424 P.3d 402 (Ariz. 2018), CR-17-0452-PR, State v. Richter

Docket Nº:CR-17-0452-PR
Citation:424 P.3d 402, 245 Ariz. 1
Party Name:STATE of Arizona, Appellee, v. Sophia Leeann RICHTER, Appellant.
Attorney:Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Amy M. Thorson, Assistant Attorney General, Tucson, Michael T. O’Toole (argued), Phoenix, for State of Arizona James L. Fullin, Pima County Legal Defender, Robb P...
Judge Panel:CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER and BOLICK joined. JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD, dissented in part. LOPEZ, J., joined by PELANDER, J. and GOULD, J., dissenting in part.
Case Date:August 24, 2018
Court:Supreme Court of Arizona

Page 402

424 P.3d 402 (Ariz. 2018)
245 Ariz. 1
STATE of Arizona, Appellee,
Sophia Leeann RICHTER, Appellant.
No. CR-17-0452-PR
Supreme Court of Arizona
August 24, 2018
Page 403           Appeal from the Superior Court in Pima County, The Honorable Paul E. Tang, Judge, No. CR20135144-002.          Opinion of the Court of Appeals, Division Two, 243 Ariz. 131, 402 P.3d 1016 (App. 2017). VACATED IN PART          Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Amy M. Thorson, Assistant Attorney General, Tucson, Michael T. O’Toole (argued), Phoenix, for State of Arizona          James L. Fullin, Pima County Legal Defender, Robb P. Holmes, Assistant Legal Defender (argued), Tucson, for Sophia Leeann Richter          David J. Euchner, Pima County Public Defender’s Office, Tucson; and Nathan S. Benedict, Salt River Pima-Maricopa Indian Community Defense Advocate Office, Scottsdale, for Amicus Curiae Arizona Attorneys for Criminal Justice           CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER and BOLICK joined. JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD, dissented in part.          OPINION           BALES, CHIEF JUSTICE.          [¶1] We consider whether an abuser’s ongoing threats of harm over a three-month period may constitute a "threat or use of immediate physical force" under A.R.S. § 13-412(A) sufficient to permit the defendant to raise a duress defense to charges of abusing her children. We hold that such evidence can establish a threat supporting a duress defense. We also consider whether expert testimony regarding the psychological effects of an abuser’s ongoing threats of harm may constitute observation evidence permissible Page 404 under Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), and State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997). We hold that, based on the limited record before us, the expert testimony proffered does not constitute permissible observation evidence.           I.          [¶2] Early one morning in November 2013, two sisters, ages twelve and thirteen, escaped out the window of their bedroom and fled to their neighbors’ house, shouting that their stepfather had broken down their bedroom door and threatened them with a knife. The neighbors, who did not know the two girls lived in the neighborhood, let them in and called 911. The neighbors described the girls as disheveled, with matted hair and body odor.          [¶3] Police went to the girls’ house, where they found the parents, Sophia and Fernando Richter. Inside the house, police found Sophia’s seventeen-year-old daughter locked inside a separate bedroom. They confirmed that the younger sisters’ bedroom door was kicked in and the doorknob damaged. During their search, they found video cameras and covered air-conditioning vents in the girls’ rooms, an internal alarm system, a knife near the master bedroom, and a five-gallon bucket containing pasta mixed with meat and food scraps in the refrigerator.          [¶4] The three girls described horrible living conditions. They were always confined to their rooms and were monitored by video camera. They had to ask permission to use the bathroom and occasionally were not let out in time. They ate their meals, which mostly consisted of the pasta mix, in their rooms. They had piles of soiled clothing and bedding in their closets. They rarely brushed their teeth or bathed, and they described being spanked and hit with various objects. Recorded music was continually played in their rooms to mask any noise they made. After being removed from school years earlier, they never returned. The younger sisters had not seen their older sister in over a year despite living in the same house.          [¶5] A grand jury indicted Sophia and Fernando on separate counts of kidnapping and child abuse for each of the three girls (six counts total) alleged to have occurred between September 1, 2013, and November 26, 2013, the dates they lived in Pima County. Fernando was also charged with two counts of aggravated assault for his attacks on the younger sisters.          [¶6] Before trial, Sophia gave notice that she intended to raise a duress defense. She and Fernando filed separate motions to sever their trials. The State opposed the motions and characterized Sophia’s proposed duress defense and supporting expert testimony from psychologist Dr. Perrin as "diminished capacity" evidence that is prohibited by Mott, 187 Ariz. at 540-41, 931 P.2d at 1050-51. Additionally, the State argued that Sophia’s proposed evidence failed to demonstrate a threat of immediate physical force as required by A.R.S. § 13-412(A). Agreeing with the State, the trial court ruled that Dr. Perrin’s proposed testimony "was essentially that Sophia was a battered woman" and was prohibited by Mott . The court also found that Sophia failed to offer evidence in support of a duress defense and denied the request to sever her trial.          [¶7] During trial, the State moved in limine to preclude Sophia from presenting evidence that Fernando physically or emotionally abused her. The State repeated its arguments that Sophia could not establish immediacy of threat as required by § 13-412(A) and that "battered woman" evidence was impermissible under Mott . The court granted the State’s motion and again precluded the duress defense, finding no immediacy of threat when the dates for the alleged offenses spanned eighty-six days from September through November 2013. Sophia objected to the court’s ruling and, near the close of trial, again sought to testify about Fernando’s abuse, making an offer of proof through counsel’s avowal of proposed testimony and photographs showing numerous scars from knife wounds inflicted by Fernando. The trial court found her proffer insufficient and again precluded her from testifying about Fernando’s abuse and introducing the photographs.          [¶8] Fernando and Sophia were ultimately convicted as charged. Fernando’s convictions and sentences were affirmed on appeal in Page 405 State v. Richter, 2 CA-CR 2016-0112, 2017 WL 491137, at *1 ¶ 3 (Ariz. App. Jan. 24, 2017) (mem. decision).          [¶9] Sophia appealed, arguing that the trial court erred by restricting her trial testimony, precluding her duress defense, and preventing her expert from testifying. The court of appeals agreed, determining that the proposed testimony of Sophia and her expert was "admissible to show that she committed the charged offenses under duress." State v. Richter, 243 Ariz. 131, 137 ¶ 19, 402 P.3d 1016, 1022 (App. 2017). Furthermore, the court concluded that "to the extent that Perrin’s proposed testimony addressed mens rea, ... it would be properly characterized as ‘observation evidence,’ which is not precluded by Mott ." Id. ¶ 20. The court explained that such evidence is admissible under Clark, 548 U.S. at 770-71, 126 S.Ct. 2709. Richter, 243 Ariz. at 137 ¶ 20, 402 P.3d at 1022. Finally, the court concluded that Sophia and Perrin’s proposed testimony provided a legal basis for the duress defense. Id. at 139 ¶ 29, 402 P.3d at 1024.          [¶10] We granted review to consider whether Fernando’s threats and abuse of Sophia created a threat of immediate harm sufficient to support a duress defense and whether the proposed expert testimony was admissible as observation evidence. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.           II.          [¶11] We review a trial court’s decision regarding the admissibility of evidence for abuse of discretion, State v. Aguilar, 209 Ariz. 40, 50 ¶ 29, 97 P.3d 865, 875 (2004), and likewise review a trial court’s decision to withhold a jury instruction, State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We review questions of law de novo. In re Johnson, 231 Ariz. 556, 557 ¶ 1, 298 P.3d 904, 905 (2013).           III.          [¶12] At trial, Sophia sought to introduce photographic and testimonial evidence regarding specific abusive events and the pattern of abuse that she experienced. She would have used such evidence to establish that she was "compelled to engage in the proscribed conduct by the threat or use of immediate physical force against" her or her children. See § 13-412(A). However, the trial court precluded her from introducing the evidence, concluding it constituted prohibited diminished capacity evidence under Mott .          [¶13] In Mott, a defendant sought to introduce...

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