State v. Hamlet

• Decision Date: 09 October 1997
• Docket Number: No. 64620-1,64620-1
• Citation: 944 P.2d 1026,133 Wn.2d 314
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Roderick HAMLET, Petitioner.

Page 314

133 Wn.2d 314

944 P.2d 1026

STATE of Washington, Respondent, v. Roderick HAMLET, Petitioner.

No. 64620-1.

Supreme Court of Washington,

En Banc.

Argued June 10, 1997.

Decided Oct. 9, 1997.

John Quirk, Michele Shaw, Seattle, for Petitioner

Norm Maleng, King County Prosecutor, Lee Yates, Deputy, Seattle, for Respondent.

Jeffrey Ellis, Defender Ass'n, Seattle, for amicus Washington Ass'n of Criminal Defense.

MADSEN, Justice.

The jury convicted Defendant of first degree assault, rejecting his claim of diminished capacity. Defendant contends the trial court erred in ordering disclosure of the name and reports of a defense retained psychiatrist who examined Defendant on the issue of diminished capacity, in allowing the State to use the expert as its own rebuttal witness, and in allowing the State to elicit testimony that the psychiatrist was originally retained by the defense. We affirm the conviction.

FACTS

Defendant Roderick Hamlet was convicted of first degree assault committed in July 1993. At that time, Defendant had been a member of the Seattle police force for over 19 years. He was a former Marine who had served in the Vietnam war where he was wounded in combat three times. He suffered from post traumatic stress disorder as a result of his war experiences and his service as a police officer, and had been treated for this disorder prior to the assault.

On July 8, 1993, Defendant and his wife were involved On July 13, 1993, Defendant was charged with first degree assault for shooting Washington. Later the information was amended to add a charge of second degree assault on his wife Freddie.

                in an argument at the family home.  According to Defendant's wife, Freddie Hamlet, Defendant picked up a gun in their bedroom and pointed it at her head, saying "Today you are going to go to heaven."   Verbatim Report of Proceedings (RP) at 190.  She testified she said "so be it," left the room and went outside, and Defendant followed her.  While they were outside, a family friend, Raymond Washington, arrived to pick up keys which the Hamlets were holding for him.  According to Washington, Defendant said "So you're the man that's here to stop us."   RP at 190.  Washington replied, "I don't know what you are talking about.  I just came to pick up my keys."   RP at 190-91.  Defendant said "I lost everything.  I lost it now.  I lost everything."   RP at 112.  Defendant then pointed a gun at Washington and ordered him to start walking, to leave.  Washington did, but then was ordered to return.  When Washington saw that Hamlet was very tense, he turned and ran.  Defendant fired several shots at him, hitting him several times.  Police responded quickly to numerous 911 calls.  Defendant dropped the two guns he was carrying and was arrested
                

About one month after the shooting, the defense retained a psychiatrist, Dr. George Christian Harris, to examine Defendant for purposes of a possible mental status defense. On August 13, 1993, Dr. Harris interviewed Defendant. In December 1993, the defense had psychiatrist Dr. John Liebert interview Defendant. Following Dr. Liebert's evaluation, the defense notified the State that the defense would rely on a claim of diminished capacity and that Dr. Liebert would testify in support of the defense. Although counsel revealed that another expert had interviewed Defendant, counsel did not disclose Dr. Harris's name, explaining that the second expert would not be called as a witness. The State moved for disclosure.

The trial court granted the motion and ordered disclosure of the name of the nontestifying expert, and his written reports, tests, and notes, and permitted the State to conduct an oral interview of the expert. The court ordered that the discovered information could not be used at trial unless Defendant presented a diminished capacity defense. Further, the court ordered that no discovery would be allowed of written communication between defense counsel and the expert. Defendant moved for direct discretionary review by this court, which was denied. Defense counsel then disclosed Dr. Harris's name. The prosecutor spoke with Dr. Harris, and also had Defendant evaluated by a third expert, Dr. McFall.

Prior to trial, Defendant moved for exclusion of evidence that the defense had originally retained Dr. Harris. The motion was denied.

At trial, the State's evidence tended to show that Defendant was angry about his relationships with his wife and children, and was jealous of Washington's role in the family's life, particularly with regard to Defendant's wife.

