State v. Thamert
| Decision Date | 25 August 1986 |
| Docket Number | No. 15565-2-I,15565-2-I |
| Parties | STATE of Washington, Respondent, v. John David THAMERT, Appellant. |
| Court | Washington Court of Appeals |
Anna Marie Sarkanen, Wash. Appellate Defender, Seattle, for John David Thamert.
Jamie Mittet, Deputy Pros. Atty., Seattle, for State of Wash.
John David Thamert appeals his conviction for two counts of second degree robbery. He alleges that the trial court erred when it failed to allow a jail nurse and a psychiatrist to testify regarding his diminished capacity defense and when it admitted evidence of prior robbery convictions without the requisite balancing under 404(b). We affirm the trial court.
On June 13, 1984, a new accounts clerk at the Burien branch of Seattle Trust Bank noticed Thamert sitting on the sidewalk in front of the bank, apparently waiting for it to open. She testified that Thamert looked "kind of half--like sleepy," "kind of messy and tired looking", and "like he was not very with it at that moment," but he did not appear to be drugged or drunk as he milled around the lobby.
Maria, a teller, testified that when Thamert entered the bank he had a coat over his arm which completely covered his hand. Thamert waited behind the customer whom Maria was serving, although tellers were available on each side of her. One of the other tellers asked if she could help Thamert, but he responded he would wait where he was. When Thamert stepped up to Maria's window, he said in a low voice, " 'I'm armed and I want a thousand dollars.' " When Maria asked whether he had something to put the money in, he responded that he would put it in his pockets. After she gave Thamert the money, he said, " " Maria told the police later that Thamert appeared to be drugged.
On June 25, 1984, Krista, a teller for Seattle-First National Bank, noticed a customer had gotten out of line and was waiting for her. Again, tellers were free on each side of her. The man, later identified as Thamert, was carrying a coat over his arm. He stepped up to her cage and told her in a low voice that he was armed and dangerous and that he wanted $1,000. As Krista took the money from her cash drawer, she tripped the silent alarm. After receiving the money, Thamert said that he wanted 10 minutes to get away.
The police arrived and arrested Thamert at a nearby donut shop and advised him of his Miranda rights. At the precinct, the police found $1,000 on Thamert. After the police re-advised Thamert of his rights, he gave a statement which began: He also confessed to the crimes with which he is charged here, explaining that voices told him to rob the banks. His confession was admitted into evidence over defense objection.
At trial, Dr. John Petrich, a psychiatrist, testified for the defense that Thamert was suffering from chronic paranoid schizophrenia, an incurable disorder characterized by identity confusion, the hearing of voices, indecisive thinking, and poor impulse control. He also stated that he was unsure whether Thamert was taking the medication Prolixin at the time of the robberies. Prolixin tends to suppress the hallucinations and disorganization suffered by schizophrenics. Dr. Petrich testified that in his opinion Thamert was unable to form the intent to steal at the time in question.
Following Dr. Petrich's testimony, the court granted the State's motion to exclude the testimony of Dr. Coleman, the jail psychiatrist who conducted a mental status examination on June 25, 1984, following Thamert's arrest and who had subsequently prescribed medication for him. The court previously had also granted the State's motion in limine to exclude the testimony of the jail nurse who administered anti-psychotic medication to Thamert.
Thamert was convicted of two counts of second degree robbery. He first contends that the trial court erred when it excluded testimony of the jail psychiatrist.
Whenever "intent," as defined in RCW 9A.08.010(1)(a), is an element of a crime, it may be challenged by competent evidence of a mental disorder resulting in the inability to form the requisite intent when the crime was committed. State v. Edmon, 28 Wash.App. 98, 104-106, 621 P.2d 1310 (1981). Since intent is a necessary element of robbery, this "diminished capacity" defense is available in a robbery prosecution. State v. Faucett, 22 Wash.App. 869, 593 P.2d 559 (1979); State v. Carter, 5 Wash.App. 802, 490 P.2d 1346 (1971).
