NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
/FI·,~E This opinion was flied for record
at 8:,00 OJh on fill 2£ )Y1 6U4J:X c.; SUSAN L. CARLSON SUPREMECOURTCLERK :
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) STATE OF WASHINGTON, ) ) Respondent, ) No. 92021-4 ) v. ) ) ENBANC ANTHONY TYRONE CLARK, ) ) Petitioner. ) Filed: FEB 0 2 2.011 _______________________) 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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.
FACTUAL BACKGROUND
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 ofProceedings (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 ofD.D.'s body. The State
theorized that Clark killed D.D. with premeditation in order to steal D.D.'s gun and
1 We use the victim's initials because he was a minor at the time of his death.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
cocame. Clark contended the shooting was an accident. The primary disputed
issue was thus Clark's level of intent.
PROCEDURAL HISTORY
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 OneaP 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
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3 The record contains inconsistent spellings of this expert's last name. See, e.g., Clerk's Papers at 25 ("O'Neal"), 56 ("Oneal"). We use the spelling "Oneal" for consistency with the Court of Appeals opinion. State v. Clark, No. 45103-4-II, slip op. at 3 (Wash. Ct. App. June 23, 2015) (unpublished), http://www.courts.wa.gov/opinions/.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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
4 The defense did not elicit testimony that one of Clark's neighbors perceived him as slow, believing that was outside the scope of the court's written ruling. Whether the written ruling was unduly restrictive and whether trial counsel was ineffective for failing to elicit testimony about Clark's perceived slowness are not raised as issues on appeal.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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. 451 03-4-II (Wash. Ct. App.
June 23, 2015) (unpublished), http://www.courts.wa.gov/opinions/. 6 We granted
Clark's petition for review. State v. Clark, 184 Wn.2d 1019, 361 P.3d 746 (2015).
ISSUES
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?
5 The court did not impose a sentence for the first degree felony murder conviction due to double jeopardy concerns. VRP (May 28, 2013) at 7. 6 The State did concede on appeal that the trial court erred in instructing the jury on an uncharged alternative means for first degree robbery. Clark, No. 45103-4-II, slip op. at 14-16. The Court of Appeals accepted the concession and reversed the robbery conviction because the error was not harmless. Id. at 16. That issue is not presented for our review and does not affect our analysis.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
STANDARD OF REVIEW
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).
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
ANALYSIS
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
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
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 "[d]epending on the strength ofthe defense's showing." Id. (citing
CrR 4.7(b)(l), (b)(2)(viii), (g); In re Pers. Restraint ofHutchinson, 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 diminished capacity requires an expert diagnosis of a mental
disorder and expert opinion testimony connecting the mental disorder to the
defendant's inability to form a culpable mental state in a particular case. Atsbeha,
142 Wn.2d at 918.
Clark first contends that he was not required to plead diminished capacity
because Dr. Oneal's expert testimony was not actually diminished capacity
evidence. The record indicates otherwise. Even though trial counsel rejected the
diminished capacity label, the primary intended purpose for Dr. Oneal's testimony
in this case was to rebut the State's mens rea evidence on the basis that Clark's
clinically evaluated intellectual deficits impaired his ability to understand and
assess the risks of his behavior, thereby reducing the likelihood that Clark acted
with a culpable mental state when he shot D.D. As the trial court appropriately
recognized, that is precisely the purpose of diminished capacity evidence. See,
e.g., id.; State v. Greene, 139 Wn.2d 64,73-74,984 P.2d 1024 (1999). The label
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021A
that trial counsel attaches to its proffered evidence cannot change the actual
purpose for which the evidence is offered. Cf Cienfuegos, 144 Wn.2d at 227-28
(considering evidence regarding the defendant's ability to form the requisite
mental state as evidence of diminished capacity even though trial counsel did not
request a diminished capacity instruction). It is clear from the record that the
actual purpose for Dr. Oneal's expert testimony was to establish Clark's
diminished capacity. 7
Clark also argues that Dr. Oneal's testimony was not diminished capacity
evidence because Dr. Oneal would not have testified that Clark "lacked the
capacity or ability to form the requisite mens rea." Pet. for Review at 15. This
argument shows only that even if Clark had pleaded diminished capacity, Dr.
