Joint Appendix Vol II — Clark v. Arizona
Supreme Court brief2006
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FEB 2 ~ 2006
> } OFFICE OF THE CLOMK
In The
Supreme Court of the Anited States
o
ERIC MICHAEL CLARK,
Petitioner,
vs.
STATE OF ARIZONA,
Respondent.
o
On Writ Of Certiorari To The
Arizona Court Of Appeals
o
JOINT APPENDIX
VOLUME II, PAGES 105 TO 355
o
DAVID GOLDBERG MICHAEL O’TOOLE
Attorney at Law Arizona Attorney General’s
P.O. Box 746 Office
Flagstaff, AZ 86001 1275 West Washington
Phone (928) 606-1618 Phoenix, AZ 85007
Fax (928) 525-9352 Phone (602) 542-4686
Counsel for Petitioner Fax (602) 542-4849
Counsel for Respondent
Petition For Certiorari Filed August 17, 2005
Certiorari Granted December 5, 2005
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Page
VOLUME I
NIN TS TN i 5s cid chteneinnsnubalinpieiilisioneiniadila 1
REPORTER’S TRANSCRIPT EXCERPTS
Trial court proceedings — August 8, 2003 (at 77,
Ee SAEED ETP Sa es 5 OS AONE Ree er Rn 3
Trial court proceedings — August 12, 2003 (at 4,
GEIS A Ly Oe ee SES NTE AEE AOE LEONE ITN 6
Trial court proceedings —- August 19, 2003 (at 5,
re 8
Trial court proceedings — August 22, 2003 (at 12,
nt Ga i re i 10
VOLUME II
Trial court proceedings — August 26, 2003 (at 4,
Ss 105
Trial court proceedings — August 27, 2003 (at 6,
I Os a 282
TRIAL COURT ORDERS
I NIE iercensnsicinitnedecnpinepinnphibiiubpmmcehobaeeseammiseniiindaita 33%
JUDGMENTS AND ORDERS UNDER REVIEW
Arizona Court of Appeals Memorandum Decision ......... 336
Arizona Supreme Court Order Denying Petition for
SINT seticictaseraduitiiateinnt dtananticetiacitbinkclaindidedtaditeiigitlaiammieabesatas 355
105
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
~ IN AND FOR THE COUNTY OF COCONINO
STATE OF ARIZONA, )
Plaintiff,
vs. ) Case No. CR 2000-538
ERIC MICHAEL CLARK,
Defendant. )
REPORTER’S TRANSCRIPT
OF
BENCH TRIAL PROCEEDINGS
DAY 10
August 26, 2003
9:08 o'clock a.m.
Flagstaff, Arizona
BEFORE: HONORABLE H. JEFFREY COKER
Judge of the Superior Court
PREPARED FOR: THE DEFENDANT _ (Certified Copy)
* * *
[4) THE COURT: Counsel, you may call your
next witness.
MR. POWELL: Dr. John Moran, your Honor.
106
THE COURT: Sir, if you would please come up
here to the clerk station, raise your right hand and be
sworn.
(Whereupon, the witness was duly sworn by the
Clerk.)
DR. JOHN MORAN
called as a witness herein, having first been duly sworn,
was examined and testified as follows:
THE COURT: Sir, if you would please walk
around there and be seated. Sorry we don’t have a bailiff
this morning.
Are you going to be using the —
MR. POWELL: Not for a bit, Judge.
THE COURT: Okay. Thank you.
[5] MR. POWELL: It just takes a while to warm
up.
THE COURT: Never mind. Thank you.
DIRECT EXAMINATION
BY MR. POWELL:
Q. Good morning, sir. Will you tell us your name
A. John Moran.
Q. And your occupation?
A. Psychologist.
Q. And where do you work?
107
A. I’m in private practice in Phoenix, Arizona.
Q. And could you tell us a bit about your practice?
A. My practice is primarily forensic at this point. I
would say that 75 percent of my work is related to per-
forming evaluations that are to be used in a legal setting.
These include criminal evaluations, such as the issue of
insanity, domestic relations cases, evaluations of sexually
violent persons, Rule 11 evaluations or competent to stand
trial. Remaining 25 percent of my work I think is best
described as a general clinical practice.
Q. Would you please tell us your educational and
professional background?
[6] A. I received my undergraduate degree at the
University of Notre Dame. I did my graduate training at
the University of Maryland in the department of clinical
psychology. I completed my internship in clinical psychol-
ogy at the University of Florida Teaching Hospital. Since
then, I have participated in continuing education pro-
grams.
Q. And how long have you been practicing in the
Phoenix area?
A. 20 years.
Q. And can you please tell us the licenses you have
and accreditations you possess?
A. I’m licensed as a psychologist in the District of
Columbia, the State of Maryland and the State of Arizona.
Q. And since when in Arizona?
A. Since 1984.
108
Q. And have you testified in superior courts in the
State of Arizona regarding forensic issues?
A. Yes, I have.
Q. And since when, approximately?
A. Maybe 1990.
Q. And, again, it would be the areas you have
described earlier?
A. Yes.
[7] Q. I understand in Maricopa County has a list
put together by the Superior Court judges of individuals
who are admitted to do certain types of evaluation?
A. Yes.
Q. Competency, insanity. Are you a member of that
A. Yes, I am.
Q. And how long have you been on that list?
A. Probably 12 to 15 years.
Q. Would you please tell us what a forensic psy-
chologist is?
A. A forensic psychologist is a psychologist who
practices psychology for the specific purpose of utilizing for
the specific purpose of providing the Court a psychological
perspective the advocation to legal matters.
Q. And, again, you have qualified as an expert in
numerous courts?
A. Yes, I have.
109
_ Q. Are you knowledgeable, sir, as to the Arizona law
regarding insanity?
A. Yes, lam.
Q. And that would be A.R.S. section 13-502?
A. Correct.
Q. And have you testified in insanity cases in [8] the
past?
A. Yes, I have.
Q. Were you asked to perform any type of mental
health evaluation with regard to the case of State versus
Eric Clark in Coconino County?
A. Yes, I was.
Q. When were you first retained, if you recall?
A. September of 2000.
Q. And was that by the Coconino County Attorneys
A. Yes, it was.
Q. And did you author a final report dated July 22nd
of this year?
A. Yes, | did.
Q. What Id like to do, sir, is ask you to kind of go
back with me. Let’s go back and see what you commonly
do and did in this case in order to prepare a written
evaluation for a court.
A. Okay.
110
Q. Could you please tell us what the normal setup
would be as far as your efforts?
A. Typically, there’s a telephone consultation or in-
person meeting with the attorney who is retaining me. The
attorney provides an overview of the case, provides docu-
ments that are reviewed before meeting with the [9]
defendant. I then meet with the defendant, either one or
two times, I administer the defendant psychological tests,
I sometimes talk with collateral witnesses for sources of
data and prepare a report.
Q. Would it be fair to say that’s pretty much how the
evaluation came about regarding the defendant here
today?
A. Yes, sir.
Q. Did you rely on any treatises or literature in
arriving at your evaluation and conclusions here?
A. Yes.
Q. What did you rely upon?
A. Well, certainly, I relied upon the totality of the
training that I have had; in addition, I consulted, reviewed
a couple books on insanity evaluations, in particular, one
by Dr. Rogers and another by Dr. Moen. (phonetic)
Q. And we'll talk about the DSM-IV-TR in a while,
but you did rely upon that also?
A. Yes, I did.
Q. Did you consult with any other professionals
regarding issues arising in this case?
A. Yes, I did.
111
Q. Who else did you consult with?
A. Jack Potts is a psychiatrist in Phoenix. [10] Early
on in the case I consulted with a psychologist by the name
of Alan Goldstein, who is in New York, and those were the
only two consultations that I had.
Q. Now, you were not involved in the competency
issue involving the defendant, were you?
A. No, I was not.
Q. Let’s talk about the review of the case file. What
types of things were you presented with by the county
attorneys office or by my office after we assumed the
prosecution?
A. Iwas provided information about the scene of the
crime, interviews of the defendant’s family, of associates or
friends of the defendant, including teachers and former
basketball coaches, youth leadership, youth group leaders,
I was provided videotapes of the defendant from the night
that he was arrested — or morning that he was arrested
and also of the arrest that he had in April of 2000. I was
provided copies of some of the news coverage that was
generated around the time of his arrest. I was — I reviewed
copies of experts — other experts who evaluated the defen-
dant, either for the competence iss *° or regarding the
sanity issue. I also received copies of police reports, spe-
cifically those related to his conduct at the time of his
arrest.
Q. Let’s talk about that for just a moment. Did [11]
you feel that it was important to evaluate police reports
involving the crime itself, the murder of Officer Moritz and
the ensuing manhunt, for lack of a better word, and
arrest?
112
A. In this type of case, it’s the information that has
to do with the events surrounding the crime that’s the
most important information to review.
Q. And did you take a good amount of time to go
through those issues and those reports?
A. Yes, I did.
Q. Now, in your report dated 7-22-03 you listed a
number of items that you had evaluated and reviewed.
Correct?
A. Yes.
Q. Since then, by documents dated August 25th, ’03,
did you supplement that on things you have reviewed
since the preparation of the evaluation?
A. Yes, I did.
MR. POWELL: Judge, what Id like to do is add
this into the defendant’s notebook. It’s a supplement to the
doctor’s report. I don’t know if you want me to have this
marked separately or if we could just stipulate it in.
MR. MIDDLEBROOK: That’s fine, Judge. I
mean, I just got it this morning, but go ahead.
[12] THE COURT: Why don’t we have it admit-
ted separately so it can be identified.
MR. POWELL: May I approach, your Honor?
THE COURT: You may.
Q. BY MR. POWELL: Doctor, I’m going to hand
you what’s been marked as Exhibit Number 99 and ask
you if you recognize that document.
113
A. Yes, Ido.
Q. What is that?
A. This is a letter I prepared to you which lists the
documents that I have reviewed subsequent to my report
submitted on July 22nd, 2003.
Q. And you presented that to me last evening, did
you not?
A. Correct.
MR. POWELL: Your Honor, move for admission.
MR. MIDDLEBROOK: [I have no objection.
THE COURT: It will be admitted. Thank you.
Q. BY MR. POWELL: Let me specifically go
through and ask you about a couple — a number of areas.
You reviewed all the police reports that were submitted to
you?
A. Yes.
[13] Q. You're familiar with the Title 36 proceeding?
A. Yes.
Reports generated, transcripts generated?
Yes.
The Aspen Hill report?
Yes.
From 1999, I believe?
Yes.
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114
Dr. Kassell’s reports?
Yes.
His Rule 11 testimony?
I don’t believe I reviewed that.
His defense interview?
Yes.
Dr. Di’Bacco, his reports?
Yes.
His interview?
Yes.
Arizona State Hospital restoration program
Yes.
Complete Coconino County Jail records?
Yes.
Maricopa County Jail records?
Yes.
[14] Q. Dr. Parrish’s complete set of reports?
A.
Q.
A.
Q
I believe so.
And her interview with myself?
Yes.
Dr. LaWall’s interviews?
115
Yes.
And reports?
Yes.
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Or report, I should say.
Did you also view any movies in preparation for doing
your evaluation?
A. I reviewed the videotape simulation of the events
the day of the shooting.
Q. Any motion picture type video, also?
A. Oh. Yes. I viewed the movie Shaft, the movie Gone
In 60 Seconds, and the movie The Matrix.
Q. And why was it that you viewed those three
movies?
A. Because the defendant was reported to have had
an obsessive interest in The Matrix and he had viewed the
movies Shaft and Gone In 60 Seconds the night before the
crime.
Q. Did you listen to any compact disks?
A. Yes, I did.
Q. What did you listen to?
[15] A. Dr. Dre.
Q. D-r-e?
A. Yes, D-r-e.
Q. And that’s hyphen 2001? Is that the title of it?
116
A. I believe so, yes.
Q. And why was it that you listened to the CD?
A. That was marked in evidence as being the com-
pact disk CD in the player in the truck when the truck
was confiscated.
Q. Did you find anything of interest while listening
to that CD?
A. Yes, I did. That CD was, I think, fairly character-
ized as a rap CD, and it contained many antisocial atti-
tudes as part of the lyrics.
Q. Any reference to police officers or cops?
A. I believe that it did. I think that it says something
to the effect of fuck the cops.
Q. Have you been shown a copy of the state’s exhibit
notebook?
A. Yes, I have.
Q. And the defense exhibit notebook?
A. Yes, I have.
Q. And you've reviewed those?
A. Yes.
[16] Q. And I know we've left some out. But is that a
pretty good hunk of what you’ve had to review in anticipa-
tion of your report?
A. I think it’s significant to add that I did view Mrs.
Clark’s journal, 19-page journal you provided last night.
Q. And that was just given to you last evening?
117
A. Correct.
Q. By myself. Did you have an opportunity to inter-
view the defendant?
A. Yes, I did.
Q. On how many occasions?
A. Twice.
Q. And the dates of those?
A. June the 27th, 2003, for approximately 3.25
hours, and on July the 11th of 2003 for approximately
3.25 hours.
Q. Were those productive interviews, in your estima-
tion?
A. Yes, they were.
Q. Please tell us about the interview 6-27-03, ap-
proximate time, where it took place, who was present.
A. It was at the Arizona State Hospital in Phoenix.
And it’s the restoration unit at the hospital. It occurred in
a private room. Probably it would have [17] been an office.
Present at the interview were the defendant, myself, and
David Weinstock, who is the Ph.D J.D. post-doctural fellow
who was along both to provide some administrative
assistance and observe as a trainee.
Q. Now, did Mr. Weinstock or Dr. Weinstock, I guess
I should say, did he participate in the evaluation portion?
A. I don’t think that he said anything to the defen-
dant at all in the first interview. In the second interview
118
perhaps he conveyed to me two or three questions that
he'd like to have asked.
Q. And please tell us about the interview on June
27th.
A. The interview on June the 27th that we began by
explaining the legal context to the defendant and making
sure that he appreciated that I was retained by you, that
what he said to me was not confidential, that he under-
stood the purpose of the interview. I asked him if I could
tape record it and he consulted with his attorney and
declined that. That interview more or less followed a
chronological history, so we began with his early childhood
health and development and went through the various
aspects of his history, including health, mental health,
drugs and alcohol, school participation, athletic participa-
tion, his experiences in the family [18] large, his experi-
ences in the workplace and up to the events that
immediately preceded the shooting on June 21st of 2000.
At that point, he told us that he was not present at the
shooting on June the 21st of 2000 but, rather, he had spent
a day in Page, Arizona, with a girl by the name of Sarah
that he had met. So we talked to him some about that and
got a better understanding of what he meant and what he
had to tell us. And that was pretty much the scope of that
interview.
Q. Let’s go back just a little bit. You said you in-
quired of his family. Did — at any time during this inter-
view did he mention aliens?
A. I believe he did.
Q. And what was the context of that, if you recall?
119
A. I started to ask him about the reports of him
flicking off people at school and shaking a pen at them,
and he — and then I asked him about why he was putting
fishing line in his room and in his car, and he responded, I
didn’t want anyone messing with that. And I asked, who
did you think would do that? And he responds, aliens, but
I think the aliens look like people, terrestrial sophisticated
people.
Q. Was there any follow-up on that comment about
aliens?
[19] A. Yes. We talked about aliens quite a bit. I
could read part of my report if you’d like me to.
Q. Certainly.
A. Okay. I asked him when he first had the idea
about aliens —
MR. MIDDLEBROOK: Excuse me. I’m sorry,
Doctor. Can you tell us what page?
THE WITNESS: Yes. I’m on page 34, line 14.
Actually, line 13. So I had asked him when he first had the
idea, and he responded about the time I decided to get
home schooled and prepared for Y2K. I thought one of the
reasons | was put in jail was because the aliens hated me.
I thought that Flagstaff was full of aliens, that my mother,
father, sister and brother were aliens.
Question: What kind of aliens?
Response: From a different planet.
Question: Why were the aliens here?
120
Response: I did not know why or why I think they
are still here. I still think there are aliens that look like
human beings.
Question: Do you think I’m an alien?
Response: You could be. Are you? No.
Is Dr. Weinstock?
No.
[20] Question: Were the — what are the aliens doing?
I don’t know. Living like human beings.
Question: Why are they here? To take over? To
expand their territory?
Response: I don’t know what I thought then. Now I
think they’re expanding like maybe to do trades for stuff,
maybe like sugar and broccoli.
Question: What do you best recall about what you
were thinking then about why the aliens were here?
Response: I don’t know. Probably something except
they wanted to kill me.
Question: Why think that?
Response: I don’t know. I did not think that any-
more, but I think that’s part of the reason why I’m —
Question: Why were you thinking that they wanted
to kill you?
And then I noted that there seems to be a non sequi-
tur there, because I asked that question and there was no
121
response. And so this morning I went to my notes, tran-
scription of my interview notes from that day. And, in fact,
what the transcription reads is:
Question: Why were you thinking that they [21]
wanted to kill you?
Response: Yes, I thought they wanted me dead to
poison me through my clothes and my food. At the Cocon-
ino County Jail they poisoned me badly. I don’t know if it
was an alien or human being. That’s — that’s why I went to
the infirmary. I was peeing on myself. I was real sick for
three months from the poisoning but a little bit sick for an
entire year. I got rings on my toes but I was very badly
sick only for about three months.
Q. BY MR. POWELL: Okay. Let’s end it there. I
know he goes on but let me ask you, where was this — the
symmetry of the interview, where was this compared to
the Sarah story?
A. This is about halfway through and the Sarah
story was about three-fourths of the way through.
