State v. Hamilton

• Decision Date: 24 October 2016
• Docket Number: No. 72516–5–I,72516–5–I
• Parties: State of Washington, Respondent/Cross–Appellant, v. Jimi James Hamilton, Appellant/Cross–Respondent.
• Court: Washington Court of Appeals

196 Wash.App. 461

383 P.3d 1062

State of Washington, Respondent/Cross–Appellant,

v.Jimi James Hamilton, Appellant/Cross–Respondent.

No. 72516–5–I

Court of Appeals of Washington, Division 1.

FILED: October 24, 2016

Eric J. Nielsen, Kevin Andrew March, Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, for Appellant/Cross–Respondent.

Mary Kathleen Webber, Snohomish County Prosecutor's Office, MSC 504, 3000 Rockefeller Ave., Everett, WA, 98201–4061, for Respondent/Cross–Appellant.

OPINION PUBLISHED IN PART

Dwyer

, J.

¶1 “Cross-examination that attempts to impeach by slipping in unrelied on opinions and conclusions without calling the experts to testify is improper.” ROBERT H. ARONSON & MAUREEN A. HOWARD, THE LAW OF EVIDENCE IN WASHINGTON § 8.03[8][b], at 8–67 (5th ed. 2016). Such questioning does not fall within the ambit of ER 703

, which addresses “facts or data ... upon which an expert bases an opinion or inference.” (Emphasis added.) Nor does it fall within the scope of ER 705, which, as to the facts or data upon which an expert bases an opinion, allows that the expert may “be required to disclose the underlying facts or data on cross examination.” Indeed, if the purpose of the impeachment attempt is to show that the testifying expert should have relied on the “unrelied on opinions” of others, then the “unrelied on opinions” are being offered for their truth and are thus inadmissible hearsay. ER 801(c). On the other hand, if the proponent of the “unrelied on opinions” impeachment attempt is offering the evidence without regard for its truth, then the evidence lacks relevance—because no expert is required to base an opinion on falsehoods. Irrelevant evidence is likewise inadmissible. ER 401, 402.

¶2 In this case, Jimi Hamilton's sole expert witness, Dr. Stuart Grassian, was repeatedly impeached on cross-examination with the observations, opinions, and conclusions—contained in Hamilton's voluminous medical records—of various nontestifying medical professionals. This was allowed notwithstanding that Dr. Grassian did not claim to have relied on these observations, opinions, or conclusions in forming his own opinions. And this was allowed notwithstanding that the medical records themselves were never admitted into evidence. This misapplication of the rules of evidence unquestionably prejudiced Hamilton, whose defense depended solely upon Dr. Grassian's testimony. The improper latitude granted to the State in cross-examining Dr. Grassian calls into question the fairness of the trial. Accordingly, we reverse.

I

¶3 Jimi Hamilton was charged with one count of assault in the second degree of a corrections officer (Officer Trout). The assaultive act occurred at the Monroe Correctional Complex where Hamilton was serving a sentence.

¶4 At trial, Hamilton testified in his own defense. His defense to the charge was diminished capacity resulting from a mental disease or defect. Hamilton's sole testifying expert witness was a psychiatrist, Dr. Stuart Grassian.¹

¶5 Dr. Grassian's testimony focused on two topics. First, he testified to the general state of mental health services provided to prisoners and to the effect on prisoners of lengthy or repeated periods of solitary confinement.² Second, in support of Hamilton's diminished capacity defense, he testified to his opinion that Hamilton suffered from relevant mental illnesses at the time that he committed the assaultive act that gave rise to the charge at issue. The claim of error herein arises from the prosecutor's attempted impeachment of the latter testimony.

Dr. Grassian's Opinion Testimony

¶6 On direct examination, Hamilton's counsel established that Dr. Grassian formulated his opinion of Hamilton's mental state at the time of the assaultive act by conducting interviews with Hamilton and several of his family members. Dr. Grassian also testified that he reviewed numerous documents, including (1) Hamilton's statement to the police following the assaultive act, (2) the information and affidavit of probable cause filed herein, (3) statements from various witnesses to the incident, (4) the victim's medical records, and (5) Hamilton's medical records. Hamilton's medical records consisted of approximately 2,380 pages.³ ¶7 Dr. Grassian testified, on direct examination, to the overall state of Hamilton's medical records and the quality of the evaluations contained therein. He described the records as “helter-skelter,” changing all the time, and often incoherent. He acknowledged that there were opinions in the medical records that were well-founded. He also observed, however, that in other parts of the medical records there was no continuing record or accumulation of knowledge, and that many medical professionals who opined therein had nothing to base their information on, forming their observations, opinions, and conclusions regarding Hamilton based on their impressions of the moment. Dr. Grassian also generally criticized evaluations within the medical records for diagnosing Hamilton, without further explanation, as suffering from antisocial personality disorder

, borderline personality disorder, or as having a tendency to fake a mental illness.

