State v. Jennings

502 P.3d 1255

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE FEBRUARY 3, 2022 SUPREME COURT, STATE OF WASHINGTON FEBRUARY 3, 2022 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 99337-8 Respondent, ) ) v. ) En Banc ) JUSTIN NICHOLAS JENNINGS, ) ) Petitioner. ) Filed : February 3, 2022 _______________________________________)

MADSEN, J.—Justin Jennings was convicted of felony murder and unlawful

possession of a firearm for the killing of Chris Burton. At trial, the court held that a

toxicology report showing Burton had methamphetamine in his system at the time of

death was inadmissible because it was irrelevant and speculative. Jennings appealed,

arguing the exclusion of the report violated his constitutional right to present a defense.

The Court of Appeals affirmed. Jennings sought review of that decision and also

challenges his sentence in light of this court’s recent decision in State v. Blake, 197

Wn.2d 170, 481 P.3d 521 (2021). No. 99337-8

We affirm the Court of Appeals’ holding that the trial court’s exclusion of the

toxicology report did not violate Jennings’ right to present a defense. However, we

clarify the test that applies to a claimed constitutional violation of the right to present a

defense. In addition, we vacate Jennings’ sentence and remand to the trial court for

resentencing in light of Blake.

FACTS

On May 6, 2017, Jennings went with his friend, Lance Redman, to retrieve

Redman’s car from a mobile home that Redman had moved out of the day before. When

they arrived, Jennings and Redman approached Gary Tongedahl and Burton, who were

working on a car in the front yard. According to Tongedahl, Jennings and Redman had

bandanas pulled over their faces. Redman asked where his car was. Burton said that he

did not know. Redman pulled out a gun and said that they needed to go inside to figure

things out.

Both Jennings and Redman carried a can of bear mace in one hand and a gun in

the other. According to Jennings, he was on high alert as he entered because he had been

made aware of two incidents of assault that had occurred at the mobile home on May 4

and 5. All four men entered the mobile home. Inside, Burton and Redman continued to

argue about the location of Redman’s vehicle. Redman had his gun clearly displayed as

they argued. Redman and Burton charged at each other, and they began to wrestle.

According to Jennings, both Redman and Burton appeared to be high on

methamphetamine. Jennings could not see Redman’s or Burton’s hands as the two men

wrestled.

2 No. 99337-8

During the altercation Jennings stepped forward and sprayed bear mace that struck

both Redman and Burton. This caused Redman and Burton to separate. Burton turned

and took a step toward Jennings. Jennings took a few steps back and then fired two shots

at Burton. According to Albert Duane, who was also present at the time of the shooting,

Jennings said, “I got you, dog,” before running with Redman out the back door. 6 Report

of Proceedings (June 7, 2018) at 990. Burton died shortly thereafter. A toxicology report

revealed Burton had a high level of methamphetamine in his system.

Jennings was charged with murder in the second degree (count I), felony murder

(count II), and unlawful possession of a firearm in the first degree (count III). Jennings

pleaded guilty to the charge of unlawful possession of a firearm in the first degree.

At the pretrial conference, the State moved to exclude questions to the medical

examiner regarding the impact that a high level of methamphetamine might have had on

the victim as speculative. Jennings argued that the toxicology report was relevant

because it corroborated his observation that the victim was high on methamphetamine at

the time of the shooting. The trial court excluded the toxicology report under ER 403.

The jury found Jennings guilty of manslaughter in the first degree and felony

murder, with each count carrying a firearm enhancement. The manslaughter conviction

was vacated as it merged with the murder conviction. Jennings was assigned an offender

score of 8 for the murder charge and a score of 7 for the unlawful possession of a firearm

charge, which included two prior convictions for possession of a controlled substance.

Jennings appealed, arguing that the trial court’s exclusion of the toxicology report

violated his constitutional right to present a defense. The Court of Appeals affirmed,

3 No. 99337-8

finding no violation of the right to present a defense. The court added that even if the

trial court abused its discretion under ER 401 and 402, the error was harmless. State v.

Jennings, 14 Wn. App. 2d 779, 790-92, 474 P.3d 599 (2020).

Jennings petitioned for review, arguing the Court of Appeals applied the wrong

constitutional standard in determining whether his right to present a defense was violated

and incorrectly decided that toxicology evidence was irrelevant to corroborate his self-

defense claim. Jennings subsequently asked this court to vacate his sentence and remand

for resentencing in light of Blake. We granted review. State v. Jennings, 197 Wn.2d

1010 (2021).

ANALYSIS

1. Standard of Review

In State v. Arndt, this court clarified the test for analyzing whether the Sixth

Amendment right to present a defense has been violated. 194 Wn.2d 784, 797-98, 453

P.3d 696 (2019); U.S. CONST. amend. VI; see also State v. Clark, 187 Wn.2d 641, 648-

49, 389 P.3d 462 (2017). First it analyzed the trial court’s evidentiary rulings for abuse

of discretion. Arndt, 194 Wn.2d at 798-812. Concluding the evidentiary rulings did not

constitute abuse of discretion, the court considered de novo whether the exclusion of

evidence violated the defendant’s constitutional right to present a defense. Id. at 813.

In this case, the Court of Appeals acknowledged the two-part test as laid out in

Arndt but stated, “[I]n this case we address the constitutional question first because if

there were a constitutional violation, there is no need to address whether an evidentiary

error has occurred.” Jennings, 14 Wn. App. 2d at 789.

4 No. 99337-8

The State argues that the Court of Appeals applied the Arndt standard correctly

when it analyzed the constitutional issue before addressing the trial court’s evidentiary

ruling. According to the State, “this Court made clear in Arndt that in all cases, both

parts must be analyzed.” Suppl. Br. of Resp’t at 15 (citing Arndt, 194 Wn.2d at 797-98).

Although Arndt lays out different standards of review for Sixth Amendment

questions and evidentiary rulings, at no point did the court state that both parts must be

analyzed in every case. In fact, the court began by analyzing each of the trial court’s

evidentiary rulings and analyzed whether the exclusion of evidence violated the

defendant’s right to present a defense only after concluding those rulings were not

erroneous. Arndt, 194 Wn.2d at 798-812.

The Court of Appeals’ concurrence succinctly explains why this order makes

sense:

There are three possible scenarios. If the trial court abused its discretion in making an evidentiary ruling, and the ruling was prejudicial to the defendant, we would avoid the constitutional issue altogether. On the other hand, if the abuse of discretion constituted harmless error, we would address the constitutional standard. Lastly, if the trial court did not abuse its discretion, then we would review the constitutional issue.

Jennings, 14 Wn. App. 2d at 800-01 (Melnick, J., concurring) (footnote omitted).

