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                                                                                                            DIVISION II
                                                                                                   10 114 JUN 24   Ati 9: 01
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                                                                                                                          GT0N



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                 DIVISION II



STATE OF WASHINGTON,                                                            No. 43632 -9 -II


                                    Respondent,


           v.



DARLENE MARIE GREEN,                                                      PUBLISHED OPINION


                                    Appellant.


           MAxA, J. —   Darlene Green appeals her first degree manslaughter conviction based on

William Green'     s   death from   a gunshot   to his face. Green, William'      s wife of 57 years, initially

stated to investigating officers that she shot William after he told her to shoot him. Green later

testified that William had shot himself, that she did not recall telling the police she had shot him,

and that she could not explain why she told the police that she had done so. After a jury trial,

Green was convicted of first degree manslaughter. Green argues that ( 1) under the corpus delicti

rule, there was insufficient evidence independent of her incriminating statements to support her

conviction; and ( 2) the trial court erred in ruling inadmissible under ER 702 an expert' s

testimony that posttraumatic stress disorder (PTSD) and battered person syndrome could explain

why Green initially confessed to shooting William.

           We hold that there was sufficient evidence independent of Green' s incriminating

statements to satisfy the corpus delicti rule. But we further hold that the trial court erred in
1
    To   avoid confusion, we refer    to Darlene Green    as "   Green"   and   William Green   as "   William."
No. 43632 -9 -II



excluding the expert' s testimony under ER 702 because his testimony would have been helpful

to the jury without invading their function and the Frye test does not apply to the expert' s

opinions. Accordingly, we reverse Green' s conviction and remand for a new trial.

                                                       FACTS


Background


        Green was 81 years old and had been married to William for 57 years. On June 18, 2010,

Green called two of her sons and told them she had shot their father. One of the sons later

testified that Green did not appear shaken or upset when she told him about the shooting.

        Officers responded to the Green residence and found William deceased on the living

room floor with a gun next to him. William had a bullet wound between his eyes. Detective

Doremus examined the scene. Based on what he observed, he believed that William was leaning

over the recliner when he was shot. Doremus observed black markings on William' s right hand,

suggesting that William was holding the gun with that hand when it discharged.

Green' s Incriminating Statements

         The officers observed Green wearing a blood -covered robe. Green appeared calm and

told an officer that William had urged her to shoot him all day and that he had cocked the gun,

but that   she shot   him. Green told   another officer, "      I don' t know what the big deal is. I just did

what   he told   me   to."   3 Verbatim Report    of   Proceedings ( VRP)       at   281.   She also told him that she


shot her husband. She said that William knew that she did not know how to load or operate the

gun so he loaded it, cocked it, and told her where to shoot him.


           After being arrested, Green told Detective Rodrigue that the night before the shooting,

she and    William had       an argument.   The   next   day,   while   Green   was   watching television, " out   of




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No. 43632 -9 -II



the blue" William told her he was going to get his gun so she could shoot him. Clerk' s Papers

 CP) at 4. Green said that William came back to the living room with his gun, cocked the gun,

held it up to his head, and handed it to her. Green said that she then shot him in the head.

Rodrigue later testified that Green appeared calm when talking to him.

        The State charged Green with second degree murder ( Count 1) and, alternatively, first

degree manslaughter ( Count 2).


Green' s Psychologist Expert


        Green sought to present the expert testimony of Dr. Roland Maiuro, a clinical

psychologist, who performed a psychological and forensic evaluation of Green. Green told


Dr. Maiuro that she had been a victim of various forms of domestic violence and abuse by

William for nearly ten years, since William had begun to experience health problems such as

memory difficulties and dementia. Dr. Maiuro found that Green' s psychological state and

certain physical evidence was consistent with Green being a domestic violence victim. Test

results also provided evidence that Green suffered from PTSD.


        Dr. Maiuro developed two possible explanations for why Green might say that she shot

her husband when she had not. First, he noted that persons in a state of shock sometimes


partially dissociate or " step outside of themselves" and then later attempt to piece together what

has happened. Suppl. Clerk' s Papers ( SCP) at 84. Based on what Green observed after the


shooting, it may have appeared to her that she did shoot William. Green had reported to

Dr. Maiuro, " I    guess   I thought I did   or   may have [   shot   William]....   I guess I was in shock... .


I didn' t know   what   to think....   He was lying on the floor dead and I was the only one there."




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No. 43632 -9 -II


SCP at 84. Dr. Maiuro stated that Green' s PTSD symptoms supported the interpretation that the

shock of the incident explained her statements.