Q. And what did he tell you precisely about the
referring to the — as the Sarah story?
A. He told me that after his parents left the movie
theater, that he went back into watch Gone In 60 Seconds,
and that he met a girl who was there by herself by the
name of Sarah and she said — she asked him if he wanted
to go to Page with her for the day, and they agreed. So
after the movie, he and Sarah separated and she went to
her house to get her bathing suit and such, [22] he went
over by the Wal-Mart bus stop where he was going to wait
for her to pick him up. And she picked him up at 1:30 in
the morning. They then drove to Page. They spent the day
122
on the beach sunning themselves. They were on the beach
all day, except for that they went to McDonald’s for lunch.
That — that he didn’t get Sarah’s last name. He had her
telephone number which was written on a piece of paper
that was in his pants but he was arrested but he believes
the police lost that. And he wasn’t able to identify the kind
of car but I think he was — it was a white car.
Q. Did he mention his arrest?
A. He said that they stayed — they came back, that
they left Page as the sun was going down, and when he
came back, that she dropped him off around 8:30. He was
walking home and suddenly the police arrested him and
he didn’t know why.
Q. Did you confront him with any of the physical
evidence against him showing that he was, in fact, the
killer?
A. No, I didn’t.
Q. Tell us about the — does that pretty much con-
clude the first interview with the defendant?
A. Yes.
Q. What about the second interview on July 11th,
{23] I believe.
A. The interview on July 11th focused more on the
psychiatric symptomatology and questions about the
aliens, about whether or not they can insert thoughts in
his head. I asked him about the movie, Matrix, whether he
thought it was true. Asked him why he was turning up his
TV at home, why he would let the water run, why the
burglary tools were in his car, about the jewelry in his car.
123
I asked him if he had been doing drugs. I asked him
whether his brother had been abusive to him. I asked him
some more about the aliens. I asked him about his suicidal
thoughts. Then I talked with him some about his perspec-
tive on the advantages and disadvantages of pleading
innocent as opposed to pleading guilty except insane.
Q. Did he appear to understand the difference?
A. Yes, he did.
Q. During the two conversations you had with him,
what did he tell you about his drug use?
A. He told me that he first experimented with drugs
when he was in the 7th grade. And there was approxi-
mately a three-month period when he would do drugs. He
would smoke marijuana on the weekends in the 7th grade
and then he stopped. That then in the 9th grade, in the
summer of the 9th grade, he began to use (24] marijuana
on a daily basis and to drink alcohol on weekends to the
point of intoxication. That once he got his car, which would
have been September of ‘98, his marijuana use increased
even more. He was smoking it on average three or four
times per day. That he would — he didn’t like to smoke
before school but sometimes he did. That he would smoke
at lunch time. He’d smoke after school. That on the week-
ends he often drank alcohol to the point of intoxication. He
said he would get drunk but he wouldn't pass out. Later
on, he acknowledged that he sometimes would vomit.
Q. What type of tests were administered to the
defendant?
A. The Minnesota Multiphasic Personality Inven-
tory. That is a standard test used by psychologists to
assess personality and credibility to some extent. It’s 576
124
questions that are in a true/false format. The responses
that the person gives are compared to other people who
have taken the test and they are matched in terms of what
groups the responses fit into as a way of providing a
characterization for the person who took the test.
I gave him the structured interview of the recorded
symptoms, which is a test designed to assess for malinger-
ing, and I gave him the Paulhus Deception Scale, [25]
which is another test to assess his credibility.
Q. And could you take us through the results of the -
those three tests in order please beginning with the
MMPI?
A. Okay. On the MMPI consists of what’s called nine
clinical scales and three validity scales, and that one is
part of the test he responded to items claiming to be
unrealistically virtuous; in other words, he would not
admit that he has the common foibles that most people
have, such as that their table manners are better in
restaurants than they are at home, that they occasionally
lose their temper. But in spite of wanting to appear to be
proper, he did acknowledge and endorse a number of items
which were — showed unusual thinking. That overall, the
clinical scales, his results were similar to individuals who
tend to be quite disturbed psychologically. That he seems
to be extremely angry and suspicious that others are
taking advantage of him. He’s overly sensitive to criticism,
aloof, detached and regularly moralistic. He reacts to
threats by projecting and rationalizing. He takes little
responsibility for his problems, instead, blaming others and
harboring grudges. Such clients may be overtly paranoid
with delusions and clear ideas of reference. He’s endorsed a
number of extreme bizarre thoughts, suggesting the [26]
125
presence of delusions and/or hallucinations. Apparently, he
believes that he has special mystical powers or special
mission in life that others do not understand. He tends to
be rigid in relationships and has a closed attitude towards
others’s view points and probably has disturbed social
relations.
Q. Thank you. And you say there was also a decep-
tion scales?
A. Yes.
Q. And those were?
A. The Paulhus Deception Scale presented pretty
much the same results as the MMPI, which is that — that
he tends to present himself as being socially virtuous and
he denies the foibles that most of us would acknowledge.
The second half of that scale he responded incorrectly
to several of the items, and so I couldn’t score.
On the Structured Interview of Reported Symptoms,
he — one of the rare symptom scale, he endorsed he makes
a very atypical presentation of psychiatric symptoms
indicating a tendency — with a tendency to endorse very
severe symptoms often with psychotic contents.
The — his score on this scale is probably [27] feigning
range, so he appears to be exaggerating the intensity of his
symptoms.
A second component of that test measures improbable
or absurd symptoms, for example, do you have any un-
usual beliefs about automobiles, so that would be an
absurd symptom, and his score on this subscale is in the
honest range.
126
On blatant symptoms or symptoms that an untrained
individual could identify as indicative of a major mental
disorder, such as do you have any major problems with
fighting evil forces, his scale — his score on the — the
subscale is in the indeterminate range, that is out of
honest range, but below the range of definitely feigning.
On subtle symptoms, so these are symptoms that
untrained individuals would see as everyday problems and
not indicating a mental illness. His score is at the high end
of indeterminate range. So selectivity of symptoms.
THE COURT: Sir, I don’t know what that
means. Tell me what that means.
THE WITNESS: Indeterminate range?
THE COURT: No. The high end.
THE WITNESS: Okay. On the scoring for the
text it’s broken into three ranges, one is the honest [28]
range, two is the indeterminate range and three is the
obviously or clearly dishonest range. So he’s at the high
end of indeterminate range, which is meaning that you
can’t absolutely conclude that he’s being dishonest but it’s
getting in that direction.
THE COURT: I see. Thank you.
THE WITNESS: Yes. Selectivity of symptoms,
this is — suggests some individuals are not selective or
indiscriminate in their endorsement of psychiatric symp-
toms; in other words, they are going to endorse symptoms
that don’t really go together as professionals understand
them going together. And his score was in the indetermi-
nate range. And severity of symptoms are that, this asked
whether or not he’s reporting an unlikely number of
127
oe
symptoms with extreme or unbearable severity. On this
scale he scored at the high end in indeterminate range,
again, suggesting he may be exaggerating paranoid. And
then on observed symptoms versus reported symptoms, he
was in the honest range.
Then there are supplementary scales. Do you want me
to go through those, as well?
Q. BY MR. POWELL: I don’t believe we need to do
those yet at this time.
Does that conclude the testing?
A. Yes, it does.
[29] Q. And overall thoughts as a result of the
testing?
A. I thought that the testing supported that he’s -
the diagnosis of schizophrenia, paranoid type, that it — it
supports ruling out malingering as a problem.
Q. Malingering is eliminated, is it not?
A. Yes.
Q. Let us go back. You’ve said you've interviewed the
defendant, you’ve done the testing, you’ve also mentioned
that you normally interview collateral witnesses.
A. Yes.
Q. Who else did you interview in this case?
A. I interviewed Mr. and Mrs. Clark, Gentry Clark
and Aileen Clark.
Q. Okay. Anything significant with Aileen?
128
A. Not really. She did talk of one incident when her
brother more or less erupted at her when she was playing
with a cat toy and it irritated him.
Q. How about Gentry, anything of significance?
A. Gentry acknowledged that Eric sold drugs.
Q. Anything else with regard to mental health from
Gentry?
A. No.
(30) Q. The father?
A. Well, Mr. Clark provided background information,
filled in the details regarding some of the unusual behav-
ior that he had observed. He also clarified the events that
occurred on the evening before the shooting. And that was
helpful to me.
Q. And when was his interview? When did you
interview the father?
A. July the 11th, 2003.
Q. And the mother, when was she interviewed?
A. Same day, July the 11th, 2003. Like father, she
helped to fill in the gaps regarding the background infor-
mation, the psychosocial history, the details of his unusual
behavior, and that the events that preceded the night —-
that occurred the night before the shooting of Officer
Moritz.
Q. Were they helpful to you?
A. Yes.
Q. Did they appear to try to help their son?
129
A. Yes.
Q. With information-they provided you?
A. Yes.
Q. On that day, July 3rd, (sic) ‘03, did you hear
anything about Aaron’s story?
A. No, I did not.
[31] Q. When is the first time you heard anything
about Aaron’s story?
A. I think it was at the end of last week in a tele-
phone conversation with you.
Q. And I explained to you briefly about the Flagstaff
being the platinum city, being inhibited by 50,000 aliens,
1,000 non aliens. Aaron was kind of a hostage because he
has the keys to the city. Did I explain all that to you?
A. Yes.
Q. Had you heard anything similar to that before?
A. No, I had not.
Q. After you have your — well, let me ask you if
there’s anything else you have done of significance that
the Court should know about before you sat down and
actually started your evaluation and the construction of
your report?
A. I think that pretty well covers it.
Q. So you reviewed the file, movies, the videos, the
CD, interviews of the defense and family members, did the
consultation with the experts, performed and graded the
tests. That pretty much covers it?
130
A. Yes. I had some conversations with you or when I
first was — accepted the case I had some conversations
with Mr. Rozema.
{32} Q. Now, in reaching your evaluation and prepar-
ing a report for the Court, this is where the DSM-IV-TR
comes in?
A. Yes.
Q. And how was it that learned treatise was used?
A. Well, I guess Id like to state even at this point
that the critical issue is whether his — the mental state of
the defendant at the time of the offense, not his diagnosis,
but establishing a diagnos’s can be helpful as a — a way of
understanding what his mental state might have been at
that time. So the DSM-IV-TR is the diagnostic and statis-
tical manual of mental disorders posed by the American
Psychiatric Association, so it is a compendium of disorders
and the diagnostic criteria that can be used to determine if
a disorder is present.
Q. Now, in the world of insanity, that would be the
first step?
A. Yes.
Q. First of two?
A. Yes.
Q. And how did you go about using the DSM in this
case?
A. lentertained a number of hypotheses about what
the diagnosis might be and systematically looked at the
131
DSM-IV as to whether or not the defendant’s qualified [33]
for those diagnoses. And as I combed through the material,
I kept in mind what the criteria were trying to establish
with more certainty what the diagnosis was. And, eventu-
ally, I arrived at a diagnosis as I put it in my report.
Q. Is there a bit of a process of elimination?
A. Yes.
Q. And, Doctor, how is it that a diagnosis is arrived
at? I know you eliminate certain ones, but when you
finally determine what your diagnosis is going to be, what
is that based upon?
A. Well, it’s based upon the configuration of data,
look at the data and various sources of the data, and under
a specific diagnosis, say, for example, schizophrenia
paranoid type is — DSM-IV is going to say, person must
have two out of the following five — meet two out of the
following five criteria, whatever it is. And so you look and
say, does the person meet this criteria? If so, where do they
meet it? And if they meet it, then a diagnosis is estab-
lished.
Q. With regard to the — well, these are symptoms of
diagnoses. Would that be -
A. Yes, of the disorders.
Q. So you’re looking at the symptoms of the disor-
ders in order to make a diagnosis?
[34] A. Correct.
Q. And we've heard talk about the five axes?
A. Yes.
132
Q. Please explain that.
A. The DSM-IV diagnostic system involves five axes;
and Axis I is for the major mental illness, Axis II is pri-
marily for personality disorders, Axis III is to indicate if
there are any medical conditions which are contributing to
the presence of a major psychiatric illness, Axis IV is to
specify what are the stressors that may have been con-
tributing to the presence of the mental illness, and Axis V
is a global assessment of functioning that is a rating of the
person’s overall level of function to either on the day that
the diagnosis is given, it can be used to predict what a
person’s level of function would be if treated successfully.
Q. Did you perform all five testing for all five axes?
A. Yes, I did.
Q. Why would you do all five?
A. I believe that’s the standard called for by the
DSM-IV.
Q. Would there be exceptions where selected axes
should be done and selected ones should not be done?
A. I don’t believe so in a legal setting.
[35] Q. How do you make the Axis I determination?
And if you could tell the Court again, what does that
report?
A. Axis I, it reports the presence of a major psychiat-
ric illness or disorder, and so that’s where you go through
the different disorders that are listed in the DSM-IV that
are relevant to Axis I. You compare the signs and symp-
toms of any disorder that you see in the records or the
testing and you compare that to the signs and symptoms
133
of the various disorders and determine whether or not one
of those — there’s a fit for the individual with the disorder.
Q. And were you able to do that in this case?
A. Yes, I was.
Q. And is that where you reached your diagnoses of
schizophrenia paranoid type?
A. Yes, it is.
Q. Let’s move to Axis II. How does Axis II work?
A. Axis II is personality disorders. Personality
disorders are enduring and pervasive patterns of function-
ing that affect the individuals adversely across a variety of
settings, such as family life, work life, school life, physical
function. The DSM-IV lists I think it’s nine different
personality disorders, and then it also provides for what’s
called personality disorders not otherwise specified, that is
that the person has the [36] traits or features of a person-
ality disorder and seems to have personality problems that
are broadly disruptive to their functioning but they do not
fit into any one of the specific diagnostic categories listed
in the DSM-IV.
Q. All right. Are there situations where an Axis I
diagnoses is so prevalent overreaching that you can’t even
get to an Axis II?
A. Yes, there is.
Q. And did you feel that was the case in this situa-
A. No, I did not.
Q. Please explain that to the Court.
134
A. Well, as an example, one of the personality
disorders in the DSM-IV is a schizotypal personality
disorder which is characterized by oddness of thoughts,
eccentricities of behavior, difficulty with interpersonal
relationships. But it’s different from the schizophrenia
because it’s not characterized by hallucinations or delu-
sions. But if a person has schizophrenia, you’d also expect
him to have oddness of behavior, oddness of eccentricities
of behavior, oddness of thoughts and difficulty in interper-
sonal relationships. So you would not diagnose both of
those. You would say that the schizophrenia incorporates
or adequately covers those features of the personality
disorder.
[37] Now, in this particular case, I think that the
defendant had features of a personality disorder that pre-
existed or were what we call premorbid to the onset of the
schizophrenia, that that was reflected in both his opposi-
tional behavior, which is documented to have begun as
early as in the 5th grade. I think its reflected in his selling
or attempting to sell marijuana when he was in the 7th
grade.
Q. And did you have a specific diagnoses there?
A. I think I just diagnosed him with personality
disorder, not otherwise specified.
Q. Not one of the nine stated illnesses but the other?
A. Correct.
Q. And, again, that pre-dated, it was premorbid to
the diagnosis of the Axis I?
A. Yes.
135
Q. Axis III, please explain that to us.
A. Axis III is the presence of any medical disorders
which might bear on the psychiatric disorders; for exam-
ple, if a person has hyperthyroidism. But in Mr. Clark’s
instance, I don’t know of any medical conditions that are
relevant.
Q. Did you inquire as to that area?
A. Yes, I did.
[38] Q. And that was through the defendant and his
parents?
A. Yes. And record review.
Q. At times that can be a very telling diagnoses?
A. Absolutely.
Q. Axis IV, stressors, please explain that to us.
A. Psychosocial stressors are the stressors bearing
on the individual which may be responsible for the pres-
ence of the psychiatric illness, so that can include things
like economic problems, housing problems, family prob-
lems, legal problems, health problems, inadequate access
to the health care system, those types of things.
Q. And did you inquire with regards to the defen-
dant in this case as to those types of stressors?
A. Yes, I did.
Q. What did you find?
A. That the only problems that he was having in
addition to his mental health problems was probably
relationship problems.
136
Q. Explain that please.
A. Well, I diagnosed him to have schizophrenia
paranoid type. That’s a stress, but in addition to that or
maybe as a product of that he was having problems in that
he was socially isolated but he was not having [39] prob-
lems in that he had a good place to live, he had a good
social support system, he had adequate — he had adequate
finances.
It just comes to mind that I also wanted to add that in
addition to the schizophrenia paranoid type, I also diag-
nosed him with alcohol abuse and with marijuana abuse
on Axis I.
Q. I should have pointed that out. Before we get into
V, let’s go back and explain to the Court when you do this
evaluation, at what stage of the defendant’s life are you
looking at, are you evaluating?
A. Well, for this evaluation, I was asking what was
the diagnosis in the diagnostic formulation for the defen-
dant the day of the shooting.
Q. And that is generally accepted in your profes-
sional field such an evaluation?
A. I think you can if you specify that that’s what
you're doing.
Q. So would this have been — I know we can’t put
hours on this, but is this immediately before the shooting?
Is this 24 hours before the shooting? Or is there any range
you can provide?
A. I was — in my mind I| was thinking up to the
moment of the shooting.
137
Q. Let’s go onto Axis number V. Please explain [40]
that to us.
