### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON ,

Respondent ,
v. MICHAEL SEAN THOMPSON ,

Appellant

. DIVISION ONE
No. 80602

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- I PUBLISHED OPINION

D WYER , J.

— Michael Thompson appeals from the judgment entered on a jury’s verdict finding him guilty of murder in the second degree . He raises numerous claims of error, among them that (1) the trial court erred by excluding evidence of his insanity and (2) double jeopardy barred his second trial after his
f irst trial ended in a mistrial. His first claim has merit, his second does not. Accordingly, we reverse the judgment and remand for further proceedings.
I Michael Thompson suffers from severe mental illness and began using drugs regular ly as a young teenager. In 2012, Thompson began living in an apartment at Kenyon House, a housing program run by Sound Menta l Health for people who have been chronically homeless and suffer from both HIV (human immunodeficiency virus) or AID S (acquired immunodeficiency syn drome) and chronic mental il lness or substance abuse issues . In January 2014, ThompsonNo. 80602

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was sentenced on a conviction of taking a motor vehicle and was ordered to serve eight months on e l ectronic home monitoring. Thompson was required to begin serving this sentence by May 19, 2014. On that day , Thompson attempted to set up electronic home monitoring a t his apartment at Kenyon House but was unable to do so because the equipment provided was incompatible with the tele phone line at his residence

. Thompson be came depressed, believing that he would have to go to jail. He began drinking alcohol and using drugs and continued to do so around different areas of downtown Seattle for several da ys. Eventually, Thompson encountered an acquaintance, Daryl Ford. Ford and Thompson drank beer together and then went to Thompson’s apartment and used drugs supplied b y Ford. At trial, Thompson testified that , in the apartment, Ford made sexual adva nces toward him over his verbal objectio ns. According to Thompson’s testimony, Ford then repeatedly attempted to sexually assault Thompson and prevented Thompson from leaving the apartment at knife point, telling Thompson, “You ain’t smoking my shit for fr ee.” Ford was “slicing” at Th ompson with the knife, Thompson testified, causing Thomps on to retreat to a bathroom in which he hit his head agai nst a towel rack , losing consciousness

. Upon awakening, Thompson found himself on the floor stabbing Ford’s hand with the knife. Ford was dead. An autopsy later reveal ed that Ford had 87 injuries produced by a knife.No. 80602

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3 Thompson cleaned the apartment and removed the body. He did so by wrapping Ford’s body in blankets, placing it i n a shopping cart, and pushing it down the street. A neighbor saw him moving the cart, became suspicious , and called the police. Police officers discovered the body and found Thompson’s fingerprints on the cart. Thompson was arrested at his wife’s home in s outh King County. 1 He was charged with murder in the second degree for causing the death of Ford while committing a felony (assault) while armed with a deadly weapon . The information was later amended to add an alternative count of intentional murde r in the second degree while armed with a deadly weapon

. Thompson’s first trial took place in 2017. After 14 days, the judge declared a mistrial because the prosecutor asked Thompson several questions regarding why he had not told detectives about Fo rd’s attempted assault, causing him to explain several times that he had invoked his right to silence. Thompson was tried again in 2019 with new defense counsel. He was convicted of felony murder while armed with a deadly weapon. Thompson appeals.
II Thompson contends t hat the trial court erred by denying him the right to advance the defense of insanity

. We regard Thompson’s challenge as one to the

1 Thompson had been living separately from his wife and young children because of his serious mental health and substance abuse issues.No. 80602

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trial court’s evidentiary ruling, which excluded any evidence of insanity, 2 and we
agree. Accordi ng to Thompson, the trial court’s ruling violated his “right to present a defense.” Our Supreme Court has explained that a contention that an
evidenti ary ruling violated a defendant’ s constitutional “ right to present a defense ”
is reviewed pursuant to a two
- step process. State v. Arndt , 194 Wn.2d 784, 797

- 98, 453 P.3d 696 (2019). First, we review th e challenged evidentiary ruling under an abuse of discretion standard. Then, if necessary, we review de novo whether the ruling violated the d efendant’ s constitutional right to present a defense. See Arndt , 194 Wn.2d at 797

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. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons, such as a misunderstanding of the law

. State v. Enriquez

- Martinez , ___ Wn.2d __ _, 492 P.3d 162, 164 (2021). Insanity is a defense that completely absolves a defendant of criminal liability

. State v. Crenshaw , 98 Wn.2d 789, 793, 659 P.2d 488 (1983) . It 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.” State v. White , 60
Wn .2d 551, 590, 374 P.2d 942 (1962 )

. Insanity is an affirmative defense that the defendant must establish b y a preponderance of the evidence. RCW
10.77.030 (2) ; State v. Box , 109 Wn.2 d 320, 322, 745 P.2d 23 (1987).