Oneal's testimony might still be inadmissible because it did not meet the relevancy
threshold. It does not change the purpose for which the evidence was offered.
And while Clark argues on review that we should relax the relevancy threshold for
expert testimony of diminished capacity, he does not show it is incorrect or
harmful. See W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters,
180 Wn.2d 54, 66, 322 P.3d 1207 (2014). Our diminished capacity precedent
7 We therefore need not look to cases from other jurisdictions analyzing the admissibly of expert opinion testimony offered for purposes other than establishing diminished capacity. See, e.g., State v. Burr, 195 N.J. 119, 948 A.2d 627 (2008). To the extent Clark argues there were other purposes for Dr. Oneal's testimony, we address that issue below.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
merely sets forth a specific application of the general standard that expert
testimony must be relevant and helpful to the trier of fact, which does not
contravene a defendant's constitutional right to present evidence in his or her own
defense. ER 401, 402, 702; Jones, 168 Wn.2d at 720; Atsbeha, 142 Wn.2d at 917-
18. Moreover, a relaxed relevancy threshold for diminished capacity evidence
would not change the fact that Clark did not plead diminished capacity in this case.
Clark argues in the alternative that we should treat trial counsel's failure to
assert diminished capacity as merely a "pleading failure" that did not warrant
exclusion ofDr. Oneal's testimony. Suppl. Br. ofPet'r at 16 (boldface omitted).
However, on this record, the failure to assert diminished capacity was
unquestionably a purposeful decision by trial counsel. That purposeful decision
has consequences because while the State is always required to prove the
defendant's actual culpable mental state, it is not automatically required to prove
the defendant's capacity to form a culpable mental state; such capacity is presumed
unless the defendant places it at issue. State v. Johnson, 150 Wn. App. 663, 671,
208 P.3d 1265, review denied, 167 Wn.2d 1012, 220 P.3d 208 (2009). Ifthe
defendant does not place his or her capacity at issue but is still allowed to present
expert testimony intended to negate such capacity, the State has no way to
meaningfully respond and the jury is left to evaluate an expert opinion with no
context for assessing its relevance to the elements of charged offenses.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
We do not question the principle that a criminal defendant has the
constitutional right to present evidence in his or her own defense, and relevant
observation testimony tending to rebut any element of the State's case, including
mens rea, is generally admissible. However, expert opinion testimony that a
defendant has a mental disorder that impaired the defendant's ability to form a
culpable mental state is, by definition, evidence of diminished capacity. And
where, as here, the defense does not plead diminished capacity, such testimony is
properly excluded.
2. Dr. Oneal's testimony was not admissible to explain Clark's affect during testimony
In addition to rebutting the State's mens rea evidence, the defense contends
that Dr. Oneal's testimony should have been admitted for the purpose of explaining
Clark's unusually flat affect while testifying. We do not rule out the possibility
that expert testimony regarding a defendant's mental disorder may be introduced
for purposes other than establishing diminished capacity, and admissibility for one
purpose is not necessarily determinative of admissibility for another. Astbeha, 142
Wn.2d at 917 (admissibility of expert testimony, including testimony about a
defendant's mental disorders, is determined according to the Rules ofEvidence).
However, Clark does not point to anything in Dr. Oneal's proposed testimony that
would have helped the jury understand Clark's unusual affect, or that would even
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021~4
support the proposition that Clark had an unusual affect. To the contrary, Dr.
Oneal described "Clark's participation, motivation, focus, [and] effort" as being
"entirely within normallimits." 8 2 VRP (Oct. 4, 2012) at 276. The jury had the
ability to evaluate Clark's affect to the same extent it had the ability to evaluate the
affect of every testifying witness, and Clark has not shown that Dr. Oneal's expert
testimony would have been helpful for that purpose.
B. Ineffective assistance of counsel
Clark contends he received ineffective assistance of counsel because trial
counsel did not object when the State was allowed to inform the prospective jurors
that it was not seeking the death penalty. Assuming that Clark's trial counsel
performed deficiently, he does not show prejudice as required by Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus
cannot establish ineffective assistance of counsel. Hicks, 163 Wn.2d at 486-89;
State v. Townsend, 142 Wn.2d 838, 846-49, 15 P.3d 145 (2001).
