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                                                      This opinion was flied for record

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                                                  SUSAN L. CARLSON
                                                        SUPREMECOURTCLERK
                                                                                          :




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                       )
STATE OF WASHINGTON,                   )
                                       )
                   Respondent,         )      No. 92021-4
                                       )
      v.                               )
                                       )      ENBANC
ANTHONY TYRONE CLARK,                  )
                                       )
                   Petitioner.         )      Filed:     FEB 0 2 2.011
_______________________)
      YU, J.- At his trial for premeditated first degree murder, petitioner

Anthony Tyrone Clark sought to introduce expert testimony regarding his

intellectual deficits. Clark asserted this testimony would be relevant to contesting

the State's mens rea evidence and to helping the jury understand Clark's affect

while testifying. The trial court excluded Clark's proffered expert testimony, but it

did allow relevant observation testimony about Clark's education history, Social

Security disability benefits, affect, and actions on the day of the murder.

      We hold that the trial court properly exercised its discretion in making its

evidentiary rulings. The court did allow relevant observation testimony from lay
State v. Clark, No. 92021-4


witnesses to rebut the State's mens rea evidence, and Clark does not challenge the

scope of this testimony on review. However, because Clark purposefully did not

assert or plead diminished capacity and the proposed expert testimony was not
                                                                              .
relevant to any other purpose, the expert testimony was properly excluded. Clark

also cannot establish ineffective assistance of counsel or cumulative error, so we

affirm his convictions.

                                  FACTUAL BACKGROUND

       Clark killed the victim, D.D., 1 with a single gunshot to the back of his head.

D.D.'s body was found in a garbage can behind the triplex apartment building

where Clark lived. There were no eyewitnesses to the shooting other than Clark

himself. Clark testified that D.D. was trying to get Clark's mother's necklace from

a high shelf in a closet. Before reaching for the necklace, D.D. removed a gun

from his coat pocket, removed the "clip" from the gun, and handed the gun to

Clark. 13 Verbatim Report ofProceedings (VRP) (Apr. 15, 2013) at 1594. Clark

was sitting on the floor "messing around with the gun," aimed it "towards the

ceiling of the closet," and shot D.D. Id. at 1595. Several other witnesses testified

about Clark's actions on the day of the shooting, including Clark asking his

neighbors to help sell D.D.'s cocaine and get rid ofD.D.'s body. The State

theorized that Clark killed D.D. with premeditation in order to steal D.D.'s gun and


        1
            We use the victim's initials because he was a minor at the time of his death.


                                                   2
State v. Clark, No. 92021-4


cocame. Clark contended the shooting was an accident. The primary disputed

issue was thus Clark's level of intent.

                                PROCEDURAL HISTORY

       By amended information, the State charged Clark with premeditated first

degree murder, first degree felony murder, first degree robbery, unlawful

possession of a controlled substance with intent to deliver, and second degree

unlawful possession of a firearm. Clark pleaded not guilty on all counts.

       Before trial, the defense moved to suppress statements Clark made to police

after the shooting, contending that he did not validly waive his Miranda 2 rights

before speaking to police. To support its motion, the defense offered an expert

evaluation by Dr. Brent OneaP At the suppression hearing, Dr. Oneal testified

that Clark scored in the bottom first to third percentile in standardized intelligence

tests. The court found that Dr. Oneal was a credible witness but denied Clark's

motion to suppress.

       The State then moved to exclude testimony about Clark's "intellectual

deficits" for trial purposes. Clerk's Papers (CP) at 213 (underlining omitted).

Clark argued that Dr. Oneal's testimony was admissible for three purposes: (1) to


       2
         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
       3
         The record contains inconsistent spellings of this expert's last name. See, e.g., Clerk's
Papers at 25 ("O'Neal"), 56 ("Oneal"). We use the spelling "Oneal" for consistency with the
Court of Appeals opinion. State v. Clark, No. 45103-4-II, slip op. at 3 (Wash. Ct. App. June 23,
2015) (unpublished), http://www.courts.wa.gov/opinions/.


                                                 3
State v. Clark, No. 92021-4


help the jury understand Clark's affect during testimony, (2) to explain why Clark

does not work, and (3) to contest the State's mens rea evidence. The court granted

the State's motion in part and excluded Dr. Oneal's testimony because, in light of

the fact that Clark specifically disavowed any intention to argue diminished

capacity, expert testimony on Clark's intellectual deficits would be irrelevant and

confusing to the jury. It did, however, allow for relevant observation testimony

bearing on Clark's intellectual deficits, including his participation in special

education, his receipt of Social Security disability benefits, and "that people [who]

knew him considered him slow or tended to discount his testimony." VRP (Dec.

17, 2012) at 20. The court also left open the possibility for additional evidence

regarding Clark's circumstances and abilities if the State "unfairly sanitized" those

facts at trial. VRP (Feb. 15, 2013) at 20.

       At the beginning of jury selection, outside the presence of the jury panel, the

court noted that some jurors might be confused about whether the death penalty

was being sought, given that Clark was charged with murder. The court invited

counsel to handle that issue as it felt was appropriate. During individual

questioning, the State informed one prospective juror, who was not ultimately

seated in this case, that it was not seeking the death penalty. 2 VRP (Mar. 11,

2013) at 120; 5 VRP (Mar. 13, 2013) at 490. It twice repeated that information in




                                             4
State v. Clark, No. 92021-4


front of all the prospective jurors. 5 VRP (Mar. 13, 2013) at 372, 419. The

defense did not object at any time.

