State v. Millis

• Decision Date: 09 March 2017
• Docket Number: No. 2 CA–CR 2015–0368,2 CA–CR 2015–0368
• Citation: 391 P.3d 1225
• Parties: The STATE of Arizona, Appellee, v. Jeremy David MILLIS, Appellant.
• Court: Arizona Court of Appeals

391 P.3d 1225

The STATE of Arizona, Appellee,

v.Jeremy David MILLIS, Appellant.

No. 2 CA–CR 2015–0368

Court of Appeals of Arizona, Division 2.

Filed March 9, 2017

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee

Dean Brault, Pima County Legal Defender, By Robb P. Holmes, Assistant Legal Defender, Tucson, Counsel for Appellant

Judge Miller authored the opinion of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.

OPINION

MILLER, Judge:

¶ 1 A jury found Jeremy Millis guilty of one count of intentional or knowing child abuse under circumstances likely to result in death or serious physical injury and one count of first-degree murder, both committed against a victim under age fifteen. Millis was sentenced to life imprisonment without the possibility of release for thirty-five years for murder, to be followed by a consecutive ten-year prison term for child abuse. On appeal, he contends the trial court erroneously precluded expert testimony about his autism

, he was prejudiced by a duplicitous charge, and the court erred by allowing the victim's mother to be accompanied at trial by a facility dog.¹ We affirm for the following reasons.

Factual and Procedural Background

¶ 2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdict[s]." State v. Causbie , 241 Ariz. 173, ¶ 2, 384 P.3d 1253, 1255 (App. 2016). Millis and S.F. began dating in 2012 and after a few months they began sharing an apartment. Not long after that, the relationship ended and Millis moved out, but they remained on good terms with one another. In order to help offset the cost of the lease that S.F. now bore on her own, Millis agreed to watch S.F.'s two young sons one day a week while she was at work.

¶ 3 On the morning of January 24, 2013, S.F. changed the diaper of her eight-month-old son, C.K. He had no bruises on him. She later took some pictures of C.K. "having a lot of fun ... and being very smiley" in his bouncer. Millis arrived to babysit the boys and she left for work at around 2:00 p.m. Millis was the only person watching the boys while S.F. was at work.

¶ 4 S.F. arrived home around 11:00 p.m. She looked in on the boys and they appeared to be asleep. Millis told S.F. that C.K. had been coughing and choking earlier that night, but S.F. was not worried because she knew C.K. had a condition called tracheomalacia

, a "floppiness" in the cartilage of the trachea that sometimes caused him to make choking sounds, cough, or wheeze. Millis left and S.F. went to bed.

¶ 5 C.K. woke up at about 2:30 or 3:00 a.m. and S.F. tried to feed him a bottle. He did not eat much, but seemed to go back to sleep after about fifteen or twenty minutes. Then at about 5:30 a.m., C.K. started crying in a way that "didn't sound right. It wasn't his normal cry." S.F. picked him up but he would not open his eyes or respond to his name, and she had to hold his head up.

¶ 6 S.F. rushed C.K. to the hospital, which was across the street from her apartment. When they arrived at the emergency room, the staff took him right away, but he began having seizures. At 6:53 a.m., S.F. texted Millis and told him something was wrong with C.K.—he was crying "weird" and was nonresponsive. Millis replied that C.K. had been "a little weird when he did that cho[ ]king thing" the night before. She asked if C.K. had hit his head on anything, and Millis replied, "I don't think so. Just from him sitting on the carpet and tip[p]ing over ... [b]ut nothing bad." She told Millis C.K. was "seizing" and had a "head bleed," to which Millis replied, "Oh my god. Maybe that's what he was doing last night. I didn't know what he was doing. I squeezed his neck a little [because] he was having trouble breathing. He cried a little then went back to sleep so I thought he was fine." In a subsequent recorded confrontation call, Millis told S.F. he had found C.K. "stiff" and making "gasping noises" at one point, and had responded by "squeez[ing] his neck" "firm[ly]."

¶ 7 C.K. had bilateral subdural hematomas

, which caused bleeding on both sides of his brain, bruising, and swelling. Analysis of a CT scan indicated the head trauma had occurred within approximately the last twenty-four hours, and could not have been the result of C.K. merely falling back onto carpet from a seated position. His fontanel was also bulging, and in each eye he had "too many [retinal hemorrhages ] to count" across all layers of the retina. C.K. also had bruises on his head, ears, neck, chin, upper arms, shoulders, and "wrap[ping] around" his chest and rib cage. Numerous medical professionals testified that C.K.'s injuries were not consistent with an accidental fall, but were consistent with blunt force head trauma, intentional choking, and violent shaking.

