State of Washington v. Josephine Ellen Johnson ( 2019 )

FILED
MARCH 12, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34670-6-III
Respondent, )
)
v. )
)
JOSEPHINE ELLEN JOHNSON, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Josephine Johnson appeals from her conviction for first degree
assault of her husband, arguing that the trial court erred in refusing to instruct on self-
defense, in excluding expert testimony, and in receiving and instructing the jury
concerning the special verdicts. We affirm.
FACTS
Josephine Johnson shot her husband, Donald Bitterman, on December 23, 2014.
How and why she did so are questions to which she gave varying answers over time.
Those varying answers present the basis for several of her arguments in this appeal.
According to Bitterman, Ms. Johnson walked up to him after overhearing a
telephone conversation he was having with his sister, said “I don’t want to do this, but I
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State v. Johnson
have to,” and then pulled out a gun and shot him. Johnson’s son, Arthur Osborn, said
that she ran into his nearby trailer still holding the gun. Osborn took the gun from her
and went to the house to aid Bitterman.
Johnson told the police that afternoon that she was planning to leave Bitterman
that day, but that her husband would not let her take her belongings. She could not take it
anymore, so she got a gun out of a bedroom drawer and pointed it at his chest where it
would “do the most good.” Bitterman tried to grab the gun and it went off. She
acknowledged that she should not have shot him.
At the omnibus hearing, defense counsel gave notice of reliance on self-defense,
diminished capacity, and battered spouse syndrome defenses. Dr. April Gerlock, an
expert on battered spouse syndrome, interviewed Ms. Johnson and opined that she was a
battered spouse. Dr. Gerlock did not indicate whether Ms. Johnson had the ability to
form the intent to shoot her husband.
Dr. Cedar O’Donnell of Eastern State Hospital evaluated Ms. Johnson for
diminished capacity due to evidence that she had suffered traumatic brain injury in a
vehicle accident years earlier. The doctor determined that Ms. Johnson had “a
documented history of deficits in memory, judgment, and reasoning.” However,
O’Donnell’s report concluded that her actions at the time of the incident were “consistent
with the capacity for intentional behavior.”
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On the first day of trial, defense counsel advised the court that he would forego
self-defense and pursue the case on a theory of accident. He still desired to introduce
evidence of prior instances of domestic violence and the battered spouse syndrome to
explain why Ms. Johnson picked up the gun. The trial court found that the battered
spouse diagnosis was no longer relevant since the defense had abandoned the theory of
self-defense, but that some of the individual acts of domestic violence that Ms. Johnson
testified about during a motion-in-limine were admissible. Dr. Gerlock’s testimony was,
thus, excluded.
The court also granted the State’s motion-in-limine to exclude testimony from Dr.
O’Donnell since there was no basis to instruct on diminished capacity. Defense counsel
agreed that there was ample evidence that his client understood what she was doing at the
time of the incident.
Ms. Johnson testified at trial that the gun accidentally discharged and was cross-
examined about discrepancies between her original story to the police and her current
version. A video copy of the police interview was admitted into evidence in rebuttal. Ex.
32. At the conclusion of the case, defense counsel then proposed an instruction on self-
defense, arguing that the video provided a factual basis for the instruction. The trial court
denied the instruction, ruling that there was no factual basis for Ms. Johnson subjectively
believing that she needed to use force at that time.
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The defense argued the case to the jury on a theory of accident. Nonetheless, the
jury convicted Ms. Johnson of first degree assault. When the jury initially returned with
its verdict, the court discovered that none of the three special verdict forms had been
filled out. The judge instructed the jury to complete the special verdicts. When the jury
returned, it answered “yes” on all of the special verdict forms.
The court imposed a standard range sentence that included a firearm enhancement.
Ms. Johnson timely appealed to this court and was allowed to remain out of custody
during the appeal. A panel heard oral argument of the appeal.
ANALYSIS
Ms. Johnson argues that the trial court violated her right to present a defense by
denying the self-defense instruction and excluding evidence by Dr. Gerlock and Dr.
O’Donnell. She also argues that the court erred by coercing the special verdicts and in its
instructions concerning the special verdicts. We address the four issues in the stated
order.
Self-Defense Instruction
Ms. Johnson first argues that the trial court erroneously rejected her self-defense
instruction, contending that Exhibit 32 provided a basis for the instruction. We agree
with the trial court that there was insufficient evidence to submit the issue to the jury.
The governing law is well settled. Trial courts have an obligation to provide
instructions that correctly state the law, are not misleading, and allow the parties to argue
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their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403(1968). A court should give an instruction only if it is supported by substantial evidence.
State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986).
