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State v. Williams

The Court of Appeals of Washington, Division One
Nov 13, 2006
135 Wn. App. 1044 (Wash. Ct. App. 2006)

Opinion

No. 57157-5-I.

November 13, 2006.

Appeal from a judgment of the Superior Court for King County, No. 04-1-13317-0, John P. Erlick, J., entered October 3, 2005.

Counsel for Appellant(s), Jennifer M. Winkler, Nielson, Broman Koch, PLLC, Seattle, WA.

Jennifer M. Winkler, Nielson, Broman Koch, PLLC, Seattle, WA.

Counsel for Respondent(s), Lee Davis Yates, King County Prosecutor's Office, Seattle, WA.

Lee Davis Yates, King County Prosecutor's Office, Seattle, WA.


Affirmed by unpublished per curiam opinion.


Jason Williams was convicted of first degree burglary, two counts of first degree robbery, attempted first degree robbery, first degree unlawful possession of a firearm, and second degree assault. He appeals his convictions on three grounds. First, Williams argues that the trial court erred by refusing to permit a psychologist, Dr. Robert Deutsch, to testify regarding the effects of methamphetamine intoxication. Second, Williams contends that the prosecutor committed flagrant misconduct when he asked a witness a question that drew attention to an armed officer who was present in the courtroom. And last, Williams argues that even if the court does not agree that these issues on their own require reversal, the combined effect of the refusal to permit the psychologist to testify regarding the effects of methamphetamine intoxication and the prosecutor's question require the court to reverse. We reject all of these arguments, as explained below, and affirm.

FACTS

On October 28, 2004, at about 8:30 a.m., Josef Kupferling was shaving in the bathroom of his residence in Seattle. Jason Williams entered the residence, banged open the bathroom door, and pointed a gun at Kupferling, threatening to shoot. Kupferling slammed the door shut, but Williams demanded that he open the door or he would shoot. Williams demanded Kupferling's car keys, so Kupferling opened the bathroom door and gave Williams the key to his Nissan Pathfinder. Williams drove off in the Pathfinder. The police were called.

University of Washington police officer Earl Yamanaka saw Williams driving the Pathfinder at a high speed near 25th Avenue and NE Blakely. He followed the Pathfinder to the Montlake area, but then lost it.

Shortly thereafter, Joan Goverman pulled her Volvo into a parking garage at Pacific and University Avenue. She was driving up the ramp to the third level when she was confronted by Williams driving the Pathfinder the wrong way. Continuing up the ramp, she saw that Williams had crashed the Pathfinder into another car. Williams got out of the Pathfinder and rushed towards Goverman, holding a gun. Williams held the gun on Goverman, forcing her out of the car. Williams got into the Volvo and drove very fast the wrong way down the ramp. He damaged the arm that controls the entry of vehicles into the parking garage.

Police officers tried to apprehend Williams, but he eluded the police and drove into the parking lot of the Museum of History and Industry. Julienne Baron had just parked her car in the parking lot. Williams approached her and demanded that she give him her car keys. He was pointing a gun at her. Baron screamed and ran behind her car and then to a door of the museum. After she banged on the door, an employee, Elizabeth Furlow, let her in. When Furlow opened the door, Williams pointed his gun at her and ordered her to keep the door open. Furlow pulled the door shut and called police from her office, and Williams left the scene.

Douglas Bevis was rowing on the Montlake Cut at around 9 a.m. on October 28, 2004. Suddenly, Goverman's Volvo came from the top of the Cut on his left. The car broke through a barrier and hit the concrete walkway below, nosing into the middle of the Cut. The Volvo sank in thirty seconds.

Williams managed to get out of the Volvo as it went down and hung on to a steel cable above the water. Bevis rowed toward Williams in his boat and told him to hold on to the boat. Bevis then towed Williams toward the shore until the police arrived. A Seattle Police Harbor Unit dragged Williams into their boat, and he was arrested.

At trial, Williams testified that he had a good memory of what he had done. He stated that he did not go into Kupferling's house to commit a crime. He said it just happened. He claimed he was confused because he had taken "crystal meth" earlier that day. He explained that after taking the methamphetamine, he was going to make the police kill him and he needed a car to cause a scene so the police would come after him and shoot him when he pointed a gun at them.

Williams admitted to committing the acts constituting the crimes for which he was charged, but he blamed the acts on his use of methamphetamine. The trial court denied Williams's request to give the jury a diminished capacity instruction, but did give a voluntary intoxication instruction. The court found the instruction proper based on Williams's own testimony and stated that refusing to give the instruction would be tantamount to a directed verdict of guilty. The jury found Williams guilty of all counts. Williams appeals.

