State v. Boyston

• Citation: 298 P.3d 887,231 Ariz. 539
• Decision Date: 15 April 2013
• Docket Number: No. CR–10–0052–AP.,CR–10–0052–AP.
• Parties: STATE of Arizona, Appellee, v. Eric BOYSTON, Appellant.
• Court: Supreme Court of Arizona

231 Ariz. 539

298 P.3d 887

STATE of Arizona, Appellee,

v.Eric BOYSTON, Appellant.

No. CR–10–0052–AP.

Supreme Court of Arizona.

April 15, 2013.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Laura Chiasson, Assistant Attorney General Tucson, Attorneys for State of Arizona.

David Goldberg, Attorney at Law, By David Goldberg, Fort Collins, CO, Attorney for Eric Boyston.

OPINION

PELANDER, Justice.

[231 Ariz. 542]¶ 1 A jury found Eric Boyston guilty of three first degree murders and one count each of attempted first and second degree murder. He was sentenced to death for the murders and to prison terms on the attempt convictions. We have jurisdiction over this automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On the evening of February 1, 2004, Boyston was staying with his cousin, Shante.² Boyston was unemployed and living alternately with Shante and his grandmother, Mary Boyston. He argued that night with Shante and another cousin, Tonisha, about his living situation and was “very mad” that he had to live with his grandmother. The next morning, Boyston's girlfriend, Alexandria Kelley, dropped him off at Mary's apartment. Boyston saw Tonisha there and told her, “I'm hurt. I can't believe you did me like this. You all going to regret this.”

¶ 3 Alexandria returned to Mary's apartment complex later that day. While sitting in Alexandria's car in a nearby parking lot, Boyston received a phone call, argued with the caller, and, after ending the call, told Alexandria to take him to meet the caller. When she refused, Boyston said he should shoot her, pulled out a revolver, and shot at her but missed. Alexandria got out of the car and asked him “what was going on, what was wrong with him. And he just told [her] that he was going to kill [her].” She tried to run away, but Boyston pulled out a different handgun and shot her in the chest, back, and side. She survived but is paralyzed from the waist down.

¶ 4 Boyston then jogged to Mary's apartment. Announcing that it was “time to take care of everyone who did me wrong,” Boyston entered and shot Mary's son, Alexander Boyston, in the arm. After Alexander came out of the apartment and fell face down, Boyston fired two more shots into his back, killing him. Boyston also shot Mary three times inside the apartment, once in the side and twice in the back, killing her.

¶ 5 Boyston's great-aunt, Shirley Jones, came out of her nearby apartment unit and asked Boyston what he was doing. He responded, “Oh, I better get you, too,” and then said, “You mother f* * *ers crossed me too many times.” Boyston chased Shirley inside her apartment and shot her in the back. She eventually recovered from the gunshot wound.

¶ 6 After using his last bullet to shoot Shirley, Boyston returned to Mary's apartment and began fist fighting with Timothy Wright, a family friend. Just outside the apartment, Boyston took out a knife and stabbed Timothy nine times, one a fatal chest wound. Boyston fled but was arrested later that night.

¶ 7 Boyston was charged with three counts of first degree murder and two counts of attempted first degree murder. A jury returned guilty verdicts on the first degree murder counts and on the charge of attempted first degree murder of Shirley. The jury found him not guilty of attempted first degree murder of Alexandria, but guilty of the lesser-included offense of attempted second degree murder.

¶ 8 The State alleged the serious offense conviction and multiple homicides aggravators, A.R.S. § 13–751(F)(2), (8), for the murders of Mary, Alexander, and Timothy, and the especial cruelty aggravator for the latter two, id. § 13–751(F)(6). The jury found each of those aggravators and determined that Boyston should be sentenced to death for each murder. The trial court also sentenced Boyston to consecutive prison terms for the attempted murder convictions.

II. ISSUES ON APPEAL

A. Mental retardation ³

¶ 9 “Arizona law defines mental retardation as a condition bearing three hallmarks: ‘[1] significantly subaverage general intellectual functioning, existing concurrently with [2] significant impairment in adaptive behavior, [3] where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen.’ ” State v. Grell ( Grell III ), 231 Ariz. 153, 154–55 ¶ 5, 291 P.3d 350, 351–52 (2013) (alterations in original) (quoting A.R.S. § 13–753(K)(3)). Under A.R.S. § 13–753(G), Boyston was required to prove all three aspects of mental retardation by “clear and convincing evidence.”

