STATE v. MILLER, 27381-1-II (Wash.App. 2-25-2003)

No. 27381-1-II.The Court of Appeals of Washington, Division Two.
Filed: February 25, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 99-1-01210-2 Judgment or order under review Date filed: 05/18/2001.

Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, P.O. Box 1401, Mercer Island, WA 98040-1401.

Counsel for Respondent(s), John Martin Neeb, Attorney at Law, Co City Bldg, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.

HOUGHTON, P.J.

Derrick Miller appeals his conviction of one count of attempted first degree murder and one count of second degree unlawful possession of a firearm. He argues that the trial court erred in denying his motion for acquittal on insanity grounds and that he received ineffective assistance of counsel. We affirm.

FACTS The Shooting
On March 18, 1999, Pierce County Deputy William Cassio approached Miller outside the Addison Court Apartments in Lakewood because he believed that Miller was violating the apartments’ no trespassing sign. When Cassio inquired whether Miller lived at the apartment complex, Miller replied that he had visited a friend and was waiting for a ride. Miller asked if Cassio was contacting him because of the no trespassing sign.

After detaining Miller to check his identity, Cassio noticed Miller’s elbow sleeve tucked back in on his right arm. Believing that Miller was armed, Cassio sprayed Miller’s eyes with Cap-Stun.[1] At this point, Miller `exploded off the car,’ pulled a gun out of his pocket, and yelled `bitch, you don’t know who you’re talking with,’ and `{y}ou want some of this?’ Report of Proceedings (RP) (Feb. 14, 2001) at 19.

As Cassio moved for cover, he saw Miller pointing a handgun at him and trying to fire it. After the gun failed to fire, Miller manipulated it, returned it to a functioning condition, fired several shots, and then attempted to flee. Cassio shot Miller twice as Miller tried to run away.

The officers assisting in Miller’s apprehension testified that he appeared to understand his Miranda[2] rights and that he attempted to comply with their commands. The officers also testified that Miller did not behave strangely or make any bizarre statements in their presence.

Tim Devenny,[3] a paramedic who treated Miller at the scene, testified that Miller was `alert and oriented times four.’[4] RP (Feb. 14, 2001) at 57. When Devenny asked Miller why he had been shot, Miller said it was `because he tried to kill a cop.’ RP (Feb. 14, 2001) at 59.

Miller twice tried to bite the responding paramedics as they treated him. While he was receiving treatment, two or three of his associates approached and began telling Miller that he was crazy. According to emergency workers, Miller then `started acting and stating he was Satan.’ RP (Feb. 14, 2001) at 61.

The paramedics first transported Miller to Madigan Army Medical Center. At Madigan, Miller nodded when Deputy Todd Donato read him his rights. He accurately related his name and birth date and stated that he was a `Lakewood Hustler.’ RP (Mar. 8, 2001) at 28-29.

Later, at Harborview Medical Center, Miller told Deputy Robert Kocher, `man, you just don’t understand. I was trying to mind my own business.’ RP (Mar. 8, 2001) at 47. Miller then asked how he could become a police officer `when this is all over.’ RP (Mar. 8, 2001) at 51.

Miller had ingested phencyclidine (PCP) at least twice that day. The Harborview staff noted `psychotic like’ behavior. RP (Mar. 8, 2001) at 98. For example, Harborview records indicate that Miller was unable or unwilling to answer questions, talked into thin air, and had responsive conversations with no one.[5]

Medical Testimony
On March 23, 1999, Pierce County Jail personnel observed Miller laughing loudly and crying for extended periods of time. Miller was later transported to Western State Hospital (WSH) for a competency to stand trial determination.

The court committed Miller to WSH several times between March 1999 and May 2000. During Miller’s first admission, he was `grossly uncooperative’ with attempts to assess his mental state. Clerk’s Papers (CP) at 24. Miller appeared disoriented and stared into space. Additionally, doctors observed Miller laugh to himself and noted that his eye movements suggested auditory and perhaps visual hallucinations. Miller also related that `I’ve been doing a lot of sherm.’[6] RP (Mar. 8, 2001) at 74. Dr. Murray Hart found Miller legally incompetent and recommended that he be committed to WSH for continued evaluation and treatment, including the administration of psychotropic drugs.

