Opinion
No. 107,008.
2013-03-8
STATE of Kansas, Appellee, v. Adam BLOMDAHL, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant. Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant. Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Adam Blomdahl was convicted of arson under K.S.A. 21–3718(a)(l)(B). Blomdahl raises two issues on appeal. First, Blomdahl was denied the opportunity to present evidence at trial either personally or from his psychiatrist to explain that Blomdahl's mental illnesses influenced his decision to drive to Nebraska after his house caught on fire, instead of seeking immediate medical attention for his burns. The trial court reasoned that because Blomdahl was not proceeding under a defense of mental disease or defect, the evidence was not relevant. Blomdahl argues the trial court's decision denied him his constitutional right to present a defense. We agree and because we cannot find the error to be harmless, we are required to reverse his conviction and remand the case for a new trial.
Second, the trial court provided the jury instructions on the elements necessary for the State to prove arson, including a requirement that Blomdahl must have had the intent to injure or defraud a “lienholder or insurer.” Blomdahl argues that because it is undisputed that there was no lienholder in this case, insufficient evidence existed for the jury to unanimously convict him of these alternative means to commit arson and his conviction must be reversed. But because we have found that the conviction should be reversed due to the denial of Blomdahl's right to present a defense, we need not reach this issue. Reversed and remanded.
Factual and Procedural History
After his discharge from the Marines, Adam Blomdahl purchased several properties in Kansas City. He intended to use one of the properties as a residence. Blomdahl began working on the residence with his father until he ran out of money. He enlisted in the Army to earn more money. After being discharged from the Army, he moved into the residence. Two months after moving into the residence, he obtained an insurance policy on the property from State Farm.
A few months later, Blomdahl purchased gasoline and put it in a 40–gallon metal barrel. His stated intention was to use the gasoline for his lawn mower. Blomdahl placed the barrel of gasoline by the house, then went into the house and began staining the living room floors. In the early morning hours, Blomdahl cooked a steak. He ate it in the living room and might have fallen asleep. When he returned to the kitchen, he saw flames and sparks. He felt an explosion and knew he was burning. He claimed that he felt like he was dying and his life was in jeopardy. It was later determined that, despite Blomdahl's speculations, the metal barrel of gasoline did not explode or cause the explosion.
Instead of seeking medical attention or notifying anyone of the fire, Blomdahl walked out of the house as it was burning, got into his truck, and drove to Valentine, Nebraska, where he had been planning to visit friends. He drove for 8 hours, claiming that he was on “autopilot,” rented a hotel room, and slept. When he awoke and went to his truck, he discovered he could not drive because his fingers were not able to open the door. He then went to the hotel clerk and she arranged for him to be transported to the hospital. He was quickly transferred to a burn center and later a rehabilitation center.
While in the burn center, Blomdahl did not make an insurance claim. However, his father, who was a resident of the house and had lost property, did make a claim, although Blomdahl was not aware of it. After being charged with arson, Blomdahl filled out a proof of loss statement as instructed by his insurance agent, but Blomdahl testified that he did not make a claim for any loss.
Fire investigators found traces of gasoline in the house, and the fire pattern was consistent with a rapidly burning fire, which indicated use of an accelerant. Based on their findings, Blomdahl was charged with arson with the intent to injure or defraud a lienholder or insurer. Prior to trial, Blomdahl attempted to introduce evidence from his psychiatrist that was intended to “determine whether or not the reason that he drove to Nebraska after this fire could have been caused by his mental health issues.” The judge refused to allow the evidence, finding that it was not relevant because Blomdahl was not proceeding under a mental disease or defect defense.
At trial, the judge provided jury instructions that indicated the State must prove Blomdahl had the intent to injure or defraud a lienholder or insurer even though everyone, including the judge at the instruction conference, conceded there was no evidence there was any lienholder in this case. Blomdahl had always owned the property outright. Blomdahl was provided an opportunity to object to the proposed instructions, but responded through his attorney, “I understand that's how the statute reads. I can't imagine the jury would in any way be confused about that since it's been the total testimony throughout this trial.” Blomdahl was subsequently convicted. This appeal followed.
