State v. Romero

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAVIER ROMERO, Appellant.

No. 1 CA-CR 18-0334
FILED 3-31-2020

Appeal from the Superior Court in Maricopa County
No. CR 2014-001009-001
The Honorable Peter C. Reinstein, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist III
Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
 STATE v. ROMERO
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Javier Romero appeals from his convictions and sentences for
second-degree murder and aggravated assault. He argues the superior
court (1) committed fundamental error by failing to provide an additional
jury instruction defining legal insanity; (2) improperly precluded testimony
addressing the consequences of a guilty except insane (“GEI”) verdict; and
(3) should have found him GEI as a matter of law. For the following
reasons, we affirm.

BACKGROUND

¶2 While Romero was working in a restaurant, he suddenly
grabbed a large kitchen knife and repeatedly stabbed a co-worker to death.
Romero then moved the victim’s body to a nearby room and attempted to
clean up the blood. Other employees, including Romero’s brother,
discovered the body shortly after the stabbing. Security cameras also
captured the incident. When Romero’s brother saw what had happened,
he grabbed Romero and asked him what he had done. Romero did not
respond; his brother testified he “looked like a deer in the headlights . . .
like he was shocked [at] what he did.”

¶3 When police officers arrived, they found Romero waiting in
the restaurant with his supervisor, who explained what Romero had done.
Romero had a blank expression on his face and did not seem to understand
instructions. Noticing extensive cuts on Romero’s arms, officers took him
to a hospital for treatment. Romero told hospital staff his wounds were self-
inflicted. After his wounds were cared for, Romero reached out from his
hospital bed and grabbed at a nearby officer’s handgun. The officer
prevented Romero from obtaining the weapon and restrained him, after
which Romero looked at the officer and said, “I don’t know why I did that.”

¶4 As an affirmative defense, Romero sought to prove he was
GEI under A.R.S. § 13-502, which states that “[a] person may be found [GEI]
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

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Opinion of the Court

know the criminal act was wrong.” At trial, the superior court’s
preliminary instructions informed the jury that if it found beyond a
reasonable doubt that Romero committed the charged offenses, it would
then be required to decide whether he proved by clear and convincing
evidence he was GEI when the crimes were committed.

¶5 The three medical experts who testified at trial agreed that
Romero suffered from schizophrenia but disagreed as to whether Romero
knew at the time that his acts were wrong. Dr. James Sullivan, testifying
for the defense, opined that Romero did not know his acts were wrong due
to a paranoid delusional episode. Dr. Janet Perry, the court-appointed
expert, agreed. But the State’s expert, Dr. James Seward, offered no
definitive conclusion as to whether Romero knew his acts were wrong. Dr.
Seward opined that when Romero began stabbing the victim, Romero was
likely not aware what he was doing was wrong, but there were signs he
became aware what he was doing was wrong in the course of the stabbing.
Dr. Seward also stated it was possible that Romero’s “behaviors were all
some kind of manifestation of his psychotic state rather than being an
awareness that the act was wrong.”

¶6 The jury found Romero guilty on both counts, rejecting his
GEI defense. This timely appeal followed.

DISCUSSION

¶7 Our standard of review of the asserted errors depends on
whether Romero objected in the superior court. If he objected and we find
error, the State must prove the error was harmless. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). Otherwise, we review for fundamental error
resulting in prejudice. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

A. Jury Instructions

¶8 Romero argues the superior court erred by giving instructions
that misinformed the jury of the elements required to establish GEI under
A.R.S. § 13-502(A). We review the propriety of jury instructions de novo.
State v. Fierro, 220 Ariz. 337, 338, ¶ 4 (App. 2008). Instructions inform the
jury how to apply the law, State v. Noriega, 187 Ariz. 282, 284 (App. 1996),
and we will not reverse unless the instructions, taken together, would have
misled the jurors, State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). Despite our de
novo review of the legal sufficiency of the jury instructions, because
Romero did not object at trial to the instructions given, we will reverse only
if the court committed fundamental error resulting in prejudice. See Fierro,
220 Ariz. at 340, ¶ 11.