Defendant presented Dr. Liebert's testimony that Defendant suffers from severe post traumatic stress disorder resulting from his Vietnam service and his experiences as a police officer. Dr. Liebert described specific events Defendant flashed back to during the confrontation with Washington. Dr. Liebert concluded that Defendant was in at least a partially dissociative state at the time of the shooting and therefore his mental capacity to form specific intent at the time of the shooting was substantially impaired. Defendant testified, describing events in Vietnam and comparing them to his encounter with Washington, and identifying incidents while a police officer which caused flashbacks to Vietnam experiences. He described Washington as a "bad troop" he was trying to stop.

At the close of the defense's case, a stipulation was read to the jury which stated that the defense retained Dr. Harris in 1993 to evaluate Defendant, and after receiving Dr. Harris's report learned of Dr. Liebert's expertise in In rebuttal, the State called Dr. Harris, who testified that Defendant had described arguing with his wife about Washington the night before the shooting, and a threat by his wife to throw him out of the house. Dr. Harris testified Defendant said he thought Washington was going to challenge him when he drove up. Defendant did not describe his Vietnam experiences to Dr. Harris. Based upon his evaluation, Dr. Harris concluded that Hamlet was not in a dissociative state at the time of the shooting. He found no evidence that Defendant suffered from any mental condition which would excuse or minimize his behavior. Dr. McFall similarly testified that based upon his evaluation, Defendant was not experiencing a dissociative state at the time of the shooting. He testified that Defendant told him that he aimed low so as not to kill Washington, and his memory of the incident was very good, both being inconsistent with the claim of being in a dissociative state at the time.

post traumatic stress disorder and retained him to evaluate Defendant.

The jury found Defendant guilty of first degree assault for shooting Washington, but found him not guilty of assaulting his wife. The Court of Appeals affirmed. State v. Hamlet, 83 Wash.App. 350, 921 P.2d 560 (1996), review granted, 131 Wash.2d 1005, 932 P.2d 644 (1997). The Washington Association of Criminal Defense Lawyers has filed an amicus curiae brief in support of Defendant.

ANALYSIS

Defendant contends the order requiring disclosure of Dr. Harris's name and his opinions and the State's use of Dr. Harris as a rebuttal witness violate the attorney-client privilege and the Sixth Amendment right to counsel. The State maintains these issues have already been decided adversely to defendant in this court's decision in State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338 (1990). We agree.

In Pawlyk, the court held that regardless of whether the defense intends to call as a witness a psychiatrist who examined the defendant for purposes of a possible insanity defense, the State may discover the psychiatrist's written reports and opinions and may call the psychiatrist as its own witness to rebut expert testimony offered by the defendant in support of an insanity defense. Defendant contends that Pawlyk is distinguishable from this case because there the defendant asserted an insanity defense, while here Defendant claims diminished capacity. Amicus curiae Washington Association of Criminal Defense Lawyers (WACDL) also maintains Pawlyk is distinguishable, and alternatively argues that Pawlyk should be overruled.

Defendant reasons that in the case of an insanity defense, the burden of proof is on the defendant to prove insanity by a preponderance of the evidence. State v. Box, 109 Wash.2d 320, 745 P.2d 23 (1987). In contrast, Defendant argues, diminished capacity is an affirmative defense only to the extent that the Defendant has the burden of producing some evidence of diminished capacity, but that once the issue is raised the State bears the burden of proving the absence of the defense beyond a reasonable doubt.

Although the burdens of proof of insanity and diminished capacity are different, the difference is not a basis on which Pawlyk can reasonably be distinguished. First, the criminal discovery rule, CrR 4.7, does not distinguish between insanity as a defense and diminished capacity. State v. Hutchinson, 111 Wash.2d 872, 880, 766 P.2d 447 (1989). Second, Pawlyk was not decided on the burden of proof, but instead is based on the State's need for evidence, which may be the best and most accurate evidence of a defendant's mental state, once defendant places that mental state at issue. The need for such evidence is just as great in the case of diminished capacity as it is in the case of insanity. Cf. State v. Brewton, 49 Wash.App. 589, 591-92, 744 P.2d 646 (1987) (distinction between burdens of proof of insanity and diminished capacity not relevant to issue whether the defendant waived physician-patient and Fifth Amendment privileges once defendant injected mental condition into case; assertion of privilege would deprive the State, and ultimately the jury, of important evidence on that issue).

Defendant raises several additional arguments, each of which was addressed and rejected in Pawlyk. Defendant has cited no authority requiring reversal of that decision. ¹

Amicus WACDL expressly asks ...