                                IN THE


SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Petitioner,

                                   v.

                         KEVIN ARTICE MILES,
                             Respondent.

                          No. CR-16-0021-PC
                          Filed April 10, 2018



            Appeal from the Superior Court in Pima County
              The Honorable Stephen C. Villarreal, Judge
                            No. CR040238

                    AFFIRMED AND REMANDED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation
Section, Tucson, John Pressley Todd, Special Assistant Attorney General,
Phoenix, Attorneys for State of Arizona

Jon M. Sands, Federal Public Defender, Cary Sandman (argued), Leticia
Marquez, Assistant Federal Public Defenders, Tucson, Attorneys for Kevin
Artice Miles

David J. Euchner (argued), Tucson, Attorney for Amici Curiae Arizona
Attorneys for Criminal Justice and Pima County Public Defender

Amy Armstrong, Emily Skinner, Phoenix, Attorneys for Amicus Curiae
Arizona Capital Representation Project
                             STATE v. MILES
                            Opinion of the Court



JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES and JUSTICE BRUTINEL joined. VICE CHIEF JUSTICE
PELANDER, joined by JUSTICE GOULD and JUDGE SWANN* concurred.
JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
JUSTICE BOLICK concurred.


JUSTICE TIMMER, opinion of the Court:

¶1             A defendant convicted of felony murder is eligible for the
death penalty only if he himself killed, attempted to kill, or intended that a
killing occur or that lethal force be used, Enmund v. Florida, 458 U.S. 782, 797
(1982), or was a major participant in a felony and acted “with reckless
indifference to human life,” Tison v. Arizona, 481 U.S. 137, 158 (1987). We
hold that in determining if a defendant acted with “reckless indifference,”
the factfinder may consider evidence of the defendant’s diminished
capacity.

                              BACKGROUND

¶2            In 1992, Kevin Artice Miles, along with juvenile accomplices
Levi Jackson and Ray Hernandez, carjacked Patricia Baeuerlen and drove
her to the desert, where Jackson shot and killed her. The next year, a jury
found Miles guilty of first degree felony murder, kidnapping, and armed
robbery. The trial court sentenced Miles to death. (Arizona juries were not
authorized to impose the death penalty until 2002. See A.R.S. §§ 13-751,
-752.) After conducting an independent review, this Court affirmed. State
v. Miles (Miles I), 186 Ariz. 10, 12 (1996). In doing so, we found that Miles
was death-eligible under Tison because he was a major participant in the
crimes and had shown a reckless indifference toward human life. Id. at
16–17. The trial court denied Miles’s subsequent request for postconviction
relief (“PCR”).

¶3            In 2014, after unsuccessfully pursuing habeas corpus relief in
federal court, see Miles v. Ryan (Miles II), 713 F.3d 477, 479 (9th Cir. 2013),
Miles initiated his second PCR proceeding. He asserted that relief was

*      Justice John R. Lopez, IV has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Peter B. Swann, Judge of the Arizona Court of Appeals, Division One, was
designated to sit in this matter.


                                       2
                              STATE v. MILES
                             Opinion of the Court

warranted under Arizona Rule of Criminal Procedure 32.1(h) because
newly discovered mitigation evidence demonstrated that the sentencing
court would not have imposed the death sentence had the evidence been
known.

¶4            Following an evidentiary hearing, the PCR court granted
Miles relief by commuting his death sentence to a life sentence. The court
found that at the time of the murder, Miles suffered from “neurochemical,
neurocognitive, and neurobehavioral impairments” caused by the
combined effects of cocaine withdrawal syndrome and alcohol related
neurodevelopmental disorder (“ARND”), which resulted from in utero
alcohol exposure. As a result, although Miles was concededly a major
participant in the crimes, the court found he was ineligible for the death
penalty under Tison because reasonable doubt existed whether he acted
with the requisite reckless mental state.

¶5            Alternately, the court ruled that if Miles were death-eligible
under Tison, he would nevertheless be entitled to “a resentencing to allow
the factfinder to re-weigh the aggravating and mitigating factors” because
he sufficiently demonstrated that the sentencing court would not have
imposed the death penalty had it known of Miles’s mental-health
deficiencies.

¶6             We granted review of two issues raised by the State, both of
which are matters of statewide importance: (1) Did the PCR court err by
admitting diminished-capacity and voluntary-intoxication evidence in the
Tison inquiry? (2) Can newly proffered mitigation ever constitute clear and
convincing evidence under Rule 32.1(h) that a sentencer would not have
imposed the death penalty? We have jurisdiction pursuant to article 6,
section 5(3), of the Arizona Constitution and A.R.S. § 12-102(A).1

                                DISCUSSION

¶7            We review a court’s ruling on a PCR petition for an abuse of
discretion. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). But an abuse of
discretion occurs if the court makes an error of law, and we review legal
conclusions de novo. Id.




