from the Superior Court in Pima County No. CR20132518001 The
Honorable Richard D. Nichols, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By David A. Sullivan and Karen Moody, Assistant
Attorneys General, Tucson Counsel for Appellee
Fullin, Pima County Legal Defender By Joy Athena and Jeffrey
Kautenburger, Assistant Legal Defenders, Tucson Counsel for
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Brearcliffe concurred in
part and dissented in part.
ECKERSTROM, CHIEF JUDGE
Stephen Malone appeals from his convictions and sentences for
first-degree murder, aggravated assault, and two counts of
endangerment. On appeal, he contends, inter alia, that he
should have been allowed to present evidence that he had
brain damage of a type that made it more likely that he acted
impulsively, rather than with premeditation. For the
following reasons, we affirm Malone's convictions and
and Procedural Background
"We view the facts and all reasonable inferences
therefrom in the light most favorable to sustaining the
convictions." State v. Boozer, 221 Ariz. 601,
¶ 2 (App. 2009), quoting State v. Powers, 200
Ariz. 123, ¶ 2 (App. 2001). For eleven or twelve years,
Malone and A.S. were in a romantic relationship. The
relationship was tumultuous and involved frequent
altercations. On the evening of June 11, 2013, A.S. and her
sister, E.S., drove to Malone's house to return some
perfume Malone had given to A.S. Two of Malone and A.S.'s
children were in the backseat. While driving there, A.S.
spoke to Malone on the phone and E.S. heard her sister say,
"So you're going to keep threatening me . . . well,
whatever. I'm still leaving."
When they arrived at Malone's house, he approached the
car and took the perfume. Malone then asked A.S. to stay so
that his mother could see the children and asked her to exit
the car. A.S. declined and began to drive away. Malone got
into his car and followed her. He eventually passed her and
positioned his car to block her from leaving the
A.S. called Malone's mother, who suggested A.S. return to
the house. She did so and Malone, still in pursuit, pulled
his car up behind her. Malone's mother handed E.S. a bag
and told her "go, now, go." When A.S. started to
drive away, Malone's mother positioned herself in the
middle of the road and attempted to stop Malone from
following her. Malone, however, drove around his mother,
overtook A.S. and again blocked her vehicle. He exited his
car, confronted the victim, then reached into his car for a
gun and began shooting into A.S.'s car. After firing
several shots, Malone returned to his car and drove away. Two
bullets struck A.S., killing her. Malone also shot and
injured E.S. The entire episode lasted approximately five to
After a trial wherein Malone conceded that he had committed
the homicide but maintained that he did not premeditate or
deliberate the killing of his ex-girlfriend, he was convicted
as described above and sentenced to natural life in prison,
followed by consecutive prison sentences totaling 13.5 years.
This appeal followed. We have jurisdiction pursuant to A.R.S.
§§ 13-4031 and 13-4033(A)(1).
At trial, Malone presented evidence that he had a character
trait for impulsivity to rebut the state's claim that the
murder was premeditated. Malone's mother testified that
he had poor coping skills and an inability to handle
"stress and . . . emotional tension." She testified
about several events in Malone's life that demonstrated,
in her opinion, "extreme" impulsive behavior.
Malone also presented a clinical neuropsychologist to provide
expert testimony regarding his character trait for
impulsivity. The expert testified he had observed Malone and
administered psychological exams, and concluded Malone
"clearly does have a character trait for
impulsivity." The trial court, however, precluded the
expert from providing any testimony about impulsivity
"based on findings of brain damage or brain
injury," stating that such testimony would "be
encompassed by mental incapacity/diminished capacity/mental
defect." Malone now asserts the trial court improperly
precluded this evidence.
Arizona law does not recognize a defense of diminished
capacity. State v. Mott, 187 Ariz. 536, 540-41
(1997). Consequently, "evidence of a defendant's
mental disorder short of insanity . . . to negate the
mens rea element of a crime" is not allowed.
