Carlos Cruz v. Hon. blair/state of Arizona

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

CARLOS TERCERO CRUZ,
Petitioner,

v.

THE HONORABLE MICHAEL BLAIR,
JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR
THE COUNTY OF MARICOPA,
Respondent Judge,

STATE OF ARIZONA, EX REL. RACHEL MITCHELL,
MARICOPA COUNTY ATTORNEY,
Real Party in Interest.

No. CR-22-0123-PR
Filed July 11, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Michael C. Blair
No. CR2015-123744-002
AFFIRMED

Order of the Court of Appeals, Division One
No. 1 CA-SA 22-0071

COUNSEL:

Brent E. Graham (argued), Law Office of Brent E. Graham PLLC, Dolores,
Colorado; Robyn Greenberg Varcoe, Varcoe Law Firm, PLLC, Phoenix;
Jennifer L. Willmott, Willmott and Associates, PLC, Phoenix, Attorneys for
Carlos Tercero Cruz
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

Rachel H. Mitchell, Maricopa County Attorney, Julie A. Done, Deputy
County Attorney, Krista Wood, Deputy County Attorney, Ellen M. Dahl,
Catherine Ferguson-Gilbert, Nicholas Klingerman (argued), Maricopa
County Attorney’s Office, Phoenix, Attorneys for State of Arizona

David J. Euchner (argued), Pima County Public Defender’s Office, Tucson;
Lisa R. Bivens, Mitchel Stein Carey Chapman PC, Phoenix, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor
General, Section Chief of Criminal Appeals, Michael T. O’Toole, Assistant
Attorney General, Criminal Appeals Section, Phoenix, Attorneys for
Amicus Curiae for Arizona Attorney General

JUSTICE KING authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, BEENE, and PELANDER (RETIRED) joined. *

JUSTICE KING, Opinion of the Court:

¶1 In this case we are asked to address whether the trial court
properly precluded Carlos Tercero Cruz from presenting at trial expert and
lay witness testimony about his intellectual disability. To defend charges
that he abused, kidnapped, and murdered his young daughter, Cruz seeks
to proffer that testimony “not to negate mens rea, but to rebut the actus reus
of the offense by showing he is so disabled he could not physically perform
the acts necessary to be guilty of failing to take steps to protect his
daughter.” We conclude the trial court properly precluded Cruz’s
proffered expert and lay witness testimony about his intellectual disability.

*Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Justice John
Pelander (Ret.) of the Arizona Supreme Court was designated to sit in this
matter.
2
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

Cruz may, however, introduce admissible “behavioral-tendency evidence,”
see State v. Malone, 247 Ariz. 29, 31–32 ¶¶ 10–11 (2019), also referred to as
“observation evidence,” see Clark v. Arizona, 548 U.S. 735, 757–60 (2006),
through expert and lay witness testimony.

¶2 We must also determine whether the trial court abused its
discretion in reducing Cruz’s proposed list of lay witnesses from eleven to
two. We conclude the trial court did not.

I. BACKGROUND

A. Criminal Charges and Pre-Trial Proceedings
¶3 Cruz had at least three children who resided with him and his
wife, Rosemary Velazco, at various times. Cruz’s daughter, A.T., was
born in 2011. A.T. was placed in foster care for about a year while Cruz
and Velazco attended parenting classes through the Department of Child
Safety.

¶4 In 2015, emergency services were called to Cruz’s home.
A.T. was transported to the hospital where she was pronounced deceased.
A.T. passed away just a few days before her fourth birthday. The State
alleges the following circumstances surrounding A.T.’s death: (1) A.T. had
lacerations and contusions on her forehead, an infected cauliflower ear,
wounds on her chest, back, arms, and legs, a swollen knee, and possible
ligature marks on her ankles and wrists; (2) at the time of her death, she
weighed just sixteen pounds, which was well below the expected weight
for children her age; and (3) “the combination of numerous blunt force
injuries in the setting of a weakened immune system due to malnutrition
and dehydration, as well as methamphetamine toxicity, likely caused a fatal
cardiac dysrhythmia (irregular heartbeat) and/or fatal respiratory
failure.” 1

¶5 Cruz was charged with child abuse (five counts), kidnapping,
and first degree felony murder for A.T.’s death in the course of committing
child abuse under A.R.S. § 13-3623. The State filed a notice of intent to
seek the death penalty. Cruz moved to dismiss the death penalty notice

1In 2017, Velazco pleaded guilty and was sentenced to natural life followed
by consecutive sentences totaling fifty-nine years.
3
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), claiming he was
intellectually disabled. The State later withdrew its notice of intent to seek
the death penalty.