1        Unless otherwise noted, we cite the current versions of statutes and
rules.


                                       3
                             STATE v. MILES
                            Opinion of the Court

                               I. Rule 32.1(h)

¶8            When Miles filed the PCR petition in 2014, Rule 32.1(h) (2000)
authorized relief if “[t]he defendant demonstrates by clear and convincing
evidence that the facts underlying the claim would be sufficient to establish
that no reasonable fact-finder would have found defendant guilty of the
underlying offense beyond a reasonable doubt, or that the court would not
have imposed the death penalty.”2 Because Miles challenged only the
imposition of the death penalty and not his murder conviction, he was
required to prove that “the court would not have imposed the death
penalty.” Ariz. R. Crim. P. 32.1(h) (2000). “The court” necessarily refers to
the sentencing court as it “imposed the death penalty.”

¶9            The State urges us to narrowly construe Rule 32.1(h)
consistent with the “actual innocence” exception to barring successive,
abusive, or defaulted federal habeas claims. See Sawyer v. Whitley, 505 U.S.
333, 335–36 (1992). Under that exception, relief is permitted only when a
defendant shows by clear and convincing evidence that no reasonable
factfinder would have found him eligible for the death penalty. Id. at 336.
Miles and amicus Arizona Capital Representation Project assert that
Rule 32.1(h) is more expansive, also authorizing relief if the defendant
shows by clear and convincing evidence that he is not deserving of the
death penalty in light of newly developed mitigation evidence.

¶10            We need not resolve this interpretation dispute. As explained
hereafter, we affirm the PCR court’s ruling that Miles is ineligible for the
death penalty under Tison and therefore do not address the court’s alternate
basis for its ruling. Even under the State’s narrow reading of Rule 32.1(h),
a defendant can be granted relief under Rule 32.1(h) for a Tison error.

¶11           In his concurrence, Justice Pelander describes the version of
Rule 32.1(h) in effect in 2014 as “perplexing” as it required the PCR court to
speculate about how the sentencing judge, now deceased, would have
sentenced Miles had the judge known of the new mitigation evidence. See
infra ¶¶ 29–30. But Rule 32.1(h) does not refer to the sentencing judge (or
since 2002, a jury), and construing the rule as imposing a subjective
standard would require a PCR court to speculate about a particular


2        Effective January 1, 2018, Rule 32.1(h) authorizes postconviction
relief if “the defendant demonstrates by clear and convincing evidence that
the facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would find the defendant guilty beyond a reasonable
doubt, or that the death penalty would not have been imposed.”


                                      4
                             STATE v. MILES
                            Opinion of the Court

sentencer’s ruling — an unmanageable, if not impossible, standard. The
better reading is that Rule 32.1(h)’s reference to “the court” means a
reasonable sentencer, whether a judge or a jury.

                     II. Admissibility of evidence in Tison inquiry

¶12           The State argues that Miles did not satisfy his Rule 32.1(h)
burden because evidence he suffered from cocaine withdrawal syndrome
and ARND was inadmissible to refute the mental state required for a Tison
death-eligibility finding. Contrary to Miles’s assertion, the State adequately
preserved this issue.

¶13            The Eighth Amendment prohibits “all punishments which by
their excessive length or severity are greatly disproportioned to the offenses
charged.” Tison, 481 U.S. at 148 (internal citation and quotation marks
omitted). Before a defendant convicted of first degree felony murder can
be sentenced to death, an Enmund/Tison finding must be made to ensure
that this sentence is proportionate to the defendant’s “personal
responsibility and moral guilt.” Enmund, 458 U.S. at 801; see also Tison, 481
U.S. at 149. The Enmund/Tison inquiry does not concern the guilt or
innocence of the defendant but acts as an Eighth Amendment sentencing
restraint. See State v. Ring, 204 Ariz. 534, 563 ¶ 98 (2003). Thus, the inquiry
is made postconviction during the trial’s aggravation phase.                See
A.R.S. § 13-752(P); State v. Forde, 233 Ariz. 543, 566 ¶ 89 (2014).

