State v. Davis

• Decision Date: 03 March 1992
• Docket Number: No. 10678-1-III,10678-1-III
• Citation: 64 Wn.App. 511,827 P.2d 298
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kenneth Wayne DAVIS, Appellant.

Page 511

64 Wn.App. 511

827 P.2d 298

STATE of Washington, Respondent, v. Kenneth Wayne DAVIS, Appellant.

No. 10678-1-III.

Court of Appeals of Washington Division 3, Panel Three.

March 3, 1992.

Review Granted June 3, 1992.

Joy E. Van Nostern, Yakima, for appellant.

Gerald A. Matosich, Pros. Atty., Richard L. Walker, Deputy Prosecutor, Goldendale, for respondent.

MUNSON, Judge.

Kenneth Davis appeals his convictions of felony murder in the second degree, RCW 9A.32.050(1)(b), and second degree assault, RCW 9A.36.021(1)(a). He contends the trial court erred in (1) granting the State's motion to exclude testimony as to diminished capacity, (2) permitting the State to amend the complaint on the morning of trial, (3) refusing his proposed jury instructions, and (4) improperly responding to a question from the jury during deliberations. We reverse the murder conviction and affirm the assault conviction.

One morning in May 1989, Joyce Davis told her husband she was leaving him and taking their 16-year-old daughter with her. They were living in The Dalles, Oregon, at the time. Although Mr. Davis later saw his daughter and talked to her on several occasions, he contended he did not know where to find her. In the days that followed, Mr. Davis spent much of his time driving around The Dalles, looking for his wife and daughter. Eventually he became despondent threw some of his clothes, typewriter, guns, towels, and other belongings, into his pickup truck, and began driving south. He found himself in Reno, Nevada, where he rented a motel room. He called his employer and was advised he still had a job. He slept briefly, then began driving back to The Dalles. He got lost several times, ran out of gas and his radiator boiled over, before he finally returned home. On his return, he again drove around looking for his wife and daughter, and finally found his wife's car in nearby Dallesport, Washington. As he approached the car he was confronted by a man who, when asked if he knew where Mrs. Davis was, offered to beat his head in.

Mr. Davis returned to his home in Oregon and found his son and several strangers there. His son, who appeared drunk, began arguing with him and subsequently physically threw him out of the house. Feeling desperate and suicidal, Mr. Davis again drove to Dallesport in the hope of finding his daughter. When he arrived at the apartment building where he believed his wife was, he took a hunting rifle from his truck, and approached the apartment door. ¹ He tried to open the door, and when he found it was locked he began kicking it, then breaking the glass panes with the barrel of his rifle. He had quit breaking glass and was holding the rifle across his chest when the door suddenly opened and a man lunged at him, grabbing the rifle. In the ensuing struggle the gun went off, killing the other man, Marion Charles Hayes.

Mr. Davis entered the apartment. His wife, who was standing in the middle of the darkened room, lunged at him with her hands shoulder high; he struck her with the gun stock, knocking her to the floor and breaking her nose. After making sure she was breathing, Mr. Davis left the apartment, went to his brother's home and asked him to take him to the police station.

On the morning of trial, the court permitted the State to amend count 2, the assault charge involving the wife, from "intentionally assaulted another and thereby inflicted substantial bodily harm ...", RCW 9A.36.021(1)(a), to "assaulted Joyce Lee Davis with a deadly weapon ...", RCW 9A.36.021(1)(c). ² The court also ruled Mr. Davis' proposed expert witness would not be permitted to testify on the issue of diminished capacity because this defense is inapplicable to a charge of murder in the second degree based on second degree assault with a deadly weapon. The defense motion for a continuance was denied.

First, Mr. Davis contends the trial court erred in preventing him from presenting a defense of diminished capacity.

The diminished capacity defense allows a defendant to show that, because of a mental disorder, he lacked the mental state required as an element of the crime charged. State v. Swagerty, 60 Wash.App. 830, 833, 810 P.2d 1 (1991); State v. Gough, 53 Wash.App. 619, 622, 768 P.2d 1028, review denied, 112 Wash.2d 1026 (1989). Under the common law, an assault is an intentional act. State v. Mathews, 60 Wash.App. 761, 766-67, 807 P.2d 890 (1991); State v. Davis, 60 Wash.App. 813, 820, 808 P.2d 167 (1991); State v. Sample, 52 Wash.App. 52, 757 P.2d 539 (1988); State v. Jones, 34 Wash.App. 848, 664 P.2d 12 (1983). The requisite intent may be either an intent to inflict bodily injury, to touch or strike, or to cause apprehension of bodily harm. Mathews, at 766-67, 807 P.2d 890; State v. Krup, 36 Wash.App. 454, 458-59, 676 P.2d 507, review denied, 101 Wash.2d 1008 (1984).