¶6 The trial court conducted competency proceedings. Cruz
was originally found incompetent to stand trial. But after restoration
treatment, the court determined Cruz was competent to stand trial.

B. Proffered Expert Testimony

¶7 Cruz disclosed Dr. Francisco Gómez as his expert witness for
trial. Dr. Gómez is a psychologist who evaluated Cruz on several
occasions. In a report, Dr. Gómez concluded Cruz’s intelligence quotient
is sixty-four, which is “more than two standard deviations below the
average (i.e., below the 2nd percentile).” He also determined Cruz “meets
the criteria for the diagnosis of Intellectual Disability according to all
professional and clinical standards.”

¶8 The State moved to preclude mental health expert testimony
by Dr. Gómez. The State argued such testimony is not relevant, should be
excluded under Arizona Rule of Evidence 403, and is improper diminished
capacity evidence under Clark, 548 U.S. 735; Malone, 247 Ariz. 29; and State
v. Mott, 187 Ariz. 536 (1997). The trial court granted the State’s motion.
The court explained Dr. Gómez’s testimony “could be excluded under Rule
403” as it “could confuse the issues or mislead the jury on issues that are
not supposed to be in front of the jury.” Further, the court determined
Dr. Gómez’s testimony was improper “diminished capacity defense
clothed in other garments,” which is “precluded by Arizona law.”

C. Proffered Lay Witness Testimony

¶9 Before trial, Cruz notified the State that he would call eleven
lay witnesses who resided in Mexico. The State moved to preclude these
witnesses, arguing they have no direct knowledge of the facts and
circumstances of the charged crimes and that any probative value of their
testimony is substantially outweighed by unfair prejudice, sympathy,
confusion of the issues, and misleading the jury. The State also opposed
the lay witnesses on the basis that Arizona law precludes diminished
capacity evidence.

4
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶10 In response, Cruz argued the witnesses were necessary to
testify about his inability to read, write, speak English, text, email, cook,
handle money, find an address, and operate a global positioning system
(“GPS”). He seeks to use this evidence to explain why he could not call
for help, take his daughter to a hospital, read instructions on medicine
bottles, or perform other parenting actions. Specifically, Cruz claims that
his cousin, Eloy Gutierrez, knew him when they came to the United States
together and can testify about Cruz’s limitations—for example, that Cruz
would get lost going to his work two blocks away and that Cruz could not
read, write, or cook. Cruz, however, has not had contact with the
witnesses for years (none within the nine-year period preceding the alleged
criminal conduct) and has not seen Gutierrez since about 2006.

¶11 The trial court determined that “evidence of [Cruz’s] inability
to read, write, speak English, text, email, handle money, operate a GPS, or
find an address is relevant,” but Cruz’s “desire to call eleven lay witnesses
to say essentially the same thing would be a needless presentation of
cumulative evidence” in violation of Rule 403. The court ruled, therefore,
that Cruz may not call all eleven lay witnesses but may call two of them to
testify about their personal knowledge of his “inability to read, write, speak
English, text, email, handle money, operate a GPS, or find an address.”
The court directed that one witness “must be Eloy Gutierrez since the
defense emphasized his importance” and Cruz may choose the second
witness.

¶12 Cruz filed a petition for special action in the court of appeals,
which declined jurisdiction. We granted review because this case presents
recurring issues of statewide concern. We have jurisdiction pursuant to
article 6, section 5(3) of the Arizona Constitution.

II. DISCUSSION

¶13 “We review a trial court’s decision regarding the admissibility
of evidence for abuse of discretion,” State v. Richter, 245 Ariz. 1, 4 ¶ 11
(2018), and “in the light most favorable to sustaining its ruling,” State v.
Gomez, 250 Ariz. 518, 521 ¶ 13 (2021). “An error of law committed in
reaching a discretionary conclusion may, however, constitute an abuse of
discretion.” State v. Wall, 212 Ariz. 1, 3 ¶ 12 (2006). “We review the

5
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

interpretation of court rules de novo . . . .” State v. Bernstein, 237 Ariz. 226,
228 ¶ 9 (2015).