2. The Trial Court Did Not Abuse Its Discretion by Excluding the Victim’s Toxicology Report

Trial courts determine whether evidence is relevant and admissible, and appellate

courts review the trial court’s rulings for abuse of discretion. State v. Brockob, 159

Wn.2d 311, 348, 150 P.3d 59 (2006) (citing State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d

236 (2001)). A trial court abuses its discretion if “‘no reasonable person would take the

5 No. 99337-8

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)).

Relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” ER 401. In addition, ER 403 states that

“[a]lthough 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.”

In this case, the trial court ruled that the toxicology report would invite speculation

and mislead the jury. The court relied on State v. Lewis, which held that an expert’s

testimony discussing the general effects of methamphetamine was speculative and

irrelevant because the wide range of effects of methamphetamine on different individuals

made it impossible for the expert to know how the drug might have affected the victim.

141 Wn. App. 367, 389, 166 P.3d 786 (2007); see also Gerlach v. Cove Apts., LLC, 196

Wn.2d 111, 123, 471 P.3d 181 (2020) (affirming the trial court’s exclusion of an expert’s

testimony about BAC (blood alcohol concentration) results because it would be

speculative and would risk prejudicing the jury).

The trial court here expressed concern that allowing the toxicology report would

essentially allow an unqualified expert, the defendant, to express an opinion about how

methamphetamine affected the victim when even a qualified expert would not be able to

6 No. 99337-8

do so. The court was concerned that the toxicology evidence would be unfairly

prejudicial and invite speculation by the jury as to how the methamphetamine in the

victim’s system might have affected his behavior.

The Court of Appeals assumed, without deciding, that even if the trial court’s

ruling was an abuse of discretion, the error was harmless. Jennings, 14 Wn. App. 2d at

792-93.

A key component of Jennings’ self-defense argument was that he reasonably

believed that Burton was high on methamphetamine and that in his experience such

individuals are erratic, aggressive, and violent. Id. Jennings argues that the toxicology

report was relevant to weighing the reasonableness of his fear. He argues that the

toxicology evidence would have corroborated his impression that Jennings was high on

methamphetamine and that the evidence was therefore highly relevant.

To support his argument, Jennings cites to various out-of-state cases that have held

trial courts erred when they excluded toxicology evidence in self-defense cases.1 See,

e.g., Harris v. Cotton, 365 F.3d 552, 557 (7th Cir. 2004) (reversing a conviction because

counsel failed to obtain and present a toxicology report of a victim in a self-defense

case); Newell v. State, 49 So. 3d 66, 72-73 (Miss. 2010) (finding abuse of discretion when

the trial court excluded toxicology results); Cromartie v. State, 1 So. 3d 340, 343 (Fla.

1 Jennings also cites Faust v. Albertson, where this court held that BAC evidence was admissible to corroborate and support the credibility of an individual’s firsthand observations in a civil case. 167 Wn.2d 531, 543, 222 P.3d 1208 (2009). However, Faust relied on a statute that allows for the admission of BAC data in both civil and criminal cases if the proceeding arises out of an act alleged to have been committed by a person who is driving while intoxicated and is thus not particularly relevant here. See RCW 46.61.506.

7 No. 99337-8

Dist. Ct. App. 2009) (holding that the trial court erred by excluding evidence of the

victim’s blood-alcohol level). 2

In Harris, the Seventh Circuit Court of Appeals noted that “an affirmative defense

of self-defense against a drunk and cocaine-high victim stands a better chance than the

same defense against a stone-cold-sober victim.” 365 F.3d at 556. In Cromartie, the

court held that the toxicology report was relevant given that the defendant’s theory of

defense was that the victim was acting in an aggressive manner. 1 So. 3d at 342-43. The

court went on to note that “the jury was deprived of evidence that it might have found

made the appellant’s version of events credible.” Id. at 343.

The State argues that the fact Burton had methamphetamine in his system was

irrelevant because it was only discovered after Burton’s death and thus could have had no

impact on Jennings’ belief when he killed Burton. The State also points to out-of-state

cases where the toxicology report of a deceased victim have been excluded. See, e.g.,

Lawrence v. State, 2015 WY 97, ¶ 19, 354 P.3d 77, 83 (upholding the exclusion of

toxicology evidence in a self-defense case because there was no evidence that the

appellant was aware of the victim’s intoxication); Gill v. State, 296 Ga. 351, 352, 765

S.E.2d 925 (2014) (affirming exclusion of toxicology report as irrelevant because the

defendant could only speculate about the effect the drugs might have had on the victim).

Jennings makes a plausible argument that the toxicology report here was at least

minimally relevant. Jennings’ stated purpose for introducing the report was to

2 The Washington Association of Criminal Defense Lawyers (WACDL) provides additional support in its amicus brief.

8 No. 99337-8

corroborate his own observation that Burton appeared high on methamphetamine at the

time of the incident. Introducing evidence that Burton was in fact high at the time of the

shooting could have bolstered Jennings’ credibility with the jury. Moreover, during

closing argument, the State improperly pointed to the fact that Jennings had no proof of

Burton’s intoxication at the time of the shooting, demonstrating the relevance of the

toxicology report. Jennings’ purpose in offering the toxicology report was to corroborate

his stated belief that the victim was high at the time of the shooting. The toxicology

report could have made a fact of consequence, that Jennings reasonably believed Burton

was high, more probable and thus relevant.

However, the State’s argument that Jennings did not know the effect that

methamphetamine may have had on the victim was also reasonable. Jennings offered no

witness to testify as to the potential effects on the victim or that he had previously

observed the victim under the influence of methamphetamine. Under these facts, a

reasonable judge could conclude that the toxicology report was speculative and might

confuse the jury. Because reasonable minds might differ, we hold the trial court did not

abuse its discretion.

3. The Trial Court’s Decision To Exclude the Toxicology Report Did Not Violate Jennings’ Constitutional Right To Present a Defense

A criminal defendant’s right to present a defense is guaranteed by both the federal

and state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Chambers v.

Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Washington v.

Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Jones, 168

9 No. 99337-8

Wn.2d 713, 720, 230 P.3d 576 (2010). However, the Constitution permits judges to

“‘exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk

of harassment, prejudice, [or] confusion of the issues.’” Holmes v. South Carolina, 547

U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (alterations in original)

(internal quotation marks omitted) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90,

106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)).

If the evidence is relevant, the reviewing court must weigh the defendant’s right to

produce relevant evidence against the State’s interest in limiting the prejudicial effects of

that evidence to determine if excluding the evidence violates the defendant’s

constitutional rights. State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983); State v.

Orn, 197 Wn.2d 343, 353, 482 P.3d 913 (2021).

In this case, the Court of Appeals focused mainly on whether the evidence

presented was the defendant’s “entire defense” and whether the evidence was of “such

high probative value” that no state interest is compelling enough to preclude its

introduction. Jennings, 14 Wn. App. 2d at 790-91. The court relied on Arndt and Jones,

noting that each of these cases discussed whether the exclusion of evidence eliminated

the defendant’s entire defense. Id.