¶14            The culpable reckless mental state under Tison, the inquiry at
issue here, is a subjective one. See Forde, 233 Ariz. at 567 ¶ 96. The State
must prove that the defendant “subjectively appreciated that [his] acts were
likely to result in the taking of innocent life.” State v. Lynch, 225 Ariz. 27,
36 ¶ 43 (2010) (internal quotation marks omitted) (quoting Tison, 481 U.S. at
152). Because evidence of diminished capacity and voluntary intoxication
is relevant to deciding whether a defendant subjectively appreciated that
his acts were likely to result in another’s death, this evidence is admissible
in the Tison inquiry if otherwise admissible under our evidentiary rules. Cf.
A.R.S. § 13-751(B) (providing that the rules of evidence apply in the
aggravation phase to determine existence of aggravating circumstances);
State v. Schackart, 175 Ariz. 494, 502 (1993) (deciding that the state’s expert
opinion evidence that no examiner could accurately diagnose a defendant’s
mental state at the time of the murder was relevant to rebut the defense
expert’s testimony that the defendant convicted of felony murder did not
act with the mental state required by Enmund).




                                      5
                              STATE v. MILES
                             Opinion of the Court

¶15            The State argues that using diminished-capacity and
voluntary-intoxication evidence, like that relied on by the PCR court here,
to find that a defendant lacked the culpable mental state required by Tison
frustrates legislative intent and leads to inconsistent and illogical results.

¶16            In State v. Mott, 187 Ariz. 536 (1997), we recognized that the
legislature, not this Court, is responsible for promulgating the criminal law.
Id. at 541. Because the legislature had purposely declined to adopt a 1962
Model Penal Code provision that permitted a diminished-capacity defense
to a criminal charge, we concluded 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 540–41; see also
A.R.S. § 13-502 (allowing only mental disorders or defects that constitute
legal insanity as a defense to criminal responsibility); Clark v. Arizona,
548 U.S. 735, 762 (2006) (“Mott is meant to confine to the insanity defense
any consideration of characteristic behavior associated with mental
disease.”); State v. Leteve, 237 Ariz. 516, 524 ¶ 20 (2015) (“The legislature has
not provided for, and this Court has refused to allow, an affirmative defense
of diminished capacity.”).

¶17             The State recognizes that Mott and its progeny concerned
guilt-phase evidence but nevertheless argues that our reasoning there
logically extends to preclude diminished-capacity evidence in the Tison
inquiry. It points out that the legislature has not authorized a diminished-
capacity defense to any allegation made in the aggravation phase, including
a claim that Tison is satisfied. And in capital cases, the legislature has
provided for broad admission of mental-health evidence in the penalty
phase and adopted a diminished-capacity mitigating factor, reflecting its
intent that diminished-capacity evidence be considered only as mitigation.
See A.R.S. § 13-751(G)(1) (listing as a mitigator that the defendant’s capacity
to appreciate the wrongfulness of his conduct or conform his conduct to
legal requirements was “significantly impaired”); id. § 13-752(G)
(authorizing the defendant to “present any evidence that is relevant to the
determination of whether there is mitigation that is sufficiently substantial
to call for leniency”). Following Mott’s reasoning, the State asserts, because
the legislature has not authorized consideration of diminished-capacity
evidence for the Tison inquiry, the courts cannot consider it.

¶18            We disagree. Although the legislature is tasked with enacting
the criminal laws in Arizona, those laws are subject to constitutional
restraints, including the Eighth Amendment. See U.S. Const. art. VI; Ariz.
Const. art. 2, § 3. The United States Supreme Court devised the
Enmund/Tison inquiry to protect the Eighth Amendment rights of a


                                       6
                             STATE v. MILES
                            Opinion of the Court

defendant convicted of capital felony murder. See Ring, 204 Ariz. at 564–65
¶ 101 (discussing how Enmund/Tison, as a “judicially crafted instrument
used to measure proportionality between a defendant’s criminal culpability
and the sentence imposed,” is conceptually distinct from finding the
statutory criminal elements of a crime). As such, its scope is not defined by
legislative action but by judicial application of Eighth Amendment
principles. Cf. Enmund, 458 U.S. at 797 (“Although the judgments of
legislatures, juries, and prosecutors weigh heavily in the balance, it is for us
ultimately to judge whether the Eighth Amendment permits imposition of
the death penalty on one . . . who aids and abets a felony in the course of
which a murder is committed . . . .”).

¶19           The State relatedly argues that “there is no persuasive reason”
to preclude diminished-capacity evidence to defend the mental state
attendant to a criminal charge but permit it in the Tison inquiry, and doing
so undermines legislative authority. This argument again ignores the
distinction between the elements of a crime, which the legislature has
authority to define, and the elements of the Tison inquiry, which are
directed by the Eighth Amendment. The legislature’s choice to preclude a
diminished-capacity defense to a felony murder charge cannot restrict
application of the Eighth Amendment in sentencing a defendant convicted
of that charge.

