State v. Mott

P.2d Arizona, Appellee/Cross- STATE

Appellant, MOTT, Appellant/Cross- Shelly Kay

Appellee. No. CR-95-0274-PR. Arizona, Court

En Banc. 16, 1997. Jan. Woods, Attorney by Paul J.

Grant General Anderson, Phoenix, for McMurdie and Jon G. Arizona. State of Kettlewell, County A. Pima Public Susan Leto, Tucson, by Frank P. Defender Shelly Kay Mott.

OPINION

TOCI, Judge*. Chief Vice (“defendant”) Shelly Kay Mott was con- victed of two counts of child abuse and first- * Const, Toci, Philip Judge pate pursuant E. Vice of the Arizona matter art. Chief Appeals designated by VI, Court of the Chief § 3. partici- Justice of the Arizona Court to hospital. Each taken to a

degree precluded murder. The trial court Sheena should be time, Near refused. introducing expert psycho- defendant from woman, logical testimony that aas battered next morn- approximately At 8:00 a.m. the requisite she was unable to form the friend, ing, to the home of a defendant went necessary for the commission Scott, crying Erin that Sheena would appeals, offenses. The court of divi- up. told what had wake Defendant Scott Christensen, two, relying on sion State why allegedly happened. asked defen- Scott (1981), 628 P.2d 580 and State v. sooner, sought help and defen- dant had not 140 Ariz. 681 P.2d 1368 that the replied dant that she was worried the trial court and held that reversed from her be- authorities would take Sheena challenge an ele- evidence was admissible to Defendant went cause of Sheena’s bruises. Mott, ment of the crime. State v. home and returned to Scott’s with Sheena. (App.1995). head Scott noticed that the back Sheena’s soft, very bruising on there was some proffered hold that the evidence was We face, exhibiting spasms. and she was attempt inadmissible as an defen- called 911. Scott capacity. dant’s diminished vacate the We hospital, Upon admission to the Furthermore, Sheena’s appeals’ opinion. court of we being diagnosed Dr. Richard Lemen her as per- overrule Gonzales to the extent that it extreme trau- cardiopulmonary arrest with mitted evidence of diminished as a ma, Dr. Lemen found a non-accidental. charged. defense to the crime Because we brain, resulting large hemorrhage appeals, de- reverse the court we decide right brain. the death of the side of Sheena’s remaining fendant’s claims of error and af- severity injury, he noted Because of the firm trial court. hopeless chances of survival as and Sheena’s that the cause was non-accidental. Sheena I. AND PROCEDURAL FACTS January died BACKGROUND trial, At Dr. Lemen stated Sheena’s January approximately 9:00 On falling off injury could not have resulted from young p.m., defendant left her two children numerous bruis- a toilet seat. He also found boyfriend, Near. she with her Vincent When abrasions, including cigarette es and burn later, than an hour she returned home less fingers. marks between Dr. James Sheena’s standing found Near over her two-and-one- Dunn, emergency physician, room another Sheena, half-year-old daughter, fanning her injury re- that Sheena’s would have testified with a towel. Near told defendant feet, quired a fall in excess of twelve had fallen off the toilet and hit her Sheena accident, major or re- equivalent of a car head. hard peated head with a blows Sheena’s Binkewicz, pediatrician, object. Dr. Anna a Gnatowsky, p.m., At Hank a former 10:15 “branding” burn on the bottom found paramedic, stopped by home and defendant’s foot, whip marks on her a series of Sheena’s reading book and found Near a first aid buttocks, bruising upper thigh and and pam- sitting by some child-care defendant body. her head Baby’s Safety” “Your phlets titled “Your police, ad- Gnatowsky In an interview with defendant Baby Crying.” Near told that, the few months before fallen off the toilet. Gna- mitted over that Sheena had death, five she had confronted Near towsky responded go should to a Sheena’s Sheena bruising on De- de- or six times about Sheena. hospital and offered to take her. Near offer, had told her that Gnatowsky into fendant said that Near clined the went that she did not be- found Sheena had fallen but Sheena’s room to check on her. He him. that she had been having sleeping, her lieve She stated that she was trouble she did not trying to leave Near because eyes fluttering, and her hands were were report- get hurt. She never dreaming. spoke if He want Sheena moving as she were she did not want her, respond. told ed Near’s abuse because she did not He but trouble, dressed Shee- get him to and she more before he left that twice bruising. na to ny hide Defendant also ad- murder. The court ordered sentences on concurrently mitted that she did not take Sheena the latter counts to run two hospital night injury other, of her fatal consecutively because with each to Count anyone she did want to see the bruises. Two. The trial court credited defendant with days presentence incarceration and County grand jury The Pinal indicted de- felony pay ordered her to assessment $300 January fendant on 9 on counts of two child appealed fee.1 Defendant to the court of likely produce abuse under circumstances appeals. bodily injury, death or serious class 2 felo- nies, first-degree and on one count of mur- appeals The court of reversed defendant’s der, 1 felony. a class Defendant disclosed as conviction, finding pre that the trial court’s defense that she “lacked the act proffered testimony clusion of defendant’s Syndrome.” due to the Battered Woman regarding syndrome battered-woman violat preclude state moved to the use of the Mott, 191, process. ed due State v. 183 Ariz. syndrome defense, battered-woman as a 195, 1221, 1225(App.1995). Relying 901 P.2d claiming that such a defense was admis- on Christensen and the court held sible in self-defense cases in which the victim Karp’s testimony that Dr. on the character had battered the defendant. Defendant then presence traits of battered women and the testimony filed a motion to admit the of Dr. provided probative those traits in defendant Cheryl Ph.D., Karp, to that defendant that, jury, negat if believed was unable to requisite form the intent to knowledge ed the element of or intent. knowingly have acted intentionally. or Mott, 194, 183 Ariz. at 901 P.2d at 1224. It initially

The trial court ordered that Dr. precluding testimony found that denied Karp testify regarding could opinions her opportunity present defendant the to essen defendant’s “mental make-up and emotional tial evidence in her defense. Id. at 901 capabilities.” Upon hearing Karp Dr. Consequently, P.2d at 1225. the court of testify trial, however, court appeals trial found reversed and remanded for a new testimony regarding the for, battered- petitioned trial. Id. The state and we syndrome woman attempt was an to granted, establish court. review this capacity a diminished defense. The court

