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State v. Zielinski

Court of Appeals of Oregon

September 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
PETER JOHN ZIELINSKI, Defendant-Appellant.

          Argued and submitted November 17, 2015

         Marion County Circuit Court 11C40365; Dale Penn, Judge.

          Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argue the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Allen, Judge pro tempore.

         Case Summary: Defendant appeals a judgment of conviction, entered after a conditional guilty plea, for one count of murder with a firearm, ORS 163.115, ORS 161.610. He assigns error to the trial court's exclusion of expert testimony that he had been diagnosed with an Axis I anxiety disorder, which he offered in support of his defense under ORS 163.135 of extreme emotional disturbance. Held: The trial court erred in limiting the expert testimony to exclude evidence of defendant's anxiety-disorder diagnosis because the diagnosis was relevant to the subjective element of the defense of extreme emotional disturbance.

         [287 Or. 771]

          ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction, entered after a conditional guilty plea, for one count of murder with a firearm, ORS 163.115, ORS 161.610. Defendant assigns error to the trial court's exclusion of expert testimony that defendant had been diagnosed with an anxiety disorder, which he offered in support of a defense of extreme emotional disturbance (EED). We conclude that the trial court erred in excluding expert testimony that defendant had been diagnosed with an anxiety disorder. Accordingly, we reverse and remand.

         The facts, which are largely procedural, are undisputed. Defendant was indicted on one count of intentional murder with a firearm for killing his wife, Lisa. Defendant filed notice under ORS 163.135 of his intention to raise the affirmative defense of EED and to offer expert testimony in support of the defense.[1] In response, the state moved to have defendant examined by a psychologist, which motion the court granted.

         Defendant was first examined by Dr. Hulteng at the request of the defense. Hulteng prepared a written report that described the details of the examination and his findings. Defendant reported to Hulteng that he and Lisa had been experiencing marital problems for several [287 Or. 772] weeks before the shooting. Lisa had told defendant that she wanted a divorce and, although he had been told by others that there was "probably somebody else, " defendant pleaded with Lisa to stay with him and to attend marriage counseling.

         One morning, defendant looked at Lisa's phone and discovered that Lisa had been exchanging text messages with her coworker, Jeff. The messages indicated that Lisa had gone out for a drink with Jeff the night before, which contradicted her statement to defendant that she had been at a client meeting and had then stayed at a bar to drink alone. When defendant confronted Lisa about the text messages, she told him that there was nothing going on with Jeff. However, defendant then examined Lisa's phone records and discovered hundreds of text messages between Lisa and Jeff. That night, defendant and Lisa attended a marriage-counseling session. When the counselor asked the couple what they hoped to achieve through counseling, Lisa stated, "Nothing."

         On the Sunday morning before the shooting, defendant accessed Lisa's email account and discovered romantic email exchanges between Jeff and Lisa. Defendant "felt physically ill" when he read through the messages. That evening, when defendant confronted Lisa about the emails, Lisa admitted to having an affair with Jeff. She told defendant that she wanted to leave him and to plan a future with Jeff. Later, after defendant found more romantic emails between Lisa and Jeff, he called Jeffs wife to tell her about the affair and forwarded one of the emails to Lisa's boss and coworkers.

         Defendant and Lisa got into an argument and, after it escalated, Lisa left the home. Defendant called Lisa and accused her of being with Jeff. Defendant told Hulteng that, at that moment, he "literally wanted to die." At some point that night, he got his handgun and pointed it at his head, but he stopped himself because he did not want his daughter to be the one who found him dead. Lisa returned home in the middle of that night. Defendant put his arm around her and told her that he loved her. She "grunted, was very annoyed, " and asked him if he was serious.

         [287 Or. 773] The next morning, defendant woke up and saw Lisa sitting on their daughter's bed, text messaging with Jeff. Defendant was "at [his] wits end" and got into the shower. When defendant got out of the shower, he tried to give Lisa a hug, but she shook her head in disgust.

         Defendant told Hulteng that he could not explain how he felt at that moment, but that all he could hear in his head was that he was "weak and spineless." As he left the bathroom to get a drink of water, he passed by his closet. Instead of going to get the glass of water, defendant went into the closet, grabbed his gun, and returned to the bathroom. He looked at Lisa, raised the gun, and pulled the trigger. Defendant told Hulteng that he felt like it was a dream, and that he did not feel like he was in control. Defendant said that he was telling himself, "no, no, don't do this, " but that he "couldn't stop it."

         After the shooting, defendant put the gun down, got dressed, and dropped his daughter off at her carpool. He once again had thoughts of suicide. Defendant called his mother and asked her to come look after his daughter. He then went to the police station to get help for Lisa. When officers arrived at defendant's home, they found Lisa dead on the bathroom floor.

         During the psychological examination, defendant told Hulteng about his personal life, including his military experience and alcohol use, and he described his emotional state both before and after the shooting. Hulteng observed, "[Defendant] exhibits some depressive symptoms, which appear to be a reaction to his present circumstances." He also noted that, although defendant had been "exposed to traumatic events while in combat during the First Gulf War, " the "diagnostic criteria for posttraumatic stress disorder do not appear to be met." Hulteng diagnosed defendant, under the American Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), [2] with three Axis I disorders: adjustment disorder with depressed mood; anxiety disorder, not [287 Or. 774] otherwise specified; and alcohol abuse. He also diagnosed defendant with narcissistic personality traits under Axis II.

         Hulteng also provided an opinion regarding the EED defense. He opined that, although there was no indication that defendant "suffered from a mental condition or cognitive impairment rendering him inherently incapable of controlling himself [, ]" there were "indications that he was experiencing intense emotional distress." (Emphasis in original.) Hulteng noted that whether defendant's disturbance was reasonable from the standpoint of an ordinary person, as required under ORS 163.135 for the EED defense to apply, was a question of fact for a jury to decide.

         Defendant was then examined by Dr. Duncan, first at the request of the state and then at defendant's request. In addition to speaking with defendant, Duncan reviewed Hulteng's report, defendant's history, and police reports. He described his findings in a written report. Duncan diagnosed defendant with two Axis I disorders: anxiety disorder, not otherwise specified; and alcohol abuse. Duncan also diagnosed defendant with Axis II obsessive-compulsive personality traits. Duncan explained that, "[b]ased on the totality of the data, it [was his] professional opinion that, at the time of the alleged murder of his wife Lisa on January 11, 2011, [defendant] was experiencing heightened stress, increased despair, and hopeless, catastrophic, and rigid thinking." Duncan also reported that, during both his and Hulteng's examinations of defendant, defendant

"endorsed anxiety symptoms associated with initial combat related trauma, including recurring nightmares, potential avoidance symptoms, and a heightened startle response. Although he does not appear to have full blown PTSD, [defendant's] ongoing anxiety symptoms during the days leading up to the alleged murder of his wife ...

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