¶ 8 C.K. died on January 30, five days after he was admitted to the hospital. A forensic pathologist opined that the date of the injuries was five to six days prior to death. The pathologist ruled C.K.'s death a homicide and determined the co-equal and interrelated causes of death to be (1) blunt force trauma to the head

, and (2) hypoxic ischemic injury, which is a lack of oxygen and blood to the brain.

¶ 9 S.F. was interviewed by investigating detectives the day C.K. was admitted to the hospital. She showed them her text message exchange with Millis. They located Millis, advised him of his Miranda² rights, and he agreed to an interview. When they confronted him with information about C.K.'s head injuries

, Millis told the detectives he had accidentally hit C.K.'s head on the oven door while he was taking food out of the oven, even though he had denied any head injuries when he was texting with S.F. while she was at the hospital. He also told the detectives that C.K. had been "crying a lot" and that he had "choked [C.K.]" with his hand. In a second Mirandized interview after C.K. died, Millis again admitted he had been "frustrated" with C.K., "just wanted him to stop crying," and "chok[ed]" him to get him to quiet down, adding that he "just couldn't take it anymore" and "I did what I did."³ Millis also told his ex-wife in a recorded jail video call that "he [had] choked [S.F.'s] baby."

¶ 10 At trial, Millis argued the blunt force trauma alone could have caused the brain swelling, which in turn could have choked off oxygenated blood to the brain, causing the hypoxic ischemic injury notwithstanding any strangulation. However, the forensic pathologist testified that the blunt force trauma alone could not account for certain injuries noted on an MRI. In closing, Millis argued that his choking the baby was not what killed him, that S.F. had inflicted the injuries that caused C.K.'s death after he had left that night, and that "shaking plus impact explains the [whole] universe of injuries that we have." In the alternative, he argued he had choked C.K. recklessly or negligently, not intentionally.

¶ 11 The jury convicted Millis of all charges and he was sentenced as described above. We have jurisdiction pursuant to A.R.S. §§ 13–4031 and 13–4033(A)(1).

Preclusion of Expert Testimony

¶ 12 Millis argues the trial court erred by precluding a defense expert from testifying Millis suffers from autism

spectrum disorder (ASD) when it concluded that the proffered testimony was diminished capacity evidence as opposed to character trait evidence. We review a ruling to admit or preclude expert testimony for an abuse of discretion. State v. Wright , 214 Ariz. 540, ¶ 5, 155 P.3d 1064, 1066 (App. 2007). Because Millis opposed the state's motion to preclude the testimony and made an offer of proof, we review for harmless error. See Ariz. R. Evid. 103(a) ; State v. Henderson , 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005).

¶ 13 Before trial, defense counsel filed a motion to assess Millis's competency pursuant to Rule 11.2(a), Ariz. R. Crim. P. Counsel attached to the motion the opinion of Dr. Pablo Stewart, who concluded in relevant part that Millis suffers from ASD without accompanying intellectual or language impairments. Relying on the testimony of two other experts who rejected that diagnosis, the trial court found Millis competent to stand trial.

¶ 14 Millis asked to continue the trial in order to accommodate Dr. Stewart's schedule so that he could testify about the ASD diagnosis. The state moved to preclude any ASD testimony, which it characterized as evidence of diminished capacity. Defense counsel argued the ASD diagnosis would not be offered to show diminished capacity, but to show Millis had a character trait of "difficulty in understanding how to interact appropriately with others," which could have made it "more or less likely that he formed the intent required in this particular case." After a hearing at which Millis made an offer of proof, the trial court granted the state's motion to preclude Stewart's testimony, finding it was offered to support a diminished capacity defense and was not character evidence. The court also denied Millis's motion to continue the trial.

¶ 15 Arizona does not recognize a "diminished capacity" defense, in which expert psychiatric evidence about a defendant's mental incapacity is offered to negate mens rea. State v. Mott , 187 Ariz. 536, 540–41, 544, 931 P.2d 1046, 1050–51, 1054 (1997) ; see State v. Schantz , 98 Ariz. 200, 212–13, 403 P.2d 521, 529 (1965). Unlike insanity pursuant to A.R.S. § 13–502(A) —an "affirmative defense that excuses, mitigates, or lessens a defendant's moral culpability due to his psychological impairment"—the diminished capacity defense aims to rebut an element of mens rea. Mott , 187 Ariz. at 540, 931 P.2d at 1050. The court in Mott observed that our legislature declined to adopt a diminished capacity defense when given the opportunity, id. at 540–41, 931 P.2d at 1050–51, and instead confined "any consideration of characteristic behavior associated with mental disease"...