State v. Eakins

Talmadge, J.

(dissenting) — I dissent. I do not agree with the majority that a defendant’s reputation for peace*505ful character is necessarily probative of his mental state when the defendant is in a delirium and points a loaded gun at his victim’s head. Eakins was entitled to show diminished capacity through his own testimony and that of his psychiatrist, but the trial court properly excluded fifteen lay witnesses to his alleged peaceful reputation. Accordingly, we should reverse the decision of the Court of Appeals and reinstate Eakins’ convictions.

Analysis

The principal fact issue in dispute in this case was whether Eakins suffered from diminished capacity. Eakins admits that at the restaurant he pointed his loaded revolver at the cook, Hansen, and held the gun to the head of his ex-girlfriend, Lindal, but contends that he did not form the requisite intent for an assault crime due to diminished capacity. In fact, Eakins claims that he could not form the intent to commit assault, thus rendering character evidence of peacefulness irrelevant.

Diminished Capacity

Diminished capacity is a mental condition that causes an inability to form the requisite intent for the crime charged.6 State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860, cert. denied, 414 U.S. 1094 (1973). The defense requires proof of a mental disorder, usually not amounting to insanity, demonstrated to specifically affect the capacity to form the culpable mental state for a given crime. State v. Stumpf, 64 Wn. App. 522, 525-26, 827 P.2d 294 (1992). "[C]ompetent” evidence of diminished mental capacity "is admissible wherever it tends logically and by reasonable inference to prove or disprove that a defendant *506was capable of forming a required specific intent.” Ferrick, 81 Wn.2d at 944. There must be "substantial evidence” that establishes the mental condition and that logically and reasonably connects the mental condition with the inability to form the requisite intent or other mental state required to be guilty of the crime. State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265 (1983); State v. Davis, 64 Wn. App. 511, 517, 827 P.2d 298 (1992), rev’d on other grounds, 121 Wn.2d 1, 846 P.2d 527 (1993).

Proof of this nexus is crucial. For example, in Ferrick, we affirmed a refusal to instruct on diminished capacity, where there was no "substantial evidence to establish [the] mental condition diminished or destroyed [the defendant’s] capacity to form the specific intent to kill her mother.” Ferrick, 81 Wn.2d at 945. Ferrick had been in and out of Western State Hospital three times, stopped taking her medication, and then fatally stabbed, strangled and beat her mother upon learning her mother had talked of recommitting Ferrick. Ferrick, 81 Wn.2d at 945. Clearly, evidence of a mental disorder alone, however severe, is an insufficient basis upon which to infer diminished capacity.

To prove the mental condition or disorder, and the required nexus between it and the alleged inability to form the requisite specific intent, a defendant generally must offer expert testimony. Stumpf, 64 Wn. App. at 526-27. The expert’s testimony must be based upon an extensive foundation and provide an explanation of how the mental disorder caused the inability to form the specific intent.7 The expert may not simply infer diminished capacity "from evidence of the mental disorder, and *507it is insufficient [for the expert] to give only conclusory testimony that a mental disorder caused an inability to form a specific intent.” State v. Edmon, 28 Wn. App. 98, 103, 621 P.2d 1310, review denied, 95 Wn.2d 1019 (1981); State v. Harper, 64 Wn. App. 283, 288, 823 P.2d 1137 (1992); State v. Thamert, 45 Wn. App. 143, 147, 723 P.2d 1204, review denied, 107 Wn.2d 1014 (1986).

Lay testimony as to a defendant’s "mental state” may supplement expert testimony, if expert testimony has already established the existence of a mental disorder and the requisite causal connection between the disorder and diminished capacity. Stumpf, 64 Wn. App. at 525. Only then may lay testimony be allowed, provided that:

1. The lay witness must have had a sufficient acquaintance with the defendant or must have had sufficient time to observe the defendant.
2. The witness must testify, at least in a general way, as to the peculiar facts and circumstances on which his or her conclusion is based.
3. The testimony must refer to the defendant’s mental condition at or close to the time the witness made the observation and at or close to the time the offense at issue occurred.

(Citations omitted.) Stumpf, 64 Wn. App. at 526.

Character Evidence

Eakins offered three types of witnesses to prove he had a mental condition or disorder specifically affecting his ability to intend the harm to the persons at whom he admittedly pointed his revolver. First, he testified he was depressed and taking triple doses of tranquilizers with bourbon every day so he "didn’t have to think.” Report of Proceedings (Nov. 28, 1990), at 163-66. He thought he was in a dream when he confronted Lindal and Hansen with his gun. Second, Eakins’ therapist testified Eakins suffered from a personality disorder, and was in a delirium induced by drink and drugs at the time of the crimes. A psychiatrist opined that Eakins was incapable of forming *508an intent to assault. Third, Eakins offered the testimony of fifteen lay witnesses as to his reputation for peacefulness.8

The majority holds that the fifteen lay witnesses’ testimony should have been admitted under ER 404(a)(1), which states:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same[.]