¶20            The State also argues that permitting a diminished-capacity
defense in the Tison inquiry could be illogical if the predicate felony
underlying the murder conviction required proof of a greater mental state,
like knowingly or intentionally (as did the kidnapping and armed robbery
charges of which Miles was convicted). But the legislature’s decision to
reject a diminished-capacity defense in the guilt-phase does not logically
require the courts to ignore diminished-capacity evidence when deciding
whether a defendant subjectively appreciated that his acts were likely to
result in a victim’s death, making him eligible for the death penalty.

¶21           We are also unpersuaded that we should reach a different
conclusion because consideration of diminished-capacity evidence in the
Tison inquiry could result in a de facto penalty phase, confuse a jury, and
hinge death eligibility on inexact mental-health evidence. None of these
concerns supports categorically precluding mental-health evidence that
bears on an inquiry necessary to protect against an Eighth Amendment
violation. Notably, trial courts can exclude mental-health evidence that is
not relevant or reliable or that would result in juror confusion. See Ariz. R.
Evid. 401–03, 702–03.



                                       7
                             STATE v. MILES
                            Opinion of the Court

¶22          The State next argues that the PCR court violated A.R.S. § 13-
503 (1994) by admitting evidence of voluntary intoxication to negate the
Tison culpable mental state. (The State equates cocaine withdrawal
syndrome with voluntary intoxication. We do not decide that issue here
but assume the State is correct.) Section 13-503 currently provides:

       Temporary intoxication resulting from the voluntary
       ingestion, consumption, inhalation or injection of alcohol, an
       illegal substance under chapter 34 of this title or other
       psychoactive substances or the abuse of prescribed
       medications does not constitute insanity and is not a defense
       for any criminal act or requisite state of mind.

(emphasis added); see also State v. Payne, 233 Ariz. 484, 517 ¶ 149 (2013)
(stating that § 13-503 prohibits the jury from using voluntary intoxication
to negate the state of mind needed to prove an aggravating circumstance);
State v. Boyston, 231 Ariz. 539, 550 ¶¶ 52, 54 (2013) (holding that the trial
court did not err by excluding voluntary-intoxication evidence to challenge
premeditation).

¶23           We must apply the version of § 13-503 in effect at the time of
the crimes. See State v. Moody, 208 Ariz. 424, 466 ¶ 191 (2004) (“[T]he Ex Post
Facto Clauses of the United States and Arizona Constitutions require that
the version of § 13-503 in effect at the time the crimes were committed be
applied.”). In 1992, § 13-503 was much narrower, addressing only
voluntary intoxication as a defense to the crime charged:

       No act committed by a person while in a state of voluntary
       intoxication is less criminal by reason of his having been in
       such condition, but when the actual existence of the culpable
       mental state of intentionally or with the intent to is a
       necessary element to constitute any particular species or
       degree of offense, the jury may take into consideration the fact
       that the accused was intoxicated at the time in determining
       the culpable mental state with which he committed the act.

A.R.S. § 13-503 (1989) (emphasis added). Because the Tison finding does not
address whether a defendant’s acts were “less criminal,” the version of
§ 13-503 in effect at the time of the crimes here did not preclude evidence of
voluntary intoxication to rebut evidence of the Tison mental state. We leave
for another day whether the current version of § 13-503 can preclude such
evidence.



                                      8
                            STATE v. MILES
                           Opinion of the Court

¶24           The PCR court did not err by relying on diminished-capacity
and voluntary-intoxication evidence in deciding that the court would not
have found Miles death-eligible under Tison had it known of this evidence.
As the State expressly acknowledged at oral argument here, it does not
challenge the sufficiency of this and other evidence to support the PCR
court’s finding, and we therefore do not address that issue. Likewise, and
because the State did not raise an objection under Arizona Rule of Evidence
702 before the trial court or this Court, we do not address Judge Swann’s
concurring opinion. Finally, because we affirm the PCR court’s Tison
ruling, we need not address either the efficacy of the court’s alternative
ruling that the trial court would not have imposed the death penalty had it
known of Miles’s mental-health deficiencies or the State’s argument that
newly proffered mitigation evidence can never constitute clear and
convincing evidence under Rule 32.1(h) that a sentencer would not have
imposed the death penalty.

                              CONCLUSION

¶25           We affirm the PCR court’s order commuting Miles’s death
sentence to a life sentence. We remand to that court to clarify that the life
sentence is one with the possibility of release after twenty-five years, the
only type of life sentence available at the time of the crimes. See
A.R.S. § 13-703(A)(1) (1989).