State v. Edmon, 28 Wash.App. 98, 104, 621 P.2d 1310 (1981) suggests diminished capacity may only be used to negate a "specific intent", i.e., an intent to produce a specific result, as opposed to an intent to do the physical act. The elements of some crimes do require a specific intent: for example, RCW 9A.32.030(1)(a), murder in the first degree; RCW 9A.36.011(1), assault in the first degree; RCW 9A.36.021(1)(b) and (d), assault in the second degree; and RCW 9A.40.020, kidnapping in the first degree. The four levels of culpability defined in RCW 9A.08.010, as intent, knowledge, recklessness, and criminal negligence, were designed to replace the concepts of specific and general intent, State v. Allen, 101 Wash.2d 355, 359, 678 P.2d 798 (1984), but, as indicated, specific intent elements are contained in some crimes. State v. Griffin, 100 Wash.2d 417, 418-19, 670 P.2d 265 (1983) notes that the prior distinction between specific intent and general intent must be modified because of RCW 9A.08.010, further noting:

Diminished capacity instructions are to be given whenever there is substantial evidence of such a condition and such evidence 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.

See also State v. Poulsen, 45 Wash.App. 706, 708-09, 726 P.2d 1036 (1986).

Swagerty, at 833, 810 P.2d 1, held diminished capacity was not a defense to a statutory rape defendant because "the Legislature's definition of statutory rape did not require proof of specific intent or of any other mental state ...". (Italics ours.) Diminished capacity is a defense to the intent element of second degree assault.

A diminished capacity defense must be supported by evidence of a mental condition and its "logical and reasonable" connection with the defendant's inability to possess the relevant mental state. Griffin, at 419, 670 P.2d 265. "Diminished capacity arises out of a mental disorder, usually not amounting to insanity, that is demonstrated to have a specific effect on one's capacity to achieve the level of culpability required for a given crime." Gough, at 622, 768 P.2d 1028.

Emotions like jealousy, fear, anger, and hatred are not considered mental disorders. State v. Moore, 61 Wash.2d 165, 377 P.2d 456 (1963); Edmon, at 103, 621 P.2d 1310. They have been viewed as acting upon the individual's capacity to control his behavior, causing an "irresistible impulse", which differs from the capacity to form an intent, and has been rejected as a form of diminished capacity. Moore, at 172, 377 P.2d 456; see State v. White, 60 Wash.2d 551, 589-93, 374 P.2d 942 (1962).

In order to be admissible on the issue of diminished capacity, testimony must show how the alleged mental condition impaired the defendant's ability to possess the required level of culpability. See Griffin, at 418-19, 670 P.2d 265; Edmon, at 103, 621 P.2d 1310. For example, in State v. Welsh, 8 Wash.App. 719, 720, 508 P.2d 1041 (1973), Mr. Welsh's doctor testified he suffered from psychomotor epilepsy, and explained this was "a condition of mental cloudiness or unconscious automatic behavior. During such a seizure, there is no conscious intent to perform acts done."

Here, as in Edmon, expert psychiatric testimony showed the defendant suffered from anxiety and depression, medically recognized disorders. In Edmon, however, the psychiatrist testified these disorders gave rise to an additional mental condition, reduced perception of reality, which directly affected the defendant's ability to form an intent.

Mr. Davis made an offer of proof consisting of a report by a psychiatrist indicating at the time of the shooting Mr. Davis was suffering from acute anxiety and significant depression, concluding he lacked the ability to form premeditation or an intent. However, the report makes no logical connection between the diagnosed disorders and the conclusion as to Mr. Davis' lack of capacity to form an intent. Neither the report nor the facts evidenced any reduced perception of reality. Mr. Davis had sufficient presence of mind, after being ejected from the parking lot where his wife's car was parked and subsequently from his home, to drive his vehicle back to Dallesport, take the only fully loaded rifle in his truck and go to the victim's apartment. He had not been to the actual apartment previously, only on the grounds. Mr. Davis explained: "I grabbed a gun because the guy said he was going to beat my head in. I thought it would keep him from doing that while I was trying to talk." His diminished capacity defense fails for lack of adequate foundation for the proffered expert testimony. The evidence was properly excluded.

Second, Mr. Davis contends the court violated his right to prepare a defense by permitting the State to amend the information on the morning of trial and denying his request for a continuance for the purpose of preparing a defense to the amended charge. "The court may permit any information or bill of particulars to be amended at any time before verdict or finding if substantial...