State v. Stempel

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BRETT STEVEN STEMPEL, Appellant.

No. 1 CA-CR 24-0682
FILED 07-24-2026

Appeal from the Superior Court in Maricopa County
No. CR2020-146335-001
The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph A. Newberg, II
Counsel for Appellee

Koplow Law Firm, Phoenix
By Lawrence S. Koplow
Co-Counsel for Appellant

Law Offices of John Penner, Scottsdale
By John Penner
Co-Counsel for Appellant

Law Offices of Rhonda Neff, PLLC, Phoenix
By Rhonda Elaine Neff
Co-Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Andrew J. Becke and Judge Kent E. Cattani joined.

T H U M M A, Judge:

¶1 Defendant Brett Steven Stempel appeals his convictions and
resulting sentences for second-degree murder and endangerment. Stempel
argues that, because he was denied the right to counsel, under the
exclusionary rule, the superior court was required to either dismiss the
charges or suppress blood draw evidence. He also argues he was
improperly precluded from collecting his own independent evidence, that
the person who collected a second blood draw was not properly identified
and that PTSD evidence he sought to offer should have been admitted.
Because Stempel has shown no error, his convictions and sentences are
affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 At about 2:15 p.m. one day in November 2020, Stempel was
driving north on Third Street in Phoenix, approaching McDowell Road.
Driving far faster than the speed limit, Stempel ran a red light and hit a car
driven by the first victim. The force of that collision caused the first victim’s
car to hit a car driven by the second victim. The first victim later died from
resulting injuries; the second victim was not injured. Stempel was seriously

1 This court reviews the trial evidence in a light most favorable to sustaining

the verdicts. See State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008) (citing cases).

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injured, including fracturing a hip, and was taken to the hospital,
accompanied by Phoenix Police Officer Sabu.

¶3 Two witnesses at the scene, including the driver of the second
vehicle, said they could smell alcohol on Stempel. First responders reported
that Stempel was slurring his speech. Other witnesses saw Stempel run the
red light.

¶4 The speed limit was 35 miles per hour. Data from Stempel’s
car showed he was driving more than 75 miles per hour a few seconds
before the crash, and 60 miles per hour a tenth of a second before the crash.
Trial testimony confirmed that the first victim’s car had been hit by another
vehicle at a high rate of speed.

¶5 Stempel arrived at the hospital at about 2:25 p.m. Soon after,
hospital staff drew Stempel’s blood for medical purposes and without law
enforcement involvement. Testing later showed a blood alcohol content
(BAC) of 0.336 for that first draw.

¶6 When Officer Sabu attempted to speak with Stempel at 2:53
p.m., Stempel responded: “I think I need to talk to a lawyer.” Officer Sabu
then ended the conversation, reported on his police radio that Stempel had
slurred speech and watched as Stempel received medical care. Officer Sabu
later testified he did not ask for Stempel’s consent to a blood draw, citing
concerns about Stempel’s capacity to consent at that time given medication
he was receiving.

¶7 Officer Sabu later obtained a search warrant for a blood draw.
Officer Sabu submitted the search warrant request at about 4:30 p.m., and
the warrant issued at about 4:38 p.m. Officers served Stempel with the
warrant at 5:32 p.m. and the second blood draw was taken two minutes
later. Detective Tow was present during that second blood draw. Testing
later showed a BAC of 0.274 for that second blood draw.

¶8 Stempel was arrested at about 7:40 p.m., and charged with
one count of second-degree murder, a Class 1 dangerous felony, and one
count of endangerment, a Class 6 dangerous felony. The murder charge
alleged Stempel “recklessly engaged in conduct which created a grave risk
of death and thereby did cause the death” of the first victim. The
endangerment charge alleged Stempel “recklessly did endanger” the
second victim “with a substantial risk of imminent death.” Stempel filed a
variety of pretrial motions, five of which (numbered for ease of reference)
are relevant here.

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¶9 In September 2022, Stempel moved: (1) to dismiss/suppress
evidence, arguing the State interfered with his right to counsel and gather
exculpatory evidence and (2) to suppress the evidence or in the alternative
conduct an evidentiary hearing, claiming the search warrant was invalid as
it was not supported by probable cause. The State countered that, because
Stempel was not in custody, there was no violation of his right to counsel
or to gather exculpatory evidence, and that the search warrant was
supported by probable cause.