       The defense renewed its request to admit Dr. Oneal's testimony several

times throughout the course of the trial, arguing that the testimony was necessary

to rebut the State's mens rea evidence and to explain Clark's affect when he

testified. Nevertheless, the defense consistently maintained that it was not

asserting diminished capacity. The court adhered to its ruling excluding Dr.

Oneal's testimony and reminded counsel that relevant observation testimony by lay

witnesses was admissible.

       The defense elicited testimony that Clark had been in special education, had

an individualized education plan, and received Social Security disability benefits. 4

It relied on this evidence in its closing argument, emphasizing that Clark was "not

your average 20 year old" and arguing that in light of Clark's actual intellectual

abilities, the State had not proved mens rea on the murder change. 15 VRP (Apr.

17, 2013) at 1826.

       The jury was instructed on premeditated first degree murder and the lesser-

included offenses of intentional second degree murder, reckless first degree



       4
         The defense did not elicit testimony that one of Clark's neighbors perceived him as
slow, believing that was outside the scope of the court's written ruling. Whether the written
ruling was unduly restrictive and whether trial counsel was ineffective for failing to elicit
testimony about Clark's perceived slowness are not raised as issues on appeal.


                                                5
State v. Clark, No. 92021-4


manslaughter, and negligent second degree manslaughter. Clark was convicted of

premeditated first degree murder as charged, as well as all the other charged

counts, so no verdict was returned on the lesser-included offenses.

       The court denied Clark's request for an exceptional sentence downward and

imposed sentences at the bottom of the standard range. 5 The Court of Appeals

affirmed in all relevant aspects. State v. Clark, No. 451 03-4-II (Wash. Ct. App.

June 23, 2015) (unpublished), http://www.courts.wa.gov/opinions/. 6 We granted

Clark's petition for review. State v. Clark, 184 Wn.2d 1019, 361 P.3d 746 (2015).

                                           ISSUES

       A.     Did the trial court properly exclude expert testimony regarding

Clark's intellectual deficits?

       B.      Was trial counsel ineffective for failing to object when the State

informed prospective jurors that it was not seeking the death penalty?

       C.      Did cumulative error deprive Clark of his right to a fair trial?




       5
         The court did not impose a sentence for the first degree felony murder conviction due to
double jeopardy concerns. VRP (May 28, 2013) at 7.
       6
         The State did concede on appeal that the trial court erred in instructing the jury on an
uncharged alternative means for first degree robbery. Clark, No. 45103-4-II, slip op. at 14-16.
The Court of Appeals accepted the concession and reversed the robbery conviction because the
error was not harmless. Id. at 16. That issue is not presented for our review and does not affect
our analysis.


                                                6
State v. Clark, No. 92021-4


                              STANDARD OF REVIEW

       We review the trial court's evidentiary rulings for abuse of discretion and

defer to those rulings unless "'no reasonable person would take the view adopted

by the trial court."' State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001)

(internal quotation marks omitted) (quoting State v. Ellis, 136 Wn;2d 498, 504, 963

P.2d 843 (1998)). If the court excluded relevant defense evidence, we determine

as a matter of law whether the exclusion violated the constitutional right to present

a defense. State v. Jones, 168 Wn.2d 713,719,230 P.3d 576 (2010).

       To prevail on a claim of ineffective assistance of counsel, a defendant must

show that trial counsel's performance was "deficient," and that, "but for counsel's

deficient performance, there is a 'reasonable probability' that the outcome would

have been different." State v. Hicks, 163 Wn.2d 477,486, 181 P.3d 831 (2008)

(quoting State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001)). For

relief based on the cumulative error doctrine, the defendant must show that while

multiple trial errors, "standing alone, might not be of sufficient gravity to

constitute grounds for a new trial, the combined effect of the accumulation of

errors most certainly requires a new trial." State v. Coe, 101 Wn.2d 772, 789, 684

P.2d 668 (1984). Both ineffective assistance of counsel and cumulative error

present constitutional issues, which we review de novo. State v. Samalia, 186

Wn.2d 262,269, 375 P.3d 1082 (2016).


                                           7
State v. Clark, No. 92021-4


                                     ANALYSIS

       Clark argues the trial court erred in excluding Dr. Oneal's expert testimony

because it was relevant to his defense, even though he never asserted or pleaded

diminished capacity. It is true that observation testimony regarding relevant facts

is generally admissible and does not implicate the pleading requirements for

diminished capacity, even if offered to rebut the State's mens rea evidence.

However, expert opinion testimony that a defendant has a mental disorder that

impaired the defendant's ability to form the requisite mens rea is relevant only to

diminished capacity. Diminished capacity must be affirmatively pleaded before

trial, and in this case, Clark specifically disavowed any intent to plead diminished

capacity. The court thus properly allowed relevant observation testimony tending

to rebut the State's mens rea evidence and properly excluded expert testimony that

was not relevant absent a diminished capacity defense. To the extent, if any, that

the court unduly restricted the scope of allowable observation testimony by lay

witnesses, Clark does not raise that issue on review. He does not otherwise show

reversible error, and we therefore affirm.

A.     The court properly excluded Dr. Oneal's testimony

       Expert testimony is admissible "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue." ER 702. The defense contends that Dr. Oneal's expert testimony


                                             8
State v. Clark, No. 92021-4


would have assisted the jury to determine a fact in issue-Clark's level of intent-

and would also have helped the jury to understand the evidence by explaining

Clark's unusually flat affect while he was testifying. However, because the

defense did not plead diminished capacity or show that Dr. Oneal's testimony was

otherwise relevant, his expert testimony was properly excluded.

