State v. Lundstrom, CR-88-0076-PR
| Decision Date | 18 July 1989 |
| Docket Number | No. CR-88-0076-PR,CR-88-0076-PR |
| Citation | 161 Ariz. 141,776 P.2d 1067 |
| Parties | , 89 A.L.R.4th 437 STATE of Arizona, Appellee, v. William E. LUNDSTROM, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Vicki Gotkin Adler, Asst. Attys. Gen., Phoenix, for appellee.
Thomas A. Thinnes, P.A. by Thomas A. Thinnes and Martin Lieberman, Phoenix, for appellant.
After trial for the first degree murder of his wife, on January 23, 1986 a jury found William E. Lundstrom guilty of manslaughter. See A.R.S. § 13-1103. The trial court sentenced Lundstrom to the enhanced presumptive term of 7.5 years. See A.R.S. §§ 13-604(G), -701, -702. Lundstrom appealed, and the court of appeals affirmed. State v. Lundstrom, 157 Ariz. 485, 759 P.2d 631 (Ct.App.1988). We have jurisdiction and granted Lundstrom's petition for review. Ariz. Const. art. 6, § 5(3); Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.
Lundstrom, a Wickenburg resident who suffers from severe facial and other disfigurement caused by birth defects, met his wife, Tonya, when he was twenty-three and she fifteen. They married soon after they met. However, their marriage was not without troubles. Trial testimony indicated that during the marriage Tonya had several affairs with other men and became pregnant during one of those affairs. Tonya aborted the pregnancy and the marriage continued. At the time of the homicide they had been married for twelve years and had three children.
During the summer of 1984, Tonya started another extramarital affair and became pregnant as a result. Lundstrom learned of this affair and the resulting pregnancy a few days before the shooting. He also learned Tonya intended to bear the child and leave him permanently.
On the morning of January 25, 1985, the day of the crime, Lundstrom drove from Wickenburg to Phoenix to buy birthday gifts for his son. While in Phoenix he also purchased a .38 caliber handgun. Lundstrom testified that he intended to buy a shotgun with which to kill himself, but when he falsely explained to the shopkeeper that he wanted "something for [his] wife to protect herself," the shopkeeper suggested the handgun instead. Reporter's Transcript (RT), Jan. 15, 1986, at 89. On the return trip to Wickenburg, Lundstrom pulled off to the side of the road to relieve himself and then decided to test fire the gun "to see what it felt like." RT, Jan. 16, 1986, at 19.
After arriving in Wickenburg, Lundstrom went to the restaurant where Tonya worked. He attempted to speak with her, but she was too busy. He left, went to work, and later returned to the restaurant with the handgun concealed in the small of his back. Tonya was able to meet with him and they went into a back room. After a brief discussion, Lundstrom fired the gun five times, fatally wounding Tonya. He then waited outside the restaurant for the police to arrive. On their arrival, and not knowing whether Tonya was dead, Lundstrom admitted shooting his wife. Later, during a custodial interrogation, Lundstrom essentially admitted the premeditated murder of his wife.
Lundstrom's principal defense at trial was that at the time of the shooting he was suffering from a "brief reactive psychosis," a form of insanity. See A.R.S. § 13-502. Lundstrom offered this defense through the testimony of psychologist Michael Bayless, Ph.D. The state countered this expert testimony with its own expert, who testified that Lundstrom was not legally insane at the time of the shooting. However, on cross-examination, the state's expert admitted that his initial inclination was to diagnose Lundstrom as suffering from a brief reactive psychosis. RT, Jan. 21, 1986, at 85, 97-98.
The jury acquitted Lundstrom of first and second degree murder, but convicted
[161 Ariz. 144] him of manslaughter, a lesser included offense. Lundstrom appealed.
The court of appeals held that the trial court correctly admitted Lundstrom's incriminating statements into evidence. Lundstrom, 157 Ariz. at 488, 759 P.2d at 634. Lundstrom does not seek relief on this issue, but raises three other arguments. First, he argues, the appellate court erred by finding harmless error after it assumed, arguendo, the trial court had erred by precluding Bayless from informing the jury about another non-testifying expert's opinion. Id. at 491, 759 P.2d at 637. Lundstrom maintains that the non-testifying expert's opinion was part of the "facts or data" underlying Bayless's in-court opinion and should have been admitted as such. See Rules 703 and 705, Ariz.R.Evid. 17A A.R.S. 1 Second, Lundstrom contends the court of appeals erred by finding harmless any error the trial court committed by precluding defense counsel from referring to the non-testifying expert's opinion during closing argument. See Lundstrom, 157 Ariz. at 491, 759 P.2d at 637. Third, Lundstrom asserts the court of appeals erred in determining that any error in the instruction on Lundstrom's burden of proof on insanity also was harmless. Id. at 493, 759 P.2d at 639; see State v. King, 158 Ariz. 419, 763 P.2d 239 (1988) ().
