Opinion
2 CA-SA 2023-0073
12-19-2023
Jeremy David Millis, Petitioner, v. Hon. Howard Fell, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
Law Offices of Thomas E. Higgins P.L.L.C., Tucson By Thomas E. Higgins and Tekbali Law P.L.L.C., Tucson By Salam A. Tekbali Counsel for Petitioner Laura Conover, Pima County Attorney By Tai Summers and Victoria Otto, Deputy County Attorneys, Tucson Counsel for Real Party in Interest
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Special Action Proceeding Pima County Cause No. CR20130560001
Law Offices of Thomas E. Higgins P.L.L.C., Tucson By Thomas E. Higgins and Tekbali Law P.L.L.C., Tucson By Salam A. Tekbali Counsel for Petitioner
Laura Conover, Pima County Attorney By Tai Summers and Victoria Otto, Deputy County Attorneys, Tucson Counsel for Real Party in Interest
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 The Arizona Supreme Court remanded this special action to this court to decide two issues concerning the respondent judge's decision to preclude from a murder trial, expert testimony and argument on petitioner Jeremy Millis's "susceptibility to suggestion caused by a developmental language disorder/autism spectrum disorder." For the following reasons, we accept jurisdiction and grant relief.
Factual and Procedural Background
¶2 After a jury trial, Millis was convicted of first-degree murder and child abuse and was sentenced to life imprisonment without the possibility of release for thirty-five years, to be followed by a ten-year prison term. State v. Millis, 242 Ariz. 33, ¶ 1 (App. 2017). His convictions stemmed from the death of his former girlfriend's infant son, C.K., who had been in Millis's sole care a few hours before he began showing symptoms of non-responsiveness. Id. ¶¶ 2-5, 8. Millis later told C.K.'s mother, police, and his former wife that he had choked C.K. or "squeezed his neck." Id. ¶¶ 6, 9. This court affirmed Millis's convictions and sentences on appeal. Id. ¶¶ 1, 34.
¶3 Thereafter, Millis sought post-conviction relief and was granted a new trial based on ineffective assistance of trial counsel. State v. Millis, No. 2 CA-CR 2021-0013-PR, ¶¶ 3-4 (Ariz. App. May 20, 2021) (mem. decision). The trial court explained that "Millis's attorneys had fallen below 'the general standard of care' by failing to seek suppression of his statements to police and, barring preclusion, to present evidence about his mental condition relevant to the voluntariness of his statements and his 'suggestibility.'" Id. ¶ 4. The court relied, in part, on a neuropsychological evaluation by Dr. David Hermosillo-Romo, who had opined that Millis's "language disorder" made him vulnerable to "pressured suggestibility" and that "it is not surprising . . . [Millis] changed the story about what happened to [C.K.] several times." The court further determined that, "had counsel presented such evidence, 'the outcome of the case would have been different' because Millis's inculpatory statements 'would have been . . ., at the very least, very probably seriously compromised in the eyes of the jury.'" Id. (alteration in Millis). The state sought review of that decision, but this court denied relief. Id. ¶¶ 4, 9.
¶4 In February 2022, Millis filed a motion to suppress various inculpatory statements he had made to police, C.K.'s mother, and his former wife. In July 2022, the respondent judge denied the motion to suppress. A year later, in July 2023, Millis filed a second motion to suppress. In support of his motion, Millis relied on a December 2022 report by Dr. James Sullivan, who had evaluated Millis using the Gudjonsson Suggestibility Scales and concluded that Millis was "highly suggestible and compliant." (Emphasis omitted.)
¶5 In August 2023, the state filed a motion to preclude testimony by Dr. Sullivan and Dr. Hermosillo-Romo. The state argued that evidence of Millis's suggestibility was "not supported by case law," would "invade the province of the jury," and would "confuse the issues." It further asserted that the proposed evidence was not relevant, was highly prejudicial under Rule 403, Ariz. R. Evid., and did not meet the experttestimony requirements of Rule 702, Ariz. R. Evid. Later that month, Millis filed a supplement to his second motion to suppress. Also relying on reports from Dr. Sullivan and Dr. Hermosillo-Romo, Millis reasoned that his inculpatory statements were the result of him agreeing with the "various scenarios of abuse" put forth by others because of "his high level of suggestibility and his low IQ," not "because they were true."
¶6 At an August 2023 evidentiary hearing, Dr. Sullivan testified that Millis presented "as extremely highly suggestible compared to the normative sample." He explained that, although his evaluation of Millis had been completed in October 2022, "this personality trait . . . isn't the type of thing that changes from one day to the next or even one week to the next" and "[i]t's a pretty stable character feature in an individual's makeup." Dr. Sullivan also provided an example from a January 2013 police interview in which he thought Millis had adopted the officers' explanation for C.K.'s injuries.
¶7 After hearing evidence and argument, the respondent judge denied Millis's second motion to suppress. The respondent found that Millis "understood his Miranda rights which he knowingly and intelligently waived when he agreed to answer questions posed by the police" and that his "statements were voluntary." The respondent further determined that the testimony of Dr. Sullivan and Dr. Hermosillo-Romo was "not admissible" because it "does not go to the question of whether [Millis] understood his Miranda rights, whether he intelligently and knowingly waived them, and whether his statements were voluntary."