A. Expert Testimony About Cruz’s Intellectual Disability

¶14 Cruz seeks to introduce expert testimony from Dr. Gómez to
establish that he is intellectually disabled and then connect that disability
to his inability to perform certain tasks, such as reading, dialing telephone
numbers, following travel directions, purchasing food, and cooking. Cruz
claims he wants “to introduce evidence of his disability not to negate mens
rea, but to rebut the actus reus of the offense by showing he is so disabled
he could not physically perform the acts necessary to be guilty of failing to
take steps to protect his daughter.” Cruz asserts his proffered evidence is
not about his intent with respect to his daughter (e.g., “I should give her
medicine”) but is instead about the execution of the task (e.g., “I cannot read
this bottle”).

1. Mental disease or defect and mens rea

¶15 In Arizona, legal insanity is a permissible affirmative defense
to a crime:

A person may be found guilty except insane if at the time of
the commission of the criminal act the person was afflicted
with a mental disease or defect of such severity that the
person did not know the criminal act was wrong. A mental
disease or defect constituting legal insanity is an affirmative
defense.

A.R.S. § 13-502(A). Although Cruz filed a notice stating he will raise two
defenses at trial (mere presence and insufficiency of evidence), he did not
assert legal insanity as a defense.

¶16 In Mott, this Court held “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.” 187 Ariz. at 541.
Mott, who was charged with child abuse, offered expert psychological
testimony that she “was a battered woman and that being a battered
woman was relevant to her ability to protect her children.” Id. at 539.

6
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

She claimed the evidence would “demonstrate that [she] was not capable
of forming the requisite mental state of knowledge or intent”—evidence
that would “negate the mens rea element of the crime.” Id. at 540. In
determining whether such evidence was admissible, this Court noted “the
legislature is responsible for promulgating the criminal law,” but it had
“declined to adopt the defense of diminished capacity when presented with
the opportunity to do so.” Id. at 540–41 (noting that use of mental disease
or defect evidence to refute mens rea is referred to as “diminished capacity”
or “diminished responsibility” defense). More specifically:

The 1962 version of the Model Penal Code allowed the
admission of “[e]vidence that the defendant suffered from a
mental disease or defect . . . whenever it [wa]s relevant to
prove that the defendant did or did not have a state of mind
that is an element of the offense.” Model Penal Code § 4.02(1)
(1962). This section was written in recognition of the existence
of “degrees of mental disease or defect that fall short of that
required for invoking the defense of irresponsibility, but that
may be put in evidence as tending to show that the defendant
lacked the specific mens rea required for the commission of the
offense charged.” Model Penal Code and Commentaries
§ 4.02(1) cmt. 2 (1985). The legislature’s decision not to adopt
this section of the Model Penal Code evidences its rejection of
the use of psychological testimony to challenge the mens rea
element of a crime.

Id. at 540 (alterations in original). Then, citing A.R.S. § 13-502(A) (1984), 2
this Court held that Mott’s proffered expert testimony regarding the
battered-woman syndrome was inadmissible “to demonstrate that
[Mott’s] mental incapacity negated specific intent.” Id. at 544.

2 The version of § 13-502(A) (1984) applicable to Mott’s 1991 offense stated:
“A person is not responsible for criminal conduct by reason of insanity if at
the time of such conduct the person was suffering from such a mental
disease or defect as not to know the nature and quality of the act or, if such
person did know, that such person did not know that what he was doing
was wrong.” See Mott, 187 Ariz. at 541.
7
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶17 We have continually reaffirmed that “[t]he legislature has not
provided for, and this Court has refused to allow, an affirmative defense of
diminished capacity.” State v. Leteve, 237 Ariz. 516, 524 ¶ 20 (2015); see also
State v. Schantz, 98 Ariz. 200, 207, 212–13 (1965) (considering and rejecting
defense of diminished capacity and noting the legislature “has not
recognized a disease or defect of mind in which volition does not exist . . . as
a defense to a prosecution for” a crime). Most recently, in Malone, this
Court affirmed the preclusion of expert testimony that the defendant
“suffered from brain damage even if that impairment made it more likely
that he had a character trait for impulsivity.” 247 Ariz. at 34 ¶ 21. In
doing so, we reiterated Mott’s rule that “Arizona does not permit a
defendant to introduce evidence of a mental disease or defect as either an
affirmative defense or to negate the mens rea element of a crime,” id. at 31
¶ 8, and that the “legislature quite clearly, albeit implicitly, rejected the
mens rea approach by adopting the alternative approach currently set forth
in § 13-502(A),” id. at 35 ¶ 25.