         Second, Green reported to Dr. Maiuro that when William was violent and abusive, she


would end up admitting that it was her fault and that she was to blame. Dr. Maiuro stated that

the tendency to self blame is a " classically documented symptom of intimate partner abuse and

domestic   violence victimization."          SCP at 85. In Dr. Maiuro' s opinion, Green had developed a


mindset of inappropriately accepting blame and guilt because of William' s severe and repeated

abuse.




         The State moved to exclude Dr. Maiuro' s expert testimony. The trial court ruled that

Dr. Maiuro was not permitted to testify regarding Green' s " Battered Spouse Syndrome and

PTSD insofar   as   it   attempts   to   explain   her inconsistent   statements about   the shooting."   SCP at


104. The trial court stated that Dr. Maiuro' s opinion that PTSD might affect Green' s perception


of the incident was novel, but that even if it was generally accepted in the psychological

community, the opinion was unlikely to be helpful to the jury because it was within the common

knowledge of a layperson. The trial court also stated that Dr. Maiuro' s testimony invaded the

jury' s duty to determine witness credibility. The trial court did not specifically address Dr.

Maiuro' s other opinion that because Green had developed battered person syndrome, she was


susceptible to accepting blame for something she had not done.

Forensic Testimony

         Dr. Gina Mary Fino, a medical doctor with specialty training in forensic pathology,

performed a forensic autopsy on William. She testified that based on the blood spatter and

gunpowder residue, William' s right hand must have been in very close proximity to the




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No. 43632 -9 -II



cylindrical gap of the gun. She believed it was possible that William had his right hand around

the gun cylinder, which was consistent with bruising on that hand. Kathy Geil, a firearm

examiner, agreed that William' s right hand probably was on the cylinder.

        Regarding William' s left hand, Dr. Fino testified that based on the blood spatter, that

hand would have been in close proximity to the wound. In addition, there was a gap on

William' s left thumb where there was no blood. Dr. Fino did not explore the cause of this blood

gap, and Geil could not determine where William' s left hand was at the time of the shooting. Dr.

Fino testified that the spatter evidence was consistent with the theory that someone besides

William pulled the trigger. Specifically, she did not find anything inconsistent with Green' s

statement that she shot her husband. On the other hand, Dr. Fino did not rule out the possibility

of suicide. She stated that there was no evidence in the autopsy that conclusively pointed to the

manner of death.


        Detective Doremus testified regarding his opinion of what had occurred. He believed

that the left thumb more likely was on the outside of the trigger guard. He testified that if the

thumb had been inside the trigger guard, there would have been a void around the entire thumb.


The State argued that based on this testimony, William could not have pulled the trigger.

        Green called Kay Sweeney, a forensic scientist, to testify. Sweeney agreed that the

pattern of blood stains on William' s right hand was consistent with his hand being on the

cylinder gap of the gun. Sweeney looked at photographs of William' s left hand and examined

the blood spatter on it. He believed that the presence of a void in the blood staining on William' s

left hand suggested that William' s left thumb was in the trigger guard and on the trigger at the


time of blood flow. Green also called Dr. Donald Reay, a forensic pathologist, to testify. He



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No. 43632 -9 -II



testified that the blood void on William' s left thumb was consistent with the thumb being inside

the trigger guard.


Green' s Trial Testimony

          At trial, Green testified that she did not shoot William. She stated that William came out

of his bedroom with a gun and asked her to shoot him. She refused and told him to put the gun


away. Instead, William stood in front of her, put the gun to his forehead, and told Green to look

up. When she looked she saw a big ball of white stars and then William fell onto her legs.

Green testified that she never put her hands on the gun.


          When asked about her statements following the shooting, Green testified that she did not

recall   calling her   sons or   making   statements   to law    enforcement officers.    She also stated that she


had   no recollection of what she     told her   sons or   the   officers.   Green testified that she could think


of no reason why she would tell her sons or the officers that she had shot William.

Evidence ofDomestic Violence

          Green sought to testify about her domestic violence history, arguing that it was relevant

to show that shortly before the shooting William was irrational and was acting strange. The

State objected, arguing that the testimony had no relation to the shooting and that Green was not

asserting   self defense.
                 -           Green also sought to ask Detective Rodrigue about bite marks and bruises


he noted on her body. The State objected under ER 404(b) because such evidence would show

Green' s state of mind and was irrelevant. Green responded that such evidence was relevant to


show how irrational William was such that he took his own life. The trial court excluded this


testimony.