2 As evidence of insanity was excluded, there was no t evidence of insanity admitted that would have entitle d Thompson to an insanity inst ruction. See State v. Fisher , 185 Wn.2d 8 36, 848 , 374 P.3d 1185 (2016) (a defendant is entitled to have the jury instructed on any theory of the case that is supported by the evidence).No. 80602

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Additionally, “ [b] ecause the law presumes that an individual is sane at the time that the individual commits a crime, a defendant asserting the ins anity defense bears the initial burden of producing evidence of insanity.” State v. Chanthabouly , 164 Wn. App. 104, 127

- 28, 262 P.3d 144 (2011) (citing Box , 109 Wn.2d at 322). To establish the defense of insanity, the defendant must show
that (1) [a] t 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 or she was unable to perceive the nature and quality of the act with which he or she is charged; or (b) He or she was unable to tell right from wrong with reference to the particular act charged. RCW 9A.12.010. Further, “[n]o condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity.” RCW 10.77.030 (3)

. Prior to his second trial, Thompson requested that the jury be instructed on insanity and sought to present evidence , through expert testimony , that he suffered from mental illnesses

— specifically posttraumatic stress d isorder , depression , and a dev elopmental disability

— which “rendered him unable to perceive the nature and quality of his act” at the time of the offense. Thompson filed a declaration from psychiatrist Dr. Richard Adler, in which Dr. Adler stated: [M]y opinion is that Mr. Thompson was insane at the time of the incident. As a result of his mental disease: Major Depression with psychotic features, Post

- traumatic Stress Disorder (PTSD), and Mild Neurocognitive Disorder due to multiple etiologies, the defendant’s mind was affected to such an extent that he was unable to perceive the nature and quality of the acts with which the defendant is charged (intentional murder) and/or was unable to tell right from wrong with reference to the particular acts with whichNo. 80602

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6 defendant is charged

– i.e., ov erwhelmingly paranoid and acting in self

- defense. This mental state was aggravated by the consumption of drugs and alcohol. With regard to Thompson’s voluntary intoxication at the time of the offense, Thompson’s counsel explained: We have opinions fro m our experts that say that by [ the ] preponderance of the evidence according to their reasonable medical certainty that Mr. Thompson was insane at the time, that he was unable to appreciate the nature, the consequences of what he was doing

.

. . . . Both experts say that they believe that Mr. Thompson’s voluntary intoxication did not proximately induce his inability to perceive the nature and consequences of his actions. They believe that given his developmental disability; his PTSD based on longstan ding, lifelong abuse, both physical and emotional; and then finally, his depression, that given the situation with Mr. Ford where Mr. Ford tries to sexually assault Mr. Thompson, they believe that in response to that, even without the intoxication, he woul d have responded in the same way. They do opine that Mr. Thompson’s intoxication was a factor and that maybe it had some role in enhancing his paranoia at the time. Nevertheless, the trial court excluded any reference to insanity because the expert witn esses were of the opinion that Thompson’s mental state at the
time of the offense was also impacted by his voluntar y use of drugs and alcohol. In doing so, the trial court assumed that the term “ condi tion of mind” refers to insanity , observing that “there can be multiple proximate causes” of a defendant’s state of mind , and stating that RCW 10.77.030(3) talks about “No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity.” Even t aking the defense’s experts

— in looking at those reports in the light most favorable even to Mr. Thompson, the defense experts cannot preclude intoxication

— voluntary intoxication, as a proximate cause of having induced

— having been an inducement.No. 80602

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7 But insan ity i s not the “ condition of mind ” referenced in the statute

. 3 Rather, i nsanity is a legal conclusion about a defendant’s mental state that is appropriate ly made when a defendant ’s mind is so impaired by a “mental disease or defect” that the defendan t is “unable to perceive the nature and quality of the act with which he or she is charged” or is “ unable to tell right from wrong with reference to the particular act charged.” See RCW 9A.12.010. Thus, “ condition of mind ” refers to the specific diagnosable condition testified to by the defendant ’s witnesses o r the S tate’s witnesses in rebuttal