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Opinion of the Court

¶9 Romero takes issue with two of the superior court’s
instructions. The first one paraphrased the standard under A.R.S. § 13-
502(A) and quoted the Revised Arizona Jury Instructions (“RAJI”) Statutory
Criminal 5.02-1 (4th ed. 2018):

You must determine from the evidence whether the
defendant was [GEI] at the time the crime was committed. A
defendant is [GEI] if at the time of the crime the defendant
was afflicted with a mental disease or defect of such severity
that the defendant did not know the criminal act was wrong.

The second instruction, paraphrasing A.R.S. § 13-105(10)(b) and quoting
RAJI Statutory Criminal 1.0510(b), stated:

“Knowingly” means that a defendant acted with awareness
of or belief in the existence of conduct or circumstances
constituting an offense. It does not mean that a defendant
must have known the conduct is forbidden by law.

¶10 Romero argues these instructions wrongly informed the jury
it could find he knew his conduct was wrong even if he could not
understand it was forbidden by law. He contends the instructions given
were “in direct contradiction to the elements of the [GEI] affirmative
defense,” and the superior court should have sua sponte given the jury
instruction at issue in State v. Corley, 108 Ariz. 240, 242–43 (1972) and State
v. Tamplin, 195 Ariz. 246, 247, ¶ 4 (App. 1999), to explain what “wrong”
means in the context of A.R.S. § 13-502. The relevant instruction given in
those two cases stated:

Knowledge that an act was wrong, as the phrase is used in
these instructions, means knowledge that the act was wrong
according to generally accepted moral standards of the
community and not the defendant’s own individual moral
standards. Knowledge that an act was forbidden by law will
permit the inference of knowledge that the act was wrong
according to generally accepted moral standards of the
community.

Corley, 108 Ariz. at 242–43; Tamplin, 195 Ariz. at 247, ¶ 4 (hereinafter referred
to as the “Corley instruction”). In those cases, the respective appellate courts
rejected the defendants’ arguments that the instruction should not have
been given, whereas here Romero contends the court fundamentally erred
by failing to give the same instruction. Corley, 108 Ariz. at 243; Tamplin, 195
Ariz. at 249, ¶ 12.

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Opinion of the Court

¶11 To address whether the superior court was required to sua
sponte give the Corley instruction at Romero’s trial, we begin with the well-
accepted premise that unless the legislature plainly indicates otherwise, a
crime “requires both guilty conduct and a culpable mental state.” See e.g.,
State v. Slayton, 214 Ariz. 511, 514, ¶ 9 (App. 2007). Under Arizona’s
criminal code, a person acts “knowingly” when, “with respect to conduct
or to a circumstance described by a statute defining an offense,” the person
engages in such conduct with the “aware[ness] or belie[f] that the . . .
conduct is of that nature or that the circumstance exists.” A.R.S. § 13-
105(10)(b). A defendant need not have acted, however, with “any
knowledge of the unlawfulness of the act or omission.” Id.

¶12 The criminal law’s general indifference to whether a
defendant knows an act is criminal reflects a second core principle—
ignorance of the law is no defense. See A.R.S. § 13-204(B); State v. Morse, 127
Ariz. 25, 31 (1980). “Knowingly” thus refers to factual knowledge, not
knowledge of an act’s legal or moral impropriety. See State v. Francis, 243
Ariz. 434, 436–37, ¶ 12 (2018) (collecting cases holding “that knowledge of
an act, even without understanding its legal significance, can establish the
culpable mental state necessary for conviction of a crime that must be
‘knowingly’ committed”); see also Bryan v. United States, 524 U.S. 184, 193
(1998) (“[T]he term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense.”).

¶13 Under the statutes at issue here, the State was required to
prove that Romero had an awareness of or a belief that his conduct at the
restaurant was of such a nature that it would “cause death or serious
physical injury,” A.R.S. § 13-1104 (second degree murder), and that in the
hospital he was aware of or had a belief that he was “tak[ing] or
attempt[ing] to exercise control over” a firearm belonging to an officer,
A.R.S. § 13-1204(A)(9)(a) (aggravated assault). Thus, the superior court’s
instruction, stating that knowingly “does not mean that a defendant must
have known the conduct is forbidden by law,” properly reflects Arizona
law.