2. Mental disease or defect and actus reus

¶18 Cruz admits “the rule of diminished capacity in Arizona is
plain—evidence of a diminished mental capacity may not be used to negate
mens rea.” Cruz claims, however, that Dr. Gómez’s testimony is
admissible to rebut actus reus.

¶19 Actus reus is codified in A.R.S. § 13-201: “The minimum
requirement for criminal liability is the performance by a person of conduct
which includes a voluntary act or the omission to perform a duty imposed
by law which the person is physically capable of performing.” 3 See State
v. Lara, 183 Ariz. 233, 234 (1995) (“A.R.S. § 13-201 is a codification of the
common law requirement of actus reus—that a crime requires an act. A
guilty mind (mens rea) is not enough.”). Thus, actus reus is the
performance of conduct which can be either: (1) performance of a voluntary
act, or (2) failure to perform a duty imposed by law which the person is
physically capable of performing. § 13-201.

3Likewise, A.R.S. § 13-105(6) defines “[c]onduct” as “an act or omission
and its accompanying culpable mental state.”
8
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶20 Cruz argues that testimony about his intellectual disability
“rebuts the voluntary act element.” A “voluntary act” is “a bodily
movement performed consciously and as a result of effort and
determination.” § 13-105(42); see also Lara, 183 Ariz. at 234–35 (explaining
a voluntary act is “a determined conscious bodily movement”). This is “in
contrast to a knee-jerk reflex driven by the autonomic nervous system” or
“a bodily movement while unconscious, asleep, under hypnosis, or during
an epileptic fit,” Lara, 183 Ariz. at 234–35, or “actually being controlled by
something or someone else,” State v. Moody, 208 Ariz. 424, 468 ¶ 200 (2004).

¶21 We have previously decided that mental disease or defect
evidence does not inform what constitutes a “voluntary act” under § 13-201
and § 13-105(42). See Lara, 183 Ariz. at 234–35 (holding defendant with
“brain impairment and personality disorder” was not entitled to voluntary
act instruction under § 13-201 because he committed aggravated assault
when “[h]e was not unconscious” and instead “was relentless in his effort
and determination”); Moody, 208 Ariz. at 468 ¶¶ 200–01 (holding defendant
was not entitled to voluntary act instruction where no expert testimony
“suggested that [his] actions were not performed consciously and as a result
of effort and determination;” his brain impairments “do not inform the
actus reus determination”). Cruz does not allege he experienced an
epileptic fit or was unconscious, asleep, or otherwise “controlled by
something or someone else,” Moody, 208 Ariz. at 468 ¶ 200, such that his
acts were involuntary with respect to his daughter’s care. Thus, testimony
about Cruz’s intellectual disability is irrelevant to the performance of a
“voluntary act” under § 13-201.

¶22 Cruz also suggests that evidence of his intellectual disability
informs “the omission to perform a duty imposed by law which the person
is physically capable of performing.” See § 13-201. We have not
previously addressed this issue.

¶23 An “omission” is “the failure to perform an act as to which a
duty of performance is imposed by law.” § 13-105(28). An “act” is “a
bodily movement.” § 13-105(2). Accordingly, the relevant question is
whether Cruz failed to perform a bodily movement that he was physically
capable of performing and had a legal duty to perform—here, parenting
and caring for A.T. in a manner that did not constitute child abuse under
§ 13-3623.

9
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶24 Dr. Gómez’s testimony about Cruz’s intellectual disability
and its impact on his ability to read, dial telephone numbers, follow travel
directions, purchase food, and cook does not suggest Cruz was physically
incapable of performing bodily movements to care for A.T. or to seek help.
Instead, such evidence may suggest that his intellectual disability caused
him not to know how to do certain things for A.T. It may also suggest Cruz
did not know whether he should take certain actions, which pertains to mens
rea and, as explained, the evidence is inadmissible for that purpose. An
“omission” is statutorily focused on whether the defendant “is physically
capable of performing” a “bodily movement”—not his intellectual capacity.
See §§ 13-201, -105(2), (28). Thus, testimony about Cruz’s intellectual
disability is irrelevant to showing an “omission” under § 13-201.

¶25 In addition, Rule 403 authorizes a court to “exclude relevant
evidence if its probative value is substantially outweighed by a danger
of . . . confusing the issues.” Allowing the admission of testimony about
Cruz’s intellectual disability—evidence that goes beyond a showing of
physical capability—inevitably veers into mens rea territory, which would
create confusion on the part of jurors. See Clark, 548 U.S. at 779 (explaining
the Mott rule serves “to avoid confusion and misunderstanding on the part
of jurors”).

¶26 Cruz cites cases in which this Court permitted diminished
capacity evidence for purposes other than negating mens rea. See State v.
Miles, 243 Ariz. 511, 514 ¶ 14 (2018) (“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.”); Richter, 245 Ariz. at 5 ¶ 15
(“Because [defendant] sought to assert a justification defense, the evidence
of duress she would have introduced in support of that defense did not
constitute ‘diminished capacity’ evidence and was not prohibited by
Mott.”). But this authority provides Cruz no relief here because the
proffered testimony about his intellectual disability is inadmissible to rebut
actus reus, the only other purpose he offers for admission of this evidence.

¶27 The trial court did not abuse its discretion by precluding Dr.
Gómez’s testimony about Cruz’s intellectual disability as irrelevant or

10
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

alternatively as inadmissible because any probative value is substantially
outweighed by a danger of confusing the issues. See Rule 401 (defining
relevant evidence); Rule 403 (“The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . confusing
the issues.”).

B. Lay Testimony About Cruz’s Intellectual Disability

¶28 Cruz likewise argues he should be allowed to present lay
witness testimony about his intellectual disability to rebut the actus reus of
the charged offenses. He claims “[t]he lay witnesses can describe Cruz’[s]
ongoing disabilities from the time he was a child” and that “despite
repeated attempts to teach him, Cruz was unable to learn to write his own
name or learn numbers.” He claims this “information is highly relevant
to a jury regarding the severity [of his disability] and is therefore, reliable
evidence of [his] disability.” For the same reasons set forth in Part II(A),
the trial court did not err in precluding Cruz’s lay witness testimony about
his intellectual disability.

C. Permissible Evidence

¶29 Although evidence of Cruz’s intellectual disability is
inadmissible, Mott imposes no restriction on a jury’s consideration of
“‘observation evidence’ in the everyday sense, testimony from those who
observed what [defendant] did and heard what he said.” Clark, 548 U.S.
at 757. 4 “[O]bservation evidence can be presented by either lay or expert
witnesses.” Id. at 757-58; see also id. 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 (explaining the admissible evidence
in State v. Christensen, 129 Ariz. 32, 34 (1981), was “evidence about his
behavioral tendencies”).

4 The observation evidence in Clark included the defendant’s “behavior at
home and with friends, his expressions of belief around the time of the
killing that ‘aliens’ were inhabiting the bodies of local people (including
government agents), [and] his driving around the neighborhood before the
police arrived.” 548 U.S. at 757.
11
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶30 This Court recently elaborated on this type of evidence in
Malone:

The United States Supreme Court in Clark, 548 U.S. at 757,
coined the term “observation evidence” to describe the type
of character trait evidence permitted in Christensen. See also
Richter, 245 Ariz. at 8 ¶ 33; Leteve, 237 Ariz. at 524 ¶ 21.
“Observation evidence” is a slight misnomer, however, as the
psychiatrist’s opinion in Christensen, like Dr. Sullivan’s
proffered brain-damage testimony here, depended on results
from diagnostic tests administered to the defendant as well as
the psychiatrist’s personal observations of him. See
Christensen, 129 Ariz. at 34. A more accurate term for the
evidence deemed admissible in Christensen is “behavioral-
tendency evidence,” which is admissible to show a character
trait. See Mott, 187 Ariz. at 544 (describing Christensen as
involving “evidence about [the defendant’s] behavioral
tendencies”); see also Ariz. R. Evid. 404(a)(1) (permitting
evidence of an accused’s pertinent character trait).

247 Ariz. at 32 ¶ 11 (alteration in original) (cleaned up); see also id. at 31 ¶ 10
(“[E]vidence of a defendant’s behavioral tendencies is not diminished
capacity evidence and may be admitted to challenge the mens rea of
premeditation for a first degree murder charge.”).

