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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69101-5-1
Respondent, DIVISION ONE
v.
CHERYL RENEE LIDEL, UNPUBLISHED
Appellant. FILED: March 3. 2014
Cox, J. - Expert testimony is admissible under ER 702 if it "will assist the trier of
fact to understand the evidence or to determine a fact in issue." Because Cheryl Lidel
made no showing that expert testimony on dissociative identity disorder (DID) would
assist the trier of fact in assessing her proposed insanity and diminished capacity
defenses, the trial court did not abuse its discretion or violate Lidel's right to present a
defense by excluding the evidence as not helpful under ER 702. Lidel's challenge to
the constitutionality of the Persistent OffenderAccountability Act, RCW 9.94A.570, is
also without merit. Accordingly, we affirm.
On the afternoon of February 14, 2010, Lidel entered a Seattle Subway
Sandwich Shop and approached the counter. Myrtle Pederson, the sandwich artist,
was working alone that afternoon. After initially indicating that she wanted to order a
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sandwich, Lidel followed Pederson into an employee-only area and grabbed her in a
chokehold. Lidel said she had a gun and threatened to shoot Pederson if she did not
give her the money.
After Pederson gave her $370 from the cash register, Lidel left the shop.
Pederson's boyfriend saw Lidel leave the store and called 911. The police arrested
Lidel a short distance away and recovered $370 from her pocket.
The State charged Lidel with one count of second degree robbery. Prior to trial,
Lidel gave notice that she intended to raise insanity and diminished capacity defenses.
Psychiatrist Dr. Richard Adier examined Lidel and diagnosed her as suffering from DID,
formerly known as multiple personality disorder.1 Diagnostic criteria for DID include
A. The presence of two or more distinct identities or personality states
(each with its own relatively enduring pattern of perceiving, relating to, and
thinking about the environment and self).
B. At least two of these identities or personality states recurrently take
control of the person's behavior.
C. Inability to recall important personal information that is too extensive to
be explained by ordinary forgetfulness.[2]
Dr. Adier determined that Lidel -- "Cheryl" - was the "host personality" and
identified two alternate personalities (alters), "Debbie" and "Odessa." Dr. Adier believed
"Odessa" was operative at the time of the robbery, but that the personality had reverted
1 See State v. Greene. 139 Wn.2d 64, 68, 984 P.2d 1024 (1999).
2id. (quoting American PsychiatricAss'n, Diagnostic &Statistical Manual of Mental
Disorders (4th ed.1994)).
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to Cheryl by the time of the arrest. Based on his examination, Dr. Adier determined that
"it is reasonable to conclude that Ms. Lidel (herself) did not understand the nature of the
illegal act and/or failed to understand its wrongfulness at the time."
The State disputed Dr. Adler's DID diagnosis and moved to exclude Lidel's
proposed insanity and diminished capacity defenses. Relying primarily on the decision
in State v. Greene.3 the State argued that a diagnosis of DID is not currently capable of
forensic application and therefore cannot assist the trier of fact in assessing the
defendant's mental states. The trial court agreed and excluded Dr. Adler's proposed
testimony as not helpful under ER 702.
The case proceeded to trial without Lidel's proposed defenses, and the jury
found Lidel guilty as charged. Based on her criminal history, including prior convictions
for first degree robbery with a deadly weapon, the trial court found that Lidel was a
persistent offender under the Persistent Offender Accountability Act (POAA), RCW
9.94A.570, and imposed a mandatory life sentence.
EXPERT TESTIMONY ON DISSOCIATIVE IDENTITY DISORDER
On appeal, Lidel contends that the trial court abused its discretion in excluding
Dr. Adler's testimony on his DID diagnosis. She argues that the evidence was relevant
and that its exclusion violated her constitutional right to present a defense.
In order to establish the defense of insanity, the defendant bears the burden of
demonstrating by a preponderance of the evidence:
139 Wn.2d 64, 984 P.2d 1024 (1999).
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(1) At the time of the commission of the offense, as a result of mental
disease or defect, the mind of the actor was affected to such an extent
that:
(a) He or she was unable to perceive the nature and quality of the act with
which he or she is charged; or
(b) He or she was unable to tell right from wrong with reference to the
particular act charged.[4]
To maintain a diminished capacity defense, the defendant bears the burden of
producing evidence that "logically and reasonably connects the defendant's alleged
mental condition with the inability to possess the required level of culpability to commit
the crime charged."5
Expert testimony is admissible under ER 702 "[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." Such testimony is generally helpful to the trier of fact when "it
concerns matters beyond the common knowledge of the average layperson and does
not mislead the jury."6 We review the trial court's decision to admit testimony under ER
702 for an abuse of discretion.7
Our supreme court's decision in State v. Greene controls our analysis here. In
Greene, a prosecution for indecent liberties and first degree kidnapping, the defendant
pleaded not guilty by reason of insanity, based on a diagnosis of DID. The trial court
ruled that the defense's proposed expert testimony on DID was not admissible to
4 RCW 9A.12.010; see RCW 10.77.030.
5 State v. Griffin. 100 Wn.2d 417, 419, 670 P.2d 265 (1983).
6 State v. Thomas. 123 Wn. App. 771, 778, 98 P.3d 1258 (2004).
7 State v. Roberts. 142 Wn.2d 471, 520, 14 P.3d 713 (2000).
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establish the defenses of insanity or diminished capacity. The supreme court held that
DID was generally accepted within the scientific community as a diagnosable
psychiatric condition and therefore met the Frve8 standard for admissibility. The court
concluded, however, that the proposed expert testimony on DID would not be helpful to
the jury and was therefore not admissible under ER 702.9
In reaching its decision, the court noted that the relevant question before the trier
of fact was whether, at the time of the offenses, DID prevented Greene "from
appreciating the nature, quality, or wrongfulness of his actions, or, in the alternative, ...
demonstrably impaired Greene's ability to form the [necessary mental intent]."10
But in order to assist the jury in making this determination, expert testimony, even if
based on generally accepted scientific principles, must be capable "of forensic
application" by reasonably relating "the defendant's alleged mental condition to the
asserted inability to appreciate the nature of his or her actions or to form the required
specific intent to commit the charged crime."11
More fundamentally, the forensic application ofexpert testimony presupposes the
existence of "a legal standard for culpability in the context of DID."12
That is, when a person suffering from DID is charged with a crime, the
question becomes, "who is the proper defendant?" Adetermination of
sanity in this context can be considered only subsequent to the
determination of who (which alter personality) should be held responsible
8 Frve v. United States. 293 F. 1013 (D.C. Cir. 1923).
9 Greene. 139 Wn.2d at 73.
10 Id (citations omitted).
11 Id at 74.
12 Jd at 77.
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for the crime - the host, or possibly one or more of the alters. This, in turn,
is related to the scientific possibility of identifying the controlling and/or
knowledgeable alters at the time of the crime.t13*
The Greene court underscored the difficulty of developing the appropriate standard by
noting the competing potential approaches:
The various approaches primarily differ on which personality (or
personalities) any mental examination should focus. Thus, an approach
may focus on the mental condition of the host personality at the time of the
offense; or, conversely, on the mental condition of the alter in control at
the time of the offense; or, possibly, on the mental condition of each and
every alter personality at the time of the crime (under this approach, if any
significant alter is not aware of or does not acquiesce in the commission of
the crime, such innocent "personlike" entities do not deserve to suffer
punishment).[14]
None of these approaches has gained acceptance as "reliably helping to resolve
questions regarding sanity and/or mental capacity in a legal sense."15 The court noted
its earlier decision in State v. Wheaton,16 in which it had concluded the record was
insufficient to announce a rule "for determining how to assess the legal sanity or insanity
of a defendant suffering from [multiple personality disorder],"17 and acknowledged that
"we find ourselves in no better position today than we did [when Wheaton was
decided]."18 Because there was then no consensus in the court or medical community
13 Jd at 77-78.
14 jd at 77.
15 id
16121 Wn.2d 347, 850 P.2d 507 (1993) (declining to adopt a specific legal standard to
assess the sanity of a criminal defendant suffering from multiple personality disorder).
17 id at 357.
18 Greene, 139 Wn.2d at 74.
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as to the proper forensic method for this determination, the Greene court concluded that
DID testimony was properly excluded under ER 702 as not helpful to the jury.19
Here, Dr. Adier diagnosed Lidel with DID, but he limited his opinion to "Cheryl,"
the primary personality. He believed that "Odessa," one of Lidel's two alters, was the
personality in control during the crime, but that Lidel was in control by the time of the
arrest. Dr. Adier was unable to explain how Lidel transitioned from one personality to
another.