. When such a condition of mind arises involuntarily, it may amount to insanity. On the other hand, when such a condition of mind is proximately induced by a defendan t’s voluntary acts , that condition is excluded from those mental diseases or defects that may constitute insanity. This meaning is apparent given the long history of the insanity d efense in Washington. The insanity defense is rooted in the common law and, in Washington, predates statehood. See , e.g. , McAllister v. Territory of Wash. , 1 Wash. T err. 360 (1872). In 1909, after the legislature enacted a statute eli minating the insanity defense, o ur Supreme Court invalidated that statute , explaining that the sanity of the accused , at the time of committing the act charged against him , has always been regarded as much a substantive fact, going to make up his guilt, as the fact of his physical commission of the act. It seems to us the law could as well exc lude proof of any other substantive fact going to show his guilt or innocence. If he was insane at the time to the extent that he could not comprehend

3 This is apparent from the language of RCW 10.77.030. If “condition of mind” meant “insanity,” the statute would effectively state : “N o [ insanity ] proximately induced by the voluntary act of a person charged with a crime shall constitute insanity.” As such a reading contradicts itself, it is clearly not what th e legislature intended.No. 80602

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8 the nature and quality of the act

— in other words, if he had no will to control the physica l act of his p hysical body, how can it in truth be said that the act was his act? To take from the accused the opportunity to offer evidence tending to prove this fact , is , in our opinion , as much a violation of his constitutional right of trial by jury as to take from him the right to offer evidence before the jury tending to show that he did not physically commit the act or physically set in motion a train of events resulting in the a ct. The maxim “ An act done by me against my will is not my act, ” may, without losing any of its force, be paraphrased to fit our present inquiry as follows: “ An act done by me without my will, or in the absence of my will, is not my act. ” State v. Strasburg , 60 Wash . 106, 119

- 20, 110 P. 1020 (1910). Until the adoption of the Revised Code of Washington in 1950, 4 Rem. Rev. Stat. § 2173 provided: Any person who shall have committed a crime while insane, or in a condition of mental irresponsibility , [ 5 ] and in whom such insanity or mental irresponsibility conti nues to exist, shall be deemed criminally insane within the meaning of this act. No condition of mind induced by the voluntary act of a person charged with a crime shall be deemed mental irresponsibility within the meaning of this act. (E mphasis added .) In 1942, our Supreme Court, interpreting the statute cited above, held that a “mental irresponsibility” defense “can only be applicable to those cases where the condition of the mind results from some cause other than that of voluntary intoxication.” Sta te v. Huey , 14 Wn.2d 387, 394 , 128 P.2d 314 (1942) (e mphasis added). In that case, the court explained that the defense is not available to an otherwise sane person who is voluntarily intoxicated:

4 See Ch

. 1.04 RCW

. 5 The terms “insanity” and “mental irresponsi bility” have the same meaning. White , 60 Wn.2d at 586.No. 80602

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9 “ Voluntary intoxication does not excuse the commission o f crime. A rule almost universally recognized and applied is that a person who, being sane and responsible for his acts, voluntarily becomes intoxicated

, with or without a preconceived design to commit a crime, and while intoxicated, though it is to such a degree as to render him wholly oblivious to his acts or conduct, does any act which, if done by a person capable of distinguishing between right and wrong, would be criminal if not excused or justified in some way is responsible for his act, notwithstand ing his mental condition at the time

. ” Huey , 14 Wn.2d at 3 95 (emphasis added) ( quoting 15 A M

. J UR

. Criminal Law § 338 , at 27 (1938 ) )

. The Supreme Court then ex plained the purpose of the insanity defense and the voluntary intoxication exception:

“ In general, insanity is an excuse for the commission of every crime because the party has not the possession of that reason which includes responsibility. An exception is when the crime is committed by a party while in a fit of intoxication, the law not p ermitting a man to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. ” Huey , 14 Wn.2d at 396 (internal quotation marks omitted) ( quoting State v.
Kidwell , 62 W. Va. 466, 495, 59 S .E. 494 (1907)). Accordingly, a defendant who was intoxicated during his offense and presented no medical testimony was not entitled to a n insanity jury instruction, as the “ condition of his mind ” which limited his ability to distinguish right from wrong

was “ induced sole ly by voluntary intoxication.” Huey , 14 Wn.2d at 396. Over 40 years later , after the insanity defense had been codified in RCW 9A.12.010, 6 our Supreme Court addressed the intersection of voluntary

