State v. Armbruster
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROYCE EUGENE ARMBRUSTER, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0068 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2005-128006-001 SE The Honorable Christopher Whitten, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix The Law Office of Michael J. Dew by Michael J. Dew Attorney for Appellant Phoenix P O R T L E Y, Judge ¶1 life Royce Eugene Armbruster was convicted and sentenced to in prison for first-degree murder, kidnapping, and two counts of aggravated assault. denied him defense by the right precluding to He contends that the trial court present evidence, an involuntary argument, and intoxication an instruction relating to his claimed paradoxical reaction to a prescription medication. For the reasons that follow, we find no reversible error and affirm. FACTS 1 AND PROCEDURAL BACKGROUND ¶2 Shortly after midnight on September 3, 2005, the victim called 9-1-1 and told the operator that she had been hit in the face. As the operator tried to get the Chandler police on the line, 2 she heard the victim begin screaming. The police arrived and found the garage door open, and a car parked in the driveway with the observed Armbruster driver s through side door the front open. window Police of officers the house sitting in a living room chair, but he refused to open the door. Instead, he got up and began to walk toward the other end of the house, where the garage was located. ¶3 After the police found a cell phone in the garage that they believed had been used to call 9-1-1, they entered the house. As soon as they opened the door, they found the victim lying in a pool of blood; her throat had been severely cut. 1 The We view the evidence in a light most favorable to affirming the conviction. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 The victim s 9-1-1 call initially went to the Maricopa County Sheriff s Office. 2 medical examiner testified that the victim died from multiple blunt-force and sharp-force injuries, including bilateral subdural hemorrhages in her brain, a broken bone in her nose, several fractures of her cheekbone, five rib fractures, and thirteen stab wounds to her face, neck, and chest, including two that penetrated the carotid artery. ¶4 Armbruster was covered with blood marks on his chest, shoulder, and back. and had scratch DNA taken from under the victim s fingernails was consistent with the DNA profile belonging to Armbruster. ¶5 Approximately five hours after his arrest, the police obtained a blood sample from Armbruster. test revealed a blood alcohol Armbruster s expert s concentration of approximately 0.15 percent; 3 therapeutic levels of hydrocodone, an opiate; and below-therapeutic levels of lorazepam, 4 a benzodiazepine. Armbruster did not have a prescription for lorazepam, but during a search of the house, the police found several empty bottles of lorazepam prescribed for the victim. ¶6 killed murder Armbruster did not testify, nor did he dispute that he the was victim. Rather, committed he during 3 attempted a to period claim of that the involuntary The State s test revealed a 0.172 percent blood alcohol concentration. 4 Lorazepam is sometimes referred to as Ativan, which, according to Dr. Edward French, is the drug company name for lorazepam. For clarity, we simply use the term lorazepam. 3 intoxication. The jury, however, was instructed on voluntary intoxication, and was told that the abuse or improper use of prescribed medication, was not a defense. Despite the instruction, Armbruster argued that the homicide was the result of mixing drugs and alcohol which sent him into a rage instead of mellowing him out. abuse prescription Armbruster claimed that he did not medication, and was, therefore, not voluntarily intoxicated, because the vast majority of us have, on occasion, probably taken someone else s medication. ¶7 Armbruster was convicted as charged. During the penalty trial, the jury was unable to reach a verdict on whether to impose the death penalty, so the court declared a mistrial. Armbruster subsequently stipulated to a sentence of natural life for the first-degree murder conviction, in dismissal of the death penalty notice. subsequently conviction; sentenced thirty-five to natural years for the exchange for the As a result, he was life for kidnapping the murder conviction, which was to be consecutive to the murder sentence; and fifteen years for served each of concurrently kidnapping sentence. the aggravated with each assault other but convictions, consecutive to be to the right to Armbruster