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No. 43632 -9 -II



Suicide Jury Instruction

          Green proposed a jury instruction that stated that if the jury had reasonable doubt about

whether or not William committed suicide, then the jury must acquit. Green argued that the

instruction was appropriate because William' s suicide was an affirmative defense. The State

objected to Green' s instructions on the basis that ( 1) it constituted a comment on the evidence,


 2) it   sounded   like   a reverse   stating   of the   " to   convict"   instruction,    and (   3) the last line, " if you


have a reasonable doubt as to whether or not William Green committed suicide, then you must


acquit," was not a matter       for the jury to decide. 5 VRP               at   741.   The trial court declined to give


Green' s proposed instruction.


Jury Verdict

          The jury found Green not guilty of second degree murder and guilty of first degree

manslaughter. Green appeals.


                                                         ANALYSIS


A.        CORPUS DELICTI


          Green first argues that there was no evidence to support her conviction of first degree


manslaughter other than her incriminating statements because testimony showed that William

may have committed suicide. We disagree because the State presented independent evidence

that supported a reasonable inference of Green' s guilt.


           1.   Legal Principles


          The corpus delicti principle requires that the State prove that some crime actually

occurred, which for a homicide involves establishing ( 1) the fact of death, and (2) a causal

connection between the death and a criminal act. State v. Aten, 130 Wn.2d 640, 655, 927 P. 2d




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No. 43632 -9 -II



210 ( 1996).      And under the corpus delicti rule, the " defendant' s incriminating statement alone is

not sufficient     to   establish   that   a crime   took   place."   State v. Brockob, 159 Wn.2d 311, 328, 150


P. 3d 59 ( 2006). "[      T] he State must present evidence independent of the incriminating statement

that the crime a defendant           described in the       statement   actually   occurred."   Brockob, 159 Wn.2d at


328 ( emphasis      omitted).       The purpose of the rule is to prevent a defendant from being unjustly

convicted based on an uncorroborated confession. State v. Dow, 168 Wn.2d 243, 249, 227 P. 3d

1278 ( 2010).


             The corpus delicti rule focuses on the sufficiency of the independent evidence other than

the defendant' s incriminating statement. Dow, 168 Wn.2d at 249, 254. Our review is de novo.

State   v.   Pineda, 99 Wn.     App. 65,      78, 992 P. 2d 525 ( 2000).      In determining the sufficiency of

independent evidence under the corpus delicti rule, we assume the truth of the State' s evidence

and view all reasonable inferences therefrom in the light most favorable to the State. Aten, 130

Wn.2d at 658. The independent evidence need not be sufficient to establish that a crime has

been committed beyond a reasonable doubt or even by a preponderance of the evidence. Aten,

130 Wn.2d at 656. The statement only must provide " prima facie corroboration" of the

defendant' s statement. Brockob, 159 Wn.2d at 328. Prima facie corroboration means that the

independent evidence must support a logical and reasonable inference that a crime has occurred.

Brockob, 159 Wn.2d at 328.


             In addition to corroborating the defendant' s statement, the independent evidence must be

consistent with guilt and inconsistent with a hypothesis of innocence. Brockob, 159 Wn.2d at

329. Independent evidence is insufficient to corroborate a defendant' s admission of guilt if it




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No. 43632 -9 -II



supports " reasonable and logical inferences of both criminal agency and noncriminal cause."

Brockob, 159 Wn.2d at 329 ( quoting Aten, 130 Wn.2d at 660).

         2.      Independent Evidence


         Here, under the corpus delicti rule the State was required to present evidence independent


of Green' s incriminating statements that she shot William. The State argues that it proved

corpus   delicti through the     following    independent   evidence: (   1) William died of a gunshot wound


to the front    of   his head; ( 2) Green   was covered with   blood   when   the   officers arrived; (   3) Green


did   not appear upset or     overly   emotional after   the shooting; ( 4) William' s right hand was


wrapped around the gun' s cylinder, which would be an unusual way of holding a gun to commit

suicide; (    5) Detective Doremus testified that the lack of blood spatter on William' s left thumb

indicated that it was on the outside, not the inside, of the trigger guard; and ( 6) Dr. Fino testified


that the blood spatter evidence was consistent with the theory that someone other than William

pulled the trigger. We agree that the testimony of Detective Doremus and Dr. Fino provided

sufficient independent evidence that Green shot William.


         Initially, we hold that the first four pieces of evidence do not constitute independent

evidence that Green shot William. First, the facts that William died of a gunshot wound and that


Green was covered with blood are consistent with either homicide or suicide and as a result, they

cannot support a reasonable inference of homicide. Second, the fact that Green appeared calm

after the shooting may be consistent with her guilt, but it is not inconsistent with her innocence.