Self-defense is evaluated “from the standpoint of a reasonably prudent person who
knows all the defendant knows and sees all the defendant sees.” State v. Read, 147
Wn.2d 238, 242, 53 P.3d 26 (2002). This analysis involves both subjective and objective
components. Id. at 242-243. For the subjective component, the jury must “place itself in
the defendant’s shoes and view the defendant’s acts in light of all the facts and
circumstances the defendant knew when the act occurred.” Id. at 243. For the objective
component, the jury must “determine what a reasonable person would have done if
placed in the defendant’s situation.” Id.
These two components of self-defense break down into four elements: “(1) the
defendant subjectively feared that he was in imminent danger of death or great bodily
harm; (2) this belief was objectively reasonable”; “(3) the defendant exercised no greater
force than was reasonably necessary”; and “(4) the defendant was not the aggressor.”
State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997). If a jury is instructed on
self-defense, the State is required to disprove the defense beyond a reasonable doubt.
State v. Acosta, 101 Wn.2d 612, 615-616, 683 P.2d 1069 (1984). Disproof of any one of
these elements negates the self-defense claim. Callahan, 87 Wn. App. at 929.
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When a trial court refuses to give a self-defense instruction because it finds no
evidence supporting the defendant’s subjective belief of imminent danger of great bodily
harm, the standard of review on appeal is abuse of discretion. Read, 147 Wn.2d at 243.
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The failure to
provide a self-defense instruction when supported by the evidence is reversible error.
State v. George, 161 Wn. App. 86, 100-101, 249 P.3d 202 (2011).1
Here, the trial court rejected the instruction due to Ms. Johnson’s failure to
establish that she subjectively feared she was in imminent danger of great bodily injury.
We review that decision for abuse of discretion. Read, 147 Wn.2d at 243. There were
tenable reasons for declining to give the instruction. Ms. Johnson never testified that she
believed she needed to point a gun at, let alone shoot, her husband due to fear of
imminent harm. She also did not present any evidence that her husband was about to
harm her, or that she even had any reason for believing that might be the case. In short,
there were multiple reasons for concluding that the first element was not established.2
The court did not abuse its discretion by rejecting the self-defense instruction.
1
For this reason, we need not separately consider Ms. Johnson’s argument that her
right to present a defense also was violated by the refusal to give a self-defense
instruction.
2
For that reason, we need not address the reasonableness of the need to act, nor
the proportionality of that behavior to any alleged threat.
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Excluded Testimony
Ms. Johnson next argues that her right to present a defense was violated by the
exclusion of the diminished capacity defense and testimony from Dr. O’Donnell and Dr.
Gerlock. Because the proposed testimony did not support any defense that was before
the jury, there was no error.
We review this claim under familiar standards. The trial court’s decision to admit
or exclude evidence is reviewed for abuse of discretion. State v. Franklin, 180 Wn.2d
371, 377 n.2, 325 P.3d 159 (2014); State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d
100 (2011). “An erroneous evidentiary ruling that violates the defendant’s constitutional
rights, however, is presumed prejudicial unless the State can show the error was harmless
beyond a reasonable doubt.” Franklin, 180 Wn.2d at 377 n.2. Both the Sixth
Amendment of the United States Constitution and article I, § 22 of the Washington
Constitution guarantee the criminal defendant’s right to present a defense. Washington v.
Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Thomas, 150
Wn.2d 821, 857, 83 P.3d 970 (2004); Strizheus, 163 Wn. App. at 829-830. But a
criminal defendant does not have a constitutional right to present irrelevant or
inadmissible evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010); State v.
Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
Diminished capacity is a common law defense in Washington. It can be raised
“whenever there is substantial evidence of such a condition and such evidence logically
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and reasonably connects the defendant’s alleged mental condition with the inability to
possess the required level of culpability to commit the crime charged.” State v. Griffin,
100 Wn.2d 417, 419, 670 P.2d 265 (1983). A defendant is entitled to a diminished
capacity instruction if (1) the crime charged includes a particular mental state as an
element, (2) the defendant presents evidence of a mental disorder, and (3) expert
testimony logically and reasonably connects the defendant’s alleged mental condition
with the asserted inability to form the mental state required for the crime charged. State
v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001). The testimony of an expert
witness is necessary to present a diminished capacity defense. State v. Stumpf, 64 Wn.
App. 522, 526, 827 P.2d 294 (1992).
It is doubtful that any claim related to diminished capacity was preserved in the
trial court. The trial court granted the motion-in-limine excluding the defense after
defense counsel eschewed reliance on the defense. Moreover, no instruction was ever
proposed concerning the topic. The defense lost its relevance because Ms. Johnson
decided not to pursue the defense.
Nonetheless, even if diminished capacity is properly before this court, the trial
court correctly determined there was no basis for presenting evidence on the topic.