ruled the was inadmissible. II. DISCUSSION Two, upon On Count based the defendant’s Expert Testimony A. leaving Near, jury Sheena with found guilty of the lesser-included of- expert testimony Defendant offered the person fense of child abuse of a under fifteen Karp challenge Dr. to the element of knowl- under likely circumstances other than those edge or intent on the child abuse counts. produce bodily injury. to death or serious proof Defendant made an offer of before trial Three, On Count based on the failure to take regarding Karp’s to the trial court Dr. testi- hospital, jury Sheena to the found defen- mony. Additionally, the trial court allowed guilty knowing dant or intentional child testify mitigation hearing the doctor to at the likely produce abuse to death. On Count after the trial to make a further record of the Four, murder, felony returned a testimony. proffered guilty. verdict of Karp had concluded that defendant The trial court being sentenced defendant was a battered woman and that presumptive years to the term of ability four battered woman was relevant to her Two, mitigated years Count term of protect According twelve her children. to the Three, doctor, thirty-five years on Count with a battered woman a “traumatic forms possibility parole first-degree out felo- bond” to her batterer. She does not feel that sentencing fingerprint, 1. The fee was included in the court's sentence virtue of her we find no 26.9, fingerprint order to which defendant affixed her violation of Rule Arizona Rules of Criminal (defendant transcripts present but was not included in the Procedure must be at sen- Powers, sentencing hearing. tencing). ac- Because defendant See State v. (1987). knowledged presence imposition her at the 742 P.2d (3rd denied, environment; Cir.1987), escape hope- she can she is cert. Furthermore, depressed. (1988). less and the bat- danger protect tered woman cannot sense distinguishable from an af Such evidence is danger. others from She is inclined to be- excuses, mitigates, or firmative defense that lieve what the batterer tells her and hewill culpability moral due to lessens defendant’s protect Karp him. Dr. concluded that psychological impairment. States his United abused, history being defendant’s con- (11th Cameron, F.2d 1062-63 junction intelligence,2 pro- with her limited Fazzini, Cir.1990); United States v. 871 F.2d being hibited her from to take able decide (7th denied, Cir.1989), cert. 493 U.S. trial, hospital. to the Prior to Sheena defen- 1173, 107 L.Ed.2d 1075 110 S.Ct. dant’s counsel offered “ex- plain jury why lacked the [defendant] defy [Near.]” however, legislature, declined The Arizona issue, adopt the defense of diminished As a threshold the state claims any presented opportunity that defendant has waived claim of error to do when with she because withdrew battered-woman so. Arizona’s criminal code was based on the syndrome Though defense. defendant with Willoughby, Model Penal Code. See State v. defense, syndrome contin drew as a she 1319, 1327 argue syndrome ued to that evidence of the of the Model Penal Code The 1962 version history being and her own of abused were that the “[e]vidence allowed admission decision-making pro relevant evidence of her defendant suffered from a mental disease or inability requisite cess and her to form the defect ... whenever it relevant to [wa]s mental for state offenses. Con not that the defendant did or did sequently, we find that defendant has not of mind that is an element of the a state waived her claim that the trial court erred 4.02(1) (1962). § offense.” Model Penal Code precluding proffered testimony.3 recognition in of the This section was written purpose offering Karp’s Defendant’s in Dr. “degrees existence of of mental disease or testimony to demonstrate that defendant required defect that fall short of that for forming capable requisite was not invoking irresponsibility, defense Thus, knowledge or intent.4 may put tending in evidence as to history being the evidence of defendant’s that the defendant lacked the show ability battered and of her limited intellectual required mens rea for the commission of the was not offered as a defense to excuse her charged.” offense Model Penal Code and negate crimes but rather as evidence to 4.02(1) § cmt. 2 The Commentaries mens rea of the crime. element Courts have legislature’s adopt not to this section decision expert psychiatric “referred to the use of rejec Penal Code evidences its Model negate evidence to mens rea as a ‘diminished testimony psychological the use of tion of capacity’ responsibility’ or ‘diminished de- Pohlot, crime. challenge fense.” States v. 827 F.2d the mens rea element of a United trial, Karp testify imminency bodily injury. permitted 2. serious Ex At of death or 412, (Ala.1992); Haney, length regarding defendant’s limited intellectual Parte 603 So.2d 414 Koss, 213, 970, Karp abilities. Dr. testified that defendant had a State v. 49 Ohio St.3d 551 N.E.2d State, 1, 78, (Oh. 1990); I.Q. of which is on the Bechtel v. 840 P.2d verbal “borderline case, however, 1992). mentally range intelligence." (Okla.Crim.App. defective Conse- In this quently, possessed "extremely limited defendant did not offer the evidence for these learning Karp purposes and we need not address the admissi abilities” and was disabled. Dr. bility battered-woman-syndrome in further testified that defendant was "concrete." This meant that defendant was unable to make self-defense cases. complex decisions or to abstract solutions from one situation to the next. arguments, Contrary to one of the dissent’s attempt defendant did offer this evidence in an syndrome capacity did not have the 3. Evidence of battered-woman is ordi- demonstrate that she narily requisite It been form the mental state. She made this offered in self-defense cases. has counsel, claim, assessing through pretrial both at a used to aid the the reasonable- hearing apprehension and at trial. ness of the defendant’s and the Moreover, reject this court considered and could consider the defendant’s mental defi- ed defense of ciencies, diminished which did not rise to the level of Schantz, 200, State v. 98 Ariz. 403 P.2d 521 insanity, determining pre- the elements of denied, 1015, cert. 470, 86 S.Ct. meditation. Id. at 66 S.Ct. at 1321-22. 628, There, we rec Court noted that the law the ognized legislature that the responsible for permit District of Columbia did not such an promulgating the criminal law and that it instruction. Id. at 66 S.Ct. at 1322. recognized “has not a disease or defect of that, contrary The Court stated to the defen- mind in which volition does not exist ... as a request, dant’s it would not “force” the Dis- prosecution defense to a for [a crime.]” Id. trict adopt requirement of Columbia to Furthermore, 403 P.2d at 529. we criminal present defendants be allowed to found that this Court does not have the deficiency evidence of a mental to determine authority adopt diminished premeditation elements of and delibera- 212-13, defense. 98 Ariz. at 403 P.2d at 529. tion. Id. at 66 S.Ct. at 1325. legislature Because the pro has not The Court went on to state: vided capacity defense, for a diminished we express opinion We upon no whether the consistently have since psy refused to allow theory petitioner for which contends chiatric negate specific intent. should or should not be made the law of Ramos, State v. 133 Ariz. 648 P.2d the District of Columbia. Such a radical (1982); Laffoon, State v. departure concepts from common law (1980); 610 P.2d State v. subject properly more for the exercise of Briggs, legislative power or at least the discre- (1975). Instead, legislature provided has tion of the courts of the District. The M’Naghten test “as the sole standard for administration of criminal law matters Ramos, criminal responsibility.” 133 Ariz. at Constitutional limitations affected 6, 648 P.2d at 121.5 provides: This test general peculiarly federal law is person A responsible is not for criminal local concern. conduct insanity reason of if at the time added). Thus, Id. (emphasis Fisher stands person such conduct suffering proposition for the legislatures, that state from such a mental disease or defect as not constitution, violating without may pre- to know quality the nature and of the act offering clude defendants from evidence of or, person know, if such did that such psychological mental and deficiencies to chal- person did not know that what he was lenge the elements of a crime. doing wrong. recently, More several of the federal cir 13-502(A). § A.R.S. Consequently, Arizona cuits held that “a state is not constitu does not allow evidence of a men- defendant’s tionally compelled recognize the doctrine tal disorder insanity short of either as an capacity may diminished and hence a state affirmative defense negate or to the mens expert testimony exclude pur offered for the rea element of a crime. pose establishing that a criminal defendant contend, Defendant and the dissent specific lacked the to form a intent.” however, precluding Israel, 1124, a defendant from Muench v. 715 F.2d 1144-45 (7th introducing psychological testimony Cir.1983), to chal cert. denied sub. nom Worth lenge Israel, 1228, mens rea element of a ing 2682, crime vio v. 467 U.S. 104 S.Ct. process. lates due (1984); The United States Su 81 L.Ed.2d 878 see also Haas v. preme question Abrahamson, 384, (7th Court addressed this 910 F.2d 398 Cir. States, 463, 1990); Blackburn, Fisher v. United 672, 328 U.S. 66 Welcome v. 793 F.2d 1318, (1946). (5th There, Cir.1986), denied, S.Ct. 90 L.Ed. 1382 674 cert. 481 U.S. 1042, 1985, trial court (1987); refused to instruct the that it 107 95 S.Ct. L.Ed.2d 825 1994, Voluntary however, negating culpable legislature intoxication has removed it as knowledge mental state of or intent was at one any requisite a "defense criminal act or time an available defense. Ariz.Rev.Stat.Ann. § (Supp.1995). of mind.” A.R.S. 13-503 ("A.R.S.”) 2, § January 13-503 As of 542 in- “would 1573, 1581 such evidence ing states to allow Wainwright, 738 F.2d