Considered in the full context of the case, Clark does not show that the
State's remarks and the defense's failure to object were "sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. The jury was repeatedly
and properly informed of its duties, and we presume it followed those instructions.
8 Notably, the trial court stated that it did not notice anything particularly unusual about Clark's affect while he was testifying. 14 VRP (Apr. 16, 2013) at 1795. We are in no position to second~guess that observation.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
!d. at 694-95. When the court made preliminary remarks to the jury panel, it
reminded them that they would be expected to "accept the instructions of the
court" and "base any decision upon the law and the facts uninfluenced by any other
considerations." 5 VRP (Mar. 13, 2013) at 370. After the jury was selected, the
court again reminded them their evaluation of the case must be "based solely on
the evidence and my instructions on the law." !d. at 493. And the court's
instructions on the law properly informed the jury that "[y]ou have nothing
whatever to do with any punishment that may be imposed in case of a violation of
the law. You may not consider the fact that punishment may follow conviction
except insofar as it may tend to make you careful." CP at 277.
There is no indication that the jury disregarded its instructions or paid less
attention to the evidence presented throughout Clark's trial because it was told that
the death penalty was not at issue. Cf State v. Kalebaugh, 183 Wn.2d 578, 586,
355 P.3d 253 (2015) (rejecting the possibility that a trial court's "offhand
explanation of reasonable doubt at the beginning of this case" harmed the
defendant in light of the fact that the jury was repeatedly and properly instructed
on reasonable doubt and the presumption of innocence). There is also no reason to
believe that a contemporaneous objection by defense counsel would have reduced
any potential for prejudice more than the court's proper, written instructions did.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
We thus hold that Clark has not carried his burden of showing prejudice and
therefore has not established ineffective assistance of counsel.
C. Cumulative error
Clark does not show any error, so the cumulative error doctrine does not
apply. Coe, 101 Wn.2d at 789.
CONCLUSION
Expert testimony that a defendant suffered a mental disorder not amounting
to insanity that impaired the defendant's ability to form a culpable mental state is
diminished capacity evidence. The trial court correctly recognized that and
properly excluded Dr. Oneal's expert testimony because Clark did not assert or
plead diminished capacity or show that Dr. Oneal's testimony was otherwise
relevant. We therefore have no reason to revisitAtsbeha's three-part test for
determining whether expert testimony of diminished capacity is admissible in
accordance with the Rules of Evidence. Moreover, the court properly allowed
relevant observation testimony, which the defense relied on in its attempt to rebut
the State's mens rea evidence. Clark does not otherwise show reversible error.
We therefore affirm.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark, No. 92021-4
WE CONCUR:
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
No. 92021-4
GORDON McCLOUD, J. ( dissenting)-Anthony Clark was convicted of first
degree murder of his friend, D.D. 1 The State argued that Clark shot D.D. with
premeditated intent to kill in the course of stealing D.D. 's drugs; Clark admitted that
he shot D.D., but claimed that it was an accident because he thought the gun was not
loaded. Thus, the only question at trial was Clark's mental state. The trial court
therefore permitted the State to present substantial evidence regarding Clark's
premeditated intent. And the trial court ultimately instructed the jury on several
lesser included offenses-intentional second degree murder, reckless first degree
manslaughter, and negligent second degree manslaughter-all defined by mental
states less culpable than premeditation. 2 But it barred Clark from presenting most
of his proffered evidence refuting premeditated intent. Most critically, it excluded
1 D.D. was a minor at the time-initials are used to protect the minor's privacy. 2 See State v. Jones, 95 Wn.2d 616, 621-22, 628 P.2d 472 (1981) (recklessness and negligence are lesser mental states "included" in intent; defendant charged with intentional murder was entitled to manslaughter instruction where evidence of intoxication supported theory that killing was unintentional); State v. Condon, 182 Wn.2d 307, 319, 343 PJd 357 (20 15) (intentional murder is lesser included offense in premeditated murder). 1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
expert testimony about Clark's intellectual disabilities that could have bolstered his
accident defense, reasoning that such testimony is inadmissible unless the defendant
pleads diminished capacity.