Jennings argues that the Court of Appeals erred by failing to apply the Hudlow

balancing test. Suppl. Br. of Pet’r at 7 n.2. The State argues that the Court of Appeals

applied the correct test when it examined whether the excluded evidence is the

defendant’s “entire defense” and whether it was of ‘““extremely high probative value.”’”

10 No. 99337-8

Suppl. Br. of Resp’t at 11 (quoting Arndt, 194 Wn.2d at 813 (quoting Jones, 168 Wn.2d

at 721)).

Although both Arndt and Jones focused on whether the evidence constituted the

“entire defense” and had “high probative value,” the court’s discussion was based on the

facts of those cases. In each case, the court applied the Hudlow balancing test.

In Hudlow, the defendant sought to introduce evidence of the victims’ past sexual

behavior to support his argument that the victims had consented to have sexual

intercourse. 99 Wn.2d at 4-5. In deciding whether the exclusion of such evidence

violated Hudlow’s right to present a defense, the court “balanc[ed] the defendant’s right

to produce relevant evidence versus the state’s interest in limiting the prejudicial effects

of that evidence.” Id. at 16. The court went on to emphasize that no state interest is

compelling enough to exclude evidence of “high probative value.” Id.

There the State argued that allowing the introduction of the victims’ sexual

behavior could bias the jury and discourage future victims from agreeing to testify. Id.

The court balanced the State’s compelling interest in limiting the prejudicial effects of the

evidence on the jury and the slight relevancy of the evidence and concluded that the trial

court correctly excluded the evidence. Id. at 18. The court went on to note that

excluding the evidence did not deprive the respondents of the opportunity to testify to

their version of the incident. Id.

In Jones, the trial court barred the defendant from introducing evidence based on a

rape shield statute. We acknowledged the Hudlow requirements that evidence be

minimally relevant and the required balancing of the State’s interest and the defendant’s

11 No. 99337-8

need to present information. Jones, 168 Wn.2d at 720. Given the facts of the case, the

court held that the exclusion of evidence effectively barred Jones from presenting his

defense and thus violated his Sixth Amendment rights. Id. at 721. The court’s holding

was not that the Sixth Amendment protects only evidence that is of high probative value,

but rather that evidence of “extremely high probative value . . . cannot be barred without

violating the Sixth Amendment.” Id. at 724.

Similarly in Arndt, the court leaned heavily on the fact that in Jones the excluded

evidence constituted the defendant’s “entire defense” in weighing whether Arndt’s Sixth

Amendment rights were violated. Arndt, 194 Wn.2d at 812-13. But the court reiterated

the proper test: “the State’s interest in excluding evidence must be balanced against the

defendant’s need for the information sought to be admitted.” Id. at 812. The court

determined that Arndt was able to offer evidence in support of her defense theory without

the excluded evidence. Id. at 814.

In State v. Lee, the trial court excluded questions to a witness about a prior false

rape accusation. 188 Wn.2d 473, 480, 396 P.3d 316 (2017). Applying the Hudlow test,

this court found no error because the low probative value of the evidence was outweighed

by the State’s interest in limiting prejudice. Id. at 495. As in Hudlow, the court was

concerned that the excluded testimony would prejudice the jury and prevent future sexual

assault victims from speaking out. Id.

We recently applied the Hudlow balancing test in Orn, 197 Wn.2d at 356-59.

There the court held the defendant’s constitutional right to present a defense had been

violated because the State had not made a showing that the evidence was prejudicial and

12 No. 99337-8

the defendant’s need to present the evidence greatly outweighed any purported state

interest. Id.

Because we find no error in the trial court’s evidentiary ruling, we must balance

Jennings’ right to present toxicology evidence against the State’s interest in limiting the

prejudicial effects of the evidence.

Jennings argues that the toxicology report was crucial because it corroborated his

testimony regarding self-defense.

On the other side of the balancing test, the State argues that the toxicology

evidence would mislead the jury, especially since any expert testimony about the effects

of the drugs in the victim’s system would be inadmissible. The State was concerned that

the jury would make prejudicial inferences, unsupported by the evidence, about the

victim’s actions given his intoxication level. Although the toxicology report would have

corroborated Jennings’ belief that Burton was high on methamphetamine, the jury would

be left to speculate as to the effect the drugs might have had on Burton when determining

whether Jennings’ fear was reasonable.

At its core, the constitutional right to present a defense ensures the defendant has

an opportunity to defend against the State’s accusations. In Hudlow, we observed that

“the integrity of the truthfinding process and [a] defendant’s right to a fair trial” are both

important considerations. 99 Wn.2d at 14. There we noted that the defendant’s evidence

was minimally relevant, but that the defendant had the opportunity to present his version

of the incident, even if some evidence was excluded. Id. at 18. Similarly, in this case the

toxicology report is minimally relevant. Although the excluded evidence would have

13 No. 99337-8

corroborated the defendant’s observations of the victim and bolstered Jennings’

credibility in the eyes of the jury, it was minimally probative.

In Hudlow we made a clear distinction between evidence of the general

promiscuity of a rape victim and evidence that, if excluded, would deprive the defendant

of the ability to testify to their versions of the incident. Id. at 17-18. Similar to Hudlow,

we find a distinction between evidence that merely bolsters credibility and evidence that

is necessary to present a defense. Here, Jennings was still able to testify regarding his

subjective fear and belief that Burton was high on methamphetamine, which was his

theory of the case. Given the State’s interest in avoiding the prejudicial and speculative

effect that the toxicology report might have on the fact-finding process, we conclude that

excluding the report did not deprive Jennings of his constitutional right to present a

defense.

4. We Vacate the Sentences and Remand for Resentencing in Light of State v. Blake

A prior conviction that is constitutionally invalid on its face may not be included

in a defendant’s offender score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719

(1986). In Blake, this court held that RCW 69.50.4013(1), the statute criminalizing

simple drug possession, is unconstitutional.

In this case, the trial court counted Jennings’ prior convictions for drug possession

when calculating his offender score. In light of Blake, those convictions are

constitutionally invalid and cannot be considered in the offender score. Both parties

14 No. 99337-8

agree on this point. We vacate Jennings’ sentence and remand the case to the trial court

for resentencing.

CONCLUSION

We affirm the Court of Appeals’ holding that the trial court’s exclusion of the

toxicology report did not violate Jennings’ right to present a defense. We affirm the

convictions but vacate Jennings’ sentence and remand to the trial court for resentencing

in light of Blake.