Third, the State produced no evidence that the way William handled the gun makes it more or

less likely that he shot himself, which precludes a reasonable inference that Green shot him.




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No. 43632 -9 -II



Because these pieces of evidence are not inconsistent with Green' s innocence they cannot satisfy

the corpus delicti rule. See Brockob, 159 Wn.2d at 329.


        However, Detective Doremus' s testimony that the blood spatter pattern on William' s left

thumb establishes that his thumb was outside the trigger guard does constitute independent


evidence that Green shot William. Assuming that this testimony is true, as we must, William

could not have pulled the trigger with his left thumb. And other evidence establishes that he

gripped the gun cylinder with his right hand, so he could not have pulled the trigger with that


hand. Further, Dr. Fino provided testimony that the blood spatter evidence was consistent with

someone other than William pulling the trigger. Because there is evidence that William could

not have pulled the trigger, it is reasonable to infer that Green must have shot William.

          Green argues that the State did not produce sufficient independent evidence that she shot


William because neither of the State' s pathology experts could determine whether William' s

death resulted from homicide or suicide. She relies on Aten, where our Supreme Court found

insufficient independent evidence when a pathologist determined that a baby' s death from acute

respiratory failure could have been caused by either sudden infant death syndrome ( SIDS) or

suffocation.    130 Wn.2d at 659 -62. However, in Aten the State provided no evidence suggesting

that either potential cause of death was more likely, and the court pointed out that SIDS is the

leading   cause of   death for apparently   healthy   infants. 130 Wn. 2d   at   659, 661 -62. Here, the State


did produce testimony that William did not pull the trigger of the gun, which supports a

reasonable inference that Green pulled the trigger.




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No. 43632 -9 -II



         We hold that the State has produced sufficient evidence independent of Green' s

incriminating statements that she shot William. Accordingly, the State has satisfied the corpus

delicti rule.


B.       ADMISSIBILITY OF EXPERT TESTIMONY


         Green next argues that the trial court erred in excluding under ER 702 Dr. Maiuro' s

expert testimony that Green' s PTSD relating to the shooting incident and her battered person

syndrome could explain why Green might have said that she shot William when she did not. We

agree.



         1.      Legal Principles


         ER 702 generally governs the admissibility of expert testimony. Anderson v. Akzo Nobel

Coatings, Inc., 172 Wn.2d 593, 600, 260 P. 3d 857 ( 2011).                  Under ER 702, "[ 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, a witness qualified as an expert by knowledge, skill, experience,

                                    testify   thereto   in the form   of an opinion or otherwise."   Expert
training,     or education,   may


testimony usually is admissible under ER 702 if it will be " helpful to the jury in understanding

matters outside     the   competence of       ordinary   lay   persons."   Anderson, 172 Wn.2d at 600. We


generally review the trial court' s decision whether to admit expert testimony under an abuse of

discretion standard. State v. Cheatam, 150 Wn.2d 626, 645, 81 P. 3d 830 ( 2003).

         2.      Admissibility Under ER 702

         The trial court ruled that Dr. Maiuro' s opinions were inadmissible under ER 702 because

they were within the common knowledge of laypersons and because they involved Green' s




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No. 43632 -9 -II



credibility, which likely would invade the fact -
                                                finding province of the jury. We disagree, and

hold that the trial court abused its discretion in excluding Dr. Maiuro' s testimony under ER 702.

        Multiple cases have held that mental disorders, and specifically PTSD and battered

persons syndrome, are beyond the ordinary understanding of laypersons. See, e. g., State v.

Janes, 121 Wn.2d 220, 236, 850 P. 2d 495 ( 1993); State v. Ciskie, 110 Wn.2d 263, 273 -74, 751


P. 2d 1165 ( 1988); State   v.   Allery,   101 Wn.2d 591, 597, 682 P. 2d 312 ( 1984); State v. Bottrell,


103 Wn.   App.     706, 717, 14 P. 3d 164 ( 2000). Here, as the trial court noted, a layperson might


understand that a person' s perception of a shocking event might be affected by the nature of the

situation. But a layperson ordinarily would not understand that PTSD could cause a dissociative

state that might result in a person making inaccurate, incriminating statements. Similarly, a

layperson ordinarily would not understand that the long -
                                                        term effects of domestic abuse might

cause a victim to accept blame for something he or she did not do. In light of the case law

holding that the effects of PTSD and battered person syndrome are beyond the ordinary

understanding of laypersons, we hold that the trial court abused its discretion in ruling that Dr.

Maiuro' s opinions would not be helpful to the jury.

