931 P.2d 1046 (Ariz. 1997), CR-95-0274, State v. Mott

Docket Nº:CR-95-0274-PR.
Citation:931 P.2d 1046, 187 Ariz. 536
Opinion Judge:[11] The opinion of the court was delivered by: Toci
Party Name:STATE of Arizona, Appellee/Cross-Appellant, v. Shelly Kay MOTT, Appellant/Cross-Appellee.
Attorney:[8] Grant Woods, Phoenix, Arizona Attorney General, By: Paul J. McMurdie, Jon G. Anderson, Attorneys for State of Arizona. [9] Susan A. Kettlewell, Tucson, Pima County Public Defender, By: Frank P. Leto, Attorneys for Shelly Kay Mott.
Case Date:January 16, 1997
Court:Supreme Court of Arizona

Page 1046

931 P.2d 1046 (Ariz. 1997)

187 Ariz. 536

STATE of Arizona, Appellee/Cross-Appellant,


Shelly Kay MOTT, Appellant/Cross-Appellee.

No. CR-95-0274-PR.

Supreme Court of Arizona.

January 16, 1997

In Banc.

Page 1047

[187 Ariz. 537] Grant Woods, Attorney General by Paul J. McMurdie and Jon G. Anderson, Phoenix, for State of Arizona.

Susan A. Kettlewell, Pima County Public Defender by Frank P. Leto, Tucson, for Shelly Kay Mott.


TOCI, Vice Chief Judge [*]


Shelly Kay Mott ("defendant") was convicted of two counts of child abuse and first-

Page 1048

degree [187 Ariz. 538] murder. The trial court precluded defendant from introducing expert psychological testimony that as a battered woman, she was unable to form the requisite mental state necessary for the commission of the charged offenses. The court of appeals, division two, relying on State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), andState v. Gonzales, 140 Ariz. 349, 681 P.2d 1368 (1984), reversed the trial court and held that the evidence was admissible to challenge an element of the crime. State v. Mott, 183 Ariz. 191, 192, 901 P.2d 1221, 1222 (App.1995).

We hold that the proffered evidence was inadmissible as an attempt to prove defendant's diminished capacity. We vacate the court of appeals' opinion. Furthermore, we overrule Gonzales to the extent that it permitted evidence of diminished capacity as a defense to the crime charged. Because we reverse the court of appeals, we decide defendant's remaining claims of error and affirm the trial court.


    On January 1, 1991, at approximately 9:00 p.m., defendant left her two young children with her boyfriend, Vincent Near. When she returned home less than an hour later, she found Near standing over her two-and-one-half-year-old daughter, Sheena, fanning her with a towel. Near told defendant that Sheena had fallen off the toilet and hit her head.

    At 10:15 p.m., Hank Gnatowsky, a former paramedic, stopped by defendant's home and found Near reading a first aid book and defendant sitting by some child-care pamphlets titled "Your Baby's Safety" and "Your Baby and Crying." Near told Gnatowsky that Sheena had fallen off the toilet. Gnatowsky responded that Sheena should go to a hospital and offered to take her. Near declined the offer, and Gnatowsky went into Sheena's room to check on her. He found that she was having trouble sleeping, her eyes were fluttering, and her hands were moving as if she were dreaming. He spoke to her, but she did not respond. He told defendant twice more before he left that Sheena should be taken to a hospital. Each time, Near refused.

    At approximately 8:00 a.m. the next morning, defendant went to the home of a friend, Erin Scott, crying that Sheena would not wake up. Defendant told Scott what had allegedly happened. Scott asked why defendant had not sought help sooner, and defendant replied that she was worried that the authorities would take Sheena from her because of Sheena's bruises. Defendant went home and returned to Scott's with Sheena. Scott noticed that the back of Sheena's head was very soft, there was some bruising on her face, and she was exhibiting spasms. Scott called 911.

    Upon Sheena's admission to the hospital, Dr. Richard Lemen diagnosed her as being in cardiopulmonary arrest with extreme trauma, non-accidental. Dr. Lemen found a large hemorrhage in the brain, resulting in the death of the right side of Sheena's brain. Because of the severity of injury, he noted Sheena's chances of survival as hopeless and that the cause was non-accidental. Sheena died January 9.

    At trial, Dr. Lemen stated that Sheena's injury could not have resulted from falling off a toilet seat. He also found numerous bruises and abrasions, including cigarette burn marks between Sheena's fingers. Dr. James Dunn, another emergency room physician, testified that Sheena's injury would have required a fall in excess of twelve feet, the equivalent of a major car accident, or repeated blows to Sheena's head with a hard object. Dr. Anna Binkewicz, a pediatrician, found a "branding" burn on the bottom of Sheena's foot, a series of whip marks on her upper thigh and buttocks, and bruising on her head and body.