The majority approves this distinction between lay and expert testimony. It
holds that lay "observation testimony" regarding Clark's intellectual disabilities was
relevant to rebut the element of mens rea even though Clark did not plead a
diminished capacity defense, but it reaches the opposite conclusion about expert
testimony on Clark's disability. Majority at 8 ("The court ... 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."). Thus, the majority holds that the strongest evidence of Clark's
intellectual disabilities-a psychologist's testimony that Clark had developmental
disabilities, exceedingly low intelligence quotient (IQ) scores, and a diagnosis of
mild mental retardation-was inadmissible to support the defense's accident and/or
lesser included offense theories. 2 Verbatim Report of Proceedings (VRP) (3.5
Hr'g) (Oct. 4, 2012) at 268-74,314,283.
This distinction is illogical and violates the constitutional right to present a
defense. I respectfully dissent.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
I. The Trial Court Admitted Certain Lay Observation Testimony Supporting the Defense, but Excluded the More Neutral, More Persuasive Medical Expert Testimony Supporting the Same Defense Theory
Clark testified that on the morning of the shooting, he was walking from his
apartment to a neighborhood barbecue when he saw D.D.-an acquaintance from
school-standing at a crosswalk. The two talked briefly, and Clark then invited D.D.
over to his apartment.
At the apartment, D.D. opened his coat pocket and showed Clark a .22 caliber
gun and an M&M' s container filled with pieces of crack cocaine, and then asked
Clark to help him sell the drugs. Clark testified that he went upstairs to ask his
neighbors to buy the drugs, but they declined, so Clark came back downstairs and
suggested that he and D.D. pawn his mother's gold necklace for money instead.
According to Clark, the necklace was in a jewelry box on the top shelf of a
bedroom closet. Clark tried but failed to reach the box, so D.D decided to try. He
told Clark to move out of his way. Before climbing up to reach for the box, though,
D.D. disarmed: he pulled the .22 caliber gun out of his coat pocket, removed the
magazme, and handed the gun without the magazine to Clark. D .D. kept the
magazme. Clark testified that as D.D. reached into the closet, still holding that
magazine, Clark sat on the floor and played with the gun. Thinking the gun was
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
unloaded because the magazine was out, 3 Clark aimed it at the ceiling of the closet
and pulled the trigger. The bullet struck D.D. in the back of his head.
Clark claimed that he then tried to resuscitate D.D. 13 VRP (Apr. 15, 2013)
at 1658-59, 1663. He did one compression. !d. at 1663. He then put the magazine
back into the gun and hid both the gun and the drugs inside his toilet. !d. at 1672-
73. (That's where officers later found them.) Clark then went upstairs to ask his
neighbors for help disposing of a body. He testified that he was crying and shaking
at the time. Id. at 1666, 1669. As discussed below, that contradicted his neighbors'
testimony that Clark was oddly calm when talking about the body.
The prosecution argued that Clark was a sophisticated killer, too familiar with
guns to have thought that D.D.'s gun was unloaded just because the magazine had
been removed. 14 VRP (Apr. 16, 2013) at 1764-65. To support that theory, the
State offered testimony by three of Clark's neighbors regarding conversations that
they had with Clark on the day of the shooting. These neighbors all agreed that
Clark asked them to buy or help sell crack cocaine first, and then later asked them
3 Although Clark said that he thought the gun was unloaded at the time he pulled the trigger, he also testified that he knew that guns were dangerous and that he thought the gun was capable of firing a bullet at some point in time. 13 VRP (Apr. 15, 2013) at 1595, 1660 ("Q. Did you, at any time[,] think[ ] that you could fire a bullet out of that gun 7 A. Yes. Q. Did you think it was loaded? A. No.").
