State v. Atsbeha
| Decision Date | 01 February 2001 |
| Docket Number | No. 68649-1.,68649-1. |
| Citation | 16 P.3d 626,142 Wash.2d 904 |
| Parties | STATE of Washington, Petitioner, v. Negash ATSBEHA, Respondent. |
| Court | Washington Supreme Court |
Norm Maleng, King County Pros., Ann Summers, Deputy King County Pros., Seattle, for Petitioner.
Nielsen, Broman & Associates, Eric Broman, David Koch, Seattle, for Respondent.
Petitioner State of Washington seeks review of a decision of the Court of Appeals, Division One, which reversed the King County Superior Court conviction of Respondent Negash Atsbeha for possession of a controlled substance with intent to deliver under RCW 69.50.401(a)(1)(i). The Court of Appeals reversed the trial court, concluding that it erred in excluding the testimony of a physician offered by Respondent as an expert witness because it was not material and relevant to his defense of diminished capacity.1 This court granted review. We reverse.
The question presented in this case is whether expert testimony of a physician, offered by Respondent, but excluded by the trial court, was relevant and material and should have been allowed to establish Respondent's diminished capacity defense against the crime of possession of a controlled substance with intent to deliver under RCW 69.50.401(a)(1)(i).
On October 28, 1997, Respondent Negash Atsbeha was charged in the King County Superior Court by amended information with one count of unlawful delivery of a controlled substance, and in the alternative, one count of possession of a controlled substance with intent to deliver.2 Both counts involved violation of the Uniform Controlled Substances Act under RCW 69.50.401(a)(1)(i) and RCW 69.50.435(a)(3).3 The charges arose from an encounter between Respondent and King County Detective Michael Caldwell on March 28, 1996 on Aurora Avenue North in King County.
The "Certification for Determination of Probable Cause" provided in part:
On March 28, 1996, King County Detective Caldwell contacted the defendant, NEGASH ATSBEHA, in the parking lot of Joker[']s Tavern and Card Room, 14515 Aurora Avenue North, King County, Washington. Detective Caldwell was working undercover. The defendant agreed to sell one sixteenth of an ounce to Detective Caldwell for $80. Detective Caldwell gave the defendant $80. Ten minutes later, the defendant returned to Detective Caldwell's car and gave the detective a plastic bag containing suspected powder cocaine. The Washington State Patrol Crime Lab tested the contents of the plastic bag and determined that it contained cocaine....[4]
On February 17 and 18, 1998, the Honorable Patricia H. Aitken held pretrial hearings to determine the admissibility of testimony offered by Respondent. Judge Aitken asked whether Respondent would raise the defense of insanity. His counsel answered he would not.5 Petitioner instead chose to present only the defense of diminished capacity, relying upon the testimony of Dr. Mary Hodgson Rose, M.D. During the extensive pretrial hearing, Dr. Rose responded to questions by the trial court, Deputy Prosecuting Attorney Cindi S. Port and Respondent's counsel Matthew M. Rubenstein, which included the following:
The trial court determined Dr. Rose was qualified to testify as an expert,8 but nevertheless excluded her testimony with the following explanation:
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