        With regard to the second basis for the trial court' s ER 702 ruling, the trial court properly

was concerned that Dr. Maiuro' s testimony could touch on Green' s credibility and invade the

function of the jury. See Ciskie, 110 Wn.2d at 280. In fact, part of Dr. Maiuro' s report

addresses whether Green' s present claim that she did not shoot William is credible. Testimony

based on this portion of the report is inadmissible. See State v. Hanson, 58 Wn. App. 504, 508,

793 P. 2d 1001 ( 1990) ( battered .
                                  person syndrome evidence is inadmissible for the purposes of


 general credibility ").




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No. 43632 -9 -II



           However, in oral argument of the State' s motion to strike, Green' s counsel repeatedly

emphasized that Dr. Maiuro would not testify regarding Green' s credibility.

           What I propose him to testify is not whether or not she' s telling the truth or she' s
           lying on the stand, which would be an ultimate fact for the jury to figure out, but
           what the diagnoses and what the syndrome creates, where people who have been
           battered for a long time tend to take responsibility for things because it' s what
           they' ve been trained to do because they have been battered.

RP ( Jan. 30, 2012)    at   13.   This proposed testimony would not have expressed an opinion

regarding Green' s credibility or invaded the jury' s function. As a result, the trial court abused its

discretion in precluding Dr. Maiuro' s testimony that PTSD and battered persons syndrome could

explain why Green might have made inaccurate incriminating statements. 2
           We hold that Dr. Maiuro' s proposed testimony regarding the effects of PTSD and

battered persons syndrome would likely help the jury and that when properly limited, his

testimony would not invade the jury' s function. Accordingly, we hold that the trial court abused

its discretion in excluding Dr. Mauiro' s testimony under ER 702.3


2 The dissent quotes two passages from Dr. Maiuro' s report that reflect opinions regarding
Green' s credibility. As noted, we agree that Dr. Maiuro should not be allowed to provide
testimony similar to those passages. But the presence of objectionable material in an expert' s
report does not justify the complete exclusion of that expert' s testimony, particularly when
counsel disavows any intent to solicit testimony regarding the objectionable material. Cf. Ciskie,
110 Wn.2d at 280( approving trial court' s decision to admit limited expert testimony on the
diagnosis of PTSD, while excluding expert from testifying on inadmissible opinions as to the
defendant' s credibility).

3 The trial court also stated without discussion that Dr. Maiuro' s testimony was inadmissible
because it, "may  lend an unduly prejudicial aura of reliability to Defendant' s theory of the case."
SCP   at   103.
              However, the State does not argue that Dr. Maiuro' s testimony was inadmissible on
this basis. And the trial court did not explain why Dr. Maiuro' s testimony would result in unfair
prejudice or give any indication that it undertook any action under ER 403 to balance the
probative value of Dr. Maiuro' s testimony against any prejudicial effect. The fact that Dr.
Maiuro' s opinion lends an aura of reliability to Green' s theory of the case cannot by itself be the
basis for excluding his testimony because that is the purpose of most expert testimony.


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No. 43632 -9 -II



          3.       Inapplicability of Frye
                                                                                                                    Frye4

          The trial     court   found that Dr. Maiuro'     s opinion was novel,        but it did   not conduct a




analysis regarding his testimony because it found the testimony inadmissible under ER 702.

Nevertheless, the State argues that Dr. Maiuro' s testimony is inadmissible because Green did not

provide sufficient information to establish admissibility under Frye. We disagree that Frye

applies to Dr. Maiuro' s opinions.


          If an expert' s testimony is based on a novel scientific theory, we employ the Frye test to

determine whether the testimony is sufficiently reliable to be admissible. Anderson, 172 Wn.2d

at   600 -01.    Under this test, we determine whether the theory and the underlying methodology

have been generally accepted in the relevant scientific community. Anderson, 172 Wn.2d at 601,

603. However, the Frye test focuses on general scientific theories, not particular opinions based


on   those theories.       Our Supreme Court has         emphasized     that, " Frye   does not require every

deduction drawn from generally               accepted   theories to   be generally     accepted."    Anderson, 172


Wn.2d     at    611.   If an expert' s specific opinions are grounded in generally accepted science, Frye

is not implicated. Anderson, 172 Wn.2d at 611 - 12.


          Dr. Maiuro' s first opinion is that the PTSD Green experienced as a result of the incident


may have caused her to dissociate, which could explain why she initially may have perceived

that   she   did   shoot   William. There is nothing       novel about      the PTSD diagnosis. " Washington case



law acknowledges that PTSD is recognized within the scientific and psychiatric communities."