___________________________________

WE CONCUR:

_______________________________ ________________________________

_______________________________ ________________________________

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_______________________________ ________________________________

15 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

No. 99337-8

GORDON McCLOUD, J. (concurring in part/dissenting in part)—The

critical issue in this case was self-defense. Justin Nicholas Jennings was charged

with murder for shooting Christopher Burton after an argument over a missing car

became violent. Jennings testified that Burton appeared high on methamphetamine

and that based on Jennings’ experience, people on methamphetamine are more

likely to act aggressively and unpredictably. Jennings further testified that Burton

charged Jennings’ visibly armed friend, appeared to obtain that friend’s gun, and

then began rushing toward Jennings. Jennings concluded that he feared for his life

when Burton rushed toward him and that he shot Burton in self-defense.

At trial, Jennings sought to introduce evidence from a toxicology report

showing that Burton had “a very high level” of methamphetamine in his system at

the time of death. 1 Report of Proceedings (RP) (May 29, 2018) at 95. Jennings

argued this evidence was relevant to corroborate his own perception of danger at

the time he shot Burton. But the trial court excluded the evidence as irrelevant and

speculative.

1 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

Jennings argues that the trial court’s decision to exclude the toxicology

evidence violated his right to present relevant evidence and his Sixth Amendment

right to present a defense. U.S. CONST. amend. VI; see also WASH. CONST. art. I, §

22. I agree with the majority that under this court’s precedent, we analyze a claim

that exclusion of evidence violated the right to present a defense by first analyzing

the exclusion for abuse of discretion. If no abuse of discretion is found, we then

analyze the claim under the Sixth Amendment.

I disagree, however, with the majority’s application of this framework. In

my view, the exclusion of the toxicology evidence that tended to corroborate the

defendant’s own, otherwise arguably self-serving, testimony on the most critical

issue in dispute constituted an abuse of discretion, and that error was not harmless.

And if we proceed to a constitutional analysis, I would conclude that the exclusion

of the evidence violated Jennings’ right to present a defense. Excluding the report

deprived Jennings of his most valuable evidence but produced no corresponding

value to the State except to bolster its case. The Sixth Amendment provides more

protection than that.

I agree with the majority’s conclusions on the Blake 1 resentencing issue. I

therefore respectfully concur in part and dissent in part.

1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). 2 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

FACTS AND PROCEDURAL HISTORY

Jennings accompanied Lance Redman to a friend’s mobile home so Redman

could retrieve a car he had left there. 9 RP (June 12, 2018) at 1307. Gary

Tongedahl and Burton were on the property working on a different car. 5 RP (June

6, 2018) at 787-88. Tongedahl testified that upon arrival, both Redman and

Jennings were visibly armed and wearing bandanas over their noses and mouths.

Id. at 792-94. When Redman didn’t see his car outside, he told the men they all

needed to go inside to figure things out. Id. at 795.

Inside the mobile home, Redman and Burton started to argue. Id. at 802.

Jennings testified that Redman and Burton then scuffled physically. 6 RP (June 7,

2018) at 1020. The fight escalated, and ultimately, Jennings shot and killed Burton.

5 RP (June 6, 2018) at 810, 813; 9 RP (June 12, 2018) at 1332, 1424.

Jennings was charged with second degree intentional murder in count I,

second degree felony murder in count II, and first degree unlawful possession of a

firearm in count III. Clerk’s Papers (CP) at 5-6. He pleaded guilty to the firearm

count but stood trial on the murder charges. CP at 46-55.

At trial, Jennings claimed self-defense: he testified that he shot Burton

because he reasonably feared for his life. 9 RP (June 12, 2018) at 1323-24, 1328,

1337. Jennings explained that based on his life experiences, he had observed

3 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

people who were high on methamphetamine. 8 RP (June 11, 2018) at 1297. He

continued that in his experience, people on methamphetamine tended to exhibit

“rash movements” and “aggressiveness.” Id. Based on Burton’s behavior and

appearance, Jennings believed Burton was “amped up on methamphetamine.” 9 RP

(June 12, 2018) at 1322-24; 8 RP (June 11, 2018) at 1297. Jennings further

testified that Burton was the first aggressor in the scuffle that erupted between

Burton and the visibly armed Redman, and that Burton’s earlier aggression further

confirmed to Jennings that Burton was “not in [his] right mind.” 9 RP (June 12,

2018) at 1322-24. Jennings sprayed bear mace to break up the fight. Id. at 1327-28.

But Burton then turned toward Jennings with his hands up and began to quickly

move toward Jennings. Id. at 1329. At that moment, Jennings believed he saw a

gun in Burton’s hand, 8 RP (June 11, 2018) at 1290, and Jennings began backing

up toward the hallway because he “didn’t want to shoot” Burton. 9 RP (June 12,

2018) at 1331. Jennings testified that he shot Burton when Burton continued to

stride toward Jennings. Id.

Jennings sought to have a medical examiner testify that a postmortem

toxicology exam showed Burton actually did have methamphetamine in his

system. 1 RP (May 29, 2018) at 95; 3 RP (June 4, 2018) at 422. Jennings testified

that based on personal experience, he believed people on methamphetamine are

4 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

more likely to act violently and unpredictably. 9 RP (June 12, 2018) at 1323-24,

1332, 1345, 1423. Thus, Jennings argued that the toxicology evidence was relevant

to his claim of reasonable fear because it corroborated his perception that Burton

was amped up on methamphetamine and that he, Jennings, was in imminent

danger. Pet. for Review at 4.

The trial court excluded the proffered medical examiner testimony. It stated

that allowing the medical examiner to testify about the toxicology results would

necessarily involve the examiner speculating about the specific effect of

methamphetamine on Burton. 1 RP (May 29, 2018) at 98-99. The trial court

appeared to base its decision on both Rules of Evidence (ER) 402 (relevance) and

ER 403 (prejudice), explaining that “it’s irrelevant and it is, in fact, speculative as

to how methamphetamine and what quantity affected this particular person.” Id. at

97.

The jury found Jennings guilty of both first degree manslaughter as charged

in count I and second degree felony murder as charged in count II, each with a

deadly weapon enhancement. CP at 112-15. The trial court vacated the

manslaughter conviction because it merged into the felony murder conviction. Id.

at 144-45. On appeal, Jennings argued that the decision to exclude the toxicology

5 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

evidence violated both his right to present relevant and admissible evidence, and

his Sixth Amendment right to present a defense.

The Court of Appeals affirmed. State v. Jennings, 14 Wn. App. 2d 779, 474

P.3d 599 (2020). Jennings sought review in this court, arguing (in part) (1) that the

toxicology evidence was relevant and admissible to corroborate Jennings’ firsthand

observations of Burton’s intoxicated state and Jennings’ consequent fear and (2)

that the Court of Appeals applied the wrong standard for determining whether

excluding the toxicology evidence violated his Sixth Amendment right to present a

defense. Pet. for Review at 1. 2 We granted review. State v. Jennings, 197 Wn.2d

I. The trial court abused its discretion by excluding the only piece of objective, scientific evidence supporting Jennings’ claim of self-defense; this error was not harmless

A. Exclusion of the evidence constituted an abuse of discretion

To establish self-defense, a defendant must show that they had a

“‘subjective, reasonable belief of imminent harm from the victim.’” 3 The jury

As mentioned above, Jennings also challenges his sentence in light of Blake, 197 2

Wn.2d 170. 3 State v. Grott, 195 Wn.2d 256, 266, 458 P.3d 750 (2020) (quoting State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 (1996), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)).