¶8 Millis sought special-action review of that decision, arguing, in part, that the respondent judge had "disregarded stare decisis and the law of the case" by rejecting evidence of his suggestibility. This court declined to accept jurisdiction. Millis then sought review with the Arizona Supreme Court, which granted his petition and remanded the matter to this court to decide the following rephrased issues:
1. Whether the superior court abused its discretion by precluding expert testimony regarding susceptibility to suggestion caused by a developmental language disorder/autism spectrum disorder which results in Petitioner being highly suggestible with "an abnormally high tendency to be influenced by leading questions" and "adjust his recall to what [] questions suggest[]."; and
2. Whether the superior court abused its discretion by precluding Petitioner from arguing that his inculpatory statements were the product of susceptibility to suggestion caused by a developmental language disorder/autism spectrum disorder which results in Petitioner being highly suggestible with "an abnormally high tendency to be
influenced by leading questions" and "adjust his recall to what [] questions suggest[]."
(Alterations in supreme court's order.)
Discussion
¶9 In his supplemental brief on remand, Millis argues the respondent judge erred by precluding expert testimony on his susceptibility to suggestion because such evidence is relevant under Rules 401 and 402, Ariz. R. Evid., insofar as it "tends to make a fact more or less probable-that [Millis's] confessions that he killed [C.K.] were not credible." He further asserts that the testimony of Dr. Sullivan and Dr. Hermosillo-Romo is admissible under Rule 702. Millis contends that the respondent erred by relying on State v. Mott, 187 Ariz. 536 (1997). He also argues the respondent infringed on his constitutional rights to confront the witnesses against him and to present a defense.
In his initial petition for special action to this court, Millis seemingly challenged the denial of his motion to suppress, as well as the preclusion of the expert testimony. Based on the rephrasing of the issues by our supreme court, the denial of the motion to suppress is no longer before us, and we do not address it.
¶10 As a preliminary matter, with due respect to our supreme court, we do not interpret the respondent judge's ruling as precluding Millis from arguing that his inculpatory statements were the product of his susceptibility to suggestion. Instead, the respondent precluded testimony from Dr. Sullivan and Dr. Hermosillo-Romo on that topic. As the state points out, under the respondent's ruling, Millis could testify as to his own suggestibility, making argument on the topic possible. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 71 (2018) (counsel's argument must be based on evidence or reasonable inferences therefrom). We therefore focus our analysis on the first rephrased issue.
¶11 We review a trial court's rulings on the admissibility of evidence for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 44 (2009); State v. Slover, 220 Ariz. 239, ¶ 15 (App. 2009). "An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion." State v. Wall, 212 Ariz. 1, ¶ 12 (2006).
¶12 At the evidentiary hearing, the respondent judge did not expressly grant the state's motion to preclude, but he did so implicitly by finding that the proposed testimony from Dr. Sullivan and Dr. Hermosillo-Romo was inadmissible. He determined that the proposed testimony "does not go to the question of whether [Millis] understood his Miranda rights, whether he intelligently and knowingly waived them, and whether his statements were voluntary." The respondent seemingly relied on Mott for the proposition that "suggestibility is inadmissible." But Mott does not support that conclusion.
Millis failed to file a response to the state's motion to preclude, but at oral argument he maintained that he did not need to because of the timing of the parties' filings.
In the July 2022 ruling denying Millis's motion to suppress, the respondent judge observed that "evidence of suggestibility is relevant."
¶13 In Mott, the defendant offered expert testimony that she suffered from battered-woman syndrome to challenge the mens rea of the charged offenses. 187 Ariz. at 539. The trial court precluded the testimony. Id. On appeal, our supreme court found no error in the preclusion, explaining that, "Arizona does not allow evidence of a defendant's mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime." Id. at 541, 545. However, our supreme court did not consider the admissibility of the evidence for the purposes of challenging the reliability of the defendant's confession. See id. at 539-45. As the state conceded at oral argument, whether evidence is admissible to establish the mens rea of an offense is a wholly separate question from the one before us. Thus, to the extent the respondent judge relied on Mott to conclude that "suggestibility is inadmissible," he erred. See Wall, 212 Ariz. 1, ¶ 12.
¶14 Unlike Mott, however, State v. Hyde, 186 Ariz. 252 (1996), is instructive. There, the trial court allowed the defendant to present testimony from a psychological expert "about [the] defendant's personality and intellect and about the expert's opinions on the type of behavior that other people with [the] defendant's personality and intelligence characteristics might possess." Id. at 275. However, the court precluded the expert from testifying as to the defendant's mental condition when he made inculpatory statements to police. Id. at 261-62, 275. On appeal, the defendant argued that the court had erred in precluding that testimony because "his mental condition when he made his statements was probative of the voluntariness and credibility of the statements and required expert testimony" and he had been denied "due process by limiting such testimony." Id. at 275-76.