                                     9
                        STATE v. MILES
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                   JUDGE SWANN, concurring



VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
JUDGE SWANN, concurring:

¶26           I concur with the Court’s analysis and holding that, based on
the law applicable to this case, evidence of diminished capacity and
voluntary intoxication (assuming cocaine withdrawal syndrome qualifies
as such) could support a finding that a felony-murder defendant like Miles
lacked the culpable mental state of “reckless indifference” constitutionally
required for death-eligibility under Tison v. Arizona, 481 U.S. 137, 158 (1987).
I also agree that the PCR court did not abuse its discretion in overturning
Miles’s death sentence, supra ¶¶ 7, 24, assuming the evidence on which that
ruling was based was admissible and sufficient (points the State does not
now contest), and assuming the law authorized (or required) the PCR court
to grant such relief. See A.R.S. § 13-4231(1) (authorizing post-conviction
relief when “the sentence was in violation of the Constitution of the United
States”); Ariz. R. Crim. P. 32.1(a) (same).

¶27            I write separately because I find problematic the rule under
which the PCR court granted relief, Arizona Rule of Criminal Procedure
32.1(h). That rule, which has no constitutional or statutory counterpart, was
added by this Court in 2000. As then adopted, and as applicable to the PCR
proceeding here, the rule allows a petitioner to obtain post-conviction relief
if he demonstrates by “clear and convincing evidence that the facts . . .
would be sufficient to establish that no reasonable fact-finder would have
found the defendant guilty of the underlying offense beyond a reasonable
doubt, or that the court would not have imposed the death penalty.” Ariz.
R. Crim. P. 32.1(h). Thus, this rule essentially permits a new claim of “actual
innocence” or, if a death sentence is challenged, a claim of “actual innocence
of the death penalty.” The Rule 32 committee’s petition (R-97-0006) that
prompted this rule change did not include or propose the final phrase, “or
that the court would not have imposed the death penalty.”                    Id.
Nonetheless, that language was added by this Court without circulation for
comment and without explanation of its meaning or practical application.

¶28             Miles never argued that “no reasonable fact-finder would
have found [him] guilty of the underlying offense beyond a reasonable
doubt,” id., let alone that the 1993 jury would not have found him guilty.
Thus, the PCR court’s alternative rulings, see supra ¶¶ 4–5, are supportable,
if at all, only under the rule’s last phrase, that on considering the new facts



                                      10
                         STATE v. MILES
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                    JUDGE SWANN, concurring

“the court would not have imposed the death penalty.” Ariz. R. Crim. P.
32.1(h). Two points regarding that text are noteworthy and raise serious
concerns about the standard for relief under the rule. First, “the court”
referred to in Rule 32.1(h) apparently means the sentencing court that
imposed the death penalty, here the late Judge William Tinney in 1993.3 My
colleagues seemingly agree. See supra ¶ 8.

¶29          Second, the rule requires a capital defendant to show, and the
PCR court to find, by clear and convincing evidence that the sentencing
court “would not have imposed the death penalty.”4 Ariz. R. Crim. P. 32.1(h)


3 The PCR court found that “the court” in Rule 32.1(h) means either the
sentencing court or this Court because in this case, we independently
reviewed the aggravation and mitigation findings and the propriety of the
death sentence on direct appeal. State v. Miles, 186 Ariz. 10, 19–20 (1996).
But because this Court has never “imposed the death penalty,” Ariz. R.
Crim. P. 32.1(h), and is not authorized to do so, the “court” referred to in
the rule must mean the sentencing court.

4   This language in our rule materially differs from the arguably more
sensible, and workable, language used in other states’ parallel provisions.
See, e.g., Cal. Penal Code § 1509(d) (providing that “[a]n initial petition
which is untimely . . . shall be dismissed unless the court finds, by the
preponderance of all available evidence, whether or not admissible at trial,
that the defendant is actually innocent of the crime of which he or she was
convicted or is ineligible for the sentence” (emphasis added)); )); N.C. Gen.
Stat. Ann. § 15A-1415(c) (providing that “a defendant at any time after
verdict may . . . raise the ground that evidence is available which was
unknown or unavailable to the defendant at the time of trial, which could
not with due diligence have been discovered or made available at that time,
. . . and which has a direct and material bearing upon the defendant’s
eligibility for the death penalty or the defendant’s guilt or innocence”
(emphasis added)); Ohio Rev Code Ann. § 2953.21(A)(1)(a)(b) (providing
that “‘actual innocence’ means that, had the results of the DNA testing . . .
been presented at trial, and had those results been analyzed in the context
of and upon consideration of all available admissible evidence related to
the person's case . . ., no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted, or, if
the person was sentenced to death, no reasonable factfinder would have found the
petitioner guilty of the aggravating circumstance or circumstances the petitioner



                                       11
                         STATE v. MILES
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                    JUDGE SWANN, concurring

(emphasis added). Thus, the rule’s text does not authorize relief based
merely on a PCR court’s finding that the sentencing judge might not have,
or probably would not have, imposed the death sentence had the new
evidence been available and considered by him. Cf. Ariz. R. Crim. P. 32.1(e)
(authorizing post-conviction relief when “newly discovered material facts
. . . probably would have changed the verdict or sentence” (emphasis added)).

