State v. Malone

          Appeal from the Superior Court in Pima County, The Honorable Richard D. Nichols, Judge, No. CR20132518-001. AFFIRMED

         Opinion of the Court of Appeals, Division Two, 245 Ariz. 103');">245 Ariz. 103, 425 P.3d 592 (App. 2018). VACATED

         Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Michael T. O’Toole (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

         James L. Fullin, Pima County Legal Defender, Jeffrey Kautenburger (argued), Assistant Legal Defender, Pima County Legal Defender’s Office, Tucson, Attorneys for Stephen Jay Malone Jr.

         David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

          JUSTICE TIMMER authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined. CHIEF JUSTICE BALES dissented in part and concurred in the judgment.

         OPINION

          TIMMER, JUSTICE:

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         [¶1] Although a defendant cannot use evidence of a mental disease or defect to show he did not form a crime’s requisite mental state (mens rea), see State v. Mott, 187 Ariz. 536, 541, 931 P.2d 1046, 1051 (1997); State v. Schantz, 98 Ariz. 200, 212-13, 403 P.2d 521, 529-30 (1965), he may use evidence of a character trait for impulsivity to cast doubt on the existence of premeditation, see State v. Christensen, 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981), which forms part of the mens rea for first degree murder under A.R.S. § 13-1105(A)(1), see State v. Boyston, 231 Ariz. 539, 549 ¶ 50, 298 P.3d 887, 897 (2013). Here, we decide whether a defendant who introduces expert evidence of a character trait for impulsivity to challenge premeditation may also introduce evidence of brain damage to corroborate the existence of that trait. We hold he cannot.

          BACKGROUND

         [¶2] Stephen Jay Malone Jr. and A.S. lived together in a tumultuous romantic relationship. On June 9, 2013, A.S. left Malone, moving from their home with their three children. Two evenings later, A.S., along with her sister, E.S., and two of the children, drove to the home to return a gift to Malone. On the way, A.S. spoke to Malone by phone and told him that despite his threats, she was leaving him. When A.S. arrived, Malone came up to the car, took the returned gift, and asked her to stay so his mother, who was in the house, could see the children. A.S. refused and drove away; Malone quickly followed in another car. After a five-to-six-minute chase, during which Malone blocked A.S.’s car twice, Malone jumped from his car and fired multiple gunshots into A.S.’s car, killing A.S. and injuring E.S.

         [¶3] The State indicted Malone on several charges, including premeditated first degree murder, see § 13-1105(A)(1), the only charge at issue here. Before trial, the State moved to preclude expert testimony from psychologist James Sullivan, Ph.D, that Malone’s performance on neuropsychological assessment tests was "consistent with significant and permanent diffuse brain damage," meaning Malone was "more likely to have a character trait for impulsivity." (Dr. Sullivan did not obtain an MRI scan or like evidence to bolster his assessment that Malone had brain damage.) While acknowledging that Christensen permitted Dr. Sullivan to testify that Malone had a character trait for impulsivity, the State argued that Mott precluded evidence that brain damage made the existence of this trait more likely. Over defense objection, the trial court granted the motion and precluded Dr. Sullivan from offering an opinion at trial regarding brain damage.

         [¶4] At trial, Malone rebutted the State’s allegation that he premeditated A.S.’s murder by introducing evidence suggesting he had acted impulsively. To that end, Dr. Sullivan testified that, based on his observations and psychological tests, Malone had a character trait for impulsivity. Dr. Sullivan explained that people with this character trait are compromised in their ability to think through the consequences of their actions before acting, although they are capable of doing so. The State did not contest that Malone had a character trait for impulsivity

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but nevertheless maintained he premeditated A.S.’s murder. The jury agreed and found Malone guilty as charged.

         [¶5] In a split decision, the court of appeals concluded the trial court erred by precluding Dr. Sullivan’s testimony concerning brain damage. State v. Malone, 245 Ariz. 103');">245 Ariz. 103, 107 ¶ 16, 425 P.3d 592, 596 (App. 2018). The court nevertheless found the error harmless and therefore affirmed. Id. at 108-09 ¶ 22, 425 P.3d at 597-98.

         [¶6] We granted Malone’s petition for review (challenging harmless error) and the State’s cross-petition for review (challenging error) because they involve a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5 of the Arizona Constitution.

          DISCUSSION

          I.

         [¶7] We review the trial court’s preclusion of Dr. Sullivan’s brain-damage testimony for an abuse of discretion. See State v. Leteve, 237 Ariz. 516, 524 ¶ 18, 354 P.3d 393, 401 (2015). "An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion." State v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006).

          II.

         [¶8] Before addressing the admissibility of Dr. Sullivan’s brain-damage testimony, we set forth general legal principles underlying the issue. First, apart from insanity, Arizona does not permit a defendant to introduce evidence of a mental disease or defect as either an affirmative defense or to negate the mens rea element of a crime. See Mott, 187 Ariz. at 540-41, 931 P.2d at 1050-51; Schantz, 98 Ariz. at 212, 403 P.2d at 529; see also A.R.S. § 13-502(A) ("A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong."). Thus, for example, in Mott this Court held that the trial court properly excluded evidence that the defendant suffered from battered-woman syndrome because it was offered to negate the mens rea element for child abuse (knowledge or intent). 187 Ariz. at 539, 544-45, 931 P.2d at 1054-54. And in Schantz we held that the trial court properly refused a jury instruction that would have permitted the jury to consider expert evidence that the defendant killed his wife "without his deliberate volitional conscious awareness" to contest the mens rea element for second degree murder (malice aforethought). 98 Ariz. at 204-06, 213, 403 P.2d at 523-24, 529.

         [¶9] Using mental disease or defect evidence to refute the mens rea element of a crime is commonly referred to as a "diminished capacity" or "diminished responsibility" defense. Mott, 187 Ariz. at 540, 931 P.2d at 1050; seeLeteve, 237 Ariz. at 524 ¶ 20, 354 P.3d at 401. Such evidence does not provide a complete defense to a crime or excuse it but "establish[es], by negating the requisite intent for a higher degree of the offense, that in fact a lesser degree of the offense was committed." McCarthy v. State,372 A.2d 180, 182 (Del. 1977) (quoting C.T. Drechsler, Annotation, Mental or Emotional Condition as Diminishing Responsibility for Crime, 22 A.L.R.3d 1228, 1238 ...