Opinion
No. 53535-8-I.
November 20, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 94-1-00616-3, Richard J. Thorpe, J., entered November 24, 2003.
Counsel for Appellant(s), Nancy P Collins, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Everett, WA.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Becker and Ellington, JJ.
William Bergen Greene appeals from his conviction for kidnapping in the first degree and indecent liberties following a second jury trial. Before the first trial, the court ruled that evidence of Greene's alleged insanity based on Dissociative Identity Disorder (DID) was inadmissible. The jury convicted Greene in the first trial of kidnapping in the first degree and indecent liberties. On appeal, Greene's conviction was reversed. In the second trial, the main point of contention was whether Greene had DID. Greene presented evidence that he suffers from DID and an "alter personality" committed the crimes. The State presented lay and expert testimony that Greene does not have DID. The trial court instructed the jury on Greene's DID insanity defense and his diminished capacity defense using the standard Washington Pattern Jury Instructions-Criminal (WPIC). The jury convicted Greene of kidnapping in the first degree and indecent liberties.
11 Washington Pattern Jury Instructions — Criminal, (2d ed. Supp. 1998).
Greene challenges the trial court's refusal to instruct the jury on how to evaluate his DID insanity defense. Greene also claims the trial court erred by instructing the jury that a mental condition induced by voluntary intoxication does not constitute insanity and in admitting ER 404(b) evidence of two prior sexual assaults. In addition, Greene contends a jury must decide whether he had two prior convictions for purposes of the Persistent Offender Accountability Act (POAA). We affirm Greene's conviction and sentence.
FACTS
After William Bergen (Bill) Greene's 1988 conviction for indecent liberties, he participated in a sexual offender treatment program at the Twin Rivers Corrections Center (Twin Rivers). One of Greene's therapists was M.S., a psychiatric nurse. During the course of therapy, M.S. came to believe that Greene had Dissociative Identity Disorder (DID). M.S. persuaded Twin Rivers treatment providers that Greene should be evaluated for DID.
DID was formerly known as Multiple Personality Disorder (MPD). In 1994, the American Psychiatric Association published the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"). The DSM-IV renamed MPD as DID and changed some diagnostic criteria.
In 1991, after some testing, Greene was diagnosed as "rule out" DID, meaning that Greene met some, but not all, of the criteria for a DID diagnosis. The Twin Rivers treatment providers decided that although the diagnosis was not definitive, Greene should be treated as if he had DID.
An individual suffering from DID has a non-integrative identity divided between the primary identity (host) and at least one alternative identity or identity fragment (the alter(s)). This lack of integration results in debilitating ruptures in the patient's personality, behavior, thought, and memory. DID is a pathologically repressed coping mechanism that allows a traumatized individual to "find lifesaving retreat in an altered phenomenal state, in much the way that a hypnotized person is able — not to escape pain — but to disassociate from the experience of pain."
DSM-IV at 484. The DSM-IV recognizes five distinguishable dissociative disorders, of which DID is one. The DSM-IV provides the following diagnostic criteria for DID:
A. The presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to, and thinking about the environment and self).
B. At least two of these identities or personality states recurrently take control of the person's behavior.
C. Inability to recall important personal information that is too extensive to be explained by ordinary forgetfulness.
D. The disturbance is not due to the direct physiological effects of a substance (e.g., blackouts or chaotic behavior during Alcohol Intoxication) or a general medical condition (e.g., complex partial seizures). DSM-IV at 487.
The etiology of DID is most commonly understood to be childhood trauma (e.g., sexual or physical abuse, death of a parent/sibling, wartime trauma, etc.) that triggers the pathological onset of severely disrupted ego identification. Colin A. Ross, Twelve Cognitive Errors About Multiple Personality Disorder, 44 Am. J. Psychotherapy 348, 353-54 (1990).
George B. Greaves, Multiple Personality 165 Years After Mary Reynolds, 168 J. Nervous Mental Disease 577, 590 (1980).
The heterogeneity of alters (e.g., gender, age, race, sexual orientation, etc.) and their modes of coexisting with the host (e.g., co-conscious, amnestic, amnestic with "leakage") is extremely varied and defies easy categorization. Childlike alters are the most frequently seen type of alters. Members of the psychiatric field debate whether DID can be induced by hypnosis or suggestion or can be misdiagnosed due to either feigning symptoms or malingering.
See Multiple Personality 165 Years After Mary Reynolds, at 582.