Id. at 541. A defendant may, however, introduce
evidence that he has a character trait for impulsivity as
evidence "that he did not premeditate the
homicide." State v. Christensen, 129 Ariz. 32,
35 (1981). As the state correctly notes, "the critical
inquiry in this case is determining whether the evidence
[Malone] proffered regarding his alleged brain damage is
properly characterized as evidence of diminished mental
capacity or as evidence demonstrating that [Malone] has an
impulsive personality trait." We conclude it is evidence
In Christensen, our supreme court established that
evidence of impulsivity is admissible because "[t]he
establishment of the character trait of acting without
reflection tends to establish that appellant acted
impulsively. From such a fact, the jury could have concluded
that he did not premeditate the homicide." Id.
Here, evidence that Malone suffered from a species of brain
damage that made it more difficult for him to reflect-and
therefore more likely to act impulsively-would be both
relevant and probative on the question of whether he suffered
a character trait of impulsivity. And, it would be probative
and relevant on the question of whether he acted impulsively
rather than with premeditation when he shot A.S. It would
therefore be admissible evidence under Christensen.
See 129 Ariz. at 35.
However, the precluded brain-damage testimony also can be
correctly characterized as evidence of a lesser or diminished
capacity to act with premeditation. Understood this way, it
would constitute "evidence of a defendant's mental
disorder short of insanity" offered to negate mens
rea-a species of evidence our supreme court found
inadmissible in Mott, 187 Ariz. at 540-41.
Importantly here, Mott distinguished
Christensen and explained the distinction between
admissible evidence of a character trait and inadmissible
evidence of diminished capacity. It reasoned: "The
proffered testimony [in Christensen] was not that he
was incapable, by reason of a mental defect, of
premeditating or deliberating" but rather that he had a
tendency to act impulsively. 187 Ariz. at 543-44. Read
together, Mott and Christensen establish
that while a defendant is precluded from maintaining that he
cannot reflect upon his actions (or has a lesser
capacity to do so), he may introduce evidence demonstrating
an ingrained character trait that rendered it less likely he
acted with reflection and deliberation. And, in State v.
Leteve, our supreme court has more recently reaffirmed
its holding that expert testimony, including that based on
testing, is admissible to support a defendant's claim
that he possessed a character trait of impulsivity. 237 Ariz.
516, ¶ 24 (2015).
Here, Malone did not proffer the expert testimony regarding
brain damage to prove that he was incapable of reflecting.
Rather, the results of those tests were offered to
demonstrate a brain condition that rendered it less likely
that he may have done so. Accordingly, under
Christensen and in accord with our supreme
court's clarification of that case in Mott, we
conclude the evidence was admissible to the extent offered to
corroborate the defendant's claims that he had a
character trait of impulsivity. The evidence would not have
been admissible to support a claim that Malone was
"incapable" of reflecting on, or premeditating, the
We recognize that our supreme court's opinions on the
admissibility of impulsivity evidence are nuanced. Those
cases have not squarely encountered the admissibility of
evidence that may be fairly characterized as both admissible
evidence of a character trait for impulsivity and
inadmissible evidence of a mental defect. But in
Christensen, our supreme court did provide a
workable standard for distinguishing admissible from
inadmissible evidence. 129 Ariz. at 34-35. That standard,
which itself allows evidence for one purpose (to show that a
defendant had an ingrained tendency to act a certain way) but
not another (to show that a defendant was incapable of
premeditating an offense), aptly and logically resolves the
problem here. See id.
Although our dissenting colleague maintains our purpose-
based analysis contradicts our supreme court's reasoning
in Leteve, that case reaffirmed that the results of
an expert's tests were admissible under Christensen.
Leteve, 237 Ariz. 516, ¶ 24. And, in its dicta
distinguishing between types of evidence relating to
behavioral tendencies, its reasoning does not purport to
address how it would treat evidence that could be
characterized as both admissible and inadmissible.
Id. ¶ 21.
Our fidelity to the Mott standard also conforms with
our customary criteria in assessing the admissibility of
evidence. It is a long-standing rule that "[e]vidence
may be clearly inadmissible for one purpose yet the same
evidence may be proper and admissible for some other
legitimate purpose." Leigh v. Swartz, 74 Ariz.
108, 114 (1952). And, our courts have long depended on this
logic in assessing the admissibility of other crimes, wrongs,
or acts evidence, see Ariz. R. Evid. 404(b) (such
evidence inadmissible to show criminal propensity but
admissible for other purposes), and ...