¶14 Turning to the GEI instruction, wrongfulness in context of a
GEI defense has its origins in “what is known as the Rule of M’Naghten’s
Case as the test for criminal insanity,” which Arizona has long followed. See
State v. Schantz, 98 Ariz. 200, 206 (1965) (collecting cases). The Rule states
as follows:

[T]o establish a [defense] on the ground of insanity, it must be
clearly proved that, at the time of the committing of the act,

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Opinion of the Court

the party accused was [laboring] under such a defect of
reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that
he did not know he was doing what was wrong.

M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). The Rule’s first part “asks
about cognitive capacity: whether a mental defect leaves a defendant
unable to understand what he is doing.” Clark v. Arizona, 548 U.S. 735, 747
(2006). Its second part addresses the “lack of moral capacity: whether a
mental disease or defect leaves a defendant unable to understand that his
action is wrong.” Id.

¶15 After its adoption in 1977, Arizona’s courts consistently
understood A.R.S. § 13-502 as codifying M’Naghten. See, e.g., State v. Mott, 187 Ariz. 536, 541 (1997); State v. Zmich, 160 Ariz. 108, 110 (1989); State v.
Heartfield, 196 Ariz. 407, 410 (App. 2000). In 1993, however, our legislature
deleted the first prong of the test from the statute’s text, so that now a
person is GEI only if a “mental disease or defect” caused the person to “not
know the criminal act was wrong.” A.R.S. § 13-502(A); see Clark, 548 U.S. at
742 (upholding changes to Arizona’s moral incapacity-based insanity test
as constitutional); cf. Kahler v. Kansas, No. 18-6135, 2020 WL 1325817, at *5–
6 (U.S. Mar. 23, 2020) (upholding Kansas’s cognitive incapacity-based
insanity test as constitutional).

¶16 Though the meaning of “wrong,” as used in M’Naghten, “has
been an enigma since the standard was . . . adopted,” Arizona defines the
word “wrong” in accordance with generally accepted moral standards of
the community. Corley, 108 Ariz. at 243 (citing State v. Malumphy, 105 Ariz.
200, 212 (1969) (McFarland, J., specially concurring)); see also State v. Skaggs, 120 Ariz. 467, 472 (1978) (citing Malumphy). This concept necessarily
“include[s] both legal and moral wrong.” Corley, 108 Ariz. at 243.

¶17 As relevant here, in pressing his GEI defense, Romero was
required to prove by clear and convincing evidence that his mental disease
or defect rendered him unable to know his acts were legally and morally
wrong according to the standards of the community. Id. Romero’s
argument is that the instructions informed the jury that it could find he
knew his acts were wrong—and thus could not prove his GEI defense—
even if he did not know the acts were forbidden by law. What Romero
asserts as error, however, is a correct statement of the law. Indeed,
M’Naghten contemplated the scenario where a defendant lacks knowledge
that his act was illegal:

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Opinion of the Court

If the question were to be put as to the knowledge of the
accused solely and exclusively with reference to the law of the
land, it might tend to confound the jury, by inducing them to
believe that an actual knowledge of the law of the land was
essential in order to lead to a conviction; whereas the law is
administered upon the principle that every one must be taken
conclusively to know it, without proof that he does know it.
If the accused was conscious that the act was one which he
ought not to do, and if that act was at the same time contrary
to the law of the land, he is punishable. . . .

M’Naghten’s Case, 8 Eng. Rep. at 723; accord Malumphy, 105 Ariz. at 212.
Stated differently, evidence of a defendant’s inability to know an act has
been criminalized is insufficient to establish a GEI defense. Moreover, if the
State counters this defense with evidence showing the defendant was aware
his conduct was illegal, then it would not be improper for the jury to
conclude that he also knew his conduct was morally wrong. See Corley, 108
Ariz. at 243 (rejecting defendant’s challenge to jury instruction stating in
part that “‘[k]nowledge that an act was forbidden by law will permit the
inference of knowledge that the act was wrong according to generally accepted
moral standards of the community’”) (emphasis added).

