Category Archives: Expert Testimony

Diminished Capacity Defense Denied

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In a deeply divided decision of 5-4, = the WA Supreme Court held in State v. Clark that the defendant’s Diminished Capacity defense was properly excluded at trial, even though lay witnesses could testify that the defendant was “slow,” participated in special education, and received Social Security disability benefits.

The defendant Anthony Clark killed the victim, D.D., 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. The State theorized that Clark killed D.D. with premeditation in order to steal D.D.’s gun and cocaine. Clark contended the shooting was an accident. The primary disputed issue was thus Clark’s level of intent.

CHARGES

Clark was charged 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.

PROCEDURAL HISTORY

Before trial, the defense moved to suppress statements Clark made to police after the shooting, contending that he did not validly waive his Miranda rights before speaking to police. To support its motion, the defense offered an expert evaluation from a doctor. 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. However, Clark argued that the doctor’s testimony was admissible for three purposes: (1) to help the jury understand Clark’s affect during testimony, (2) to explain why Clark does not work, and (3) to contest the State’s evidence of intent.

The court granted the State’s motion in part and excluded the doctor’s expert 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.”

JURY TRIAL

At trial, the defense renewed its request to admit the doctor’s expert testimony; arguing that the testimony was necessary to rebut the State’s evidence of intent 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 the doctor’s testimony and reminded counsel that relevant observation testimony by lay witnesses was admissible.

The defense brought testimony that Clark had been in special education, had an individualized education plan, and received Social Security disability benefits. 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 intent to commit murder.

Clark was convicted of premeditated first degree murder as charged, as well as all the other charged counts.

ISSUES ON APPEAL

  1. Did the trial court properly exclude expert testimony regarding Clark’s intellectual deficits?
  2. Was trial counsel ineffective for failing to object when the State informed prospective jurors that it was not seeking the death penalty?
  3. Did cumulative error deprive Clark of his right to a fair trial?

ANALYSIS

1. The Court Properly Excluded Expert Testimony of Diminished Capacity Evidence.

The Court gave background that under ER 702, expert testimony is admissible “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” It also reasoned that 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.” Also, the intent to assert diminished capacity must be declared before trial. Pretrial disclosure is required because when asserting diminished capacity, the defense must obtain a 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 depending on the strength of the defense’s showing,” citing CrR 4.7(b).

Ultimately, the Court rejected Clark’s arguments that his doctor’s expert testimony should have been admitted for the purpose of rebutting the State’s evidence of intent.

“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.”

Additionally, the Court rejected Clark’s arguments that his doctor’s testimony should have been admitted for the purpose of explaining Clark’s unusually flat affect while testifying:

“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.”

2. Defense Counsel Was Not Ineffective for Failing to Object When the State Informed Prospective Jurors It Was Not Seeking the Death Penalty.

The Court gave background that in order 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.”

Here, the Court reasoned there was 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.  Additionally, there was 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. “We thus hold that Clark has not carried his burden of showing prejudice and therefore has not established ineffective assistance of counsel.”

3. Cumulative Error Did Not Deprive Clark of His Right to a Fair Trial.

The Court reasoned Clark does not show any error, so the cumulative error doctrine does not apply.

CONCLUSION.

The Court concluded that Clark’s defense consisted of diminished capacity evidence. With that, the trial court properly excluded expert testimony from Clark’s doctor because Clark did not assert or plead diminished capacity or show that his doctor’s testimony was otherwise relevant. Moreover, the court properly allowed relevant observation testimony, which the defense relied on in its attempt to rebut the State’s evidence of intent. The Court affirmed his conviction.

THE DISSENT.

The dissenting judges reasoned that the trial court admitted certain lay observation testimony supporting the defense, but excluded the more neutral and more persuasive medical expert testimony supporting the same defense theory.  It also reasoned that the majority judges wrongfully equated all expert testimony about intellectual deficits with a diminished capacity defense. Additionally, the dissenting judges reasoned that by excluding defense evidence that could rebut the State’s evidence of intent, the trial court violated Clark’s constitutional right to present a defense. Finally, the dissenters reasoned that the exclusion of expert testimony on Clark’s mild mental retardation was not harmless error:

“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.”

With that, the dissenting judges held that 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; and that this error was not harmless.

My opinion? Diminished Capacity is a worthwhile – and difficult – defense to bring forward. Prosecutors consistently try to preclude defense counsel from bringing the defense. Here, it’s too difficult to determine why defense counsel did not assert the defense from the beginning. We’ll never know.

Unfortunately for Mr. Clark, it the majority court believed Mr. Clark did not properly assert the defense. Instead, it allowed Clark to get some evidence of his mental deficits through law witnesses. This is lawful, albeit not enough. A defendant can assert a roundabout defense of diminished capacity through law witness observations. What’s problematic, however, is that law witnesses won’t bring the requisite level of insight that experts bring.

Interesting opinion.

 

Misconduct at Closing

In In re Personal Restraint of Phelps, the WA Court of Appeals Div. II held (1) expert testimony is required if the State intends to rely on the grooming process to prove and argue  its case, (2) the Prosecutor improperly argued facts not in evidence about sexual grooming, and (3) this error resulted in prejudice to the defendant that requires a reversal of his convictions.

BACKGROUND

On June 8, 2012, Defendant Todd Phelps went to  trial on his charges of third degree rape and second degree sexual misconduct with a minor. In February 2011, the victim AA was a minor who began playing softball on her high school team. Mr. Phelps was one of her coaches. Apparently, Mr. Phelps groomed AA into having sexual relations with him.