6 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

must determine whether the belief was “reasonable” “from all the surrounding

facts and circumstances as they appeared to the defendant.” 4 Thus, evidence

corroborating the defendant’s perception of the situation is highly relevant: it has

the “tendency to make the existence of any fact that is of consequence to the

determination of the action”—here, that Jennings’ belief that Burton was amped up

on methamphetamine was objectively reasonable—“more probable or less

probable.” ER 401. As we have previously explained in a similar context, “[b]y

learning of the defendant’s perceptions and the circumstances surrounding the act,

the jury is able to make the ‘critical determination of the degree of force which . . .

a reasonable person in the same situation . . . seeing what [s]he sees and knowing

what [s]he knows, then would believe to be necessary.’” State v. Janes, 121 Wn.2d

220, 239, 850 P.2d 495 (1993) (most alterations in original) (internal quotation

marks omitted) (quoting State v. Wanrow, 88 Wn.2d 221, 238, 559 P.2d 448

(1977) (plurality opinion)).

The evidence at issue in this case—toxicology evidence—is especially

relevant in this situation. It provides objective, unbiased, and scientific

4 LeFaber, 128 Wn.2d at 900 (citing State v. Janes, 121 Wn.2d 220, 238-39, 850 P.2d 495 (1993); State v. Allery, 101 Wn.2d 591, 594, 682 P.2d 312 (1984); State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983) (plurality opinion); State v. Wanrow, 88 Wn.2d 221, 235-36, 559 P.2d 548 (1977) (plurality opinion)).

7 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

corroboration of “‘the defendant’s perception that the victim was, in fact,

intoxicated.’” Swilley v. State, 295 So. 3d 362, 365 (Fla. Dist. Ct. App. 2020)

(quoting Arias v. State, 20 So. 3d 980, 984 (Fla. Dist. Ct. App. 2009)). Numerous

state appellate courts have therefore held that toxicology evidence is relevant and

admissible to corroborate a defendant’s claim of reasonable fear of imminent harm.

Id. (where defendant testified that decedent appeared intoxicated, it was reversible

error to exclude evidence of decedent’s blood alcohol concentration); Newell v.

State, 49 So. 3d 66, 73 (Miss. 2010) (toxicology results were “relevant to show ‘all

the circumstances under which the fatal difficulty occurred, and which would in

any manner . . . indicate the mental state of the deceased’” (alterations in original)

(quoting Byrd v. State, 154 Miss. 742, 123 So. 867, 869 (1929))); Cromartie v.

State, 1 So. 3d 340, 343 (Fla. Dist. Ct. App. 2009) (evidence of decedent’s blood

alcohol level was relevant and especially important given that it was the only

evidence besides defendant’s testimony that supported his claim of self-defense);

Jones v. State, 2009 OK Cr 1, ¶ 40, 201 P.3d 869, 881-82 (evidence that decedents

had drugs in their systems would have “corroborated [defendant’s] testimony that

the group of people he encountered . . . were under the influence of illegal drugs

and acting unusually aggressive, thus causing him to fear for his life and act in

defense of his life”); State v. Ventre, 811 A.2d 1178, 1185 (R.I. 2002) (evidence of

8 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

decedent’s intoxication “should have been admitted since it may have been

relevant even without the support of further expert testimony to establish the

probability that [decedent] may well have been disinhibited by intoxication and

more likely to have engaged in aggressive conduct toward defendant”); State v.

Baker, 88 Ohio App. 3d 204, 212, 623 N.E.2d 672 (1993) (toxicology evidence

was “relevant to the issue of who was the aggressor and . . . the trial court erred in

excluding it”).

The decision in Harris v. Cotton, quoted by the majority, clearly explains the

relevance and probative value of such evidence. 365 F.3d 552, 556 (7th Cir. 2004);

majority at 8-9. In that case, the Seventh Circuit Court of Appeals held that defense

counsel’s failure to obtain and present decedent’s toxicology report constituted

ineffective assistance of counsel because that report would have corroborated

defendant’s claim that he acted in self-defense. 5 Specifically, that court explained

that “an affirmative defense of self-defense against a drunk and cocaine-high

victim stands a better chance than the same defense against a stone-cold-sober

victim.” Id. The Seventh Circuit underscored this conclusion by explaining that

5 The Indiana self-defense law at issue contained the same objective and subjective standards as Washington’s law: “Under relevant state law, a ‘person is justified in using reasonable force against another person to protect [himself] from what [he] reasonably believes to be the imminent use of unlawful force.’” Harris, 365 F.3d at 556 (alterations in original) (quoting former IND. CODE § 35-41-3-2(a) (1979)). 9 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

evidence relating to the decedent’s behavior is “extremely important” in a self-

defense case because it is highly relevant to assessing the reasonableness of the

defendant’s perception of imminent harm. Id. As a result, the Seventh Circuit—

applying the extremely hard-to-satisfy tests of the Antiterrorism and Effective

Death Penalty Act of 1996, 28 U.S.C. § 2254(d)—granted the writ. Id. at 557. It

ruled that the state court’s decision to uphold the conviction was not just incorrect

but “unreasonably” so: “We find that Harris’s right to effective assistance of trial

counsel was violated. We further find that the state court’s treatment of Harris’s

Strickland[6] [ineffective assistance] claim constitutes an unreasonable application

of clearly established federal law. We REVERSE the denial of the writ by the

district court and REMAND with directions to grant the writ . . . .” Id. (emphasis

added).

The same principle applies here, under the much less demanding tests for

determining error and prejudice that we apply on direct appeal in this court.

Jennings testified that right before he shot, he reasonably feared imminent harm

from Burton. Jennings said that his perception that Burton was high on

methamphetamine triggered that fear. Jennings further explained that in his

experience, people on methamphetamine act unpredictably and often aggressively.

6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 10 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

Jennings offered the toxicology report showing that Burton had high levels of

methamphetamine in his system to corroborate his testimony about his own

perceptions and state of mind at the time he shot Burton. This objective evidence

was relevant and highly probative of Jennings’ asserted reasonable fear.

