STATE v. BUOT
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DIVISION ONE FILED: 7/16/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) DAVID MARK BUOT, ) ) Appellant. ) __________________________________) No. 1 CA-CR 12-0198 DEPARTMENT E O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CR2011-104792-001 The Honorable Robert E. Miles, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Nicole Farnum Attorney for Appellant Phoenix J O H N S E N, Chief Judge ¶1 David Mark Buot appeals his conviction and sentence for second-degree murder. He argues the superior court erred in admitting other-act evidence and violated his due-process rights by precluding impulsivity. expert testimony about a character trait of We hold the court did not err in allowing the other-act evidence and conclude that impulsivity evidence of the sort Buot sought to offer is not admissible on a charge of second-degree murder. FACTS AND PROCEDURAL BACKGROUND ¶2 Buot was driving his SUV at more than 40 miles an hour down a city street when he suddenly swerved into oncoming traffic and slammed head-on into a sedan, killing its driver. Buot s wife testified that just prior to the crash, Buot had been arguing with her on his cell phone from his car. She testified was Buot had become enraged and screamed going to drive his car into oncoming traffic. that he When a bystander phoned her with news of the crash a short while later, she responded, Oh, my God. He did this on purpose. Buot later admitted to his wife and her friend that he had intentionally swerved into oncoming second-degree murder, traffic. and the The court jury convicted sentenced him Buot of to an aggravated term of 22 years. ¶3 to We have jurisdiction of Buot s timely appeal pursuant Article Arizona 6, Revised Section 9, Statutes of the ( A.R.S. ) Arizona Constitution, sections and 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013). 1 DISCUSSION A. Other-Act Evidence. 1 Absent material revision after the date offense, we cite a statute s current version. 2 of an alleged ¶4 Buot first argues the superior court erred in allowing witnesses to testify that many times before the crash, he had threatened to kill himself by driving into oncoming traffic. The State filed a notice of intent to offer the testimony to rebut Buot s defense that the collision had been an accident. At a hearing before the trial began, Buot s counsel told the court that he was considering changing his defense to lack of intent. The court deferred deciding before trial whether to admit the evidence. State examined his At trial, Buot did not object when the wife and other witnesses threats to drive into oncoming traffic. instructions, Buot s instruct jury the counsel that it agreed could about his prior In settling final jury that consider the court should the evidence for motive, intent, absence of mistake or accident. ¶5 We ordinarily review evidentiary rulings for abuse of discretion. 1054 (1997). State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, The superior court has discretion to admit other- act evidence offered for a proper purpose under Arizona Rule of Evidence ( Rule ) 404(b) if its relevance under Rule 401 is not substantially outweighed by the potential for unfair prejudice under Rule 403 and if the court gives a limiting instruction if requested under Rule 105. Id. 2 2 Because Buot failed to seek a Trial in this matter occurred before the effective date of the 2012 amendments to the Arizona Rules of Evidence. 3 ruling on this evidence at trial and failed to object when the testimony was offered, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Buot accordingly bears the burden of establishing that the court erred, that the error was fundamental and that the error caused him prejudice. ¶6 The fundamental superior error court Id. at ¶¶ 23, 26. did prejudicing not Buot, err, in much allowing less commit evidence of Buot s prior threats to kill himself by driving into oncoming traffic. The indictment charged that Buot committed second- degree murder by causing the victim s death without premeditation, either intentionally or knowingly or recklessly under circumstances life. In referred his to the manifesting opening extreme statement, collision as lacked the requisite intent. an indifference Buot s accident counsel and to human repeatedly contended Buot Buot s prior threats accordingly were highly probative to show his intent, his motive and the absence of accident, all permissible purposes for admitting the evidence. wrongs See Ariz. R. Evid. 404(b) (evidence of other crimes, or acts may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ). ¶7 Buot argues he was unfairly prejudiced by admission of the prior threats because they might have caused the jury to 4 convict based on his character in general. The court properly instructed the jury We do not agree. that it could not consider Buot s prior threats for the purpose of establishing his character or his propensity to act in conformity therewith, but could consider them only to establish his motive, intent and absence of mistake or accident. ¶8 Moreover, Buot See Ariz. R. Evid. 105. cannot demonstrate prejudice because the jury heard evidence far more compelling than the testimony about his prior threats: As recounted above, Buot s wife testified that just before the collision, Buot had threatened to