Campbell v. in the common (11th denied, 1126, change Cir.1984), a fundamental 475 U.S. volve cert. (1986); at theory responsibility.” 328 U.S. law 106 S.Ct. Arizona, 1325; (referring also id. F.2d 1138 at see v. 479 66 S.Ct. Wahrlich (9th denied, departure Cir.), radical change 414 U.S. 94 as “a cert. to such Furthermore, concepts”). law Ct. 38 L.Ed.2d from common S. jurisdictions6 do not many still the fact that Egelhoff, v. relies on Montana The dissent capacity evidence allow the use of diminished — U.S. -, 135 L.Ed.2d 116 S.Ct. worthy of “plainly rea is negate mens precluding a defen argue rejection determining considering in whether un offering that he was dant from process.” due doctrine offends requisite intent because of to form the able Muench, at 1142. 715 F.2d Egelhoff, mental defect is unconstitutional. constitutionality however, did not address federal argues that several The dissent precluding evidence of diminished pre- considered “the court cases have circuit of a crime. challenge the mens rea element al- ease” and have issue raised cise Instead, constitutionality of it resolved the rebutting of evidence lowed the introduction offering evi precluding a defendant from cases, The cited mens rea. the element of negate voluntary intoxication to dence of his however, question whether address the of an offense. Id. the mens rea element Congress intended to abolish United States -, court concluded at 2016. The S.Ct. by the In- capacity defense the diminished voluntary in barring such evidence of 1984,18 Act of U.S.C. sanity Defense Reform not violate the constitution. toxication does 1061; Cameron, Unit- § 907 F.2d 17. See Thus, at-, Egelhoff at 2024. Id. Bartlett, F.2d 1079-81 ed States argument. support to the dissent’s lends little Twine, (8th Cir.1988); United States Fisher, Furthermore, Court (9th Pohlot, Cir.1988); F.2d constitutionality precluding upheld the not address the These cases do F.2d at 897. testi offering psychological defendant from constitutionality precluding a defendant time as mony rea. such to rebut mens Until ca- introducing of diminished Fisher, it resolves the overrules Court challenge the element of pacity to raised defendant and process due issue support Consequently, they do not intent. the dissent. process re- that due the dissent’s assertion regulation Additionally, for a state’s admit evidence of quires Arizona to negate the Due rea. procedures abnormality to violate mens of its criminal Clause, prin ] some “offend[ Process it must Furthermore, most passing we note justice rooted in the traditions ciple so recognize explicitly courts that of the federal as people as to be ranked conscience of our abnormality is admis- of mental that evidence York, New 432 Patterson v. fundamental.” rea, prohibit the of mens on the issue sible 197, 201-02, 53 97 S.Ct. testimony defendant offered type of (1977) v. (quoting Speiser 281 L.Ed.2d 889; Pohlot, Camer- 827 F.2d this case. See 1332, Randall, 513, 523, 78 S.Ct. 357 U.S. Twine, on, 1051; 853 F.2d but see F.2d 907 (1958)). prac 1340-41, (mental admissible on defect 676 offering di barring from tice of defendants capacity possessed mental defendant whether negate the capacity evidence to minished intent). specific form crime does not violate element of a mens rea Cameron, claimed that defendant contrary, In as principle. To the a fundamental “ incapable Fisher, ‘rendered requir- schizophrenia noted Court 109, App.3d 1139, (Del. McCray, 658 State, 103 Ohio v. 1143-44 State A.2d 6. Bates v. 386 State, State, (Fla. 1076, (1995); 1978); 886 820 Thomas v. 538 So.2d 1082 Chestnut v. N.E.2d 630, State, 1989); Ga.App. 388, Stamper 317 v. (Tex.App.1994); v. 170 Dennis S.W.2d 391 State, 874, (1984); 682, 475 Commonwealth, 707, Cardine v. S.E.2d 324 S.E.2d 228 Va. (Ind.1985); Thompson, State v. State, N.E.2d (1985); Price (La.App.1995); State So.2d (Wyo.1991). (Minn.1982); Bouwman, 328 N.W.2d 704-05 Pohlot, forming specific necessary (quoting intent com- lack Id. of mens rea.’” ” 906). charged.’ mit the crimes 827 F.2d F.2d at 1067. argued jury She that the should have been evaluating In criminal re- a defendant’s allowed to consider evidence of her mental sponsibility, the federal courts look at a de- determining possessed defect whether she Pohlot, fendant’s conscious awareness. See capacity the mental to intend to distribute generally 827 F.2d. at 906. “Mens rea drugs. rejecting argument, Id. by any showing purposeful satisfied ... court observed that when a defendant claims activity, regardless psychological ori- of its psychiatric to have evidence that she was gins.” “[PJurposefid activity is Id. at 904. “incapable” forming necessary the intent Here, requires.” all the law Id. at 907. charged, for the crime “most often that de- Karp’s was offered to establish speaking incapacity fendant is of an to reflect that, intelligence because her limited produced or control the behaviors that history, capable abusive ‘psy- criminal conduct. Such evidence is not forming required intent negate specific chiatric evidence to intent’ knowing or intentional This child abuse. and should not be Cameron, admitted.” Id. at 1066. not, according to Pohlot and otherwise, Congress The court noted that as legally acceptable theory of lack of mens rea. feared, insanity “‘the defense im- [will be] capable recognizing The defendant was properly guise resurrected in ... “di- injured that her child was and that she need- responsibility” similarly minished or some Indeed, ed medical attention. when defen- asserted state of mind which would serve to unconscious, dant found Sheena she was door, open excuse the offense and once help. aware that Sheena needed medical De- again, needlessly confusing psychiatric tes- fendant stated that she was confused and timony.’” 98-225, (quoting S.Rep. Id. No. hospital that she did not take Sheena to the Cong.2d (1984), reprinted 98th Sess. 229 in for fear that someone would see Sheena’s Cong. News, 3182, 1984 U.S.Code & Ad. bruises and that if Near would harm her she 3411). any help took action to ac- the child. Her clearly purposeful, satisfying tions were thus Similarly, recognized the Third Circuit has requirement. the mens rea Most federal “only extraordinary in the most circum- not, theory courts would under the that de- stances could actually a defendant lack the rea, fendant lacked mens excuse the defen- capacity to form normally mens rea as it is simply dant’s conscious failure to act because understood in American law. Even the most she was motivated unconscious influences psychiatrically ill have the to form product genes that were the of her or her intentions, and the usually existence of intent Pohlot, environment. See 827 F.2d at 906. Pohlot, any satisfies requirement.” mens rea cases, We now turn to the Arizona Chris (citation omitted). 827 F.2d at 903 Commen- tensen, 129 Ariz. at 628 P.2d at argued tators have “permitting 140 Ariz. at 681 P.2d at arguments about a defendant’s upon by relied defendant and the court of to form mens rea distracts and confuses the appeals support argument as for the that due focusing presence on the actual process requires the trial court to admit de absence of mens rea.” Id. at 903-04. “Be- proffered testimony. fendant’s As we have (1) psychiatric only cause rarely evidence will above, however, precluding concluded intent, (2) negate specific presents an inher- testimony process. does not violate due danger jury’s ent that it will distract the [sic] Moreover, distinguishable, Christensen is focusing presence from on the actual or ab- wrongly and Gonzales is decided. rea, (3) sence of ‘may easily mens slide Christensen, usage into opens up jury wider to In this court held that justifica- challenge theories defense more akin to premeditation, the element of tion,’” Cameron, (quoting psychology 907 F.2d at 1067 expert testify could that the de- Pohlot, 904-05), impulsively 827 F.2d at such evidence is fendant reacted to stress. Chris- tensen, 34-35, inadmissible in the federal courts unless it 129 Ariz. at at 628 P.2d 582- “‘support legally would acceptable theory 83. We found that the trial court erred crime,7 charged it excluding proffered testimony requisite it mental state of a because in prevented offering incorrect. To convict the defendant the defendant from evi- jury imprisonment, “the dispute charge of unlawful dence to an element of the Gonzales 36, doubt that against beyond him. Id. at P.2d at 584. The had to find a reasonable limited, however, in or of the holding was the defendant was aware belief in the nature of expert testify specifically could not his actions or omissions were whether acting impulsively victim’s] the defendant was at the a restriction on movements.” [the 35-36, time of the homicide. Id. at 628 P.2d found that Id. at 681 P.2d at 1371. We at 583-84. the defendant’s proffered evidence of probative mental condition was of his distinguishable from the Christensen is failing and that the trial court erred present case because the evidence offered at P.2d at 1372. to admit it. Id. We the defendant that case was not evidence however, neglected recognize, that the evi- Rather, capacity. of his diminished mental testimony essentially expert dence on was merely the defendant offered evidence about cognitive ability to form the the defendant’s attempted He his behavioral tendencies. such, requisite mental state. As it was evi- possessed show that he a character trait of capacity and inadmissi- dence of diminished acting reflexively response to stress. Id. Schantz, P.2d ble under 98 Ariz. at proffered at 628 P.2d at 582. The testi- Accordingly, at 521. we overrule Gonzales mony incapable, by not that he was of a defen- to the extent it allowed evidence defect, premeditating reason of a mental capacity as a de- dant’s diminished mental that, deliberating he had a but because charged to a crime. fense tendency impulsively, pre- to act he did not meditate the homicide. Because he was not the defen The dissent asserts that because offering capacity, evidence of his diminished attempting argue the affir dant was not relating of a trait to his character capacity as an mative defense of diminished premeditation, lack of the defendant was not trial responsibility, excuse for criminal precluded presenting expert testi- precluded court should not have mony. prevented her from that her mental condition specific dis acting with criminal intent. We hand, a defen- other notes, Karp agree. Dr. As the dissent kidnap- dant with sexual assault and jury provided with information that ping attempted testimony to introduce of his fear, psychological trau intelligence, low capacity. diminished mental 140 Ariz. at resulting ma from abuse defen affected expert at He testimo- 681 P.2d 1369. offered capacity make the decision to take dant’s ny intelligence probable that his low hospital. to the Dissent at 35. her child organic damage ability affected his brain course, is, responsibility. diminished This reason, to that he “did not and could show previously “rejected theory haveWe not have the intent to commit the responsibility allows evi diminished which jury assessing rape,” and to aid the credi- defect, mental disease or not consti dence of 350-51, bility. P.2d at 1369-70 Id. ad tuting insanity M’Naghten, under to be added). (emphasis the trial We held that purpose negating criminal mitted for the excluding proffered court erred in testi- Laffoon, intent.” State mony it relevant to the defen- because was 1045, 1047 presence” provided dant’s “mere defense and information essential with Karp’s testimony offered to credibility. Id. at assessment incapac that defendant’s mental demonstrate P.2d ity negated specific intent. Her purpose. The for this the extent that held that ex- was not admissible To Gonzales testimony meet the standards of the pert testimony regarding men- did not a defendant’s responsibility challenge the one test for criminal tal is admissible to —the credibility finding jury assessing as a ground the trial the defendant’s 7. An alternative for that 350, expert testimony 140 Ariz. at 681 P.2d at precluding the witness. court erred in testimony have aided the was that such would