The trial court in this case came to a different conclusion about the

toxicology report’s relevance, admissibility, and value to the defense. It ruled that

the toxicology evidence was irrelevant and speculative based on State v. Lewis,

141 Wn. App. 367, 166 P.3d 786 (2007). In Lewis, a medical examiner testified

that the decedent in a self-defense case had a high level of methamphetamine in his

body. Id. at 386. The defendant offered testimony from the examiner about the

“‘general effects’ of high levels of methamphetamine in some people—that they

can cause aggressive and irrational behavior, depending on the individual’s

tolerance level for the drug.” Id. However, “at that point in the trial, Lewis had said

nothing in his opening statement about a defense theory that [the decedent] was

high on methamphetamine such that it caused him to charge toward Lewis, thus

provoking Lewis’s shooting in self-defense. Nor had Lewis presented any

testimony to support such a theory.” Id. at 388. The medical examiner could not

offer an opinion on how methamphetamine specifically affected the decedent’s

body. Id. at 388-89. The trial court excluded the testimony, concluding that general

11 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

testimony that high levels of methamphetamine may cause aggressive behavior

was irrelevant unless the examiner could also testify as to its specific effects on the

decedent. Id. That court based its determination of relevance in large part on the

fact that the medical examiner could not testify that “‘methamphetamine caused

[the decedent] to act violently.’” Id. (emphasis added) (quoting court papers).

The facts of this case, however, differ from the facts of Lewis in several

critical ways. First, Jennings—unlike Lewis—argued from the outset that he

reasonably feared Burton because he perceived Burton was high on

methamphetamine. 3 RP (June 4, 2018) at 506 (opening statement by defense).

Next, the jury in Jennings’ case—unlike the jury in Lewis’s case—did not even get

to hear the objective fact that Burton had methamphetamine in his system. Cf.

Lewis, 141 Wn. App. at 386. The Jennings trial judge excluded all evidence about

that objective fact on the ground that it would be general and speculative due to its

reliance on guesses about the individualized effects of methamphetamine on

Burton. 1 RP (May 29, 2018) at 96-99; 3 RP (June 4, 2018) at 426.

That brings us to the third major difference between the facts of Jennings’

case and the facts of Lewis’ case: Jennings offered no general, speculative

guesswork of the sort offered by Lewis. Instead, he offered testimony regarding the

objective fact, documented by a scientific test, that there was methamphetamine in

12 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

Burton’s system. See 3 RP (June 4, 2018) at 424-27. “Because the ‘“vital question

is the reasonableness of the defendant’s apprehension of danger,”’ the jury must

stand ‘“as nearly as practicable in the shoes of [the] defendant, and from this point

of view determine the character of the act.”’” 7 Standing in Jennings’ shoes, the

jury would need to view the events from the perspective of someone whose life

experiences had shown that people high on methamphetamine act unpredictably

and aggressively. Suppl. Br. of Pet’r at 13. As Jennings argues, “From this

perspective, the definitive fact that Burton was high on meth[amphetamine] not

only corroborated Jennings’ firsthand account, but it also tended to make more

reasonable his subjective apprehension that he was in serious danger at the time he

shot Burton.” Id. So the result in Lewis is not persuasive in this case with such

critically different facts.

In addition, Lewis misperceived the relevance of toxicology evidence in this

type of case. The Lewis court excluded the evidence in part because the medical

examiner could not testify that “‘methamphetamine caused [the decedent] to act

violently.’” 141 Wn. App. at 388 (emphasis added) (quoting court papers). But

under the evidence rules, evidence is relevant if it has “any tendency to make the

7 State v. Duarte Vela, 200 Wn. App. 306, 319, 402 P.3d 281 (2017) (alteration in original) (quoting Wanrow, 88 Wn.2d at 235 (quoting State v. Ellis, 30 Wash. 369, 373, 70 P. 963 (1902))). 13 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

existence of any fact that is of consequence to the determination of the action more

or less probable than it would be without the evidence.” ER 401 (emphasis added).

Jennings did not seek to prove that methamphetamine caused Burton to act

aggressively. Rather, he was seeking to introduce objective evidence that Burton

had methamphetamine in his system because such evidence would make it more

probable that Jennings reasonably perceived Burton was high on

methamphetamine—and thus that Jennings reasonably feared that Burton might act

aggressively or unpredictably. That’s all that ER 401 and 402 demand.

The State cites Gerlach v. Cove Apartments, LLC, 196 Wn.2d 111, 471 P.3d

181 (2020), to support its argument that the toxicology evidence was irrelevant.

Suppl. Br. of Resp’t at 20. But the facts of Gerlach are even farther afield from the

facts of this case. In that civil case, Gerlach sued an apartment complex, Cove,

because Gerlach fell off the balcony of a Cove apartment due to its decayed railing.

Gerlach, 196 Wn.2d at 115. Cove asserted an affirmative defense under RCW

5.40.060, which provides that it is a defense to a personal injury claim that the

plaintiff was intoxicated at the time of the accident, that the intoxication was the

proximate cause of the accident, and that the plaintiff was more than 50 percent at

fault. Id. at 117. Cove offered evidence of Gerlach’s blood alcohol concentration

(BAC) to “prove Gerlach’s intoxication was a proximate cause of her injuries and

14 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

that she was more than 50 percent at fault.” Id. at 123. The trial court excluded the

evidence. Id. The jury found Cove 93 percent at fault for Gerlach’s injuries. Id. at

115. The Court of Appeals reversed, finding the trial court erred by excluding the

evidence. Id. at 118.

We reversed the Court of Appeals, holding in part that the trial court did not

abuse its discretion in excluding the BAC evidence because it was only minimally

relevant to Cove’s defense. Id. at 116. Gerlach admitted she was intoxicated, thus

conceding the first prong of Cove’s defense. Id. at 125. We held that the BAC

evidence was irrelevant to determining causation or fault because the mere “fact of

intoxication does not prove a person was acting in any particular way.” Id. at 126.

Thus, “without other evidence or testimony that could connect Gerlach’s BAC

results to behavior that caused her [injury], the BAC results were not relevant to

whether her intoxication was a proximate cause of her injuries or to her degree of

fault.” Id.

Gerlach thus differs dramatically from this case. First, the elements of the

defense asserted in that case were very different: Cove’s statutory defense was all

about proximate cause, while Jennings’ self-defense claim required no proof of

proximate cause or allocation of fault. Rather, for Jennings’ defense, “use of force

is lawful and justified where the defendant has a ‘subjective, reasonable belief of

15 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

imminent harm from the victim.’” State v. Grott, 195 Wn.2d 256, 266, 458 P.3d

750 (2020) (quoting State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369

(1996), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91, 217 P.3d

756 (2009)). The defendant’s own perception of danger is key in a self-defense

claim. Jennings did not offer the evidence to prove that methamphetamine caused

Burton to act in any particular way, but rather, because it would serve to

corroborate Jennings’ claim of reasonable fear. See 3 RP (June 4, 2018) at 424-28.