At trial, the State did not present any expert or lay testimony about the grooming process.

In closing argument, however, the prosecutor discussed some of the topics that he questioned the jurors about during jury selection, including the grooming process:

“Then we talked about grooming. We talked about the process of grooming. And some people came up with examples of how someone who is grooming is going to be nice. They are going to try to get the trust of someone. They are going to try and isolate that person so that they can do an act against this person who is being groomed. And it’s not just the person who is being groomed, but it’s other people that are around as well that are being groomed.”

The prosecutor referred to the concept of grooming throughout his argument. For example, after talking about the alleged physical contact that occurred before the rape, the prosecutor argued,

“What is all this stuff that’s going on? What is all this physical contact between a coach and a student athlete? It’s grooming; it’s okay, every time I touch you, it’s okay, it’s okay. Eventually, it becomes the norm. The grooming isn’t in the open, folks. When people groom, they don’t do it so everybody can see. That’s not the way it works. It wouldn’t be called grooming. It would be called a crime because he’d be caught all the time.”

The prosecutor further discussed how the grooming process took place over time and that, as part of it, Phelps told AA stories about how his wife refused to sleep in the same bed with him, how his wife had made out with another man, and other statements about his wife that were attempts to make AA sympathetic to him. The prosecutor then commented about Phelps’s sexual comments to AA and his physical contact with her, stating that “these are the things that are going on that she’s being told and groomed with throughout their contacts.” After discussing MM’s father’s testimony about Phelps bragging about his ability to control AA’s emotions, the prosecutor argued,

“So let me talk about grooming again. At this point, point of the rape, [AA] is pretty much isolated from her entire family until she eventually is allowed to move with her aunt. Remember the stories about her family, her grandma, her cousin, her aunt. She’s told these sex stories by the defendant. She’s told to break up with her boyfriend, don’t talk to your counselor. The defendant is meeting with her in private with other students, but no adults around. He has made her feel important throughout this entire incident. She felt he was the only one she could talk to.”

These types of comments from the Prosecutor – and many others about grooming – were repeated and emphasized throughout closing argument.

The jury found Phelps guilty of second degree sexual misconduct with a minor and third degree rape. Phelps appealed on the issue of whether the prosecutor committed misconduct by introducing the concept of grooming in closing argument without any evidentiary support or foundation; i.e., arguing that the prosecutor argued facts outside the record.

THE COURT’S ANALYSIS

The court reasoned that the 6th Amendment to the United States Constitution guarantees a defendant a fair, but not an error-free, trial. The burden to establish prosecutorial misconduct is on the defendant, who must show that the prosecuting attorney’s conduct was both improper and prejudicial. Prosecutorial misconduct is grounds for reversal only when there is a substantial likelihood that the improper conduct affected the jury.

Expert Testimony of Grooming.

The Court said expert testimony is required if the State intends to rely on the grooming process to prove and argue its case. Although the discussion of grooming in jury selection demonstrates that some of the jurors in this case had some general knowledge of grooming, this does not demonstrate that the jurors had the nuanced understanding of the grooming process that would enable them to understand its effect on things such as AA’s failure to report and how the grooming process may be used to influence others in order to increase the defendant’s credibility or undermine the victim’s credibility. Furthermore, the Court reasoned that the psychological complexities in understanding and evaluating the grooming process demand expert testimony to aid the jury.

Ultimately, the Court reasoned that because the prosecutor’s grooming argument encompassed issues that are beyond the jury’s common understanding, Phelps is correct that the prosecutor should have presented expert testimony on this matter if the State wished to rely on these concepts in closing argument.

Arguing Facts Not in Evidence.

The Court held that the Prosecutor’s use of the grooming concept in closing argument without first presenting testimony about the grooming process was misconduct.  There was no evidence of any kind before the jury explaining the grooming process, the potential purposes of grooming beyond achieving a sexual relationship with AA, or the effects of grooming on those around AA. Consequently, the State was required to present expert testimony on this aspect of the grooming process because these concepts were not within the common understanding of the jury. For that reason, the prosecutor was arguing facts that were not in evidence.

Flagrant, Ill-Intentioned & Incurable Prejudice.

The Court reasoned that the Prosecutor’s argument, without any evidentiary support, was also clearly prejudicial because it touched on credibility determinations that were key to this case given the circumstantial nature of the case and the lack of direct evidence of the criminal acts. The prosecutor’s argument focused on how Phelps’s grooming behaviors affected AA’s behavior and how those around AA perceived AA. It also was intended to rebut Phelps’s claims that his contact with AA was merely an innocent attempt to help a troubled young woman. Thus, this argument had a strong relationship to AA’s and Phelps’s credibility and potentially influenced the jury’s credibility determinations.

Finally, the Court reasoned that any resulting prejudice from the Prosecutor’s statements at closing argument could not have been cured by a jury instruction:

“We hold that Phelps has shown that the prejudice could not have been cured by an instruction. The repeated and pervasive use of the grooming concept makes it less likely that the jury followed this instruction, particularly when the grooming evidence was relevant to the core credibility issues in a case with no direct evidence of the actual crimes. Thus, Phelps has established prosecutorial misconduct.”

With that the Court reversed Phelps’ conviction.

My opinion? Good decision. As a practice, expert witnesses are required to testify about issues which are beyond the common understanding of jurors. The topic of grooming sexual assault victims certainly requires an expert. Period.