Frank W. Putman et al, The Clinical Phenomenology of Multiple Personality Disorder: Review of 100 Recent Cases, 47 J. Clinical Psychiatry 285, 288 (1986).
See e.g. August Piper Jr., Multiple Personality Disorder and Criminal Responsibility: Critique of a Paper by Elyn Saks, J. Psychiatry L., Spring 1994, at 7. The previous three decisions in this case include information concerning DID. State v. Greene, 92 Wn. App 80, 960 P.2d 980 (1998); State v. Greene, Wn.2d 64, 74-75, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090 (2000); Greene v. Lambert, 288 F.3d 1081, 1091 (9th Cir. 2002).
Greene's treatment in the sexual offender program at Twin Rivers included extensive therapy with M.S. and hypnosis. According to M.S., Greene manifested more than 20 different identities during therapy. After Greene's November 1992 release from Twin Rivers, M.S. continued therapy with him in the community.
In spring 1994, after Greene lost his job and his girlfriend ended their relationship, Greene's mental state appeared to deteriorate. On Monday April 25, Greene told M.S. he wanted to temporarily stop therapy. M.S. agreed, on the condition that he calls her office everyday. When Greene called M.S. on Friday, he sounded "very distraught." Concerned that Greene might be suicidal and need to be hospitalized for psychiatric observation, M.S. decided to visit him.
M.S. arrived at Greene's apartment at about 3:00 p.m. Greene appeared disheveled and his apartment was uncharacteristically untidy. After several minutes, M.S. realized that Greene had been using drugs. M.S. testified that at first Bill denied using drugs, but then one of the alters, "Tyrone," emerged and admitted he had been using drugs. When M.S. got up to leave, Greene blocked her way and told her to take off her shirt. M.S. tried to spray Greene with the pepper spray attached to her key chain, but as she did so he pushed her hand down. While trying to back away, M.S. fell backwards on the floor. Greene then grabbed her shirt and tore it off as she fell. Greene sat on M.S., straddling her legs. Greene took off M.S.'s bra and began touching and sucking her breast. Periodically, Greene would stop and ingest cocaine at the bathroom sink. Then, he would return and resume the assault on M.S. At some point while M.S. was crying, she put her hands on her face and the pepper spray got in her eyes. At that point, M.S. testified that a "protector-alter," Sam, emerged and helped her wash her eyes and hands. During the assault, Greene also pulled his pants down and touched the end of his penis.
Eventually Greene let M.S. get up and said she could go and gave her a sweatshirt to wear. But then Greene changed his mind and told her he could not let her leave. Greene took M.S. into the bedroom, tied her hands and feet with a cord, and put duct tape over her mouth. He then took M.S.'s keys and drove away in her car.
About twenty minutes after Greene left, at approximately 6:00 p.m., M.S. freed herself and walked to a nearby hospital. At approximately 11:30 p.m. that night, Greene was arrested in Everett driving M.S.'s car.
Greene was charged with first-degree kidnapping and indecent liberties of M.S. In an interview with his expert witness, Dr. Craig LeReau, in preparation for trial, Greene said that several alters were present during the assault of M.S. Greene told Dr. LeReau that when the alters decided to commit suicide, he tied up M.S. so she wouldn't be able to stop him.
Before Greene's first trial, the court held a hearing on the admissibility of DID evidence under Frye and ER 702. The court ruled that DID did not satisfy the Frye standard of general acceptance within the scientific community, and the testimony was not helpful under ER 702. The court excluded the DID testimony, including M.S.'s description of Greene's mental state, her description of the alters during the assault, and Greene's testimony about his mental state during the assault. The jury convicted Greene as charged. Based on Greene's prior convictions, the court sentenced him to life imprisonment as a persistent offender under the POAA.
Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).
In Greene's first appeal, this court ruled as a matter of law that DID meets the Frye standard and the trial court abused its discretion in excluding DID evidence under ER 702, reversing Greene's conviction and remanding for a new trial. State v. Greene, 92 Wn. App 80, 960 P.2d 980 (1998). In the opinion, we discuss various approaches to assess insanity based on DID, but given the lack of medical and scientific consensus, this court declined to adopt a particular approach and instead concluded a case-by-case approach was appropriate. Greene, 92 Wn. App. at 101-02.