6 The voluntary act exception was then codified as former RCW 10.77.010(7) (1983) , which provided that “ [n] o condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute ‘insanity.’”No. 80602

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intoxication and insanity once again in State v. Wicks , 98 Wn.2d 620, 657 P.2d 781 (1983)

. The Wicks court concluded that a defendant with a history of mental illness who committed criminal acts while suffering from a condition called toxic psychosis

— a severe mental disorder caused by voluntary use of alcohol or drugs

— was not entitled to an insanity jury instruction. Wicks , 98 Wn.2d at 625

- 26. The Wicks court reasoned

— as the Huey court had before it

— that evidence of voluntary intoxication, by itself, is insufficient to justify an in sanity instruction. This is so even if defendant although sane suffers from a preexisting mental illness. The voluntary use of intoxicants is the direct and immediate cause of insanity, not the preexisting mental illness. Wicks , 98 Wn.2d at 622 (emphasi s added) (footnote omitted)

. This limitation exists to prevent the law from “ ‘ allow[ing] one to steel his nerves, blanket his conscience, and fortify his resolve by taking drugs in preparation for a criminal enterprise. ’ ” Wicks , 98 Wn.2d at 623 (quoting State v.
Bower , 73 Wn.2d 634, 646, 440 P.2d 167 (1968)). Thus, for many decades, Washington courts have ruled that a condition that results from voluntary drug and alcohol is not evidence of insanity , even when the condition is a severe or unusual respo nse to drug or alcohol use. 7 But no Washington court ha s held that a defendant may not present evidence of insanity

— c aused by an involuntary mental illness

— simply because there is also evidence that voluntary dr ug or alcohol use impacted the defendant’s m ental
state. I f evidence is adduced that a defendant was impacted by an in voluntary

7 Although not applicable to this case, one exception to this rule exists. When long

- term voluntary drug use produces a “permanent me ntal disease amounting to insanity,” distinct from the temporary “mental excitement” of present intoxication, it may result in insanity. State v. Miller , 177 Wash. 442, 463, 32 P.2d 535 (1934). For example, delirium tremens is a condition that may consti tute insanity. Wicks , 98 Wn.2d at 623

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mental condition that caused insanity and was also impacted by voluntary drug or alcohol use at the time of the offense, the evidence of insanity should be presented to th e jury , and the jury should be instructed to conside r whether the impact of the invo luntary condition alone would have rendered the defendant insane. Indeed, evidence of insanity has long been admitted and insanity defense instructions given in such cases. For example, in State v. Matthews , a jury rejected the defendant’s insanity defense despite four experts testifying that he was insane at the time of the offense. 132 Wn. App. 936, 942, 135 P.3d 495 (2006). We explained that the jury was entitled to do so given other evidence in the record, including evidence that the defendant had voluntarily ingested cocaine, which supported an inference that Matthews was both sane and voluntarily intoxicated. Matthews , 132 Wn. App. at 938

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. Similarl y, in State v. Putzell , a jury considered whether a defendant who had both suffered a head injury and had consumed alcohol before shooting an acquaintance in a bar was insan e at the time of the shooting. 40 Wn.2d 174,
17 5

- 7 6, 242 P.2d 180 (1952). The jur y rejected the defense. Putzell , 40 Wn.2d
at 175. Our Supreme Court explained that it was entitled to do so: Long and involved hypothetical questions were asked by counsel for both sides, each upon facts favorable to their own contention. The jury was not bound by the conclusions of the doctors in answer to these questions. The ultimate conclusion, and the ultimate decision as to the sanity or insanity of appellant, upon all of the evidence in the case, and the law, as given to it by the court, was the responsibility of the jury. Putzell , 40 Wn.2d at 179

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12 In both cases, unrefuted evidence that each defendant had voluntarily used drugs or alcohol did not result in the exclusion of evidence advancing the insanity defense. Rather, in each case, the defendant presented evidence of insanity, the jury was instructed on insanity, and the jury made a determination as to the defendant’s sanity. Here, the trial court ruled based on its misunderstanding of the la w