¶30            This formulation is perplexing on several levels. Based
strictly on the rule’s text, its application is impractical and necessitates sheer
speculation. As applied here, Rule 32.1(h) on its face compelled the PCR
court, a judge who was not involved in the underlying trial or sentencing
process, to speculate as to the decision that the trial court (a different, and
now deceased, judge) would have made decades earlier, and to embrace
that speculation on a clear-and-convincing standard.5 Regardless of the
persuasive force of the new evidence on which the PCR court’s ruling was
based, any determination that the sentencing court, based on that evidence,
“would not have imposed the death penalty,” Ariz. R. Crim. P. 32.1(h), is
purely conjectural.

¶31            Though not disagreeing that Rule 32.1(h)’s wording lends
itself to such an “unmanageable, if not impossible, standard,” the Court
concludes that “[t]he better reading is that Rule 32.1(h)’s reference to ‘the
court’ means a reasonable sentencer, whether a judge or a jury.” Supra ¶ 11.
But even if that objective standard can reasonably be inferred from the
rule’s text, it does not alleviate all concerns—to some extent the relief
granted by the PCR court here depended on its subjective view of the new
evidence presented in the Rule 32 hearing, with no way of knowing
whether the sentencing judge, had he been presented with the same
evidence and arguments in 1993, would have viewed that evidence the
same way and found Tison’s “reckless indifference” requirement lacking.
Because the State did not present these issues, see supra ¶ 6, and does not
specifically challenge the PCR court’s ruling on this particular ground,
however, I join the Court’s resolution of the other issues raised.



was found guilty of committing and that is or are the basis of that sentence of death”
(emphasis added)).

5  Miles was sentenced to death by the trial court, before the Arizona
Legislature in 2002 prescribed jury sentencing in capital cases. See A.R.S.
§§ 13-751, -752.


                                         12
                         STATE v. MILES
    VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                    JUDGE SWANN, concurring

¶32            The current, restyled version of the rule (effective Jan. 1, 2018)
allows relief when the petitioner demonstrates that “no reasonable fact-
finder would find the defendant guilty beyond a reasonable doubt, or that
the death penalty would not have been imposed.” Ariz. R. Crim. P. 32.1(h).
This new version might be read to impose a more objective, workable
standard of review that requires the PCR court to determine whether any
reasonable fact-finder would have imposed the death penalty, rather than
whether a specific individual would have done so in the past. The new
version implicitly acknowledges permissible variations in results among
different fact-finders and confines the inquiry to the objective limits of those
variations, while the old version, read literally, arguably required the PCR
court to imagine subjectively the decision that a specific judge supposedly
would have made had the new scientific evidence been available and
presented to that judge at sentencing.6

¶33             However problematic the former standard, the State has not
raised the issue and we must resolve any ambiguities in favor of lenity. See
State v. Pena, 140 Ariz. 545, 549–50 (App. 1983) (“[W]here the statute itself is
susceptible to more than one interpretation, the rule of lenity dictates that
any doubt should be resolved in favor of the defendant.”), approved and
adopted by 140 Ariz. 544 (1984); cf. A.R.S. § 13-104 (stating that penal statutes
are not to be “strictly construed,” but rather “construed according to the
fair meaning of their terms to promote justice and effect the objects of the
law”).

¶34           One final concern relates to the apparent overlap between
Rule 32.1(e) and Rule 32.1(h) and the prospect of capital defendants
avoiding the requirements of the former by relying solely on the latter, as
Miles and the PCR court did here. As the Court observes, Miles sought
relief under Rule 32.1(h) based on “newly discovered mitigation evidence.”
Supra ¶ 3. That claim falls squarely within Rule 32.1(e), which specifically


6 Although the current version of Rule 32.1(h), as “restyled” and effective
January 1, 2018, omits any reference to “the court” and perhaps is preferable
to the 2000 version of the rule that applies here, any substantive differences
between the two are not patently obvious. Recently, our Chief Justice
appointed a new “Task Force on Rule 32” to review the rule as a whole and
“identify possible substantive changes that improve upon the objectives of
Rule 32 and the post-conviction relief process.” Supreme Court of Arizona,
Admin. Order No. 2018-07 (Jan. 24, 2018). In my view, Rule 32.1(h) is a
prime candidate for the Task Force’s consideration.