The Washington Supreme Court reversed and affirmed Greene's conviction. The Supreme Court agreed the DID evidence satisfied the Frye standard, but disagreed with this court's conclusion that the trial court abused its discretion in excluding the DID evidence under ER 702. Relying on State v. Wheaton, 121 Wn.2d 347, 850 P.2d 507 (1993), and the testimony in the record, the Court held that the evidence about DID was properly excluded because it was incapable of forensic application and did not assist the trier of fact in determining legal culpability under ER 702. State v. Greene, 139 Wn.2d 64, 74-75, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090 (2000). The Court concluded that the record provided no basis to decide how DID relates to a determination of legal culpability and that "none of the various approaches have been accepted as producing results capable of reliably helping to resolve questions regarding sanity and/or mental capacity in a legal sense." Greene, 139 Wn.2d at 77.
In affirming the U.S. District Court's decision to grant Greene's petition for habeas corpus, the Ninth Circuit concluded that by preventing M.S. from testifying about her observations concerning DID during the assault and by preventing Greene from testifying about DID and his state of mind during the assault, the Washington Supreme Court decision infringed on Greene's constitutional right to present an insanity defense. Greene v. Lambert, 288 F.3d 1081, 1091 (9th Cir. 2002). While the Ninth Circuit did not disturb the Washington Supreme Court's ER 702 analysis and its conclusion that the expert testimony was not helpful to the trier of fact, the Court recognized that "requiring the state court to permit DID evidence from the victim and the Petitioner may have the consequence of requiring expert testimony to provide context for the finder of fact." Greene, 288 F.3d at 1093.
Greene's second trial took place in 2003. The defense theory was that because of DID, Greene was insane at the time of the assault and was not able to form the requisite intent to commit the charged crimes. During the five-week trial, both parties presented extensive testimony regarding DID. Greene presented the expert testimony of Dr. LeReau and Dr. Marlene Steinberg. The two experts expressed the opinion that Greene has DID and is not feigning symptoms or malingering. M.S. testified about her observations and her opinion that an alter was in control of Greene's actions during the assault. Greene did not testify.
The State vigorously contested Greene's DID diagnosis. The State's three expert witnesses each testified that Greene most likely did not have DID. One of the State's experts, Dr. Robert Olsen, had previously testified on Greene's behalf in the first trial. Dr. Olsen was originally designated as an expert witness by Greene in the second trial. But after evaluating Greene again, Dr. Olsen concluded Greene had "fooled [him]" and agreed to testify on behalf of the State at his own expense.
The State also presented the testimony of several lay witnesses who had spent time with Greene. The lay witnesses each testified that Greene manifested no symptoms that were consistent with DID before he learned about DID from M.S. The State also presented the testimony of two prior victims of factually similar sexual assaults. The victims described the sexual assaults and testified that in neither instance did Greene manifest any symptoms consistent with DID.
The defense initially proposed using the standard WPIC insanity defense jury instruction, WPIC 20.01. But after the State submitted supplemental jury instructions for DID, the defense also submitted supplemental instructions. The supplemental instructions proposed different approaches for assessing insanity based on DID. The court declined to use the supplemental instructions. Instead, the court used the standard WPIC instruction to instruct the jury on Greene's insanity defense. Based on the testimony concerning Greene's use of cocaine during the assault, the court also gave a voluntary intoxication instruction. The jury convicted Greene as charged. The court sentenced Greene to life in prison under the POAA. Greene appeals.
ANALYSIS
Greene challenges the trial court's decision to use the standard WPIC insanity defense instruction, WPIC 20.01, instead of the supplemental instructions that adopted either a "host personality" or a "specific alter" approach to assess his DID insanity defense.
On appeal, Greene challenges only the trial court's use of the standard insanity instruction, he does not claim that the standard diminished capacity instruction was inaccurate or erroneous.
WPIC 20.01 provides:
For a defendant to be found not guilty by reason of insanity you must find that, as a result of mental disease or defect, the defendant's mind was affected to such an extent that the defendant was unable to perceive the nature and quality of the acts with which the defendant is charged or was unable to tell right from wrong with reference to the particular acts with which the defendant is charged.
Below, the defense initially submitted WPIC 20.01. But because WPIC 20.01 refers to the "defendant's state of mind," the State claimed the WPIC impermissibly allowed the defense to argue that the jury should focus on whether the host, Bill Greene, was able to appreciate the nature and wrongfulness of his conduct. The State's supplemental instructions proposed the jury assess Greene's DID insanity defense using either a "specific alter" or a "unified approach." The "specific alter" approach instructs the jury to focus on the capacity of the alter personality who was in "executive control" of Greene's body at the time of crime. The "unified approach" instructs the jury to assess Greene's mental capacity as a whole and ignore the boundaries between specific personalities or alters.