Next, unlike in Gerlach, the defense in this case offered the toxicology

evidence to support Jennings’ testimony about his own observations. Additionally,

unlike in Gerlach, the plaintiff (the State) here made no prior admission that

Burton was intoxicated. In fact, as the majority correctly notes, the State’s closing

argument “improperly pointed to the fact that Jennings had no proof of Burton’s

intoxication at the time of the shooting.” Majority at 9 (citing 10 RP (June 13,

2018) at 1540). That argument allowed the jury to draw the incorrect inference that

Burton was likely not intoxicated—exactly the opposite of the plaintiff’s admission

of intoxication that the jury was able to consider in Gerlach.

To be sure, the majority in this case correctly concludes that the toxicology

report was relevant. But it characterizes this evidence as merely “minimally

probative.” Majority at 14. To the contrary, evidence relevant to establishing the

16 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

reasonableness of a defendant’s fear is “highly probative.” State v. Duarte Vela,

200 Wn. App. 306, 320, 402 P.3d 281 (2017). In this case, the toxicology evidence

was also the only objective, unbiased evidence that supported Jennings’ theory of

self-defense. Cf. Cromartie, 1 So. 3d at 343 (“Particularly because Mr. Cromartie’s

testimony. . . [was] not corroborated by other witnesses, evidence of the victim’s

intoxication could have been critical in bolstering his theory of defense.”); see also

State v. Bolaski, 2014 VT 36, ¶ 56, 196 Vt. 277, 301-02, 95 A.3d 460 (evidence of

decedent’s drug use at time of killing is admissible in “cases where the defendant

alleges self-defense and the circumstances of the death are contested”).

Without such objective corroborating evidence, there is a strong risk that the

jury might discredit the defendant’s testimony “‘on the ground that he had

furnished no corroboration of a story that any accused person might easily

fabricate to support a claim of self-defense.’” Baker, 88 Ohio App. 3d at 208

(quoting McGaw v. State, 123 Ohio St. 196, 200, 174 N.E. 741 (1931)). Indeed, as

the majority points out, the State made that very argument—and underscored the

relevance of the toxicology report in its closing argument statement “that Jennings

had no proof of Burton’s intoxication at the time of the shooting.” Majority at 9

(citing 10 RP (June 13, 2018) at 1540).

17 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

Given the relevance of the toxicology evidence and its critical importance to

Jennings’ defense theory, the trial court’s decision to exclude it constituted an

abuse of discretion. Accord Newell, 49 So. 3d at 73 (in self-defense case, “the

exclusion of [the decedent’s] toxicology results was an abuse of discretion”);

Baker, 88 Ohio App. 3d at 212 (same); see also Harris, 365 F.3d 552 (reversible

error for counsel to fail to obtain and offer toxicology evidence in self-defense

case).

The majority does not necessarily disagree with this approach. It concludes

that this approach to relevance and admissibility is “reasonable” but that the State’s

approach is also “reasonable,” so the trial court could exercise its discretion to

decide admissibility either way. Majority at 10. I understand that many evidentiary

rulings are reviewed for abuse of discretion. But in this case, the State’s argument

that the evidence was irrelevant and speculative is legally unpersuasive. We should

provide guidance to lower courts by following the lead of Harris and the other

decisions discussed above and clearly establishing that toxicology evidence is

relevant and potentially admissible in criminal cases involving a claim of self-

In sum, the toxicology report was highly probative because it corroborated

Jennings’ testimony about his own reasonable fear. Excluding the report deprived

18 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

Jennings of his most valuable evidence—but it produced no corresponding value to

the State except to bolster the State’s case.

B. The error was not harmless

To determine whether a trial court’s abuse of discretion warrants reversal,

we apply the nonconstitutional harmless error standard: a nonconstitutional error

is “‘not prejudicial unless, within reasonable probabilities, had the error not

occurred, the outcome of the trial would have been materially affected.’” State v.

Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham,

93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Here, the record suggests that the

outcome of the trial would have been materially affected if the court had admitted

the toxicology evidence.

The jury heard conflicting versions of the events leading to Jennings

shooting Burton. See, e.g., 5 RP (June 6, 2018) at 806, 881; 6 RP (June 7, 2018) at

1037; 9 RP (June 12, 2018) at 1330-31, 1334. Witnesses could not agree if

Jennings and Redman showed up to the property armed and wearing bandanas or

not. Compare 5 RP (June 6, 2018) at 794-95, with id. at 954. And the surviving

eyewitnesses to the fight offered conflicting testimony on what happened. Jennings

testified as described above. Of the three other surviving eyewitnesses to the fight,

two testified. (Redman exercised his Fifth Amendment rights and did not testify. 4

19 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

RP (June 5, 2018) at 598.) Gary Tongedahl testified that after the scuffle between

Burton and Redman ended, Burton remained standing where he was and did not

make any sudden movements or threats before Jennings shot him. 5 RP (June 6,

2018) at 807, 809. Tongedahl acknowledged, however, that immediately after the

shooting, he had told police that Burton had made a “throwing motion” in

Jennings’ direction right before being shot. Id. at 874. Albert Duane testified that

Redman was the first aggressor in the scuffle between Burton and Redman. 6 RP

(June 7, 2018) at 1020. He initially testified that after the scuffle between Burton

and Redman ended, Burton “pretty much stayed where he was” and then Jennings

shot him. Id. at 988. But on cross-examination, Duane testified that Burton took

five or six steps toward Jennings before Jennings fired. Id. at 1026-27.

Clearly, jurors could question the credibility of all of these witnesses. See

also id. at 1012, 1031 (Duane testifies inconsistently about Jennings’ demeanor

upon entering the mobile home), 988, 1026-27 (Duane testifies inconsistently

about whether Burton moved toward Jennings prior to being shot); 5 RP (June 6,

2018) at 836-41, 873 (Tongedahl is cross-examined about prior inconsistent

statements he made to the police about the incident). To be sure, Jennings’ own

credibility was also at issue: he admitted to having lied in the immediate aftermath

of the shooting and while in jail about whether he was the shooter. 8 RP (June 11,

20 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

2018) at 1285. As discussed above, the prosecutor also attempted to undermine

Jennings’ credibility by arguing that although Jennings testified he believed Burton

was high at the time of the shooting, Jennings “ha[d] no proof of it at that time.” 10

RP (June 13, 2018) at 1540. This was a critical problem. See Harris, 365 F.3d at

557 (“[T]he jury was left with the impression that the decedent was not

intoxicated when, in fact, he was quite inebriated. If the jury believed that [the

decedent] was sober, there is a reasonable probability that they would not have

believed Harris’s version of events as it related to [the decedent’s] behavior.”).

Thus, in this case, the toxicology evidence was “the only unbiased source of

corroboration for [defendant’s] testimony” about his reasonable fear prior to the

shooting. DePetris v. Kuykendall, 239 F.3d 1057, 1059 (9th Cir. 2001). Given the

conflicting testimony and credibility problems of all the testifying eyewitnesses,

admission of the toxicology evidence would have materially changed the outcome

of the trial.