¶10 Officer Sabu testified at a two-day pretrial evidentiary
hearing ending in January 2023. He testified that, upon arriving at the scene,
another officer told him that Stempel was “possibly impaired.” Officer Sabu
further testified that, before obtaining the search warrant, he contacted
other officers who spoke with the accident witnesses to substantiate the
warrant.

¶11 In his probable cause statement submitted with the search
warrant request, Officer Sabu noted his “direct observations of slurred
speech” before any medication was provided to Stempel, and “put in the
witness statements obtained by officers on scene as to the speed of Mr.
Stempel’s vehicle at the time. And also the vehicle had not stopped for a red
light, and then caused a collision.”

¶12 In February 2023, Stempel filed additional motions, seeking:
(3) to suppress all evidence obtained after what the motion called “a de
facto arrest which was not supported by probable cause;” (4) to suppress
evidence obtained by the warrant, arguing the warrant knowingly included
“materially false and misleading” information and (5) to dismiss “due to
the government’s failure to provide an independent test advisory as
required by Arizona law.” After the State filed oppositions, the court held
oral argument on all five of Stempel’s motions and took them under
advisement.

¶13 In April 2023, the court denied Stempel’s motions.
Concluding Stempel was not in custody, and the police did not interfere
with his right to counsel, the court denied motion 1, seeking to
dismiss/suppress evidence. The court denied motions 2 and 4, addressing
the validity of the search warrant, noting the search warrant and affidavit
demonstrated probable cause for the search warrant. In doing so, the court
noted that the affidavit included a potential unintentional error (the affiant
checking a Drug Recognition Expert box, even though the affiant was not
such an expert) and an omission (not stating Stempel may have struck his
head on the windshield of his car during the crash). But, the court added,

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even accounting for those issues, the affidavit still showed probable cause.
Noting the exclusionary rule, the court concluded the affidavit “was not so
factually deficient that a magistrate would be misled or that officers would
not be able to presume that the warrant was valid.”

¶14 Considering all the circumstances surrounding the encounter,
and concluding Stempel was not in police custody at the time challenged,
the court denied motion 3, claiming de facto arrest. The court also denied
motion 5, seeking dismissal for failure to allow independent testing. In
doing so, the court applied the rationale set forth in State v. Kemp, 168 Ariz.
334, 335 (1991), which noted that blood testing does not consume the entire
sample, meaning samples from the two blood draws remained for Stempel
to conduct independent testing.

¶15 In May 2024, Stempel moved to reconsider, arguing that
newly discovered evidence showed Officer Sabu asked medical providers
not to contact Stempel’s family. Stempel’s motion asked the court to
reconsider its denial of Stempel’s “constitutional challenges,” including the
motion to dismiss and/or suppress the blood test results. After further
discovery, briefing, and oral argument, in August 2024, the court issued a
lengthy minute entry denying the relief requested in Stempel’s motion to
reconsider.

¶16 The court’s ruling noted newly discovered evidence that
Officer Sabu asked a hospital social worker to not contact Stempel’s family
members and that Stempel “was considered in police custody and that the
police would contact any family members as needed.” Based on that newly
discovered evidence, the court concluded that a reasonable person in
Stempel’s position “would believe they were not free to leave or terminate
the encounter” with the police, and that Stempel showed a violation of his
right to counsel when the police officers did nothing to assist or facilitate
his desire to speak with counsel.

¶17 Applying State v. Rosengren, 199 Ariz. 112 (App. 2000) and
State v. Rumsey, 225 Ariz. 374 (App. 2010), analogous manslaughter cases,
the superior court found that the violation of the right to counsel did not
foreclose a fair trial. In Rosengren, the defendant, who was driving a car that
crashed killing the passenger, was charged with manslaughter. 199 Ariz. at
114-15 ¶¶ 1-2. Rosengren was taken to the hospital, where police officers
declined his request to call his father, who was a lawyer. Id. at 115 ¶ 4.
Officers observed Rosengren at the scene and after he invoked his right to
silence, field sobriety tests were not performed, but officers video- and
audio-recorded the investigation. Id. at ¶ 3. Given indications of alcohol

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impairment, a blood draw pursuant to a warrant was taken, which
apparently reflected impairment. Id. at 115 ¶ 6. Alleging a violation of his
right to counsel, Rosengren moved to dismiss the charge. Id. at 115 ¶ 7. After
an evidentiary hearing, the superior court denied the motion to dismiss but
suppressed evidence of the results of the blood testing. Id.