       1.     Dr. Oneal's testimony was not admissible to rebut the State's mens
              rea evidence

       Clark argues that Dr. Oneal's expert testimony should have been admitted

for the purpose of rebutting the State's mens rea evidence even though Clark did

not plead diminished capacity because Dr. Oneal's testimony was not actually

diminished capacity evidence. Alternatively, he argues that trial counsel's failure

to assert diminished capacity did not warrant exclusion of Dr. Oneal's testimony.

These arguments are inconsistent with both the record and the law.

       Diminished capacity "allows a defendant to undermine a specific element of

the offense, a culpable mental state, by showing that a given mental disorder had a

specific effect by which his ability to entertain that mental state was diminished."

State v. Gough, 53 Wn. App. 619, 622, 768 P.2d 1028 (1989). The intent to assert

diminished capacity must "be declared pretrial." State v. Harris, 122 Wn. App.

498, 506, 94 P.3d 379 (2004) (citing CrR 4.7(b)(1), (2)(xiv)). Pretrial disclosure is

required because when asserting diminished capacity, the defense "must obtain a




                                          9
State v. Clark, No. 92021-4


corroborating expert opinion and disclose that evidence to the prosecution

pretrial," giving the State a reasonable opportunity to decide whether to obtain its

own evaluation "[d]epending on the strength ofthe defense's showing." Id. (citing

CrR 4.7(b)(l), (b)(2)(viii), (g); In re Pers. Restraint ofHutchinson, 147 Wn.2d

197, 204, 53 P.3d 17 (2002)). Diminished capacity evidence is thus distinguished

from observation testimony about relevant facts tending to rebut the State's mens

rea evidence because diminished capacity requires an expert diagnosis of a mental

disorder and expert opinion testimony connecting the mental disorder to the

defendant's inability to form a culpable mental state in a particular case. Atsbeha,

142 Wn.2d at 918.

       Clark first contends that he was not required to plead diminished capacity

because Dr. Oneal's expert testimony was not actually diminished capacity

evidence. The record indicates otherwise. Even though trial counsel rejected the

diminished capacity label, the primary intended purpose for Dr. Oneal's testimony

in this case was to rebut the State's mens rea evidence on the basis that Clark's

clinically evaluated intellectual deficits impaired his ability to understand and

assess the risks of his behavior, thereby reducing the likelihood that Clark acted

with a culpable mental state when he shot D.D. As the trial court appropriately

recognized, that is precisely the purpose of diminished capacity evidence. See,

e.g., id.; State v. Greene, 139 Wn.2d 64,73-74,984 P.2d 1024 (1999). The label


                                          10
State v. Clark, No. 92021A


that trial counsel attaches to its proffered evidence cannot change the actual

purpose for which the evidence is offered. Cf Cienfuegos, 144 Wn.2d at 227-28

(considering evidence regarding the defendant's ability to form the requisite

mental state as evidence of diminished capacity even though trial counsel did not

request a diminished capacity instruction). It is clear from the record that the

actual purpose for Dr. Oneal's expert testimony was to establish Clark's

diminished capacity. 7

       Clark also argues that Dr. Oneal's testimony was not diminished capacity

evidence because Dr. Oneal would not have testified that Clark "lacked the

capacity or ability to form the requisite mens rea." Pet. for Review at 15. This

argument shows only that even if Clark had pleaded diminished capacity, Dr.

Oneal's testimony might still be inadmissible because it did not meet the relevancy

threshold. It does not change the purpose for which the evidence was offered.

And while Clark argues on review that we should relax the relevancy threshold for

expert testimony of diminished capacity, he does not show it is incorrect or

harmful. See W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters,

180 Wn.2d 54, 66, 322 P.3d 1207 (2014). Our diminished capacity precedent



       7
          We therefore need not look to cases from other jurisdictions analyzing the admissibly of
expert opinion testimony offered for purposes other than establishing diminished capacity. See,
e.g., State v. Burr, 195 N.J. 119, 948 A.2d 627 (2008). To the extent Clark argues there were
other purposes for Dr. Oneal's testimony, we address that issue below.


                                                11
State v. Clark, No. 92021-4


merely sets forth a specific application of the general standard that expert

testimony must be relevant and helpful to the trier of fact, which does not

contravene a defendant's constitutional right to present evidence in his or her own

defense. ER 401, 402, 702; Jones, 168 Wn.2d at 720; Atsbeha, 142 Wn.2d at 917-

18. Moreover, a relaxed relevancy threshold for diminished capacity evidence

would not change the fact that Clark did not plead diminished capacity in this case.

       Clark argues in the alternative that we should treat trial counsel's failure to

assert diminished capacity as merely a "pleading failure" that did not warrant

exclusion ofDr. Oneal's testimony. Suppl. Br. ofPet'r at 16 (boldface omitted).

However, on this record, the failure to assert diminished capacity was

unquestionably a purposeful decision by trial counsel. That purposeful decision

has consequences because while the State is always required to prove the

defendant's actual culpable mental state, it is not automatically required to prove

the defendant's capacity to form a culpable mental state; such capacity is presumed

unless the defendant places it at issue. State v. Johnson, 150 Wn. App. 663, 671,

208 P.3d 1265, review denied, 167 Wn.2d 1012, 220 P.3d 208 (2009). Ifthe

defendant does not place his or her capacity at issue but is still allowed to present

expert testimony intended to negate such capacity, the State has no way to

meaningfully respond and the jury is left to evaluate an expert opinion with no

context for assessing its relevance to the elements of charged offenses.