(Italics mine). By its terms, ER 404(a)(1) generally addresses the use of character evidence to prove action in conformity with the character on a given occasion.9

The majority and the Court of Appeals conclude that character evidence may be used by a defendant to disprove the intent element of a crime. Our case law on this issue is sparse and not necessarily supportive of that view.

In State v. Lewis, 37 Wn.2d 540, 545, 225 P.2d 428 (1950), we held that evidence of a hunter’s carefulness in handling *509firearms was properly excluded because it "did not tend to prove that he was careful when he fired the shot which killed Mrs. Packer.” Thus, character evidence, Lewis’ reputation for carefulness and prudence, was irrelevant in a manslaughter case. The majority dismisses the relevance of Lewis because the "defendant’s specific intent was not at issue in Lewis.” Majority, at 497. The issue in Lewis was negligence. Both negligence and intent are mental states that may be elements of criminal culpability. See RCW 9A.08.010(1). In Lewis and here, the conduct was admitted and only the defendant’s mental state was at issue. Lewis controls because character evidence was properly excluded where it was offered to prove a culpable mental state on an occasion in which the defendant’s conduct contradicted the character trait. See also State v. Kelly, 102 Wn.2d 188, 685 P.2d 564 (1984) (instances where character is an "essential element” of the criminal case under ER 405(b) are "comparatively few”).

The majority attempts to distinguish State v. Janes, 64 Wn. App. 134, 144-45, 822 P.2d 1238 (1992), rev’d on other grounds, 121 Wn.2d 220, 850 P.2d 495, 22 A.L.R.5th 921 (1993), where the defendant admitted shooting his stepfather, claimed diminished capacity and battered child syndrome, and sought to introduce evidence of his peacefulness. The Court of Appeals held that a reputation for peacefulness was not probative of the defendant’s mental state, consistent with the general view that character is not probative of diminished capacity or a mental state when a defendant admits acting contrary to the character trait. The majority suggests that Janes is factually distinguishable because his peaceful character "in the face of his stepfather’s repeated abuse provides no information as to his mental state before the abuse began or during the episode in which he killed his father, nor does it make the diagnosis of 'battered child syndrome’ more or less likely.” Majority, at 498. The majority perceives, however, that *510Eakins’ peaceful character was admissible because "[b]y showing his behavior on the night in question was out of character when he was not influenced by drugs and alcohol, the proffered evidence is relevant to show Eakins, but for his induced mental condition, would not or could not form the intent to assault.” Majority, at 498. I simply do not believe the majority has articulated a real distinction. See also State v. Jackson, 46 Wn. App. 360, 365, 730 P.2d 1361 (1986) (proper to exclude a reputation of sexual decency in a statutory rape case).

The cases from other jurisdictions cited by the majority do not support the use of character evidence to prove diminished capacity. Angelini concerned character evidence to disprove conduct, not a mental state or diminished capacity. In State v. Aplaca,. 74 Haw. 54, 837 P.2d 1298 (1992), the court found ineffective assistance of counsel principally due to failure to investigate, and there was no attempt to use character evidence to prove diminished capacity. In State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989), the use of character evidence to prove diminished capacity was not at issue and not discussed or ruled upon on appeal.

While it may be possible under ER 404(l)(a) and ER 405, as the majority and the Court of Appeals contend, to introduce evidence of a defendant’s character with respect to an element of a criminal charge, that evidence must be relevant. ER 403. Evidence of a peaceful character was not relevant to any issue in contest here.

The nature of Eakins’ diminished capacity claim breaks any possible inferential chain linking peacefulness to his intent or state of mind at the relevant time. Eakins offered proof he was in a dream state, a "delirium” brought on by depression, drink and drugs, and was unable to form any intent to commit assault. Report of Proceedings (Nov. 28, 1990), at 124. One cannot logically use Eakins’ characteristic benign intent when in control of his facul: ties as a basis upon which to draw an inference as to his *511ability to form an intent when his defense is that he was in a dream-like state of delirium.10

Eakins’ Offer of Proof

A final concern in this case relates to the inadequacy of Eakins’ offer of proof with respect to the testimony of the fifteen witnesses. ER 103(a)(2); State v. Ray, 116 Wn.2d 531, 538-40, 806 P.2d 1220 (1991). Eakins provided a list of the witnesses. Clerk’s Papers, at 5-18. He did not provide a summary of their testimony. The offer of proof on the record was general as well:

JUDGE MADDOCK: Mr. Dunn, you wanted to make an offer of proof?
MR. DUNN: Yes, Your Honor. I think we’ve covered it already, but I want to make it absolutely clear for the record that Mr. Eakins had a number of character witnesses. We’ve honed the list down to about fifteen who actually were intended to testify. And those witnesses would all testify that they have a substantial basis of knowledge. Their names are listed on a list of witnesses. I can read them on the record if you’d prefer, Your Honor.
JUDGE MADDOCK: I think I already have those and you’ve identified them as character witnesses on your witness list.
MR. DUNN: Right. And each of those witnesses would testify to I guess varying degrees of friendship with Mr. Eakins, based principally upon knowing him through his work. Each witness would give a substantial basis of knowledge for their knowledge of the reputation of the accused in the community for being a man of a peaceful nature based upon the length of acquaintanceship with the defendant and their basis of seeing him on a daily or weekly basis. Their testimony would be to the effect that he was a man of a peaceful nature, that he was mild mannered, polite and non-aggressive and nonviolent.

*512Report of Proceedings (Nov. 27, 1990), at 95-96.

The testimony of fifteen lay witnesses offered here has not been shown to meet any of the foundational requirements for proof of diminished capacity. The offer of proof does not indicate that the fifteen witnesses knew of any peculiar facts or circumstances about Eakins supporting a conclusion as to diminished capacity. Clearly, these witnesses’ testimony would not have helped the jury resolve the issue of diminished capacity: characteristic peacefulness says aught about an alleged mental condition or disorder at or near the time of the events in this case. If diminished capacity may not be inferred from a defendant’s severe mental illness, a jury should not be able to infer diminished capacity from lay testimony of Eakins’ peaceful character.

The trial court did not abuse its discretion in excluding the character testimony of fifteen witnesses in this case where Eakins admitted the conduct argued an inability to formulate an intent to assault, and acted out of character with his supposed reputation for peacefulness. The Court of Appeals should be reversed and Eakins’ convictions reinstated.

Durham, C.J., and Dolliver, J., concur with Talmadge, J.

The mental state required for the crime of second degree assault as in this case is the specific intent to cause bodily harm or a reasonable apprehension of harm in the victim. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Specific intent is the intent "to produce a specific result, as opposed to an intent to do the physical act” that produces the result. State v. Davis, 64 Wn. App. 511, 515, 827 P.2d 298 (1992), rev’d on other grounds, 121 Wn.2d 1, 846 P.2d 527 (1993).

The required foundation includes proof of a mental disorder, rather than mere anger or other emotion; substantial supporting evidence in the record; a personal examination by a qualified expert who can opine with reasonable medical certainty; temporal proximity; a causal connection between the mental disorder and inability to form specific intent; and an adequate nonconclusory explanation of how the mental disorder caused the inability to form the specific intent. State v. Edmon, 28 Wn. App. 98, 102-03, 621 P.2d 1310, review denied, 95 Wn.2d 1019 (1981); State v. Thamert, 45 Wn. App. 143, 147, 723 P.2d 1204, review denied, 107 Wn.2d 1014 (1986); State v. Harper, 64 Wn. App. 283, 288, 823 P.2d 1137 (1992).

The State’s evidence to rebut the claim of diminished capacity was substantial and not challenged on review. The bartender testified that Eakins’ gun clicked twice while he pointed it at Hansen. Lindal testified that Eakins said to her "I could shoot you right now and blow your fucking brains out.” Report of Proceedings (Nov. 27, 1990), at 35, 172. The victims, other witnesses and police officers testified that Eakins was angry and coherent, not drunk or delirious. Report of Proceedings (Nov. 26,1990), at 7-8; (Nov. 27, 1990), at 18, 29-30, 59-62; (Nov. 28, 1990), 12-13.

Character evidence is circumstantial proof that one "acted consistently” therewith and generally is offered to prove the defendant "would not have committed the crime charged.” State v. Kelly, 102 Wn.2d 188, 193-95, 685 P.2d 564 (1984). Evidence of character is relevant to permit "the jury to infer from the particular character trait that it is unlikely or improbable that the defendant committed the charged act. 1A J. Wigmore, Evidence §§ 54.1-56 (rev. ed. 1983).” (Italics mine.) State v. Thomas, 110 Wn.2d 859, 865, 757 P.2d 512 (1988) (evidence of good sexual character, to show defendant was not a rapist); United States v. Angelini, 678 F.2d 380 (1st Cir. 1982) (law-abiding character, to show defendant did not deal drugs).

The majority believes that "applying the logic” of a case in which character is used to prove conduct to this case means that Eakins’ "evidence of peacefulness, if believed by the jury, would make it less probable he would intentionally threaten another person with a deadly weapon if he were in full control of his facilities.” Majority, at 500. This conclusion relates more critically to whether Eakins acted in conformity with his character. It is ultimately irrelevant because Eakins’ whole defense was inability to form the requisite intent, due to diminished capacity in that he was not in possession of his faculties. He acted out of character.