Analysis
Blomdahl presents two issues on appeal. First, that his constitutional right to present a defense was denied when the trial court refused to allow Blomdahl and his psychiatrist to testify regarding his mental illnesses as they related to his flight. Second, that a jury instruction used in this case, which informed the jury that the State was required to prove Blomdahl intended to defraud a lienholder or insured, required the State to present some evidence that Blomdahl had the intent to defraud both a lienholder and an insurer. Because both parties agreed there was no lienholder in this case, Blomdahl asserts that his conviction must be reversed. We will address these claims in order.
Blomdahl's constitutional right to present a defense is examined .
A claim that the district court has interfered with a defendant's right to present a complete defense is reviewed de novo. State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007). Blomdahl contends that this constitutional right was violated in two ways: first, he was not permitted to provide expert testimony from his psychiatrist regarding his mental illnesses and second, he was not able to testify regarding his mental illnesses.
Admissibility of Expert Conclusions
Blomdahl argues that the testimony of his psychiatrist is relevant, and therefore it meets the threshold consideration for the admissibility of evidence and should have been permitted by the trial court. By denying him the ability to corroborate his own testimony that it was “ ‘like a bad dream’ “ and it was like he was on “ ‘autopilot’ “ by presenting an expert to testify that the trauma of being badly burned coupled with his mental illnesses could have caused him to act irrationally, Blomdahl argues he was denied the opportunity to present his defense.
“The defendant's fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded.” State v.. Pennington, 281 Kan. 426, 439, 132 P.3d 902 (2006). Relevant evidence is evidence having any tendency to prove any material fact. K.S.A. 60–401(b). Appellate review for materiality is de novo. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009). Evidence of flight may be admissible to establish the consciousness of guilt, the commission of the acts charged, and the intent and purpose for which those acts were committed. State v. Phillips, 295 Kan. 929, 287 P.3d 245, 260 (2012); State v. Jamison, 269 Kan. 564, 569, 7 P.3d 1204 (2000). The district judge pointed out that Blomdahl's flight was going to be central to the prosecution's proof of intent. The testimony proffered by Blomdahl was relevant to rebut the material fact put forth by the prosecutor—that his flight from the scene evidenced a plan to evade detection.
Prior to trial, the prosecutor moved to prevent the defense from presenting any evidence regarding Blomdahl's mental disabilities.
“The State requests that the defense be precluded from making any statements or questioning witnesses in an effort to elicit statements regarding the defendant's mental disabilities. The defendant is not proceeding under a defense of lack of mental state pursuant to K.S.A. 22–3219. Therefore, this is not relevant evidence, would likely illicit sympathy from the jury and would be prejudicial to the state.”
The State then argued at the motion hearing that Blomdahl should be prevented from calling a psychiatrist to testify regarding why he drove to Nebraska, which was 8 hours away:
“[State]: She [defense counsel] told me she was going to call a psychiatrist and I don't know that that psychiatrist is going to be available. However, the defendant does suffer from what I believe is schiz—schizoaffective disorder and bipolar disorder. And because they're not proceeding under an insanity defense and the State was not provided notice, I think any mention of those things would be prejudicial to the State and the jury could possibly be sympathetic if they knew that the defendant was suffering from those mental illnesses.
“THE COURT: Your response?
“[Blomdahl's Attorney]: Judge, my only intent in calling his psychiatrist was to determine whether or not the reason that he drove to Nebraska after this fire could have been caused by his mental health issues. After this fire occurred, he had been severely burned and he drove to the state of Nebraska where he had intended to drive earlier that evening. He was going to have dinner.... So my intent was not to call her as a witness as to whether or not a mental illness is the reason as to why this crime occurred and that that is an excuse as a mental illness effect—defense, it was to determine whether or not that could have been a reason as to why he, in fact, drove to Nebraska, whether or not his mental illness maybe would have caused him to drive to Nebraska since that was a previous intention.
“THE COURT: You have a scientific report?
“[Blomdahl's Attorney]: I do not, Judge.
“THE COURT: I don't see the relevance frankly and I won't allow it. You haven't established that you are proceeding under a mental disease or defect defense. Therefore, any reference to such in the court's opinion would be prejudicial to the State, not relevant and not probative and I can't allow you to do that.