We granted review on all three issues and ordered briefing on the issue of whether Rules 703 and 705 contemplate a testifying expert disclosing to the jury, as a "fact or dat[um]," a non-testifying expert's concurring opinion. We also ordered additional briefing on the retroactive application of our decision in King. Because we cannot find the errors concerning Bayless's testimony harmless beyond a reasonable doubt, we reverse and remand for a new trial and do not address any alleged error in the jury instructions defining Lundstrom's burden of proof of insanity nor the retroactive application of King. 2
Bayless testified that at the time of the shooting, Lundstrom suffered from a "brief reactive psychosis," a form of temporary insanity. Essentially, Bayless testified Lundstrom was M'Naghten insane during the commission of the offense.
On direct, Bayless stated that his practice is to consult with physicians and other psychologists when evaluating patients like Lundstrom, and that he did so in this case. RT, Jan. 16, 1986, at 83-84. In particular, Bayless testified he discussed, "quite by accident," Lundstrom's case with Leonardo Garcia-Bunuel, M.D. Garcia is the chief psychiatrist for the Correctional Health Services at the Maricopa County Jail, where Lundstrom was incarcerated after his arrest. Garcia saw Lundstrom at the jail the day after the killing, examined and evaluated him, and assigned him to a psychiatric ward. Neither party called Garcia to the stand.
When Bayless related the fact of his conversation with Garcia, the prosecutor objected on the ground that defense counsel had not listed Garcia as a witness and was trying to "back-door" Garcia's opinion into the proceedings. The court withheld a ruling on the objection, noting the objection was premature.
Bayless continued his testimony, stating he solely relied on the grand jury transcript, medical examiner's report, police report, and his own expertise in preparing his written report. Bayless concluded that Lundstrom was insane at the time of the offense. When asked if his examination of the police reports indicated Lundstrom's comportment after arrest demonstrated that he had suffered a "loss of contact with At a subsequent in-chambers conference, defense counsel acknowledged Bayless's earlier testimony that he did not rely on other experts in preparation of his final report. Counsel stated, however, that Bayless did rely on Garcia's opinion for his in-court testimony and Bayless should be permitted not only to testify as to that reliance, but also as to the content of Garcia's opinion. Counsel avowed that Garcia's opinion was the same as Bayless's--Lundstrom suffered a reactive psychosis triggered by having learned of his wife's continuing infidelity, resulting pregnancy, and threat to leave him; 3 thus Lundstrom lost touch with reality and was M'Naghten insane at the time of the killing. The court ruled Bayless could testify that he relied on Garcia's opinion for his own in-court opinion testimony, but could not testify what Garcia's opinion was or that it was consistent with or the same as his own.
[161 Ariz. 145] reality," Bayless responded affirmatively and added that Garcia "substantiated" his opinion on this point. The court then sustained the prosecutor's objection and recessed the trial.
After court reconvened, defense counsel concluded Bayless's direct examination in accordance with the court's ruling. On cross-examination, however, Bayless testified that Garcia agreed with the substance of Bayless's opinion. The prosecutor objected to this as an unresponsive answer and moved to strike. The court denied the motion, ruling, as his discretion permits, that the prosecutor "invited" the particular answer by asking broad, non-leading questions. On redirect, Bayless again began to refer to Garcia, but defense counsel cut him off.
Before closing argument, the trial judge instructed defense counsel not to refer to Garcia's opinion, and counsel responded he did not intend to. Yet defense counsel argued to the jury that "Dr. Bayless answered that he checked with Dr. Garcia, and Dr. Garcia concurred in his opinion." RT, Jan. 22, 1986, at 67. This time the court sustained the prosecutor's objection. Defense counsel justified his actions by pointing out that because the court refused to strike Bayless's reference to Garcia's opinion during cross-examination, he legitimately could argue it to the jury. The judge disagreed and instructed the jury to disregard that portion of defense counsel's argument. 4
During its deliberations, the jury sent out a note asking for a transcript of Bayless's testimony. The court responded that no transcript was...
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