¶18 In the oft-cited case of People v. Schmidt, 110 N.E. 945 (N.Y.
1915), the court further explained the difference between legally and
morally wrong. See Malumphy, 105 Ariz. at 210–12. There, the defendant
argued the trial court mis-instructed the jury under a M’Naghten-type
statute by limiting “wrong” to mean no more than “contrary to the laws of
the state.” Schmidt, 110 N.E. at 946 (internal quotations omitted). On
appeal, however, the court was “unable to accept the view that the word
‘wrong’ . . . [should] receive so narrow a construction.” Id. Analyzing
M’Naghten, the court explained that “a defendant who knew nothing of the
law would none the less be responsible if he knew that the act . . . was
morally wrong.” Id. at 947. Although M’Naghten had not explicitly
considered “[w]hether [a defendant] would also be responsible if he knew
[the act] was against the law, but did not know it was morally wrong,” id.,
the Schmidt court pointed out that, in most cases, the analysis will be
coterminous because “[o]bedience to the law is itself a moral duty.” Id. at
949.

¶19 By not limiting “wrong” to mean “against the law,” the GEI
instruction here did not incorrectly bar the jury from considering evidence
related to Romero’s understanding of both the legal and moral wrongness
of his acts. The instruction accurately reflected § 13-502, and Romero has

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Opinion of the Court

not shown that modeling the jury instruction on the statutory language was
improper. See State v. Harris, 151 Ariz. 236, 238 (1986) (upholding jury
instructions for burglary based on statutory language, despite subsequent
clarifying case law). In the absence of any authority requiring the Corley
instruction, we cannot say the superior court erred here. Cf. 1 Wayne R.
LaFave, Substantive Criminal Law § 7.2(b)(4) (3d ed. 2018) (noting that this
prong of M’Naghten is often “simply given to the jury without
explanation”).

¶20 We appreciate Romero’s argument that the superior court
should have given the Corley instruction because it more accurately
describes this unique area of law. Thus, in future cases we encourage trial
judges to give the Corley instruction because it provides juries, expert
witnesses, and counsel a better understanding of the GEI defense. The
instruction may have been helpful in this case given that the State’s expert
was the only individual at trial who offered the jury with a definition of
“wrong,” and he incorrectly stated that “to the best of my understanding,
in Arizona, not knowing that an action was wrong refers to the legal
wrongness as opposed to moral wrongness.” Nonetheless, the court’s
failure to sua sponte give the Corley instruction was not improper.

B. Testimony Regarding Consequences of a GEI Verdict

¶21 Romero also argues the superior court erred by not allowing
him to examine Dr. Perry about the consequences of a GEI verdict. Romero
contends he needed to question Dr. Perry about the issue “to rebut the
State’s insinuation that the GEI defense was less punishment.” Because
Romero raised this issue in the superior court, which rejected his argument,
we review that ruling for harmless error.

¶22 We review the superior court’s evidentiary rulings and
restrictions on witness examination for an abuse of discretion. State v.
McGill, 213 Ariz. 147, 156, ¶ 40 (2006). Because the decision of which
punishment to impose is generally the court’s task alone, juries are not
permitted to consider the consequences of their verdicts. State v. Cornell, 179 Ariz. 314, 327 (1994).

¶23 During cross-examination of court-appointed expert Dr.
Perry, the prosecutor questioned whether Romero was malingering when
Perry interviewed him in the following exchange:

Q. Okay. . . . A person in Mr. Romero’s position,
hypothetically may consider, a finding of legal insanity to be
a benefit over a finding of guilt in a courtroom?

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Opinion of the Court

A. I did not discuss that [with] him.

Q. Okay. But, hypothetically, I mean, people may
perceive one option is better than the other?

¶24 Romero objected to this line of questioning, but the superior
court overruled him. The prosecutor continued:

Q. . . . A subject that you’re examining such as Mr.
Romero --

A. Uh-huh.

Q. -- may in the time he’s had between the incident and
when he’s being evaluated -- may come in his mind, rightly
or wrongly, to a realization that one result might be
better for him than another?

A. Yes.

Q. More in his self-interest?

A. Yes. . . .

Q. And that’s one of the problems in competency exams
as well, test subjects may feel a certain result might be more
favorable to them?

A. Yes.

Q. Now that might be true not just of persons charged
with crimes, but anyone seeing someone in your profession?

A. Yes.

...

Q. . . . In your experience doing GEI cases, have you
encountered test subjects who fabricate information about the
offense?

A. Yes.

Q. And usually, would that be hypothetically to make
themselves look better?

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Opinion of the Court

A. Yes.

¶25 At an ensuing bench conference, Romero argued that the
prosecutor’s questions “opened the door to punishment . . . [by] asking
those questions about what [Romero’s] feelings were about being
convicted” and requested to ask the witness “about what happens if a
person gets convicted of GEI, where do they go.” The superior court
ultimately denied Romero’s request to ask Dr. Perry about the
consequences of a GEI verdict.