When diminished capacity is raised, an expert may give an opinion regarding the defendant's ability to form a specific intent when the following foundational requirements are met:
1. The defendant lacked the ability to form a specific intent due to a mental disorder not amounting to insanity.
2. The expert is qualified to testify on the subject.
3. The expert personally examines and diagnoses the defendant and is able to testify to an opinion with reasonable medical certainty.
4. The expert's testimony is based on substantial supporting evidence in the record relating to the defendant and the case, or there must be an offer to prove such evidence. The supporting evidence must accurately reflect the record and cannot consist solely of uncertain estimates or speculation.
5. The cause of the inability to form a specific intent must be a mental disorder, not emotions like jealousy, fear, anger, and hatred.
6. The mental disorder must be causally connected to a lack of specific intent, not just reduced perception, overreaction or other irrelevant mental states.
7. The inability to form a specific intent must occur at a time relevant to the offense.
8. The mental disorder must substantially reduce the probability that the defendant formed the alleged intent.
9. The lack of specific intent may not be inferred from evidence of the mental disorder, and it is insufficient to only give conclusory testimony that a mental disorder caused an inability to form specific intent. The opinion must contain an explanation of how the mental disorder had this effect.
(Citations omitted.) Edmon, 28 Wash.App. at 102-03, 621 P.2d 1310.
Thamert's offer of proof regarding Dr. Coleman's testimony failed to comply with the first, sixth and ninth prongs of the Edmon test. There was no representation given that the jail psychiatrist had made any determination of Thamert's capacity to form the intent to rob. Dr. Coleman's testimony, as offered, would have merely described Thamert's general mental state on June 25, which is neither relevant nor material to the question of his ability to form the specific intent to rob. See also Carter, 5 Wash.App. at 807, 490 P.2d 1346. The offer of proof also failed to establish that the psychiatrist was competent to testify with any degree of certainty that Thamert was on drugs when he was arrested. Dr. Coleman would have testified only that he gave Thamert drugs after he was arrested, a fact which was immaterial and irrelevant to the issues of whether Thamert lacked the ability to form the specific intent to commit robbery, and, if so, whether this inability was the result of a mental disorder.
Finally, in light of the fact that Dr. Petrich had already testified with medical certainty that he believed Thamert could not form the intent to commit robbery, the court correctly determined that the testimony of the jail psychiatrist would be not only legally insufficient, but cumulative. See State v. Mathews, 38 Wash.App. 180, 185-86, 685 P.2d 605 (1984). Thus, the court properly excluded the testimony on this basis.
Thamert also contends that the court erred when it excluded testimony from the jail nurse, a lay witness. 1 Lay witnesses may testify concerning the sanity or mental responsibilities of others so long as the witness' opinion is based on facts the witness personally observed. State v. Stoudamire, 30 Wash.App. 41, 47, 631 P.2d 1028 (1981); State v. Crenshaw, 27 Wash.App. 326, 332-33, 617 P.2d 1041 (1980). The court has discretion in deciding whether to allow a non-expert witness to testify concerning the defendant's mental state. State v. Stoudamire, supra. The court's decision will be upheld if it is not manifestly unreasonable or exercised on untenable grounds or untenable reasons. Stoudamire, 30 Wash.App. at 47, 631 P.2d 1028.
Here, the court did not abuse its discretion. The offer of proof indicated that the nurse would merely testify to Thamert's general mental state. She lacked the expertise to address the central issue before the court, i.e., whether Thamert's diminished capacity resulted in an inability to form the specific intent to commit these robberies. Further, she could not even testify from personal knowledge whether he was on drugs when he committed the robbery. Therefore, the court properly excluded the nurse's testimony.
Thamert next contends that the trial court erred when, without considering his objection under ER 404(b), it admitted into evidence that portion of Thamert's confession in which he mentioned his prior bank robbery without considering his objection under ER 404(b). 2 We agree that the evidence of the prior robbery raises an issue under ER 404(b), which provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
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