¶18 On appeal, it was undisputed that “police ‘acted improperly’
and intentionally violated Rosengren’s right to counsel by not honoring his
request to speak with his father, an attorney.” Id. at 116 ¶ 10. Noting
Rosengren was not prevented from collecting exculpatory evidence or
undertaking independent testing, the court rejected his argument that
dismissal was required. Id. at 118-19 ¶ 19. Ultimately, the court affirmed,
concluding “[t]he trial court did not abuse its discretion in fashioning an
appropriate remedy for the violation of Rosengren’s rights.” Id. at 122 ¶ 35
(citations omitted).

¶19 In Rumsey, the defendant, who was driving a car that hit two
bicycle riders, killing one, was charged with manslaughter and other
offenses. 225 Ariz. at 376 ¶¶ 2-3. Field sobriety tests at the scene showed
signs of impairment. Id. While at the scene, Rumsey spoke with her
attorney, who then traveled to the accident scene. Id. at 377 ¶ 5. The attorney
then got delayed, and took a wrong turn following Rumsey to the police
station. Id. Police then took three separate blood draws pursuant to a
warrant, which apparently showed impairment. Id. at 376-77 ¶¶ 3, 6.
Alleging a violation of her right to counsel, Rumsey moved to suppress her
statements during the initial blood draw and the results of all three blood
tests. Id. at ¶ 7. The superior court denied the motion. Id. at 381 ¶ 23.

¶20 On appeal, the court affirmed the finding that Rumsey’s right
to counsel was violated. Id. at 378 ¶ 12. In addressing the appropriate
remedy, the court rejected Rumsey’s argument that dismissal of the charges
or suppression of the impairment-related evidence was required. Id.; Id. at
381 ¶ 22. Noting Rumsey did not argue the violation “deprived her of any
exculpatory evidence such that a fair trial was impossible, the trial court
correctly concluded that dismissal” was not required. Id. at 378 ¶ 15
(citation omitted). After discussing Rosengren, Rumsey concluded that
“there was no nexus between the deprivation of Rumsey’s right to counsel
and the lawfully obtained blood evidence Rumsey sought to suppress,”
meaning the court did not err in denying her motion to suppress. Id. at 381
¶ 22.

¶21 Applying these and other cases, the superior court noted
Stempel was not prevented from collecting exculpatory evidence. The court

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concluded that dismissal of the charges was not appropriate. As to
suppression, the court noted the second blood draw was taken pursuant to
a valid warrant. The court stated the issue fell somewhere between
Rosengren, where blood testing results were suppressed under the
exclusionary rule, 199 Ariz. at 121-22 ¶ 30, and Rumsey, where blood testing
results were not suppressed, 225 Ariz. at 381 ¶ 22, finding this case was
more similar to Rumsey. Concluding “there was no nexus between the
deprivation of [Stempel’s] right to counsel and the lawfully obtained blood
evidence pursuant to the warrant,” the court denied Stempel’s motion to
suppress. The court later denied his motion to reconsider.

¶22 In August 2024, Stempel disclosed his intent to call Dr. Sarah
Gallimore to testify that he met the criteria for PTSD. The State moved to
preclude that testimony, arguing evidence of PTSD was “not relevant and
constitutes an impermissible diminished capacity defense.” During oral
argument, the court noted that Dr. Gallimore was being offered “to present
evidence that [Stempel] couldn’t have been aware of the recklessness of his
conduct based on his diagnosis of PTSD.” The court precluded the
testimony, concluding it was “improper, because you’re essentially using it
to negate the mens rea.”

¶23 During an eight-day jury trial in September 2024, the State
presented testimony from witnesses to the crash as well as Officer Sabu and
Detective Tow. The jury heard evidence that the first blood draw showed a
BAC of 0.336, while the second blood draw taken hours later showed a BAC
of 0.274.2 After the court denied Stempel’s motion for judgment of acquittal,
he called forensic toxicologist Chester Flaxmayer, who testified about the
legitimacy of the blood draws. After deliberating, the jury found Stempel
guilty as charged.