545 404(b) states, M’Naghten test —that Arizona does follow. acts. Rule “Evidence of other Furthermore, adopted crimes, if we the defendant’s to wrongs, or acts is not admissible position expert testimony and allowed such person of to the character in order negate intent, as this the result conformity acted in show that he therewith. be, Schantz, compel as we said in however, may, It be admissible for other juries many upon society “release[ ] dan- motive, purposes, proof as opportuni- such of intent____” gerous criminals obviously who should be ty, The [or] trial court found placed Accordingly, under confinement.” we prior acts admissible to show motive were pre- hold that trial court did not err and as credibility rebuttal to defendant’s Karp’s cluding regarding proffered testimony regarding battered-wom- syndrome. Consequently, battered-woman syndrome. finding an Because the court’s appeals’ the court of we vacate decision. probative that the evidence was on defen- supported by dant’s is the relation- motive B. Evidence of Prior Bad Acts ship theory the evidence of between and the case, Defendant claims that the trial court erred we do not state’s consider the other admitting evidence prior grounds. prior of her acts The bad two acts demonstrated 404(b), of Rule violation Arizona Rules of of concern or defendant’s lack actual dislike The presented Evidence. evidence child, was reasonably for her which could be con- daughter defendant’s relations with her one strued for the as a motive offenses. years prior one-and-a-half incident. Second, the evidence of defendant’s (1) was evidence left defendant prior acts was relevant to the issues at trial. with her age Sheena in-laws from two 404(b) context, “In the Rule similar act evi until approximately she months two jury if dence is relevant can reason (2) old; years (3) child; struck the said she ably conclude that act occurred dead; hated Sheena wished she were the defendant the actor.” v. Huddleston (4) and was an outgoing, expressive individu- States, 681, 689, United 485 U.S. 108 S.Ct. up al who could stand for herself. We find (1988) 1496, 1501, L.Ed.2d (adopted 99 771 trial court’s admission this evi- Atwood, 638, 655); 171 Ariz. at 832 P.2d at not an dence was abuse of discretion. 104(b) see (relevancy also Ariz.R.Evid. condi We review a trial court’s admission fact). tioned We find that the rea prior evidence bad Rule acts under sonably have concluded could that defendant 404(b) for abuse of discretion. v. Rob State alleged acts. committed the inson, 51, 56, 853, 165 Ariz. 796 P.2d Third, potential prejudice for unfair denied, (1990), 1110, cert. 498 U.S. S.Ct. presented by prior acts must not sub- 1107, 112 L.Ed.2d cert. denied sub stantially outweigh probative its value. Rule Washington Arizona, nom. v. 498 U.S. 403. The state claims that has (1991). S.Ct. L.Ed.2d 1195 To any prejudice by failing waived claim prior acts, admit bad the trial urge it in the trial court. Review of the court must find that the evidence admitted is record, however, shows that defendant did purpose 404(b), proper for a under Rule object ground prejudice, on the but the under proba relevant Rule and that its explicitly trial court failed to address outweighed substantially tive value balancing. necessary potential prejudice for unfair Rule under give appropriate 403. The court must an The trial court should exclude rele limiting requested instruction if under Rule if unfairly prejudicial. vant it is Atwood, 105. State prejudice Unfair if Ariz.R.Evid. 403. results denied, P.2d cert. sug an tendency the evidence has undue 1084, 113 S.Ct. gest basis, improper decision on an as such claims that Defendant the evidence satisfied emotion, sympathy, or horror. State requirements. none these Schurz, First, denied, 1026, 114 640, 126 she contends that there was cert. 510 U.S. purpose prior proper admitting no L.Ed.2d 598 Not all harmful evi- 546 Ct., 157 Ariz.

dence, however, grounds, Superior v. unfairly prejudicial. Id. er State 541, (1988), 541, 544, and State prejudice to 760 P.2d 544 arguments Defendant’s relate 510, 811, Smith, 507, P.2d Ariz. 774 claim that the evidence was not admitted 160 her 404(b). proper purpose under Rule for a She 814 pointed nothing suggests to that that the has merely proximate held cause Wiley that a unfairly prejudicial. was See State 144 Ariz. improper. not at instruction was 502, 511, 838, 181 Ariz. 892 P.2d Smith, stated, 540, at 1259. In we 698 P.2d — denied, (1995), U.S. -, 116 847 cert. “in in causation is felony murder cases which 720, 133 673 We find L.Ed.2d issue, proximate instruction should a cause probative these not that the value of acts was jury.” the given helpful if it be to substantially by the outweighed danger of 510, 814. This 160 Ariz. at 774 P.2d at was prejudice. unfair however, dicta, it was as we held that not requirement The final the admis not error for trial court to fundamental prior acts is that the trial

sion evidence of sponte give cause sua proximate a instruction give limiting in appropriate must an court in the was not at issue trial. when causation opponent if struction the evidence Moreover, quoted language does not Id. Atwood, Ariz. requests one. 171 832 require an instruction even when causa- such case, at 655. In the state included P.2d this tion is an issue. limiting prior on the evi a instruction act its The requested dence with instructions. required A to trial court is not confusing and trial court found it stated that give its sub proposed instruction when preferred give the instruction. The it not to by other in adequately covered stance is trial that it prosecutor informed the court Wiley, 144 Ariz. at structions. if the required give the instruction Here, the trial court refused the requested it. The noted court proffered it would con instruction because requested had not a limit that the defendant jury on jury. fuse It did instruct and, consequently, ing instruction declined crime, including causation. elements of the give present counsel one. Defendant’s instructions, entirety, in their considered during exchange. At no time did she Gallegos, adequately reflect the State v. law. object to the request limiting instruction 1097, 1106, cert. P.2d state’s instruction. trial court’s refusal of the denied, 513 U.S. 115 S.Ct. facts that defendant It is clear from these (1994). Furthermore, both L.Ed.2d any such on review. waived claim argued causa state and defendant’s counsel Therefore, did jury arguments. we hold that trial court in closing tion See admitting its Rodriguez, not abuse discretion State v. (1977) prior acts. The evidence was (taking

of defendant’s into account P.2d jury motive. The arguments assessing relevant defendant’s closing counsel instructions). reasonably prior have found the acts find adequacy could We prejudice refusing occurred. No unfair out- did not err in defen trial court probative Finally, value. defen- weighed proximate jury instruction on causa dant’s limiting request not instruction dant did tion. hence,

and, required. none was D. Dire Voir Instruction Proximate Causation C. argues that the trial Defendant next contends that the trial Defendant next jurors by informing during give proffered refusing court erred court erred that, convicted, voir if defendant would cause. Defendant dire proximate instruction on penalty. De the death entitled to an instruction be sentenced claims she was felony comments en fendant contends such proximate as an element of cause on a couraged the to convict her lesser of death an issue. murder where the cause they might quantum of evidence than other Wiley, 144 Ariz. cites State v. She disagree. require. wise on oth- We P.2d overruled Koch, punish- and unusual In v. 138 Ariz. 673 thus constitutes cruel State P.2d held that an in violation Arizona and United this court ment of the stating instruction that the defendant would Constitutions. She asserts that States subject penalty intelligence history not be to the death should of also limited abuse found, however, given. been disagree. not against We militate the sentence. We prejudicial instruction that the was not be- A is cruel and unusual sentence that, convicted, suggest did not if cause it the gross disproportionality when there is leniency. would defendant be treated with the sentence. the offense and State between Here, leniency Id. the court mention did not DePiano, Ariz. 926 P.2d 494 v. jury and instructed the at the end of trial not case, of In this the defendant was convicted possible punishment. to consider We find no first-degree two counts of child abuse prejudice to the defendant. measure, By any murder. no inference Dawson, Additionally, in State 162 Ariz. gross disproportionality possibly could arise (App.1989), P.2d 1221 the court of in for these offenses. Because there is no error, appeals found that “no there was fun- gross disproportionality, ference of no intra- jurors instructing or damental otherwise” inter-jurisdictional analysis required. or is during dire that the would voir defendant not subject penalty. the death Id. at Cross-Appeal F. sought 783 P.2d 1222. The trial court contending cross-appeals, state possibility the alleviate over concern the instructing jury trial the court erred in the penalty might jurors destroy predis- death elements of the crime. Because we posed against capital punishment. Id. The against have resolved all issues the defen- trial court also wanted to avoid risk that dant, this issue is moot. opposed penalty those to the death jury seek to be excused from service in order a life-or-death avoid decision. Id. The III. CONCLUSION appeals approved court of the instruction and reasons, For foregoing we vacate the case, In comments. this trial court appeals’ opinion court and affirm defen- instructing voiced similar concerns Additionally, dant’s conviction. we overrule