The defense then submitted supplemental instructions proposing the court adopt either a "host personality" or a "specific alter" approach. The "host approach" (also called a "global" approach) tells the jury to assess whether "the defendant's host personality" was unable to perceive the nature and quality or the wrongfulness of the acts charged. The "specific alter" approach instructs the jury to focus on the alter in control.
The State argues this court should not address Greene's argument that the trial court erred in refusing to give the defense proposed supplemental jury instructions because the instructions are not in the record. However, it is undisputed the defense proposed these instructions and the report of proceedings makes the substance of the proposed supplemental instructions clear. Here, the specific language of the instructions is not at issue, the question is whether the court erred in refusing to give the instructions. On this record, we conclude the record is sufficient to review the claimed error.
The court refused to use the supplemental instructions proposed by either the State or the defense. The court ruled that adopting a particular approach to assess insanity based on DID was inappropriate, and the standard WPIC jury instruction on insanity allowed each side to argue its theory of the case.
Greene contends that the court violated his constitutional right to present a defense and his right to a fair trial by refusing to adopt a legal standard for assessing DID and instructing the jury on how to evaluate insanity based on DID.
Jury instructions are sufficient if substantial evidence supports them, they permit a party to argue its theory of the case, they do not mislead the jury, and, as a whole, the instructions accurately state the law. State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004); Havens v. C D Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994). If the instructions satisfy these four requirements, "[n]o more is required." Douglas v. Freeman, 117 Wn.2d 242, 257, 814 P.2d 1160 (1991).
A defendant who asserts an insanity defense has the burden of proving by a preponderance of the evidence that he was legally insane at the time of the crime. RCW 10.77.030(2). To establish an insanity defense, the defendant must prove:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
Relying on the Washington Supreme Court's decision in Wheaton, 121 Wn.2d 347, 859 P.2d 597 (1983), Greene argues the trial court erred in refusing to adopt a legal standard and instruct the jury on how to assess his insanity defense based on DID. We disagree.
The State argues this court should not address this issue because the Washington Supreme Court in Greene held that the scientific evidence about DID was incapable of forensic application and was inadequate to allow the court to formulate a legal standard under ER 702 about whether a determination of sanity should focus on a host personality, specific alters, all alters, or the "system" as a whole. But, the Court's conclusion in Greene was based on its assessment of the evidence presented at the Frye hearing in the first trial. Here, different experts testified and the substance of the testimony was different. We cannot address whether the evidence was inadequate to formulate a legal standard without considering the new evidence presented in the second trial.
There was no dispute in Wheaton that the defendant suffered from DID and the parties did not challenge the trial court's decision that DID met the Frye standard. The parties also stipulated that an alter personality was in control and the host personality was not co-conscious and had no independent knowledge of the crime. At trial, the State's expert testified that there was no "scientifically acceptable way to assess the mental state of alter personalities who are not co-conscious at the time of the crime." Wheaton, 121 Wn.2d at 354. The defense expert testified that there were two potential approaches to assess insanity based on DID — a specific alter approach focusing on the alter in control, or a global approach, focusing on the knowledge and awareness of the host personality (paralleling the "host approach"). The expert advocated the global approach, but could not say this approach was either favored or generally accepted in the scientific community. Based on the evidence presented, the available scientific information, and caselaw, the Court in Wheaton concluded that because of the lack of consensus in the scientific community, there was no basis as a matter of law to adopt a specific approach for assessing insanity based on DID.
We conclude this record simply does not contain enough soundly based information about MPD, its nature and ramifications, for this court to announce a rule of law for determining how to assess the legal sanity or insanity of a defendant suffering from MPD.
Wheaton, 121 Wn.2d at 357.
Presented with the same issue six years later, the Court in Greene concluded that "we find ourselves in no better position today than we did" when Wheaton was decided. Greene, 139 Wn.2d at 74. In Greene, the defense expert, Dr. Robert Olsen, testified that he could assess the sanity of the alter in control at the time of the crime, but he could not testify about the insanity of the host, Bill Greene. Greene, 139 Wn.2d at 75. The State's expert, Dr. Gregg J. Gagliardi, testified that there was no medical or scientific consensus about how to assess insanity based on DID. Dr. Gagliardi also testified that the identification of personality states was "`riddled with all of the same kinds of philosophical and scientific problems as the concept of personality itself' making it difficult to draw the line between where one personality state ends and another begins.'" Greene, 139 Wn.2d at 76.
