State v. Lucas

• Decision Date: 06 March 2012
• Docket Number: 41751–1–II.,Nos. 41131–8–II,s. 41131–8–II
• Citation: 271 P.3d 394
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jonathan Mark LUCAS, Appellant.Personal Restraint Petition of Jonathan Mark Lucas, Petitioner.

271 P.3d 394

STATE of Washington, Respondent,

v.Jonathan Mark LUCAS, Appellant.Personal Restraint Petition of Jonathan Mark Lucas, Petitioner.

Nos. 41131–8–II

41751–1–II.

Court of Appeals of Washington, Division 2.

March 6, 2012.

Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.

Jonathan Mark Lucas (Appearing Pro Se), Washington State Penitentiary, Walla Walla, WA, for Petitioner.

Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, J.

¶ 1 Jonathan Mark Lucas appeals his conviction for second degree and fourth degree assault. In his direct appeal, he contends that the trial court (1) abused its discretion in admitting evidence of his prior conviction when he did not testify and (2) violated his speedy trial rights when it granted a continuance over his objection to allow his counsel more time to prepare a diminished capacity defense. In his personal restraint petition (PRP), he contends that the trial court failed to timely file necessary documents related to his appeal. We hold that the trial court abused its discretion in admitting evidence of Lucas's prior conviction and that the error was not harmless. We reverse Lucas's conviction and remand for further proceedings. We also deny his PRP.

FACTS

¶ 2 On September 4, 2009, while walking down the street in Vancouver, Washington, around 6:00 p.m., Terry Taylor heard “[a] bunch of yelling.” Report of Proceedings (RP) at 219. While Taylor waited to cross the street, Lucas, the source of the yelling, came into view and continued walking toward Taylor. Taylor felt that Lucas's behavior was “erratic” because Lucas was unintelligibly cursing, “yelling,” and “ranting.” RP at 220, 229–30. Lucas followed Taylor across the street and overtook him. Taylor, who felt fearful, turned to face Lucas, and Lucas stepped within arm's length. Taylor told Lucas to stop and to get away from him, and Lucas, who was still ranting and yelling unintelligibly, cursed and punched Taylor in the side of his face and ear. As Taylor backed away, Lucas advanced, so Taylor fled down the street and called 911.

¶ 3 Boulder County, Colorado, Deputy Sheriff Jeffrey Caton, who was off-duty and pulling into a nearby restaurant parking lot, observed Taylor running down the street with Lucas in pursuit. A man emerged from the restaurant and told Caton that Lucas had just assaulted Taylor. Caton identified himself to Taylor, Taylor told him what had happened, and Lucas walked around the corner and began approaching them. Caton ordered Lucas to go away and to leave the area but Lucas continued approaching. Caton displayed his firearm and badge, identified himself as a deputy sheriff, and again ordered Lucas to back away and to leave, but Lucas continued advancing.

¶ 4 When Caton tried to push Lucas away, Lucas reached over Caton's arms and punched him in the nose. Caton drew his firearm and ordered Lucas to get down. Lucas, who was yelling, screaming, and cursing, refused to comply, said “ ‘I don't care’ ” and “ ‘I'm not going to do what you say,’ ” and began walking away. RP at 245–46.

¶ 5 Vancouver Police Department Officer Franklin Gomez, who had arrived at the scene, repeatedly ordered Lucas to get on the ground. When Lucas turned, stared at Gomez, and refused to comply, Gomez drew his stun gun and warned Lucas that he would deploy it if Lucas did not comply. Eventually, Lucas complied and was handcuffed and placed in the back of Gomez's patrol car.

¶ 6 Another responding police officer read Lucas his Miranda¹ rights and asked Lucas what had happened. Lucas said that Taylor had “disrespected” him, so he “slapped” Taylor. RP at 308. Lucas denied hitting Caton and repeatedly stated, “ ‘Why am I under arrest? Just let me go home. I won't cause any more problems.’ ” RP at 308.

¶ 7 Gomez also spoke with Lucas. Lucas also told him that he “slapped” Taylor because Taylor had disrespected him, denied hitting Caton, and said “ ‘I don't know what you are talking about and take me to jail.’ ” RP at 287. Although Lucas was responsive to Gomez's questions, Lucas had a strong odor of alcohol on his breath, his speech was slurred, and when he vomited in Gomez's patrol car, his vomit also smelled of alcohol.

