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     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 74706-1-1
                     Respondent,
       V.                                       DIVISION ONE

SHANE RYAN CHAMBERLAIN,                         UNPUBLISHED OPINION

                     Appellant.                 FILED: January 22, 2018


       LEACH, J. — Shane Chamberlain appeals his conviction for first degree

murder of Philip Hamlin and first degree attempted murder of Bethany Hamlin. He

claims his counsel was ineffective for failing to pursue a diminished capacity

defense. Because he cannot show from the record before us that a diminished

capacity defense was available, this claim fails. We affirm.

                                   Background

       In 2013, Philip Hamlin was 96 years old and employed a number of people

to manage his household. In spring of that year, Adrena Chamberlain began work

as Philip Hamlin's primary caretaker.       Adrenal and her husband, Shane

Chamberlain, moved into a guesthouse adjoining the main house so she could be

available to Hamlin. Around September 2013, Chamberlain began working for

Hamlin, doing     maintenance     projects around     the      property.        Hamlin's

granddaughter, Bethany, also worked as a part-time housekeeper for Hamlin.


       1 To avoid confusion, we refer to Adrena Chamberlain and Bethany Hamlin
by their first names. We intend no disrespect.
No. 74706-1-1 / 2


       Chamberlain would follow Bethany as she did her housework, and they

would talk. In December 2013, Chamberlain began expressing some frustration

with his situation. He told Bethany that he felt trapped working at the house. He

also told her about some relationship trouble with Adrena.

       On January 25, 2014, Chamberlain attacked Bethany and shot and killed

Hamlin. That morning, Chamberlain had followed Bethany as she cleaned and

talked to her.   Chamberlain talked about his relationship problems and told

Bethany that he and Adrena had mentioned divorce. Chamberlain had moved out

of the guesthouse a week earlier and was temporarily living with an aunt. Bethany

observed that Chamberlain seemed calmer than she would have expected under

the circumstances.

       After Bethany prepared lunch for Hamlin, Hamlin took his customary nap.

After lunch, Bethany was vacuuming the office. Chamberlain was repairing a light

fixture nearby. Chamberlain left briefly and returned with a crowbar, which he used

to work on the light fixture. When Bethany turned around, she saw Chamberlain

standing behind her, holding the crowbar, and looking at it. She continued

vacuuming. The next thing she remembers is seeing a "really bright light" and

being cold on the ground. Chamberlain approached Bethany, swinging the

crowbar toward her. He hit her repeatedly about the head with the crowbar.

       When Bethany was next aware,she was lying on the floor, and Chamberlain

was gone. Bethany fled to a neighbor's patio where she hid. Back at the house




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No. 74706-1-1 / 3


she heard footsteps and a deep loud wordless scream. When the footsteps

receded, Bethany continued to flee to a neighbor's house where she called 911.

       Chamberlain also called 911. He reported that he had murdered his boss

and stated, "1 broke." He told the 911 operator that he did not want to harm himself

and requested that the police take him in to custody as soon as possible.

Chamberlain waited in the residence driveway for the police to arrive. Police found

Hamlin inside, dead from a gunshot wound to the head. Police found a crowbar

and a handgun next to the pool outside the house.

       A post to Chamberlain's Facebook2 page about half an hour before

Chamberlain attacked Bethany stated, "Sometimes, good people do horrible

things."

      The State charged Chamberlain with first degree murder and attempted first

degree murder. At trial, Chamberlain's counsel argued that the State had failed to

prove premeditation beyond a reasonable doubt. A jury found Chamberlain guilty

on both counts.3

       At sentencing, defense counsel argued that the court should consider

Chamberlain's mental health condition a mitigating factor when sentencing him.

Counsel submitted a letter from Dr. Mark McClung, opining on Chamberlain's

mental condition. Counsel stated,

       While Dr. McClung did not find mental health issues that rose to the
       level of establishing a diminished capacity or insanity defense for the

       2 An online social media and social networking service.
       3 Chamberlain was also charged with and convicted of first degree assault,
but the conviction was dismissed to avoid a double jeopardy issue.

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    No. 74706-1-1 / 4

          current charges, his diagnosis and conclusions support the
          mitigating factor that Mr. Chamberlain's [sic] was acting under a
          compulsion, and with impulsivity which significantly affected his
          conduct.

    The trial court considered various mitigating circumstances but denied

    Chamberlain's request for an exceptional sentence downward.

           Chamberlain appeals his conviction.