                                           12
State v. Clark, No. 92021-4


       We do not question the principle that a criminal defendant has the

constitutional right to present evidence in his or her own defense, and relevant

observation testimony tending to rebut any element of the State's case, including

mens rea, is generally admissible. However, expert opinion testimony that a

defendant has a mental disorder that impaired the defendant's ability to form a

culpable mental state is, by definition, evidence of diminished capacity. And

where, as here, the defense does not plead diminished capacity, such testimony is

properly excluded.

       2.      Dr. Oneal's testimony was not admissible to explain Clark's affect
               during testimony

       In addition to rebutting the State's mens rea evidence, the defense contends

that Dr. Oneal's testimony should have been admitted for the purpose of explaining

Clark's unusually flat affect while testifying. We do not rule out the possibility

that expert testimony regarding a defendant's mental disorder may be introduced

for purposes other than establishing diminished capacity, and admissibility for one

purpose is not necessarily determinative of admissibility for another. Astbeha, 142

Wn.2d at 917 (admissibility of expert testimony, including testimony about a

defendant's mental disorders, is determined according to the Rules ofEvidence).

However, Clark does not point to anything in Dr. Oneal's proposed testimony that

would have helped the jury understand Clark's unusual affect, or that would even




                                           13
State v. Clark, No.   92021~4



support the proposition that Clark had an unusual affect. To the contrary, Dr.

Oneal described "Clark's participation, motivation, focus, [and] effort" as being

"entirely within normallimits." 8 2 VRP (Oct. 4, 2012) at 276. The jury had the

ability to evaluate Clark's affect to the same extent it had the ability to evaluate the

affect of every testifying witness, and Clark has not shown that Dr. Oneal's expert

testimony would have been helpful for that purpose.

B.      Ineffective assistance of counsel

        Clark contends he received ineffective assistance of counsel because trial

counsel did not object when the State was allowed to inform the prospective jurors

that it was not seeking the death penalty. Assuming that Clark's trial counsel

performed deficiently, he does not show prejudice as required by Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus

cannot establish ineffective assistance of counsel. Hicks, 163 Wn.2d at 486-89;

State v. Townsend, 142 Wn.2d 838, 846-49, 15 P.3d 145 (2001).

        Considered in the full context of the case, Clark does not show that the

State's remarks and the defense's failure to object were "sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694. The jury was repeatedly

and properly informed of its duties, and we presume it followed those instructions.


        8
         Notably, the trial court stated that it did not notice anything particularly unusual about
Clark's affect while he was testifying. 14 VRP (Apr. 16, 2013) at 1795. We are in no position to
second~guess that observation.



                                                14
State v. Clark, No. 92021-4


!d. at 694-95. When the court made preliminary remarks to the jury panel, it

reminded them that they would be expected to "accept the instructions of the

court" and "base any decision upon the law and the facts uninfluenced by any other

considerations." 5 VRP (Mar. 13, 2013) at 370. After the jury was selected, the

court again reminded them their evaluation of the case must be "based solely on

the evidence and my instructions on the law." !d. at 493. And the court's

instructions on the law properly informed the jury that "[y]ou have nothing

whatever to do with any punishment that may be imposed in case of a violation of

the law. You may not consider the fact that punishment may follow conviction

except insofar as it may tend to make you careful." CP at 277.

       There is no indication that the jury disregarded its instructions or paid less

attention to the evidence presented throughout Clark's trial because it was told that

the death penalty was not at issue. Cf State v. Kalebaugh, 183 Wn.2d 578, 586,

355 P.3d 253 (2015) (rejecting the possibility that a trial court's "offhand

explanation of reasonable doubt at the beginning of this case" harmed the

defendant in light of the fact that the jury was repeatedly and properly instructed

on reasonable doubt and the presumption of innocence). There is also no reason to

believe that a contemporaneous objection by defense counsel would have reduced

any potential for prejudice more than the court's proper, written instructions did.




                                           15
State v. Clark, No. 92021-4


We thus hold that Clark has not carried his burden of showing prejudice and

therefore has not established ineffective assistance of counsel.

C.     Cumulative error

       Clark does not show any error, so the cumulative error doctrine does not

apply. Coe, 101 Wn.2d at 789.

                                   CONCLUSION

       Expert testimony that a defendant suffered a mental disorder not amounting

to insanity that impaired the defendant's ability to form a culpable mental state is

diminished capacity evidence. The trial court correctly recognized that and

properly excluded Dr. Oneal's expert testimony because Clark did not assert or

plead diminished capacity or show that Dr. Oneal's testimony was otherwise

relevant. We therefore have no reason to revisitAtsbeha's three-part test for

determining whether expert testimony of diminished capacity is admissible in

accordance with the Rules of Evidence. Moreover, the court properly allowed

relevant observation testimony, which the defense relied on in its attempt to rebut

the State's mens rea evidence. Clark does not otherwise show reversible error.

We therefore affirm.