A. Well, Axis number V, the DSM-IV provides the
GAF scale as a way of describing the individual’s global
functioning at the time of the diagnosis is rendered. And
the GAF scale is functions. It’s describing both the inten-
sity or severity of symptoms and the overall behavior of
the individual. And it defines 10 different levels of func-
tioning on a scale of zero to 100 with each 10 numbers
indicating a different level of functioning. So you go from
somebody who is healthy, is free from symptoms and
rarely has trouble coping with their life, with their prob-
lems in their life, and they would be rated say a 95, to
somebody who is an obvious danger to themselves and
others, and they'd be rated as below a 10.
Q. And that is directly from the DSM-IV-TR, the
scale itself?
A. Yes, it is.
Q. And did you reproduce the scale within your
report for the Court?
A. Yes, I did.
Q. And I believe — is that on page 50?
A. Yes.
Q. And it ranks from zero, which would be inade-
quate information, to up to 100. Correct?
A. Correct.
[41] Q. And what was your ranking or rating of the
defendant the instant before the shooting?
138
A. I rated him as being at the low end of 31-40
decile.
Q. And what does that play out to be in using the
chart from the DSM?
A. Well, to use this chart, you’re supposed to rate
either the worst either the severity of the symptoms
dimension or behavior symptoms dimension. And so as |
understood Mr. Clark’s functioning at that time, he was
having some impairment in reality testing, for example, he
thought that food was poisoned, might be poisoned or the
water might be poisoned or that there was aliens living in
Flagstaff, and I understood that he was having some
problems in his behavior, particularly in the area of
interpersonal relationships, some moodiness.
Q. Let’s just look now. You said there were two facets
to this, the severity of the symptom and the functioning,
and you take the worst or the lower of those two?
A. Yes.
Q. And that’s where you place the individual?
A. Yes.
Q. On the continuum of the scale?
A. Yes.
[42] Q. And is that how you did it in this defendant’s
case?
A. Yes, it is.
Q. I know during the defense interview with you it
was asked why you didn’t go any lower. Would you explain
to us why you don’t feel he belongs in the next lower area?
139
A. Because the next lower area, 21 to 30, says,
behavior is considerably influenced by delusions or hallu-
cinations or serious impairment in judgment — I’m sorry —
serious impairment in communication and judgment, and
they give examples, sometimes incoherent, acts grossly
inappropriately, is suicidally preoccupied, or if they have
an inability to function in almost all areas, stays in bed all
day, no job, home or friends. I didn’t think that the behav-
ior that I had seen described was that severe.
Q. Now, you say you reached the lower end. Did you
give a specific number?
A. I gavea 31.
Q. And when you reached your conclusion of 31 on
the scale, had you known what Aspen Hill had arrived at a
year before the actual murder?
A. No, I did not.
Q. Did you go back and look to confirm and try [43]
and compare the two?
A. Yes, I did.
Q. And what was Aspen Hill’s rating?
A. They rated him a 30.
Q. Just one point difference?
A. Yes.
Q. And that would have been in June of 1999?
A. Correct.
Q. And your rating was aimed at June of 2000?
140
A. Correct.
Q. Let’s talk about sudden precipitous drops or rises
in functioning ability. Would you like to comment on that
please?
A. Yes. The — I guess I'd make three comments. One
is that, well, the global assessment and functioning scale
possible for a person to have a precipitous drop or a rise,
that if a drop occurs you would expect it to be explainable
as a response to a stressor.
The second comment I would make is that the global
assessment of functioning scale is global, and that means
it’s looking at the overall function of the individual. And
the issue that we have at hand today is a more specific
question; and that is, what was his mental state at the
time that he pulled the trigger.
The third comment that I would offer is [44] that the
law specifies that in order to be found not guilty except
insane but they must be suffering from a mental illness or
defect of such severity that they can’t judge the wrongful-
ness of their conduct. And so the question becomes, how
does one quantify severity? And you can do it by saying
mild, moderate or severe. Seems to be that the more
specific you can be, the better, and that the GAF is both a
professionally sanctioned scale for specifying behavior and
it is more specific than mild, moderate or severe, but it
does not answer the question of what was going through
his mind at that exact time. However, it does give us some
gauge or some calibration of the level of function he was at
before the crime versus the level of function that he must
have been at when he committed the crime.
141
Q. So we're not saying that this is going to answer
exactly what was going through his mind at the time of
the shooting, but this can give us some assistance in what
led up to that, what his functioning ability was leading up
to the shooting?
A. That is correct, and trying to arrive at some
assessment of the severity of the mental illness.
Q. Well, is the GAF evaluation particularly helpful
in certain areas, such as sexually violent predators?
[45] A. It’s —I1 think it’s useful in all areas. That’s an
area where it is useful, yes.
Q. To maybe change the subject just a bit, but since
we're talking about stressors, would you agree that being
arrested would be a stressor?
A. Yes.
Q. Incarcerated?
A. Yes.
Q. Charged with serious crimes such as first degree
murder?
A. Yes.
Q. And, Doctor, you have responded to this already,
but let me ask you again, once you reach a clinical diagno-
sis per the DSM —
A. Yes.
Q. -IV-TR, it’s a clinical diagnoses?
A. Yes.
142
Q. Is your job as a forensic mental health expert
completed at that point?
A. By no means. At that point, you have to answer
such questions as, is there any relevance of the diagnosis
to his behavior, and if there is relevance of the diagnosis to
behavior, how did that relevance apply?
Q. And, again, you’ve told us you are very familiar
with the insanity law in Arizona?
[46] A. Yes.
Q. And please explain to the Court what your under-
standing of the insanity law in Arizona is.
A. That there are two prongs that — for a person to
be judged to be guilty except insane that they must have.
First prong is they must be determined that they have a
mental illness or defect. And the second prong is that it
must be determined that the severity of that mental
illness or defect is such that they were unable to under-
stand the wrongfulness of their conduct.
Q. As a mental health professional, if you deter-
mined the defendant is suffering from a mental illness
before, during and after a crime, can you infer that the
second prong, which is technically not knowing the crime,
the criminal act was wrong, has been satisfied?
A. No, you can’t. For example, I could determine that
a person is suffering from aicohol abuse, but that’s the
Axis I diagnosis. But, obviously, that doesn’t pertain to or
doesn’t qualify under the law for a guilty except insane
defense.
143
Q. What were — we have a clinical diagnoses, a
person is charged with a serious offense, they have in-
voked the insanity defense, what is a forensic mental
health expert to do at this juncture?
[47] A. They try and zero in on the mental state of
the defendant at the moment of the crime.
Q. And how do you do that?
A. Well, there are several things that you want to
know. The most important thing you do is you talk to the
defendant. That’s the main source of your data. You want
to talk with the defendant. And to judge their mental state
at the time of the crime, you want to find out things as
simple as what had their pattern of eating been in the
days — the day of the crime and let’s say seven days prior
to the crime, how had their sleeping been, whatever
pattern of drug use and alcohol consumption had been,
what — had they consumed any alcohol or drugs on the day
of the crime, that when they entered into the situation in
which the criminal act was performed, were they oriented
to circumstances; in other words, did they have their wits
about them enough that they knew that they were who
they were, roughly what time of day it was, roughly what
day of the week it was, did they know that the person that
— in this instance, did Mr. Clark know that he was looking
at a police officer. ’'d want to know what his plan was at
that time, that his behavior — he could assert I suppose
that he didn’t have any goal to his behavior, that he was a
raving lunatic, as they say, and that the events that
occurred were [48] purely chaotic.
But, short of that, the person or the defendant should
be able to explain what the plan — their plan of behavior
was, they should be able to explain what their goal of their
144
behavior was and what the motive of their behavior was.
For example, if I had a case in which a fellow was judged
to be guilty except insane when he killed his wife and he
was able to describe in good detail with a lot of corroborat-
ing evidence that he believed that the Mafia were out to
get him and that his wife was connected to the Mafia and
that when he picked up — when she picked up the tele-
phone, that either he killed her or the Mafia were going to
come kill him, and so he did kill her and then he waited
around for the police because he thought that he had
committed an act which the police would understand as
being legitimate self-defense.
So you want to understand what the goal is and what
the motive is and what is it — ideally, we'd like to know
what Mr. Clark thought he was doing when he pulled out
the gun and shot Officer Moritz. Did he know he was
shooting a police officer? Was he doing it because he
thought that he was going to be arrested and he didn’t
want to go back to jail? Did he think he was doing it
because he thought he was going to be arrested [49] for
burglary? Did he think he was doing it because he thought
Officer Moritz was an alien, was out to get him?
So we'd also want to understand what his thinking
was, the criminality of the behavior. Did he understand
that what he was going to do, that shooting a policeman
was a criminal behavior that was punishable by law? That
it was a major felony? And Id like to understand what —
why he left the scene the way he did, rather than staying
around and waiting for assistance.
Q. And we'll come to quite a few of those areas. If a
defendant is unwilling or unable to provide you with any
of this information, do you have secondary sources?
145
A. The secondary sources then become the physical
evidence available, either through the police reports, the
radio dispatch calls, eye witness accounts, and then
secondary sources are psychosocial history, psychological
testing and those things. But those things obviously
become more and more distant to the moment that is the
critical moment at hand, at issue.
Q. So if the defendant is not willing or able to pro-
vide information, what is the next step you look to?
A. The physical evidence available.
Q. Do you look at decisions made by the defendant
before, during and after the crime?
A. Yes, I do.
[50] Q. Even if they're not provided to you by the
defendant?
A. Correct.
Q. And, again, how is such evidence that you've
described to us and I just mentioned, how is that helpful to
you?
A. Well, it’s the information that I rely upon in order
to draw conclusions that I assume that the eye witness
accounts, the police reports and so forth are factual, and so
I assemble the facts and apply them as best I can to a
psychological perspective; what are those facts? How do
those facts inform me about the defendant’s probable
mental state at the time of the offense? So, for example, if
he’s seen fleeing the scene of the crime and is able to evade
capture, then I’m going to make certain assumptions, such
as that he was oriented to place, because he was able to
146
navigate the place, that he was able to think in a goal-
directed, logical fashion because he was able to construct a
strategy which was successful in evading a fairly intense
manhunt. That if he attempted to elude the police when
he’s found by the police or resists arrest, I think that that’s
going to provide a basis for me to conclude that he’s able to
understand that he’s in trouble and that the police are
police and that they’re there for a function, which is to [51]
capture and incarcerate him.
Q. Do you find it of interest if, again, the defendant
is unable to supply you with information or unwilling to
meet with the people that had seen him last before the
criminal act took place?
A. Yes, I do.
Q. And let me ask you if — in light of the fact the
defendant here did not give you any information which
was helpful, did he?
A. Not about the crime, no.
Q. And what he did was told you about Lake Powell
Sarah story?
A. Correct.
Q. Which you understand is disputed by the physical
evidence?
A. Correct.
Q. In light of his failure to give you any information,
did you perform the evaluation in this case that you
described to us just now?
A. Yes, I did.
147
Q. Tell us what — what evidence or what information
provided to you was of significance in reaching your
opinion which we're going to get to in a while?
A. Well, all the data that helped to construct [52] his
psychiatric history was useful, whether that was the
medical records from Aspen Hill or some of the reports
from his teachers and students and the reports from his
parents. The psychological testing was helpful, as well,
and the interview of the parents was helpful. I would cite
those as the major sources.
Q. Let me go through some specifics and see if you
factored these in and if you feel it was appropriate to
factor them in. And, again, we're discussing the second
prong of the test. Correct?
A. Yes.
Q. Something we have referred to as the Thorpe
Park incident. Are you aware of that?
A. Yes, lam.
Q. And what is your understanding of what hap-
pened at the Thorpe Park incident?
A. Approximately two weeks before the shooting of
Officer Moritz, that the defendant came upon three people
in Thorpe Park, including a Jason Tackett, who had gone
to high school with him, and while there he more or less
bragged about his plan to lure the police into a situation
and he could shoot the police.
Q. Do you recall him specifically mentioning a .22
caliber weapon?
A. I believe he mentioned both a rifle and [53] pistol.
148
Q. Each .22 caliber?
A. Each .22 caliber.
Q. And he — you recall him saying he was going to
fire his gun into the air in order to lure the police, and as
they exited their vehicle, he was going to shoot them?
A. Yes.
MR. MIDDLEBROOK: Judge, I’m going to
object to the completely leading questions. I’d rather find
out what Dr. Moran actually relies on and as opposed to
the leading questions we’re hearing.
THE COURT: Counsel, I allowed you to ask
leading questions with the expert so the state may do the
same.
You may proceed, counsel. Overruled.
Q. BY MR. POWELL: Did this incident factor in
your conclusion?
A. Yes, it did.
Q. In what manner?
A. Established a possible motive.
Q. Did you find any significance with the commonal-
ity of the caliber of the weapon in light of the fact the
officer was killed with a .22 caliber?
A. I found significance with that and with the [54]
fact that he had mentioned a similar theme to Desiree
Barreras, I believe, one of his associates, he had bragged
about wanting to shoot the cops.
149
Q. And are you of the opinion this was something
that should have been considered by a mental health
expert in determining insanity or sanity?
A. Yes.
Q. Let’s move on to June 20th of 2000, the day before
the murder.
A. Yes.
Q. We've had testimony, I believe you've read all the
reports, that the defendant met with his mother at some-
time during the day?
A. Yes.
Q. I believe somewhere around 2:00 or 2:30?
A. Yes.
Q. And that she, I believe, at first took him to the
Sizzler restaurant. Do you recall that?
A. Yes, I do.
Q. Do you remember reading any reports, interviews
of an individual who worked at the Sizzler by the name of
Chris Walsh?
A. Yes, I do.
Q. And was there any significance in Mr. Walsh’s
statements about his observations of the defendant that
(55) day?
A. Yes, there was. He reported that Eric seemed to
be doing better, that on that day Eric seemed to be func-
tioning better than he had been or was typically. I think he _
150
specifically said that he didn’t wander around the restau-
rant. It seemed like he was daydreaming as he had done in
the past.
Q. Do you recall Mr. Walsh saying the defendant
commented on a fight he had been in at a party earlier?
A. Yes, I do. I recall that he talked about when he
had — he asked whether Mr. Walsh had seen him, I think,
whip Brandon’s ass, or something to that effect, beat up on
Brandon.
Q. Anything of significance in this meeting with Mr.
Walsh and the defendant?
A. Well, if the issue is the mental status of the
offender at the time of the offense, any information we can
have close to the offense is significant.
Q. Now, if we go to the parents, I believe — well, let
me ask you this: When the mother dropped off the defen-
dant at the Sizzler, she did not feel that she needed to go
in with him?
A. She didn’t go in with him.
Q. Any significance to that?
A. She didn’t feel he needed supervision.
[56] Q. And then, I believe — tell me if this is right —
the mother picked up the defendant after he called. They
went to the home and then she later took him to a conven-
ience store to buy some kind of soda pop. Is that what you
recall?
A. That’s what I recall.
151
Q. And, then, after that, they returned home and the
father came home?
A. Yes.
Q. And when the father came, I believe he — they
agreed they were going to go to the movie and the father
dropped him off at the athletic club to shower?
A. First he asked if he could be taken to the athletic
club to shower.
Q. And he was left there by the father?
A. Yes.
Q. Anything significant there?
A. Yes, there is. You know, I suppose one way of
illustrating it is to talk about Mr. Clark’s behavior when
he was in the jail, when he allowed himself to be sur-
rounded by filth. And so, generally, you know, people who
are more psychotic are more neglectful of their grooming
and hygiene. So the fact that he’s asking to take a shower
is indicating higher levels of functioning rather than lower
levels of functioning. It’s indicating [57] he was not en-
tirely psychotically preoccupied.
Q. And then we've had testimony that he was then
picked up by his parents at the athletic club and they went
to the theater?
A. Correct.
Q. And you mentioned — did you know he watched
the movie Shaft?
A. Yes.
152
Q. And we've had testimony that the defendant was
then allowed to stay — at approximately 9:30 allowed to
stay at the theater, the Harkin’s Theater, and the parents
left for home?
A. Correct.
Q. And do you recall how each of the parents de-
scribed the defendant when they left him at the theater?
A. They generally described — well, they described
him as that he was normal; he gave them a hug as they
left.
Q. So each parent described him as normal, as you
recall?
A. Yes.
Q. Any significance to the fact that they allowed him
to stay there at 9:30 in the evening alone?
A. Well, again, they didn’t act on to supervise [58]
him at that time.
Q. I believe I asked one of the parents whether or
not they saw any type of a weapon concealed on the
defendant on the way to the movie theater or at the
theater after they were leaving, and they said, no. And I
don’t believe that was contained in any reports. I just want
to give that to you for the rest of your opinion here.
A. Okay.
Q. We've also had testimony from Gentry, the
brother, that he returned home | think around 1:30, placed
the keys on his desk in his room.
A. Yes.
153
Q. And those were later found in the truck. Correct?
A. Yes.
Q. Is there any significance that the defendant
would have had to — or if you want to comment, if the
defendant would have had to somehow travel from the
theater to the home, enter the home, enter Gentry’s room,
obtain the keys, somehow obtain a weapon, go out to
Gentry’s truck, unlock the truck, get in the truck, place the
keys in the ignition, start the truck and drive a stick shift;
up to that part, anything significant with regard to his
mental! health?
[59] A. Well, they all reflect on his capacity for
functioning and for recognizing reality, for carrying out a
fairly complex sequence of behavior.
Q. Now, we know it was a — he was driving around a
quiet neighborhood between — there’s been some testimony
even before 4:00 a.m. but let’s say 4:00 to 4:50 a.m., with
some type of rap music blasting. And he would have had to
have had a loaded gun next to him. Would you like to
comment on that? Any thoughts you have as to his mental
status again?