drive into oncoming traffic, and she and another witness testified that immediately after the crash, he admitted he had swerved into the other lane deliberately. See State v. Lucero, 223 Ariz. 129, 141, ¶ 39, 220 P.3d 249, 261 (App. 2009). the circumstances, court erred in Buot cannot admitting demonstrate his prior that the threats, Under superior much less fundamentally erred, causing him prejudice. B. ¶9 Expert Testimony About Impulsivity. Buot next argues the superior court violated his due- process rights by ruling that his mental-health expert witness could testify only based on conduct by Buot that the witness himself had observed. psychiatrist, to Buot sought to call Dr. Jack Potts, a testify that Buot had a character trait of impulsivity that caused him to act reflexively rather than upon 5 reflection. that Buot intended to offer Potts s testimony to argue he lacked the requisite mental state to commit second- degree murder. 3 ¶10 Our supreme court has held that Arizona does not allow a defense of diminished capacity short of insanity. Ariz. at 541, 931 P.2d at 1051. Put differently, Mott, 187 while a defendant may offer expert psychiatric testimony that he or she should not be held responsible by reason of insanity, expert psychiatric testimony is not admissible to challenge the mens rea element of a crime. way of illustration, Id. at 541-45, 931 P.2d at 1051-55. the defendant child abuse and felony murder. in Mott was charged By with She did not contend she was insane, but argued that she could not have acted knowingly or intentionally because, as a battered woman, she was not capable of forming the requisite mens rea. 1049-50. Id. at 539-40, 931 P.2d at The Mott court affirmed the superior court s ruling that the mental-state evidence was not admissible, explaining that the Arizona legislature had declined to adopt the defense 3 We review rulings on the admissibility of evidence for abuse of discretion, but review de novo evidentiary rulings that implicate constitutional issues. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). 6 of diminished capacity when presented with the opportunity to do so. Id. at 540, 931 P.2d at 1050. 4 ¶11 Here, Buot s counsel announced before trial that he would call Potts to testify that Buot has behavior consistent with an intermittent explosive disorder and that his actions are reflexive and therefore impulsive and not the result of a conscious thought process. After the State moved to preclude Potts s counsel testimony, Buot s argued Potts should be permitted to testify to a character trait of impulsivity that would take away the mens rea required for proof of seconddegree murder: And establishing his character trait that when he loses control of himself like this through his moments of anger, that he acts reflexively and therefore, impulsively, takes away, number one, I think it undermines the intent of knowingly and intentionally. And certainly, it can be argued that it also takes away any kind of thought process for the requirement of recklessness that is required by the third alternative of second degree murder, and that would be a conscious disregard of this risk. 4 The relevant statute provides in part, A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. . . . Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. A.R.S. § 13-502(A) (West 2013). 7 ¶12 The superior court preliminarily ruled that [a]ssuming proper foundation, Potts could testify about Bout s behavioral tendencies or character traits that bear on his mens rea, but would not be permitted to testify about mental diseases or conditions that might relate to Buot s capacity to form the requisite mens rea. After trial began, it became clear that Buot Potts s opinion that had a character trait of intermittent explosive disorder was based on notes from Buot s treating psychiatrist and accounts of others, including Buot s sister, but was not based on anything Potts had personally observed in Buot. Over Buot s objection, the court concluded that testify Potts could personally had observed. only about character traits he Ultimately, Buot did not call Potts to testify. ¶13 In ruling on the State s motion, the superior court drew on Clark v. Arizona, 548 U.S. 735 (2006), in which the Supreme Court upheld the constitutionality of Arizona s rule allowing mental-health evidence to prove insanity but precluding such evidence to show the absence of a required mens rea. Id. at and 770-71. observed that The Clark Mott Court imposed considered no Mott restriction on at length, what the Court called observation evidence in the everyday sense, including the defendant s tendency to think in a certain way and his behavioral characteristics, which can be relevant to show what 8 in fact was on the defendant s mind at the time of the crime. Id. at 757. ¶14 The distinction the Supreme Court drew between observation evidence and other mental-health evidence is not immediately apparent authority). in Mott (or any other Arizona See id. at 786 (Kennedy, J., dissenting). case As a basis for the distinction, Clark noted that Mott was careful to distinguish [mental-disease observation evidence or mental-capacity generally and even evidence] from evidence that an expert witness might offer. from observation Id. at 760. For support for this proposition, the Court cited Mott s discussion of