¶24 Stempel was sentenced to 17 years in prison for second-
degree murder, and incarcerated for 70 days for the endangerment
conviction, to run concurrently, with the court awarding 70 days of
presentence incarceration credit. This court has jurisdiction over Stempel’s
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. sections 12-120.21(A)(1), 13-4031 and 13-4033(A).

2 As points of reference, for driving under the influence (DUI) charges

(which are not at issue here), the BAC levels for both of Stempel’s blood
draws far exceed the legal limit. See Ariz. Rev. Stat. (A.R.S.) §§ 28-1381(A)(2)
(0.08 for DUI); -1382(A)(1) (0.15 for extreme DUI).

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DISCUSSION

I. Stempel Has Not Shown the Superior Court Erred in Admitting
Evidence Resulting from the Blood Draws.

¶25 A separate opinion rejects Stempel’s arguments that
admission of the blood draw evidence was structural error and that this
court reviews de novo a superior court’s order considering possible
remedies for a violation of the exclusionary rule. See Ariz. R. Crim. P.
31.19(f); Ariz. R. Sup. Ct. 111(h). Applying that standard in this
memorandum decision, Stempel has shown no error.

A. Neither Dismissal nor Suppression Was Mandated.

1. Dismissal as a Remedy.

¶26 Stempel argues “the court refused to provide any remedy”
when it concluded “there was no nexus between the violation” of his right
to counsel and the blood draw evidence, which Stempel argues was “plain
error.” Stempel argues that if “Rumsey represents delayed consultation and
Rosengren represents constrained consultation, this case represents the
complete absence of consultation.” Thus, he argues, the superior court was
required to dismiss the charges.

¶27 Dismissal of charges with prejudice is the most drastic
remedy possible. See State v. Pecard, 196 Ariz. 371, 379 ¶ 42 (App. 1999)
(referring to “the drastic remedy of dismissal”). Rejecting that drastic
remedy, the superior court found this case was analogous to Rosengren,
concluding that, although there was a violation of the right to counsel,
Stempel “had or has the opportunity to collect exculpatory evidence.” See
Rosengren, 199 Ariz. at 118 ¶ 19 (“[I]n determining whether dismissal is
required, the pertinent cases primarily have focused on whether the
violation of right to counsel has ‘foreclosed a fair trial by preventing [the
defendant] from collecting exculpatory evidence no longer available.’”)
(citing cases).

¶28 The superior court found that Stempel had access to (1) “an
abundance of body cam recordings of [Stempel’s] physical and mental
condition at the time of the collision;” (2) an ability to subpoena “numerous
non-police medical personnel” who examined him “to testify as to the lack
of any signs or symptoms of impairment;” and (3) “access to the blood
evidence that was taken pursuant to the search warrant for independent
testing.” Stempel has not shown that the superior court incorrectly assessed
the evidence available to him, particularly given that the charges here were

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for murder and endangerment, not DUI. Stempel has not shown the
superior court abused its discretion in denying his motion to dismiss the
charges. See Rosengren, 199 Ariz. at 118 ¶ 17 (“[A] violation of the right to
counsel and the concomitant due process right to gather independent
evidence of sobriety requires outright dismissal only if evidence of
intoxication is essential to the prosecution of the offense.”) (citing cases).

2. Suppression as a Remedy.

¶29 Stempel argues that “[s]uppression was the minimum
remedy required.” Although seeking to distinguish Rumsey and Rosengren
on their facts, he fails to show that the analysis in those cases does not apply.
Both cases affirmed rulings addressing the proper consequences for the
denial of a right to counsel. See Rumsey, 225 Ariz. at 376 ¶ 1; Rosengren, 199
Ariz. at 305-06 ¶ 1. Here, the superior court reasonably found the blood-
related evidence, including the second draw obtained pursuant to a
warrant, was sufficiently attenuated from the denial of Stempel’s right to
counsel. Thus, as in Rumsey, suppression was not appropriate. See 225 Ariz.
at 378-79 ¶ 13 (citing cases).

¶30 The exclusionary rule does not always result in the
suppression of evidence. See State v. Mitcham, 258 Ariz. 432, 441 ¶ 33 (2024)
(the exclusionary rule is applied only “where its deterrence benefits
outweigh its ‘substantial social costs.’”) (citing cases). Indeed, “suppression
is not required unless a nexus exists between the violation and the evidence
obtained.” Rumsey, 225 Ariz. at 379-80 ¶ 16 (citation omitted). Evidence
need not be suppressed when “the connection between the lawless conduct
of the police and the discovery of the challenged evidence has ‘become so
attenuated as to dissipate the taint.’” Id. at 378 ¶ 13 (citation omitted).

¶31 Here, in addressing the motion to suppress, the superior court
required a nexus between the violation and the evidence obtained. In doing
so, the court properly noted that, in cases where suppression was ordered,
the defendant had requested and was denied counsel before deciding to give
a blood sample voluntarily. In Rumsey, where evidence was not suppressed,
the basis for obtaining a warrant to secure a blood draw was unrelated to
the violation of the right to counsel. Id. at 381 ¶ 22 (“In short, there was no
nexus between the deprivation of Rumsey’s right to counsel and the
lawfully obtained blood evidence Rumsey sought to suppress.”). The
superior court properly found that was the case here.

¶32 Stempel admits that the first blood draw was taken at about
2:25 p.m., “for medical purposes soon after his arrival in the trauma unit.”

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Stempel concedes that he did not request a lawyer until nearly half an hour
later. This timeline properly allowed the superior court to conclude that
there was no nexus between the deprivation of his right to counsel and the
first blood draw, which showed a BAC of 0.336 less than an hour after the
crash.

¶33 Officer Sabu testified that “he never intended to seek
[Stempel’s] consent to a blood draw” because he thought Stempel lacked
capacity to consent given the medical treatment and pain medication being
administered. Officer Sabu’s body worn camera recording confirms his
testimony. Officer Sabu testified that, “after [Stempel] was administered
medications, he was in a state of euphoria. He couldn’t comprehend it.”

¶34 Because Stempel was never asked to consent to a blood draw,
there was no nexus between the deprivation of Stempel’s right to counsel
and the blood evidence obtained pursuant to the warrant. The record shows
that, in seeking a warrant for the second blood draw, Officer Sabu detailed
his “direct observations of slurred speech by Mr. Stempel; prior to
administration of any medication. And I also put in the witness statements
obtained by officers on scene as to the speed of Mr. Stempel’s vehicle at the
time. And also the vehicle had not stopped for a red light, and then caused
a collision.” Stempel has shown no abuse of discretion in the superior court
addressing these facts and has shown no error in the denial of his motion
to suppress.

B. The Superior Court Did Not Err in Concluding Stempel’s
Ability to Obtain Independent Evidence Was Not Violated.

¶35 Stempel asserts that the police “did not inform him of his right
to obtain independent testing,” which “cut off his only chance to gather
exculpatory evidence.” Stempel argues he was “entitled to an independent
blood draw because the government’s samples may be unreliable.”
“Without access to an independent and representative sample,” Stempel
adds, “the defense had no adequate way to counter the [BAC] numbers the
jury saw.” Stempel asserts that the lack of corroborating evidence of
intoxication amplifies this defect.

¶36 Stempel correctly asserts that “a DUI suspect has a due
process right to gather independent evidence of sobriety while it still
exists.” See State v. Nevarez, 235 Ariz. 129, 136 ¶ 20 (App. 2014) (citing cases);
McNutt v. Superior Court, 133 Ariz. 7, 10 n.2 (1982). Consistent with that
right, the State “may not unreasonably interfere with an accused’s
reasonable attempts to secure, at his own expense, a blood or other scientific

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test.” Smith v. Cada, 114 Ariz. 510, 514 (App. 1977). This, however, is not a
DUI case; Stempel was charged with and convicted of second-degree
murder and endangerment. But even in DUI cases, the defendant may seek
to secure, at the defendant’s own expense, “a blood or other scientific test
for the purpose of attempting to establish evidence of his sobriety at or near
the crucial time under consideration.” Nevarez, 235 Ariz. at 136 ¶ 20 (citation
omitted). There is no affirmative duty on law enforcement to advise the
suspect of that right, at least (as here) where the sample taken by law
enforcement would still be available for independent testing by the
defendant. See State v. Olcan, 204 Ariz. 181, 184 ¶ 12 (App. 2003); Kemp, 168
Ariz. at 335.