    In an interview with police, defendant admitted that, over the few months before Sheena's death, she had confronted Near five or six times about bruising on Sheena. Defendant said that Near had told her that Sheena had fallen but that she did not believe him. She stated that she had been trying to leave Near because she did not want Sheena to get hurt. She never reported Near's abuse because she did not want him to get in trouble, and she dressed Sheena

    Page 1049

    [187 Ariz. 539] to hide the bruising. Defendant also admitted that she did not take Sheena to the hospital the night of her fatal injury because she did not want anyone to see the bruises.

    The Pinal County grand jury indicted defendant on January 9 on two counts of child abuse under circumstances likely to produce death or serious bodily injury, class 2 felonies, and on one count of first-degree murder, a class 1 felony. Defendant disclosed as a defense that she "lacked the capacity to act due to the Battered Woman Syndrome." The state moved to preclude the use of the battered-woman syndrome as a defense, claiming that such a defense was only admissible in self-defense cases in which the victim had battered the defendant. Defendant then filed a motion to admit the testimony of Dr. Cheryl Karp, Ph.D., to prove that defendant was unable to form the requisite intent to have acted knowingly or intentionally.

    The trial court initially ordered that Dr. Karp could testify regarding her opinions of defendant's "mental and emotional make-up and capabilities." Upon hearing Dr. Karp testify at trial, however, the trial court found that the testimony regarding the battered-woman syndrome was an attempt to establish a diminished capacity defense. The court ruled the testimony was inadmissible.

    On Count Two, based upon the defendant's leaving Sheena with Near, the jury found defendant guilty of the lesser-included offense of child abuse of a person under fifteen under circumstances other than those likely to produce death or serious bodily injury. On Count Three, based on the failure to take Sheena to the hospital, the jury found defendant guilty of knowing or intentional child abuse likely to produce death. On Count Four, felony murder, the jury returned a verdict of guilty.

    The trial court sentenced defendant to the presumptive term of four years on Count Two, a mitigated term of twelve years on Count Three, and thirty-five years without possibility of parole for first-degree felony murder. The court ordered sentences on the latter two counts to run concurrently with each other, but consecutively to Count Two. The trial court credited defendant with 389 days of presentence incarceration and ordered her to pay a $300 felony assessment fee. 1 Defendant appealed to the court of appeals.

    The court of appeals reversed defendant's conviction, finding that the trial court's preclusion of defendant's proffered testimony regarding battered-woman syndrome violated due process. State v. Mott, 183 Ariz. 191, 195, 901 P.2d 1221, 1225 (App.1995). Relying on Christensen and Gonzales, the court held that Dr. Karp's testimony on the character traits of battered women and the presence of those traits in defendant provided probative evidence that, if believed by the jury, negated the element of knowledge or intent. Mott, 183 Ariz. at 194, 901 P.2d at 1224. It found that precluding the testimony denied defendant the opportunity to present essential evidence in her defense. Id. at 195, 901 P.2d at 1225. Consequently, the court of appeals reversed and remanded for a new trial. Id. The state petitioned for, and we granted, review in this court.


    1. Expert Testimony

      Defendant offered the expert testimony of Dr. Karp to challenge the element of knowledge or intent on the child abuse counts. Defendant made an offer of proof before trial to the trial court regarding Dr. Karp's testimony. Additionally, the trial court allowed the doctor to testify at the mitigation hearing after the trial to make a further record of the proffered testimony.

      Dr. Karp had concluded that defendant was a battered woman and that being a battered woman was relevant to her ability to protect her children. According to the doctor, a battered woman forms a "traumatic bond" to her batterer. She does not feel that

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      [187 Ariz. 540] she can escape her environment; she is hopeless and depressed. Furthermore, the battered woman cannot sense danger or protect others from danger. She is inclined to believe what the batterer tells her and will lie to protect him. Dr. Karp concluded that defendant's history of being abused, in conjunction with her limited intelligence, 2 prohibited her from being able to decide to take Sheena to the hospital. Prior to trial, defendant's counsel offered the evidence to "explain to the jury why [defendant] lacked the capacity to defy [Near.]"

      As a threshold issue, the state claims that defendant has waived any claim of error because she withdrew the battered-woman syndrome defense. Though defendant withdrew the syndrome as a defense, she continued to argue that evidence of the syndrome and her own history of being abused were relevant evidence of her decision-making process and her inability to form the requisite mental state for the charged offenses. Consequently, we find that defendant has not waived her claim that the trial court erred by precluding the proffered testimony. 3

      Defendant's purpose in offering Dr. Karp's testimony was to demonstrate that defendant was not capable of forming the requisite mental...

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