¶26 Romero cites authority discussing appropriate factors for the
jury to consider during a capital case’s penalty phase in support of his
assertion that the jury should have been informed about the consequences
of a GEI verdict. See Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality
opinion); State v. Escalante-Orozco, 241 Ariz. 254 (2017), abrogated in part by
Escalante, 245 Ariz. at 140–41, ¶ 16. But nothing in those cases implies that
a jury should be allowed to consider the consequence of its verdict during
a trial’s guilt phase. See, e.g., Simmons, 512 U.S. at 163 (explaining that
“[a]rguments relating to a defendant’s future dangerousness ordinarily
would be inappropriate at the guilt phase of a trial” but may be considered
when the jury “has sentencing responsibilities”).

¶27 In fact, our supreme court has rejected a similar argument. See
State v. McLoughlin, 133 Ariz. 458, 461 (1982). In McLoughlin, “an
unidentified third party” told a juror the defendant would go free if the jury
found him insane, and “[t]his juror passed along this information to the rest
of the jury” during deliberations. Id. at 460. The court made clear that “this
information is always inadmissible.” Id. at 461. Although ultimately
reversing his conviction, the court nonetheless disagreed with the
defendant’s assertion that “an instruction correctly stating what would
have happened had he been acquitted by reason of insanity . . . would have
avoided the problem caused by the juror misconduct.” Id. Because
“disposition of a defendant upon the jury’s verdict has nothing to do with
the defendant’s guilt or innocence,” it can “never be considered by the jury
in its deliberations.” Id. at 461–62. In other words, the court would not
correct an error by allowing another error to occur. See id. Consistent with
this principle, the superior court properly instructed the jury not to consider
Romero’s possible punishment in its deliberations.

¶28 Furthermore, viewed in context, we do not view the questions
posed to Dr. Perry as entering the impermissible area of punishment.
Importantly, the prosecutor’s questions contained qualified, conditional
terms such as “hypothetically,” “perceive,” and “rightly or wrongly.” And

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Opinion of the Court

they were generally sought to elicit possible explanations for malingering
and why that was a concern for psychologists in many clinical situations.
This was a relevant and proper subject of questioning, one Romero’s
counsel raised while examining Dr. Sullivan. And on re-direct, without
mentioning consequences, defense counsel addressed whether and to what
extent the issue of malingering contributed to Dr. Perry’s opinions, giving
Romero an adequate opportunity to rebut any implication that he might
have been feigning his mental condition. Accordingly, the superior court
acted within its discretion in denying Romero’s request.

C. GEI as a Matter of Law

¶29 Citing A.R.S. § 13-103(B), and State v. Bayardi, 230 Ariz. 195
(App. 2012), Romero contends the superior court should have declared him
GEI as a matter of law. We are aware of no authority that authorizes a court
to take such action, and § 13-502 explicitly leaves insanity in the fact finder’s
hands. See A.R.S. § 13-502(D) (stating “if the finder of fact finds the
defendant [GEI] . . . .”). Nor does Bayardi, which concerned the types of
criminal defenses available under Arizona law, provide support. Id. at 198,
¶ 13. The issue there was whether the defendant’s proffered statutory
defense was “an affirmative defense, a justification defense or a defense that
denies an element of the charge or responsibility.” Id. at 198, ¶ 10. We held
that the statute at issue created an affirmative defense, expressing no view
about whether any affirmative defense—such as GEI—can be established
as a matter of law. Id. at 201, ¶ 22. To the contrary, Bayardi contemplated
that such defenses are questions of fact for the factfinder to resolve. Id. at
200, ¶ 20 (providing that affirmative defenses excuse a defendant from
responsibility “[w]hen the requisite facts are established”). We therefore
reject Romero’s contention that the court should have found him GEI as a
matter of law.

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Opinion of the Court

CONCLUSION

¶30 We hold that the superior court did not (1) commit
fundamental error by failing to instruct the jury with more specificity on
the definition of insanity; (2) abuse its discretion in precluding testimony
about the consequences of a GEI verdict; or (3) err in failing to declare
Romero GEI as a matter of law. We therefore affirm Romero’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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