¶37 Recognizing that the appropriate remedy for the denial of
such rights could include dismissal or suppression, State v. Penney, 229 Ariz.
32, 36 ¶ 17 (App. 2012), the superior court rejected dismissal as a proper
remedy because there was no evidence that any of the police officers
interfered with Stempel’s ability to obtain exculpatory evidence. Moreover,
because there was no nexus between a denial of counsel and Stempel’s
ability to gather evidence, the superior court also rejected suppression as a
proper remedy. Stempel has shown no abuse of discretion in those
conclusions.

C. The Superior Court Correctly Qualified the Person Taking
the Second Blood Draw and Stempel Failed to Rebut that
Showing.

¶38 Stempel argues that the State never identified the woman who
conducted his second blood draw. He argues “[t]he only thing the jury
knew about her was that she wore a shirt labeled ‘paramedic in training.’
No one could say who she was, what training she had, or whether she met
any forensic standards.” Stempel contends this violated State v. Nihiser, 191
Ariz. 199 (App. 1997), because the “government may not use forensic blood
evidence without first identifying the person who drew the blood and
proving the individual was qualified under Arizona law.”

¶39 By statute,

only a physician, a registered nurse or another
qualified person may withdraw blood for the
purpose of determining the alcohol
concentration or drug content in the blood. The
qualifications of the individual withdrawing
the blood and the method used to withdraw the

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blood are not foundational prerequisites for the
admissibility of a blood alcohol content
determination made pursuant to this
subsection.

A.R.S. § 28-1388(A); see also State ex rel. Pennartz v. Olcavage, 200 Ariz. 582,
588 ¶ 20 (App. 2001) (“[A] person is ‘qualified’ to draw blood for DUI
purposes if he or she is competent, by reason of training or experience, in
that procedure.”). If the State presents evidence that a qualified person
drew the blood, the statute’s foundational requirement is met. See Nihiser,
191 Ariz. at 202. “Once this foundational showing is made, the individual's
qualifications and the validity of the method used are presumed.” Id. at 203.
A defendant is then required “to present evidence that the individual who
drew the blood was not qualified or the blood was drawn improperly to
rebut the statutory presumptions that the samples were drawn by a
qualified person in a reliable manner.” Id.

¶40 Here, the State offered evidence showing the foundational
requirement for the second blood draw. Detective Tow testified that “the
hospital phlebotomist” did that blood draw. A body worn camera
recording was presented to the jury, and Detective Tow confirmed the
person that drew the blood was someone with a t-shirt that said,
“Paramedic Student.” Detective Tow added: “I didn’t look at any
certifications or anything prior to, but I saw that she was a hospital member
drawing blood on a patient. I would assume that anyone in the hospital
drawing blood on patients would be someone who’s qualified to do so.”

¶41 When asked if the person was a hospital employee, Detective
Tow testified she was, adding that the Detective “got an employee number”
for the phlebotomist and “asked her about it after and got her information.”
Detective Tow then explained what happened during the second blood
draw, using the body worn camera recording. The court concluded that the
evidence established that “Detective Tow was present there during the
blood draw” and was essentially “overseeing the blood draw,” there was
“testimony that the hospital doesn’t allow people to do blood draws that
aren’t qualified,” the “blood draw was done in the emergency room of a
hospital,” and, as a result, the State had made the required foundational
showing.3 Stempel made no attempt to counter that showing.

3 Although Stempel argued in superior court he had a right to confront the

person who drew the blood, he has not made that argument on appeal,
meaning it is waived. See State v. Lopez, 223 Ariz. 238, 240 ¶ 6 (App. 2009).

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¶42 Because the State offered sufficient evidence to show the
statutory foundational requirements, and Stempel did not rebut that
showing, he has shown no error regarding the qualifications of the person
who took the second blood draw. See Nihiser, 191 Ariz. at 203-04 (finding no
error in admitting blood test results when there was testimony indicating
the person who drew the blood was hospital staff and no evidence was
offered by the defendant to rebut the showing).

II. The Superior Court Properly Excluded the PTSD Evidence
Stempel Sought to Offer as Diminished Capacity Evidence.

¶43 Both charges against Stempel allowed for a conviction based
on reckless conduct. The second-degree murder charge alleged Stempel
“without premeditation . . . recklessly engaged in conduct which created a
grave risk of death and thereby did cause the death” of the first victim. The
endangerment charge alleged Stempel “recklessly did endanger” the
second victim “with a substantial risk of imminent death.”