Instruction 9: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with intent."

ANALYSIS Expert Testimony

Williams first contends that the trial court erred by refusing to permit a psychologist, Dr. Robert Deutsch, to testify regarding the effects of methamphetamine intoxication. Specifically, Williams argues that he was denied his right to present a defense. We conclude that the trial court did not abuse its discretion when it refused to permit Dr. Deutsch to testify regarding voluntary intoxication because he could not offer an opinion that Williams lacked the capacity to form the intent to commit the crimes.

Dr. Deutsch was prepared to testify as an expert on the effects of methamphetamine. Williams moved to allow Dr. Deutsch to testify regarding voluntary intoxication. At Williams's CrR 3.5 hearing, Dr. Deutsch stated he believed Williams was in a psychotic state induced by methamphetamine at the time he committed the crimes. It is undisputed, however, that Dr. Deutsch could not offer an opinion that Williams lacked the capacity to form the intent to commit the crimes.

The court ruled that Dr. Deutsch would not be permitted to testify about the effects of methamphetamine intoxication. The court based its ruling on ER 401 and 702. It concluded that Dr. Deutsch's testimony was irrelevant under ER 401 because he could not opine that Williams lacked the capacity to form the culpable mental state to commit the crimes charged. Similarly, the court concluded that Dr. Deutsch's testimony was inadmissible under ER 702 because expert testimony is admissible only if it will assist the trier of fact to understand the evidence or to determine a fact at issue.

ER 401 states: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

ER 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

A trial court has considerable discretion regarding the admissibility of both lay and expert testimony, and its decisions will be upheld if not manifestly unreasonable or if not exercised on untenable grounds or for untenable reasons. State v. Stumpf, 64 Wn. App. 522, 527, 827 P.2d 294 (1992); State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992); State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990). For expert testimony to be admissible on the issue of voluntary intoxication or diminished capacity, "`the evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged.'" State v. Guilliot, 106 Wn. App. 355, 366, 22 P.3d 1266 (2001) (quoting State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549 (1996)). "`[I]t is not the fact of intoxication which is relevant, but the degree of intoxication and the effect it had on the defendant's ability to formulate the requisite mental state.'" Guilliot, 106 Wn. App. at 366 (quoting Gabryschak, 83 Wn. App. at 252-53). In State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002), the court held that in a voluntary intoxication defense, the defendant must demonstrate that intoxication affected his ability to acquire the required mental state.

The trial court did not abuse its discretion in refusing to permit Dr. Deutsch to testify regarding the effects of methamphetamine intoxication. The trial court properly concluded that Dr. Deutsch's testimony was irrelevant under ER 401 and unhelpful under ER 702 because he could not offer an opinion that Williams lacked the capacity to form the intent to commit the crimes. It was irrelevant under ER 401 because in order to be relevant to the defense of involuntary intoxication, Dr. Deutsch needed to testify that Williams lacked the capacity to form the intent to commit the crimes. His testimony was inadmissible under ER 702 because for expert testimony to be admissible on the issue of voluntary intoxication, "`the evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged.'" Guilliot, 106 Wn. App. at 366 (quoting Gabryschak, 83 Wn. App. at 252-53). Williams has failed to show that no reasonable judge would have refused to permit Dr. Deutsch to testify regarding voluntary intoxication.

Prosecutorial Misconduct

Williams next argues that the prosecutor committed reversible prosecutorial misconduct. Specifically, Williams contends that the prosecutor committed flagrant misconduct when he asked Kupferling a question that drew attention to an armed officer who was present in the courtroom. Williams did not object to the question. We conclude that Williams's failure to object constituted a waiver of any error because the prosecutor's question did not amount to flagrant misconduct.

The prosecutor's question arose on redirect in response to a series of questions asked on cross-examination by defense counsel. On cross-examination, the following exchange occurred:

[Defense counsel]: [Williams's] general appearance is different today, isn't it? He doesn't appear to be in a threatening fashion?

[Kupferling]: In that sense, correct.

Q. He doesn't appear to be agitated using words of command and threat?

A. Correct.

Q. And you two are in a different sort of frame of mind today than you were that day, aren't you?

A. I certainly feel so.

Q. Yeah. And the kinds of anxiety you might feel about being on the witness stand is not at all the same as you felt that morning?

A. Correct.

Q. So your demeanor is different?

A. Yes.

Q. And his demeanor now is different?

A. Yes.

Verbatim Report of Proceedings (VRP) (Aug. 8, 2005) at 73-74. On redirect, the following exchange occurred:

[Prosecutor]: Mr. Peale asked you if things are different now at 3:55 on August 8th, 2005, then they were on October 28th, whether you were having a different experience with Mr. Williams than you did last year. Do you remember that line of questioning?