                                          16
State v. Clark, No. 92021-4




WE CONCUR:




                              17
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)




                                        No. 92021-4

      GORDON McCLOUD, J. ( dissenting)-Anthony Clark was convicted of first

degree murder of his friend, D.D. 1 The State argued that Clark shot D.D. with

premeditated intent to kill in the course of stealing D.D. 's drugs; Clark admitted that

he shot D.D., but claimed that it was an accident because he thought the gun was not

loaded. Thus, the only question at trial was Clark's mental state. The trial court

therefore permitted the State to present substantial evidence regarding Clark's

premeditated intent. And the trial court ultimately instructed the jury on several

lesser included offenses-intentional second degree murder, reckless first degree

manslaughter, and negligent second degree manslaughter-all defined by mental

states less culpable than premeditation. 2 But it barred Clark from presenting most

of his proffered evidence refuting premeditated intent. Most critically, it excluded


       1
           D.D. was a minor at the time-initials are used to protect the minor's privacy.
       2
         See State v. Jones, 95 Wn.2d 616, 621-22, 628 P.2d 472 (1981) (recklessness and
negligence are lesser mental states "included" in intent; defendant charged with intentional
murder was entitled to manslaughter instruction where evidence of intoxication supported
theory that killing was unintentional); State v. Condon, 182 Wn.2d 307, 319, 343 PJd 357
(20 15) (intentional murder is lesser included offense in premeditated murder).
                                               1
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



expert testimony about Clark's intellectual disabilities that could have bolstered his

accident defense, reasoning that such testimony is inadmissible unless the defendant

pleads diminished capacity.

      The majority approves this distinction between lay and expert testimony. It

holds that lay "observation testimony" regarding Clark's intellectual disabilities was

relevant to rebut the element of mens rea even though Clark did not plead a

diminished capacity defense, but it reaches the opposite conclusion about expert

testimony on Clark's disability. Majority at 8 ("The court ... properly allowed

relevant observation testimony tending to rebut the State's mens rea evidence and

properly excluded expert testimony that was not relevant absent a diminished

capacity defense."). Thus, the majority holds that the strongest evidence of Clark's

intellectual disabilities-a psychologist's testimony that Clark had developmental

disabilities, exceedingly low intelligence quotient (IQ) scores, and a diagnosis of

mild mental retardation-was inadmissible to support the defense's accident and/or

lesser included offense theories. 2 Verbatim Report of Proceedings (VRP) (3.5

Hr'g) (Oct. 4, 2012) at 268-74,314,283.

      This distinction is illogical and violates the constitutional right to present a

defense. I respectfully dissent.



                                          2
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



      I.     The Trial Court Admitted Certain Lay Observation Testimony
             Supporting the Defense, but Excluded the More Neutral, More
             Persuasive Medical Expert Testimony Supporting the Same Defense
             Theory

      Clark testified that on the morning of the shooting, he was walking from his

apartment to a neighborhood barbecue when he saw D.D.-an acquaintance from

school-standing at a crosswalk. The two talked briefly, and Clark then invited D.D.

over to his apartment.

      At the apartment, D.D. opened his coat pocket and showed Clark a .22 caliber

gun and an M&M' s container filled with pieces of crack cocaine, and then asked

Clark to help him sell the drugs. Clark testified that he went upstairs to ask his

neighbors to buy the drugs, but they declined, so Clark came back downstairs and

suggested that he and D.D. pawn his mother's gold necklace for money instead.

      According to Clark, the necklace was in a jewelry box on the top shelf of a

bedroom closet. Clark tried but failed to reach the box, so D.D decided to try. He

told Clark to move out of his way. Before climbing up to reach for the box, though,

D.D. disarmed: he pulled the .22 caliber gun out of his coat pocket, removed the

magazme, and handed the gun without the magazine to Clark.           D .D. kept the

magazme. Clark testified that as D.D. reached into the closet, still holding that

magazine, Clark sat on the floor and played with the gun. Thinking the gun was


                                         3
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



unloaded because the magazine was out, 3 Clark aimed it at the ceiling of the closet

and pulled the trigger. The bullet struck D.D. in the back of his head.

      Clark claimed that he then tried to resuscitate D.D. 13 VRP (Apr. 15, 2013)

at 1658-59, 1663. He did one compression. !d. at 1663. He then put the magazine

back into the gun and hid both the gun and the drugs inside his toilet. !d. at 1672-

73. (That's where officers later found them.) Clark then went upstairs to ask his

neighbors for help disposing of a body. He testified that he was crying and shaking

at the time. Id. at 1666, 1669. As discussed below, that contradicted his neighbors'

testimony that Clark was oddly calm when talking about the body.

      The prosecution argued that Clark was a sophisticated killer, too familiar with

guns to have thought that D.D.'s gun was unloaded just because the magazine had

been removed. 14 VRP (Apr. 16, 2013) at 1764-65. To support that theory, the

State offered testimony by three of Clark's neighbors regarding conversations that

they had with Clark on the day of the shooting. These neighbors all agreed that

Clark asked them to buy or help sell crack cocaine first, and then later asked them



       3 Although Clark said that he thought the gun was unloaded at the time he pulled
the trigger, he also testified that he knew that guns were dangerous and that he thought the
gun was capable of firing a bullet at some point in time. 13 VRP (Apr. 15, 2013) at 1595,
1660 ("Q. Did you, at any time[,] think[ ] that you could fire a bullet out of that gun 7 A.
Yes. Q. Did you think it was loaded? A. No.").

                                             4
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



to help him dispose of a body. Specifically, they all testified that Clark told them

that a friend had given him the cocaine to sell so that he could buy school clothes-

even though Clark was no longer in school. 8 VRP (Mar. 19, 2013) at 848, 854,

904-05; 9 VRP (Mar. 20, 2013) at 1002-07, 1026-27. Some said that Clark then left

and came back to talk about the body; others said that Clark stayed and talked about

the body. 8 VRP (Mar. 19, 2013) at 850-53; 9 VRP (Mar. 20, 2013) at 1007-08,

1032. Two neighbors testified that Clark said he "popped" the person in the head

with a "deuce deuce." 8 VRP (Mar. 19, 2013) at 851, 853, 907. All three neighbors

recounted that Clark said he did that because that person was hitting "his baby's

mom" and that he was taught never to let anyone harm his baby's mom-even

though Clark had no children. 8 VRP (Mar. 19, 2013) at 850; 9 VRP (Mar. 20, 2013)

at 1035. Despite Clark's confession, the neighbors remained unsure whether Clark

was joking, partly because of his oddly calm demeanor and partly because he

sometimes said he was joking. 8 VRP (Mar. 19, 2013) at 850-51, 863-64, 894,906-

07, 912; 9 VRP (Mar. 20, 2013) at 1010. But Clark eventually took one neighbor to

the garbage can behind their apartment building and showed herD .D.'s hidden body.