During his second commitment, Miller continued to complain of auditory hallucinations. Dr. Hart learned that Miller had childhood attention deficient hyperactive disorder, auditory hallucinations since age five, had been ingesting PCP almost daily for approximately 60 days, and had used various drugs in the past. At the end of the second commitment, Dr. Hart diagnosed Miller with `{PCP}-induced psychosis, polysubstance abuse or dependency, severe . . . and an anti-social personality disorder.’ RP (Mar. 8, 2001) at 85.

The State charged Miller with attempted first degree murder with a firearm enhancement and second degree unlawful possession of a firearm. Miller moved for acquittal by reason of insanity under RCW 10.77.080.

At the hearing on Miller’s motion, Dr. Hart testified that he changed his diagnosis to chronic undifferentiated schizophrenia because Miller’s symptoms persisted for two years and that this change was necessary to stay within the DSM IV guidelines.[7]

Nonetheless, Dr. Hart maintained that Miller was suffering from a substance-induced psychotic disorder at the time he committed the charged offense. Dr. Hart testified that although Miller was suffering from the effects of PCP, he did not meet the legal definition of insanity because he executed a significant amount of goal-directed behavior during his interaction with Deputy Cassio.

The defense psychologist, Dr. Vincent Gollogly, first interviewed Miller on November 6, 2000. Dr. Gollogly testified that Miller had a flat affect, appeared mildly depressed, and reported hearing radios and televisions speaking to him. Miller also stared at the wall and would not respond to questions for long periods of time.

Dr. Gollogly met with Miller again on November 14, and concluded that he was in a psychotic, depressed condition. Dr. Gollogly spoke with Miller again on January 13, 2001.

Dr. Gollogly testified that Miller believed that gang members, demons, and aliens were trying to kill him at the time Deputy Cassio sprayed him with Cap-Stun. But Miller did not make such statements until his January 2001 meeting with Dr. Gollogly.

In contrast to Dr. Hart, Dr. Gollogly diagnosed Miller with schizophrenia, undifferentiated type, polysubstance abuse and opined that Miller was suffering from this mental defect during the shooting. Accordingly, Dr. Gollogly believed that Miller was not able to perceive the nature and quality of his acts and that he could not tell right from wrong because he was suffering from schizophrenia and was high on drugs.

The trial court denied Miller’s acquittal motion ruling that he could not establish insanity as a matter of law. The jury convicted Miller as charged and he appeals.

ANALYSIS Insanity Defense
Miller first contends that the trial court erred in denying his motion for acquittal on insanity grounds. He asserts that the trial court erred in concluding that although he suffered from a mental disease or defect on the date of the shooting, he was nonetheless able to tell right from wrong. Miller further asserts that the trial court erred in concluding that his condition was proximately induced by his voluntary use of illegal drugs and therefore was not sufficient for a finding of insanity.

When a defendant moves for acquittal on insanity grounds under RCW 10.77.080,[8] the defendant bears the burden of proving by a preponderance of the evidence that he or she was insane at the time of the offense with which he or she is charged. See also RCW 10.77.030(2); RCW 9A.12.010(2); State v. Wicks, 98 Wn.2d 620, 621-22, 657 P.2d 781 (1983). If the defendant’s motion to acquit is denied, the question of insanity may be submitted to the trier of fact in the same manner as other factual issues.

RCW 10.77.080. But, `{i}t is error to instruct the jury on the defense of sanity absent substantial evidence.’ Wicks, 98 Wn.2d at 622.

In Washington, the requirements of a successful insanity defense are set forth in RCW 9A.12.010, which provides:

To establish the defense of insanity, it must be shown that:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
(2) The defense of insanity must be established by a preponderance of the evidence.

However, no condition of mind proximately induced by the defendant’s voluntary act shall constitute insanity. RCW 10.77.030(3).