Bottrell, 103 Wn.          App.   at   715. Further, we recognized in Bottrell that psychiatric literature


described that         some   PTSD      patients who are subjected     to   extreme stress, "   develop a transient


4 Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923).


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No. 43632 -9 -II



dissociative   reaction with episodes of         depersonalization      or    derealization,"      and   that, " a person' s


cognitive or volitional state      may be impaired       during   a   dissociative        reaction."     103 Wn. App. at

715 ( quoting CHESTER B. SCRIGNAR, POSTTRAUMATIC STRESS DISORDER: DIAGNOSIS,

TREATMENT, AND LEGAL ISSUES 245 ( 2d ed. 1988)).


        Dr. Maiuro' s other theory is that Green suffered from battered person syndrome, which

could explain why she might inappropriately accept responsibility for something she did not do.

As   with   PTSD, the diagnosis      of   battered   person syndrome —         also known as battered woman


syndrome and     battered     child syndrome —       is not novel. See Janes, 121 Wn.2d at 233 -35; Allery,

101 Wn.2d at 596 -97. Further, our Supreme Court has recognized that a diagnosis of battered


person syndrome can help explain the conduct of a victim that may seem unusual or

counterintuitive. Ciskie, 110 Wn.2d at 273 -74 ( expert testimony may be helpful to explain why a

battered woman would not simply leave her mate, which is counterintuitive and difficult to

understand); Allery, 101 Wn.2d at 597 ( holding admissible expert testimony explaining why a

person suffering from battered woman syndrome would not leave her mate or inform police or

friends).


        The State acknowledges that the effects of PTSD and battered person syndrome are


generally    accepted   in   certain contexts.     See Janes, 121 Wn.2d          at   236 ( " evidence of the battered


                   is                            prove self defense     ");   Bottrell, 103 Wn. App. at 718
child syndrome          admissible   to   help              -



                                                                      defendant'                                  intent). But
 testimony concerning PTSD is             admissible   to   show a                    s   ability to   act with




the State argues that no case has found that Dr. Maiuro' s specific opinions that PTSD and


battered persons syndrome could explain why Green might have made incriminating statements

are generally accepted in the psychiatric community.



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No. 43632 -9 -II



        Our Supreme Court rejected a similar argument in Anderson. In that case, the plaintiff' s

expert opined that a pregnant woman' s exposure to toxic organic solvents caused a particular


birth defect. Anderson, 172 Wn.2d            at   610 -11. The defendant argued that the expert' s opinion


was inadmissible under Frye because the specific causal connection between the specific toxic


organic solvents to which she was exposed and the specific birth defect was not generally

accepted    in the   scientific   community. Anderson, 172 Wn.2d         at   611.   The court disagreed that


Frye requires general acceptance of "each discrete and ever more specific part of an expert


opinion."    Anderson, 172 Wn.2d        at   611. The court stated:


        Frye does not require that the specific conclusions drawn from the scientific data
        upon which [ the expert] relied be generally accepted in the scientific community.
        Frye does not require every deduction drawn from generally accepted theories to
        be generally accepted.

Anderson, 172 Wn.2d at 611 ( emphasis added).


        Here, as noted above, the theories that PTSD can affect a person' s perception and that


battered person syndrome can affect a victim' s behavior are well established, not novel.


Therefore, under Anderson, Frye does not apply to Dr. Maiuro' s specific application of these

theories to explain why a person might confess to a crime she did not commit. See Anderson,

172 Wn.2d at 611.


        We hold that Frye is inapplicable to Dr. Maiuro' s specific opinions based on PTSD and


battered person syndrome. Accordingly, Green' s failure to provide information sufficient to

satisfy Frye is not grounds for precluding that testimony.

C.      DOMESTIC VIOLENCE EVIDENCE


        Green challenges the trial court' s exclusion of past incidents of William' s domestic


violence against Green and evidence of the subject of the argument between Green and William



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No. 43632 -9 -II



the night before the shooting. Because on remand Dr. Maiuro' s expert testimony regarding

PTSD and battered person syndrome will be admitted, in the new trial the analysis for


determining the admissibility of William' s prior acts may be different than in the first trial.

Accordingly, we will not address this issue. On remand, the trial court will determine anew

whether this evidence is admissible.


D.      SUICIDE JURY INSTRUCTION


        Green argues that the trial court erred and denied her due process when it refused to give


the jury her proposed instruction regarding the defense theory that William committed suicide.

We address this issue because it may arise on remand. We reject Green' s argument because her

proposed instruction did not adequately state the law and the trial court provided a more general

instruction that adequately explained the law and allowed each side to argue its theory of the

case.