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
to help him dispose of a body. Specifically, they all testified that Clark told them
that a friend had given him the cocaine to sell so that he could buy school clothes-
even though Clark was no longer in school. 8 VRP (Mar. 19, 2013) at 848, 854,
904-05; 9 VRP (Mar. 20, 2013) at 1002-07, 1026-27. Some said that Clark then left
and came back to talk about the body; others said that Clark stayed and talked about
the body. 8 VRP (Mar. 19, 2013) at 850-53; 9 VRP (Mar. 20, 2013) at 1007-08,
1032. Two neighbors testified that Clark said he "popped" the person in the head
with a "deuce deuce." 8 VRP (Mar. 19, 2013) at 851, 853, 907. All three neighbors
recounted that Clark said he did that because that person was hitting "his baby's
mom" and that he was taught never to let anyone harm his baby's mom-even
though Clark had no children. 8 VRP (Mar. 19, 2013) at 850; 9 VRP (Mar. 20, 2013)
at 1035. Despite Clark's confession, the neighbors remained unsure whether Clark
was joking, partly because of his oddly calm demeanor and partly because he
sometimes said he was joking. 8 VRP (Mar. 19, 2013) at 850-51, 863-64, 894,906-
07, 912; 9 VRP (Mar. 20, 2013) at 1010. But Clark eventually took one neighbor to
the garbage can behind their apartment building and showed herD .D.'s hidden body.
8 VRP (Mar. 19, 2013) at 863-66, 894, 912; 9 VRP (Mar. 20, 2013) at 1012.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
The trial court did permit Clark to present lay testimony that he was in high
school "beyond normal age" and attended special education classes. VRP (Dec. 17,
20 12) at 20-21. As discussed further below, though, the trial court excluded the bulk
of the defense-proffered evidence on Clark's diagnoses of "mild mental
retardation"-evidence from a neutral expert witness. 2 VRP (3.5 Hr'g) (Oct. 4,
20 12) at 314. On the basis of the testimony about learning problems alone, though,
the defense argued-apparently not persuasively-that Clark had below average
intelligence and simply mishandled the gun:
Would I characterize Anthony as a man? No. You're talking about, at the time, a 20 year old who had just graduated from special education .
. . . As far as he knew at the time, the bullets had been removed from the gun ... which is probably exactly what [D.D.] thought when he handed that to Anthony. And he probably did that knowing that Anthony's not your average 20 year old.
15 VRP (Apr. 17, 2013) at 1816, 1826 (emphasis added).
The defense sought to bolster the lay testimony supporting its accident theory
with the far more persuasive testimony of Dr. Brent Oneal, a psychologist who
personally evaluated Clark and diagnosed him with "mild retardation." 2 VRP (3.5
Hr'g) (Oct. 4, 2012) at 260, 314. The State acknowledged that this testimony tended
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
to rebut the element of mens rea, but moved to exclude the testimony anyway,
arguing that it would be too confusing for jurors in the absence of a diminished
capacity defense:
[T]he jurors would likely be confused about how to evaluate [Dr. Oneal's] evidence. They would wonder whether a "mentally retarded" person is able to form a specific intent like a person of normal intelligence. Such confusion is both needless and patently unfair to the State where the defense has not raised a diminished capacity defense.
Clerk's Papers (CP) at 218. The defense responded that Dr. Oneal's testimony was
also relevant to "support a finding of recklessness or criminal negligence" as
opposed to premeditated intent because the diagnosis and associated explanation
made it less likely that Clark knew or understood the risks posed by firing the gun.
CP at 225.
The trial court agreed with the State. It allowed certain lay testimony
regarding Clark's intellectual deficits and gave lesser included offense instructions
on manslaughter (reckless and negligent), but it excluded Dr. Oneal's more
educated, more neutral medical testimony on the same point as unduly confusing in
the absence of a diminished capacity defense.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
II. The Majority Approves This Distinction between Lay and Expert Testimony Because It Erroneously Equates All Expert Testimony about Intellectual Deficits with a Diminished Capacity Defense
"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." State v. Furman, 122 Wn.2d 440, 454, 858 P.2d 1092
(1993) (citing State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973)). The
majority is correct that in order to assert a diminished capacity defense, a defendant
must meet two threshold criteria: ( 1) the defendant must present "substantial
evidence of such a condition" and (2) "the evidence must logically and reasonably
connect the defendant's alleged mental condition with the asserted inability to form
the required specific intent to commit the crime charged." Ferrick, 81 Wn.2d at 944-
45); State v. Griffin, 100 Wn.2d 417,419, 670 P.2d 265 (1983).