filed an appeal. DISCUSSION ¶8 Armbruster argues that his constitutional present a complete defense was denied because the trial court 4 abused its discretion intoxication by denying instruction. his requested Specifically, he involuntary argues that the court improperly precluded the following testimony: (1) that he had bipolar disorder and had been prescribed benzodiazepine; (2) that it s not uncommon for people who have been prescribed medications in the past with no ill effects to borrow the same medications from others; and (3) that he suffered an alleged paradoxical reaction to lorazepam before the murder. I. ¶9 The State filed a motion in August 2008 to preclude any evidence of Armbruster s drug and alcohol use on the night of the offenses. Although Armbruster argued that the evidence was admissible to show involuntary intoxication, the trial court ruled that he could present evidence of his alcohol and drug use at the time of commission of the offenses, but deferred deciding whether Armbruster was entitled to an involuntary intoxication instruction. ¶10 evidence Nearly that medication. a year later, Armbruster The State the suffered also sought a State moved paradoxical to exclude to preclude reaction evidence to that Armbruster suffered from a bipolar disorder and that he could not form the requisite mental state because of intoxication. After an evidentiary hearing, the trial court again denied the 5 State s motion and deferred determining whether an involuntary intoxication instruction would be given. ¶11 At trial, Armbruster called Dr. Edward French, a University of Arizona pharmacology professor, who testified that while lorazepam is normally prescribed to reduce anxiety and induce sleep, it was possible that Armbruster had experienced a rare paradoxical reaction to the lorazepam, which caused him to become aggressive and hostile. person with bipolar disorder Dr. French testified that a may paradoxical reaction to lorazepam. be predisposed to a He testified, however, that it was common knowledge that lorazepam should not be mixed with alcohol. 5 He also conceded that Armbruster did not have a prescription for lorazepam. ¶12 After Dr. French testified, the court asked Armbruster to provide an additional offer of proof to support a defense of involuntary intoxication. Smith would disorder at prescribed testify the that time lorazepam The court was advised that Dr. Robert of in Armbruster the the suffered offense past for from he a and that this condition. bipolar had been As a result, he claimed that an inference could be drawn that he 5 Police found an empty prescription bottle of oxycodone for Armbruster at the residence. The oxycodone bottle contained a warning which stated in pertinent part: [D]o not drink alcoholic beverages when taking this medication. Dr. French testified that although oxycodone and hydrocodone are different medications, the same caution about alcohol use would apply to hydrocodone. 6 viewed taking one pill from the victim s prescription bottle would be sufficient to cure what ailed him. that because similar in loose size to diclofenac pills lorazepam, it found could be He also argued on the bed inferred were that he mistakenly took the lorazepam thinking it was his prescription diclofenac. ¶13 P.3d After finding that State v. McKeon, 201 Ariz. 571, 38 1236 (App. 2002) required evidence that prescription medication was properly used for the involuntary intoxication defense to apply, the trial court ruled that: There is absolutely no evidence that s been presented to this jury, nor is there any in the defendants offer of proof . . . which would allow a reasonable juror to infer that the defendant meets those qualifications that he was not taking medication in an abusive or improper way. * * * The evidence by Dr. Smith that the defendant was bipolar at the time of this offense and, therefore, was more likely under Dr. French s testimony to have suffered a paradoxical reaction which would equate to he was impaired by the use of the medication is no longer relevant . . . and Dr. Smith no longer has any relevant testimony, and he won t be called as a witness. The court also ruled that the jury would not be instructed on involuntary intoxication, and Armbruster would not be able to argue his paradoxical reaction because it was irrelevant. 