State v. Taylor

490 P.3d 263

STATE of Washington, Respondent,

v.Kevin Patrick TAYLOR, Appellant.

No. 80343-3-I

Court of Appeals of Washington, Division 1.

FILED July 6, 2021

Nielsen Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122, Eric J. Nielsen, Dana M. Nelson, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Teresa A. Barnett, San Juan County Prosecuting Attorney, 350 Court St., P.O. Box 760, Friday Harbor, WA, 98250-0760, Randall Avery Sutton, Kitsap Co. Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, Prosecutor'S Office - Criminal Division Kitsap County, 614 Division Street, Ms-35, Port Orchard, WA, 98367, for Respondent.

PUBLISHED OPINION

Hazelrigg, J.

¶ 1 Kevin P. Taylor was convicted of arson in the second degree and murder in the second degree-felony murder following a jury trial. Taylor had a history of disorienting seizures, which was the basis for his diminished capacity defense. At trial, the primary issue was whether Taylor was able to form the necessary mental states of the various charges such that he could be found criminally culpable. During trial, the State's expert violated multiple pretrial rulings by the court which led to an unsuccessful motion for mistrial by the defense. Taylor appeals, arguing the court erred in denying his for-cause challenge to a juror and his motion for mistrial, and by failing to include the mental state of recklessness in the jury instruction on diminished capacity. The trial judge's ruling on the juror challenge was proper, but the court erred in denying the defense motion for mistrial and in the omission of one of the mental states from the diminished capacity instruction. Accordingly, we reverse.

FACTS

¶ 2 Kevin Taylor was convicted of murder in the second degree-felony murder and arson in the second degree following a jury trial. The State alleged that on September 3, 2016, Taylor killed his wife, Julie¹ , by striking her repeatedly with a .22 caliber rifle and then set fire to her Jeep. At trial, the State presented charges of murder in the second degree-intentional murder and murder in the second degree-felony murder (based on an allegation of assault in the second degree), in addition to one count of arson in the second degree for the fire in the Jeep. Taylor pursued a diminished capacity defense based on a delusional psychotic state brought on by his documented seizure disorder. Both the defense and the State presented expert testimony addressing the central question of whether Taylor's condition impacted his capacity to form the various required mental states for the charged crimes.

¶ 3 Taylor was diagnosed with a seizure disorder in 2005. In 2013, he had a seizure while driving which led to his hospitalization. Following this accident, his seizures appeared to be better controlled, though he did still experience them periodically. When Taylor had a seizure, he would become disoriented and often unaware of where he was or who he was with. Nonetheless, Taylor could still walk, talk, and navigate around objects during an episode.

¶ 4 Leading up to the night of the killing, Taylor's seizures were increasing in frequency. Julie texted the following messages to a friend just four days prior to her death: "So Kevin has had four seizures since 12:15 this morning ... He's scaring the shit out of me. ... Last one was just after 7:00." Julie recorded Taylor during one of his seizures on August 31, 2016. In the video, he was talking about recycling, laughing one minute and crying in the next. His son, Jake, testified that this was not his father's typical behavior during a seizure. Julie took Taylor to see his primary care provider, Dr. John Gossom, the following day. Gossom testified that Julie conveyed concern over Taylor's spells of rage and anger which she believed were brought on by his seizures. Gossom increased the dosage of Taylor's seizure medication and indicated further recording of the seizures could be helpful.

¶ 5 Julie happened to record Taylor moments before her death. The video, dated September 3, 2016, lasts three minutes and 27 seconds and shows Taylor in a very strange state. That same night, two calls were made from the Taylor residence to 911 at 1:00 a.m. and 1:13 a.m. Each call was an "open line" with music playing in the background.

¶ 6 San Juan County Sheriff's Deputy Eric Gardiner was first on the scene at 1:19 a.m. Upon arrival, Gardiner heard music and went toward the side deck of the Taylors’ home to investigate. The sliding door was open and Julie was on the ground with her feet toward the door. There was blood splatter around her body and Gardiner observed a broken rifle stock and broken ceramic pot nearby. A motorcycle helmet was partially covering Julie's head and there were seven cans of cat food tucked in her arm and on her hand.