State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). Clark, 548 U.S. at 760 (citing Mott, 187 Ariz. at 544, 931 P.2d at 1054). ¶15 Arizona In Christensen, supreme precluding court testimony a first-degree held of a the murder superior psychiatrist case, court that, erred based on the by his interview of the defendant and unspecified test results, the defendant had difficulty dealing with stress and in stressful situations his actions were more reflexive 129 Ariz. at 34, 35, 628 P.2d at 582, 583. than reflective. Citing Arizona Rule of Evidence 404(a)(1) (evidence of a defendant s character is admissible action in if offered conformity by the defendant therewith ), 9 the to prove court he held or she it was inconsistent with fundamental justice to prevent the defendant from offering expert testimony that he had a character trait of acting without reflection. ¶16 Id. at 35-36, 628 P.2d at 583-84. The Mott court distinguished Christensen by explaining that Christensen merely offered evidence about his behavioral tendencies, not evidence of his diminished mental capacity. 187 Ariz. at 544, 931 P.2d at 1054. Mott emphasized that the evidence offered in Christensen was not that [the defendant] was incapable, by reason of a mental defect, of premeditating or deliberating but instead, impulsively. Id. the character so-called that he had a tendency to act The Mott court concluded by observing that trait evidence was admissible in Christensen to show the defendant acted without premeditation. Id. ¶17 The superior court in this case ruled that Potts could testify about a character trait he had observed in Buot, but could not give an expert medical opinion he had formed based on information character received trait from evidence allowed in Christensen. others. of the Thus, sort the that court Mott allowed said was At the same time, by ruling that Potts could testify only based on what he himself had observed, the superior court apparently applied what it understood Clark meant by observation evidence allowed under Arizona law. at 760. 10 548 U.S. ¶18 In the years since Clark was decided, no Arizona court has addressed these issues or what the Supreme Court in that case meant when it observed that Christensen allowed observation evidence of a defendant s character trait. We need not do so here because we conclude that Christensen does not apply in this case. trait evidence defendant charged premeditation. which of does not The Christensen court held character impulsivity with was first-degree admissible murder did to not prove act a with But Buot was charged with second-degree murder, require proof of premeditation; we do not understand Christensen to require a court to admit character trait evidence of impulsivity to prove a defendant did not act knowingly or recklessly for purposes of second-degree murder. 5 5 The mental states required to prove second-degree murder are defined by A.R.S. § 13-105(10) (West 2013): (a) Intentionally . . . means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct. (b) Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. . . . (c) Recklessly means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a 11 ¶19 law Buot s argument to the contrary must be that Arizona requires the court to admit evidence that a defendant charged with second-degree murder lacked the volitional capacity required to commit the crime. Many other states recognize volitional incapacity, or a variant of it, as a proper defense to criminal liability. statutes, observing Clark, 548 U.S. at 749-52 (citing state that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice ). But Arizona s insanity statute, A.R.S. § 13- 502(A) (West 2013), does not allow for such a defense. Indeed, our legislature has expressly provided that an impulse control disorder[] does not constitute a mental sufficient to sustain an insanity finding. disease or defect A.R.S. § 13-502(A). And the Supreme Court held in Leland v. State of Oregon, 343 U.S. 790, 801 (1952), that due process does not require a state substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. . . . Although the jury was instructed that it could convict Buot if it concluded he intentionally caused the death of another person, the State did not argue Buot intended to kill the victim, only that he purposefully drove into oncoming traffic, knowing that death or serious physical injury would result, or with reckless disregard of a grave risk of death of another. See A.R.S. § 13-1104(A) (West 2013) (elements of second-degree murder). 12 to allow a defendant to disprove guilt by showing an irresistible impulse to commit the criminal act. ¶20 In sum, under the applicable Arizona statutes and case authorities, a defendant charged with second-degree murder may not offer evidence that due to a character trait of impulsivity, he did not act knowingly or recklessly because he lacked the power to control his actions. CONCLUSION ¶21 Because the superior court s rulings did not infringe Buot s rights under Arizona law or under the 14th Amendment s guarantee of due process, we affirm Buot s conviction and the resulting sentence. _______________/s/_______________ DIANE M. JOHNSEN, Chief Judge CONCURRING: _____________/s/___________________ PATRICIA K. NORRIS, Presiding Judge ____________/s/____________________ JON W. THOMPSON, Judge 13
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