                                       13
                        STATE v. MILES
   VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and
                   JUDGE SWANN, concurring

allows post-conviction relief when a defendant shows “newly discovered
material facts probably exist and those facts probably would have changed
the verdict or sentence.” See also A.R.S. § 13-4231(5) (same). Like claims
under Rule 32.1(h), claims under Rule 32.1(e) are excepted from preclusion.
Ariz. R. Crim. P. 32.2(b). Unlike Rule 32.1(h), however, Rule 32.1(e) requires
a defendant to also show that he “exercised due diligence in discovering
these facts,” a showing Miles did not have to make.                   See also
A.R.S. § 13-4231(5)(b). See generally State v. Amaral, 239 Ariz. 217 (2016);
State v. Bilke, 162 Ariz. 51 (1989).

¶35            The comment to Rule 32.1(h) states that a claim under that
rule “is independent of a claim under Rule 32.1(e),” and that “[a] defendant
who establishes a claim of newly discovered evidence does not need to
comply with the requirements of Rule 32.1(h).” Nonetheless, using Rule
32.1(h) as an end-run around Rule 32.1(e)’s due-diligence requirement
when, as here, relief is sought decades later based solely on newly
discovered mental-health evidence and expert opinions, seems at odds with
interests of finality and victim rights. See Ariz. Const. art. 2, § 2.1(A)(10)
(“To preserve and protect victims’ rights to justice and due process, a victim
of crime has a right” to a “prompt and final conclusion of the case after the
conviction and sentence”); A.R.S. § 13-4401(19) (defining “victim” to
include a murder victim’s relatives “or any other lawful representative of
the person”). For the foregoing reasons, but with the reservations noted, I
concur in the Court’s opinion and result.




                                     14
                        STATE v. MILES
    JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
                  JUSTICE BOLICK, concurring

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
JUSTICE BOLICK, concurring:

¶36            I concur fully with the Court’s legal holding that after-
acquired evidence of diminished capacity is properly considered in the
Tison inquiry if it would otherwise be admissible under the rules of
evidence. And based on the issues the State chose to present, I also concur
in the result.

¶37           I write separately because the record reveals that the evidence
of cocaine withdrawal syndrome and ARND presented to the PCR court
was, in my view, improperly admitted under Arizona Rule of Evidence 702.
If the State had not affirmatively waived any challenge on that ground, I
would not join in the result.

¶38           The expert opinions that resulted in the PCR court’s findings
of fact were based on the witnesses’ experiences coupled with medical
scholarship that is generally accepted in the scientific community. See Frye
v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Until 2012, this would
have been more than sufficient to render the opinions admissible in
Arizona. Indeed, under Logerquist v. McVey, even general acceptance of the
science would not have been required. 196 Ariz. 470, 480 ¶ 30, 485–86 ¶ 47,
490 ¶ 62 (2000). But in 2012, this Court discarded Logerquist and Frye in
favor of the federal approach to expert testimony now embodied in our
Rule 702.7

¶39           Rule 702 provides:

              A witness who is qualified as an expert by
              knowledge, skill, experience, training, or
              education may testify in the form of an opinion
              or otherwise if:

              (a)     the expert’s scientific, technical, or other
              specialized knowledge will help the trier of fact
              to understand the evidence or to determine a
              fact in issue;



7       The State did not object to the introduction of the evidence, and the
trial court therefore was not required to reject it.


                                      15
                       STATE v. MILES
   JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
                 JUSTICE BOLICK, concurring

              (b)    the testimony is based on sufficient facts
              or data;

              (c)    the testimony is the product of reliable
              principles and methods; and

              (d)    the expert has reliably applied the
              principles and methods to the facts of the case.

¶40           I have no quarrel with the qualifications of the defense experts
under subsection (a), nor do I doubt the merit of the science surrounding
cocaine withdrawal syndrome and ARND under subsections (b) and (c).
But the record reveals nothing to suggest a reliable application of scientific
methods to connect cocaine withdrawal syndrome and ARND to the facts
of this case.