        We review a trial court' s choice ofjury instructions for an abuse of discretion. State v.

Hathaway,   161 Wn.    App.   634, 647, 251 P. 3d 253 ( 2011).   Jury instructions are sufficient if

substantial evidence supports them, they allow the parties to argue their theories of the case, and

they properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, .626, 56

P. 3d 550 ( 2002).   It is reversible error to refuse to give a proposed instruction only if the

instruction properly states the law and the evidence supports it. State v. Ager, 128 Wn.2d 85, 93,

904 P. 2d 715 ( 1995). "[   I] t is not error for a trial court to refuse a specific instruction when a


more general instruction adequately explains the law and allows each party to argue its case

theory." Hathaway, 161 Wn. App. at 647.

        Here, Green' s proposed jury instruction stated:



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No. 43632 -9 -II



        Darlene Green' s theory of the case is that her husband William on June 18, 2010
        committed suicide in front of her by taking his Ruger Single Six pistol, placing it
        to his forehead and pulling the trigger thereby ending his life.
        The State has presented you with three alternate theories of their case,
        1.   Darlene intentionally but without premeditation shot her husband which
        caused his death.
        2.  That Darlene assaulted her husband and by either committing that assault, or
        fleeing from that assault, caused the death of William.
        3. Or that Darlene recklessly caused the death of William.
        If you have reasonable doubt as to whether or not William Green committed
        suicide, then you must acquit Darlene.


2 SCP at 379. We hold that the trial court did not abuse its discretion in refusing to give this

instruction for three reasons.


        First, the general " to convict" instructions adequately explained the law in this case and

allowed each party to argue its case theory. See Hathaway, 161 Wn. App. at 647. The trial court

instructed the jury that the State had the burden of proving the elements of either second degree

murder or manslaughter beyond a reasonable doubt. These instructions allowed Green to argue


her theory that the State could not meet this burden because William committed suicide. And in

fact Green argued this theory in closing.

        Second, the authority Green cited to the trial court in support of her proposed instruction

is inapplicable. Green' s cases all related to instructions setting forth an affirmative defense, and

specifically self -
                  defense. See State v. Werner, 170 Wn.2d 333, 336 -38, 241 P. 3d 410 ( 2010).

However, Green' s suicide theory was not an affirmative defense. Green provided no authority

for the proposition that a trial court is required to give an instruction that merely sets forth a

defendant' s argument explaining why he or she did not commit the crime. As the trial court

pointed out, such an instruction is akin to a comment on the evidence.


        Third, Green' s proposed instruction was confusing and did not properly state the law.



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Instructing the jury that it must acquit if there is reasonable doubt as to whether or not William

committed suicide creates confusion regarding the burden of proof. The jury could be misled

into believing that the State had the burden of proving beyond a reasonable doubt that William

did not commit suicide. But that is not an element of the State' s case. Or the jury could be

misled into believing that Green had the burden of proving that William committed suicide. But

Green has no such burden. As a result, the proposed instruction failed to properly state the law

and the trial court did not abuse its discretion by refusing to give the instruction.

        We reverse Green' s conviction and remand for a new trial.




I concur:




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          HUNT J. (       dissenting) — I respectfully dissent from the majority' s reversal of Green' s

conviction and its holding that

          Dr. Maiuro' s proposed testimony regarding the effects of [ posttraumatic stress
          disorder] PTSD and battered persons syndrome would likely help the jury and that
          when properly limited, his testimony would not invade the jury' s function [ and]
          the trial court abused its discretion in excluding Dr. Maiuro' s testimony under ER
          702.


Majority     at   13.   I would defer to the trial court' s exercise of its discretion in excluding this expert

testimony; and I would affirm.

          ER 403         allows   the trial      court    to   exclude     relevant   evidence "'         if its probative value is


substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence. '             State   v.    Cheatam, 150 Wn.2d 626, 645, 81 P. 3d 830 ( 2003) (                     quoting ER

403).     The law is        well    settled      that ( 1)     a trial court has broad discretion to decide whether


evidence     is   admissible, (     2)   we     generally defer to the trial         court' s exercise of       this discretion, ( 3)



we will reverse a conviction based on evidence admissibility only if the trial court manifestly

abused its discretion, and ( 4) we will not reverse the trial court' s exercise of discretion if its

reasons      for its decision        are "'     fairly    debatable. '       Cheatam, 150 Wn.2d                at   646 -47 ( internal


quotation marks omitted) (               quoting State v Ward, 55 Wn. App 382, 386, 777 P. 2d 1066 ( 1989));

see   also   Cheatam, 150 Wn.2d                  at   645; State    v.    Hughes, 106 Wn.2d 176, 201, 721 P. 2d 902


 1986).      In my view, Green has not demonstrated a manifest abuse of discretion here.

