiner’s testimony would not be
helpful to the jury under ER 702 2 “[b]ecause of the wide range of effects of
various quantities of methamphetamine on diverse individuals, and because [the
medical examiner] had never observed [the victim] alive, with or without
methamphetamine in his system, [the medical examiner] had no idea how the
methamphetamine might have affected [the victim].” Id. at 389.
1 ER 403 states, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 2 ER 702 states, “[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, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” 2 No. 84016-9-I/3
Nieuwenhuis argues that “[t]he circumstances here are the exact opposite
of Jennings — Nieuwenhuis had an expert testify as to the potential effects on
[Black].” To distinguish both Jennings and Lewis, Nieuwenhuis emphasizes Dr.
Storey’s testimony that Black had several risk factors that “are associated with an
increased risk for some sort of irrational or violent behavior.” While Dr. Storey
was able to identify these potential risk factors, he repeatedly conceded that he
could not say whether Black acted more aggressively while on
methamphetamine. Dr. Storey was asked, “Can you say whether or not Ms.
Black acted violently because of methamphetamine consumption at the time of
her death?” Dr. Storey answered: “There’s no scientific evidence that would— to
a direct cause. It could be correlatory but not a direct cause.” Dr. Storey
ultimately agreed with the prosecution that he could not “say what effects of
methamphetamine, if any, Ms. Black was exhibiting at the time of her death.”
Dr. Storey’s written report also conceded these issues. There, Dr. Storey
conceded that “[i]t is impossible to know exactly how this combination [of
methamphetamine and heroin] was affecting Ms. Black.” He stated that “[i]t
would be important to know if her baseline behavior exhibited paranoid thoughts,
ill-tempered mood swings, or more aggressive behavior when high,” but he
conceded that he never personally observed Black’s baseline behavior off
methamphetamine or Black’s behavior on methamphetamine. On this record,
the trial court did not abuse its discretion when it excluded Dr. Storey’s testimony
under ER 403 and ER 702 in accordance with both Jennings and Lewis.
3 No. 84016-9-I/4
Having concluded that the trial court did not abuse its discretion when it
excluded Dr. Storey’s testimony, we turn to the second part of the Jennings test,
which requires us to apply the balancing test from State v. Hudlow, 99 Wn.2d 1,
659 P.2d 514 (1983). Under Hudlow, we “balance[] the defendant’s right to
produce relevant evidence versus the state’s interest in limiting the prejudicial
effects of that evidence.” Id. at 16. Here, Dr. Storey’s testimony has little if any
probative value whereas the state has a substantial interest in limiting the
prejudicial effects of Dr. Storey’s testimony. Similar to Jennings and Lewis, if Dr.
Storey was able to testify about the general effects of methamphetamine and
heroin, the jury would have been left to speculate as to whether the
methamphetamine and heroin in Black’s system caused Black to be “incredibly
strong” and “overpower[]” Nieuwenhuis as he claimed at trial.
Our recent opinion in State v. Ritchie, 24 Wn. App. 2d 618, 520 P.3d 1105
(2022), is also instructive here. We explained in Ritchie that the “pertinent
concern” when evaluating a defendant’s right to present a defense is “whether
both parties receive a fair trial.” Id. at 634 (citing State v. Darden, 145 Wn.2d
612, 622, 41 P.3d 1189 (2002)). We noted that this concern “is heightened when
a new or antiquated rule appears to threaten the defendant’s right to a fair trial.”
Id. But when the rule being applied is a “well-established, commonly utilized rule
that has been applied time and again without any demonstrated detriment to the
fairness of proceedings,” the concern is not paramount. Id. We also held that
“‘[t]he ability of the defendant to achieve through other means the effect that the
excluded examination allegedly would have produced is a factor indicating that
4 No. 84016-9-I/5
[the defendant’s] right to’” present a defense is not violated. Id. at 635 (quoting
United States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005)).
Similar to Ritchie, the trial court in this case excluded Dr. Storey’s
testimony under ER 403 and 702. These are “well-established, commonly
utilized rule[s] that ha[ve] been applied time and again without any demonstrated
detriment to the fairness of proceedings.” Id. at 634-35. Also, contrary to
Nieuwenhuis’ argument, he had other means to show that he was in a fight for
his life and killed Black in self-defense. The jury heard lengthy recordings of
Niewenhuis’ detailed statements to the police shortly after Niewenhuis killed
Black. In the recordings, Nieuwenhuis explained that when Black arrived at his
home, he threatened to tell police that she was dealing drugs, and that Black “all
of a sudden hit [Nieuwenhuis] with [her] iPad.” And after she hit him with the
iPad, Black hit Nieuwenhuis with her hands in the “[c]hest area” and “[t]owards
[the] throat.” Nieuwenhuis explained: “I was trying to get her off of me. She’s just
incredibly strong. She’s not that big, I couldn’t get her off me.” And finally, he
stated that “I was fighting for, I thought was my life.”
Nieuwenhuis also presented evidence showing that Black’s DNA was
found on the handle of the murder weapon. Nieuwenhuis’ attorney pointed to
this evidence in closing argument to bolster Nieuwenhuis’ defense that he was
“in the fight for his life.” Further, Nieuwenhuis presented as evidence a text
message that he sent his mother immediately following the killing stating: “She
attacked me. Hit me in the head with her iPad. I could not get her off me. I had
to grab my stick from behind the door.” Because Nieuwenhuis was able to
5 No. 84016-9-I/6
support his self-defense argument in all of these ways, “the evidence excluded
was not highly probative evidence, the exclusion of which could give rise to a
constitutional violation. Rather, the trial court’s ruling was nothing more than a
standard application of ER 403.” Ritchie, 24 Wn. App. 2d at 638. We therefore
hold, as we did in Ritchie, that “[t]he trial court’s evidentiary ruling did not violate
[Nieuwenhuis’] rights under ER 403, the Sixth Amendment, or article I, section
22.” Id. 3
We affirm.
WE CONCUR:
3 Nieuwenhuis also argued in his opening brief that that the trial court erred in calculating his offender score, but he abandoned this argument his reply brief. We accept this concession and conclude that the trial court correctly calculated his offender score. 6