If Clark had offered Dr. Oneal's testimony as evidence that he lacked the
capacity or ability to act intentionally when he shot D.D., then I might agree with
the majority that it was properly excluded. The reason is that Dr. Oneal did not
testify that Clark was incapable of intentionally shooting D.D. and thus his
testimony would likely not satisfy the second prerequisite to asserting a diminished
capacity defense. But, as explained above, Clark did not offer Dr. Oneal's testimony
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
to establish a diminished capacity defense-he offered it to bolster his accident
theory. In other words, Clark never argued that he was incapable of shooting D.D.
intentionally; he argued that he did not in fact intend to shoot him.
The majority fails to appreciate this distinction. Relying on State v. Atsbeha,
142 Wn.2d 904,918, 16 P.3d 626 (2001) and State v. Greene, 139 Wn.2d 64,73-74,
984 P.2d 1024 (1999), the majority concludes that expert testimony-i.e., a
"clinical[] evaluat[ion]"-advances a diminished capacity defense any time it shows
that "intellectual deficits impaired [a defendant's] ability to understand and assess
the risks of his behavior, thereby reducing the likelihood that [he] acted with a
culpable mental state." Majority at 10. But neither case stands for this principle.
Atsbeha addressed expert testimony that the defendant could intentionally deliver
drugs but harbored a delusion that he was cooperating in a sting operation with the
undercover officer who asked him to make the delivery. 142 Wn.2d at 907-08, 910-
11. It held that this testimony was relevant to an insanity defense, but not to a
diminished capacity defense (because it did not negate specific intent). Id. at 920.
And Greene held that testimony regarding the defendant's dissociative identity
disorder (DID) was properly excluded as unhelpful because, given the state of the
relevant science at the time, "it was not possible to reliably connect the symptoms
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
of DID to the sanity or mental capacity of the defendant." 139 Wn.2d at 79. These
cases are straightforward applications of our Evidence Rules in the context of
insanity and diminished capacity pleas. They do not limit the other purposes for
which a defendant might admit expert testimony on his cognitive abilities. In other
words, diminished capacity evidence is a subset of evidence concerning cognition
and mens rea. But cognition and mens rea are far bigger categories.
III. By Excluding Defense Evidence That Could Rebut the State's Evidence on the Element ofMens Rea, the Trial Court Violated Clark's Constitutional Right To Present a Defense
"Few rights are more fundamental than that of an accused to present witnesses
in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973). That right is based on the right to due process oflaw (U.S.
CONST. amend. XIV; CONST. art. I, § 3) and the rights of an accused in a criminal
proceeding (U.S. CONST. amend. VI; CONST. art. I,§ 22). State v. Jones, 168 Wn.2d
713, 720, 230 P.3d 576 (2010) ("'The right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity to defend against the State's
accusations."' (quoting Chambers, 410 U.S. at 294)).
To be sure, this right to present evidence extends only to relevant evidence.
State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983). But evidence is relevant if
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
it tends to make more or less probable the existence of any fact that is of consequence
to the outcome. ER 401. In this case, the trial court concluded that Dr. Oneal's
testimony was not relevant unless it was offered to support a diminished capacity
defense. The majority affirms because it concludes that Clark really was advancing
such a defense, even though he did not formally plead it-indeed, Clark specifically
denied it.
For the reasons given in Part II above, I disagree with that conclusion; Clark's
accident defense was not the same thing as a diminished capacity defense. Thus,
this case requires us to answer the following question: Where a defendant offers
expert testimony regarding his or her intellectual deficits to rebut the State's theory
of motive or intent, do the prerequisites to the presentation of a diminished capacity
defense still apply?