          The majority treats ER 403 as irrelevant because the trial court did not mention ER 403

or undertake a          balancing    analysis on         the   record.    Majority    at   13,   n. 3.   I respectfully disagree for

three   reasons.        First, that the trial court did not expressly mention ER 403 does not defeat its



                                                                     20
No. 43632 -9 -II



application here; ER 403 does not require a trial court to conduct a balancing analysis on the

record.    State     v.   Baldwin, 109 Wn.               App.    516, 528, 37 P. 3d 1220 ( 2001), review denied, 147


Wn.2d 1020 ( 2002).               Second, here, the trial court did balance the substantive value of the


evidence    against       the danger          of   unfair   prejudice        in the   following   manner:         The trial court


acknowledged that Dr. Maiuro' s testimony was relevant, but ruled that because the testimony

 clearly bears on Defendant' s credibility, it is likely to invade the fact -
                                                                            finding province of the

jury" that would lend an " unduly prejudicial aura of reliability" to Green' s theory of the case.

Suppl. Clerk'    s   Papers ( SCP)       at   102, 103.         Third, even if the trial court had not engaged in an ER


403 balancing analysis, in the absence of a manifest abuse of discretion, we may affirm the trial

court on any ground that the record supports. State v. Costich, 152 Wn.2d 463, 477, 98 P. 3d 795

 2004) ( citing In        re   Marriage of Rideout, 150 Wn.2d 337, 358, 77 P. 3d 1174 ( 2003)).                           Such is


the case here.


          The following factors weighed by the trial court show both that it engaged in the proper

balancing   analysis and         that it did       not   manifestly     abuse   its discretion in   so   doing.    The trial court


expressed legitimate concerns that Dr. Maiuro' s testimony would unduly prejudice the jury,

especially given that courts do not admit evidence of battered woman syndrome for purposes of

 general   credibility."         State v. Hanson, 58 Wn. App. 504, 508, 793 P.2d 1001, review denied,

115 Wn.2d 1033 ( 1990) ( internal                  quotation marks omitted).             Although Green asserted that Dr.


Maiuro was not going to testify about credibility, the following excerpts from Dr. Maiuro' s

report show that his testimony would reflect on Green' s credibility in conjunction with her

conflicting   statements, a        key   issue in the       case: (   1) "   Green' s current rendition of events and claim


that she did not shoot her husband, and that he must have died by his own hand, appears to be



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No. 43632 -9 -II



credible "; and (       2) "[    t] he fact that she said, or may have initially thought, she was responsible for

the shooting, does not necessarily mean that her current, more considered, assertion that she did

not    is   not credible."       SCP at 83, 84 ( emphasis added).


             The law is also well settled that determinations of credibility are solely for the jury. State

v.   Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004) (                          citing State v. Camarillo, 115 Wn.2d 60,

71, 794 P. 2d 850 ( 1990)).                    Thus, in exercising its broad discretion to admit and to exclude

relevant evidence, it is a paramount duty of the trial court to protect the jury from invasion into

its exclusive realm of deciding witness credibility, especially when assessing whether expert

testimony can assist the jury in making determinations in areas beyond the common
                                             5
understanding          of a     layperson.       Anderson      v.   Akzo Nobel Coatings, Inc., 172 Wn 2d 593, 600, 260


P. 3d 857 ( 2011).          Majority      at     12.    Here, the record shows that, in the process of explaining why

Green may have offered conflicting statements at different times about whether she had shot her

husband, Dr. Maiuro'              s   testimony        would   inevitably     have   reflected on   Green'   s   credibility.   Given


the applicable standards of review, how can we say that the trial court " manifestly abused its

discretion" when the trial court excluded Dr. Maiuro' s testimony based on its concerns that such

testimony would bear on Green' s credibility, a factual issue solely for the jury?

             I would uphold the trial court' s carefully reasoned exclusion of Dr. Maiuro' s testimony

based on its determination that the danger of undue prejudice to the jury' s credibility




5
     See,   e. g.,   Cheatam, 150 Wn.2d            at   649 ( "[ T] he   trial court must carefully consider whether expert
testimony on the reliability of eyewitness identification would assist the jury in assessing the
reliability of eyewitness testimony. ")



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determinations substantially outweighed the relevance of such testimony. Even if we might have

allowed such evidence if anyone of us had been the trial court, this trial court' s exclusion of the

evidence is not grounds for reversal of Green' s conviction. Again, I would affirm.




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