State v. Atsbeha

142 Wash. 2d 904
CourtWashington Supreme Court
DecidedFebruary 1, 2001
DocketNo. 68649-1
StatusPublished
Cited by161 cases

This text of 142 Wash. 2d 904 (State v. Atsbeha) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atsbeha, 142 Wash. 2d 904 (Wash. 2001).

Opinions

Smith, J.

— Petitioner State of Washington seeks review of a decision of the Court of Appeals, Division One, which reversed the King County Superior Court conviction of Respondent Negash Atsbeha for possession of a controlled substance with intent to deliver under RCW 69.50-.401(a)(l)(i). The Court of Appeals reversed the trial court, concluding that it erred in excluding the testimony of a physician offered by Respondent as an expert witness because it was not material and relevant to his defense of diminished capacity.1 This court granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether expert testimony of a physician, offered by Respondent, but excluded by the trial court, was relevant and material and should have been allowed to establish Respondent’s diminished capacity defense against the crime of possession of a controlled substance with intent to deliver under RCW 69.50.401(a)(l)(i).

STATEMENT OF FACTS

On October 28, 1997, Respondent Negash Atsbeha was charged in the Rang County Superior Court by amended [907]*907information with one count of unlawful delivery of a controlled substance, and in the alternative, one count of possession of a controlled substance with intent to deliver.2 Both counts involved violation of the Uniform Controlled Substances Act under RCW 69.50.401(a)(l)(i) and RCW 69.50.435(a)(3).3 The charges arose from an encounter between Respondent and King County Detective Michael Caldwell on March 28, 1996 on Aurora Avenue North in King County.

The “Certification for Determination of Probable Cause” provided in part:

On March 28,1996, King County Detective Caldwell contacted the defendant, NEGASH ATSBEHA, in the parking lot of [908]*908Joker[’]s Tavern and Card Room, 14515 Aurora Avenue North, King County, Washington. Detective Caldwell was working undercover. The defendant agreed to sell one sixteenth of an ounce to Detective Caldwell for $80. Detective Caldwell gave the defendant $80. Ten minutes later, the defendant returned to Detective Caldwell’s car and gave the detective a plastic bag containing suspected powder cocaine. The Washington State Patrol Crime Lab tested the contents of the plastic bag and determined that it contained cocaine. . . ,[4]

On February 17 and 18, 1998, the Honorable Patricia H. Aitken held pretrial hearings to determine the admissibility of testimony offered by Respondent. Judge Aitken asked whether Respondent would raise the defense of insanity. His counsel answered he would not.5 Petitioner instead chose to present only the defense of diminished capacity, relying upon the testimony of Dr. Mary Hodgson Rose, M.D. During the extensive pretrial hearing, Dr. Rose responded to questions by the trial court, Deputy Prosecuting Attorney Cindi S. Port and Respondent’s counsel Matthew M. Rubenstein, which included the following:

Q. [by Mr. Rubenstein] Good morning, Dr. Rose. Could you state your name and spell your name for the court reporter.
A. Yes, it is Mary Hodgson Rose, H O D G S O N, no hyphen, Rose, ROSE.
Q. Okay. Could you share with us your education.
A. Yes, I did my undergraduate work at Stanford University and got my medical degree there. I did my post-graduate training in British Columbia at the University of British Columbia Hospital, which is Vancouver General. . . .
Q. What board certification do you have?
A. In family medicine. I am recertified in those every six years.
Q. And are you involved in any continuing medical education?
[909]*909A. Yes, I have to take hundreds of units of credits, that’s credit hours every year, to maintain my certification. I also am on the clinical faculty at the University of Washington, and am an assistant clinical professor there ....
Q. Dr. Rose, you indicated that Negash Atsbeha has been your patient since 1986?
A. That’s correct.
A. The precise condition that Mr. Atsbeha was suffering from was this syphilitic encephalopathy.
Q. And could you describe that in lay terms what that illness, in fact, is and how it physically affects the brain.
A. It is an infection of the brain tissues. And this organism actually enters the nerve cells and cause [sic] both dysfunction and destruction of cells. It particularly affects the frontal lobes that control reasoning and judgment, and the posterior columns of the spinal cord that control gait and balance,, [sic] But it affects all parts of the nervous system, and the skin as well, which is embriologically [sic] related to the nervous system.
Q. Would it be fair to say that it causes diffuse organic brain damage?
A. Yes, it would.[6]
Q. [by Ms. Port] . . . When you last saw him on October 6th of 1995, to the point in time when you saw him in April and May of 1996, can you say with any reasonable medical certainty that his mental disorder connected with the syphilous [sic] had deteriorated to any appreciable degree?
A. I don’t believe it had during that time interval.
Q. So what was it that caused Nick to go downhill from late 1995 to early 1996?
A. Major depression and substance abuse.
Q. And which would you say would be the primary and which would you say would be the secondary?
A. The major depression, I must comment that the brain [910]*910injury with which he was left, left him very impulsive, the consequence of impulsive chaotic behavior, continued to escalate and damage the quality of patients’ lives, especially if they are in an unstructured situation, and so the consequence of his syphilitic encephalopathy were by no means gone or stable, even though the germs were gone.
Q. All right. Now, would you say from the time period of late 1995 to early 1996, that the cocaine and alcohol addiction exacerbated his depression?
A. Yes.
THE COURT: . .. [W]hat did the defendant tell you about the events of that evening, of March 28th, please, when he could give a coherent account [?]
THE WITNESS: When Mr. Atsbeha was able to tell me about this event, he described that he was sitting in a bar where he often goes, and where there was a police officer whom he had known for some time to be a police officer, who offered to buy him several drinks.

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Bluebook (online)
142 Wash. 2d 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atsbeha-wash-2001.