                                         Analysis

           Chamberlain claims that his counsel was ineffective because he did not

    pursue a diminished capacity defense. Claims of ineffective assistance present

    mixed questions of law and fact, which we review de novo.4 We examine the entire

    record to decide whether the appellant received effective representation and a fair

    tria1.5 To succeed in an ineffective assistance claim, Chamberlain must show that

    his attorney's performance fell below an objective standard of reasonableness and

    that the deficient performance prejudiced him.6

           Chamberlain specifically claims that his counsel decided not to present a

    diminished capacity defense under the mistaken belief that the defense was

    unavailable. "Reasonable conduct for an attorney includes carrying out the duty

    to research the relevant law."7 "Failure of defense counsel to present a diminished
,
    capacity defense where the facts support such a defense has been held to satisfy

    both prongs of the Strickland test."5 The record shows that defense counsel

          4 Inre Pers. Restraint of Fleming, 142 Wn.2d 853,865, 16 P.3d 610(2001).
          5 State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008).
          6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
    2d 674 (1984).
          7 State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177(2009)
          8 State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003).



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No. 74706-1-1/ 5


explored the diminished capacity defense. Counsel stated that the evidence did

not support the defense. Chamberlain does not show that his counsel reached an

incorrect conclusion about the defense.

       Chamberlain's argument rests on the premise that the evidence available

to his attorney supported a diminished capacity defense. But the record before us

is insufficient to show that a diminished capacity defense was available.9 "To

maintain a diminished capacity defense, a defendant must produce expert

testimony demonstrating that a mental disorder, not amounting to insanity,

impaired the defendant's ability to form the specific intent to commit the crime

charged."19 The defendant must present evidence that "logically and reasonably

connects the defendant's alleged mental condition with the inability to possess the

required level of culpability to commit the crime charged."11

      The required intent for first degree murder is premeditation.12 The jury

instructions explained premeditation as follows:

               Premeditated means thought over beforehand. When a
       person, after any deliberation,forms an intent to take human life, the
       killing may follow immediately after the formation of the settled
       purpose and it will still be premeditated. Premeditation must involve
       more than a moment in point of time. The law requires some time,
       however long or short, in which a design to kill is deliberately formed.


      9   Although the record available on direct appeal is not sufficient to show
facts to support a diminished capacity defense, Chamberlain may obtain evidence
that would support the defense and submit it in a personal restraint petition.
        19 State v. Ellis, 136 Wn.2d 498, 521, 963 P.2d 843(1998).
        11 State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265(1983).
        12 A person commits first degree murder when,"[w]ith a premeditated intent
to cause the death of another person, he or she causes the death of such person
or of a third person." RCW 9A.32.030(1)(a).

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No. 74706-1-1 /6


Thus, to show that a diminished capacity defense was available, Chamberlain

must show that he had a mental condition that prevented him from forming the

purpose of killing Hamlin and Bethany.

      To show evidence of this, Chamberlain mainly relies on Dr. McClung's

letter. Dr. McClung interviewed Chamberlain twice. He was familiar with the facts

of the case and with Chamberlain's medical history. Dr. McClung's letter states

that he would have testified that Chamberlain meets the criteria for "Borderline

Personality Disorder." The letter also states that Chamberlain said he stopped

taking antidepressant medication because it makes him "'act dangerous and

impulsive."   In addition, Dr. McClung opines that Chamberlain "may have

experienced dissociation, causing some emotional and sensory detachment from

the reality of the situation and his surroundings." He explains,

      —Mr. Chamberlain reports impaired memory for parts of his alleged
      crime. He said that he did not recall starting to attack Bethany
      Hamlin, or having any conscious awareness of a reason for doing
      so. He describes feelings of emotional detachment and unreality
      during the attacks. His former roommate (David Goods) described
      Mr. Chamberlain's rage episodes as "he seemed to be at times two
      different people." When Mr. Chamberlain calmed down, he would
      say he didn't know what was wrong with him. Mr. Goods related that
      normally he wasn't a violent person, but there were times when he
      "just seemed not to be himself. ... he just was a totally different
      person and he could be violent." These observations, taken together
      with Mr. Chamberlain's report of spotty memory and a sense of
      unreality, suggest that Mr. Chamberlain may experience dissociation
      at times of high emotional distress. Dissociation is an emotional
      process causing detachment from reality, ranging from a feeling of
      detachment, to memory loss, to the phenomenon of multiple
      personalities. Dissociation is involuntary and not under the control
      of the person experiencing it. His diagnosis of Borderline Personality
      Disorder increases the chance of having dissociation.



