Washington Man Granted New Trial after Trial Court Denied Mistrial and Omitted Critical Aspect of Jury Instructions

Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation

Center for Law, Brain & Behavior
4 min readJun 13, 2022
Division One, Court of Appeals of Washington

Kevin Taylor was convicted of second degree arson and second degree-felony murder in Washington after killing his wife. Taylor did not dispute killing his wife, but offered a diminished capacity defense, and the central issue during trial was whether Taylor possessed the necessary mental state to convict him of the charges. During the trial, the State’s expert psychologist violated several pretrial motion rulings. In addition, after closing arguments the trial court neglected to include the mental state of recklessness in its diminished capacity instruction. The Washington Court of Appeals found the trial court’s denial of the defense’s mistrial motion and the jury instruction reversible error, granting Taylor a new trial.

Kevin Taylor had been diagnosed with a seizure disorder in 2005 that caused him to become disoriented when he experienced a seizure. By August 2016, the frequency of Taylor’s seizures began increasing, which caused mood swings, rage, and anger.

On September 3, 2016, Taylor’s wife recorded a video of him “in a very strange state.” Later that night, two calls were made to the police with no one speaking on the line. The police arrived at Taylor’s home to investigate around 1:00 a.m. and found Taylor had killed his wife and then set her car on fire. Taylor told law enforcement that he believed his wife had attempted to poison him.

Taylor was charged with second degree intentional murder, second degree felony murder, and second degree arson. At trial, Taylor asserted a diminished capacity defense based on a “delusional psychotic state brought on by his documented seizure disorder.” Taylor admitted to killing his wife, and therefore the main issue at trial was whether the State could prove Taylor had the requisite mens rea to support a conviction of intentional murder in the second degree and arson in the second degree.

The defense presented expert testimony from Dr. Andres Kanner, a neurologist and medical school professor with a specialization in epilepsy. Dr. Kanner testified that Taylor suffered from postictal psychosis, “a form of psychosis that occurs after a flurry of seizures and causes the individual to become irritable, withdrawn, or isolated, which can later lead to ‘overt psychotic symptoms.’” Dr. Kanner concluded that Taylor did not have the capacity to knowingly or maliciously kill his wife or set her car on fire.

The State presented expert testimony from psychologist Dr. Jenna Tomei. Dr. Tomei concluded that Taylor did, in fact, have the capacity to form the requisite mens rea for second degree murder and arson. Throughout the trial, however, Dr. Tomei violated three pretrial rulings. At one point, Dr. Tomei began testifying about Taylor’s criminal history when a pretrial motion was granted excluding reference to his criminal history. Dr. Tomei began referring to Taylor’s substance abuse, again in violation of a pretrial ruling excluding such references. Finally, Dr. Tomei began describing how Taylor asked for an attorney, violating a pretrial ruling that excluded any reference to his request. The trial court denied the defense’s motion for a mistrial.

At the end of the trial, the trial court gave several instructions to the jury, including instructions about the diminished capacity defense. The trial court, however, neglected to include the mental state of “recklessness” in the instruction, stating only that “[e]vidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form intent, knowledge, or malice.” (Emphasis added.)

The jury found Taylor guilty of second degree-felony murder and second-degree arson. Taylor was acquitted of second degree-intentional murder. He was sentenced to 20 years in prison.

Taylor appealed his conviction to the Court of Appeals of Washington. The Court of Appeals first found prejudicial error in the trial court’s decision not to grant the defense a mistrial after the State’s expert witness violated several pretrial rulings. The trial court knew that Dr. Tomei had been instructed not to talk about substance abuse, but otherwise was not instructed to exclude testimony regarding Taylor’s criminal history nor his request for his attorney. The appellate court found that the seriousness of the violations, the fact that evidence about substance abuse, criminal history, and a request for counsel was not admitted at any other point during trial, and the State’s failure to adequately instruct Dr. Tomei on the limitations of her testimony led to the conclusion that the trial court erred in failing to grant a mistrial to the defense.

In addition, the Court of Appeals found that the inadequate instruction regarding diminished capacity was also erroneous. The court pointed out that “[r]ecklessness was an essential element as to assault in the second degree, which must be proved beyond a reasonable doubt in order to convict on the felony murder charge.” The court also noted the peculiarity of reciting a jury instruction with a more serious mental state — here, knowledge — yet excluding a lesser mental state of recklessness.

Keywords: admissibility of expert opinion testimony, capacity, criminal responsibility, expert opinion testimony, expert testimony, mental illness, neuropsychology, psychosis, second-degree murder, seizure disorder, Washington.

Citation: State v. Taylor, 490 P.3d 263 (Wash. Ct. App. 2021).

This post is the 126th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.