¶ 7 Gardiner noticed Taylor reclined on the couch, looking at Gardiner with a blank stare. Taylor then said, "I got her." Gardiner put Taylor in the back of his patrol car. While placing him in the backseat, Taylor said Julie had poisoned him. When Gardiner asked if he had any symptoms, Taylor said no. Gardiner quickly surveyed the area and then returned to his vehicle, at which point Taylor told Gardiner to check Julie's Jeep and said something about a fire. Gardiner checked the Jeep and found the interior was smoking. There was a dumbbell and a propane torch on the ground near the Jeep.

¶ 8 Sergeant Scott Brennan arrived on the scene around 1:30 a.m. and paramedic Kyle Davies arrived minutes later. Davies examined Taylor in the back of the patrol car. Davies asked if Taylor had been drinking and Taylor replied that he had one drink before dinner and two mixed drinks while watching television. Davies administered the Glasgow Coma Scale and the results suggested that Taylor was alert. Davies later testified that Taylor was oriented to time and place during their interaction at the scene. However, Taylor did say numerous times he had been poisoned by his wife and that he wanted a divorce.

¶ 9 Gardiner took Taylor to the hospital at around two in the morning. When Gardiner told Taylor where they were going, Taylor said "I really screwed up." When Gardiner asked Taylor to repeat himself, he said, "She really screwed up." Gardiner testified that when Taylor was asked by hospital staff why he thought he was poisoned, Taylor responded, "Julie told him that he had less than a minute to live, and said he guessed he decided to take her with him." An hour or so later, while lying in the hospital bed, Taylor asked Gardiner, "Where's Julie?" Taylor looked confused and asked what happened. Gardiner told him he did not know, to which Taylor responded, "You drove me in." Later that morning, Taylor was booked into jail. Back at the house, deputies located a series of strange notes on the counter and a Kindle Fire tablet that contained videos from August 31st and September 3rd.

¶ 10 Dr. Andres Kanner, a neurologist and medical school professor specializing in epilepsy, testified at trial as an expert for the defense. Kanner opined that, based on all of the evidence, Taylor did not have the capacity to form the intent to either kill or assault his wife or to knowingly and maliciously set fire to her Jeep. Kanner explained in great detail how seizures of this sort can manifest in an individual. Kanner concluded that Taylor was suffering from postictal psychosis ; a form of psychosis that occurs after a flurry of seizures and causes the individual to become irritable, withdrawn, or isolated, which can later lead to "overt psychotic symptoms." He further indicated that the paramedic's evaluation by way of the Glasgow Coma Scale had little relevance to the more nuanced analysis of cognitive function regarding capacity.²

¶ 11 Kanner also ruled out toxicity from drugs or alcohol as the cause of his behavior. A blood sample was taken from Taylor at the hospital and a toxicology screening conducted. The results showed a blood alcohol content (BAC) of .10g/100mL. However, the doctor who administered the blood draw testified Taylor was not significantly impaired in a clinical sense. Kanner testified that .10 BAC was not sufficient to cause a psychotic episode and concluded that the alcohol had no impact on Taylor's behavior.

¶ 12 Dr. Jenna Tomei, a psychologist at Western State Hospital, was called as an expert witness for the State. She violated numerous pretrial rulings during her testimony. Tomei opined that Taylor had the capacity to form the requisite mental states for the charged offenses: intent, knowledge, and malice. Though she agreed with much of Kanner's testimony regarding the science related to the seizure disorder and postictal psychosis, she disagreed as to the ultimate conclusion on capacity. When asked by the prosecutor what information she had reviewed as part of her evaluation, Tomei responded, "In this specific case, I reviewed prior medical records for Mr. Taylor. I also reviewed prior legal documents regarding his criminal history and any—." The reference to criminal history violated the court's ruling on a defense motion in limine; the court sustained the resulting defense objection and granted its motion to strike.

¶ 13 Later, the prosecution asked how Taylor's BAC may have impacted Tomei's opinion and she responded "Even though it appears that Mr. Taylor does have a lengthy history of—." The defense again objected and moved to strike; the court sustained the objection and granted the motion to strike. The court then ruled that Tomei could not testify regarding possibilities and conjecture as to how substance use may have contributed to Taylor's behavior. Following this ruling, Tomei testified that she found nothing unusual about Taylor's behavior toward responding officers, as she explained, "He replied very appropriately to the officer saying, I'm not going to be any trouble, asking for his attorney—." The prosecutor then interjected: "I'm going to stop you right...