While reiterating that the determination of responsibility for a crime is a legal question, and not a scientific one, the Court observed that in this context, "the answer largely depends on the ability of the scientific community to assist the courts in understanding how DID affects individuals suffering from it and how this may be related to a determination of legal culpability." Greene, 139 Wn.2d at 78. And, while not excluding the possibility that "there may be a case in which the sanity of a defendant suffering from DID can be reliably evaluated," the Court held that based on the evidence presented and the lack of scientific consensus, the expert DID testimony was inadmissible under ER 702. Greene, 139 Wn.2d 78-79.
In sum, the Court concluded in both Wheaton and Greene that adoption of a legal standard must be "soundly based" on a record that clearly supports one of the competing approaches for assessing insanity based on DID. Wheaton, 121 Wn.2d at 356. Here, therefore, we must determine whether, as a matter of law, the record in Greene's second trial provided a sound basis to adopt a particular approach to instruct the jury on how to assess insanity predicated on DID.
Greene does not analyze or address the evidence in the second trial. Nor does Greene explain how the evidence in the second trial provided a basis for the court to adopt a legal standard based on the competing approaches. Based on our review of the record, we conclude that the evidence in the second trial did not resolve the concerns identified by the Court in Wheaton and Greene. As in Wheaton and Greene, the evidence in Greene's second trial did not establish a sound basis to adopt any one of the competing approaches for assessing insanity based on DID. On this record, there is still no consensus about how to assess insanity based on DID.
The expert testimony during the second five-week trial primarily focused on whether Greene was accurately diagnosed with DID, and not on the question identified by the appellate courts § that is, how to assess the "defendant's state of mind" when a defense of insanity based on DID is asserted.
Experts for both sides expressed opinions on Greene's DID diagnosis and insanity defense. Greene's expert, Dr. LeReau, testified that based on his interview with Greene and M.S.'s testimony as recounted in this court's opinion in Greene, there was no indication that the host personality was present during the assault. Dr. LeReau also testified that based on his understanding of M.S.'s testimony, "Tyrone" regressed to the age of a young child at the time of the crime and would not have been able to appreciate the nature and consequences of his actions. By contrast, the State's expert witnesses testified that Greene most likely did not have DID and was able to perceive the nature and wrongfulness of his acts. The State's experts testified that Greene was a psychopath who also suffered from paraphilia and an antisocial personality disorder. According to the State's experts, Greene was highly manipulative and, based on the absence of any symptoms of DID prior to his contact with M.S., he was feigning DID.
Dr. LeReau relied on the facts as recounted in this court's opinion and the Supreme Court's opinion in State v. Greene.
State expert, Dr. Richard Packer, described this condition as existing in a person who desires to and fantasizes about sexual contact with people against their will.
The defense expert testimony in the second trial also emphasized the absence of fixed boundaries between personality states in people diagnosed with DID. Dr. LeReau talked about how alters may be co-conscious, share information, and comment on circumstances as they occur. He also discussed how alters sometimes have the ability to control others and at other times, are present but are not able to intervene. In addition, Dr. LeReau talked about how the "switching" between alters may sometimes be controlled by the host or the dominant personality, and sometimes may not. But fundamentally, Dr. LeReau was unable to explain the nature of the relationship between the personality states and the extent of control that may be asserted by any one personality. Essentially, Dr. LeReau said that the personality state in control is dictated by circumstance and desire. The alter that emerges is "the one that has the biggest press to take care of what's going on at the time."
As was the case in Wheaton and in Greene, the evidence in Greene's second trial did not provide a sound basis to adopt any one of the competing approaches for assessing insanity based on DID. On this record, there is no consensus about how to assess the defendant's mental state at the time of the crime, nor does this record provide a sound basis to select among the different approaches advocated by the defense and the State.
