State v. Holland

STATE OF WASHINGTON, Respondent, v. JOSEPH LAMAR HOLLAND, Appellant.

No. 78274-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 23, 2019

UNPUBLISHED OPINION

CHUN, J. — Joseph Holland appeals the judgment and sentence imposed pursuant to his jury conviction for second degree assault and possession of phencyclidine (PCP). Holland argues that (1) he was denied his right to present a defense when the trial court limited the scope of his expert's testimony, (2) he was deprived of his right to a unanimous jury when the State presented evidence of multiple acts of assault, (3) the evidence was insufficient to establish that he acted recklessly, (4) the aggravating factor in RCW 9.94A.535(3)(y) is unconstitutionally vague, (5) the trial court's findings of fact supporting the exceptional sentence were inadequate, and (6) he received ineffective assistance of counsel.

We remand for the trial court to strike the DNA collection fee from the judgment and sentence. In all other respects, we affirm.

BACKGROUND

Gordon Murray owns and operates GT Recording Service, a digitizing business on Aurora Avenue North in Seattle. For most of his life, Murray has been completely blind in his left eye and partially blind in his right eye. Murray has an artificial lens implanted in his right eye that enables him to read with that eye, using a magnifying glass.

On the afternoon of October 6, 2016, Murray was at the business along with his wife, Connie Lennstrom, and an employee, Michelle Ressler. A man, later identified as Holland, came in and approached Ressler, who was working at the front counter. Ressler asked Holland twice if she could help him. Each time, Holland simply repeated her question back to her. Murray then approached Holland and asked what he needed. Holland continued to repeat back anything said to him. Finally, Murray calmly asked Holland to leave. Holland initially acted as though he would leave, but then his demeanor changed and he became enraged. He screamed "no" and lunged at Murray, swiping at him. Holland flailed around, kicking the front counter and knocking things over. Murray opened the door, to get Holland to leave, and Holland punched Murray in the face several times. Holland then ran out into the parking lot, screaming.

Lennstrom held the door open to capture a video of Holland on her cell phone while Ressler called 911. Holland dropped into a crouch in the parking lot. Suddenly, Holland charged back towards the store at a full sprint. Murray attempted to close the door but could not do so in time. Holland grabbed Murrayand dragged him out into the parking lot. He knocked Murray onto the ground and proceeded to punch and kick Murray in the face, chest, and stomach.

Passersby pulled Holland off Murray and restrained him until officers arrived. When arrested, Holland was still agitated and yelling, insisting he was "God." At the hospital, a nurse found a vial of PCP in Holland's underwear.

Holland's assault knocked Murray's artificial lens loose and tore the surrounding tissue, requiring surgery. Murray lost a substantial part of his remaining eye function. He experienced frequent pain in his eyes and dizzy spells. His business was also significantly affected because he could not work for more than an hour at most without needing to rest.

The State charged Holland with second degree assault and possession of PCP. The State also alleged as an aggravating factor that "the injuries of the victim of the current offense substantially exceeded the level of bodily harm necessary to satisfy the elements of the crime."

Holland asserted a voluntary intoxication defense, arguing that he could not form the requisite intent because he was under the influence of PCP. A jury convicted Holland as charged and also returned a special verdict finding the State proved the aggravating factor beyond a reasonable doubt. Holland appeals.

DISCUSSION

1. Limitations on Dr. Milner's testimony

Holland argues that the trial court violated his right to present a defense when it prohibited his expert witness from testifying regarding his mental healthconditions. Because the witness did not establish a nexus between Holland's mental health conditions and his ability to form the requisite intent for the crime, the trial court did not abuse its discretion in excluding the testimony.

Holland initially asserted both diminished capacity and voluntary intoxication defenses. He retained licensed psychologist Dr. Marnee Milner to "assess [his] cognitive and psychological abilities currently and at the time of the crime." Dr. Milner performed an evaluation of Holland in which she conducted an in-person interview, reviewed Holland's legal and medical records provided by defense counsel, and administered neuropsychological testing. Dr. Milner observed that Holland was cooperative and polite but exhibited a flat affect and some bizarre thought content. Holland disclosed a history of auditory and visual hallucinations, but did not appear to currently be suffering from either. Dr. Milner noted that Holland "appeared to embellish his symptoms" and it was therefore difficult "to comment with certainty on his current psychiatric symptoms."

Dr. Milner noted that Holland's records reflected a history of long-term drug use, intellectual disability and mood and psychotic disorders. She also noted that Holland had a history of "poor frustration tolerance" and "poor coping skills." She admitted she was "not an expert on specific drugs" and was unable to speculate as to the effect that PCP would have on Holland's mental state. Instead, she stated she could opine only generally about the effects of PCP on behavior. But she stated that, based on past history, Holland's "underlying features/deficits increase and he becomes more impulsive, volatile and assaultive when high on illicit drugs."

To me it seems that he already has a level of poor frustration tolerance and poor coping skills, and that is due to his mood symptoms - you know, his - his diagnoses, but I think at the time that was completely exacerbated by the drugs.

Dr. Milner did not offer an opinion about Holland's mental state during the assault. And she stated that she was unable to opine at all about diminished capacity or Holland's intent when he assaulted Murray.

The State moved to preclude Dr. Milner from testifying regarding Holland's "underlying cognitive deficits, mood disorders or psychiatric conditions." Citing State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001), the State argued that these issues were "not relevant to a diminished capacity defense, because she's not rendering an opinion about diminished capacity." The prosecutor stated:

So Doctor Milner has told us she cannot connect the Defendant's mental health mood disorder, cognitive deficits with a [sic] asserted inability to form intent at the day of this crime - or when this incident occurred. And if she's not able to do that, the question then becomes, why would that testimony become relevant. How would it assist the jury in making a - a factual determination? And it wouldn't in this case.

Again, I'm not asking the Court to preclude testimony about being high on drugs. I think defense will be able to lay a foundation for a voluntary intoxication defense. But certainly bringing in all this other evidence about Mr. Holland's mood and psychiatric condition is - is not relevant because the expert did not apply those to a diminished capacity defense.

Holland conceded that Dr. Milner's testimony did not support a diminished capacity defense. But he argued that his mental health conditions were relevant to his voluntary intoxication defense:

[E]ven if I'm precluded from arguing diminished capacity, the - the baseline of my client, I believe, is relevant in assisting the jury to understand the voluntary intoxication in understanding who my client was, otherwise you're not getting the full picture of how that would be relevant to the application of voluntary intoxication.

The trial court granted the State's motion, finding that Dr. Milner was unable to link Holland's mental health conditions to his mental state at the time of the crime:

The issue is whether or not Mr. Holland was unable to form the specific intent in this case. I believe the Doctor's going to testify that due to the voluntary intoxication he could not, or it would have affected him, but didn't make any association between his underlying mental disorders and that specific intent. She specifically said on more than one occasion there's - she's not saying there's diminished capacity due to any of his mental disorders, so I don't see how it would be relevant or helpful to the jury to allow that evidence in.

Criminal defendants have a constitutional right to present a defense under the Sixth Amendment of the United States Constitution and article I, section 22 of Washington's constitution. State v. Morales, 196 Wn. App. 106, 122, 383 P.3d 539 (2016). But this right is not unfettered, and a defendant does not have a right to offer irrelevant or inadmissible evidence. State v. Ellis, 136 Wn.2d 498, 528, 963 P.2d 843 (1998).

ER 702 requires that expert testimony be helpful to the trier of fact. "Expert testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average layperson and is not misleading." State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011).

We review a trial court's decision about the permissible scope of expert testimony for abuse of discretion. State v. Black, 191 Wn.2d 257, 266, 422 P.3d 881, 885 (2018). A trial court abuses its discretion if its decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Black, 191 Wn.2d at 266.

"Evidence of intoxication and its effect on the defendant may be used to prove that the defendant was unable to form the particular mental state that is an essential element of a crime." State v. Gallegos, 65 Wn. App. 230, 237, 828 P.2d 37 (1992). A...