State v. Lewis

166 P.3d 786

141 Wn. App. 367

STATE of Washington, Respondent, v. Robert Edward LEWIS, Appellant.

No. 34014-3-II.

Court of Appeals of Washington, Division 2.

August 28, 2007.

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.

PUBLISHED IN PART OPINION

HUNT, J.

¶ 1 Defendant Robert Lewis appeals his second degree murder conviction. The trial court originally found Lewis incompetent to stand trial. After a 90-day commitment at Western State Hospital (WSH) under RCW 10.77.090, the trial court found that his competency had been restored.

¶ 2 Lewis assigns error to the trial court's (1) finding him competent, because the State failed to test him for a developmental disability; (2) exclusion of expert testimony about the potential effects of methamphetamine on behavior in general; (3) failure to grant a mistrial; (4) failure to give a justifiable homicide jury instruction¹; and (5) finding of fact that he had previous convictions for "most serious" offenses, contrary to Blakely v. Washington.² Lewis also argues that the State engaged in prosecutorial misconduct during closing argument and violated his CrR 3.3 speedy trial rights.³

¶ 3 Finding no reversible error, we affirm.

FACTS

I. Murder

¶ 4 In July 2002, Robert Lewis drove to the residence of his friend Frank Hieber where he overheard a phone conversation between Hieber's girlfriend and Brett Holdorph about a drug transaction dispute. Because Holdorph also owed Lewis money, Lewis volunteered to drive Hieber to Holdorph's residence to retrieve the missing money or drugs. Hieber stayed in the car while Lewis entered Holdorph's home, shot Brett Holdorph in the presence of his mother, Francis Holdorph, and ran back to the car. Hieber drove to Lewis's brother's home, while Lewis exclaimed, "F*ck, Frank, F*ck." Report of Proceedings (RP) (Sept. 29, 2005) at 376. At his brother's home, Lewis changed out of his red sweatshirt, removed the spoiler from the rear of his car, and covered the car with a tarp, leaving it hidden at his brother's for nearly two months.

¶ 5 More than a year later, a "Crime Stoppers" tip led police to stop Lewis's vehicle. A Fircrest police officer ran Lewis's name through the LESA⁴ computer system and arrested him. The State charged Lewis with murdering Holdorph in the first degree.

II. Procedure

A. Competency Hearing

¶ 6 On January 21, 2004, the trial court granted defense counsel's motion to send Lewis to WSH for a 15-day competency evaluation. Following a June 2, 2004 hearing, the trial court ordered Lewis committed for 90 days to restore his competency, under RCW 10.77.090.

¶ 7 In December 2004, the trial court held a hearing to determine if Lewis had regained his competency to stand trial. Two expert State witnesses testified that Lewis was capable of understanding the charges against him and assisting defense counsel. The State relied primarily on the testimony of Dr. Ronald Murray Hart, who had authored two reports for the trial court, evaluated Lewis, and observed Lewis on the WSH ward. Lewis had reported to Dr. Hart that he had frequently abused drugs such as marijuana and LSD when he was younger, that he suffered from hallucinations, and that he had a chip in his head that allowed others to read his thoughts.

¶ 8 Dr. Hart found Lewis uncooperative during his evaluations and opined that Lewis embellished many of his symptoms. For example, when alone with Dr. Hart, Lewis would state that he could not remember such basic information as his mother's name; he would exhibit difficulties when trying to perform basic mathematics; and he would often stutter, complain of hallucinations, and act very impaired. But Dr. Hart observed that, when interacting with other patients, out of sight of the doctors, Lewis spoke normally and was able to play card games correctly, to keep score during dominoes, to remember telephone numbers, and to recall the address of his high school. Similarly, an occupational therapist noted such inconsistencies as Lewis's ability to recall precise details of his previous incarcerations and his professed inability to remember his mother's name.

¶ 9 The State also presented testimony from Dr. Brian Waiblinger, a forensic psychologist from WSH, who concurred with Dr. Hart's assessment that Lewis exaggerated his symptoms. Dr. Waiblinger had observed the same gross inconsistencies between Lewis's behavior during interviews with WSH staff and his behavior on the ward with other patients.

¶ 10 Neither Dr. Hart nor Dr. Waiblinger actually tested Lewis's IQ, but both agreed it was over 70, which is above the range for mental retardation. Both experts opined that Lewis did not suffer from a mental disease or defect that would interfere with his competency, and both believed he possessed the capacity to assist his attorney during trial.

¶ 11 Lewis relied on his appointed expert witness, Dr. Vincent Thomas Gollogly, former clinical director at the McNeil Island Special Commitment Center, who opined that Lewis remained incompetent. Dr. Gollogly (1) reviewed the WSH reports; (2) met with Lewis three times in the Pierce County Jail; (3) shared the State's experts' concerns that Lewis was malingering or exaggerating his symptoms; (4) concluded that Lewis had a mental disease or defect making him incompetent to stand trial; and (5) noted that Lewis's low IQ (70-75), in addition to other deficits, could result in his being developmentally disabled, for which a development disability expert would need to conduct an evaluation.

¶ 12 After the three doctors testified, Lewis argued that (1) RCW 10.77.090⁵ required the State to evaluate him for developmentally disabilities during his 90-day commitment; (2) there was no evidence that WSH had evaluated whether he was developmentally disabled; and (3) thus, the State had failed to comply with the statute. Lewis did not, however, argue that a finding of developmental disability would have triggered a finding of incompetency.

¶ 13 The State recalled Dr. Hart, who (1) explained that WSH did not test Lewis for any developmental disability because it was clear that he did not suffer from a developmental disability; (2) acknowledged that he did not administer a formal IQ test to Lewis; (3) noted that Lewis's IQ placed him beyond the range of mental retardation, based on Dr. Hart's observations of Lewis in the ward and his social interaction with his peers; (4) confirmed that these observational criteria would be generally accepted in the field of psychology to determine whether a person suffered from a developmental disability; and (5) noted that nothing in Lewis's medical history or school records mentioned any sign of a developmental disability.⁶

¶ 14 The trial court ruled that the developmental disability question was a threshold issue; Dr. Hart's testimony established that Lewis did not meet the clinical definition of "developmentally disabled"; and, therefore, the State did not need to engage in further developmental disability testing. The trial court then found, by a preponderance of the evidence, that Lewis was competent to stand trial because he understood the nature of the charges and he was capable of assisting defense counsel. In its Findings of Fact, the trial court noted Lewis's appropriate communication skills, strong memory, ability to express his needs, and understanding of the legal charges against him and his possible defenses.

B. Trial

¶ 15 Trial started on September 26, 2005. During pretrial motions in limine, both the State and Lewis agreed that there would be no references to Lewis's prior convictions.

1. Testimony

¶ 16 At trial, the victim's mother, Francis Holdorph, testified that she had been in the kitchen, preparing coffee, when she heard the doorbell ring. She looked out the front door peephole, saw the top of someone's head, and opened the door to find Lewis standing outside, asking whether her son, Brett Holdorph, was at home. When she explained that Brett was sleeping, Lewis immediately pushed open the door, grabbed her by the hair, and demanded that she call for Brett. When Mrs. Holdorph summoned Brett from his bedroom, he stepped out into the hall, naked except for a towel wrapped around his waist. Lewis immediately pulled out a gun, shot Brett Holdorph once through the chest, ran out of the house, and drove away. Holdorph told his mother to call 911, but he died soon after. Mrs. Holdorph testified that Brett never attacked Lewis and that the two men never struggled.

¶ 17 The State's remaining witnesses corroborated that Lewis was the shooter, that his interaction with Brett Holdorph stemmed from previous drug transactions, and that Lewis had sought out Holdorph because of a disagreement over a drug transaction between Holdorph and Hieber's girlfriend. In addition, Lewis's brother testified that Lewis had admitted having accidentally shot Brett Holdorph.

¶ 18 Lay and police witnesses and a medical examiner described Holdorph's gunshot wound. The medical examiner definitively opined that the cause of death was a homicide resulting from the fatal gunshot.

2. Excluded expert opinion on effects of methamphetamine

¶ 19 Defense counsel elicited that the toxicology report noted that Holdorph's blood contained a high level of methamphetamine at the time of his death. The medical examiner confirmed this information. Defense counsel then asked the medical examiner for his expert opinion on whether methamphetamine can cause a person to act aggressively.

¶ 20 Outside the jury's presence, the medical examiner testified that methamphetamine can cause some users to experience paranoia, irritability, or "irrational behavior," and that some can become violent. The medical examiner qualified this statement, however, by noting that methamphetamine affects different people differently and that some people build up a tolerance for methamphetamine such that not even...