A. Well, I guess for me that, you know, on the one
hand, it again is indicative of his capacity for functioning,
but the exact meaning of that behavior or the goal orienta-
tion of that behavior I think is unclear.
Q. If one’s intent was to provoke a police officer to
come to you, would you consider this provocative behavior?
A. Yes.
154
Q. And you’re aware that at least one witness said
he counted, I believe, 22 laps that the defendant was going
through his neighborhood?
A. Yes.
Q. And, again, with the loud music the entire time?
A. Yes.
{60} MR. POWELL: Judge, its 10:25. Would this
be a decent time for the break?
THE COURT: That’s fine. Ladies and gentle-
men, we'll take about a 10-minute break at this time.
Thank you very much.
(Whereupon, a recess was had from 10:25 a.m. to
10:47 a.m.)
THE COURT: Let the record reflect the presence
of the parties.
Counsel, you may continue your examination.
MR. POWELL: Thank you, Judge.
Q. BY MR. POWELL: Doctor, is there anything
about the fact that the defendant was driving a stick shift
vehicle that stands out in your mind with regards to his
mental abilities?
A. I recall seeing in the records that there was some
discussion of whether he knew how to drive a stick shift,
and to the extent that he didn’t know how to drive a stick
shift, what one was doing with that would demonstrate his
capacity for concentration, coordination.
155
Q. Now, when we left off, I think you agreed it can be
defined as somewhat provocative behavior if he truly did
want to attract a police officer to him?
A. Yes.
(61] Q. And we do know that he had a loaded gun
next to him or on him. Let’s take it to the next stage. We
know that Officer Moritz is dispatched. You’re aware of
that. I think you had transcripts of the dispatch tapes and
all.
A. Yes.
Q. At some point, he put on his overhead lights. At
some point, he has to put on his siren. He does make the
comment, I got someone running on me. And we know
from earlier testimony, it’s been 50 seconds from the time
he says, I got someone running on me, to the time he says,
I will be out with him. We know, again, from prior testi-
mony that the defendant stops the truck with Officer
Moritz behind him, in his vehicle, and that this is stopped
just about a half block away from the defendant’s parents’s
home, his own home. Any thoughts on that?
A. Well, he could have chosen to proceed home,
would be one of the options that was available to him.
Q. And | don’t think you — well, you may be aware of
this. Dr. Morenz testified on Friday that the defendant
had told him, even though he felt his parents may be
aliens, his family was still — parents were still his best
friends. Were you aware of that?
A. Yes, lam.
156
Q. And although we have no eye witnesses, we do
[62] know Officer Moritz does exit his vehicle and he is
shot and killed.
A. Correct.
Q. And from what we understand, the evidence then
shows that the defendant took the weapon with him, the
.22 caliber weapon, and fled. Is that your understanding?
A. That’s correct.
Q. Any thoughts on that as far as his mental abili-
ties?
A. Well, it appears to reflect organized behavior,
goal-oriented behavior, and possibly evasive behavior.
Q. Is evasive something you look for when you're
dealing with the second prong of the insanity test?
A. Yes, I do. If, for example, sometimes a person will
commit a murder in a state of insanity or an insane state
and believe that what they did was legally wrong but
morally right and, therefore, they 4on’t need to escape and
so they wait for the police to come, expecting that the
police will be of assistance to them and understand why
they did what they did.
Q. Evidence has been that the defendant was able to
conceal himself for about 16-and-a-half hours and, as [63]
you had mentioned earlier, a rather intense manhunt or
search for him. Any thoughts on that as far as his mental
abilities?
A. Well, again, I think that that reflects that he’s
oriented to the situation and he was engaging in goal-
directed behavior. There seems to be little other explanation
157
for why he would not become visible in any neighborhood
during that period of time, and it suggests that he was
aware that he had done something wrong and that he
needed to stay away from the police.
Q. There’s also been testimony that when the defen-
dant was located, he was near his home, seen by a police
officer, and he then ran from police officers who were
giving him commands and were in uniform telling him to
stop. Any thoughts on that?
A. Well, again, it suggests that he was aware that he
was in trouble and that he was attempting to evade
capture by the police.
Q. When he’s arrested he does not have a weapon on
him, he does not have the handgun. And I believe you have
seen a photograph of the recovery site. And I could tell you
that he had been seen fairly near that just moments before
his final arrest. Thoughts on that as to his mental state?
A. To the exteit that he’s trying to hide the [64]
murder weapon, again, indicates that he knows what he
did was wrong and he’s taking evasive action.
Q. And that he’s — as he’s running from the police
officers near his home, he does not stop his flight until he’s
confronted by two detectives who are armed with weapons.
And one testified that he aimed his laser at his chest; at
that point in time, he stopped. Your thoughts on that as to
his mental state?
A. That that reflects his capacity fr good judgment.
Q. Now, you are aware of the details of his arrest
from your review of the police reports?
158
A. Yes.
Q. Did you see any evidence there that the defen-
dant was frightened of the police officers or that he ever
said anything about the police officers being aliens?
A. No, I didn’t see that.
Q. And are you aware that shortly thereafter when
he was being processed for some physical evidence there
was a female detective helping to straighten his pants and
he offered for her to be allowed to touch his penis?
A. Isaw that, yes.
Q. How does that factor in, if at all?
A. Well, I suppose one could interpret it as that [65]
he was being flippant as opposed to being intimidated.
Q. Doctor, let’s just get to your opinion. We haven't
gotten to that yet. What is your opinion as to the defen-
dant’s ability to know whether shooting Officer Moritz was
wrong? What is your opinion?
A. My opinion is that with the reasonable degree — to
a reasonable degree of psychological certainty, that Mr.
Clark knew that he was committing a criminal act when
he shot Officer Moritz.
Q. And please explain to the Court why you've
reached that opinion.
A. I reached that opinion because, with the variety of
data that I relied upon, would include, I guess, beginning
with the statements that he made regarding his intent to
shoot police officers, both at Thorpe Park and to Desiree
159
Barreras and Lisa Oedekerk, made comments about anti-
police attitude, that if he was intoxicated at the time of the
shooting, that that would mean that he would not qualify
as being insane and he may have been intoxicated, though
we don’t know.
The evidence that we have, the best data that we have
to base a conclusion then is the information about his
functioning around the time of the crime. And for me that
included the fact that he had been dating a girl, I think as
recently as the end of April. And [66] though he was
somewhat bizarre on some of those dates, he was capable
of having a dating type of relationship at that time, at
least in her opinion. That he continued to workout regu-
larly at the club and to be paying attention to his hygiene
and his physical status that way. That he continued to
socialize to some extent; he went to the party, at the party
he engaged in that act of fisticuffs, he broke the kid’s nose.
We know that he was intoxicated at that time. We know
that then the following Friday, that was on a Wednesday,
and the following Friday he went to The Museum Club
where he was observed socializing. He was by himself but
still placing himself in the presence of his peers. That
around this time, school was completing, and I think he
completed the school year and earned some passing
grades, as well as completing the correspondence courses
that he had begun in the fall of 1999. Then we have the
reports of the fellow at the Sizzler who says he seemed to
be doing better than he typically had been when he was at
the Sizzler restaurant, and he was engaging in that
conversation of having been in a fight. So, again, his
aggressive behavior is emerging as a theme, as a conscious
theme, as a theme of selected behavior rather than reac-
tive behavior against aliens. That the parents then report
160
that he was doing relatively well on that night. His mother
spent from [67] roughly 2:30 in the afternoon with him
until 9:30 at night, and she reported him to be normal,
which I’m sure means normal for Eric as opposed to doing
worse, given his typical range of functioning, but doing
better in his typical range of functioning. That then we
don’t have any evidence of a stressor between 9:30 at night
and 4:30 in the morning that would accommodate or
explain the precipitous drop in his level of functioning that
must have occurred if one adopts an insanity theory.
So that, ultimately, I suppose there’s two primary
theories at work; one would be an insanity theory that his
mental status took a nose dive and he saw the policeman
as an alien and attacking him. And I don’t think that it’s
my job to engage in theorizing. I think it’s my job to opine
about the mental state at the time of the offense; however,
I did note that there was no where in the data that Mr.
Clark had mentioned the police as trying to get him or
attack him. And I also noted that all of his concerns about
being killed were about being poisoned. And so, suddenly,
we would have to have that at the moment of the crime for
the first time his delusional system incorporates the police
as aliens engaging in active acts of aggression other than
trying to poison him.
On the other side — and it’s also [68] important to me
that that theory is based on inference and speculation —
that on the other side of the theory that would hold that
he was volitional, that he was acting with a purpose, that
the purpose was either to shoot the cop or possibly to
evade apprehension because he thought he was being
busted for burglary, that the — there’s more data on that
side, which is let’s call it first degree data or primary data,
physical evidence, whether that is the attempt to evade
161
the policeman, the hiding successfully for 16-and-a-half
hours, the hiding the gun, the attempting to avoid the
policemen at the time of his capture. And then, addition-
ally, I do think it’s significant that between the time that
he left the theater and when he shot Officer Moritz, that
he had to have the wherewithal in order to get into the
house without being detected and steal his brother’s truck,
which apparently was an unusual behavior for him. So all
of those things together led me to the conclusion that he
probably knew what he was doing, that he knew that what
he was doing was wrong.
Q. Now, sir, you are aware that insanity is an af-
firmative defense. Correct?
A. Yes.
Q. And the burden is on the defendant to come
forward with evidence. Correct?
[69] A. Correct.
Q. Now, at this point in time, you’re not saying that
you know what was going on in the mind of the defendant
at the time of the shooting?
A. That’s correct.
Q. And I believe Dr. Morenz told us the same on
Friday.
So are you saying that it’s — you have to look at all of
the other data? Since the defendant has not made any
statements to any mental health experts as to what
happened, we have to look at everything else and conclude
from there?
A. Correct.
162
Q. And it’s your opinion that using first degree data,
as you put it, there is much more evidence that the acts
were volitional than an act of insanity which would have
to be based on inference and speculation?
A. Correct.
Q. In the world of mental health, particularly in
forensic work — and if I’ve asked this, I apologize. I don’t
think I have — can it be presumed or inferred that because
a person was suffering from a mental illness before and
after a crime, that they — that that would account for their
activities at the time of the crime?
A. No. I don’t believe so. I think that you [70] have to
have something that specifically ties a mental illness to
the behavior.
Q. And it’s your understanding that’s what's re-
quired under the Arizona law?
A. Yes.
Q. You discussed intoxication a bit. Now, we do know
thet the defendant, when screened on the 22nd a number
of hours after the murder, was negative for anything
except the tabulates of THC?
A. Yes.
Q. And something that I don’t think you've been
made aware of, Dr. Keen testified after getting ready for
some toxicological work said that any drugs that would
have been in the defendant’s system at the time of the
murder would have been gone by the time the toxicology
tests were performed.
A. Okay.
163
Q. Do you have any opinion at this point in time
whether or not the defendant was intoxicated or under the
influence of any type of drug?
A. Well, I have observations in that regards. I recall
that in the truck there was found a marijuana pipe that
had his DNA on it, I believe, and he — when I interviewed
him, I talked at some length about his use of drugs and
alcohol and about any patterns of abstinence [71] that he
had, and he had indicated that there possibly had been a
pattern of abstinence early in 2000, but not after that.
That I was impressed through the records where I saw
statements by people that he had been drunk to the point
that if — once on senior ditch day if he hadn’t been pulled
out of the creek, that he might have drowned. That I think
another defendant — he told another of his associates on
one day that he had consumed two bottles of wine and that
he was wreaking of alcohol and that he asked his associate
if he wanted to smoke a joint. So with all that information
in the background and with the widely accepted premise
in clinical practice that people tend to under report the
extent of their substance abuse, there’s quite a — I think
that would lead to drawing a conclusion that he was
probably intoxicated at that time.
Q. And, if so, your understanding of the Arizona
insanity law, that would not apply. Correct?
A. Correct.
MR. MIDDLEBROOK: Judge, I didn’t hear that
last answer, but I think it’s been a repeated thing, but Dr.
Moran is apparently some kind of legal expert as the facts
relate to the law. And I don’t believe, unless he has legal
training, that he’s — foundation has not been laid for those
164
type of questions that should be asked, whether Arizona
law is applicable to a specific [72] situation.
THE COURT: I will sustain the objection. That
is appropriate.
MR. MIDDLEBROOK: Thank you, Judge.
MR. POWELL: Judge, if I may, for the record,
13-502 does require the doctor to be very knowledgeable
about insanity law to be allowed to do what he’s doing.
THE COURT: I understand, counsel.
Q. BY MR. POWELL: In talking about delusions,
you said that the defendant seems to have the delusion
when someone was going to kill him, they were going to
poison him. Correct?
A. Yes.
Q. Are delusions usually compartmentalized or
generic and general?
A. They are generally compartmentalized. With
paranoid schizophrenia, for example, one of the character-
istics is that at person’s cognitive function remains largely
intact outside the delusional area. Delusions can be
circumscribed to one particular focus. For example, I had a
case in which a woman attacked her husband under a
delusional belief that he was being unfaithful to her. That
was the only delusion that she had. It was very tightly
circumscribed but, generally, [73] delusions are circum-
scribed to some extent so that a person is paranoid but
able to function in society.
Q. And that’s the cognitive area we were talking
about?
165
A. Yes.
Q. Would you, as a professional, if a person is —- who
is suffering from schizophrenia and feeling that — and
paranoia also, feeling that someone is going to kill them by
poisoning them, would you anticipate that they are going
to shoot someone who has no ability to kill them with
poison at that time?
A. It’s not consistent.
Q. Doctor, before I finish here, do you want to place
any limitations on your opinion for the Court?
A. Yes. Well, I think that it is my practice and I
think its accepted practice that many - any time an
opinion is rendered, you can cite the limitation. And
limitations in this case, as in any case, that the accuracy
and validity of my conclusions depends on the accuracy
and the completeness of the data that I was provided.
That, in this particular case, the absence of information
from the defendant is a significant limitation and it’s a
significant hole in the data in terms of coming to an
understanding of what his mental status was at the time
of the offense. For example, if [74] he did adopt a more
corroborative and forthright attitude about what was
going through his mind at that time, my opinion might be
different.
Q. Okay. And you prepared a document or mental
state of offense, and I believe I was going to put that up,
and I provided this to you earlier. Maybe this would help.
Would you like to address this for the Court?
A. Yes. This is a chart I saw in the book that I was
reviewing in preparation for trial. And the author here is
identifying levels of data for mental state at the time of
166
the offense evaluations, and he identifies primary data as
the defendant interviews or third party information about
the crime scenario.
After that, the secondary information which is more
general about the social history of the individuals and
prior medical and psychiatric records. Beyond that you're
into secondary information which is more specific, such as
psychological testing or any kind of neurological testing to,
you know, confirm an act for mental disorders. But I think
it illustrates in the primary data category we’re missing a
very important element, and that puts a limitation on both
my — I think it puts limitations on my conclusions.
Q. And any other mental health professional that’s
trying to do the same thing?
[75] A. Correct.
Q. Doctor, at this time, as you sit here, having
considered everything, can you provide the Court with any
link between the defendant’s mental defect and with the
crime itself?
A. No.
Q. If we were to use a but for test, but for the
mental defect would this crime have occurred, would this
crime not have occurred?
A. Ithink the problem is that we don’t know that.
Q. And your opinion that the defendant - well,
please again give us your opinion within a reasonable
degree of psychological certainty.
A. That the defendant did know that his behavior
was wrong, that the severity of his mental illness was not
——_———
167
such that it incapacitated him from appreciating the
wrongfulness of his conduct.
MR. POWELL: If I could have a moment, your
Honor.
THE COURT: Certainly.
MR. POWELL: Thank you, Doctor.
I have no further questions. Thank you, your Honor.
THE COURT: Thank you, counsel.
[76] Mr. Middlebrook.
MR. MIDDLEBROOK: I need a minute to get
set up, Judge.
THE COURT: Certainly.
CROSS-EXAMINATION
BY MR. MIDDLEBROOK:
Q. Dr. Moran, if I refer to your interview — there’s a
copy, Judge — | filed a copy with the clerk.
THE COURT: Thank you.
Q. BY MR. MIDDLEBROOK: Dr. Moran, I had
an opportunity to interview you approximately a month
ago. Correct?
A. That’s correct.
Q. And then this morning we were given a complete
list of probably an additional 15 to 20 documents that you
reviewed after that interview?
A.
168
Correct.
Q. Prior to your — prior to the interview, it would be
fair to state that you had not reviewed any of Dr. Parrish’s
works; is that correct?
A.
If it’s not listed in the documents I reviewed, that
would be correct.
Q. Last night I received a copy of your notes.
A. Yes.
Q.
Correct?
(77) A. Yes.
Q.
And I asked for that about a month ago. Correct?
A. You asked for it on July 23rd.
Q.
Okay. I just want to have you - do you have a
copy of that in front of you, your notes?
A.
Q.
A.
Q.
I don’t believe so.
No?
No.
Well, let me just have you identify one document
for me. I’m going to hand you what’s been marked Exhibit
Number 100. Ask you if, first of all, that was part of the
notes you provided to me and, secondly, whether you
would have authored that?
A.
Um, well, these are parts of working notes. And I
didn’t author this document. This document was authored
by David Weinstock. And that would have been —
169
Q. Is that a document that would have been sent to
Mr. Rozema or Mr. Lessler earlier in the case?
A. Idon’t believe so.
Q. If you look through that document, please, I don’t
see any documents that are referenced within it that are
subsequent to September, 2000. Would that give any
bearing as to when that particular document was au-
thored?