¶44 The statutory definition for the mental state of “recklessly”
concludes with the following limitation: “A person who creates such a risk
but who is unaware of such risk solely by reason of voluntary intoxication
also acts recklessly with respect to such risk.” A.R.S. § 13-105(10)(c)
(emphasis added). Stempel argues that “[i]f even one other factor, such as
PTSD, contributed to a defendant’s unawareness, the Government has not
proven recklessness.” Accordingly, he asserts the superior court erred in
excluding his proffer of Dr. Gallimore’s testimony of his claimed PTSD to
show that he did not act recklessly. Stempel adds that “here, where the jury
had to distinguish among criminal negligence, recklessness, and extreme
indifference, the need to consider PTSD related evidence was not peripheral
but elemental.” He claims error because the superior court “barred all
PTSD-related evidence by mischaracterizing Dr. Gallimore’s proposed
testimony as impermissible capacity evidence.”

¶45 This court reviews the superior court’s preclusion of Dr.
Gallimore’s PTSD testimony for an abuse of discretion. State v. Malone, 247
Ariz. 29, 31 ¶ 7 (2019). “Using mental disease or defect evidence to refute
the mens rea element of a crime is commonly referred to as ‘diminished
capacity’ or ‘diminished responsibility’ defense.” Id. at 31 ¶ 9 (citations
omitted). Arizona does not recognize diminished capacity or responsibility
defenses, and evidence of them is prohibited. Id. at 31 ¶¶ 8-9.

¶46 In responding to the State’s objection to Dr. Gallimore’s
testimony, Stempel stated that he was “trying to present evidence that

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shows there were other factors that led to [Stempel] being unaware, in
addition to voluntary intoxication, and the word ‘solely’ is informative.”
Stempel argued if a defendant was 99 percent unaware of a risk due to
voluntary intoxication and one percent due to PTSD, the State could not
prove guilt beyond a reasonable doubt. The superior court stated it thought
“the word ‘solely’ was put in there simply to take away a defense of, I can’t
be responsible because I was impaired.” Noting that “nowhere else in the
criminal code does it exist where you’d be allowed to argue this to negate
the mens rea without doing a [guilty except insane] defense,” the court
rejected Stempel’s argument and precluded Dr. Gallimore’s proposed
testimony.

¶47 During trial, Stempel provided an offer of proof stating that,
if allowed to testify, Dr. Gallimore would testify that Stempel “met the
criteria for PTSD at the time of the accident;” “has severe PTSD” with “a
comorbidity of binge drinking;” “[t]hat it would not be surprising if
Stempel was unable to recognize risky behaviors even without the use of
alcohol;” that his PTSD “causes him to be unable to recognize the
consequence of his actions;” and that “Stempel’s psychological condition
was one factor in his inability to perceive risk at the time of the accident.”
The offer of proof also stated Stempel had “significant risk factors for
PTSD,” including, among other things, a “personal history of substance
abuse” and the factors along with PTSD “commonly cause failure to
perceive risk.”

¶48 On appeal, Stempel argues Dr. Gallimore “was offered solely
to provide clinical observations about [Stempel’s] symptoms, and risk
factors, along with general information about PTSD and its comorbidities.”
Although “a defendant may present ‘observational evidence’ about the
defendant’s ‘tendency to think in a certain way and his behavior
characteristics,’” State v. Jacobson, 244 Ariz. 187, 192 ¶ 18 (App. 2017), the
superior court found the potential testimony was not offered for this
purpose, but for the improper purpose of negating mens rea, see, e.g., State
v. Buot, 232 Ariz. 432, 436 ¶ 20 (App. 2013) (“[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.”). The offer of proof focused on the thought
that Stempel’s PTSD, and related psychological condition, was one factor in
his inability to perceive risk at the time of the crash. This is improper
diminished capacity evidence. See Malone, 247 Ariz. at 34 ¶ 20 (“Although
behavioral-tendency evidence is permissible to negate mens rea, linking
that behavior to a mental disease or defect, whether directly or under the
guise of corroboration, is impermissible.”) (citing cases). On this record,

14

STATE v. STEMPEL
Decision of the Court

Stempel has shown no error in this characterization of Dr. Gallimore’s
diminished capacity evidence and, accordingly, has shown no abuse of
discretion in the court precluding that testimony.

CONCLUSION

¶49 Stempel’s convictions and resulting sentences are affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

15