State v. Mott

ZLAKET, Chief Justice,

concurring in the result.

This case strikes me as an extremely poor vehicle for delivering sweeping pronouncements about the admissibility of expert psychological testimony in all criminal cases, yet I fear that is precisely what today’s majority has done. The parties to this action seem unable to concur on anything of substance, including the very existence and legitimacy of “battered woman syndrome.” They certainly do not agree about whether we are dealing here with “diminished capacity,” “diminished responsibility,” or simply those characteristics and propensities of a mental condition that may bear upon the mens rea aspect of the crimes in question. Unfortu *548 nately, the majority and dissenting opinions exhibit a similar lack of accord.

The absence of precision with which the record treats these matters is problematic. From the outset, defense counsel has been inconsistent in articulating the reasons for which the psychological evidence was offered. Even the expert witness appears to have been unclear about the scope and purpose of her testimony. Add to this a generous measure of disharmony in the case law, and it is not surprising that the majority and dissent are able to reach so little common ground. In U.S. v. Pohlot, 827 F.2d 889, 903 (3rd Cir.1987), relied on by both, the court observed:

As the conflicting cases ... indicate, the terms “diminished responsibility” and “diminished capacity” do not have a clearly accepted meaning in the courts. To the extent that American courts have adopted cognate doctrines, they generally have done so sub silentio.

In my view, today’s decision only adds to the lack of consistency about which Pohlot speaks.

It is difficult for me to accept the majority’s broad attack upon the use of psychological evidence. I am unprepared to agree that expert testimony must be strictly limited to M’Naghten insanity under all circumstances in any and every ease, or that psychological evidence tending to negate an essential element of the crime charged can never be admitted. Such an expansive holding seems both unwise and unnecessary.

I also subscribe to the dissent’s view that there exists a significant distinction between testimony establishing diminished capacity or responsibility, both unrecognized in Arizona, and that tending to rebut the existence of a fact critical to a finding of guilt. In a case such as this, where punishment varies dramatically according to defendant’s mental state at the time of the crime, the distinction becomes even more pronounced. The majority opinion leaves no room to explore a defendant’s state of mind, short of M’Naghten insanity. Thus, it effectively obliterates important statutory distinctions between knowing, intentional, reckless, or negligent conduct. It also injects a component of strict liability into these offenses, which the legislature chose not to put there.

Finally, I see nothing wrong with State v. Christensen, 129 Ariz. 32 , 628 P.2d 580 (1981), or State v. Gonzales, 140 Ariz. 349 , 681 P.2d 1368 (1984), and disagree that the latter should be overruled. It is noteworthy that neither decision has provoked any legislative response in over a decade.

Despite all of the above, however, I agree with the majority’s final resolution of this case. The overwhelming weight of evidence establishes that the defendant’s conduct was knowing, if not intentional. She admitted as much to the investigating police officers. In my opinion, nothing within the reasonable scope of Dr. Karp’s proposed testimony would have authorized a contrary finding. Her description of “battered woman” characteristics suggested, at most, that defendant may not have appreciated the full range of possible consequences flowing from her conduct and may have had difficulty acting on what she did know. Neither propensity would have absolved her of criminal culpability under the facts here or the statutes in question.