¶31 The State acknowledges it does not object to lay witnesses
providing observation evidence testimony. For example, in response to
any argument that Cruz could have driven his daughter to the hospital, the
State does not object to a lay witness offering observation evidence that
Cruz cannot drive. Further, if Cruz calls a witness who knows him
personally and testifies “it’s my belief he cannot read,” the State agreed
Cruz should be allowed to do that. The State also does not object to Dr.
Gómez testifying about his observations of Cruz’s behaviors and traits, so
long as he does not testify about the mental capabilities and capacity
underlying those observations or offer diminished capacity evidence.

¶32 Accordingly, Cruz may introduce “behavioral-tendency
evidence,” see Malone, 247 Ariz. at 31–32 ¶¶ 10–11, also referred to as

12
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

“observation evidence,” see Clark, 548 U.S. at 757–60, through expert and
lay witness testimony, so long as such evidence is otherwise admissible
under the Rules of Evidence. See State v. Dickey, 125 Ariz. 163, 169 (1980)
(affirming exclusion of certain testimony of psychiatrist, while noting
separate expert “opinion of several traits of appellant’s personality, such as
being overly protective, easily fearful, and not prone to violence . . . may
provide assistance to a lay jury”). But witnesses may not state that Cruz’s
intellectual disability is the underlying cause of his character traits or
behavioral tendencies. As in Malone, this Court will not “circumvent
Arizona’s longstanding jurisprudence . . . by permitting defendants to
introduce evidence of a behavioral tendency and then ‘corroborating’ its
existence by providing mental disease or defect evidence to explain the
cause for that behavior.” 247 Ariz. at 34 ¶ 20; see also id. (“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.”). 5

¶33 Cruz and the State have stipulated that Cruz is illiterate. We
agree with the trial court that the jury can be informed of his illiteracy, but
Cruz may not use the word “involuntary” in conjunction with his illiteracy
at trial, nor may the State imply or insinuate that Cruz could have learned
to read.

5 Amicus curiae Arizona Attorneys for Criminal Justice raises several
issues that were not briefed or argued by the parties. For example, amicus
argues legislative amendments after the offense date in Mott now “allow
use of evidence of diminished capacity or mental disorders to negate mens
rea.” Amicus further claims Malone’s conclusion was based “upon a faulty
premise,” its “rationale must be clarified in the context of crimes of
omission,” and cases like it “fail to distinguish permissible and
impermissible defenses as defined by the Legislature.” We decline to
reexamine these cases or address amicus’ arguments as “[w]e generally do
not reach out to . . . upset established precedent when no party has raised
or argued such issues.” See State ex rel. Brnovich v. City of Tucson, 242 Ariz.
588, 599 ¶ 45 (2017); see also City of Phx. v. Phx. Civic Auditorium & Convention
Ctr. Ass’n, 99 Ariz. 270, 274 (1965) (“Amicus curiae will not be permitted to
create, extend, or enlarge the issues.”).
13
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

D. Reducing Cruz’s Lay Witnesses from Eleven to Two

¶34 Cruz identified eleven lay witnesses to testify about his “early
life growing up in rural Mexico” and his inability to read, write, speak
English, text, email, cook, handle money, find an address, or operate a GPS.
He has not been in contact with these lay witnesses for years, and none
within the nine-year period preceding the alleged criminal conduct.

¶35 Cruz claims Gutierrez will testify that (1) Cruz could not
cook, read, or write and would often get lost; (2) Gutierrez had to guide
Cruz when they came to the United States together from Mexico; and
(3) Gutierrez helped Cruz get a job, but Cruz could not find his way to
work, which was two blocks away. Cruz has not seen Gutierrez since
about 2006.

¶36 As to the others, Cruz claims: (1) Beatriz Adriana Diaz Cruz
has personal knowledge that Cruz cannot read, write, or handle money,
although she has not seen Cruz in about sixteen years; (2) Guillermo Cruz,
a teacher for over thirty years, attempted to teach Cruz to write his name
once a week for a year when Cruz was a child, but he did not learn how to
write his name; and (3) other lay witnesses will say how they tried to teach
Cruz how to read or write, but those efforts were unsuccessful.