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No. 74706-1-1/ 7


(Alteration in original.)

       Dr. McClung's letter shows the availability of ample evidence to prove that

Chamberlain suffered from a serious mental disorder. But the letter lacks any

opinion about Chamberlain's ability to form the culpable mental state. While

symptoms of dissociation may support a theory of diminished capacity,13

Chamberlain must also identify some evidence showing that those symptoms

affected Chamberlain's ability to premeditate the crime.14

       Chamberlain claims that State v. Ellis15 and State v. Mitche1116 show that the

information in Dr. McClung's letter is sufficient to support a diminished capacity

defense. We disagree. In Ellis, our Supreme Court held that courts should use

ER 702, 401, and 402 to determine the admissibility of expert testimony about

diminished capacity.17 And in Mitchell, we held that "the admissibility of expert

testimony under ER 702 does not require the expert to testify with certainty to the

ultimate question of fact."15 These cases illustrate the standards for admissibility

of expert testimony and relevance, not the standard for the prima facia showing

required for the defense. Chamberlain confuses these tests. When determining

the admissibility of the expert testimony, as noted in Ellis and Mitchell, the court

        13 See  State v. Martin, 169 Wn. App. 620, 625, 281 P.3d 315 (2012).
        14 State v. Stumpf,64 Wn. App. 522, 528, 827 P.2d 294(1992)("To support
a diminished capacity instruction, there must not only be substantial evidence of
the mental disorder, but the evidence must also explain the connection between
the disorder and the diminution of capacity." (citing Griffin, 100 Wn.2d at 418-19;
State v. Edmon, 28 Wn. App. 98, 103-04, 621 P.2d 1310 (1981))).
       15 136 Wn.2d 498, 963 P.2d 843(1998).
       16 102 Wn. App. 21, 997 P.2d 373(2000).
       17 Ellis, 136 Wn.2d at 521.
       18 Mitchell, 102 Wn. App. at 22.



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No. 74706-1-1 / 8


considers whether the opinion is relevant and would be helpful to the jury.19 In this

case, however, we are asked to decide whether the record contains sufficient

evidence to support each element of the defense. Contrary to Chamberlain's

claim, Ellis and Mitchell do not hold that testimony about the defendant's mental

disorder is enough to support a diminished capacity defense without some expert

testimony showing a causal connection to intent.

       We further distinguish Ellis and Mitchell based on their facts. In Ellis the

expert testimony explained the causal connection between Ellis's mental disorder

and the lack of intent.20 Similarly, Mitchell introduced expert testimony that he

suffered from a mental disorder that could have interfered with his knowledge.21

Chamberlain has not introduced similar evidence of causation.

       In sum, Chamberlain does not show that any expert would have testified

that he had a mental disorder that impaired his ability to form a culpable intent.

Because Chamberlain does not show that counsel could have presented any

evidence on an essential element of a diminished capacity defense, Chamberlain

fails to demonstrate that his counsel's performance was deficient for failing to

pursue the defense.22 For this reason, his ineffective assistance claim fails and

we need not consider the prejudice prong.


        19 Ellis, 136 Wn.2d at 517; Mitchell, 102 Wn. App. at 26-27.
        2° Ellis, 136 Wn.2d at 520-21.
        21 Mitchell, 102 Wn. App. at 24.
        22 See State v. Turner, 143 Wn.2d 715,730, 23 P.3d 499(2001)(concluding
that Turner failed to show his counsel's performance was deficient because the
court could not determine from the record on appeal that any expert would have
testified about his ability to form the specific intent required).

                                            -8-
No. 74706-1-1 /9


       Chamberlain asks the court to deny the State appellate costs based on his

indigency. We generally award appellate costs to the substantially prevailing party

on review. But where, as here, a trial court makes a finding of indigency, that

finding remains throughout review "unless the commissioner or clerk determines

by a preponderance of the evidence that the offender's financial circumstances

have significantly improved since the last determination of indigency."23 If the State

has evidence of significant improvement in Chamberlain's financial circumstances

since the trial court's finding, it may file a motion for costs with the commissioner.

                                     Conclusion

       Because Chamberlain does not show that defense counsel reached an

incorrect conclusion about the diminished capacity defense, he does not show that

counsel's performance was deficient for failing to pursue that defense. We affirm.



                                                     24eLd"
WE CONCUR:


                                                         672(17.




       23   RAP 14.2.

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