Relying on the Tenth Circuit opinion in United States v. Denny-Shaffer, 2 F.3d 999 (10th Cir. 1993), Greene also contends that as a matter of law, the "host" or "global" approach is the appropriate standard. In Denny-Shaffer, the defendant pleaded not guilty by reason of insanity caused by DID. The trial court rejected the defendant's DID insanity defense and refused to instruct the jury on insanity. The Tenth Circuit reversed and held the trial court erred in ruling there was insufficient evidence to justify a jury instruction on insanity. But in dicta, the Court stated that on remand the jury should focus on the "ability of the host or dominant personality to appreciate the nature and quality of the defendant's acts or the wrongfulness thereof." Denny-Shaffer, 2 F.3d at 1022. Here, by contrast, the jury was instructed on Greene's insanity defense and, as explained, the testimony in Greene's second trial did not support adopting either the host approach or the global approach.
The court's opinion in Denny-Shaffer provides no basis for its conclusion that the host personality's consciousness is of "paramount importance." Id. at 1018, n. 21.
The host or global approach is not a majority approach. While some law review comments favored these approaches, as of yet, no court, has adopted either approach. See Mary Eileen Crego, One Crime Many Convicted: Dissociative Identity Disorder and the Exclusion of Expert Testimony in State v. Greene, 75 Wash. L.Rev. 911 (July 2000); Mark E. Hindley, United States v. Denny-Shaffer and Multiple Personality Disorder: Who Stole the Cookie from the Cookie Jar, 1994 Utah L.Rev. 961. Review of decisions from other jurisdictions reveals no consensus as to what approach to take or whether to adopt a specific approach. See State v. Grimsley, 444 N.E.2d 1071 (Oh. Ct. App. 1982) (assess mental state of personality in control at the time of the crime); Kirkland v. State, 304 S.E.2d 561 (Ga.Ct.App. 1983) (also alter approach); State v. Rodrigues, 679 P.2d 615 (Haw. 1984) (internally inconsistent but suggesting alter approach); State v. Badger, 551 A.2d 207 (N.J.Super.Ct. Law Div 1988) (unified approach); State v. Lockhart, 542 S.E.2d 443 (W.Va. 2000) (refusing to adopt a specific position; testimony to be evaluated on a case-by-case basis).
The concerns raised by the Court in Wheaton and Greene regarding the absence of a scientific basis to establish a legal standard to assess the mental state of a defendant with DID were not resolved by the testimony in this case. We conclude the court's decision declining to adopt a DID-specific legal standard and instead instruct the jury using the WPIC insanity defense instruction was not error.
Voluntary Act Instruction for Insanity
Based on the evidence that Greene continually ingested cocaine during the assault and the expert testimony about the effect of cocaine on Greene's state of mind, the trial court gave a voluntary act instruction for Greene's insanity defense. The voluntary act jury instruction was based on WPIC 20.24. The jury instruction states "[n]o condition of mind directly induced by the voluntary act of a person charged with a crime constitutes insanity."
11 Washington Pattern Jury Instructions: Criminal 20.04, at 268 (2d ed. 1994) (WPIC).
Voluntary intoxication that causes insanity cannot constitute a defense. State v. Wicks, 98 Wn.2d 620, 623, 657 P.2d 781 (1983). Under RCW 10.77.030(3) "[n]o condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity."
Greene claims the trial court erred in giving a voluntary act instruction because his insanity defense was predicated on DID, not on drug use. In addition, Greene contends the voluntary act instruction is inconsistent with the jury instructions on diminished capacity.
Below, Greene argued there was no evidence that drug use caused his insanity and his insanity defense was based solely on DID. But, based on the evidence at trial, the court decided the jury could conclude Greene was insane because of the effect the cocaine had on his DID disorder. Dr. LeReau testified that if Greene was not under the influence of drugs, "he may have been able to avoid the abreaction, but because of the loosening of boundaries, because of the cocaine intoxication, he wasn't able to stop his disorder from manifesting in the way this manifested that day." M.S. also testified that Greene's use of cocaine caused an inability to control "his system." We conclude the evidence supports the trial court's decision to give the voluntary act instruction.
M.S. and Dr. LeReau testified that Tyrone was experiencing an "abreaction," or a reenactment of a prior traumatic event, when he committed the assault.
Greene also contends the instruction was inappropriate because of an exception to the rule that a condition of mind induced by voluntary intoxication can constitute insanity. Under limited circumstances, when the influence of intoxicants "triggers an underlying psychotic disorder of a settled nature, such as a delirium tremens," the instruction is inappropriate. Wicks, 98 Wn.2d at 623. In Wicks the exception applied because the defendant was diagnosed with undifferentiated schizophrenia whose psychosis was caused by the voluntary ingestion of alcohol and drugs. Here, unlike in Wicks, there was no testimony that Greene's use of cocaine caused DID. But Wicks does not hold that a voluntary intoxication instruction is inappropriate where the use of alcohol or drugs exacerbates an underlying disorder. Wicks, 98 Wn.2d at 625.
