from the Superior Court in Pima County, The Honorable Richard
D. Nichols, Judge, No. CR20132518-001. AFFIRMED
of the Court of Appeals, Division Two, 245 Ariz. 103');">245 Ariz. 103, 425
P.3d 592 (App. 2018). VACATED
Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Michael T. OToole (argued), Assistant Attorney
General, Phoenix, Attorneys for State of Arizona
L. Fullin, Pima County Legal Defender, Jeffrey Kautenburger
(argued), Assistant Legal Defender, Pima County Legal
Defenders Office, Tucson, Attorneys for Stephen Jay Malone
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.
Although a defendant cannot use evidence of a mental disease
or defect to show he did not form a crimes 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.
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.
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 Malones 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.
At trial, Malone rebutted the States 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
but nevertheless maintained he premeditated A.S.s murder.
The jury agreed and found Malone guilty as charged.
In a split decision, the court of appeals concluded the trial
court erred by precluding Dr. Sullivans 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.
We granted Malones petition for review (challenging harmless
error) and the States 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.
We review the trial courts preclusion of Dr. Sullivans
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).
Before addressing the admissibility of Dr. Sullivans
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.
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