[Kupferling]: Correct.

Q. Do you see the uniformed officer with the firearm who's sitting in the corner here?

A. Correct.

Q. And discuss [sic] it appear to you that Mr. Williams is trying to rob anyone right now as we speak?

A. No.

Q. So it's a little different situation, is that fair to say?

A. Yes, sir.

VRP (Aug. 8, 2005) at 76-77. Williams's attorney did not object to the prosecutor's questions. After the jury had been excused, the judge admonished the prosecutor for drawing attention to the fact that there was an armed officer in the courtroom. The prosecutor responded that the question he asked Kupferling was to counter the suggestion made by Williams's attorney that Williams "is this calm, complacent, gentle soul in the courtroom, and isn't he so different than you saw him that day." VRP (Aug. 8, 2005) at 88. The prosecutor further explained that the question "wasn't to suggest that the cop was here to jump on [Williams] any more than anyone else, just to suggest that everyone's behavior is a lot different in court than it is outside of court[.]" VRP (Aug. 8, 2005) at 88.

When prosecutorial misconduct is alleged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments, as well as their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To show prejudice, the defendant must establish that there is a substantial likelihood that misconduct affected the jury's verdict. Russell, 125 Wn.2d 24 at 86. The prosecutor, as an advocate, is entitled to make a fair response to arguments of defense counsel. Russell, 125 Wn.2d 24 at 87. Failure to object to an improper remark constitutes a waiver of the error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that cannot be neutralized by an admonition to the jury. Russell, 125 Wn.2d at 86.

Whether or not the prosecutor's question was improper, Williams has not shown that it was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. If Williams had objected, the court could have issued a curative instruction informing the jury to disregard the question and draw no conclusions from the presence of the armed guard in the courtroom. Also, the prosecutor's question was arguably proper because it was in response to the arguments made by defense counsel in cross-examination.

Williams relies on State v. Gonzalez, 129 Wn. App. 895, 120 P.3d 645 (2005). In Gonzalez, the trial court instructed the jury that the defendant was (1) being kept in jail because he could not post bail, (2) being transported in restraints, and (3) under guard in the courtroom. Gonzalez, 129 Wn. App. at 899-900. The court instructed the jury that it was not to draw any conclusions about Gonzalez's innocence based on these facts. Gonzalez, 129 Wn. App. at 899. Neither party requested the instruction. Gonzalez, 129 Wn. App. at 899. Gonzalez moved for a mistrial at the first opportunity outside the presence of the jury, and the court denied the motion. Gonzalez, 129 Wn. App. at 899-900. Gonzalez was convicted. Gonzalez, 129 Wn. App. at 899. The Court of Appeals held that the trial court's remarks violated Gonzalez's right to due process and equal treatment under the law because if he could have afforded to post bail, he would not have been subject to the court's instruction highlighting his custody status. Gonzalez, 129 Wn. App. at 904.

Williams's case is distinguishable from Gonzalez. Gonzalez did not concern an allegation of prosecutorial misconduct. Rather, Gonzalez concerned the trial judge's instructions to the jury that drew attention to the defendant's indigent status and incarceration. Here, the trial court made no comments to the jury about Williams's bail status, the necessity of transporting him to custody, or the significance of the guard in the courtroom. The prosecutor also did not state or imply that a guard was present because Williams could not post bail. And the prosecutor's question was arguably a proper response to the defense counsel's attempt to attach significance to Williams's calm demeanor in court.

We reject Williams's prosecutorial misconduct argument because he has not shown that the prosecutor's question was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Consequently, Williams's failure to object constituted a waiver of any error.

Cumulative Effect of Alleged Errors

Finally, Williams argues that even if the court does not agree that these alleged errors by themselves justify a reversal, their combined effect requires the court to reverse. We conclude that the combined effect of these two alleged errors does not require reversal. The court did not err in refusing to permit the psychologist to testify regarding the effects of methamphetamine intoxication. And as discussed above, the prosecutor's question, standing alone, does not require reversal.

For the foregoing reasons, we affirm.

AGID and BAKER, JJ., concur.


Summaries of

State v. Williams

The Court of Appeals of Washington, Division One
Nov 13, 2006
135 Wn. App. 1044 (Wash. Ct. App. 2006)
Case details for

State v. Williams

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JASON NEIL WILLIAMS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Nov 13, 2006

Citations

135 Wn. App. 1044 (Wash. Ct. App. 2006)
135 Wash. App. 1044