“[Blomdahl's Attorney]: And, Judge, just so the record is clear, it wouldn't have been offered as a defense, it would have been offered as a reason as to why he drove to Nebraska, not a reason for the fire in and of itself. It would be more on the State's evidence that they intend to propose evidence that he—there was flight because he committed a crime, but I understand the court's ruling on that.
“THE COURT: Yes, ma‘am. And I think flight is certainly one of the elements I assume that State's going to be relying on to prove intent which goes to mental state. So that's my ruling. Anything else?”
There was no dispute that Blomdahl suffered from a mental illness. However, he was not contending that the mental illness caused him to set fire to his house. In fact, he continually denied that he set the fire and further denied that he ever made any claim to his insurance company. Although there was expert evidence presented that gasoline was present and used as an accelerant, the evidence against Blomdahl was far from overwhelming.
The State's theory was that Blomdahl spread gasoline around the house and lit it on fire. The State relied on Blomdahl's flight from the scene of the fire as evidence of a plan to evade detection, and to thereby establish his guilt. The prosecutor mentioned it in opening statement, highlighted the fact in her questioning of witnesses, demonstrated the inconsistency in Blomdahl's actions by referring to a map—pointing out that the University of Kansas Medical Center was just a few minutes away—and highlighted it repeatedly in closing argument: “His plan I'm sure was to flee to Valentine, Nebraska. His plan was probably to be out of the state once the fire department arrived and they wouldn't have known who would have been there.”
The State relies exclusively on State v. Papen, 274 Kan. 149, 156, 50 P.3d 37,cert. denied537 U.S. 1058 (2002), to support its position that relevant testimony from an expert witness relating to a defendant's mental health is prohibited where the defendant is not proceeding under a mental disease or defect defense. But we find Papen to be distinguishable.
In Papen, the defendant was being tried for premeditated first-degree murder. His expert witness, Dr. Schulman, planned to testify that Papen's actions were the result of physical and psychological “frustration” and that
“ ‘[b]ecause of the nature of the relationship, [Papen] could not have planned and in a deliberate or premeditated way cause[d] her death.’ Furthermore, Schulman opined that ‘[w]hat happened at the time of her death was spontaneous, in part precipitated by the victim and done in the heat of passion with diminished capacity.’ In other words, Schulman would have testified that Papen did not have the mental capacity to plan to kill Dana.” Papen, 274 Kan. at 157.
The court refused to allow this expert witness testimony, finding that whether the crime was premeditated or committed in the heat of passion was for the jury to decide. Our Supreme Court found that the jurors were capable of doing that based upon the application of their common experience to the evidence that had been admitted concerning the psychologically and physically unfulfilling nature of the relationship for Papen. There was no need for expert psychological testimony. Papen, 274 Kan. at 156–57. The court cited State v. Hobson, 234 Kan. 133, 159–60, 671 P.2d 1365 (1983), which found “no authority that would support the admission of evidence of a defendant's mental capacity to commit a specific act where insanity was not an issue,” and rejected Papen's argument. Papen, 274 Kan. at 158.
We see this case as significantly different than Papen and more akin to several Supreme Court cases approving the introduction of expert psychiatric testimony as it relates to a defendant's ability to respond reliably to interrogation. Cf. State v. Oliver, 280 Kan. 681, 702, 124 P.3d 493 (2005), cert. denied547 U.S. 1183 (2006), disapproved on other grounds State v. Anderson, 287 Kan. 235, 197 P.3d 409 (2008); State v. Swanigan, 279 Kan. 18, 38–39, 106 P.3d 39 (2005); cf. State v. Kleypas, 272 Kan. 894, 922–23, 40 P.3d 139 (2001), cert. denied537 U.S. 834 (2002). These cases make clear that a mental disease or defect defense is not always implicated when a defendant seeks to shed light on his or her mental state.
Here, the jurors were not faced with evidence concerning whether Blomdahl had the mental capacity to commit one of the elements of the crime. Instead the jurors were faced with competing arguments concerning Blomdahl's actions in driving to Nebraska. The State presents three arguments on appeal in support of the exclusion of evidence of Blomdahl's mental illnesses.