I would therefore hold that the trial court’s erroneous exclusion of the

toxicology evidence was not harmless. I would resolve the case on this basis

without proceeding to a constitutional analysis. However, because the majority

resolves the case on constitutional grounds, I take this opportunity to offer some

observations.

21 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

II. The exclusion of the evidence violated Jennings’ Sixth Amendment right to present a defense, and the error was not harmless

Both the federal and state constitutions protect the right of criminal

defendants to present a complete defense. U.S. CONST. amend. VI; WASH.

CONST. art. I, § 22; Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L.

Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed.

2d 1019 (1967); State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).

I agree with the majority’s clarification of the standard of review for claimed

violations of the Sixth Amendment right to present a defense, specifically, that

where, as here, the appellant raises an ER issue, we begin by reviewing whether

the exclusion of evidence was an abuse of discretion; if the appellant’s ER claim

fails and the appellant also raises a Sixth Amendment issue, then we move to the

constitutional analysis as laid out in Hudlow. However, I disagree with the

majority’s application of the Hudlow analysis to this case. In my view, Jennings’

need to present the toxicology evidence far outweighed the State’s purported

interest in excluding it.

Under the Hudlow test, the defendant must first show that the evidence he or

she seeks to admit is minimally relevant and probative. Hudlow, 99 Wn.2d at 16.

Then, “if relevant, the burden is on the State to show the evidence is so prejudicial

22 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

as to disrupt the fairness of the fact-finding process at trial.” State v. Darden, 145

Wn.2d 612, 621-22, 41 P.3d 1189 (2002) (citing Hudlow, 99 Wn.2d at 15). If the

State fails to show this, the analysis ends, and the exclusion of the relevant,

nonprejudicial evidence violated the defendant’s Sixth Amendment right to present

a defense; that exclusion is then subject to constitutional harmless error analysis.

State v. Orn, 197 Wn.2d 343, 356, 482 P.3d 913 (2021). If the evidence is

prejudicial, the State must show that it had “a compelling interest to exclude [the]

prejudicial or inflammatory evidence,” i.e., an interest that outweighs the

defendant’s need to present it. Darden, 145 Wn.2d at 621 (citing Hudlow, 99

Wn.2d at 15 (explicitly adopting “compelling interest” standard)).

Correctly applying the Hudlow test, exclusion of the toxicology evidence

violated Jennings’ right to present a defense. As discussed above, the toxicology

evidence was undeniably relevant because it corroborates Jennings’ alleged

reasonable fear. The evidence was not unfairly prejudicial, meaning that it did not

pose the risk of impeding the truth-finding process. See Wilson v. Olivetti N. Am.,

Inc., 85 Wn. App. 804, 814, 934 P.2d 1231 (1997) (prejudice is unfair “only if it

has the capacity to skew the truth-finding process” (citing Hudlow, 99 Wn.2d at

12-13)). Jennings did not seek to ask the medical examiner to speculate on how

methamphetamine specifically affected Burton. And the trial court could have

23 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

limited the examiner’s testimony to prevent unnecessary speculation. Jennings also

did not seek to introduce the evidence to prove that Burton actually acted

aggressively. Instead, as discussed, Jennings offered the evidence to corroborate

his claim of reasonable fear. The evidence was not cumulative; it provided

independent, objective corroboration of Jennings’ claim of reasonable fear.

Because the State hasn’t shown that the evidence would unfairly prejudice its case,

we do not proceed to the third step of Hudlow. Instead, we draw the conclusion

compelled by these first two steps: the trial court’s decision to exclude the

toxicology evidence violated Jennings’ right to present a defense.

But even if the toxicology evidence could be characterized as unfairly

prejudicial, the State has not presented any interest—much less a “compelling

interest”—outweighing Jennings’ need to present it. The majority finds a

distinction “between evidence that merely bolsters credibility and evidence that is

necessary to present a defense.” Majority at 14. But as noted, it’s misleading to

characterize the toxicology evidence as “merely” bolstering credibility. Toxicology

evidence is unique in that it provides unbiased, objective corroboration that a

particular substance was found in a decedent’s system. In a trial filled with

conflicting and inconsistent eyewitness testimony, Jennings’ need to present the

jury with such objective corroborating evidence of his perceptions was critical.

24 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

The majority analogizes this case to Hudlow, where the court made a

distinction between “evidence of the general promiscuity of a rape victim and

evidence that, if excluded, would deprive defendant of the ability to testify to their

versions of the incident.” Majority at 14 (citing Hudlow, 99 Wn.2d at 17-18). But

the type of evidence offered and excluded in Hudlow differs dramatically from the

type of evidence offered and excluded in Jennings’ case. In Hudlow, a rape and

kidnapping case, defendant sought to present testimony from a person who claimed

to know information about the sexual histories of the two complaining witnesses.

99 Wn.2d at 5. That proffered testimony differed in objectivity, bias, and relevance

from the scientific evidence confirming that methamphetamine was in Burton’s

system. In Hudlow, the proffered testimony was highly prejudicial and contained

inflammatory and pejorative terms describing the complaining witnesses. Id.

Further, the sexual behavior described by that witness was irrelevant because it

lacked connection to the time or place of the charges against the defendant and

shared no factual similarities to those charges. Id. at 5, 10-11. Therefore, excluding

that testimony did not deprive Hudlow of the ability to present his defense. By

contrast, the toxicology evidence in this case was objective, not inflammatory, and

specifically relevant to the actual events at the time and place of the charges. The

25 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

trial court’s decision to exclude the only consistent corroborating evidence of

Jennings’ version of events deprived Jennings of his right to present a defense.

To assess the impact of this error, we apply the test for constitutional error:

“An error is harmless and not grounds for reversal if the appellate court is assured

[by the State] beyond a reasonable doubt that the jury would have reached the

same verdict without the error.” State v. Romero-Ochoa, 193 Wn.2d 341, 347, 440

P.3d 994 (2019). Because the exclusion of the evidence fails the test for

nonconstitutional harmless error standard as discussed above, it logically fails the

more stringent test for constitutional error. I therefore respectfully dissent from the

majority’s holding regarding the exclusion of the proffered toxicology evidence.

The toxicology evidence was relevant and admissible to support Jennings’

claim of reasonable fear. The trial court’s decision to exclude it constituted an

abuse of discretion, and that exclusion was not harmless. If I needed to reach the

constitutional question, I would hold that the trial court’s decision to exclude the

toxicology evidence violated Jennings’ Sixth Amendment right to present a

defense and that the State has failed to prove that this error was harmless beyond a

reasonable doubt.

26 State v. Jennings (Justin Nicholas), No. 99337-8 (Gordon McCloud, J., concurring in part/dissenting in part)

I agree with the majority’s vacation of Jennings’ sentence and its remand in

light of Blake.

I therefore respectfully concur in part and dissent in part.