7 ¶14 The trial court then allowed the State to call Dr. Elizabeth Kohlhepp, a psychiatrist, as a rebuttal witness. testified that, during her interview with She Armbruster, he admitted that he did not have a prescription for lorazepam and had used the victim s lorazepam because he had run out of his prescription of hydrocodone. had ingested numerous as many hydrocodone as Armbruster also told her that he ten pills, liquor earlier that evening. lorazepam and had pills, drunk a several fifth of to hard Dr. Kohlhepp also testified that Armbruster had a long history of abusing alcohol and drugs, both prescription and non-prescription, and that there was nothing paradoxical or unusual about him becoming violent or rageful when intoxicated. ¶15 Then, as now, Armbruster argued that the court denied his constitutional right to present a defense. II. ¶16 The constitutional right to due process guarantees a criminal defendant complete defense. a meaningful opportunity to present a Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). The right to present a defense is, however, not limitless. The United States Supreme Court has stated that the accused . . . must comply with established rules of procedure and evidence designed to assure both fairness 8 and reliability in the ascertainment of guilt and innocence. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see also United States v. Scheffer, 523 U.S. 303, 308 (1998) ( A defendant s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions, including application of reasonable evidentiary rules); State v. Dickens, 187 Ariz. 1, 14, 926 P.2d 468, 481 (1996) constitutional defense, the admissible ( Although right right under to is the a defendant confront limited ordinary has witnesses to rules a and presentation of fundamental present of evidence, a matters including relevance ); cf. Montana v. Egelhoff, 518 U.S. 37, 56, 60-61 (1996) (holding that statute barring defendant from presenting evidence of voluntary intoxication to rebut mens rea does not violate due process). A. ¶17 We review trial court rulings on the admissibility of evidence for abuse of discretion. State v. Ellison, 213 Ariz. 116, 912 129, ¶ 42, 140 P.3d 899, (2006). Because [a] defendant is entitled to an instruction on any theory reasonably supported by the evidence, State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005) (internal punctuation and citation omitted), we review the refusal to give an instruction for abuse of discretion. Id. We also review the court s ruling regarding the scope of closing argument for abuse of discretion. 9 State v. Pandeli, 215 Ariz. 514, 525, ¶ 30, 161 P.3d 557, 586 (2007). B. ¶18 The trial court did not abuse its discretion by precluding testimony and argument about involuntary intoxication or paradoxical reaction, or by refusing to instruct on involuntary intoxication. ¶19 Since the enactment of Arizona Revised Statutes ( A.R.S. ) section 13-503 (2010) in 1994, a person s voluntary ingestion of drugs, alcohol or the abuse of prescription drugs voluntary intoxication cannot be used to negate any criminal act or mental state. The statute provides, in pertinent part, that: Temporary intoxication resulting voluntary ingestion, consumption, or injection of alcohol . . . or of prescribed medications . . . defense for any criminal act or state of mind. from the inhalation the abuse is not a requisite A.R.S. § 13-503. ¶20 Although the legislative language is clear, in McKeon we held that involuntary intoxication, when it arises from the non-abusive use of prescribed medication, may be relevant to the question whether a person accused of a criminal act had the requisite state of mind. 201 Ariz. at 572, ¶ 2, 38 P.3d at 1237. There, McKeon testified 10 that he used medications prescribed to him intermittently, and several experts testified that the combination of the prescription medicines could cause delirium or severe cognitive impairment. 25, 26, 38 P.3d at 1240-41. Id. at 575-76, ¶¶ 22, Although we found that the trial court erred in instructing the jury that McKeon s voluntary intoxication cannot be used to negate any criminal act or mental state, we also found that the instruction was, under the facts, harmless conviction. ¶21 and affirmed his double first-degree murder Id. at 577, ¶ 31, 38 P.3d at 1242. Although Armbruster continues to argue that he became involuntarily intoxicated and suffered a paradoxical reaction after ingesting prescription medicine, it is undisputed that he did not have a current prescription for lorazepam. Moreover, it is undisputed that before the homicide he abused the medication by taking as many as ten tablets, mixing them with several to numerous hydrocodone tablets and a fifth of hard liquor. on the presented undisputed no evidence evidence which and even the Based fact that Armbruster suggests that he had a prescription for lorazepam or was using it pursuant to medical advice, a necessary predicate to an involuntary intoxication instruction, see McKeon, 201 Ariz. at 572, ¶ 2, 38 P.3d at 1237, the trial court did not err by refusing to give an involuntary intoxication instruction. 