. A ccordingly, it abused its discretion by excluding Thompson’s proffered evidence pertaining to the defense

. Because the result of this error was that Thompson was not entitled to a jury instruction on the defense of insanity, which was his theory of the case, the error was not harmless

. 8 Accordingly, we reverse and remand for a new trial.
III Thompson also contends that subjecting him to retrial after his first trial ended in a mistrial violated his right to be free from double jeopardy u nder the Washington Constitution. This is so, he avers, because article I , section 9 of the Washington Constitution should be interpreted more broadly than its federal counterpart and , under this broader protection, retrial was impermissible. We disagree

. We review a double jeopardy claim de novo. State v. Strine , 176 Wn.2d 742, 751, 293 P.3d 1177 (2013). The double jeopardy clause of the United States Constitution guarantees that no person shall “be subject for the same

8 “A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” State v. Britton , 27 Wn.2d 336, 341, 178 P.2d 341 (1947).No. 80602

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offense to be twice put in jeop ardy of life or limb .” U.S. C ONST

. amend. V

. The double jeopardy clause of the Washington Constitution guarantees that “[n] o person shall

. . . be twice put in jeopardy for the same offense.” C ONST

. art. I , § 9

. Our Supreme Court has held that “ Washington’ s double jeopardy clause is essentially identical to its federal counterpart and thus affords no greater protection. ” State v. Benn , 161 Wn.2d 256, 261, 165 P.3d 1232 (2007); accord Strine , 176 Wn.2d at 751 (“ ‘ T he federal and state [double jeop ardy] provisions afford the same protections and are identical in t hought, substance, and
purpose. ’ ” (alteration in original) (internal quotation marks omitted) (quoting State
v. Ervin , 158 Wn.2d 7 46 , 752, 147 P.3d 567 (2006)) )

. Double jeopardy generally does not bar retrial after a defendant moves for a mistrial. Oregon v. Kennedy , 456 U.S. 667, 672

- 73, 102 S. Ct. 2083, 72 L

. Ed. 2d 416 (1982). A narrow exception to this rule exists when a prosecutor intentionally “ ‘ goad[s] ’ ” the defendant into moving for a mistrial. Kennedy , 456 U.S. at 676 (quoting United States v. Dinitz , 424 U.S. 600, 611, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976))

. Notwithstanding authority to the contrary, Thompson urges us to hold that article I , secti on 9 offers broader protection than does the Fifth Amendment

. He offers a Gunwall 9 analysis in an attempt to convince us that our Supreme Court has gone astray in its analysis of this issue. We find his entreaty uncompelling.
We are bound by the precede nts of our Supreme Court. State v. Gore , 101 Wn.2d 481, 487, 681 P.2d 227 (1984). Given that our Supreme Court has

9 State v. Gunwall , 106 Wn.2d 54, 720 P.2d 808 (1986).No. 80602

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previously explained that the Washington Constitution’s double jeopardy clause does not offer broader protection than does its federal coun terpart, we need not engage in a Gunwall analysis , as urged upon us by Thompson

. It is of no significance that our Supreme Court has not addressed the specific contention articulated by Thompson in his briefing. Indeed, [i] f a court of appeals could disr egard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court ’ s decisions could be circumvented with ease. They would bind only judges too dim

witted to come up with a nove l argument. Nat ’ l Rifle Ass’n of Am

. , Inc. v. City of Chicago , 567 F.3d 856, 858 (7 th Cir. 2 009), reversed on other grounds by McDonald v. City of Chicago , 561 U.S. 742 , 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). Here, t he trial court found that the prosecutor did not intentionally cause a mistrial or act in bad faith. It also found that, notwithstanding the impropriety that
necessitated the mistrial , the prosecutor’s challenged line of questioning “prob ably seemed clearly appropriate ” to her. Both f indings well support the trial court’s determination that the S tate did not intentionally pro voke the mistrial. Because Thompson did not establish that the prosecutor intentionally
pro voked the mistrial, double jeopar dy did not bar retrial. Accordingly, Thompson’s claim of error fails. 10

10 Given our disposition of the two issues addressed herein, it is unnecessary for us to address the other claims of error asserted in Thompson’ s briefing.No. 80602

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15 Reversed.

WE CONCUR: