State v. Jacobson

• Decision Date: 21 December 2017
• Docket Number: No. 1 CA-CR 16-0838,1 CA-CR 16-0838
• Citation: 418 P.3d 960
• Parties: STATE of Arizona, Appellee, v. Susan Joy JACOBSON, Appellant.
• Court: Arizona Court of Appeals

418 P.3d 960

STATE of Arizona, Appellee,

v.Susan Joy JACOBSON, Appellant.

No. 1 CA-CR 16-0838

Court of Appeals of Arizona, Division 1.

FILED December 21, 2017

Arizona Attorney General's Office, Phoenix, By Michael O'Toole, Counsel for Appellee

Coconino County Public Defender's Office, Flagstaff, By Brad Bransky, Counsel for Appellant

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Jon W. Thompson and Judge Thomas C. Kleinschmidt¹ joined.

OPINION

JONES, Judge:

¶ 1 Susan Jacobson appeals her conviction and sentence for first-degree murder. Jacobson argues the trial court erred when it precluded two experts from testifying she suffered from post-traumatic stress disorder (PTSD) and a "cold" expert from testifying about the general hormonal effects of pregnancy. We hold the PTSD diagnoses and "cold" expert testimony were properly excluded and affirm the trial court's decisions.

FACTS² AND PROCEDURAL HISTORY

¶ 2 Late in the night of February 25, 2015, Jacobson fatally shot her live-in boyfriend, Marvin J., in the head while he was lying in bed. Jacobson then tried to clean up the scene, wrapped Marvin's body in a tarp, and moved it to a nearby window. Jacobson disposed of the bloody bed sheets and buried the gun before reporting the shooting to the police two days later. At the time, Jacobson was nine months' pregnant with Marvin's child.

¶ 3 When a deputy sheriff later interviewed Jacobson, she claimed she killed Marvin in self-defense. Jacobson said Marvin had been angry with her for a few days and, on the night of the shooting, he woke her up by kicking her in the stomach. Jacobson said Marvin yelled he was "sick of [her]," and did not want the baby. Jacobson said she left the bed, grabbed the gun, and shot Marvin believing "whoever [got] to the gun first [was] going to be saved."³ Jacobson said Marvin had kicked her in the stomach during her prior pregnancy as well.

¶ 4 The State charged Jacobson with one count of first-degree murder and three counts of tampering with physical evidence. A few days after her arrest, Jacobson gave birth to her second child. The children were then taken into State custody and the State sought to sever her parental rights. A psychiatrist, Dr. Chris Linskey, and a psychologist, Dr. Patricia Rose, evaluated Jacobson for purposes of the severance hearing and diagnosed her with PTSD. Both doctors then testified at the severance hearing and made clear that their opinions, consistent with the severance proceedings, related solely to Jacobson's ability to parent the two children. Throughout that process, and upon advice of counsel, Jacobson did not answer questions related to the shooting, and the doctors said they intentionally avoided discussing the events surrounding the shooting when evaluating Jacobson.

¶ 5 Before trial, the court granted the State's motion to preclude testimony about Jacobson's PTSD diagnoses. The trial court also granted the State's motion to preclude testimony about the general hormonal effects associated with third-trimester pregnancies that Jacobson sought to introduce through a "cold" expert.⁴ Jacobson was subsequently convicted on all counts, and sentenced to life in prison. Jacobson timely appealed,⁵ and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),⁶ 13-4031, and -4033(A).

DISCUSSION

I. PTSD Diagnoses

¶ 6 Jacobson argues the trial court erred when it precluded testimony regarding her post-arrest PTSD diagnoses. At issue is: (1) whether the PTSD diagnoses were admissible to show past acts of domestic abuse, and (2) whether the PTSD diagnoses may be used to address the mens rea element of first-degree murder. We review a trial court's ruling on the admissibility of expert opinions for an abuse of discretion. State v. Chappell , 225 Ariz. 229, 235, ¶ 16, 236 P.3d 1176, 1182 (2010) (citing State v. Chapple , 135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983) ). We review constitutional and legal issues de novo . State v. Ellison , 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006) (citing Lilly v. Virginia , 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) ).

¶ 7 As a preliminary matter, Jacobson argued before the trial court that State v. Vogel , 207 Ariz. 280, 85 P.3d 497 (App. 2004), supports admission of the PTSD diagnoses, and on appeal again directs the Court's attention to the factual recitation in Vogel . There, a psychiatrist diagnosed a defendant with PTSD and testified he believed the defendant was a victim of domestic violence. Id. at 282, ¶ 15, 85 P.3d at 499. However, the propriety of the admission of the PTSD diagnosis was never questioned or addressed by the Court of Appeals. Thus, Vogel does not support the introduction of a PTSD diagnosis as proof of prior acts of domestic violence.