¶15 Because "[a]n expert may not give an opinion as to the accuracy, reliability, or truthfulness of a witness," our supreme court concluded that the trial court properly precluded the expert from giving "his opinion about [the] defendant's state of mind during the interrogation." Id. at 276. Put another way, the court explained, "Expert psychological testimony is not appropriate . . . to show the actual mental state of a defendant at a given time." Id. (emphasis added). However, the court continued, testimony about the defendant's intelligence and personality traits generally, including "the tendency of people with those characteristics to be easily manipulated and susceptible to the kind of questioning that led to [the] defendant's statements," was "properly admitted." Id.
¶16 The state acknowledges Hyde but argues that it "does not provide a conclusive answer" as to "whether expert testimony regarding suggestibility is admissible at trial." It reasons that evidence of "intelligence and personality traits," as was admitted in Hyde, is too vague to provide any meaningful guidance. We disagree. In Hyde, our supreme court specifically determined that evidence of "general character traits," including a tendency to be susceptible to questioning that can lead to inculpatory statements, was admissible. Id. That is similar to the testimony offered by Millis.
¶17 Here, Millis sought to present expert testimony from Dr. Sullivan and Dr. Hermosillo-Romo concerning Millis's susceptibility to suggestion, apparently including examples during a police interview and other conversations where Millis purportedly adopted the others' explanations for C.K.'s injuries. Like in Hyde, the respondent judge properly precluded the doctors from testifying as to the reliability or truthfulness of Millis's inculpatory statements. See id. The doctors identifying examples where they thought Millis had adopted statements by others would do just that and would therefore be improper. See State v. Carlson, 237 Ariz. 381, ¶ 29 (2015) (defendant may not "have an expert opine on whether the defendant was telling the truth when asserting that his confession was false").
¶18 However, also like in Hyde, testimony concerning Millis's behavioral characteristics generally, including his susceptibility to suggestion, is admissible through expert testimony, subject to the Arizona Rules of Evidence. See 186 Ariz. at 276; Ariz. R. Evid. 404(a)(1) (evidence of defendant's pertinent character trait admissible); Ariz. R. Evid. 405(a) (character trait evidence can be offered as opinion); cf. Cruz v. Blair, 255 Ariz. 335, ¶ 32 (2023) (behavioral-tendency evidence, or observation evidence, can come in through expert testimony, as long as otherwise admissible). Because the respondent judge appears to have based his decision to preclude the testimony of Dr. Sullivan and Dr. Hermosillo-Romo on a mistaken understanding of Mott, he did not consider whether the evidence was otherwise admissible. Cf. State v. Burns, 142 Ariz. 531, 536 (1984) ("Where the crux of a defendant's defense is that he falsely confessed because he was under the influence of drugs, the use of expert testimony on this subject is of value to the jury.").
¶19 Notably, in this case, the state sought to preclude the testimony of Dr. Sullivan and Dr. Hermosillo-Romo on various grounds, including that the danger of unfair prejudice outweighed the probative value under Rule 403 and that the requirements for expert testimony under Rule 702 had not been met. We decline to make these findings in the first instance. See State v. Harrison, 195 Ariz. 28, ¶ 21 (App. 1998) ("The trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice."); Logerquist v. McVey, 196 Ariz. 470, ¶¶ 1, 52 (2000) (under Rule 702, trial court is gatekeeper, "empowered to make preliminary determinations of reliability and credibility of qualified witnesses and to exclude the testimony of such witnesses"). Accordingly, we direct the respondent judge to consider whether testimony from Dr. Sullivan and Dr. Hermosillo-Romo on Millis's susceptibility to suggestion generally is otherwise admissible under the Arizona Rules of Evidence.
¶20 Lastly, we disagree with Millis that the preclusion of evidence of his susceptibility to suggestion violates his constitutional rights to confront the witnesses against him and to present a defense. At this point, only evidence that connects Millis's susceptibility to suggestion to the reliability or truthfulness of his inculpatory statements has been precluded. And the respondent judge did not preclude Millis from cross-examining other witnesses about his suggestibility or from testifying to it himself. See State v. Bass, 198 Ariz. 571, ¶ 35 (2000) ("[T]he constitutional requirement is directed at the ability of a party to confront and cross-examine adverse witnesses ...."). Nor did the respondent preclude argument on that topic. Although Millis has a fundamental right to present a defense, he does not have a constitutional right to present his "theory in whatever manner and with whatever evidence [the defendant] chooses." Carlson, 237 Ariz. 381, ¶ 36 (alteration in Carlson) (quoting United States v. Adams, 271 F.3d 1236, 1243 (10th Cir. 2001)). "'[E]vidence related to the credibility of a confession may be excluded' through proper application of the rules of evidence." Id. ¶ 37 (quoting Adams, 271 F.3d at 1245). We are returning the case to the respondent to clarify that application here.
Disposition
¶21 For the foregoing reasons, we accept special-action jurisdiction and grant relief. The respondent judge shall consider whether the proposed expert testimony on Millis's susceptibility to suggestion is admissible under the relevant rules.