[78] A. Yeah. I believe it was towards the beginning
of my involvement in the case.
Q. Okay. And would that document have been
provided to the state, either to Mr. Lessler, to Mr. Rozema
or to Mr. Powell?
A. Not that I'm aware of, except for as it was pro-
vided to Mr. Powell as it was to you.
Q. I'm sorry?
A. It was provided to Mr. Powell last night as it was
to you.
Q. Correct. You’ve told the Court that you're a
forensic psychologist. Does a forensic psychologist strate-
gize with the lawyers?
A. Yes.
Q. Yes?
A. Yes.
Q. That's part of the evaluation process — independ-
ent, objective evaluation process is to strategize with the
attorneys?
170
A. No. It’s part of the preparation of court. It’s part
of the process that has to do with preparation for court.
Q. And also in preparing your reports?
A. No. I didn’t strategize with him about that.
Q. Well, Dr. Moran, you told us that you authored
[79] this particular document.
A. No, i didn’t.
Q. Sometime — I’m sorry. Let me ask it a different
way. You relied on this particular document early on in the
case. Correct?
A. Correct.
Q. All right. And you're telling us that as an inde-
pendent — as we look at your opinion contained in your
report as to its independency, that you believe it’s okay to
strategize with the lawyers that have hired you?
A. I believe it’s appropriate in legal cases to consult
with the attorneys regarding the forensic aspects; that is,
the intersection of psychology and the law. I don’t believe
it’s appropriate for me to let a lawyer tell me how to do my
job or think or how to write a report.
Q. All right. Now, in regards to your independence,
you've never been hired by the defense to render an
opinion. Isn’t that true?
A. Regarding an insanity case?
Q. Correct.
A. That’s correct.
171
Q. So your view of the Arizona law regarding insan-
ity, your view of the — how certain behaviors may relate to
that analysis, you’ve never been asked by the [80] other
side to do that, have you?
A. No, I haven't.
Q. And you’ve been doing this type of work 12 to 15
years. Correct?
A. Correct.
Q. Id like to turn your attention to that particular
document that I have handed to you.
A. Yes.
Q. On page two of that document, does it set forth a
strategy of, in this case, as to what the defense may do and
what the prosecution may do?
A. Yes, it does.
Q. And so when you come into court and tell us
about, for example, that Eric ran from the scene has
significance, that voluntary intoxication he may have been
under the influence has significance, that’s all contained
within this strategy, isn’t it?
A. laccept your word that it is.
Q. You can, because | read it very carefully.
A. Okay.
Q. Also, you indicate in this strategy that —
THE COURT: Excuse me, counsel. You're
misstating the evidence when you say, you indicate. It was
authored by Weinstock.
172
MR. MIDDLEBROOK: But he’s relied on it.
[81] THE COURT: They are two different
things.
Q. BY MR. MIDDLEBROOK: Mr. Weinstine (sic)
works with you?
A. Weinstock, yes. Yes.
Q. Okay. And the work that he does for you, you rely
on, in particular in this case. Correct?
A. Yes.
Q. Okay. And so when Mr. Weinstock’s outlining a
strategy, that was something you asked him to do. Cor-
rect?
A. No. I didn’t ask him to outline a strategy.
I asked him to review some documents, to provide me
some summary of the documents. And I might point out,
_Mr. Weinstock is a Ph.D and J.D. so spontaneously and his
own he presented it to me in this fashion.
Q. But you read it?
A. I read it.
Q. And considered it prior to writing your report.
Correct?
A. That’s correct.
Q. Okay. And as part of the strategy in — in prepar-
ing your report, you also relied on Dr. Jack Potts, who’s the
state’s consultant in this case. Correct?
A. Correct.
173
Q. And you talked to him about what would be [82]
contained in your report, didn’t you?
A. Yes.
Q. Prior to writing your report. Correct?
A. Prior to releasing it.
Q. Doctor, wouldn't you agree with me that insanity
is merely a gross impairment of reality?
A. I think insanity is a legal term.
Q. But you have rendered an opinion, have you not,
as to whether Eric was insane at the time of the shooting?
ee
A. I would more specifically disagree that insanity is
merely a gross impairment of reality.
Q. And you would agree with me that anyone who
says merely that it’s a gross impairment to reality, that we
should not consider their opinion wholeheartedly?
A. It depends on the context.
Q. If someone was being asked the definition of
insanity and what it means, unu.r that context, should we
consider the opinion or not?
A. Could you repeat the question or rephrase it?
Q. My question to you was simply, do you agree that
the definition of insanity is merely the gross impairment
of reality?
A. I disagree with that.
Q. And you would disagree with the person that [83]
would use that as a definition?
174
A. Yeah, I guess so.
Q. Especially where that person is being asked what
their definition of insanity is?
A. Again, I think it would depend on the context, but
broadly speaking, I would disagree with that.
Q. Well, Dr. Moran, I’m telling you the context in
which this question was asked. I’m asking you, yes or no,
do you agree with that opinion or not, if someone is being
asked, what is your definition of insanity, and they told us,
it’s simply the gross impairment to reality, should we
consider that person’s opinion as accurate?
A. Well, I mean, the context, I don’t know whether
that’s a conversation that occurred.
Q. Is that yes or no?
A. Ican’t answer it yes or no.
Q. All right. Well, let’s turn to page 76 of your
interview.
A. Okay.
THE COURT: Counsel, this has not been
marked into evidence. Is it going to be?
MR. MIDDLEBROOK: I had asked your clerk
to.
THE COURT: It’s not been marked.
(84) MR. MIDDLEBROOK: It’s just simply
demonstrative.
THE COURT: Mr. Powell, do you object to me
considering this as he questions him?
175
MR. POWELL: What is it?
MR. MIDDLEBROOK: It’s a copy of the inter-
view.
MR. POWELL: Is it going to be admitted?
MR. MIDDLEBROOK: It’s not going to be admitted, no.
THE COURT: I don’t know. That’s the problem.
MR. POWELL: Well, I think it’s hearsay, Judge.
I don’t think with — I don’t see how it can be considered at
this point in time.
MR. MIDDLEBROOK: It relates to prior incon-
sistent testimony, Judge, exception to the hearsay rule. It’s
clearly admissible to impeach a witness with a prior
statement. :
THE COURT: I'm going to allow it.
Go ahead, counsel. I will not admit it.
MR. MIDDLEBROOK: Judge, I would ask if you
would like to turn to page 76.
THE COURT: Counsel, I think you have to
establish what it is that he said wrong before I can read
[85] it under the rules.
MR. MIDDLEBROOK: Judge, I think — I think
that we’re allowed to.
Q. BY MR. MIDDLEBROOK: First of all, let me
just ask. Why don’t you take a look at that interview and
let me ask you a basic question. Does that appear to be a
fair and accurate transcription of the testimony you
176
provided — or excuse me - as to the interview, the ques-
tions and answers that you provided to me?
A. What line is it?
Q. Just look through the entire interview at this
time.
A. On page 76?
Q. No. You can just look through the entire inter-
view. At this point, I’m not referencing any particular
page. Dr. Moran, can you just simply look at the interview
and transcript and tell me if that appears to be a fair and
accurate copy of the question and answer session that we
had?
A. It does.
Q. Okay. Now, please turn to the bottom of page 75.
And I’m simply going to ask you whether this question
was asked and whether this was your answer: When you
say that last statement, when you say in order to deter-
mine the legal standard of insanity, are you [86] basing
that on any authoritative text besides the statutes you
cited?
On page 76, top line, well, gross impairment of reality
testing is a common standard that’s used in the commu-
nity, and I think that there are symptoms that are associ-
ated with that.
Do you see that?
A. Yes.
Q. Was that your answer to the question that I
asked?
177
A. Yes, it was.
Q. And you would agree with me, would you not,
that you intended to mean that gross impairment to
reality is a standard for insanity within your community?
A. I think that that’s what I said, gross impairment
of reality testing is a common standard that’s used in the
community.
Q. All right. So, in other words, if Judge Coker
determines that Eric was grossly impaired as to his ability
to perceive reality, he would be insane. Correct?
A. No. I’m saying on page 75 I said — your question
was: Are you basing that on any authoritative text besides
the statutes that you cited? And so I think that my answer
can be understood that I was citing the [87] statute. And
then, additionally, I was saying that within the commu-
nity, that people talk about gross impairment of reality
testing.
Q. I’m sorry, Dr. Moran. That wasn’t the question I
asked.
A. Okay.
Q. I know that you want to answer a different
question, but that wasn’t it. The question that I asked was
simply, if Judge Coker determines that Eric’s impairment
to reality was grossly impaired, that under what you've
told me is your answer as to a legal definition of insanity,
Eric would be insane. Correct?
MR. POWELL: Objection, your Honor. Same
objection counsel made when I asked a leading question of
the witness.
178
THE COURT: I don’t like the leading nature of
it. I think the Doctor is trying to explain the answer and
you're trying to ask him a question he can’t answer be-
cause it’s different, sounds like it’s a very narrow —
MR. MIDDLEBROOK: Let me ask it this way —
I will ask it this way.
Q. BY MR. MIDDLEBROOK: Within your commu-
nity, psychological community, you would agree with me,
most professionals rely on a standard of gross impairment
to [88] reality in determining whether someone is insane
or not. Is that a fair statement?
A. I think that has to be one component.
Q. Well, you certainly didn’t add any other compo-
nents to your answer, did you, when I asked that question?
A. Not at that moment.
Q. Okay. And, Doctor, let me ask you this: You
understood that when I was there asking you those ques-
tions, and I had only received your report the day before
that interview, that I was there to learn the nuances
contained within your report?
A. lIunderstood that.
Q. And you understood that that was going to be my
interview of you so that I could prepare for your testimony
today. You understood that, too, didn’t you?
A. I did.
Q. And I also asked you that if there was any — at
any time during my interview session with you that you
179
felt you needed to go back and clarify an answer, that I
would always give you that opportunity, didn’t I?
A. Yes.
Q. As we sit and speak today, Doctor, are there any
answers that you feel are necessary to change?
A. I guess I would change that one.
[89] Q. Okay. Any others as we sit and speak?
A. Id have to review the document to answer that. I
did review the document and I found a number of things
that I didn’t think was expressed as well as I might.
Q. All right. When I was asking you those questions,
your mind was clear, you weren't under stress, drugs,
anything like that; is that correct?
A. That’s correct.
Q. Let’s talk about some things we might be able to
agree on. First of all, you agree that Eric has paranoid
schizophrenia?
A. He suffers from that, yes.
Q. And that as a sufferer of paranoid schizophrenia,
that his — that he would be cognitively and socially im-
paired?
A. To some extent.
Q. And that one of the factors in looking at cognitive
impairment would be standardized testing?
A. Yes.
180
Q. And that we know that from Eric’s standardized
testing from the 9th to the 10th grade, he significantly
dropped in such things as reading comprehension and
reading ability to about the 5th or 4th grade level. Cor-
rect?
[90] A. That’s correct. We don’t know whether he was
intoxicated when he took that test.
Q. Is there any other thing you'd like to tell us about
intoxication so that we can not have to keep having to
insert that in every question or every answer that I ask
you?
A. Not at this time.
Q. Because you've ruled out intoxication as a signifi-
cant contributor to his psychosis, haven't you?
A. I recall that question.
Q. I’m sorry?
A. As a significant, yes. I don’t think it was a signifi-
cant contributing to his psychosis.
Q. All right. Do you have any evidence, Doctor, that
Eric was intoxicated when he took those tests?
A. He said he got stoned every day from the 9th
grade on.
Q. Okay. And so in the 9th grade he took those tests
stoned and he did just fine; 10th grade he significantly
drops.
A. Okay.
181
Q. So my question to you, Doctor, I mean, do you
have any evidence he was intoxicated, yes or no?
A. No.
Q. All right. You told me during the interview [91)
that Eric suffers chronically or continuous symptoms of
paranoid schizophrenia. Correct?
A. Correct.
Q. As a chronic sufferer, he would be unable to
perform complex tasks?
A. Correct.
Q. As a sufferer of schizophrenia paranoid type, he
would suffer persecutory delusions?
A. Correct.
Q. Well-documented in this case?
A. Yes.
Q. He would suffer grandiose delusions?
A. Probably.
Q. For example, the rap stars are going to elect him
president, would be a example of a grandiose delusion?
A. Yes.
Q. Paranoid schizophrenia is characterized by
distorted thinking?
A. Correct.
182
Q. Sufferers of paranoid schizophrenia have a
difficulty in distinguishing between external reality and
internal reality?
A. At times.
Q. As a sufferer of schizophrenia, hallucinations [92]
don’t necessarily have to be command hallucinations to
suffer them. Correct?
A. Correct.
Q. As achronic sufferer of schizophrenia, we would
expect to see someone’s social habits deteriorating, for
example, like leaving the bathroom door open while they
defecate or urinate?
A. Correct.
Q. We'd expect that person to also have a lack of
emotional response, flat affect is often the terminology; is
that correct?
A. That’s correct.
Q. And be — with paranoid type schizophrenia we
would expect that person normally in their delusional
state to be hostile, suspicious, and guarded?
A. Could you clarify by what you mean in their
delusional state?
Q. Well, they're suffering paranoid type, they’re
typically delusional?
A. I think that they — I don’t think that’s specific
enough. I think that there could be times that they are
engrossed in their delusional state and other times when
183
the delusional state is more central from their mental
status.
Q. Okay. Typically, does a paranoid [93] schizo-
phrenic usually exhibit behaviors that are hostile and
suspicious or guarded?
A. Not all the time.
Q. I’m not saying all the time. I’m saying is it typical
behavior?
A. Id say it’s frequent. Common. Typical is fine.
Q. Well, actually, let’s go back to that. DSM-IV
criteria, what does it teH-us-about guarded, suspicious or
hostile behavior?
A. That’s one of the criteria.
Q. Specifically listed and gives in DSM-IV criteria
for paranoid schizophrenia. Correct?
A. That’s correct.
\
Q. Okay. And examples of that would be delusions
about the end of the world?
A. Yes.
Q. And delusions about they’re out to get me?
A. Might be, yes.
Q. Well, they’re out to get me, can you tell me what
type of delusion that would be other than paranoid?
A. Well, for example, in the MMPI there is a ques-
tion that says, people are plotting against me, and that is
commonly responded to in the affirmative by people who
184
are in custody disputes. So the idea that [94] people are
out to get you is such a common phrase in our culture that
I don’t think it’s specific enough to relate in and of itself in
psychosis.
Q. Do you think Eric is involved in a custody dispute
here, Doctor?
A. No, I don’t.
Q. Okay. So if Eric was using the phraseology,
they’re out to get me, can you imagine what other context
it would be than paranoid?
A. For Eric it would seem to be more paranoid.
Q. Okay. You’re not trying to change your opinion
here that Eric’s not paranoid schizophrenic, are you?
A. No.
Q. Okay. You'd agree with me that typically paranoid
schizophrenics are more sensitive to situations?
A. Depends on the situation.
Q. Critical or rejection type situations?
A. I'd agree with that.
Q. And, also, those can be perceived by the paranoid
schizophrenic. even being very trivial rejections or criti-
cism, can be inappropriately responded to. Correct?
A. lagree.
Q. You’d agree with me, would you not, that often
[95] a paranoid schizophreni¢’s reactions to a particular
situation are unpredictable and variable?
185
A. Can be.
Q. You’d agree with me that delusions often occur
extraordinarily or rapidly?
A. It could occur rapidly?
Q. Correct.
A. That can happen.
Q. For example, they can have a moment they can
see something on TV and believe God was speaking to
them at that moment in time?
A. Yes.
Q. As paranoid schizophrenics — excuse me — if
someone’s suffering simply schizophrenia, it’s often diffi-
cult to change those person’s logics with reason?
A. Correct.
Q. For example, my mother’s an alien, would be an
example of repeated attempts by the mother to convince
the son that he was not an alien or she was not an alien
would be an example of that. Correct?
A. Correct.
Q. Or the school counselor comes in and says repeat-
edly to the students, you cannot have that class because
you don’t qualify, and yet the student continues on and on
and on about trying to get a particular class, [96] that
would be an example of that, as well, wouldn't it?
A. That wasn’t clear to me that that was a product of
his illness.
Q. I'm sorry?
186
A. If you’re speaking about the incident that oc-
curred at school, when I read that report, that wasn’t clear
to me that that was a product of his illness as opposed to
his personality disorder.
Q. Well, Lois Wells told us — she testified —- have you
reviewed her trial testimony, by any chance?
A. No, I haven't.
Q. She testified that it was unbelievable that he
would not change his mind.
A. Okay.
Q. And we're going to talk about your diagnosis of
personality disorder shortly. We often see chronic schizo-
phrenics neglect their personal appearance?
A. Correct.
Q. We often see their verbal communications as
empty or obscured?
A. Correct.
Q. When questioned why patients, schizophrenics,
believe in their delusions it’s often, I don’t know, I just
know, basically contradictory logic but still their logic?
{97] A. Correct.
Q. And drug abuse is common among schizophren-
ics?
A. Correct.
Q. And often one of the problems becomes, how do
you distinguish between drug-induced psychosis and the
mental disease itself?
187
A. That’s correct.
Q. It’s kind of like pouring milk into coffee, after its
there, it’s a little hard to separate it. Correct?
A. Correct.
Q. With paranoid schizophrenics in particular,
suicide’s common?
A. Yes.
Q. As high as 40 percent?
A. I accept that.
Q. Okay.
A. Suicide attempts.
Q. All right. Often schizophrenics kill in response to
the relentless pressure of, I can’t take it anymore, they
won't leave me alone, those are common themes among
schizophrenics as to why they kill. Is that a fair state-
ment?