¶41           Logerquist rejected the trial court’s role as a “gatekeeper” with
respect to behavioral-health evidence. 196 Ariz. at 490 ¶ 59. But Rule 702
now demands that the court fulfill a gatekeeping role, and this Court has
affirmed that “the rule by its terms forecloses the approach of leaving
challenges to an expert’s application of a methodology exclusively to the
jury.    Such challenges are instead a proper subject of the trial
court’s gatekeeping inquiry.” State v. Bernstein, 237 Ariz. 226, 229 ¶ 13
(2015). In Bernstein, we adopted a flexible approach to the inquiry and
cautioned that the application of a methodology need not be flawless to be
admissible. Id. at 229–30 ¶¶ 14–18.

¶42           Here, application of the brain science underlying cocaine
withdrawal syndrome and ARND to the facts of this case was not merely
imperfect — it was completely lacking. Expert conclusions concerning
whether Miles, at the moment of the murder, “subjectively appreciated that
[his] acts were likely to result in the taking of innocent life” amounted to
speculation, not science. State v. Lynch, 225 Ariz. 27, 36 ¶ 43 (2010) (quoting
Tison, 481 U.S. at 152). To be sure, the PCR court, not a jury, acted as the
factfinder in this case. But the Rules of Evidence apply equally to such
proceedings, and without evidence of a reliable methodology that could
bear on the Tison inquiry, on the facts of this case the evidence should not
have been admitted.




                                      16
                        STATE v. MILES
    JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
                  JUSTICE BOLICK, concurring

¶43            The record amply supports findings that (1) cocaine
withdrawal syndrome exists, (2) Miles has ARND and was addicted to
cocaine, (3) Miles may have suffered from the absence of cocaine in his
system at the time of the murder, and (4) a known neurochemical
mechanism confirms that cocaine withdrawal can affect an individual’s
perceptions and understanding of his actions, particularly if he has ARND.
Yet the Tison question is not whether chemical dependence interfered with
Miles’s dopamine system in a way that could have altered his perceptions
and judgment; the question is whether Miles actually failed to appreciate
that his acts were likely to result in the taking of innocent life at the relevant
time. Nothing in the expert reports or testimony identified a methodology
by which an understanding of the mechanism by which cocaine affects the
brain can answer the Tison question on these facts.

¶44           By calling attention to this concern, I do not suggest that the
court should intrude upon the factfinder’s role in weighing admissible
evidence. My observations relate only to the bare admissibility of the
evidence under Rule 702(d). That rule laudably demands that the forensic
use of scientific evidence comport with scientific principles. A body of
cutting-edge science that describes a phenomenon is alluring fodder in a
legal proceeding. But even a thorough and reliable scientific understanding
of a phenomenon does not always translate to admissibility under Rule
702(d), because an abstract science sometimes lacks a method that permits
its application to the facts of a case in a manner that allows a scientifically
valid conclusion about the issue that a court is required to decide. In this
case, no method was identified that would allow an expert or a factfinder
to answer the single question posed by Tison — instead, the scientific
evidence only offered an informed basis for speculation about the issue
before the court. This is exactly what Rule 702(d) is designed to prevent.8




8      I recognize that Rule 702 permits the use of expert testimony to
educate the factfinder about general scientific principles without
application to the facts. State v. Salazar-Mercado, 234 Ariz. 590, 592–93
¶¶ 6–11 (2014). But in this case, the expert testimony related directly to the
facts of the case, the experts opined on the facts and the ultimate issue in
the case, and Rule 702(d) therefore applies. When scientific evidence is
used to justify factual findings, adherence to Rule 702(d) is critical, because
the aura of science without valid application poses an extreme risk of
prejudice.


                                       17
                       STATE v. MILES
   JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and
                 JUSTICE BOLICK, concurring

¶45           To reach the conclusion that Miles is entitled to relief under
Tison, as the PCR court did, one must either accept the proposition that
every person who has ARND, is addicted to cocaine, and experiences a
withdrawal is unable to appreciate the consequences of his actions; or rely
on a witness’s “experience” as a means of translating the abstract science
into a conclusion about the defendant’s state of mind. The former view is
not supported by the evidence in this case — no expert testified that cocaine
withdrawal syndrome affects all individuals, or even all individuals with
ARND, in a uniformly debilitating way. (Of course, if such a proposition
were accepted, then cocaine withdrawal would automatically preclude the
death penalty in every case in which a defendant with ARND acts while
withdrawing from the drug.) And the latter view does not satisfy the
requirements of Rule 702(d). While experience is sufficient to qualify the
expert, it is not sufficient to qualify the opinion without a reliable
methodology.

¶46           Because the State waived its challenge to the admissibility of
the evidence, this Court is constrained to accept the PCR court’s finding that
under Tison the court would not have imposed the death penalty.

¶47           For the foregoing reasons, I concur in the opinion and the
result.




                                     18