Greene also relies on the "Note on Use" for WPIC 20.04 to argue the instruction was inappropriate because it was not intended for use in cases where a diminished capacity defense is asserted. The Note on Use for WPIC 20.04 states that the instruction should not be used "if the defendant pleads voluntary intoxication or diminished capacity instead of insanity." But the Note does not address the use of the instruction where both insanity and diminished capacity are asserted. We conclude where the defendant, as here, asserts both defenses, it is not error to give the instruction.
(Emphasis added).
Although voluntary intoxication applies differently to insanity and diminished capacity, the WPIC jury instructions for the two defenses do not create a conflict. For Greene's diminished capacity defense, the court correctly instructed the jury that it could consider evidence of voluntary intoxication in deciding whether Greene acted with intent or knowledge. For Greene's insanity defense, the court instructed the jury that evidence of a mental illness or disorder may be considered in deciding whether Greene had the capacity to form the requisite intent or knowledge. Based on the evidence presented, the court also correctly instructed the jury that no "condition of mind directly induced" by drugs or alcohol constitutes insanity.
The voluntary act instruction for insanity is an accurate statement of the law and was supported by the evidence. Here, the voluntary act instruction for insanity did not conflict with the diminished capacity instruction and the court did not err in giving the instruction.
ER 404(b) Evidence
Before trial, the defense stipulated that evidence regarding two prior sexual assaults committed by Greene was admissible to establish the elements of intent and knowledge. The State's first witness at trial, B.B., was one of the victims of a prior assault. The defense objected to calling B.B. not based on the admissibility of the testimony, but rather on the timing. The defense argued that it only stipulated that the testimony could come in as rebuttal evidence if the defense challenged the issues of intent and knowledge. The State pointed out that by asserting the defense of not guilty by reason of insanity, Greene put the elements of intent and knowledge directly at issue. The court concluded that the evidence of the prior sexual assaults was admissible under ER 404(b) to establish knowledge and intent and that the probative value of the evidence outweighed the prejudice.
The defense argued it was improper to admit the ER 404(b) evidence because it would prevent Greene from withdrawing his insanity plea or deciding not to challenge intent and knowledge for his diminished capacity defense. The court observed that the only purpose of the retrial was to present Greene's DID evidence, and if the defense was not going to present any evidence about that, there was no need for a retrial.
ER 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Greene claims the trial court abused its discretion by prematurely admitting the ER 404(b) rebuttal evidence and unfairly dictating the defense strategy. However, the trial court did not admit the evidence as rebuttal evidence, but rather as evidence of intent and knowledge under ER 404(b).
This is not a case where the trial court improperly admitted evidence to rehabilitate a witness before the witness's credibility was attacked. See State v. Bourgeois, 133 Wn.2d 389, 400-401, 945 P.2d 1120 (1997).
To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). This court reviews decisions to admit evidence under ER 404(b) for abuse of discretion. State v. Dennison, 115 Wn.2d 609, 627-28, 801 P.2d 193 (1990). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The trial court identified that the purpose for admission of the prior assaults was to establish intent and knowledge. The trial court also determined that the evidence was relevant and that the probative value of the evidence outweighed the prejudice. We conclude that the trial court did not abuse its discretion in admitting the evidence of the prior assaults during the State's case-in-chief.
Right to Jury Determination of Prior Convictions
Greene contends that the state and federal constitutions require a jury to decide the existence of prior convictions under the POAA beyond a reasonable doubt. Our Supreme Court has addressed and rejected this argument. State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001) (holding Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), does not require that prior convictions used to establish persistent offender status be submitted to a jury and proved beyond a reasonable doubt); State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909, 124 S. Ct. 1616, 158 L. Ed. 2d 256, (2004) (neither federal constitution nor Washington constitution requires that the fact of prior convictions be determined by jury). Under controlling precedent, Greene was not entitled to a jury determination of whether his prior convictions qualified for purposes of the POAA.
CONCLUSION
We affirm Greene's conviction for kidnapping in the first degree and indecent liberties and the trial court's decision to sentence Greene as a persistent offender under the POAA.
BECKER and ELLINGTON, JJ., concur.