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State v. Malone

Court of Appeals of Arizona, Second Division

July 24, 2018

The State of Arizona, Appellee,
Stephen Jay Malone Jr., Appellant.

          Appeal from the Superior Court in Pima County No. CR20132518001 The Honorable Richard D. Nichols, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By David A. Sullivan and Karen Moody, Assistant Attorneys General, Tucson Counsel for Appellee

          James Fullin, Pima County Legal Defender By Joy Athena and Jeffrey Kautenburger, Assistant Legal Defenders, Tucson Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred in part and dissented in part.



         ¶1 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 sentences.

         Factual and Procedural Background

         ¶2 "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."

         ¶3 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 neighborhood.

         ¶4 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 six minutes.

         ¶5 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).

         Evidence of Impulsivity

         ¶6 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.

         ¶7 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 of both.

         ¶8 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.[1] 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.

         ¶9 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.

         ¶10 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).

         ¶11 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 homicide.

         ¶12 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.

         ¶13 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.

         ¶14 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 ...

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