The legal insanity test is `very rigorous.’ Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 494, 969 P.2d 510, 975 P.2d 517, 980 P.2d 765
(1999), aff’d, 143 Wn.2d 469 (2001) (quoting State v. McDonald, 89 Wn.2d 256, 272, 571 P.2d 930 (1977), overruled on other grounds, State v. Sommerville, 111 Wn.2d 524, 760 P.2d 932 (1988)). Sanity is presumed, and legal insanity has `a different meaning and a different purpose’ from medical insanity. State v. Crenshaw, 98 Wn.2d 789, 793, 659 P.2d 488
(1983). Accordingly, `{t}he insanity defense is not available to all who are mentally deficient or deranged.’ Crenshaw, 98 Wn.2d at 793.

Because a verdict of not guilty by reason of insanity is a complete bar to criminal liability, “the defense is available only to those persons who have lost contact with reality so completely that they are beyond any of the influences of the criminal law.” Crenshaw, 98 Wn.2d at 793
(quoting State v. White, 60 Wn.2d 551, 590, 374 P.2d 942 (1962)). Many, if not most, mentally ill persons would not meet the test for legal insanity. Allstate, 93 Wn. App. at 494; McDonald, 89 Wn.2d at 273.

Evidence of voluntary intoxication, without more, is insufficient to justify an insanity instruction, even if the defendant suffers from a preexisting mental illness. Wicks, 98 Wn.2d at 622. Similarly, chronic addiction does not constitute insanity. Wicks, 98 Wn.2d at 622.

But `if the mania, insanity or unsoundness of mind, though produced by drunkenness, be permanent and fixed, so as to destroy all knowledge of right and wrong, then the person thus laboring under these infirmities would not be responsible.’ Wicks, 98 Wn.2d at 622-23 (citing State v. Huey, 14 Wn.2d 387, 396, 128 P.2d 314 (1942)). Accordingly, alcohol and drug related insanity may only be used as an insanity defense when they trigger an underlying psychotic disorder of a settled nature. Wicks, 98 Wn.2d at 623. The facts and analysis in Wicks are instructive here.

In Wicks, the defendant appealed his assault convictions, claiming that there was sufficient evidence of his insanity to submit the issue to the jury. Wicks, 98 Wn.2d at 621. Several days before the alleged assaults, the defendant ingested large quantities of alcohol and drugs. Wicks, 98 Wn.2d at 624. The defense psychiatrist testified that the defendant had chronic undifferentiated schizophrenia, aggravated by drug and/or alcohol use.[9] Wicks, 98 Wn.2d at 624. In the expert’s opinion, the defendant did not understand the consequences of his actions because he suffered from toxic psychosis caused by massive exposure to alcohol and drugs. Wicks, 98 Wn.2d at 624-25. Our Supreme Court held that the evidence was insufficient to support an insanity defense because the defendant’s insanity was achieved through his voluntary abuse of intoxicants. Wicks, 98 Wn.2d at 625-26.

Here, Miller argues that the trial court erred when it concluded that a person with an underlying psychological disorder aggravated by drug use cannot establish the insanity defense because this condition is equivalent to voluntary intoxication. Miller asserts that his disorder was not voluntary intoxication because, although it may have been triggered by his PCP use, the disorder was `settled in nature.’ Appellant’s Br. at 16.

Miller bases his argument on the rule in Wicks that states: `{T}he only time alcohol and drug related insanity may successfully be used as an insanity defense is when the influence of alcohol or drugs triggers an underlying psychotic disorder of a settled nature, such as delirium tremens.’ Wicks, 98 Wn.2d at 623. Although Wicks articulated this rule, the court nevertheless held that the insanity defense was unavailable to a defendant who, like Miller, was diagnosed with underlying chronic undifferentiated schizophrenia and whose psychosis was caused by the voluntary ingestion of alcohol and drugs. See Wicks, 98 Wn.2d at 625-26. Thus, Miller’s argument fails.