jury, prej- but because the not defendant was State 681 P.2d encourages type udiced and Dawson 1368,to the extent it is inconsistent with given, instruction we find no error. opinion. argues Defendant recent United case, States Court Simmons v. MARTONE, JJ., MOELLER and concur. Carolina, 154, 114 South 512 U.S. ZLAKET, Justice, concurring Chief in the (1994), requires that if one result. sentencing circumstance favorable (that penalty mentioned death extremely poor This case strikes me as an being sought), was not must be sweeping delivering pronounce- vehicle sentencing informed one circumstance fa admissibility expert psy- ments about the Simmons, vorable to defendant. howev cases, chological testimony yet in all criminal er, inapposite. a sentencing It involved precisely today’s majority I fear that what jury, jury charged an instruction to parties done. The to this has action seem Arizona, determining guilt. with the trial substance, anything unable concur on judge punishment. determines State v. Al including very legitimacy existence and lie, syndrome.” They “battered woman cer- tainly agree do not about whether are we dealing capacity,” here with “diminished “di- E. Cruel Unusual Punishment responsibility,” simply minished those that her Finally, argues propensities sen- characteristics and of a mental grossly disproportionate may upon to her tence is de- condition that bear the mens rea question. gree aspect involvement in death and Sheena’s crimes Unfortu- nately, majority offenses, legisla- dissenting opinions liability into these which exhibit a lack accord. put similar ture chose not to there. precision The absence of with the which nothing wrong State v. Finally, I see with problematic. record treats these matters is Christensen, P.2d outset, From defense counsel has been (1981), or State articulating the inconsistent reasons for disagree that the P.2d 1368 and psychological which the evidence was offered. noteworthy latter be It is should overruled. appears the expert Even witness to have legis- any that has provoked neither decision scope unclear purpose been about the and of response in over a lative decade. testimony. generous her a Add to this mea- however, above, agree Despite all of the I law, disharmony sure of in the case and it is majority’s with of final resolution majority not surprising that the and dissent overwhelming weight case. of The evidence to ground. are able reach so little common that the conduct establishes defendant’s Pohlot, (3rd In F.2d knowing, if not intentional. admitted as She Cir.1987), both, relied on the court ob- investigating police much to the officers. In served: my opinion, nothing within the reasonable indicate, conflicting As the ... cases scope Karp’s proposed Dr. of terms responsibility” “diminished and “di- contrary finding. have authorized a capacity” clearly minished do have a description Her charac- “battered woman” accepted meaning in the To the courts. most, suggested, at that defendant teristics adopted extent that American courts have may appreciated range full not have doctrines, they cognate generally have possible consequences her con- flowing from done so sub silentio. acting may difficulty duct have had and view, my In today’s decision adds to propensity what did know. she Neither consistency lack of about Pohlot which culpabili- would have absolved of criminal speaks. ty here under the facts or the statutes accept majori- It is difficult for me to question.

ty’s upon psychologi- broad attack the use unprepared agree cal evidence. I that am FELDMAN, Justice, dissenting. expert testimony strictly must be limited to portion opinion I dissent from M’Naghten insanity all under circumstances 11(A), designated Testimony Expert Part ease, any every psychological or that consequently from the result. The real issue tending negate an essential ele- expert testimony right of is not a charged ment of the crime can never present negating expansive holding admitted. Such an seems charge. my elements of the view unnecessary. both unwise and deprives majority opinion a defendant I also subscribe dissent’s view right, thereby violating process the due significant there exists a distinction between the state constitu- clauses of both and federal testimony establishing diminished or tions. Arizona, responsibility, unrecognized both tending and that to rebut the of a and convicted existence Defendant with finding guilt. fact critical In a case of one count of child abuse under circum- this, punishment likely produce than such as where varies dra- stances other those matically according physical injury, a class 4 to defendant’s mental death or serious crime, felony; at the one count of child abuse under state time of the the distinction major- likely produce or ser- pronounced. becomes even more The circumstances death ity opinion explore injury, felony. ious a class 2 A.R.S. no room to a defen- See leaves 13-3623(B) (C). mind, § the class M’Naghten focus on dant’s short We insanity. Thus, effectively felony predi- im- 2 it it obliterates conviction because was first-degree portant statutory felony cate murder con- distinctions between know- reckless, viction, ing, intentional, negligent or con- for which Defendant was sentenced years’ injects component mandatory thirty-five to a minimum of duct. It also of strict imprisonment, possibility parole, precluded Karp without statement and later commutation, good or time off for behavior.8 testifying syn- about the battered woman impact ability drome and its on Defendant’s case, pro- As relevant to this the statute Then, to make decisions. as the court of any person custody vides that who has of and it, appeals put Defendant permits injured a child to be endangered or guilty 2 felony person class if the proof ... Karp made an offer of intentionally acted knowingly. See A.R.S. would have testified that she had reviewed 13-3623(B)(1). § person guilty of a police reports and had interviewed however, felony, class 3 if he or she acted Mott and reviewed tests she had taken and recklessly felony or a class 4 if he or she possessed that ... Mott the characteristics negligence. § acted with criminal See 13- of a battered woman. These characteris- 3623(B)(2) charged Defendant was helplessness” tics include “learned or the in the violating alternative with all three abuse, passive acceptance development subsections. impedes of a traumatic bond that the wom- batterer, ability up an’s to stand fear permit- Some facts are clear. Defendant authority figures, lying of male protect injured endangered by ted her child to be inability accurately batterer and failing to obtain medical care placing perceive danger protect and to herself and allowing her or dangerous her to remain in a others from it. Near, situation under the control of Vincent the man with whom living Defendant was Mott, State v. 901 P.2d case, an relationship. abusive In this there- evidence, (App.1995). Such fore, only issue was Defendant’s mental course, directly addresses the mental ele- state. The was instructed on all three degrees charged. ment and of the crimes degrees of child abuse. If her actions were Defense judge counsel assured the trial intentional or knowing, Defendant would be Karp that Dr. testify would not be asked to first-degree felony convicted of murder and about Defendant’s state of mind at the time (enhanced punished felony for a class 2 be- of the offense but about the effect of cause the child was years less than fifteen sexual, physical, and mental abuse on the age). §§ 13-3623(B)(1); See 13-604.01. De- thought process of battered women such as fendant would not be convicted of first-de- Defendant, history and the effect such a gree felony if murder her conduct were might decision-making, have on Defendant’s criminally reckless or negligent pun- and her rationalization, comprehension, and the like. ishment would significantly less severe. Thus, complied the offer with the rule we 13-701; §§ See 13-702. have set down such evidence in cases in To address the issue of whether she acted prosecution which witnesses are allowed knowingly, intentionally, recklessly, or with testify patterns about the behavioral of vic- negligence, criminal Defendant offered the tims of incest or child molestation. State v. Cheryl Karp, qualified, Dr. Moran, 151 Ariz. 728 P.2d psychologist, certified who was to relate De- (1986); Lindsey, State v. 474- history fendant’s of abuse to rebut the state’s 75-76 case on mens rea. pre- The state moved to clude, arguing that evidence of the permitted testimony experts so-called haveWe syndrome battered woman explain tendency was inadmissible of child victims to syndrome because that applied only testify inconsistently, when the recant and and to ex- injuring defendant was plain psychological phenomena with or kill- other that af- ing trial, judge abuser. Before de- flict such may victims and bear on their nied the preclude Moran, state’s motion to credibility jury. Dr. before a See However, Karp’s testimony. judge 254; also Ariz. at Lindsey, 728 P.2d at ordered discussing 474-75, defense counsel to avoid Ariz. at 720 P.2d at 75-76. Defen- history opening case, therefore, Defendant’s of abuse in dant’s offer in this did not conviction, given mandatory 8. Defendant was also making twelve- abuse her total sentence for- year ty-seven years. consecutive sentence on the class child Defendant is advanc- quite apparent that beyond permissible limits we have stray ca- of diminished ing the affirmative defense analogous expert testimony. set for con- majority must and does pacity. As the judge precluded Dr. The trial nevertheless offered cede, evidence “not deal here with we fact, testimony; in refused to even Karp’s he crimes, [Defendant’s] to excuse as defense specif- to make a more allow defense counsel negate the [with] but rather proof. It was not until defense ic offer of In other the crime.” rea element of mens just again issue before counsel raised the help the words, offered to the evidence was put closing arguments that he was allowed acted Defendant jury determine whether following record: into the recklessly, or with knowingly, intentionally, only real issues negligence criminal Karp [Defen- have testified to —the clearly quite The record shows the case. history suffering physi- history, dant’s] capac- her conceded that Defendant’s counsel child at the hands of her cal abuse as a history ity sought only to show how abuse, rape, molest at the parents, sexual decision-making about affected her of abuse brother, father her friend’s hands of her medical care.9 take the child for whether to a child individuals while she was and other fact, syndrome was battered woman’s by physical abuse then her continued defense, not as an affirmative husband, withdrawn boyfriends, by and Mr. issue to be judge viewed the even the trial Near, made her —how she and that abuse capacity: lack of woman, category being a battered fit the along expert testimonies of with all the talking M’Naugh- Assuming not we were means, that woman how what battered it make insanity, difference would ton what making as an relate to her decision would intending capable of why person who is adult. acting omitting, ... something, of or to do why [it it make was difference does what (R.T.), Transcript Nov. Reporter’s done]? at 13. 87, R.T., (emphasis add- at 90 Nov. miti- at Defendant’s As her later ed). illustrated, Karp hearing Dr. would gation question judge’s The answer to the jurors with information provided fear, state deter- difference mental that clear —the they might conclude from which Although the crime. degree psychological trauma mines intelligence, and low acting capable of intentional- Defendant was affected resulting from a lifetime of abuse knowingly or intentional- ly, if not act she did ability “the kind of deci- to make Defendant’s felony guilty of ly, not be found she could in order to take her child sion it take 11, R.T., 15, 1991, at murder. hospital.” Nov. 18, 24. judge and the that the trial It is also clear testimony regarding agreed that