¶ 8 The State charged Lucas with second degree assault, count one, and fourth degree assault, count two. At his arraignment, Lucas's counsel stated that after reviewing the police report and Lucas's mental health treatment history, he believed that Lucas should pursue a diminished capacity defense. But Lucas's counsel indicated that he needed Lucas to waive his speedy trial rights to effectively prepare this defense because he needed to obtain more of Lucas's mental health records and to retain an expert to evaluate Lucas. Lucas's counsel stated, “ ‘[Lucas] has indicated he may not want to do that. No, I don't think—I think he indicated he wants to rely on his speedy trial rights ... I think I should waive speedy trial for him. He may not want to. He may want to have an objection to it.’ ” RP at 3–4. Later, Lucas's counsel stated, “ ‘[Lucas] is not apparently waiving.’ ” RP at 4–5. The trial court found that Lucas's counsel needed additional time to prepare a possible diminished capacity defense, set a new commencement date of November 28, 2009, and set trial for January 27, 2010. The trial court entered a written speedy trial waiver that Lucas refused to sign.

¶ 9 Lucas's trial began on March 8, 2010.² Doctor Jerry Larsen, a psychiatrist, testified as an expert for Lucas on his diminished capacity defense. According to Larsen, a review of Lucas's mental health treatment history demonstrated a history of paranoid schizophrenia “going back many years,” “characterized by hallucinations, by delusions, [and] by behavioral excesses such as bizarre behaviors.” RP at 326. He stated that alcohol consumption would exacerbate those symptoms.

¶ 10 Larsen also interviewed and examined Lucas. Lucas told him that on the morning of September 4, 2009, he had consumed a large amount of alcohol and that he remembered little else other than vomiting and waking up in jail. Lucas also said that he had not taken his psychotropic medication for 10 days. Larsen stated that Lucas's assault on Taylor and Caton was consistent with acting out on a paranoid schizophrenic delusion. He opined that at the time of the assaults, Lucas was incapable of forming the necessary intent to commit a crime or of calculating the risk of his actions.

¶ 11 Outside the presence of the jury, the State moved to cross-examine Larsen with evidence of Lucas's 2001 first degree robbery conviction, arguing that Lucas was “essentially testifying through [Larsen] about the events in question” and, because Larsen partially based his evaluation on Lucas's statements, Lucas's “credibility and truthfulness” was at issue. RP at 340. Over Lucas's objection, the trial court allowed the State to cross-examine Larsen about Lucas's conviction, reasoning:

[I]n general, the hearsay statements that experts testify to are subject to a curative instruction; that the hearsay is only introduced for the purpose of explaining how the individual formed their opinion. It is not offered for the truth of the matters asserted and only to allow the set up to their opinion. However, to the extent that credibility is an issue with regard to the doctor's opinion, [ER] 806 would appear to apply. It does say that a hearsay statement, once it has been admitted, credibility of the declarant may be attacked and may be supported by any evidence that would be admissible for those purposes, if the declarant had testified as a witness [sic]. So, it is permissible for the State to bring in [Lucas's robbery conviction].

RP at 341–42.

¶ 12 During cross-examination, Larsen stated that he was aware of Lucas's 2001 first degree robbery conviction. Larsen also testified on cross-examination that (1) he evaluated Lucas four months after the assaults; (2) Larsen could not verify Lucas's statements and took them at “face value”; (3) Lucas was very specific in stating the number of drinks and number of days without taking his medication despite his claim of memory loss on the day of the assaults; (4) Larsen did not know what symptoms Lucas experienced while not taking his medication, paranoid schizophrenics usually avoid people instead of confronting them; (5) someone who has “blacked out” from excessive alcohol consumption can still engage in a series of intentional acts; and (6) Lucas demonstrated cognitive ability after the assaults by complying with law enforcement's commands and by conversing with them. RP at 350, 355.

¶ 13 Doctor Gregory Kramer, a psychologist, testified as the State's expert. He also diagnosed Lucas with paranoid schizophrenia based on Lucas's mental health treatment history. But Kramer stated that during the assaults there was evidence of only Lucas's intoxication, not symptoms of paranoid schizophrenia. He testified that Lucas's statement that he slapped Taylor because he “felt disrespected” and his conversation with law enforcement and eventual compliance with their commands demonstrated his capacity to form intent at the time of the assaults. RP at 402. Kramer opined that the evidence showed that Lucas was capable of both forming intent and of making risk calculations at the time of the assaults.

¶ 14 The jury found Lucas guilty as charged. Lucas unsuccessfully moved for arrest of judgment or for a new trial. Lucas filed his direct appeal and then he filed a motion to dismiss the entire case because appellate counsel, due to the trial court's untimely filing of documents with this court, was never appointed. We converted his motion to dismiss into a PRP and consolidated it with his direct appeal.

ANALYSIS

ER 806 and Expert Testimony Based on Out–of–Court Statements

¶ 15 Lucas first argues that the trial court abused its discretion in allowing the State to cross-examine...