¶37 The trial court determined that calling “eleven lay witnesses
to say essentially the same thing would be a needless presentation of
cumulative evidence” under Rule 403, but Cruz may call two lay
witnesses—Gutierrez and one other of Cruz’s choosing. Under Rule 403,
the “court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . wasting time, or needlessly
presenting cumulative evidence.” The trial court did not abuse its
discretion. First, the probative value of the lay witness testimony is
diminished in light of the significant passage of time since these individuals
personally observed Cruz, and thus their testimony is based on dated
information. See, e.g., State v. Fleming, 117 Ariz. 122, 125–26 (1977) (“As
evidence of the witness’ condition becomes more remote in time, it has
proportionately less bearing on the credibility of the witness.”). Second,
the lay witness testimony is cumulative. Gutierrez may testify that Cruz
could not cook, read, write, follow directions, or find his way to work that
was two blocks away, and Cruz would get lost. And Cruz may select one

14
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

additional lay witness to testify about his or her personal observations of
Cruz.

E. Due Process

¶38 Cruz argues the restrictions placed on his proffered expert
and lay witness testimony violate due process by denying him the
opportunity to present a complete, meaningful defense under the Fifth,
Sixth, and Fourteenth Amendments to the U.S. Constitution and article 2,
section 24 of the Arizona Constitution. 6 “Whether rooted directly in the
Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful opportunity to present a
complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal
citations omitted) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984));
see also Trombetta, 467 U.S. at 485 (“Under the Due Process Clause of the
Fourteenth Amendment, criminal prosecutions must comport with
prevailing notions of fundamental fairness. We have long interpreted this
standard of fairness to require that criminal defendants be afforded a
meaningful opportunity to present a complete defense.”).

¶39 Cruz provides no authority that recognizes a due process
right to present evidence of intellectual disability to rebut actus reus. Nor
do his cited cases establish a due process right to present multiple lay
witnesses who lack personal knowledge of the alleged criminal conduct
and last had contact with the defendant years before the alleged crimes.
See Washington v. Texas, 388 U.S. 14, 16, 23 (1967) (holding defendant was
denied right to compulsory process where he was prevented from
presenting a witness who was “the only person other than [defendant] who
knew exactly who had fired the shotgun and whether [defendant] had at

6 See U.S. Const. amend. V (“[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law”); id. amend. XIV (“nor
shall any State deprive any person of life, liberty, or property, without due
process of law”); see also id. amend. VI (“[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor”); Ariz. Const. art. 2, § 24 (“[i]n criminal prosecutions,
the accused shall have the right . . . to have compulsory process to compel
the attendance of witnesses in his own behalf”).
15
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

the last minute attempted to prevent the shooting”); Chambers v. Mississippi,
410 U.S. 284, 289, 292–94, 300–03 (1973) (holding defendant was denied a
fair trial where he was prevented from cross-examining a witness who
made four confessions to the murder and also prevented from introducing
testimony of three people to whom that witness had confessed); Trombetta,
467 U.S. at 485, 491 (1984) (addressing a “group of constitutional privileges
[that] delivers exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and ensuring the
integrity of our criminal justice system” and concluding due process “does
not require that law enforcement agencies preserve breath samples in order
to introduce the results of breath-analysis tests at trial”); Crane, 476 U.S.
at 684, 687, 691 (concluding exclusion of testimony about the physical and
psychological environment that yielded defendant’s confession deprived
him of “his fundamental constitutional right to a fair opportunity to present
a defense” where defendant argued “there was no physical evidence to link
him to the crime” and “his earlier admission of guilt was not to be
believed”); State v. Prasertphong, 210 Ariz. 496, 501 ¶¶ 22–23 (2005)
(concluding that trial court’s decision to admit remaining portions of co-
defendant’s statement under rule of completeness did not violate the
Confrontation Clause).

¶40 The Supreme Court has explained:

[T]he right to introduce relevant evidence can be curtailed if
there is a good reason for doing that. “While the
Constitution . . . prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to
promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the jury.”