11 ¶22 Likewise, we find no merit in the argument that Armbruster was entitled to the instruction and argument because he had used lorazepam in the past without ill effect, and his expert, Dr. uncommon Smith, for would people testified that borrow to have medication from it is not others. In fact, it is illegal for a person to knowingly use or possess a prescription-only drug without a valid prescription. 13-3406(A)(1) (2010). whenever a person A.R.S. § If involuntary intoxication was a defense experienced an adverse reaction to a prescription drug that had once been prescribed but obtained without a prescription on the occasion at issue, the exception would swallow the rule. ¶23 Similarly, distinguish possible the whether by alcohol assist that Armbruster s paradoxical caused fact Armbruster. reaction and/or French actions to other Although Dr. were lorazepam prescription Dr. French was unable based or on to the intoxication drugs testified does that not only lorazepam, and not hydrocodone, was associated with paradoxical reactions, tablets the fact without hydrocodone a that Armbruster prescription tablets and a and large ingested mixed quantity many them of lorazepam with several alcohol further supports the trial court s finding that Armbruster abused both the unprescribed, and prescribed, medications. Consequently, the court gave the only instruction reasonably supported by the 12 evidence voluntary intoxication, which is not a defense to any See A.R.S. § 13-503. 6 criminal act or state of mind. ¶24 Because the evidence failed to support a defense of involuntary intoxication, the claim of paradoxical reaction was irrelevant. Although he was precluded from arguing his paradoxical reaction, Armbruster was free to argue, as he did, that the State had failed to demonstrate beyond a reasonable doubt that the evidence supported the fact that he had the sufficient state of mind necessary to commit the premeditated homicide. See State v. Marshall, 197 Ariz. 496, 501, ¶ 15, 4 P.3d 1039, 1044 (App. 2000). Consequently, based on the record, the trial court did not abuse its discretion by precluding the argument that Armbruster had a paradoxical reaction to lorazepam. 6 This case is also distinguishable from two other Arizona cases involving intoxication. See State v. Edmisten, 220 Ariz. 517, 520-24, ¶¶ 5-21, 207 P.3d 770, 773-77 (App. 2009) (holding the trial court did not fundamentally err in failing to clarify any ambiguity in its involuntary intoxication instruction, which the trial court had given on evidence that defendant s girlfriend had secretly slipped two Ecstasy pills into his drink, which caused him to become disoriented); State v. Boyd, 201 Ariz. 27, 31, ¶¶ 19-20, 31 P.3d 140, 144 (App. 2001) (holding that strict liability statute prohibiting driver from operating vehicle with any illegal drug or its metabolite in his system was void for vagueness as applied to defendant, who had ingested legal drug and was not aware that it metabolized into an illegal drug in his system). And, we are not persuaded that we need to follow cases from other jurisdictions that interpreting standards for an involuntary intoxication defense in light of § 13-503 and McKeon. 13 ¶25 Finally, because it was undisputed that Armbruster did not have a prescription for the lorazepam tablets he ingested before the Smith murder, could not the trial discuss court correctly Armbruster s prior ruled that Dr. prescription for lorazepam; it was not relevant and would have been contrary to the plain language in prescription medication. § 13-503 concerning the abuse of Moreover, whether it is common for people to borrow each other s medications was beyond Dr. Smith s expertise, would not have brought Armbruster s use within the scope of § 13-503, and there was no evidence that, even without a prescription, he properly used the lorazepam. evidence was to the contrary. In fact, the Consequently, the court did not abuse its discretion by precluding Dr. Smith s testimony. CONCLUSION ¶26 For the foregoing reasons, we affirm Armbruster s convictions and sentences. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _______________________________ PETER B. SWANN, Presiding Judge /s/ _______________________________ PATRICK IRVINE, Judge 14
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