State v. Christensen

• Decision Date: 14 April 1981
• Docket Number: No. 4627,4627
• Citation: 129 Ariz. 32,628 P.2d 580
• Parties: STATE of Arizona, Appellee, v. Richard George CHRISTENSEN, Appellant.
• Court: Arizona Supreme Court

Page 580

628 P.2d 580

129 Ariz. 32

STATE of Arizona, Appellee, v. Richard George CHRISTENSEN, Appellant.

No. 4627.

Supreme Court of Arizona, In Banc.

April 14, 1981.

Rehearing Denied May 27, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Richard S. Oseran, Pima County Public Defender by Allen G. Minker, Deputy Public Defender, Tucson, for appellant.

STRUCKMEYER, Chief Justice.

Appellant was convicted of first degree murder and sentenced to life imprisonment. He appeals. Reversed.

Appellant and his wife, Shirley Mae, shortly after their marriage in March 1977 moved to Tucson, where they opened a small jewelry and pottery shop. Early in 1978, they separated. Shirley rented an apartment in which she lived with her daughter by a former marriage, Kim. On May 24, the marriage of appellant to Shirley was dissolved and he moved to Phoenix, Arizona. On Sunday, June 4, 1978, he drove to Tucson to Shirley's apartment. She was not at home, but arrived about 3:30 a. m. Monday. Although she allowed appellant to enter her apartment, she would not talk with him until after she rested. Later that morning, Kim saw and talked to appellant on the patio of their home. Kim then left and went to school. When she returned, she thought the apartment was unoccupied and contacted some relatives and later the police.

Early in the afternoon of the following day, detectives from the Tucson police department searched the apartment. They found Shirley's body under a bed, a ligature of twine around her neck. An examination of the neck revealed eight areas of ecchymosis and hemorrhage, indicative of manual strangulation. She had also sustained two severe head wounds and numerous small superficial abrasions and lacerations over the entire body. The twine around Shirley's neck matched twine found in a basket in the apartment. The police also recovered sheets, towels, bottles of cleaner and pop bottle fragments from a dumpster near the apartment.

Appellant, on his return to Phoenix, told an acquaintance first that he had hit his ex-wife with a pop bottle during an argument, and later that he had strangled her and left her under a bed. The acquaintance notified the police and appellant was arrested. He gave a statement in which he confessed that he drove to Tucson to see Shirley, but not with the intention of killing her; that on the morning of the 5th of June they became involved in a heated argument and at one point Shirley struck at him with a kitchen knife. The argument continued until appellant hit Shirley with a pop bottle. Appellant said that he laid down next to Shirley for an undetermined time, then choked her with his hands. He did not remember applying a ligature.

Appellant does not deny killing his former wife, nor did he raise the defense of insanity, but at his trial he called a psychiatrist as a witness. After an offer of proof, the court sustained an objection to the psychiatrist's testimony. The psychiatrist, an assistant clinical professor of psychiatry at the University of California, ¹ would have testified that he had interviewed appellant and had reviewed tests which had been administered to him; that, in his expert opinion, appellant had difficulty dealing with stress and in stressful situations his actions were more reflexive than reflective.

The court instructed the jury on the elements of first and second degree murder. It also instructed the jury on voluntary manslaughter as a killing resulting from a sudden quarrel or in heat of passion; that the defendant must have been provoked by circumstances that would cause a reasonable man to act violently and he must in fact have been in the heat of passion at the time of the killing.

Since appellant admitted killing his former wife, one of the questions for the jury was whether appellant premeditated the offense so as to justify a conviction for first degree murder, A.R.S. § 13-452 (now A.R.S. § 13-1105), 5A A.R.S.

Appellant urges that the court erred in excluding the psychiatrist's testimony and that the testimony was admissible under Rule 404(a)(1), Ariz.R.Evid., which provides:

"Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith * * * except:

* * * Evidence of a pertinent trait of his character offered by an accused * * *."

Character traits may be established by both expert and non-expert opinion. Rules 405(a), 701, Ariz.R.Evid. The appellant argues that "Stated in its shortest terms," he called the psychiatrist "to testify to Appellant's character trait of impulsivity" so as to establish "that the killing was not the result of reason or planning."