Miller also argues that the onset of permanent schizophrenia was an atypical result of his drug use, was unforeseeable, and therefore not voluntary intoxication. Even if the argument had merit,[10] substantial evidence supports the trial court’s determination that Miller could tell right from wrong and therefore he cannot establish a successful insanity defense.

Miller further asserts that the trial court erred when it determined he had not proven his insanity by a preponderance of the evidence. This argument also fails because substantial evidence supports the trial court’s decision on this issue.

A trial court weighs the evidence and determines if the defendant has met the burden of proving his or her insanity by a preponderance of the evidence. Sommerville, 111 Wn.2d at 529. Because the denial of a motion to acquit on insanity grounds is a factual determination, we consider only whether substantial evidence supports this determination. Sommerville, 111 Wn.2d at 533-34;[11] see also State v. Harris, 114 Wn.2d 419, 440-41, 789 P.2d 60 (1990) (discussing factual nature of the sanity issue in stay of execution context). Substantial evidence exists if there is evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Sommerville, 111 Wn.2d at 534.

The testimony adduced by the State regarding Miller’s words and actions at the time of the offense indicates that he was able to tell right from wrong. Miller asked Deputy Cassio if he was contacting him regarding the no trespassing sign at the apartments. After Miller’s gun did not fire, Miller fixed it and fired off several shots. Deputy Shafer testified that Miller appeared to understand his Miranda rights, and Devenny testified that Miller told him he was shot because he tried to kill a cop.

At Madigan, Miller nodded when Deputy Donato read him his rights. At Harborview, Miller told Deputy Kocher, `man, you just don’t understand. I was trying to mind my own business,’ and he asked Deputy Parr how he could be come a police officer `when this is all over.’ RP (Mar. 8, 2001) at 47, 51. Dr. Hart testified that in his opinion, Miller was not legally insane because he executed goal-directed behavior during his interaction with Deputy Cassio. Thus, there is substantial evidence to support the trial court’s factual determination that Miller suffered from a mental disease or defect, but was able to tell the difference between right and wrong and, therefore, was not legally insane. Miller’s argument fails.[12]

Ineffective Assistance of Counsel
Miller further contends that his trial counsels’ performance was deficient because they[13] failed to request jury instructions on the insanity defense and failed to take exception to the trial court’s omission of the insanity instruction.

A defendant’s conviction must be reversed for ineffective assistance of counsel when the defendant has shown deficient performance that prejudiced the defense. State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722
(citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 479 U.S. 922 (1986). First, the defendant must prove deficient performance by showing his attorney’s performance fell below an objective standard of reasonableness based on a consideration of all the circumstances. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). `There is a strong presumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise of reasonable professional judgment.’ State v. Benn, 120 Wn.2d 631, 665, 845 P.2d 289
(citing State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991)), cert. denied, 510 U.S. 944 (1993). Courts have generally found adequate counsel when the defendant based his claim on actions of counsel that speak to the theory of the case or trial tactics. In re the Personal Restraint Petition of Connick, 144 Wn.2d 442, 463, 28 P.3d 729 (2001).

Here, Miller argues that his trial counsels’ omission constituted deficient performance because (1) there was substantial evidence of his insanity at the time of the crime, (2) the question of insanity may be submitted to the trier of fact even if the motion for acquittal is denied, and (3) there was no tactical reason for defense counsels’ failure to request the insanity defense.

Miller’s argument fails because there were sound tactical reasons not to request an insanity defense instruction. Specifically, as the State notes (1) the diminished capacity defense did not carry an affirmative burden of proof like the insanity defense; and (2) the diminished capacity defense included release as a possible result, but the insanity defense would most likely have led to hospital confinement.

Moreover, here, Miller’s trial counsels argued that Miller lacked the ability to form intent because of diminished capacity. The omission of the insanity instruction did not undermine confidence in the jury’s verdict because trial counsel addressed the intent element in a manner they strategically believed would result in success. Miller has not shown that his counsels’ failure to request the insanity instruction and failure to take exception to the trial court’s failure to include the insanity instruction deprived him of a fair trial. His argument fails.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER and ARMSTRONG, JJ., concur.