8 VRP (Mar. 19, 2013) at 863-66, 894, 912; 9 VRP (Mar. 20, 2013) at 1012.




                                          5
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



      The trial court did permit Clark to present lay testimony that he was in high

school "beyond normal age" and attended special education classes. VRP (Dec. 17,

20 12) at 20-21. As discussed further below, though, the trial court excluded the bulk

of the defense-proffered evidence on Clark's diagnoses of "mild mental

retardation"-evidence from a neutral expert witness. 2 VRP (3.5 Hr'g) (Oct. 4,

20 12) at 314. On the basis of the testimony about learning problems alone, though,

the defense argued-apparently not persuasively-that Clark had below average

intelligence and simply mishandled the gun:

      Would I characterize Anthony as a man? No. You're talking about, at
      the time, a 20 year old who had just graduated from special education .




            . . . As far as he knew at the time, the bullets had been removed
      from the gun ... which is probably exactly what [D.D.] thought when
      he handed that to Anthony. And he probably did that knowing that
      Anthony's not your average 20 year old.

15 VRP (Apr. 17, 2013) at 1816, 1826 (emphasis added).

      The defense sought to bolster the lay testimony supporting its accident theory

with the far more persuasive testimony of Dr. Brent Oneal, a psychologist who

personally evaluated Clark and diagnosed him with "mild retardation." 2 VRP (3.5

Hr'g) (Oct. 4, 2012) at 260, 314. The State acknowledged that this testimony tended


                                          6
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



to rebut the element of mens rea, but moved to exclude the testimony anyway,

arguing that it would be too confusing for jurors in the absence of a diminished

capacity defense:

      [T]he jurors would likely be confused about how to evaluate [Dr.
      Oneal's] evidence. They would wonder whether a "mentally retarded"
      person is able to form a specific intent like a person of normal
      intelligence. Such confusion is both needless and patently unfair to the
      State where the defense has not raised a diminished capacity defense.

Clerk's Papers (CP) at 218. The defense responded that Dr. Oneal's testimony was

also relevant to "support a finding of recklessness or criminal negligence" as

opposed to premeditated intent because the diagnosis and associated explanation

made it less likely that Clark knew or understood the risks posed by firing the gun.

CP at 225.

      The trial court agreed with the State.      It allowed certain lay testimony

regarding Clark's intellectual deficits and gave lesser included offense instructions

on manslaughter (reckless and negligent), but it excluded Dr. Oneal's more

educated, more neutral medical testimony on the same point as unduly confusing in

the absence of a diminished capacity defense.




                                          7
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



      II.    The Majority Approves This Distinction between Lay and Expert
             Testimony Because It Erroneously Equates All Expert Testimony about
             Intellectual Deficits with a Diminished Capacity Defense

      "Diminished capacity is a mental condition not amounting to insanity which

prevents the defendant from possessing the requisite mental state necessary to

commit the crime charged." State v. Furman, 122 Wn.2d 440, 454, 858 P.2d 1092

(1993) (citing State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973)). The

majority is correct that in order to assert a diminished capacity defense, a defendant

must meet two threshold criteria: ( 1) the defendant must present "substantial

evidence of such a condition" and (2) "the evidence must logically and reasonably

connect the defendant's alleged mental condition with the asserted inability to form

the required specific intent to commit the crime charged." Ferrick, 81 Wn.2d at 944-

45); State v. Griffin, 100 Wn.2d 417,419, 670 P.2d 265 (1983).

      If Clark had offered Dr. Oneal's testimony as evidence that he lacked the

capacity or ability to act intentionally when he shot D.D., then I might agree with

the majority that it was properly excluded. The reason is that Dr. Oneal did not

testify that Clark was incapable of intentionally shooting D.D. and thus his

testimony would likely not satisfy the second prerequisite to asserting a diminished

capacity defense. But, as explained above, Clark did not offer Dr. Oneal's testimony



                                          8
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



to establish a diminished capacity defense-he offered it to bolster his accident

theory. In other words, Clark never argued that he was incapable of shooting D.D.

intentionally; he argued that he did not in fact intend to shoot him.

      The majority fails to appreciate this distinction. Relying on State v. Atsbeha,

142 Wn.2d 904,918, 16 P.3d 626 (2001) and State v. Greene, 139 Wn.2d 64,73-74,

984 P.2d 1024 (1999), the majority concludes that expert testimony-i.e., a

"clinical[] evaluat[ion]"-advances a diminished capacity defense any time it shows

that "intellectual deficits impaired [a defendant's] ability to understand and assess

the risks of his behavior, thereby reducing the likelihood that [he] acted with a

culpable mental state." Majority at 10. But neither case stands for this principle.

Atsbeha addressed expert testimony that the defendant could intentionally deliver

drugs but harbored a delusion that he was cooperating in a sting operation with the

undercover officer who asked him to make the delivery. 142 Wn.2d at 907-08, 910-

11. It held that this testimony was relevant to an insanity defense, but not to a

diminished capacity defense (because it did not negate specific intent). Id. at 920.