The trial court rejected the testimony in the belief that it raised the defense of "diminished responsibility" which this State has previously rejected. See State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), and State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980).

In State v. Schantz, supra, the defendant pled not guilty to the charge of first degree murder and served a written notice of his intention to pursue the defense of insanity. A psychiatrist not only testified that defendant did not know right from wrong, but that Schantz's actions were outside his deliberate, volitional conscientious awareness. Schantz's motion that the jury be directed to return a verdict of acquittal on first degree murder was granted, but denied as to second degree. He then submitted a requested instruction to the effect that because of an underlying mental impairment, the defendant might be mentally incapable of entertaining the specific intent to kill which is involved in the offense of murder. Upon appeal, we held that Arizona adheres to the rule in M'Naghten's case "The test of legal insanity has two elements. An accused must have had at the time of the commission of the criminal act:

(1) Such a defect of reason as not to know the nature and quality of the act, or

(2) If he did know, that he did not know he was doing what was wrong."

We also said:

"Whereas the M'Naghten test for criminal responsibility involves a defect in perception or cognition, the requested instruction permits the jury to find the defendant not guilty of second degree murder if he was suffering from a mental impairment, defect, disorder, or deficiency so as to be incapable of entertaining malice aforethought, the intent to kill. This adds a third element, defect in volition.

The defendant states that the principle embodied in the requested instruction 'has been variously referred to as the "doctrine of diminished responsibility," "doctrine of partial responsibility," "partial insanity," and otherwise.' But whatever name may be used, in this appeal we take it to mean mental derangement distinguishable from the cognitive insanity as understood in the common law and contemplated by the rule of M'Naghten's Case. The practical result is that in the case of first degree murder the jury could consider defects in the volitional processes to determine the lack of deliberation and premeditation and, as here, in the case of second degree murder, the lack of malice aforethought necessary to establish the unlawful killing as murder." 98 Ariz. at 207-208, 403 P.2d 521.

We observe that the Legislature in 1977 readopted the rule in M'Naghten's case as the test for criminal responsibility, A.R.S. § 13-502, 5 A.R.S. The Legislature has also prescribed the conditions when murder may be reduced to manslaughter through the lack of reason or planning; that is, when a person acts in the heat of passion with adequate provocation. A person so acting is not wholly relieved of the responsibility for his actions; rather, the homicide is reduced from murder. See Moore v. State, 65 Ariz. 70, 75, 174 P.2d 282 (1946).

The distinguishing characteristic between murder and manslaughter is that malice is not an element of the latter. Harding v. State, 26 Ariz. 334, 341, 225 P. 482 (1924). Similarly, the distinguishing characteristic between murder in the first degree and murder in the second degree is the lack of premeditation in the latter. Former A.R.S. § 13-452, 5A A.R.S. If defendant knew the nature of his act and knew what he was doing was wrong, he is presumptively regarded as capable of premeditation. Since the jury here found the defendant guilty of first degree murder, it must have believed the defendant did not act in the heat of passion; or if he did act in the heat of passion, it was not the result of adequate provocation, that his actions were intentional (second degree murder) and that he premeditated (first degree murder).

In State v. Dickey, 125 Ariz. 163, 608 P.2d 302 (1980), we said:

"In the present case, the jury heard Dr. Gray's opinion of several traits of appellant's personality, such as being overly protective, easily fearful, and not prone to violence. These were matters about which expert opinion may provide assistance to a lay jury." Id. at 169, 608 P.2d 302.

The establishment of the character trait of acting without reflection tends to establish that appellant acted impulsively. From such a fact, the jury could have concluded that he did not premeditate the homicide. We therefore hold the court committed error in excluding the psychiatrist's testimony.

Our holding is, however, limited. We have said:

"The issue whether appellant was thinking reflectively prior to shooting Koester could be resolved by the jury without expert assistance, once it had determined the facts surrounding the shooting." Id.

An expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing. See Note, "Psychiatric Evidence in Criminal Cases for Purposes other than the Defense of Insanity," 26 Syracuse L.Rev. 1051, 1065 (1975). But it is inconsistent with fundamental justice to prevent a defendant from offering evidence to dispute the...