No. 22012-5-III.The Court of Appeals of Washington, Division Three.
May 31, 2007.
Appeal from a judgment of the Superior Court for Kittitas County, No. 02-1-00191-1, Michael E. Cooper, J., entered April 11, 2003.
SCHULTHEIS, J.
James McLean was charged with first degree murder and pleaded not guilty by reason of insanity. At trial, witnesses testified that Mr. McLean stated God or Jesus had commanded him to kill Satan, who inhabited a mortal body. The jury found him guilty as charged, and the court imposed an exceptional sentence. On appeal, he contends two expert mental health witnesses impermissibly testified that Washington does not recognize the “deific decree” defense. He also challenges his exceptional sentence. Because we find no merit in Mr. McLean’s challenge to the witness testimony, we affirm his conviction. We also conclude, however, that the exceptional sentence violates the rule in Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Accordingly, we vacate the exceptional sentence and remand for resentencing.
Facts
Mr. McLean began experiencing auditory hallucinations in September 2001 and was diagnosed with a psychotic disorder in December 2001, when he was 18 years old. His mental health counselor had him involuntarily committed to the Yakima Memorial Hospital in mid-June 2002 due to self-destructive behavior and conversations with the devil. After a four-day stay, Mr. McLean was prescribed an antipsychotic medication and was discharged from the hospital. Around midnight in Ellensburg three days later, he stabbed his friend Justin Brooks over 60 times, killing him. Mr. McLean then called several people, explaining to them that he had killed Justin, who was Satan. When police arrived to investigate, he also told them he had just stabbed Satan.
Mr. McLean was charged with one count of first degree murder with a deadly weapon enhancement. RCW 9A.32.030; RCW 9.94A.602. In July 2002 he pleaded not guilty by reason of insanity and a sanity commission was appointed to report on his mental condition. Psychiatrist Dr. Alden Miller and psychologist Dr. William Frederickson of the sanity commission evaluated Mr. McLean in August 2002. After reviewing his psychological exam scores, medical history, and interviews, the commission diagnosed Mr. McLean with a psychotic disorder, a schizotypal personality disorder, and substance abuse. However, the commission also concluded that Mr. McLean over-reported his symptoms of psychopathology. Because Mr. McLean frequently changed his account of the murder and expressed regret, the commission concluded he had the capacity to know the nature and quality of his actions and had the ability to tell right from wrong. Based on the conclusions of the sanity commission, the trial court issued an order declaring Mr. McLean competent to stand trial and to assist in his defense.
Prior to trial, Mr. McLean moved for a judgment of acquittal on grounds of insanity. At the hearing held in March 2003, Dr. Miller testified that Washington courts do not recognize irresistible impulse as a factor of the insanity defense. He explained that claiming “I couldn’t stop myself” is not an indication of insanity. Report of Proceedings (RP) (Mar. 7, 2003) at 27. Dr. Frederickson testified that Mr. McLean may have been hearing voices at the time of the killing, but not command hallucinations. In its memorandum decision on the motion, the trial court examined the “deific decree exception” to the traditional insanity defense requirements. Clerk’s Papers at 54-55. The court questioned whether Mr. McLean’s cognitive ability to distinguish right from wrong was destroyed by a psychotic delusion or hallucination that God commanded him to murder Justin. Because Mr. McLean expressed remorse before and after the act, the court concluded he failed to prove that a deific decree obscured his ability to tell right from wrong. His motion for acquittal was accordingly denied.
Trial was held March 26-27, 2003. Dr. Miller was unable to testify due to a family medical emergency. Dr. Frederickson, one of several mental health experts who testified, stated that Mr. McLean significantly over-reported his symptoms of psychopathology. In his opinion, Mr. McLean did not suffer from a mental disease or defect at the time of the murder and had the capacity to perceive the nature and quality of his act. He also noted that mental health records gave no evidence that Mr. McLean had reported command hallucinations before the murder, although he had complained of hearing voices. On cross-examination, Dr. Frederickson admitted that Mr. McLean’s antipsychotic medication at the time of the mental health evaluation could have affected the results.
The jury found by special verdict that Mr. McLean was guilty of first degree murder while armed with a deadly weapon. Based on a finding of deliberate cruelty, the trial court imposed an exceptional sentence of 480 months. This appeal timely followed.
Expert Witness Testimony
Mr. McLean asserts Dr. Frederickson and Dr. Miller expressed opinions that invaded the province of the jury. He contends they impermissibly commented upon the ultimate issue of his qualification for the deific decree defense. Contrary to Mr. McLean’s argument on appeal, Dr. Miller’s opinions regarding the similarity between the deific decree defense and the irresistible impulse defense — which has been rejected in Washington (State v. Potter, 68 Wn. App. 134, 146, 842 P.2d 481 (1992)) — were never presented at trial. Therefore, only Dr. Frederickson’s testimony is before this court. Mr. McLean contends Dr. Frederickson impermissibly testified that command hallucinations do not constitute a defense under existing case law.