This is a question of first impression in Washington, but the New Jersey
Supreme Court has addressed it. In State v. Burr, the State charged Burr, a piano
teacher, with sexual assault and endangering the welfare of a child based on
allegations that he had fondled one ofhis students. 195 N.J. 119, 122, 948 A.2d 627
(2008). As proof of Burr's sexual deviance, the State presented evidence that Burr
would often allow his students to sit on his lap. !d. at 125. To rebut the resulting
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
inference that he was intentionally grooming these students for sexual abuse, Burr
offered evidence that he suffered from Asperger' s Syndrome and that, as a result of
this condition, he had a limited understanding of what constitutes basic and
appropriate social interactions between adults and children. Id. at 129. He also
offered that evidence to assist the jury in assessing his unusual demeanor at trial. I d.
The trial court excluded this evidence, ruling that such evidence was admissible only
to support a diminished capacity defense, which Burr was not seeking. !d. The New
Jersey Supreme Court reversed, explaining that even though Burr was not seeking a
diminished capacity defense, evidence of this condition remained relevant and
therefore should have been admitted to support his claim of innocence. Id. at 129-
30. As the court explained, evidence of Burr's developmental condition was so
highly relevant and significant to his claim of innocence that it "def[ied] specific
enumeration." Id. at 130.
Evidence of Clark's substantial intellectual deficits and mild mental
retardation diagnosis was equally relevant and significant to his argument that
D.D.'s death was an accident or, alternatively, that it was not premeditated or
intentional. To convict Clark of first degree murder, the State had to prove
premeditated intent beyond a reasonable doubt. All Clark needed to do was cast
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
doubt on the State's evidence of premeditated intent. He could also show that the
homicide was an accident (and not premeditated or intentional or reckless). Clark
tried to do both by testifying that he believed the gun was unloaded at the time of
the shooting and that he did not recognize the substantial risk involved in pulling the
trigger without first checking the chamber for a bullet. The defense focused on
Clark's poor reasoning abilities. Evidence that he was mentally retarded with an
exceedingly low IQ score (scoring in the bottom first and second percentile of others
his age in perceptional reasoning, working memory, and verbal comprehension) was
certainly relevant to his claim. Evidence of Clark's mental process was also relevant
because it rebutted the State's evidence of premeditated intent. See State v. Sexton,
311 N.J. Super. 70, 88, 709 A.2d 288 (1998) (holding in an analogous shooting case
that evidence of the defendant's limited mental ability and his status as a special
education student was relevant to his credibility about whether he actually believed
the gun was unloaded and whether he acted recklessly), aff'd on other grounds, 160
N.J. 93, 733 A.2d 1125 (1999).
Thus, I would hold that the trial court erred by excluding expert testimony
about Clark's intellectual deficits as irrelevant in the absence of a diminished
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
capacity defense. 4 Jones, 168 Wn.2d at 720-21 (exclusion of defense-proffered
evidence that effectively precludes a criminal defendant entirely from being able to
present his version of the events or establishing his innocence violates his or her
right to present a defense). Based on the analysis above, the evidence was highly
relevant and its exclusion violated not just the Rules of Evidence but also the right
to present a defense.
IV. The Exclusion of Expert Testimony on Clark's Mild Mental Retardation Was Not Harmless Error
A trial court's decision to exclude defense evidence in a criminal trial is
generally subject to harmless error analysis under the '"overwhelming untainted
evidence' test." State v. Lord, 161 Wn.2d 276, 295, 165 P.3d 1251 (2007) (quoting
State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002) (citing State v. Guloy, 104
Wn.2d 412, 426, 705 P.2d 1182 (1985))). Under that test, error is harmless if the
4 The United States Supreme Court has held that where state evidentiary rules bar evidence of a defendant's diminished capacity to form the requisite mens rea as irrelevant absent a full-fledged insanity defense, then that state court can exclude such evidence under its state evidentiary rules without violating the federal right to present a defense. Clark v. Arizona, 548 U.S. 735, 760-79, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006). But our state laws make such evidence relevant and admissible where, as here, they bear on the defendant's mens rea and rebut the State's evidence of mens rea. The Supreme Court's holding in Clark is therefore inapplicable here. See id. at 772-78 (concluding, that if a State has such a rule barring a defendant's mental disease and incapacity evidence, then that rule might be a sufficiently "good reason" to satisfy federal due process requirements). This is likely the reason that neither party cited it.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
untainted, admitted evidence is so overwhelming as to necessarily lead to a finding
of guilt. !d. at 296. "[E]rror is not prejudicial if the evidence is of minor significance
when compared to the overall weight of the evidence." !d. (citing State v. Bourgeois,
133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). Where, as here, the error is of
constitutional magnitude, however, the error is deemed harmless only if the State
proves '"beyond a reasonable doubt that any reasonable jury would have reached the
same result without the error."' Smith, 148 Wn.2d at 139 (citing State v. Whelchel,