¶ 10 Before trial, Boyston's mitigation expert, Dr. Myla Young, administered the Wechsler Adult Intelligence Scale III (WAIS–III) and measured Boyston's intelligence quotient (IQ) at 65. On Boyston's motion, the superior court appointed Dr. D.J. Gaughan as a mental retardation prescreening expert pursuant to § 13–753(B). Dr. Gaughan administered the WAIS–III and measured Boyston's IQ at 59. Because the prescreen IQ was 75 or lower, the court, pursuant to § 13–753(D), appointed Dr. Denis Keyes as Boyston's expert and Dr. James Seward as the State's expert.

¶ 11 Dr. Keyes administered the Reynolds Intelligence Assessment Scales and measured Boyston's IQ at 64, in the “mentally defective range.” Dr. Keyes made no finding on Boyston's adaptive skills “due to [Boyston's] fruitless attempts to malinger.” Dr. Seward did not personally administer an IQ test, but relied on other assessments and collateral information to conclude that Boyston was “malingering intellectual deficit.” Dr. Seward also determined that Boyston's adaptive functioning was not impaired and opined that he did not have mental retardation.

¶ 12 After holding a two-day evidentiary hearing and reviewing the parties' memoranda, the superior court accepted as credible Dr. Seward's opinions on both points and expressly determined that Boyston had “failed to satisfy his burden of proving by clear and convincing evidence that he has significant impairment in adaptive behavior with an onset prior to age 18.” The court thus concluded that Boyston had not established mental retardation.

¶ 13 In challenging that determination, Boyston argues the superior court abused its discretion in three respects. Specifically, Boyston contends: (1) the State's mental retardation expert, Dr. Seward, was not qualified under § 13–753(K)(2); (2) Dr. Seward failed to use currently accepted intellectual testing procedures, as required by § 13–753(E); and (3) Boyston proved by clear and convincing evidence that he is mentally retarded, and is thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and § 13–753(H).

1. Qualifications of State's expert

¶ 14 Boyston argues the superior court erred in admitting the testimony of the State's expert, Dr. Seward, because he did not meet § 13–753(K)(2)'s requirements. This Court interprets statutes de novo. State v. Arellano, 213 Ariz. 474, 477 ¶ 9, 143 P.3d 1015, 1018 (2006). “We review the decision to admit or exclude [expert testimonial] evidence for abuse of discretion.” State v. Grell ( Grell II ), 212 Ariz. 516, 528 ¶ 55, 135 P.3d 696, 708 (2006).

¶ 15 After a prescreening evaluation indicates a need for further assessment of mental retardation, § 13–753(D) directs the trial court to “appoint one expert in intellectual disabilities nominated by the state and one expert in intellectual disabilities nominated by the defendant.” An “expert in intellectual disabilities” is defined as “a psychologist or physician licensed pursuant to title 32, chapter 13, 17 or 19.1 with at least five years' experience in the testing or testing assessment, evaluation and diagnosis of intellectual disabilities.” A.R.S. § 13–753(K)(2) (footnote omitted).

¶ 16 Boyston does not contest that Dr. Seward was properly licensed, but contends that he lacked the requisite experience. The record, however, rebuts this contention:

[PROSECUTOR]: So during the time you have been in Arizona, have you been doing testing and assessments and diagnoses of retardation?

[DR. SEWARD]: Yes. It came up—it would come up occasionally with my employment in the county for the Rule 11 process.

....

[PROSECUTOR]: How long have you been doing testing, testing/assessment, evaluation, diagnosis of mental retardation?

[DR. SEWARD]: Well, on and off since I was licensed in 1991.

....

[DEFENSE COUNSEL]: So what you said on direct is, that in your capacity as an appointed psychologist to determine competency and even state of mind of an accused at the time of the offense, you have, as part of that evaluation, considered possible mental retardation as an Axis II diagnosis. Is that what your testimony is?

[DR. SEWARD]: That's correct. Although more competency than state of mind at the time of the offense.

....

[DEFENSE COUNSEL]: The only experience ... you have with evaluating children ... with mental retardation was when you were doing consulting work with the St. Edmond's home for children in 1991 [to 2002]?

[DR. SEWARD]: Correct.

¶ 17 Viewed in the light most favorable to upholding the superior court's ruling, the record supports a finding that Dr. Seward had at least five years' experience not only in testing, but also in evaluation and diagnosis of intellectual disabilities. See State v. Keener, 110 Ariz. 462, 465–66, 520 P.2d 510, 513–14 (1974) (“Whether a witness is qualified as an expert witness rests in the sound discretion of the trial court, and that decision will not be reviewed unless there is a showing of abuse of discretion.”).

¶ 18 Boyston suggests that § 13–753(K)(2) requires not only five years' experience, but also regular—as opposed to occasional—testing, evaluation, and diagnosis during the five-year period. But the statute only requires “five years' experience” and does not specify any additional requirements for...