prosecutor concept majority past A. The confuses on her Defendant’s abusive the effect of evening with evidence ad- decision-making capacity diminished dressing mens rea element of only if Defendant herself admissible —but crime stand and so testified: took the jury] ought [evidence to hear Then [the capacity and mens rea 1. Diminished into Defendant’s decision-mak- what went Karp and not Dr. ing] from the defendant has not majority argues that Arizona The other, from the extrapolating one capacity. who is of diminished adopted the defense evening in results to an extrapolating test the rule agree M’Naghten is still I not there. question when she was § But it is 13-502. Arizona. See A.R.S. recognizes places, majority at other Dr. as the majority mischaracterizes likewise 9. The permissible purpose of made for the arguing point it offer was Karp's testimony, one in- enabling jury determine Defendant's that defendant’s offered to demonstrate "was negated specific But tent. incapacity intent.”

551 R.T., 8,1991, (Prosecutor).10 variants, Nov. at 89-90 capacity.” of its such as diminished Pohlot, 889, United States v. 827 F.2d 897 Defendant invoked her Fifth Amendment (3rd Cir.1987) (citing States v. Dem United Thus, right testify. chose when (9th ma, 981, Cir.1975)), 523 F.2d 986 n. 14 judge precluded Karp’s trial testimo- denied, 1011, 710, cert. 484 108 S.Ct. 98 U.S. ny, the any case went to the without (1988); Staggs, L.Ed.2d United States v. directly relating to Defendant’s (7th 1073, Cir.1977); 553 F.2d United state of mind at the time of charged. the acts Bennett, (10th 45, Cir.), States 539 F.2d Thus, although legislatively prescribed denied, 327, cert. 429 U.S. 97 S.Ct. elements of the different crimes re- (1976); L.Ed.2d United States v. Brawn quire the state to conduct that is either er, (D.C.Cir.1972); 471 F.2d 998-1002 intentional, reckless, knowing, criminally States, Rhodes United 282 F.2d 60-61 negligent, evidence that bore direct- (4th Cir.), denied, cert. 364 U.S. 81 S.Ct. ly rejected those issues was the trial (1960); 5 L.Ed.2d 226 see also was, short, United judge11 There no issue left to Cameron, (11th States v. 907 F.2d 1051 try Cir. under the circumstances of this case. 1990); Fazzini, United States v. 871 F.2d 635 (7th Cir.), denied, cert. Psychological testimony (1989); United Again, majority as the acknowledges, “the Bartlett, (8th States v. 856 F.2d 1071 Cir. history evidence of defendant’s being bat- 1988); Twine, United States v. 853 F.2d 676 tered ability and of her limited intellectual (9th Cir.1988). ... offered ... as negate evidence to the mens rea element of the crime.” Ante majority believes that these cases are majority P.2d at 1050. The fur- inapplicable they because “do not address acknowledges ther that “[s]uch evidence is constitutionality precluding the a defen- distinguishable from an affirmative defense introducing dant from evidence of diminish- excuses, mitigates, or lessens a defen- capacity challenge ed spe- the element of culpability dant’s moral psycholog- due to his cific intent.” Ante at 931 P.2d at 1052. impairment.” ical Ante at 931 P.2d at But directly applicable these cases are be- Yet, despite 1050. recognizing this distinc- they recognize cause apply the distinc- tion, majority posi- takes the inconsistent tion capacity, between evidence of diminished psychiatric tion that use of evidence to ne- which would be an affirmative defense to the gate mens rea is attempt the same as an charged regardless elements, crime of its prove capacity. diminished “Because the challenges and evidence that or an refutes legislature provided has not for a diminished specific element required by intent defense, consistently we have since particular statute. The distinction is be- psychiatric refused testimony to allow to ne- claiming inability tween evidence the mental gate specific intent.” Ante at 931 P.2d to commit the otherwise criminal conduct at 1050. jury may which the infer defendant, many

But as recognized, admittedly courts have whether a who had “the expert crime, use testimony ability actually to commit the purpose for this is had entirely distinct from legislature the use of such testimo- mental state that the ny to relieve a respon- required proven defendant of criminal has to be as an element of a sibility insanity based on the particular defense or one crime. Inexplicably, judge, prose-

10. attempt neither the trial was inadmissible as an defen- cutor, majority explains why capacity.” nor the Defendant dant’s diminished The state made no give objection. could evidence about her mental state but a such For some reason the doctrine of qualified psychologist waiver, who had examined Defen- apply assiduously which we so in other give cases, dant could not such apply evidence. does not in this case. State v. Cf. Miller, note, rejection, (1996) (issues misconduct, 11. That prosecutorial we should was not based ad- evidence, any evidentiary objection offer or peremptory formal rais- mission of other act use of ing majority today challenges, excusing jurors the issue on which the decides for cause all proffered the case: "We appeal). hold that the waived when raised for the first time on case of Supreme Court recent States the mens rea variant of United is clear that

[I]t — —, separate Egelhoff, is not a de- Montana diminished (1996). 2013, 135 that deserves to be called “diminish- fense L.Ed.2d 361 connoting capacity” any other name ed special, it is some sort of affirmative right process had a due B. Defendant simply is intro- defense. The defendant Karp’s present Dr. evidence, in