A. Inadmissibility of PTSD Diagnoses as Proof of Prior Acts of Domestic Violence

¶ 8 Typically, juries consider a self-defense claim from the perspective of a reasonable person, see A.R.S. §§ 13-404(A), -405(A), but by statute, a self-defense claim by a victim of domestic violence is considered from the modified perspective of "a reasonable person who has been a victim of those past acts of domestic violence," A.R.S. § 13-415. To apply this modified reasonable person standard, the jury must first determine whether the victim perpetrated past acts of domestic violence against the defendant, and, if so, then determine whether a reasonable person who had been subjected to those past acts of domestic violence would have used physical force in self-defense.⁷

¶ 9 Toward that end, a defendant may present evidence of the victim's past acts of domestic violence against the defendant to illustrate the application of A.R.S. § 13-415. She may also introduce a "cold" expert to explain the general characteristics and behavioral traits of people who have been abused in such a manner to assist the jury in understanding the modified standard.

¶ 10 Here, we consider whether a PTSD diagnosis may be used to prove that past acts of domestic violence occurred, such that the modified standard in A.R.S. § 13-415 would apply. Although no Arizona court has directly addressed this issue, another panel of this Court recently addressed the admissibility of a PTSD diagnosis in State v. Richter , 243 Ariz. 131, 402 P.3d 1016 (App. 2017).⁸ There, the defendant sought to introduce expert testimony that she suffered from PTSD to support her claim she kidnapped and abused her children while under duress. Id. at 134–35, ¶¶ 7–8, 402 P.3d at 1019–20. The trial court precluded the PTSD testimony, evidence of prior acts of domestic violence, and the duress defense. Id. at ¶¶ 6, 9–10, 402 P.3d at 1019-20. The defendant was subsequently convicted. Id. at 134, ¶ 5, 402 P.3d at 1019. On appeal, the Richter court vacated the conviction, holding the PTSD testimony was not inadmissible diminished-capacity evidence, but was, instead, admissible in support of a duress defense. Id. at 140, ¶ 32, 402 P.3d at 1025.

¶ 11 Richter does not elaborate under which circumstances a PTSD diagnosis might be admissible in support of a justification defense. See id. at 137, ¶ 19, 402 P.3d at 1022 ("Thus, even assuming some of [the PTSD] testimony could have been construed as diminished-capacity evidence, which would be inadmissible ... it was nevertheless admissible to show that she committed the charged offenses under duress.") (citing State v. Mott , 187 Ariz. 536, 541, 931 P.2d 1046, 1051 (1997) ; A.R.S. § 13-412(A) ; and Ariz. R. Evid. 401 ). We do not interpret Richter to mean that a PTSD diagnosis is always admissible as part of a justification defense.

¶ 12 A PTSD diagnosis is not admissible to support a justification defense where it is not relevant, sufficiently probative, or a proper use of expert testimony. See Ariz. R. Evid. 402 (providing for the admission of relevant evidence unless prohibited by constitution, statute, or rule), 403 (permitting the exclusion of relevant evidence "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the jury"), 702 (permitting experts to testify if it "will help the trier of fact to understand the evidence or to determine a fact in issue"). It has been long established that expert witnesses may not testify as to the credibility of another witness or defendant. See State v. Lindsey , 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) ("[W]e explicitly state at this time that trial courts should not admit direct expert testimony that quantifies the probabilities of the credibility of another witness.") (citing State v. Buell , 22 Ohio St.3d 124, 489 N.E.2d 795, 804 (1986) ); State v. Moran , 151 Ariz. 378, 385–86, 728 P.2d 248, 255–56 (1986) (collecting cases). In this case, the PTSD diagnoses only served to vouch for Jacobson's credibility and should thus be excluded.

¶ 13 As previously addressed, Drs. Rose and Linskey evaluated Jacobson solely for issues attendant to a severance case initiated following her arrest. Dr. Rose's evaluation of Jacobson was conducted over two days and was based primarily upon Jacobson's own statements that she was a victim of domestic violence. Parts of Dr. Rose's evaluation were self-administered, meaning Jacobson sat alone to answer the questions and had significant time to contemplate her answers before returning the questionnaire to Dr. Rose. Dr. Rose did not consider any physical evidence or third-party statements regarding Jacobson's otherwise unsubstantiated claims of having suffered domestic abuse. Based upon this information, Dr. Rose concluded in her report:

[Jacobson] experiences PTSD, panic disorder, and an unspecified depressive disorder. Additionally, she has been the victim of psychological and physical spousal abuse, and has been exposed to extreme marital distress.

¶ 14 Dr. Linskey's evaluation lasted approximately an hour and a half, and his determinations were based solely upon Jacobson's own statements to...