And Greene held that testimony regarding the defendant's dissociative identity

disorder (DID) was properly excluded as unhelpful because, given the state of the

relevant science at the time, "it was not possible to reliably connect the symptoms



                                           9
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



of DID to the sanity or mental capacity of the defendant." 139 Wn.2d at 79. These

cases are straightforward applications of our Evidence Rules in the context of

insanity and diminished capacity pleas. They do not limit the other purposes for

which a defendant might admit expert testimony on his cognitive abilities. In other

words, diminished capacity evidence is a subset of evidence concerning cognition

and mens rea. But cognition and mens rea are far bigger categories.

      III.   By Excluding Defense Evidence That Could Rebut the State's
             Evidence on the Element ofMens Rea, the Trial Court Violated Clark's
             Constitutional Right To Present a Defense

      "Few rights are more fundamental than that of an accused to present witnesses

in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038,

35 L. Ed. 2d 297 (1973). That right is based on the right to due process oflaw (U.S.

CONST. amend. XIV; CONST. art. I, § 3) and the rights of an accused in a criminal

proceeding (U.S. CONST. amend. VI; CONST. art. I,§ 22). State v. Jones, 168 Wn.2d

713, 720, 230 P.3d 576 (2010) ("'The right of an accused in a criminal trial to due

process is, in essence, the right to a fair opportunity to defend against the State's

accusations."' (quoting Chambers, 410 U.S. at 294)).

      To be sure, this right to present evidence extends only to relevant evidence.

State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983). But evidence is relevant if



                                         10
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



it tends to make more or less probable the existence of any fact that is of consequence

to the outcome. ER 401. In this case, the trial court concluded that Dr. Oneal's

testimony was not relevant unless it was offered to support a diminished capacity

defense. The majority affirms because it concludes that Clark really was advancing

such a defense, even though he did not formally plead it-indeed, Clark specifically

denied it.

       For the reasons given in Part II above, I disagree with that conclusion; Clark's

accident defense was not the same thing as a diminished capacity defense. Thus,

this case requires us to answer the following question: Where a defendant offers

expert testimony regarding his or her intellectual deficits to rebut the State's theory

of motive or intent, do the prerequisites to the presentation of a diminished capacity

defense still apply?

       This is a question of first impression in Washington, but the New Jersey

Supreme Court has addressed it. In State v. Burr, the State charged Burr, a piano

teacher, with sexual assault and endangering the welfare of a child based on

allegations that he had fondled one ofhis students. 195 N.J. 119, 122, 948 A.2d 627

(2008). As proof of Burr's sexual deviance, the State presented evidence that Burr

would often allow his students to sit on his lap. !d. at 125. To rebut the resulting



                                          11
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



inference that he was intentionally grooming these students for sexual abuse, Burr

offered evidence that he suffered from Asperger' s Syndrome and that, as a result of

this condition, he had a limited understanding of what constitutes basic and

appropriate social interactions between adults and children. Id. at 129. He also

offered that evidence to assist the jury in assessing his unusual demeanor at trial. I d.

The trial court excluded this evidence, ruling that such evidence was admissible only

to support a diminished capacity defense, which Burr was not seeking. !d. The New

Jersey Supreme Court reversed, explaining that even though Burr was not seeking a

diminished capacity defense, evidence of this condition remained relevant and

therefore should have been admitted to support his claim of innocence. Id. at 129-

30. As the court explained, evidence of Burr's developmental condition was so

highly relevant and significant to his claim of innocence that it "def[ied] specific

enumeration." Id. at 130.

       Evidence of Clark's substantial intellectual deficits and mild mental

retardation diagnosis was equally relevant and significant to his argument that

D.D.'s death was an accident or, alternatively, that it was not premeditated or

intentional.   To convict Clark of first degree murder, the State had to prove

premeditated intent beyond a reasonable doubt. All Clark needed to do was cast



                                           12
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



doubt on the State's evidence of premeditated intent. He could also show that the

homicide was an accident (and not premeditated or intentional or reckless). Clark

tried to do both by testifying that he believed the gun was unloaded at the time of

the shooting and that he did not recognize the substantial risk involved in pulling the

trigger without first checking the chamber for a bullet. The defense focused on

Clark's poor reasoning abilities. Evidence that he was mentally retarded with an

exceedingly low IQ score (scoring in the bottom first and second percentile of others

his age in perceptional reasoning, working memory, and verbal comprehension) was

certainly relevant to his claim. Evidence of Clark's mental process was also relevant

because it rebutted the State's evidence of premeditated intent. See State v. Sexton,

311 N.J. Super. 70, 88, 709 A.2d 288 (1998) (holding in an analogous shooting case

that evidence of the defendant's limited mental ability and his status as a special

education student was relevant to his credibility about whether he actually believed

the gun was unloaded and whether he acted recklessly), aff'd on other grounds, 160

N.J. 93, 733 A.2d 1125 (1999).

       Thus, I would hold that the trial court erred by excluding expert testimony

about Clark's intellectual deficits as irrelevant in the absence of a diminished




                                          13
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



capacity defense. 4 Jones, 168 Wn.2d at 720-21 (exclusion of defense-proffered

evidence that effectively precludes a criminal defendant entirely from being able to

present his version of the events or establishing his innocence violates his or her

right to present a defense). Based on the analysis above, the evidence was highly

relevant and its exclusion violated not just the Rules of Evidence but also the right

to present a defense.