Our review of a trial court’s admission of evidence or testimony at trial is for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). Here, however, we have nothing to review, because Mr. McLean did not object to the testimony of Dr. Frederickson on this basis at trial. Defense counsel objected to the State’s question to Dr. Frederickson whether a person would have to be insane to brutally murder a friend. But that objection was sustained and did not relate to the error alleged on appeal. See State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) (“[a] party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial”). Because Mr. McLean did not make a proper objection at trial, he is precluded from raising the issue on appeal. Thomas, 150 Wn.2d at 856.
Further, Dr. Frederickson did not make the statement Mr. McLean attributes to him. On the page cited, Dr. Frederickson is being cross-examined by defense counsel regarding command hallucinations:
Q. Isn’t a command hallucination a command from God to do something that otherwise would be wrong?
A. That’s one type. There are other types of command hallucinations.
Q. And that’s the type that would certainly be applicable in this case?
A. Yes.
Q. And in a command hallucination, the actor can be overborne by the commands, can he not?
A. Very rarely 90 percent of the time.
Q. Aside from the percentages, which I did not ask you about. I guess your answer was “yes”; is that correct, that it can be overborne by the command hallucinations?
A. I am having difficult[y] understanding what you mean by “overborne”?
Q. Well, you cited a good deal of law. Let me ask you whether you’re familiar with Washington State Supreme Court cases that say command hallucinations can overbear the knowledge of right and wrong?
A. Is that State v. Cameron (phn) or State v. —
Q. Cameron? Chapman (phn)?
A. I believe Miller. I won’t say that but —
Q. Are you familiar with those?
A. I read them.
RP (Mar. 27, 2003) at 57.[1]
The above statements do not directly or indirectly constitute an assertion by Dr. Frederickson that Washington has rejected a defense based on command hallucinations or deific decree. It was Dr. Frederickson’s opinion that Mr. McLean did not suffer from a disease or defect at the time of the murder, that he had the capacity to know right from wrong, and that he was not subject to command hallucinations that prevented him from perceiving the nature and quality of his act. These opinions regarding Mr. McLean’s mental condition at the time of the murder were properly presented to the jury as relevant evidence on the question of Mr. McLean’s sanity. State v. Upton, 16 Wn. App. 195, 201, 556 P.2d 239 (1976). See also ER 702 (an expert may testify in the form of an opinion if the expert’s scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue); ER 704 (“Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact”).
Exceptional Sentence
The trial court imposed an exceptional sentence upward after finding pursuant to RCW 9.94A.505(2)(a)(xi) and former RCW 9.94A.535(2)(a) (2001) that Mr. McLean’s conduct during the murder manifested deliberate cruelty. After the sentence was imposed in April 2003, the United States Supreme Court held i Blakely, 542 U.S. 296 that any fact, other than the fact of a prior conviction, that increases the penalty of a crime beyond the maximum reflected in the jury verdict must be proved to a jury beyond reasonable doubt. In other words, a jury must find beyond reasonable doubt any facts necessary to support an aggravating factor, other than the fact of prior convictions State v. Hughes, 154 Wn.2d 118, 134-36, 110 P.3d 192
(2005), overruled in part on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006).
The State agrees with Mr. McLean that the exceptional sentence in this case violates the rule in Blakely an Hughes, necessitating vacation of the sentence. But the State argues that the matter should be remanded to the trial court for the empaneling of a jury to determine facts to support an exceptional sentence.
In April 2005, the legislature amended RCW 9.94A.535 and enacted RCW 9.94A.537 to provide a procedure for juror consideration of facts to support aggravating factors. Laws of 2005, ch. 68, §§ 3, 4. By its clear terms, Laws of 2005, chapter 68 applies only to sentencing proceedings held after it was signed into law on April 15, 2005. State v. Pillatos, 159 Wn.2d 459, 465, 470, 150 P.3d 1130 (2007). Mr. McLean had already been sentenced when Laws of 2005, chapter 68 was enacted. While the State asks us to excuse it from following Pillatos on unfairness grounds, stare decisis principles require our adherence to the Supreme Court’s decision. State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997). Consequently, the trial court on remand must enter a sentence based only on the facts proved to the jury at trial beyond a reasonable doubt. Blakely, 542 U.S. at 313.
Judgment affirmed; exceptional sentence vacated and remanded.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Sweeney, C.J., Brown, J.