(concurring) — I concur in the result reached by the majority. I write separately only to express my disagreement with what I perceive is the majority’s conclusion that it is error for a trial court to exclude proffered defense expert testimony on diminished capacity “prior to trial on a motion in limine in this case which is an aggravated first degree murder case in which the State intends to ask for the death penalty.” Majority op. at 522. In my judgment, a trial court may, when appropriate, grant a motion to limit evidence in a capital case. Although the granting or denial of such a motion is always within the discretion of the trial court, subject only to a review for abuse, I fully subscribe to the notion that such a motion may be granted if (1) it describes the evidence objected to with sufficient specificity to enable the trial court to determine that it is clearly inadmissible, and (2) the evidence is so prejudicial that the movant should be spared the necessity of calling attention to it by objecting when offered. Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160 (1991). I fail to see any reason why that rule should not pertain in capital cases.
Notwithstanding this minor disagreement with the majority, I entirely agree with it that the trial court erred here in granting the State’s motion in limine. In my view, the State did not establish that the evidence proffered by the defendant on the issue of diminished capacity was clearly inadmissible when it is considered in light of ER 401, 402, and 403.
Guy, J., concurs with Alexander, J.