¶8 Thereafter, Dr. Grassian testified to his opinion regarding Hamilton's mental health generally and Hamilton's mental state at the time of the assaultive act. Dr. Grassian opined that Hamilton suffers from bipolar mood disorder, a mental defect presenting volatile emotional changes and episodic periods of psychosis

.

¶9 Dr. Grassian further opined that, due to this disorder, Hamilton was not able to form the requisite mental state to commit the charged offense. Specifically, Dr. Grassian testified that Hamilton was in a dissociative state—an altered statute of consciousness—at the time of the assaultive act. Based on his opinion that Hamilton was in a dissociative state, Dr. Grassian concluded that Hamilton lacked the capacity to form the intent to commit an injurious act against Officer Trout.

¶10 The State, during its cross-examination of Dr. Grassian, inquired as to whether Dr. Grassian had relied on Hamilton's medical records in formulating his opinion. Dr. Grassian responded that he did not rely on the records, stating that the medical records were relevant to his decision-making, but that he did not necessarily make a decision based on the records.

¶11 Shortly thereafter, the prosecutor asked Dr. Grassian whether he made a list of the documents on which he had relied when formulating his expert opinion. Dr. Grassian responded that he had previously made a list of the entries in the medical records upon which he had relied, but had been unable to locate it prior to trial. Dr. Grassian further indicated that, due to the large volume of Hamilton's medical records, he was unable to reconstruct the list before he was due to testify and thus could not identify with particularity those entries in Hamilton's records upon which he had relied in formulating his opinions.

The Prosecutor's Impeachment of Dr. Grassian's Testimony

¶12 During Dr. Grassian's cross-examination, the State attempted to impeach his testimony regarding Hamilton's bipolar mood disorder and Hamilton's mental state at the time in question with the observations, opinions, and conclusions of medical professionals set forth in Hamilton's medical records. The prosecutor's mode of impeachment proceeded as follows: (1) directing Dr. Grassian to a page in Hamilton's medical records containing a different medical professional's observations, opinions, or conclusions that contradicted Dr. Grassian's opinions; (2) identifying or asking Dr. Grassian to identify that medical professional and his or her professional or educational expertise; (3) reading the excerpt from the entry aloud or asking Dr. Grassian to read therefrom; and (4) demanding that Dr. Grassian substantively respond to the statements therein.

¶13 None of the identified medical professionals testified at Hamilton's trial. None of the pages or entries from Hamilton's medical records referenced during Dr. Grassian's cross-examination were admitted as exhibits at trial.

¶14 One of the first medical professionals referenced by the prosecutor in attempting to impeach Dr. Grassian's testimony was a psychiatrist, identified only as Dr. Karnik,⁴ who recorded evaluations of Hamilton in 1999. Notwithstanding that (1) Dr. Karnik did not testify at trial, (2) the medical records generated by Dr. Karnik were not admitted as exhibits, and (3) Dr. Grassian never indicated that he had relied on Dr. Karnik's opinions, observations, or conclusions in forming his own opinions, the trial court permitted the State to impeach Dr. Grassian with the entries generated by Dr. Karnik.

¶15 In particular, the prosecutor read from two entries generated by Dr. Karnik, memorializing Dr. Karnik's belief that Hamilton, in 1999, faked having a mental illness, engaged in polysubstance abuse, presented with a lack of remorse for his wrongful conduct, and failed to assume responsibility for his actions. The prosecutor demanded that Dr. Grassian substantively respond to Dr. Karnik's conclusions and challenged Dr. Grassian as to whether he was more qualified than Dr. Karnik was to evaluate Hamilton's mental health.

¶16 During the second day of Dr. Grassian's cross-examination, the State requested that Dr. Grassian read from a chart note generated by another nontestifying medical professional, identified as Dr. Rolf Kolden. Notwithstanding that (1) Dr. Kolden did not testify at trial, (2) the medical record generated by Dr. Kolden was not admitted as an exhibit, and (3) Dr. Grassian never indicated that he had relied on Dr. Kolden's chart note in forming his opinions, the trial court permitted the prosecutor to attempt to impeach Dr. Grassian's testimony with information recorded by Dr. Kolden.

¶17 The purpose of introducing Dr. Kolden's chart note was to impeach Dr. Grassian's testimony with Dr. Kolden's observation that Hamilton was—at the time he...