Clark, 548 U.S. at 770 (alteration in original) (quoting Holmes v. South
Carolina, 547 U.S. 319, 326 (2006)). In addition, the Supreme Court has
recognized that the characteristics of mental-disease and defect evidence
give rise to risks in the evidentiary context, including: (1) “the
controversial character of some categories of mental disease”; (2) “the
potential of mental-disease evidence to mislead” and “confuse” jurors

16
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

“through the power of this kind of evidence to suggest that a defendant
suffering from a recognized mental disease lacks cognitive, moral,
volitional, or other capacity, when that may not be a sound conclusion at
all”; and (3) “the danger of according greater certainty to capacity evidence
than experts claim for it.” Id. at 773–78 (addressing the Mott rule). To
that end, the Mott “rule serves to preserve the State’s chosen standard for
recognizing insanity as a defense and to avoid confusion and
misunderstanding on the part of jurors.” Id. at 779. Therefore, “there is
no violation of due process . . . and no cause to claim that channeling
evidence on mental disease and capacity offends any ‘principle of justice
so rooted in the traditions and conscience of our people as to be ranked as
fundamental.’” Id. (quoting Patterson v. New York, 432 U.S. 197, 202
(1977)).

¶41 Here, as in Clark, the trial court had “good reasons” to
preclude expert and lay witness testimony about Cruz’s intellectual
disability as irrelevant or alternatively as inadmissible because of a danger
of confusion under Rule 403, see supra ¶¶ 19–28. “While the
Constitution . . . prohibits the exclusion of defense evidence under rules
that serve no legitimate purpose or that are disproportionate to the ends
that they are asserted to promote,” see Clark, 548 U.S. at 770 (alteration in
original), the trial court’s evidentiary rulings here do not fall into this
category. The trial court applied “well-established rules of evidence” that
allow it to exclude irrelevant evidence and relevant “evidence if its
probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” Id.
(quoting Holmes, 547 U.S. at 326).

¶42 Although Cruz may not present evidence of his intellectual
disability at trial, he may present evidence that he is illiterate. He may also
present admissible behavioral-tendency evidence, also referred to as
observation evidence, through expert testimony and two lay witnesses. In
doing so, Cruz could argue the evidence of his behavioral tendencies
“rebut[ted] the prosecution’s evidence of mens rea,” see Clark, 548 U.S.
at 760; Mott, 187 Ariz. at 544, or he was not “physically capable of
performing” the acts necessary for the safety and care of A.T., see § 13-201.
Cruz will have a meaningful opportunity to present a complete defense.
See Crane, 476 U.S. at 690.

17
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

¶43 In addition, the trial court did not violate Cruz’s right to due
process in reducing his eleven lay witnesses to two. These individuals last
had contact with Cruz years before the alleged criminal conduct and would
present cumulative evidence. Although “an accused . . . has the right to
present his own witnesses to establish a defense,” Washington, 388 U.S.
at 19, “the Constitution leaves to the judges who must make these decisions
‘wide latitude’ to exclude evidence that is ‘repetitive . . . , only marginally
relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion
of the issues.’” Crane, 476 U.S. at 689–90 (alterations in original) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

¶44 The trial court’s decision was made through the application
of well-established evidentiary rules that serve the interests of fairness and
reliability in light of the diminished probative value and cumulative nature
of Cruz’s proffered lay witness testimony, see supra ¶¶ 34-37. See id. at 690
(“[W]e have never questioned the power of States to exclude evidence
through the application of evidentiary rules that themselves serve the
interests of fairness and reliability—even if the defendant would prefer to
see that evidence admitted.”); see also Taylor v. Illinois, 484 U.S. 400, 410
(1988) (“The accused does not have an unfettered right to offer testimony
that is . . . inadmissible under standard rules of evidence. The
Compulsory Process Clause provides him with an effective weapon, but it
is a weapon that cannot be used irresponsibly.”); see also Prasertphong, 210
Ariz. at 502 ¶ 26 (noting both the accused and the State “must comply with
established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence”
(quoting Chambers, 410 U.S. at 302)).

¶45 The limitation on lay witnesses imposed here is vastly
different from the situation in Crane, which involved “the blanket exclusion
of the proffered testimony about the circumstances of [defendant’s]
confession” that “deprived him of a fair trial.” 476 U.S. at 690. It is also
unlike the situation in Washington, where the defendant was prevented
from presenting the single witness (other than himself) “who knew exactly
who had fired the shotgun” and whether the defendant “attempted to
prevent the shooting.” 388 U.S. at 16. The trial court’s rulings did not
deny Cruz a meaningful opportunity to present a complete defense or
violate due process.

18
 CARLOS TERCERO CRUZ V. HON. BLAIR/STATE
Opinion of the Court

III. CONCLUSION
¶46 We affirm the trial court’s pre-trial orders regarding Cruz’s
proffered expert and lay witness testimony about his intellectual disability.

19