ducing this case evidence the five-to-four Court Egelhoff, which following abnormality, to make opinions, a Mon- separate reversed filed five commit the crime claim: “I did not judgment. The Mon- Supreme tana Court possess req- I did not because process violated held that due not an affirma- tana court mens rea.” This is uisite courts to insanity] whereby requiring Montana as a statute [such tive defense proved against voluntary intoxication reject admits or has evidence of defendant charged, the crime but rea element him the elements of to rebut the mens when offered justification or ex- Egelhoff, raises a claim of then offense. See State v. of a criminal cuse____ Rather, In the 900 P.2d 260 272 Mont. denying prosecu- straightforwardly Court, Justice Scalia United States requisite mental element tion’s claim that a Ginsberg filed plurality, Justice wrote for the He present at the time of the offense. filed concurring opinion, O’Connor Justice claiming guilty he is not of that three other dissenting opinion in which all, although may guilty of a he crime joined, Souter justices and Justices the latter crime if all the elements of lesser although they separate opinions, Breyer filed proven. are dissent. O’Connor’s concurred Justice present case is Morse, majority opinion in the Stephen J. Undiminished Confusion every opinion. Capacity, contrary 75 J.Crim.L. & Cri- to each and in Diminished minology Morse, 1, 6 As Professor acknowledged plurality Egelhojf, practicing attorney, professor, and an law process guarantees a defendant that due courts, in- explains, mental health clinician rebut the ele- right present evidence to today, confused these dis- cluding ours charge concluded there was ments of a result, n. As a concepts. tinct Id. at 7 right “to process no violation because due negat- wrongly preclude evidence such courts his volun- jury consider evidence of have a a mistaken belief that it ing mens rea under determining he tary whether intoxication insanity capacity or is a form of diminished not requisite mental state” was possesses the M’Naghten rule. Id. that fails to match the — justice.” principle of a “fundamental majority Again, agree I the that the with (Scalia, J., at-, 2015 116 S.Ct. at U.S. provided for a diminished legislature has not JJ.) Thomas, C.J., Kennedy and Rehnquist, Thus, if Defendant had capacity defense. Blackstone). Coke, Hale, Justice (citing argued lacked to form the that she always law had noted that the common Scalia state, offering the un- requisite mental thus voluntary as a de- intoxication disallowed of diminished recognized affirmative defense as the earliest case important, fense. More majority go need no far- capacity, then the indicates, it was not by cited Justice Scalia However, majori- say as the ther than to so. voluntary intoxication or merely of the state acknowledges, expert testimo- ty Defendant’s per- on mens rea its concomitant effects as a to excuse ny “was not defense offered the fact rejection of the defense but mitted negate “to the mens her crimes” but unimpaired and defendant’s that the volun- P.2d at 1050. element.” Ante at 931 rea the intoxication. tary act caused Thus, by precluding erred the trial court another, drunk kills person that is [I]f thereby depriving Defen- Karp’s testimony, Felony, and he shall this shall be rea ability to test the mens dant of the it, yet through it hanged he did in the adversarial of the state’s case element had he was drunk he Ignorance, for when view, by ruling the court my so process. Memory; inas- Understanding nor no process right to due violates Defendant’s Ignorance was occasioned subject the much as that very the That issue is law.

553 forbidden, evi required, might not Folly, lature has own Act and and he his Ginsberg’s it, Applying Justice privileged he not be there- dence offered. avoided shall views, that evi therefore conclude by. must we directly elements of bearing on the dence at-, (quoting 116 Reni S.Ct. 2018 Id. under the constitu be admitted crime must Fogossa, Eng.Rep. ger 1 Plowd. 75 Egelhoff, guarantees. See process added).12 tion’s due (K.B.1550)) (emphasis Unlike 31 — at —, (Ginsberg, 116 at 2024 S.Ct. intoxicated, U.S. bat willingly become those who J., concurring). abuse do women and victims child tered voluntarily cause the defect in their men not expressed views If we then turn Thus, impairment mental from process. tal Stevens, O’Connor, in which Justices Justice fundamentally syndrome battered woman’s again joined, we must Breyer, and Souter by voluntary than that caused intox different rights process Defendant’s due conclude that ication. specified the legislature were violated. Ginsberg reversing concurred Justice intentional, knowing, reck states judgment only the Montana Court’s less, negligence as or criminal elements by forbidding the she believed that because 13-3623(B)(1) § the crime. See A.R.S. voluntary a defense the use of intoxication as thusly de through the offenses With legislature simply Montana had redefined the fined, right insist has the “a defendant offense, rea element of the “‘ex- mens beyond a reasonable the State subject voluntary tract[ing] the entire in- charged.” every an offense doubt element of inquiry,’ from the mens toxication rea — at —, 2027 Egelhoff, 116 S.Ct. at U.S. voluntary thereby rendering evidence of in- Stevens, JJ., (O’Connor, Breyer, & Souter logically proof of the toxication irrelevant to (citing Pennsylva dissenting) McMillan -, requisite mental state.” Id. 2415-16, nia, 79, 85, 106 477 U.S. J., (Ginsberg, concurring S.Ct. at (1986); v. New Patterson L.Ed.2d judgment).13 York, n. 97 S.Ct. U.S. Here, however, dealing are with a we It n. syn- prohibiting statute battered woman’s inconsistent, legislature re wholly when contrary, testimony. To the with the drome rea, quires proof mens that the voluntary legis- exception of intoxication considering may prevent the statutorily possible lature has left all the that element of evidence relevant rebut as mens rea formulations elements — at —, Egelhoff, crime. See under Defendant was convict- statutes which (O’Connor, Stevens, Souter S.Ct. at § ed. See A.R.S. 13-503. Because evi- JJ., Breyer, dissenting). It is worse & even logically very relevant to dence offered was degrees do the different so when rea, requisite presents mens case question of mens rea crime turn on a criminal has the issue whether turns on when Defendant’s conviction right against every to defend element degrees of the crime. charged including mens rea the offense— protects relevant, those by legislature The Due Process Clause specified the —with justice credible, legis- “principiéis] of so rooted the tradi- competent and Our evidence. Ramos, (1982). Likewise, rejection One Arizona's of intoxication assume, therefore, thought or state is as a defense to conduct a mental a defect would resulting conditioned on the intoxicated state resulting unwilling ingestion process from voluntary the defendant’s act: from drugs the of mens be admissible on issue would Temporary resulting intoxication vol- so, why result- If then would defects rea. this ingestion, consumption, untary inhalation or ing involuntarily be ad- received not from abuse alcohol, illegal injection ... or an substance missible? psychoactive substance or the abuse of other prescribed does not constitute in- medications at-, (O’Con- 13. But id. 116 S.Ct. see any sanity criminal act and is not a defense for nor, JJ.) Stevens, (finding Breyer, Jus- Souter & requisite state of mind. "plainly Ginsberg’s reading tice of Montana law added). (emphasis validity § The A.R.S. 13-503 given by statute, the Montana Su- inconsistent with only applied to as directed and Court”). intoxication, preme voluntary upheld in State

tions and people it, conscience of our as to be characterized was “the contention of the Patterson, ranked as fundamental.” 432 defense quali- that the mental and emotional 201-02, Indeed, U.S. at 97 S.Ct. at 2322. ties of [the defendant] were of such a level at process fabric of spun due from the thread the time of the incapable crime that he was principles such fundamental guar as those premeditation although deliberation and anteeing right of a criminal defendant to legal he was then sane in the usual sense.” put the state’s case to a meaningful adver (emphasis U.S. at sarial test and to rebut each added). element noted, incapacity As is not Defen- credible, competent, offense with argument Fisher, dant’s in this In case. and relevant evidence. Chambers v. Missis case, present judge unlike the the trial al- sippi 284, 294, 1038, 1045, 410 U.S. 93 S.Ct. psychiatrist testify, lowed the the defen- (1973) (“The 35 L.Ed.2d 297 right of an dant present expert psychiat- was allowed to is, accused process criminal trial to due condition, ric evidence about his mental essence, right to a fair opportunity to was in fact instructed that: against accusations.”); defend the State’s see It is further contended that even if sane also Kentucky, Crane v. 476 U.S. 690- responsible, there was no deliberate 2142, 2146, 106 S.Ct. 90 L.Ed.2d 636 kill, intent any nor in fact actual intent (1986); Trombetta, 467 U.S. California guilty by kill. Therefore if not reason 104 S.Ct. insanity, guilty the defendant at most is (1984) (due process requires that “criminal degree of second murder or man- defendants be meaningful oppor afforded a slaughter, according you may as find he tunity defense”). present complete Al acted with or without malice. lowing the state to “first determine the ele ments the crime it punish, wishes to Thus, Id. at 467 n. 66 S.Ct. at 1320 n. 3. then thwart the accused’s defense cate case, permitted unlike our Fisher was gorically disallowing very evidence that psychiatric testimony introduce from which [her] innocent” violates these jurors were they instructed that could — principles. Egelhoff, at —, possess infer requisite he did not (O’Connor, Stevens, S.Ct. at 2029 Souter & state. All that properly Fisher was denied JJ., Breyer, dissenting). or, was an instruction capacity on diminished it, as the court partial responsibility. termed majority virtually The ignores any analysis Fisher, citing In today’s majority confuses Egelhojf, relying instead for its conclusion the discredited affirmative defense of dimin- on cases that do not scrutiny withstand ished process with a defendant’s due process majority due issue. The cites right present negating an ele- primarily States, Fisher v. United 328 U.S. charged.14 ment of the crime (1946), 66 S.Ct. 90 L.Ed. 1382 Schantz, State v. 403 P.2d 521 majority argues further that Fisher (1986), predate These cases Crane proposition “stands for the legisla- that state Patterson and Chambers may, constitution, violating tures without actually Fisher is question preclude irrelevant to the offering defendants from Fisher, before us. The issue in as the Court psychological of mental and deficiencies to case, majority clearly 14. The impermissi- confuses the offered defendant in this ble use [citations of evidence to establish a omitted] lack of example], M’Naghten [for short of Cameron as a defense to the crime schizophrenia claimed that "rendered her constitutionally-guaranteed right with the in- to capable forming specific necessary the intent present such evidence to enable the to deter- of charged." to commit the crimes specif- mine the existence or non-existence of the 542-543, (emphasis Ante at 931 P.2d at 1052-53 required by ic mens rea the elements of the added). case, present But in the Defendant did instance, majority crime. For the committed, by case, interpret 18 offense was the federal cases this contrast, is not an presumes affirmative defense but that the existence of these ele- goes specifically is evidence that ments. to wheth- prosecution