A. I’m not familiar with that.
Q. All right. Let me ask you. I thought I saw [98] in
your office A Comprehensive Textbook On Psychiatrists
written by Kaplan in the year 2000. Is that a book that
was in your office?
A. That was on the bookshelf, yes.
Q. Okay. I will show you some photocopied pages,
but let me see if I can find it here very quickly. And just to
be fair here, you rely on that textbook as a reliable source?
A. That is a reliable textbook, yes.
188
Q. Let me have you look at page 11. First of all, let
me ask, just looking at that, whether that appears to be
the Comprehensive Textbook Of Psychiatry written by
Kaplan?
A. Appears to be.
Q. Okay. And when we're talking about violence of
schizophrenics, does it appear under there that basically
suicides, attempts to kill, that type of thing, are surprising
because — and unpredictable?
A. Yes.
Q. Okay. And in regard to the predictability of
violence, there is typically no clear signs that violence will
occur?
A. Oftentimes there’s not.
Q. For example, it’s replete with literature of exam-
ples given with suddenly someone just walks in and [99]
suddenly hangs themselves, walks in, apparently with no
distress, kills their mother or sister because the sister a
year before or the week before had said something to the
effect of, I’m not going to ask you for your release at the
hospital because you didn’t do the dishes.
A. Those kind of anecdote reports are in the litera-
ture.
Q. And you would agree with me, would you not,
that oftentimes one of the symptoms of paranoid schizo-
phrenics, including this case, is child-like silliness, unpre-
dictable and untriggered agitation?
A. I would agree with that in part. It’s triggered, it’s
just that it’s triggered at a much lower threshold.
189
Q. In other words, it doesn’t take much to get some-
one going?
A. Correct.
Q. And you would agree with me that appearance —
that a person’s appearance eight hours prior to a violent
act is a unreliable indicator of potential violence?
A. I think unreliable is too strong a word.
Q. Even in light of the literature that talks about
how surprising, how quick, how things like that violence
can occur with no apparent —
A. It might correlate with their behavior in [100]
eight hours and it might not.
Q. So do you believe, yes or no, that appearance is a
significant factor in predicting violence?
A. I believe it is.
Q. You do?
A. Yes.
Q. Okay.
A. I think depending on how you define appearance.
Q. Have you heard that phrase, you can tell a lot by
the way a man thinks by the look in his eye?
A. Ithink I have heard that phrase.
Q. Do you agree with it as it’s applicable to mental
illness?
A. No.
190
Q. Okay. Id like to clarify something, Doctor. You’ve
ruled out malingering in this case. Correct?
A. Correct.
Q. And, in fact, you used the diagnostic criteria for
DSM-IV as it’s set forth, the criteria for determining
whether someone is malingering, you used that criteria
and ruled it out in this particular case. Correct?
A. Correct.
Q. And when you first interviewed Eric, you [101]
believe that he was straight with you about the delusions
that he explained to you. Is that a fair statement?
A. That’s correct.
Q. And you have also ruled out drug-induced psycho-
sis as a reasonable explanation for his long-term behavior?
A. Correct.
Q. Doctor, you’re aware that in the numerous volu-
minous records, police reports that you reviewed in this
particular case, the police’s chronic thing was, we believe
Eric was intoxicated, correct, at the time of the shooting?
MR. POWELL: Objection, relevance, Judge.
THE COURT: Overruled.
You may answer the question if you can.
THE WITNESS: What I recall is reading an
objection that the interviews were — of the associates and
so forth were emphasizing his drug behavior in excess.
191
Q. BY MR. MIDDLEBROOK: And very little
discussion about his paranoia, his other bizarre behaviors
with most witnesses. Correct?
A. That’s correct.
Q. So when you rely on those reports, you have to
rely on them with some skepticism, don’t you, as a mental
[102] health professional?
A. You have to be aware of it, yes.
Q. Id like to talk to you a little bit about Eric’s
interview. And if at any point you need to refer to your
notes about that particular interview, if you'll simply
inform us that that’s what you're going to do. Okay?
A. Okay.
THE COURT: Mr. Middlebrook, sounds like this
is going to take a few minutes, and | have a meeting at
noon I have to attend, so we'll take our noon recess at this
time. I'd like to have everybody back at 1:30 this afternoon
and we will reconvene at that time. Thank you.
MR. MIDDLEBROOK: Thank you. Could we_
have a quick meeting with you about a scheduling issue?
THE COURT: Yeah.
(Whereupon, lunch recess was had from 11:47 a.m. to
1:37 p.m.)
THE COURT: Let the record reflect the presence
of the parties.
Counsel, you may continue your cross-examination.
192
MR. MIDDLEBROOK: Thank you, Judge. I
need just a second.
[103] Q@. BY MR. MIDDLEBROOK: We're going to
talk about Eric’s interview that you had with him. If at
any point you need to either reference your report or
specifically your notes related to that interview, would you
just simply tell us that, Doctor?
A. Okay.
Q. First of all, during that interview session, was
Eric cooperative with you?
A. Yes.
Q. And you were aware that as you were interview-
ing him that he was under the affects of Haldol, an anti-
psychotic medication?
A. Yes.
MR. POWELL: Excuse me, Bryon, which inter-
view is this?
MR. MIDDLEBROOK: It’s the one dated June
30, 2003.
MR. POWELL: All right.
Q. BY MR. MIDDLEBROOK: Actually, you inter-
viewed Eric twice. Correct?
A. Correct.
Q. Let me ask you whether or not he made the
following statements during his interviews, okay, when
you were interviewing him did Eric relate to you that this
193
pen this thing, the shaking, flicking of the pen was [104] a
laser that only aliens could see?
A. Yes.
Q. And he thought that one of the reasons that he
was put in jail was because the aliens hated him?
A. Yes.
Q. He also related he thought that Flagstaff was full
of aliens?
A. Yes.
Q. And including his mother, his father, his brother
and sister?
A. Yes.
Q. He asked if you were an alien?
A. Yes.
Q. It’s apparent Eric still holds the belief that he —-
that aliens inhabit the planet?
A. It is.
Q. And 1 think he told you that — or when you asked
him, why do you think the aliens are here, he told you that
it was to expand their territory and trade for broccoli and
sugar?
A. Correct.
Q. Okay. And I think when you were in this ques-
tioning phase, you went back to Eric and I think you kind
of reference back to the time prior to the shooting of, you
know, why were the aliens here, and he basically [105]
194
said, I don’t know, but he continued to say that there was a
constant — he had a constant belief that the aliens were
trying to kill him?
A. I don’t remember him saying that specifically.
Q. Would you look at page 34 of your report?
THE COURT: Counsel, do I have that report in
here?
MR. MIDDLEBROOK: It’s in the defense
exhibits, Judge.
THE COURT: Exhibit which, counsel?
MR. MIDDLEBROOK: Page 34 -
THE COURT: No, exhibits, which one?
MR. MIDDLEBROOK: Oh, um, 5B, I believe.
THE COURT: And which page again?
MR. MIDDLEBROOK: We’re on page 34 of his
report.
THE COURT: Thank you.
Q. BY MR. MIDDLEBROOK: Towards the bottom
of that page, Doctor, you noted that in your commentary
with Eric the question was, line 26: What do you best
recall about what you were thinking then about why
aliens were here?
I don’t know. Probably something except they wanted
to kill me.
Why think that?
195
[106] I don’t know. I don’t think that anymore, but I
think that’s part of the reason why I’m — if —- why were you
thinking they wanted to kill you?
Yes. I thought they wanted me dead, to poison me
through my clothes and my food. At the Coconino County
Jail they poisoned me badly, et cetera. Correct?
A. Correct.
THE COURT: Counsel. I’m sorry. I take you for
what you're saying, but it’s not in here. B, 5B -
MR. MIDDLEBROOK: I'm sorry.
THE COURT: That is not conforming.
MR. MIDDLEBROOK: It would be — may I? I
don’t have my exhibit book with me, Judge.
THE COURT: Here.
MR. MIDDLEBROOK: I may have written the
wrong number. There’s an index at the front. Yeah, 5B.
THE COURT: Not my numbering.
MR. MIDDLEBROOK: No, the numbering on
your copy is different. Here. Yeah. Dr. Moran and I had
another problem when I was interviewing him. Maybe I
can find it for you. Apparently, unfortunately, your num-
bering is different than ours.
Judge, it just occurred to me, I think I [107] have got
another copy that references the same numbers. Let me
grab it.
196
THE COURT: Okay. Thank you. I assume,
counsel, you have no objection to this. It’s your doctor’s
report.
MR. POWELL: No. That’s fine, Judge. No
objection.
THE COURT: Thank you.
MR. MIDDLEBROOK: Well, this is odd, Judge,
because the copy I’ve got is the same one as yours, appar-
ently, and yet it’s different in my book.
THE COURT: Counsel, if you just want to tell
me and I will take a note here.
MR. MIDDLEBROOK: I was going to see if I can
find it on the page, Judge. It’s apparently a few pages
later. Your page is 36, your page is 36 and 37.
THE COURT: Okay. Thank you, counsel.
MR. MIDDLEBROOK: And, Judge, I'll try to
make sure I get a copy of the two of the same pages as we
reference through these.
THE COURT: Why don’t you do that, ask the
Doctor again so I know where you're talking about.
MR. MIDDLEBROOK: Yeah.
Q. BY MR. MIDDLEBROOK: As you talked to
Eric, was it apparent to him that the aliens were con-
stantly [108] trying to poison him prior to the shooting?
A. Yes.
Q. And when you were talking with him about the
extent of the poisoning and I just read where I thought
197
they wanted me dead, they were trying to — he related to
you that they were trying to poison him through his
clothes, his food at the jail, in his car, which is why he had
the bird?
A. Right.
Q. And when he told you about why he had the bird
in the car, he — he more or less explained the story that it
was kind of like a coal miner’s bird, to test whether the air
was poisoned?
A. Correct.
Q. And he also told you that, at some point, he
believed that that bird, the aliens had actually taken that
bird, replaced it with a robotic one and put it back so that
way Eric couldn't tell whether the air in his car was
poisoned or not?
A. Correct.
Q. And when he was talking to you about his belief
that his parents at the time were aliens — on and off were
aliens, he also commented, sometimes I think my mother
is doing bad things for me. She tells people I’m schizo-
phrenic.
[109] A. Right.
Q. And he also related to you that he thought his
parents were keeping their identities as aliens secret from
him?
A. Correct.
Q. He related to you that when he decided in his
junior year, beginning of junior year not to play football,
198
that he believed it was at that time the aliens had poi-
soned him?
A. Correct.
Q. And that was around fall of 1999. Is — does that
correlate with your time frame?
‘A. Yes. That’s when he felt that he was first con-
cerned about aliens.
Q. Okay. And, yet, we know that the first time he
related to his mother the alien theme was April, 2000.
Correct?
A. Correct.
Q. So he kept that te himself for a number of
months?
A. Yes.
Q. When he was talking about getting in his car, he
said words to the effect of, it was like poison in there?
A. Is that in my report?
[110] Q. Yes. It would be page — and I apologize to
you, Judge — but it would be about page — towards the end
of page 35, which would be their 36 or 37, Judge, line 24
and 25, I will read as follows: Are there memories of
specific times you thought someone was out to get you?
I feel my clothes and they didn’t feel clean. I felt they
were poisoned. I opened the door to the car and it seemed
like poison in there. I'd be breathing the air and it did not
seem clean, so I thought aliens were trying to kill me a lot.
A. This is in my report or in the interview notes?
199
Q. Should be page 35, lines — as I see it in mine — let
me double-check what I’m looking at — yeah, this would be
your report, lines — page 35, lines 25 — what I just read
was lines basically 23 through 26.
A. Our pagination doesn’t agree.
Q. Maybe you have the same —
THE COURT: Why don’t you start — work off the
one we're all working off, counsel.
MR. MIDDLEBROOK: Yep.
Q. BY MR. MIDDLEBROOK: Let me look at the
pagination of that. Let me look at the pagination of yours.
Now, is this —
111] A. That’s my copy.
Q. This is your copy?
THE COURT: Mr. Powell, do you have a copy
that we’re looking at or do you have the one he’s looking
from?
MR. POWELL: Judge, I’m going to check. I may
have — | think I have both.
THE COURT: See what we can do to be all on
the same page.
MR. MIDDLEBROOK: Yeah. I apologize, Judge.
Something’s happened on the prints.
THE COURT: I don’t have any line numbers on
my pages, none at all.
200
MR. MIDDLEBROOK: Yeah, then that means —
unfortunately, that means you got the e-mail copy. That
would be page 37.
Look at page 37, Doctor.
THE COURT: All right. Thank you. And maybe
you can just refer to two-thirds of the way down.
MR. MIDDLEBROOK: Yeah. Okay.
Q. BY MR. MIDDLEBROOK: Would — let me see
how the end of page 37 is.
A. It’s not — it’s a different page. That’s 36 now.
MR. MIDDLEBROOK: The pagination is even
[112] worse than this one. I apologize. You know, Judge,
what I would suggest is that we take a small break and —-
and get copies so everybody’s on the same page. His copy is
different than my copy and it’s different than the copy that
you have as far as pagination.
THE COURT: Are you going to be using it very
much more?
MR. MIDDLEBROOK: I believe I will be.
THE COURT: All right. Which one are we going
to agree on?
MR. MIDDLEBROOK: Which one —- what copy
do you have, Dave?
THE COURT: If you have a copy that has the
lines designated numbered —
201
MR. MIDDLEBROOK: That’s the copy that I
have. Yeah, Judge, could we just take a minute and copy it
because Mr. Powell and I have the same pagination.
THE COURT: Is there something else you can
be talking about and she can — Lucy can start making
copies while we work.
__ MR. MIDDLEBROOK: Un, sure. Actually, let
me look through my notes real quick, Judge.
You know, actually, I think if I could just get through
the interview portion, it looks like it’s quite a while before
I have to get back to the [113] report.
THE COURT: Okay.
MR. MIDDLEBROOK: So if we can kind of
scuffle through this a little bit.
Q. BY MR. MIDDLEBROOK: I was reading lines
(sic) 35. I think that would be your page —- let me look,
Doctor.
A. I’m sorry. I just don’t see it in my report. I don’t
see it in my notes. I don’t see it.
MR. MIDDLEBROOK: He doesn’t have that in
his group. Why don’t I come back to this area, Judge. I will
see if I can’t move — and we're going to have to come back
because his pagination, I think we've got five different
copies, it looks like.
THE COURT: Is this something we can have
Lucy working on while we’re doing what we're doing so we
can get some conformed copy?
202
MR. MIDDLEBROOK: Yeah. Why don’t I give
Josh my copy of my report and have them make copies for
everybody, and at least that way we're more or less on the
same page.
THE COURT: Three copies enough?
MR. MIDDLEBROOK: We'll need one, two,
three, and I will need mine.
THE WITNESS: Do you think I — do you [114]
think you need one more for me, a copy for me?
MR. MIDDLEBROOK: Only because we'll have
all the same pagination.
THE WITNESS: Right.
MR. MIDDLEBROOK: I apologize. I didn't
realize that was an error.
Q. BY MR. MIDDLEBROOK: All right. Let me talk
a little bit about — kind of shift gears here a little bit. As
you were talking to Eric — we'll come back and talk about
the details of your conversations later.
A. Okay.
Q. But when someone is paranoid schizophrenic,
they may or may not be a reliable historian as to events
that occurred. Is that a fair statement?
A. Yes.
Q. And that could be, for example, people who refuse
to cooperate with their attorney?
A. Correct.
203
Q. Or that their memory of the events may be
unusual because of a psychosis or a delusion?
A. Correct.
Q. Now, one of the — in developing a history of a
patient, a mental health provider basically is concerned
about not only what a patient tells them happened, but
also reliable sources independent of the [115] patient so
that there can be more or less a comparison to determine,
for example, whether the patient is a reliable historian or
not?
A. Correct.
Q. And one of the things that you did in this case,
and | think I told you during my interview I was very
appreciative and I thought you did a very good job in
developing a history by interviewing the Clarks. Correct?
A. Correct.
Q. And when you talked to Dave — excuse me — Terry
and Dave Clark, do you recall at any time asking them
anything about Eric’s behaviors after Eric’s arrest?
A. No.
Q. So I know that- Mr. Powell was asking you
whether or not you heard about Aaron’s story. I want to
tell you now that that was related about August 20th or
22nd, I’m not sure of the exact date. So you would not have
asked Terry Clark or Dave Clark specifically about things
Eric may have been saying after his arrest?
A. Correct.
204
Q. Now, when you consulted with Dr. Potts prior to
writing your report, one of the things that you discussed
was your potential diagnosis that Eric was paranoid
schizophrenic?
{116] A. Correct.
Q. And he agreed basically with that diagnosis?
A. I believe he did.
Q. And one of the things that was also discussed was
whether Eric was intoxicated on LSD or whether his
psychosis was a result of LSD. Correct?
A. Correct.
Q. And that was ruled out, as well, in your — not only
your discussions but by you, as well?
A. Correct.
Q. And if you were discussing the issue of insanity
with Dr. Potts, you told him at that time that really you
could look at this different ways?
A. Correct.
Q. During my interview with you, at some point, I
asked you questions about what your assumptions were as
to what happened during the shooting. Do you recall that?
A. Vaguely, yes.
Q. Okay. And I think, more or less, you told me you
were — really weren’t too concerned about the mechanics of
the shooting because it didn’t have a lot to do with ulti-
mately your conclusions in this case. Is that a fair state-
ment?