115 Wn.2d 708, 728, 801 P.2d 948 (1990))).
At trial, the State's theory was that Clark lured D.D. to his apartment to kill
him and steal his drugs. Clark denied that he premeditated or intended the killing
because he thought the gun was not loaded. Clark also denied that he acted
recklessly, claiming that he did not recognize the substantial risk involved in
pointing a gun that he believed was unloaded at someone and then pulling the trigger
without first checking to see if a bullet was chambered.
The State presented evidence in support of its theory that showed that Clark
had at least some knowledge about guns (or gun rhetoric). He referred to the .22
caliber gun as a "deuce deuce," called the magazine a "clip," acknowledged that
guns were dangerous, admitted that he thought the particular gun was capable of
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
shooting a bullet, and was able to insert the magazine back into the gun before hiding
it in his toilet. The jury also heard that Clark had graduated from high schooV that
he confessed to shooting D.D. because D.D. had struck his fictitious "baby's mom,"
and that Clark was strangely calm during that confession.
To rebut the State's evidence that he was a cold, calculated killer, Clark
offered lay and expert testimony about how he was slow and did not process
information the way other people his age did. But the trial court excluded most of
it. It barred all testimony from Dr. Oneal about Clark's substantial intellectual
deficits. 6 Dr. Oneal would have testified, based on his personal testing and
evaluation of Clark, that Clark was born prematurely and with significant
developmental delays, was highly suggestible and therefore prone to change his
story when pressured, and had a very low IQ score indicating that he had extremely
poor perceptional reasoning, working memory, and verbal comprehension skills
compared to others his age. 2 VRP (3.5 Hr'g) (Oct. 4, 2012) at 268,271-74, 283.
5 The jury was not informed that Clark had not technically graduated from high school; he only aged out.
6 The trial court also barred certain lay testimony from Clark's mother on this same topic. She would have confirmed that he was in special education since he was four years old, that his so-called friends would take advantage of him because of his limitations, and that he could not drive because he could not pass the driver's license exam despite several attempts. 11 VRP (Mar. 26, 2013) at 1373-74.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
The only evidence the trial court clearly permitted the jury to hear about
Clark's intellectual deficits was that he was enrolled in special education with an
individualized education plan (but not how long or why he was on it); that neighbors
thought he was slow (but not the expert testing to show exactly how slow he really
was); and that he was on Social Security disability (but not that he was on it because
of his mild mental retardation diagnosis). 7 In essence, the trial court excluded the
most neutral, educated, and meaningful evidence about Clark's intellectual deficits.
The only real issue in this case was intent. The trial court excluded proffered
defense evidence that was directly relevant to mens rea and that rebutted the State's
evidence of premeditation. The error might well have affected the outcome. We are
especially certain of this given the fact that the trial court felt that there was sufficient
evidence of mental states less culpable than premeditation to support jury
instructions on intentional, reckless, and negligent homicide. CP at 288-95. I would
therefore conclude that the trial court's error was not harmless under either the
evidentiary or constitutional standards.
7 It was unclear from the court's different rulings whether it would have allowed Clark to testify about the reason he was on Social Security disability (i.e., because of his mild mental retardation diagnosis). 7 VRP (Mar. 18, 2013) at 660-63.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)
The trial court improperly excluded evidence of Clark's intellectual deficits
in violation of the Evidence Rules and Clark's constitutional right to present a
defense. This error was not harmless. I therefore respectfully dissent.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Clark (Anthony Tyrone), No. 92021-4 (Gordon McCloud, J., dissenting)