       IV.    The Exclusion of Expert Testimony on Clark's Mild Mental
              Retardation Was Not Harmless Error

       A trial court's decision to exclude defense evidence in a criminal trial is

generally subject to harmless error analysis under the '"overwhelming untainted

evidence' test." State v. Lord, 161 Wn.2d 276, 295, 165 P.3d 1251 (2007) (quoting

State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002) (citing State v. Guloy, 104

Wn.2d 412, 426, 705 P.2d 1182 (1985))). Under that test, error is harmless if the


       4  The United States Supreme Court has held that where state evidentiary rules bar
evidence of a defendant's diminished capacity to form the requisite mens rea as irrelevant
absent a full-fledged insanity defense, then that state court can exclude such evidence under
its state evidentiary rules without violating the federal right to present a defense. Clark v.
Arizona, 548 U.S. 735, 760-79, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006). But our state
laws make such evidence relevant and admissible where, as here, they bear on the
defendant's mens rea and rebut the State's evidence of mens rea. The Supreme Court's
holding in Clark is therefore inapplicable here. See id. at 772-78 (concluding, that if a
State has such a rule barring a defendant's mental disease and incapacity evidence, then
that rule might be a sufficiently "good reason" to satisfy federal due process requirements).
This is likely the reason that neither party cited it.

                                             14
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



untainted, admitted evidence is so overwhelming as to necessarily lead to a finding

of guilt. !d. at 296. "[E]rror is not prejudicial if the evidence is of minor significance

when compared to the overall weight of the evidence." !d. (citing State v. Bourgeois,

133 Wn.2d 389, 403, 945 P.2d 1120 (1997)).            Where, as here, the error is of

constitutional magnitude, however, the error is deemed harmless only if the State

proves '"beyond a reasonable doubt that any reasonable jury would have reached the

same result without the error."' Smith, 148 Wn.2d at 139 (citing State v. Whelchel,

115 Wn.2d 708, 728, 801 P.2d 948 (1990))).

       At trial, the State's theory was that Clark lured D.D. to his apartment to kill

him and steal his drugs. Clark denied that he premeditated or intended the killing

because he thought the gun was not loaded.            Clark also denied that he acted

recklessly, claiming that he did not recognize the substantial risk involved in

pointing a gun that he believed was unloaded at someone and then pulling the trigger

without first checking to see if a bullet was chambered.

       The State presented evidence in support of its theory that showed that Clark

had at least some knowledge about guns (or gun rhetoric). He referred to the .22

caliber gun as a "deuce deuce," called the magazine a "clip," acknowledged that

guns were dangerous, admitted that he thought the particular gun was capable of



                                            15
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



shooting a bullet, and was able to insert the magazine back into the gun before hiding

it in his toilet. The jury also heard that Clark had graduated from high schooV that

he confessed to shooting D.D. because D.D. had struck his fictitious "baby's mom,"

and that Clark was strangely calm during that confession.

       To rebut the State's evidence that he was a cold, calculated killer, Clark

offered lay and expert testimony about how he was slow and did not process

information the way other people his age did. But the trial court excluded most of

it. It barred all testimony from Dr. Oneal about Clark's substantial intellectual

deficits. 6   Dr. Oneal would have testified, based on his personal testing and

evaluation of Clark, that Clark was born prematurely and with significant

developmental delays, was highly suggestible and therefore prone to change his

story when pressured, and had a very low IQ score indicating that he had extremely

poor perceptional reasoning, working memory, and verbal comprehension skills

compared to others his age. 2 VRP (3.5 Hr'g) (Oct. 4, 2012) at 268,271-74, 283.


        5
         The jury was not informed that Clark had not technically graduated from high
school; he only aged out.

        6
         The trial court also barred certain lay testimony from Clark's mother on this same
topic. She would have confirmed that he was in special education since he was four years
old, that his so-called friends would take advantage of him because of his limitations, and
that he could not drive because he could not pass the driver's license exam despite several
attempts. 11 VRP (Mar. 26, 2013) at 1373-74.

                                            16
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



      The only evidence the trial court clearly permitted the jury to hear about

Clark's intellectual deficits was that he was enrolled in special education with an

individualized education plan (but not how long or why he was on it); that neighbors

thought he was slow (but not the expert testing to show exactly how slow he really

was); and that he was on Social Security disability (but not that he was on it because

of his mild mental retardation diagnosis). 7 In essence, the trial court excluded the

most neutral, educated, and meaningful evidence about Clark's intellectual deficits.

      The only real issue in this case was intent. The trial court excluded proffered

defense evidence that was directly relevant to mens rea and that rebutted the State's

evidence of premeditation. The error might well have affected the outcome. We are

especially certain of this given the fact that the trial court felt that there was sufficient

evidence of mental states less culpable than premeditation to support jury

instructions on intentional, reckless, and negligent homicide. CP at 288-95. I would

therefore conclude that the trial court's error was not harmless under either the

evidentiary or constitutional standards.




       7 It was unclear from the court's different rulings whether it would have allowed
Clark to testify about the reason he was on Social Security disability (i.e., because of his
mild mental retardation diagnosis). 7 VRP (Mar. 18, 2013) at 660-63.

                                             17
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)



                                  CONCLUSION

      The trial court improperly excluded evidence of Clark's intellectual deficits

in violation of the Evidence Rules and Clark's constitutional right to present a

defense. This error was not harmless. I therefore respectfully dissent.




                                         18
State v. Clark (Anthony Tyrone), No. 92021-4
(Gordon McCloud, J., dissenting)




                                       19