er the has carried its burden Pohlot, 14) (quoting 827 F.2d at 903 H.R. at proving of each essential of element added). (emphasis specific crime —at least when intent is at congressional report, The the federal issue. eases, practice and prior all make clear 1) that a distinction exists between affirma- Cameron, fact, 907 F.2d at 1063. In insanity, tive defenses such as under which Judiciary House Congress, Committee of the Arizona still requires the evidence to conform in considering Insanity Reform Defense traditionally that required under Act, took the of leading academi- 2) M’Naghten Rule, constitutionally re- field, in the lawyers, cians and commentators quired evidence that is directed to the mens important and made an distinction that specific-intent Today’s major- of rea crimes. today’s majority: eludes ity legisla- has confused two. When The use of negate mental disorder to men- intent, required specific ture has a such as tal state elements of crimes should not be action, intentional or reckless an as element confused with the diminished de- prove beyond that the state must a reason- developed by fense as the California courts convict, doubt to able the state cannot forbid during the 1960s 1970s. Under that of defendant’s offer evidence mental doctrine, a escape respon- defendant could conditions and abnormalities relevant sibility by demonstrating for a crime not whether the defendant had one re- specific that he or she the required lacked quired mental states. capability intent rather his or that course, applying Of the distinction between not, entertaining intent that be- evidence of whether a lacked ca- defendant disorder, cause of mental commensurate pacity or was unable to form an intent and people. with that of nondisordered possessed evidence of whether 98-577, H.R.Rep. No. Cong. 98th 1st Sess. 15 difficult, required may mental state Pohlot, n. 24 cited in 827 F.2d 889. courts must be careful allow recognized directly The committee negates also to- mens See what rea. United day’s majority does not: v. Marenghi, F.Supp. “[MJental disorders States (D.Maine relevant, course, 1995) will remain (allowing expert testimony to the issue syndrome the existence required long a mental state battered as woman’s so it is for rea). offense, such as the relevant to the intent re- issue mens quired certain crimes. This accords with for believe, however, I do that the difficul- Id., practice.” quoting Rep. current H.R. at making ties involved in are distinction Pohlot). (emphasis supplied As Sena- overcome; beyond ability our we have Hatch, committee, tor chair of the Senate ability repeatedly demonstrated our to re- indicated, “The California doctrine dimin- [of evidentiary solve other difficult issues. responsibility] any ished bears little if rele- event, difficulty any making distinctions vance to the issue of to form crimi- proper improper between nal may intent be relevant under the wholly inadequate seems me a reason for Id., approach.” mens rea citing Cong. categorically disallowing proper evidence. 30,1984). (Daily Rec. S418-19 Ed. Jan. Judiciary put House Committee it well: majority D. The has failed to follow proper procedure reaching the is- By distinguishing the affirmative defense sues insanity from the narrow mens rea requirements, point light the commit- further must One be made /mental approach disagreement tee’s meets constitutional re- Justice Zlaket’s with ma- 547-548, quirement prosecutor analysis. jority all ante See beyond points elements a reasonable while As doubt P.2d 1057-58. Justice Zlaket out, placing today’s majority gone beyond the defendant the burden of has what demonstrating exculpation required reason the case it. decide before Id. proof and adequacy The offer as foundation for

possible lack record fact suffi expert’s opinion of the were admission majority permit the to affirm an cient to evidentiary basis. See ante Instead, majority to make at 1058. chose fundamental, changes in Arizona substantive

law, limiting State v. Christensen and over

ruling Ante State Gonzales. This, believe, I P.2d at 1054. proceduraily unnecessary improper. See Co., 176 Montgomery Hazine v. Elevator 340, 345, 861 P.2d

CONCLUSION categorically prohib- majority opinion credible, competent, its and relevant evidence directly addresses the elements and dif- degrees of the with which ferent offenses Thus, charged. deprives Defendant was it process right due under Defendant both the Arizona and United States Constitu- Therefore, respectfully I

tions. dissent. P.2d 1067 Kadera, Krag Erin KADERA and wife, husband and Petitioners, of Ari of the State SUPERIOR COURT zona, IN AND FOR the OF COUNTY

MARICOPA, Mark Ace The Honorable thereof, to, judge Respondent Judge, COOPERATIVE OF CONSOLIDATED EAST, INC., Real SCOTTSDALE Party in Interest. No. 1 CA-SA 95-0265. Arizona, Appeals Court E. Department Division Feb. 1996. Sept. Denied Reconsideration 26, 1997.* Review Denied Feb. * Court, argument. J., Feldman, to hear oral grant Petition for Review voted to notes incapacity intentionally not seek to show to act passing in that that her mental condition made it more explicitly recog- R.T., most of the federal courts that likely recklessly. that she acted See Nov. 87; 13; abnormality nize that evidence of mental is at Nov. at Nov. rea, prohibit admissible on the issue of mens at Insanity Reform § the Defense a This conten- U.S.C. challenge elements of crime.” by Congress codified In which Act of which quite Egelhoff, tion is dubious. provided M’Naghten specifically rule and preclusion of the mental Montana’s involved not be a defense. by anything less would induced vol- that psychological and deficiencies provides: “Mental intoxication, opin- specifically not one the five The statute untary of Fisher, opin- M’Naghten insani- all of [short cited or relied on and disease or defect ions a right defense.” acknowledged ty] to does otherwise constitute ions defendant’s 17(a). language, if con- present only question § This evidence. The was 18 U.S.C. voluntary might it in- right that extended to tained in Arizona law—which whether not — arguably springboard to reach provide toxication. majority’s in case. But even conclusion majority also overrules State Gon- courts springboard, the federal with that zales, 349, 681 P.2d 1368 unwilling such a have or unable reach been concluding improperly that de- Gonzales They rejected federal have conclusion. contrary Schantz and cided because it is made government’s argument not even —one offered in because evidence Gonzales in the before us—that by the case capacity evidence of diminished and there- abnormality ad- mental is never evidence of But the in Gon- fore inadmissible. evidence See, negate e.g., rea. Poh- missible to mens zales was not evidence diminished cases). lot, (citing at 896-97 F.2d all; proffered the defendant and trial court excluded evidence that defendant suf- Although attempted courts have some syndrome organic from that im- fered brain capaci- between diminished draw distinctions paired cognitive functioning. his The evi- act, ty, by the reform and so-called forbidden dence was relevant issue whether to dis- responsibility, which tends diminished defendant, imprison- convicted unlawful in- required specific rea prove the mens ment, knowingly restraining acted the vic- crimes, I labels prefer tent leave 352-53, tim. Id. at 681 P.2d at 1371-72. We specific that if fairly aside. It clear seems Gonzales, the conviction in not be- reversed crime, of a evi- required intent is a element establishing were cause we the diminished abnormality that tends dence of mental “the trial defense but because negate intent is admissible. that testimony effectively exclusion of the court’s say it to that the several uses Suffice precluded introducing ev- put which these labels have been has often presence essential” to his idence mere de- application the correct of the two hindered 351-52, fense. Id. 681 P.2d at 1370-71. very applied under ideas that are distinct relying overruling In Schantz one, both, [citing neither of these labels majority simply ignores Chambers and Regardless cases authorities]. progeny, including Egelhoff its labels,” Congress both semantic “war recognized the crucial the courts have jurisprudential C. Neither considerations psychologi- between evidence distinction major- authority supports nor case supports an “affirma- impairment cal ity’s conclusion defense,” psychological evidence tive The courts that have considered defen- negates an element the offense right addressing to present dant’s charged. “Affirmative defense” evidence rea of a crime since the the mens element impairment, specifically when Crane, Trombetta, and Chambers decisions by the recognized legislature, and defined to that opposite reached conclusions defendant and can must raised And, noted, today. nearly every as reached justify other- or “excuse” conduct recognized circuit the salient dis- federal has Scott, LaFave &A. wise criminal. See W. mens rea tinction between rebuttal (1972). Psychological Law Criminal allows affirmative defenses and now evi- determining aids trier evidence that rebutting the mens rea element. dence state mind with defendant’s regard took at the time precise raised in to the actions she considering issue

Case Details

Case Name: State v. Mott

Court Name: Arizona Supreme Court

Date Published: Jan 16, 1997

Citation: 931 P.2d 1046

Docket Number: CR-95-0274-PR

Court Abbreviation: Ariz.