and submitted November 17, 2015
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.
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.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
Allen, Judge pro tempore.
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.
ARMSTRONG, P. J.
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.
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. In response, the state moved to have
defendant examined by a psychologist, which motion the court
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.
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,
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 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.
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.
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."
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
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),  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.
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.
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 ...