Critical to the defense is the testimony of an expert who could explain why Ms. Johnson,
by reason of mental disease or defect, lacked the ability to intend her actions. Stumpf, 64
Wn. App. at 526. Dr. O’Donnell did not propose to offer that testimony. Indeed, the
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evaluation concluded that Ms. Johnson did have capacity to intend her actions. Dr.
Gerlock did not even opine on the topic.3 Thus, one of the critical foundation elements to
a diminished capacity defense was lacking. The trial court did not abuse its discretion in
excluding the defense. Because there was no basis for pursuing diminished capacity, Dr.
O’Donnell’s testimony was irrelevant.4 The constitutional right to present a defense was
not implicated. Hudlow, 99 Wn.2d at 15.
The same conclusion applies to Dr. Gerlock’s testimony. Her proposed testimony
on battered spouse syndrome related to the self-defense theory. E.g., State v. Allery, 101
Wn.2d 591, 597, 682 P.2d 312 (1984). However, that theory, as discussed earlier, was
not supported by the evidence. Testimony concerning the battered spouse syndrome was,
therefore, irrelevant. The trial court understandably excluded the evidence. That action
did not constitute a violation of Ms. Johnson’s right to present a defense.
3
Defense counsel admitted that there was plenty of evidence that his client had the
capacity to act intentionally, and did not suggest there was any evidence that she lacked
capacity. Report of Proceedings (RP) (June 17, 2016) at 99.
4
Ms. Johnson also contends that evidence of her dementia was relevant to explain
her varying stories about the incident. However, this claim was raised only in support of
possible sur-rebuttal and was never explained to the trial court, nor was it ruled on by the
trial judge. RP (June 17, 2016) at 120 et seq; RP (June 20, 2016) at 1-43. The defense
rested without calling Dr. O’Donnell or asking to be allowed to do so. RP (June 20,
2016) at 59. The opportunity to present this evidence was waived. Potential evidence
explaining prior testimony also does not itself constitute a defense to a crime nor present
an issue of constitutional magnitude that can be addressed for the first time on appeal.
RAP 2.5(a).
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Each of the claimed defenses lacked evidentiary support. The trial court did not
err in excluding irrelevant testimony relating to legally insufficient defenses.
Special Verdicts
Lastly, Ms. Johnson contends that the trial court erred both in accepting the special
verdicts and in the form in which the instructions were presented. Her arguments fail to
establish error.
When the jury initially returned with its verdict on the assault charge, none of the
special verdict forms had been filled out. The court directed the jury to return to
deliberations and “attend” to the special verdict forms. Defense counsel did not object to
the court’s action. Ms. Johnson’s claim that the trial court improperly interfered with the
special verdicts is unpersuasive. She had the right to have the jury return a verdict free of
coercion by the trial judge. E.g., State v. Boogaard, 90 Wn.2d 733, 736-737, 585 P.2d
789 (1978). However, nothing in this record suggests that the judge behaved coercively
by telling the jury to return to deliberations. This contention simply is without merit.
Ms. Johnson also contends that the three special verdicts were erroneously
returned because none of the verdict forms expressly stated that the jury needed to be
unanimous to answer the special verdict. She points out that the pattern instruction
verdict forms now state the unanimity requirement. From these facts, she argues that her
right to a unanimous finding was violated. It was not.
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Her argument ignores jury instruction 2, which states in part:
As jurors, you have a duty to discuss the case with one another and to
deliberate in an effort to reach a unanimous verdict.
Clerk’s Papers (CP) at 163.
Similarly, the concluding instruction told jurors that they must deliberate in order
to reach a unanimous verdict on the charge of first degree assault and the two included
assault offenses. CP at 191-192. While she correctly notes that the concluding
instruction did not mention the special verdicts, she can point to no competing
instructions that would have suggested nonunanimity was possible on the special
verdicts. The only instructions given to the jury required unanimity in order to return a
verdict. There was no reason to think that jurors could have applied a different standard
to the special verdicts.
If these verdict forms constituted constitutional error, the error was harmless
beyond a reasonable doubt because each question presented involved an uncontested
factual issue. Both parties testified that they were married to each other and living
together at the time of the incident; it simply was not a contested factual question that the
two were involved in a domestic relationship. The fact that the assault was committed
with a firearm likewise was not a disputed issue.
The jury’s verdict on the first degree assault charge necessarily answered the
remaining special verdict. The special interrogatory concerning the assault having been
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committed with intent to commit great bodily harm was a restatement of the elements of
the first degree assault charge; once the jury unanimously concluded that Ms. Johnson
intentionally assaulted Mr. Bitterman, that answer necessarily compelled the same
response to the special interrogatory. CP at 173, 199.
Ms. Johnson has not established that she was prejudiced by the alleged errors
relating to the return of the special verdicts.
Affirmed.
A majority of the panel has determined 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:
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