On appeal, Lidel does not challenge the court's analysis in Greene.20 Nor has
she suggested that the unsettled question in Greene of how to allocate legal liability
among multiple personalities has since been resolved. Dr. Adier expressly
acknowledged that he was unable to assist the jury in assessing the effect of his DID
analysis in light of Lidel's multiple personalities at the time of the crime:
The issue of DID dissociative states, who's responsible, the host, the alter,
is the host responsible for what an alter does right - that's an issue even
having read some of the law - it's for a juror or the trier of fact.[21]
In sum, Dr. Adler's testimony provided no basis for assessing the effect of his
DID diagnosis on the legal concepts of insanity and diminished capacity. Consequently,
19 Jd at 79.
20 Greene later obtained relief in a federal habeas corpus petition. In affirming the order
granting the writ, the Ninth Circuit concluded that Greene should have been able to present his
own testimony and the testimony of the victim to establish his mental state at the time of the
crime. The court expressly noted that it was not holding that Washington's ER 702 "is defective
in anyway." Greene v. Lambert, 288 F.3d 1081, 1093 (9th Cir. 2002).
21 Exhibit 6, at 47-48.
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No. 69101-5-1/8
the evidence was not helpful to the jury, and the trial court did not abuse its discretion in
excluding it under ER 702.
CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE
Lidel contends that the exclusion of Dr. Adler's testimony under ER 702 violated
her Sixth Amendment right to present a defense. We disagree.
The defendant's Sixth Amendment right to present a meaningful defense is not
unlimited and "must yield to 'established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and innocence.'"22 A
defendant has no constitutional right to present irrelevant evidence.23
Under ER 702, expert testimony is helpful only if relevant.24 "Scientific evidence
that does not help the trier of fact resolve any issue of fact is irrelevant and does not
meet the requirements of ER 702."25 Under Greene, Dr. Adler's proposed testimony
was neither relevant nor helpful to the jury and therefore properly excluded under ER
702.26 Moreover, Lidel has not cited any authority suggesting that evidence properly
excluded under ER 702 "infringes upon a weighty interest of the defendant and is
arbitrary or disproportionate to the purpose it was designed to serve."27
22 State v. Donald. Wn. App. , 316 P.3d 1081, 1087 (2013), pet, for review filed.
(quoting State v. Finch. 137 Wn.2d 792, 825, 975 P.2d 967 (1999)).
23 State v. Hudlow. 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
24 Greene. 139 Wn.2d at 73.
25 id
26 See State v. Atsbeha. 142 Wn.2d 904, 918-19, 16 P.3d 626 (2001) (expert's diminished
capacity testimony not relevant and not helpful to trier offact because it did not relate to
defendant's ability to form intent to deliver controlled substance).
27 Donald. 316 P.3d at 1087 (citing Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct.
1727, 164 L. Ed. 2d 503 (2006)).
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No. 69101-5-1/9
The exclusion of Dr. Adler's testimony did not violate Lidel's right to present a
defense.
CONSTITUTIONALITY OF THE PERSISTENT OFFENDER ACCOUNTABILITY ACT
Lidel contends that the POAA's classification of her prior convictions as
sentencing factors rather than additional elements of the crime violates her
constitutional right to equal protection. She maintains there is no rational basis for
requiring the State to prove prior convictions to a jury when they are an element of the
crime, but allow judges to find some prior convictions by a preponderance of the
evidence as "sentencing factors."
This court rejected an identical argument in State v. Langstead:
We conclude recidivists whose conduct is inherently culpable enough to
incur a felony sanction are, as a group, rationally distinguishable from
persons whose conduct is felonious only if preceded by a prior conviction
for the same or a similar offense. We reject Langstead's equal protection
challenge.1281
Lidel has not addressed or even cited Langstead.
Lidel also contends that the State was required to prove the existence of her two
prior qualifying convictions to a jury before sentencing her as a persistent offender. Our
supreme court has repeatedly held that the State need not prove prior convictions to the
29
jury.
28155 Wn. App. 448, 456-57, 228 P.3d 799, review denied. 170 Wn.2d 1009 (2010);
accord. State v. Salinas. 169 Wn. App. 210, 226, 279 P.3d 917 (2012), review denied. 176
Wn.2d 1002 (2013).
29 See State v. Thiefault. 160 Wn.2d 409, 418, 158 P.3d 580 (2007): see also. Langstead.
155 Wn. App. at 453; Salinas. 160 Wn.2d at 225.
No. 69101-5-1/10
We reject Lidel's constitutional challenges to the persistent offender statute.
We affirm the judgment and sentence.
WE CONCUR:
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