State v. Smissaert

706 P.2d 647, 41 Wash. App. 813, 1985 Wash. App. LEXIS 2886

• Court: Court of Appeals of Washington
• Decided: September 23, 1985
• Docket: 12349-1-I
• Status: Published

Opinions

Williams, J.

Dwight Douglas Smissaert was convicted by jury verdict of felony murder in the first degree, committed while armed with a deadly weapon. On August 25, 1980, judgment was entered and Smissaert was sentenced to a maximum term of 20 years in prison. He did not appeal. On October 5, 1982, the trial court entered an amended judgment (nunc pro tunc to August 25, 1980) and sentenced Smissaert to life in prison. On October 14, 1982, Smissaert filed a notice of appeal in this court, which was dismissed by an unpublished opinion on the ground that it was not timely. The Washington State Supreme Court in State v. Smissaert, 103 Wn.2d 636, 694 P.2d 654 (1985) reversed the Court of Appeals and reinstated the appeal.

At his trial Smissaert testified that he and 16-year-old Tom Malone entered 76-year-old Faye Doyle's home while Doyle slept one night. Malone stabbed Doyle 47 times, causing her death. The two boys then left, taking Doyle's purse which contained $15. Smissaert's defense was voluntary intoxication. Several witnesses testified regarding the amount of alcohol he had consumed on the day of the murder; several witnesses for the State testified that Smissaert was not intoxicated prior to leaving for Doyle's home.

The first issue is whether the trial court erred by refusing to allow Smissaert to present expert testimony concerning intoxication, specifically, that of Dr. James Smith, who would have given an opinion as to whether Smissaert was intoxicated at the time of the crime and whether the intoxication would have impaired his judgment. To convict Smissaert of first degree felony murder, the State had to prove the mental element necessary for the underlying felony, first degree burglary. State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983). Smissaert argues that Dr. Smith's testimony was necessary to establish the proposition that because of his intoxication he could not formulate the necessary intent to commit the burglary.

The admission of expert testimony is within the sound discretion of the trial court, and will not be disturbed on appeal unless there is a manifest abuse of discretion. State v. Brown, 17 Wn. App. 587, 564 P.2d 342 (1977). The doctor was prepared to testify essentially that a person of Smissaert's background and weight, who had smoked marijuana on the evening of the crime and had consumed (a) two 12-ounce containers of beer during the afternoon, (b) three or four 12-ounce containers of beer between 4 and 6 p.m., (c) one-third of a fifth of Southern Comfort between 6 and 9 p.m. and, (d) two 12-ounce containers and two glasses of beer between 9:30 p.m. and 1:30 a.m., would have a severe impairment of his mental functions.

Although the trial court did not articulate its reasons for excluding the evidence, its decision can be affirmed because the expert's testimony was simply unnecessary. If the issue involves a matter of common knowledge about which inexperienced persons are capable of forming a correct judgment, there is no need for expert opinion. Gerberg v. Crosby, 52 Wn.2d 792, 329 P.2d 184 (1958); accord, Ward v. J.C. Penney Co., 67 Wn.2d 858, 410 P.2d 614 (1966). Numerous witnesses including the defendant testified as to the quantity of alcohol consumed as well as its effect. Certainly the effects of alcohol upon people are commonly known and all persons can be presumed to draw reasonable inferences therefrom especially those who saw Smissaert at the critical time. The defendant was fully able to argue diminished capacity to the jury, the trial court having properly instructed that it could consider Smissaert's intoxication in determining his mental state.¹ The trial court did not abuse its discretion.

The second issue is whether the trial court erred by allowing the prosecution to impeach Smissaert with evidence of his prior second degree burglary conviction. The decision whether to admit prior convictions for impeachment purposes is within the discretion of the trial court, State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980) and, at the time of Smissaert's trial, it was not necessary for the trial court to articulate its ruling on the record. State v. Thompson, 95 Wn.2d 888, 632 P.2d 50 (1981).² The evidence was properly admitted because it was important for the jury to be able to fully evaluate Smissaert's credibility, only he and his unavailable accomplice knowing what really happened at the Doyle residence.

Affirmed.

Webster, J., concurs.

1 Smissaert complains that the trial court misread the instruction. Nothing was said about it to the trial court and the correct instruction was given to the jury to read. The error, if any, was harmless.

2 It is now mandatory for the trial court to state on the record the factors which favor admission or exclusion of prior conviction evidence. State v. Jones, 101 Wn.2d 113, 677 P.2d 131 (1984). But, this requirement is not retroactive. State v. Rhoads, 101 Wn.2d 529, 681 P.2d 841 (1984).