205
A. I said something to that effect regarding what
[117] the prosecutors from Coconino County related to me.
Q. Right. And you’ve more or less told us this, but in
developing the history that you have, one of the things
that is relevant here is what context Eric put this shooting
_ in. Is that a fair statement?
A. Yes.
Q. And what we have to do — what Judge Coker
ultimately has to do in this case is, he has to look at
objectively the facts that have been developed in order to
try to decipher what Eric’s internal reality was. Is that a
fair statement?
A. That’s a fair statement.
Q. And one of the methods or procedures that you
used in that development was what’s called the global
assessment of functioning scale. Correct?
A. Correct.
Q. And you've told us that this scale is used by
mental health clinicians for the purpose of determining
someone’s global functioning versus specific functioning.
Correct?
A. Correct.
Q. And as we move down the scale — and I will put
the scale up here in just a second — as we look at the scale
as a clinician, again, what the standard procedures are in
putting someone within a certain [118] category is to keep
moving down the scale until the absolute worst symptom
is shown according to the scale and not shown in the next
one below it?
206
A. Correct, more or less.
Q. I may need to dim the lights just a little bit.
Thanks, Josh. Whoops. If we need to get a better copy we
will at some point.
Doctor, first of all, your rating of Eric was a 31?
A. Correct.
Q. That’s a pretty low score, isn’t it?
A. Yes.
Q. And, for example, when we're looking here at 31,
40 to 31, which is the category you put Eric in at the time
of the shooting, there is discussions about that that behav-
ior — there’s some impairment in reality testing or com-
munication. Correct?
A. Correct.
Q. And there’s some major impairment in civil areas
such as wor, school, family relations, et cetera?
A. Correct.
Q. And, clearly, Eric displayed all of those symp-
A. Tosome extent, yes.
Q. Well, you put him at the lower end of the [119]
scale. Correct?
A. Correct.
Q. Okay. And then we get into the 31 to 20 range
here, and it talks about behavior is considerably influenced
by delusions, hallucinations or serious impairment. Right?
207
A. Correct.
Q. So it’s an inability to function in almost all areas;
stays in bed, no job, home or friends.
A. Correct.
Q. Correct?
A. Yes.
Q. Let me ask you, with a score of 31, do you believe
Eric should have been committed under a Title 36 proceed-
ing?
A. Yes.
Q. And, Doctor, I don’t know that — I know during
our interview you were asked about what his GAF score
was in admission to Aspen Hill. Correct?
A. Correct.
Q. And that was a 30?
A. Correct.
Q. Let me ask you, are you aware that at the Title 36
proceeding, Dr. Shelley Everley GAF’d him at 20?
A. I probably read that but it wasn’t in my mind
[120] until you just reminded me.
Q. Okay. And I have the documents if you need to
look at them, so if at any point you think I’m being unclear
or you need to reference it, please let me know.
A. Was she assigning that score for the time she saw
him in jail or at the time of the crime?
208
Q. Ill show you. This is Aspen Hill, and he - the
GAF is 30 there, and that was — that was one year prior to
the shooting. Correct?
A. Yes.
Q. This is Dr. Everley’s — Dr. Everley’s GAF is 20,
and she did not render an opinion as to the time of the
shooting. This would have been dated 8-31, several
months after his incarceration.
A. Okay.
Q. Okay. And then when he was admitted to the
Arizona State Hospital, then, after being determined to be
— to be incompetent the first time, his GAF was 31.
A. Okay.
Q. And the date of that is 4-3-01, I think it’s — there
it is, 4-2-01.
A. Okay.
THE COURT: Counsel, just — I didn’t get the
number of the doctor that did the Title 36 placed him in
the GAF of what?
[121] MR. MIDDLEBROOK: 20.
THE COURT: Okay. Thank you.
Q. BY MR. MIDDLEBROOK: All right. Certainly, in
determining what Eric’s ability to function or that — as far
as that relates to this particular scale, one of the things in
looking to whether he should have been lowered into this
30 to 21 range would be whether his behavior was consid-
erably influenced by delusions. Correct?
209
A. Correct.
Q. And one of the things that you would do in look-
ing at that is whether his acts were grossly inappropriate.
Correct?
A. Correct.
Q. And one of the things that this tells us is that?
THE COURT: “This,” counsel?
MR. MIDDLEBROOK: This scale.
THE COURT: Okay. Thank you. I just need that
for the record.
MR. MIDDLEBROOK: Thank you.
Q. BY MR. MIDDLEBROOK: What this scale tells
us is that the person has no job or no friends?
A. Correct.
Q. And we know that Eric had no job and no friends
as of 6-22, don’t we?
[122] A. Technically, his parents were paying him
$80 a week to do chores.
Q. Okay. Technically, but he was basically ~nable to
do those tasks. You’re aware of that?
A. Correct.
Q. And we certainly know because of the number of
witnesses that have testified in here before, he would sit
alone at high school on a bench by himself day in and day
out. Is that the history that you have?
A. Ihave read that report.
210
Q. This was — I’m talking about testimony in this
case as opposed to reports.
A. Yes.
Q. Would you agree that that’s reflective of someone
who has no friends?
A. Could be.
Q. And when his brother, Gentry, was interviewed by
the police, Gentry told them, I basically don’t know who
his friends are anymore. No one hung out with him any-
more. His best friend, Victor Meza, said, I quit hanging out
with Eric months before this. You’re aware of that testi-
mony?
A. Yes.
Q. Okay. And you told me during your interview that
while you did GAF him at 31, that Eric being pulled [123]
over by the police could lower it by a couple of points?
A. Correct.
Q. So that would put him at 29 or 30. Correct?
A. In that range, yes.
Q. All right. In determining whether he was at 20,
between 20 and 11, we look to see whether there was some
danger of hurting self or others, occasionally fails to
maintain minimal personal hygiene or there’s a gross
impairment in communication. Correct?
A. Correct.
Q. Okay. And one of the facts — some of the facts in
looking at Eric’s ability to function on the day of the
211
shooting would include, for example, knowing that just
several days before at the Fitzhugh party he had been
involved with a fight with a kid who basically said only
that Eric changed, and Eric suddenly flipped out and
punched him, broke his nose?
A. That’s correct.
Q. We know that his mother the day — days before
this shooting was earnestly, frantically searching for
mental health professionals to have him committed?
A. Correct.
Q. And we know that through - that the county
attorney’s office was contacted and begged to prosecute for
the purpose of forcing Eric into some type of mental [124]
health counseling. Are you aware of that, as well?
A. Insofar as she said that she asked you to contact
the county attorney’s office.
Q. Well, I can assure you I did, and there is a stipu-
lation that Judge Coker has that, in fact, I did do that.
A. Okay.
Q. Okay. When we're talking about acting grossly
inappropriate here in this lower range — or excuse me — in
this lower range, some danger of hurting self or others, we
have to consider the fact that Eric was carrying weapons
for months at a time. Do you know that?
A. Yes.
Q. Okay. And just — I don’t know whether you know
this. Are you aware that when he was arrested for DUI
drugs, when the officer was searching him and taking
212
items off of him — now, remember, Eric went to a senior
ditch day party. Right?
A. Correct. Yes.
Q. He had on him a can of pepper spray locked and
loaded ready to go. Did you know that?
A. Yes, I did.
Q. Did you know he also had several knives, a club
in his car with him?
A. Iwas aware of the special forces knife.
[125] Q. Okay. And are you aware also he had his
bird?
A. Yes.
Q. You're also aware days before the shooting that —
well, excuse me — the day before the shooting Eric’s hy-
giene was extremely poor?
A. In some regards, yes.
Q. Right. I mean, he wasn’t washing his hair. He
may have gone to the athletic club to shower but he wasn’t
washing his hair. His hair was getting worse and worse.
Are you aware of that?
Q. That’s what his mother said.
Q. He was wearing — at the time of his arrest he was
wearing multiple layers of clothing?
A. Correct.
Q. His clothing he was wearing for days on end?
A. Correct.
213
Q. And the evening before the shooting Eric told
Adam Lozano, I’ve got mental problems?
A. Correct.
Q. Pretty unusual here that that statement would be
made by Eric since after that and before that he never said
he had any type of mental problems, did he?
A. I don’t remember that statement. I suppose I
thought — he said something to his mother at one point
about he thought he had problems and she said, let’s get
[126] help, and he refused.
Q. Right. And then after that, after his post arrest,
he’s continually advocated that there is nothing wrong
with him?
A. That’s correct.
Q. That his mother says bad things when she says
he’s got schizophrenia?
A. Correct.
Q. His medication compliance is always kind of
resistant because he doesn’t believe anything is wrong
with him?
A. Correct.
Q. In assessing the score that you did, one of the
things that you told me during our interview was you
thought it was significant that he was dating Nicole
Benally just within six weeks of this shooting.
A. Correct.
214
Q. Dhd you rely on the police report for that fact or
did you rely on Nicole Benally’s transcript of her state-
ment to the police as to that effect?
A. I don’t recall.
Q. Okay. I will tell you now, Doctor, the police report
reflects just as you stated.
A. Okay.
Q. Let me hand to you what’s been marked as [127]
Exhibit 101. And that is a transcript that I just received
during the middle of this trial of Nicole Benally’s actual
statement to the police.
A. Okay.
Q. Okay. Let me ask you, have you ever reviewed it?
A. No.
Q. Turn to page 13.
A. Okay.
Q. Have you had time to look at page 13?
A. Yes.
Q. I’m going to paraphrase here, but starting at
about page — or line seven, it says: And what year are we
talking about, ’99 to 2000 or ’98 to ’99? And she’s referenc-
ing that her dating Eric, ’98 to ’99.
And then we drop down to lines 14 through 19: So
that was basketball season, September to December of ’98?
Uh-huh.
And when did you date him during that period?
215
Yeah.
So it’s actually not just a few weeks before, as the
police report indicates, but almost a year before — back up,
more than a year before. Correct?
[128] A. According to this, that’s correct.
Okay. Let’s also turn — during this period of
ating, I’d like you to turn to page eight where she dis-
cusses some of the things they talked about. Lines 16
through five (sic) says: Okay. So just let me ask you just a
few more questions and we'll get off this topic. First of all,
it also says here Nicole told me that the officer that that’s
— the officer that Eric often talked of suicide and he told
her he would do so by slitting his throat. Do you remember
her — do you remember telling her that?
Uh-huh.
Did Eric talk to you about things like that?
Every — like he would do hints about it and stuff, and
one time he just did — he did just flat out say.
Do you see that?
A. Yeah.
Q. That was not considered by you in your report,
was it?
A. No. This is the first I have read this.
Q. And should it come up, I don’t know if Mr. Powell
will ask you these questions but I’m going to cover it just
in case — Mr. Powell was asking a [129] particular witness
that Eric had somehow dated Nancy Edmondson in late
April. And, actually, I want to tell you what her testimony
YT
216
was. She came over to his house, Eric’s house. She had
known Eric for a long time. And when they got to his
bedroom, his whole demeanor suddenly changed, and he —
and she’s pregnant. She’s about six months pregnant, and
he starts asking her questions like, I wonder what it’s like
to have sex with a pregnant click. I wonder — or started
asking her, are you afraid to die? Then as they were
leaving, as she, you know, says, I need to get out of here, I
got to leave, he strung his room up with strings and did all
of that. And when he finally dropped her off and he leaves,
she starts crying and shaking. Okay. That’s the extent of
any kind of dating that I’m aware of that Eric participated
in within months of this shooting. Are you aware of those
facts?
A. I was aware that what I read about Nancy
Edmondson is that when they got back to his room and his
sister left is when he started to be weird.
Q. Correct. Clearly, not the dating social interactiv-
ity you would expect of a normal teenager. Correct?
A. Outside that range, yes.
Q. And you’re aware because we specifically [130]
discussed the Aspen Hill —- what I call the Aspen Hill
arrest, where Eric was arrested then subsequently admit-
ted into Aspen Hill?
A. Correct.
Q. Do you remember us discussing that specific?
A. Yes.
217
Q. Okay. During that interview with you, Doctor, you
told me that you did not believe that under those circum-
stances that Eric would have been or should have been
committed pursuant to a Title 36 proceeding. Do you recall
that?
A. I don’t recall right now, but I accept your word for
it.
Q. Okay. That is in your interview, pages 59 through
63, if you do decide to look at that. But, basically, I was
questioning you about Eric’s sudden mood changes from
laughing to crying, that type of behavior.
A. Okay.
Q. Correct?
A. Yes.
Q. And I was asking you about the symptomatology
of schizophrenia; that being unanticipated, being unable to
predict their likelihood of violence, and I was using that as
an example. Right?
A. Yes.
[131] Q. And you told me you didn’t think that was a
good example.
A. Okay.
Q. Do you remember that? Is that more or less what
you remember?
A. Ithink so.
218
Q. Okay. And, yet, we know that his father asked the
police to arrest him after Eric swore at him and the look in
Eric’s eyes changed. Right?
A. Correct.
Q. And we know he was then committed to Aspen
Hill for the next three days?
A. I think he was admitted. I think the term commit-
ted is actually a legal term. I don’t think he was officially
committed.
Q. Right. But we know at that time he was — he was
GAF’d at 30?
A. Correct.
Q. Just under those facts. Correct?
A. Yes.
Q. And that was prior to Eric carrying — apparently
carrying knives continuously, carrying guns continuously.
Correct?
A. As far as we know, that’s correct.
Q. I would like to turn to your diagnosis under [132]
Axis II, personality disorder diagnosis. Okay?
A. Okay.
Q. I think you would agree with me that DSM-IV
specifically says that a personality disorder, the key
feature is an enduring pattern of inner experience and
behavior that deviates markedly from the expectations of
the individual’s culture?
A. Correct.
219
Q. And you're saying that because Eric did some-
thing in the 5th grade and a single incident in the 7th
grade, that established a personality disorder?
A. No. I think there’s more to it than that.
Q. Well, let me ask you this: This personality disor-
der, again, DSM-III comments that he is inflexible, it
crosses social academic and familial boundaries. Correct?
A. It can, yes.
Q. I mean, that is the key component, is it never —
it’s rigid; it is an enduring pattern. Correct?
A. That’s correct.
Q. And, yet, we know that in the 8th grade there was
apparently no problems with Eric, right, academically, at
home, no major blowups. Right?
A. It did prove that, yes.
Q. Lois Wells told us in the 9th grade she hardly
[133] knew Eric was there because there was no problems
with him?
A. Correct.
Q. He was popular. He was elected home coming
A. Uh-huh.
Q. Freshman homecoming king.
A. Okay.
Q. And that in the 10th grade more or less the same
thing. We don’t — that’s not an enduring pattern. Right?
220
A. Well, the issue I think would be whether it’s a
developing pattern
Q. And we know that schizophrenia, once the full-
blown schizophrenia takes place, it’s almost impossible to
diagnose a personality disorder at that point?
A. It’s very difficult.
Q. And you told me that you believed Eric had
paranoid schizophrenia at least from his Aspen Hill
admission in 1999?
A. Correct.
Q. You talked about the MMPI, the SIRS, SIRS
testing, et cetera. Correct?
A. Correct.
[134] Q. Mr. Powell may have asked you this in all
fairness but I don’t recall. All of that testing as a clinician
you must use very cautiously under circumstances like
this?
A. Correct.
Q. And while the testing — you would agree that your
testing gave a valid profile?
A. Correct.
Q. And that that profile includes, among other
things, that Eric is quite disturbed psychologically?
A. Correct.
Q. He appears sullen?
A. Yes.
221
And he believes in special mystical powers?
Q. He’s overtly paranoid?
A. Yes.
Q. He has extreme bizarre thoughts?
A. Yes.
Q.
A.
Yes.
Q. Under the Megargee Type H offender classifica-
tion with the MMPI, Eric would be one of the most seri-
ously disturbed inmates under the testing you provided?
A. Correct.
Q. He would be thought of as a crazy among other
[135] inmates?
A. Correct.
Q. And this was all while — all while Eric was dosed
with Haldol?
A. Correct.
Q._ To be fair here, Dr. Moran, when you were dis-
cussing that Eric’s beliefs in aliens and why he was believ-
ing in aliens and things like that, Eric never once
attempted to use his belief in aliens as any type of excuse
for his — for any of his behaviors?
A. That’s correct.
Q. And that, the fact that Eric is not using that as
an excuse, really kind of cuts both ways; it could be just as
reflective as to the level of his psychosis. Correct?
A. Yes.
222
Q. The fact that he hides it, that he doesn’t want
people to know about it, could very well be reflective on
the severity of symptoms he was suffering?
A. Yes.
Q. Let’s get back to maybe some things we can agree
to, Doctor. |
A. Okay.
Q. You agree that at the time of the shooting Eric
was delusional?
[136] A. Yes.
Q. And at the time of the shooting his delusions were
persistent?
A. Yes.
Q. And immediately prior to the shooting we have no
evidence that Eric was ever able to resist this thought
pattern, these delusions?
A. Well, I suppose at times he was able to eat at
home.
Q. We don't have any evidence he ever ate at home.
A. I thought that I saw in mother’s report or some-
where in the data that occasionally that he would eat at
home under special circumstances, though he didn’t like
to.
Q. Ifit was packaged foods, you’re quite right, only if
it was packaged food.
A. So that’s, you know — that could be, I guess, some
kind of an example of his ability to resist it.
223
Q. Well, he knew that the food was being poisoned at
home but he believed if he ate only packaged food or out
where everybody else did, right, that he couldn't be poi-
soned by the aliens.
A. Okay.
Q. Do you agree with that?
[137] A. Yes.
