Cited by

However, “[t]he right to be personally 10 STATE v. STROVER Decision of the Court present applies only to those proceedings in open court whenever [the accused’s] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” (citations and internal quotations omitted).

at 760 (discussing “observation evidence” in the form of expert testimony about “a defendant’s tendency to think in a certain way or his behavioral characteristics,” which Mott indicated “was perfectly admissible to rebut the prosecution’s evidence of mens rea”); see also Mott, 187 Ariz. at 544 ( was “evidence about his behavioral tendencies”).

This right, however, applies only to proceedings in open court when the defendant’s “presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” (citations and internal quotation marks omitted).

(affirming denial of mistrial when defendant did not seek to strike the testimony or request a curative instruction).

Relying on 4 Rothrock contends his impulsivity was relevant to the charged offenses.

¶6 Generally, “a prosecutor is prohibited from directly or indirectly drawing the jury’s attention to the fact a defendant did not testify.”

inion of the Court: ¶1 Although a defendant cannot use evidence of a mental disease or defect to show he did not form a crime’s requisite mental state (mens rea), –13 (1965), he may use evidence of a character trait for impulsivity to cast doubt on the existence of premeditation, which forms part of the mens rea for first degree murder under A.R.S.

¶ 24 (holding that it was error to preclude expert evidence regarding a defendant’s character trait for impulsivity to rebut premeditation); -35 (1981) (holding that it was error to preclude expert evidence that defendant “had difficulty dealing with stress and in stressful situations his actions were more reflexive than reflective” to establish that he “acted impulsively” and to allow the jury to infer that a homicide was not premeditated).

State v. Christensen , , 35, , 583 (1981).

2709 , 165 L.Ed.2d 842 (2006) (interpreting Mott ); see also State v. Christensen , , 35, , 583 (1981) (concluding expert testimony that a defendant possessed a character trait for impulsivity would assist the jury in determining whether the defendant acted with premeditation).

¶ 19 Millis’s , is unavailing.

¶20 A victim’s state of mind is relevant to show the defendant’s motive, ¶ 34, or when a defendant raises the defense of accident or suicide

He contends that this evidence was properly admissible as “observation evidence” under Clark v. Arizona, 548 U.S. 735 (2006), P.2d 580 (1981), and would have rebutted the State’s premeditation evidence.

§ 13-1101(1)); (noting that the current criminal code “prescribe[s] the conditions when murder may be reduced to manslaughter through the lack of reason or planning; that is, when a person acts in the heat of passion with adequate provocation”).

¶22 Lopez’s P.2d 580 (1981), is misplaced.

For support for this proposition, the Court cited Mott’s

That right applies “whenever [a defendant’s] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).

¶53 Just as Boyston’s statutory analysis is flawed, P.2d 580 (1981).

E.g., United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam); Snyder, 291 U.S. at 105– 06; Dann, 205 Ariz. at 571–72 ¶ 53, 74 P.3d at 245–46

our supreme court held that the appellant “did not have a constitutional right to be personally present in the court’s chambers to discuss how to handle the jury’s communications” to the trial judge during deliberations.

at 6 544, 931 P.3d at 1054 ( P.2d 580 (1981)).2 ¶11 Wright relies on Clark, which was decided while this appeal was pending.3 In Clark, the Court considered the three different categories of evidence “with a potential bearing” on the mental state element of an offense: observation, mental disease, and mental capacity.

(“[I]t is inconsistent with fundamental justice to prevent a defendant from offering evidence to dispute the charge against him.”).

However, this right “applies only to those proceedings in open court ‘whenever [a defendant’s] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” , (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 , 54 S. Ct. 330, 332 , 78 L.Ed.

“[T]he statements must be examined in context to determine whether the jury would naturally and necessarily perceive them to be a comment on the failure of the defendant to testify.” , (citing State v. Chris *545 tensen, , ).