First, the State certainly advances the viewpoint that Blomdahl's actions were a clear attempt to evade detection, because common sense would inform one to call 9–1–1 and get to the nearest hospital. Blomdahl, on the other hand, argues that unless jurors had been in Blomdahl's situation, they could not possibly second guess how he responded in his “traumatic state.” Here, Blomdahl wished to use expert witness testimony from his psychiatrist to demonstrate that his mental illnesses contributed to the decision to drive to Nebraska after suffering severe burns, and thereby rebut the State's argument that his reaction was a clear indication that he was guilty of the crime.
Next, the State argues that the admission of evidence concerning Blomdahl's mental illnesses would mislead and confuse the jury. Jurors may have been inclined to jump to the conclusion that Blomdahl committed the crime but was not guilty because of his mental illnesses. However, Blomdahl never took the position that he committed the crime or that he may have committed the crime. He unequivocally denied starting a fire and denied that he had any intent to defraud his insurance carrier. As Blomdahl points out, any such concern regarding juror confusion could have been addressed by a limiting instruction to the jury.
Finally, the State suggests that Blomdahl's proffer was somehow deficient and no report was prepared, therefore, the evidence was properly excluded. The trial court also noted that there was no scientific report. But the court did not base its denial on the failure to present a scientific report or the failure to make an appropriate proffer. Instead, it based its decision solely on relevance. In addition, the State admitted that Blomdahl suffered from “schizoaffective disorder and bipolar disorder.” Moreover, failure to present a report should not exclude Blomdahl himself from testifying regarding his mental condition at the time he drove to Nebraska, an issue we will review next.
Blomdahl's Right to Testify
A criminal defendant has a constitutional right to testify on his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 51–52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The defendant did testify at length in this case. However, Blomdahl argues that the trial court's ruling regarding the psychiatrist testimony prevented him from testifying as to his own mental illnesses as well. We agree.
The State requested “the defense be precluded “from making any statements or questioning witnesses in an effort to elicit statements regarding the defendant's mental disabilities.” (Emphasis added.) At the motion hearing, the judge sided with the State, and found that “any reference” to mental illness would be prohibited. Accordingly, Blomdahl was prohibited from proffering any testimony of his own relating to his mental illnesses. The defense was limited to arguing common sense of an ordinary person versus common sense for someone who has been subjected to a traumatic event.
Accordingly, we agree that Blomdahl was denied the opportunity to present his defense.
We cannot find the error was harmless.
The exclusion of evidence which denies the defendant an opportunity to present a defense is subject to a harmless error analysis. See Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Kleypas, 272 Kan. at 923. Having found error, we must next determine whether this error prevented Blomdahl from presenting a complete defense and denied him a fair trial. We find that it did.
As already noted, this was not a case of overwhelming evidence. Blomdahl's attorney presented a very effective argument that Blomdahl had no motive to burn down his house because he had recently put a significant amount of money into remodeling it, including spending the day of the fire staining the floors and putting polyurethane on the cabinets a few days earlier. He was not short of money, as he had almost $70,000 in the bank and no debt. She also pointed out that Blomdahl never filed a claim for insurance payment and was not aware that his father had. Although the State's experts testified that they smelled gasoline in numerous locations, only one sample tested positive for gasoline. She pointed out that a Kansas Bureau of Investigation witness testified that gasoline can remain in carpet for a long time and the sole positive sample in this case came from carpet. The majority of the State's closing argument was devoted to its theory that the defendant was burned while intentionally starting the fire and then fled to Nebraska in hopes of avoiding detection. This was clearly a material fact in the State's case, and we cannot find that it was harmless to deny Blomdahl the opportunity to fully rebut the State's argument.
Accordingly, we reverse Blomdahl's conviction and remand the case for a new trial.
Because we are reversing Blomdahl's conviction, there is no need to address his second issue regarding the sufficiency of the evidence to convict him of defrauding a lienholder, which Blomdahl argues presented an alternative means of committing the crime of arson. See State v. Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012) (when faced with alternative means of committing a single criminal offense, jury unanimity as to the means not required if there is substantial evidence to support each alternative means; if evidence is insufficient to support all means instructed, conviction must be reversed). Accordingly, we offer no opinion regarding whether the joining of the terms lienholder or insurer create an alternative means to commit arson under K.S.A. 21–3718, or simply describes an option within a means. See 295 Kan. at 200.
On retrial, we note that based on the evidence there is no reason to include the term “lienholder” in any jury instruction and, accordingly, the better practice would be to delete it.
Reversed and remanded.