Q. Okay. And we know that Eric’s entire behavior
was one of complete paranoia, it was relentless?
A. It was continuous.
Q. Yeah. And those are the words you use, continu-
ous?
A. Correct.
Q. And I asked you, 24 hours a day? And you said, 24
hours a day.
A. Correct.
Q. And you would agree that someone who's psy-
chotic has a much lesser resistance to stressors in life?
A. Yes.
Q. And that, thus, are unable to perceive alterna-
tives as readily as someone who is not psychotic?
A. lagree.
Q. And when Judge Coker reviews all of this evi-
dence and when he’s considering the severity of Eric’s
psychosis, one of the things that I think, would you agree,
224
would be fair for him to consider is that Eric’s moods could
change very suddenly?
A. lagree.
Q. With almost minimal or no provocation?
A. Correct.
[138] Q. For example, his best friend, Victor Meza,
told us in court that Eric attempted to strangle him one
time and within seconds of getting out of the car Eric’s face
was blank and he had no idea what had just happened,
that would be something for Judge Coker to consider?
A. Yes.
Q. Another occasion was Aaron Fitzhugh, the person
who threw the party in which Eric attended and hit
Brandon Matje in the face, said that when he pulled Eric
off Brandon, his face was confused, his eyes were blank,
and he was staring right through me and it looked like he
had no idea what was going on. You never considered that,
did you?
A. Ithink I remember, if it was in the police reports I —
Q. It wasn't.
A. Okay.
Q. So you didn’t consider that, and that’s just days
ahead of this shooting. Right?
A. I wasn’t aware of that information.
Q. Okay. And then there’s the incident where he -
Terry Clark takes Eric to Wal-Mart to purchase a heater,
and when Eric cannot find a heater in April or May at
225
Wal-Mart he spins on her, cusses at her, and by the time
they get home, Eric is kind of dumfounded when [139) his
dad confronts him about it. Those are things to consider in
looking at Eric’s severity of symptoms. Correct?
A. Yes.
Q. And the reason those are important is because it
reflects on anyone’s ability to predict violence of a schizo-
phrenic?
A. Fair enough.
Q. You mentioned a book that you relied on, and I
believe it’s called Conducting Insanity Evaluations. Cor-
rect?
—-—-
A. Correct.
Q. Within that book one of the criteria, one of the
things they want a clinician to look at is whether or not a
patient —- or excuse me — a defendant has engaged in any
type of prefatory behavior in getting involved in the
criminal act, violent act that occurs. Right?
A. Correct.
Q. Do you recall me asking you specifically during
your interview whether you believed Eric had engaged in
any type of prefatory act?
A. I vaguely remember the question. I don’t remem-
ber my response.
Q. Your response was, no, I don’t know of any.
A. Okay.
[140] Q. Okay. Is that still your testimony today?
226
A. Whether I think he engaged in any prefatory acts,
I would say I don’t know. It’s possible.
Q. All right. So when the prosecutor is asking you
questions about Eric going home, getting the keys, all this
other stuff, I mean, to be fair here, Doctor, you told me you
had no idea whether Eric had engaged in any type of
prefatory actions. Correct?
A. At that time, that’s what I said.
Q. Okay. You’re aware, again, because of the April
24th DUI drug arrest, that Eric — this cannot even be
remotely argued — was in any way trying to contact the
police. Right?
A. When he was arrested in April?
Q. Correct.
A. I agree with that.
Q.
Yeah. And, yet, we know that he has pepper spray
on him ready to go, knives next to him, clubs, that type of
stuff. Right?
A. Yes.
Q. And I think you told me or I asked you, excuse
me, the significance in your mind of Eric’s circling with
this loud music going on and on and on, and you told me
you did not believe that that was a prefatory act either?
A. At that time I said that.
[141] Q. Okay. You were telling me the truth at the
time?
A. That’s what I thought at that time.
227
Q. Okay. And looking at the severity at the time of
the shooting, a clinician would also look at post arrest
behaviors. Correct?
A. I would say arrest behaviors.
Q. Post arrest behaviors?
A. Ihave trouble with post arrest behaviors.
Q. Well, in the book, Conducting Insanity Evalua-
tions, one of the things they do want you to consider is
post arrest behaviors. Correct?
A. Okay.
Q. Is that your understanding of how that book
wants you to make the evaluation?
A. laccept that.
Q. Okay. And I note that when you were looking
through the Coconino County Jail records, that you sum-
marized some of those records that were provided to you?
A. Yes.
Q. Are you aware that within — within those records,
for example, Eric would talk to himself about needing to
save everyone from aliens?
A. Idon’t remember that.
[142] Q. All right.
THE COURT: Mr. Powell, Mr. Middlebrook is
like me trying to change channels. Would you see if you
can help him?
228
MR. POWELL: This is the blind leading the
blind here.
Q. BY MR. MIDDLEBROOK: And just so that we
can relate ourselves to time as to when this occurred, you
can see, for example, 3rd of September, 2nd of September
and the end of August —
THE COURT: Speak up a little bit, Mr. Middle-
brook.
Q. BY MR. MIDDLEBROOK: We can see that this is
basically the end of August, first part of September.
Correct?
A. Right.
Q. And we see that — at least it’s noted that on swing
shift he was talking to himself about aliens, we need to
save everybody from the aliens. And then on the day shift
the next day it says, come help Godzilla and the boys.
Aliens are taking over. I’m being held on an alien base.
Most white people are aliens.
Do you see that?
A. Yes.
Q. And the one above it at the end of August, I [143]
just simply — today he was very cooperative and then
became hostile.
A. Okay.
Q. Okay. Thank you, Josh.
I would like — I think you reviewed Terry Clark’s
chronology. And right around this same time Eric told
them Aaron’s story where, as you know, he related that
229
Flagstaff’s a celestial city for aliens, that basically they
were everywhere and that only bullets can stop aliens.
Correct? Is that what you recall of that story?
A. Yes.
Q. You were talking about looking at whether Eric
ran away —
A. Yes.
Q. —- from the — from the scene of this shooting.
Correct?
A. Correct.
Q. Well, one thing that many witnesses have testi-
fied to on when the state was calling them was that there
were some gunshots and then there was a pause and then
there was some loud gunshots, apparently by Officer
Moritz. Okay?
A. Okay.
Q. Do you think that it’s reasonable that someone
[144] who was shot at would run from the scene?
A. Yes.
Q. Okay. Also, when I was - is it fair to say that Eric
running from the scene is also consistent with his theme,
that aliens were infesting Flagstaff, he was running from
them?
A. Might be.
Q. All right. I mean, to be fair here, we don’t know?
A. We don’t know.
230
Q. But it’s certainly something that has to be consid-
ered?
A. Yes.
Q. And when we talk about when Eric is out, and I
think that the prosecution has said, eluded the police,
their massive manhunt, what we know from the state’s
case is that Eric hid in the shed, went to the bathroom in
it, and as to the guns, he basically threw them down on
the ground next to things that were very easily found
within a few days of the shooting. You know that?
A. Yes.
Q. I mean, there was no complex scheme of hiding
the murder weapon or anything like that. Do you recog-
nize that?
A. Yes.
[145] Q. Okay. And I thought I heard on your direct
testimony today, and I apologize if — or if I stand corrected,
please correct me - but I thought you said that when Eric
basically came walking back home, that you thought he
was trying to hide the murder weapon at that time and
that’s why he — he ran from the police?
A. No, I don’t think I said that.
Q. Okay. All right. Because you understand that the
extent of him hiding out is he is out in a shed and the next
thing we know, at least initially, he’s kind of walking
around back home; he’s not trying to get out of town, he’s
not, you know, getting on buses, he’s not doing anything
like that; he comes back home?
A. Right. He’s observed —
231
THE COURT: Im sorry, sir?
THE WITNESS: He's observed by his house.
Q. BY MR. MIDDLEBROOK: Correct. But it’s no
complexity to him coming back home. Correct?
A. We don’t know what was going through his mind.
Q. Yeah. And when he’s thrown down on the ground,
one of the things that you noted in your summary was that
he makes a statement, what’s this about? What are you
doing? You know, why do you want to talk to me? Right?
A. Right.
[146] Q. And then we know that when he goes to the
police station, that you characterized his actions at the
police station as clearly disturbed?
A. Yes.
Q. And when he subsequently tells you this Sarah
story, he’s going — this alibi theory of his of, you know, I
was at this movie theater all night, Sarah picks me up and
we — and he’s waiting at a bus stop, apparently, and they
drive to Lake Powell that night. Right?
A. Right.
Q. Was - Eric’s already got his bathing suit on?
A. Yes. He said he did.
Q. Yeah. You told me that you thought that would
basically confirm the schizophrenia, his lack of insight?
A. It would seem to be an example of a profound lack
of insight.
232
Q. I asked you during your interview — well, let me
ask you this: I believe that you were asked what was Eric’s
motive in being involved in this shooting, and you basi-
cally said you didn’t really give it much thought. Is that a
fair statement?
A. I would like to amend that.
Q. Okay. But if we look at page 78 and 79 of your
interview, I can tell you, that was your answer.
[147] A. Okay.
Q. Now, to be fair here, you later come back and
make a little bit of clarification because you tell us, well,
you know, maybe what Desiree Barreras told us about Eric
saying something about F the cops, that may have had
something to do with it. Does that refresh your memory?
A. Correct.
Q. I’m going to ask you that, kind of the same
question as before. When you're -— first of all, Desiree
Barreras has not testified in this trial.
A. Okay.
Q. Okay. And so when you - did you rely on what’s
contained in the police reports or did you rely on er
transcripts of what she told the police?
A. Again, I’d have to reference my documents to see
which one I reviewed.
Q. All right. Well, let me hand you her transcript,
again, a document I just received during this trial.
A. Okay.
233
MR. MIDDLEBROOK: And, Judge, I have a
copy if you want to follow along.
THE COURT: Is there any objection? Is there
any objection to the Court following along?
MR. POWELL: No, your Honor.
[148] THE COURT: Thank you.
Q. BY MR. MIDDLEBROOK: Let me hand to you
what’s been marked Exhibit Number 102, and why don't
you just take a minute and glance through that document
and see if you’ve ever seen it.
A. Idon’t think so.
Q. Yes, you did, or, no, you didn’t?
A. I did not.
Q. Okay. Well, I'd like to tell you, again, I’ve re-
viewed the police reports and I understand why there may
be some confusion here, because in the police reports it
does not indicate that Miss Barreras talked very exten-
sively about Clinton Ezell committing this murder, this
shooting. But let’s turn to her statement. I’d like to first
have you turn to page 10.
A. Okay.
Q. And this — I believe this part of the statement is
what you're relying on where she says, Eric said he would,
shit, like fuck the cops, you know.
And that’s towards the very end of that statement. Do
you see that?
A. Isee that.
234
Q. Look at line 20. Actually, what she’s saying is,
what did Anthony say about what Eric was making com-
ments about the police officers, not what she heard, [149]
right, of the question she was answering?
A. I mean, her response is, like Eric even made
comments to everybody, you know, so —
Q. But she’s asking, and what did Anthony say about
Eric. Right?
A. Right, but I don’t think its clear that she’s refer-
ring only to Anthony but Eric talked to a lot of people.
Q. All right. Even though that was the question
asked?
A. That was the question asked.
Q. All right. Turn to page 11, the very end of it: But
then like after that, I was just like whatever. And that day
when they had — just as they had done it, like, they waited
for it to kick in and stuff, and then like he was talking all
kinds of shit. He was like — he was just like, ah, yeah, fuck
the cops, fuck them all, all this stuff, I’m going to kick
their ass if I get pulled over. We'll see. And I’m like, what?
Right?
A. Yes.
Q. And that’s what you basically attributed Eric
saying?
A. Yes.
Q. Why don’t we turn to page 13. He apparently
[150] made those statements before he was arrested for
the DUI. Are you aware of that?
235
‘9 accept it.
Q. All right. Well, I can tell you that if we look at
page 12 at the bottom, it says, they had thrown the stuff in
there, so I’m sure I could get in there and find the stuff
and it was about a week before he got pulled over for the
DUL. Ah, yeah.
And then, actually, if you look at line two, when was —
when was he making those statements? Line two says, he
got pulled over like the next week for DUI.
Okay?
A. Okay.
Q. So we know that if he said this statement, that it
was the week before the DUI. Right?
A. Right.
Q. And when he was being arrested or when he was
arrested, the police officer walked up to him and Eric said,
I’ve been waiting 20 minutes here for you.
Did you know that?
A. I didn’t know that.
Q. On Officer Hoyt’s report — you're confusing me
with details — that line I have says, Mr. Clark said: I've
been waiting for you to get here so you can get me [151]
out. I’ve been waiting for 20 minutes.
A. Okay.
Q. That was his first statement to Officer Hoyt. So
we know that if he said this a week before, I mean, that
was his attitude towards Officer Hoyt, I’ve been waiting,
236
right? Not, F the cops; not, I’m going to do anything crazy.
Right?
A. Right.
Q. And then when we're considering the reliability of
Desiree Barreras because you've relied on it and she has
not testified, one of the things we have to consider is that
on page 13 when she’s describing Eric, she says, what did
they tell you about, you know, the DUI and stuff? And he
was like, well, they told me if I get in trouble again, I’m
going up the river and stuff. Uh-huh. So I’ve got to stay
clean and stuff. And like I was like, well, yeah, you know. I
was like, you should ask your parents to put you like in
rehabilitation or something. And I was like, you know, so
you don’t have to go to jail. I was all, because that’s going
to suck. Right? He has a real gay voice. And so | don’t like
basically come out and say that you’re going to be raped
but, you know, basically that’s what I told him.
Do you see that?
[152] A. Uh-huh.
THE COURT: You have to say yes or no.
THE WITNESS: Yes.
THE COURT: Thank you.
Q. BY MR. MIDDLEBROOK: And then turning to
page 14, lines 13 through 16, and like I told the officer it
was like there’s weird things about Eric, you know. Uh-
huh. Like he wasn’t so much obsessed with death. And
Clinton was, you know. And then she goes on, and I can
tell you, talks about — looking at page 15, that Clint told
me — Clint told me — and this is lines four through six at
237
page 15 — Clint told me, he was like fuck that. I would
have shot that cop. I would have killed him. I was like, no
way. Right?
Do you see that?
A. Yes.
Q. Did you consider that in your consideration that
what Desiree was saying Eric said?
A. Well, the police reports had said that Clint — she
said that Clint had more of an anticop attitude than Eric
did.
Q. And we can see that, because further down that
page, line 17 through the bottom says: This is Clint speak-
ing. Right? Yeah, Clint. He would be like, fuck that. This
cop stopped me and I’m fucking just kept [153] going. Fuck
that. I'm not stopping for no cop because I have some
wreckage, you know, and then I have pot. Fuck that. I
have to kill him if they stop me, if they caught me. And
that was like, what?
She’s talking about Clint, not Eric. Right?
A. Yes.
Q. All right. Because I'd like for you to turn to page
22 of the statement that you have not considered, lines 16
through 22, and it — she never like — like when we heard
or like when we both heard that, you know, this might be
Eric, we both never thought it. Right? We both thought
like, when we heard it was Clint, we were both like, Clint
did it.
You guys were thinking more Clint than Eric?
238
Right, yeah, because we know Eric and we know Eric’s
personality.
See that?
A. Yes.
Q. All right. Let me have you turn to page 31, lines
15 through 23: And he doesn’t have a girlfriend or — so who
is — who is girlfriend? He doesn’t have a girlfriend. He
doesn’t have one. No. No. Nobody would touch him hon-
estly. Okay. No. Like I told the other [154] cop, this may
sound weird, but I’m so honest when I — I said he sounds
gay when we talks.
Uh-huh.
If you ever listen to him talk or you get to hear him
talk.
Uh-huh.
And the other officer on the force is going to be like
what? Do you think he was? Did he — was he with any
men? No, he wasn't. I totally — I don’t know if he was like
totally was. I think maybe he was bisexual.
You didn’t consider that by Desiree either. Right?
A. No.
Q. And then let’s turn to her opinion as to Eric, page
41. And, actually, to be fair here, let’s go — we'll start at the
end of page 46. Are you with me?
A. Yes.
Q. Okay. This is Desiree Barreras. I’m going to tell
the truth. I'm not going to. Right on. And what’s it all
239
about? I’m like, if Eric did it, Eric did it, I think he’s got to
take responsibility for it. Yes, I think he did it, like he
killed the officer. He was high. Yeah. Well, honestly, he had
to be because Eric didn’t have the guts. I mean, honestly,
he didn’t have [155] the guts. I don’t even have the guts.
Like one time I got pissed off at him, I pushed him and I
was like, you freaking fag, get away. Uh-huh.
You didn’t consider that?
A. That was in the police reports.
Q. Okay. And like if he didn’t have the guts to do
anything to me — lines nine through 10 — he doesn’t have
the guts to shoot a cop.
You didn’t consider that in determining what level of
psychosis Eric was suffering, did you?
A. Line nine and 10?
Yeah.
No, I didn’t consider that.
Because that’s not in the pelies reports, is it?
No.
> © > ©
Q. And, I’m sorry, but we were talking about Eric’s
motive and you had relied on what Desiree Barreras had
said, and so I’m kind of going to have to go through that a
little bit more at length. Dr. Moran, when I| was asking you
about what Eric’s motives were in being involved in this, is
it fair to state or say — excuse me — you did not tell me
anything about the Thorpe Park people and what they had
said?
A. 1 will take your word for that.
240
[156] Q. Okay. Let me ask you, though, are you
aware, because you've reviewed numerous documents
after I interviewed you - are you aware there is trial
testimon
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