IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

JAVIER ROMERO
, Appellant

.

No. 1 CA

- CR 18

- 0334

Appeal from the Superior Court in Maricopa County

No. CR 2014

- 001009

- 001 The Honorable Peter C. Reinstein , Judge
, Retired

AFFIRMED

COUNSEL
Arizona Attorney General ’ s Office , Phoenix By Terry M. Crist III Counsel for Appellee

Michael J. Dew Attorney at Law
, Phoenix By Michael J. Dew C ounsel for Appellant FILED 3-31-2020STATE v. ROMERO Opinion of the Court

2 OPINION
Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.

B R O W N , Judge :

¶1 J avier R omero appeals from his convictions and sentences for second

- degree murder and aggravated assault. He argues the superior
court (1) committed fundamental error by failing to provide an additional jury instruction defining legal insanity ; ( 2) improperly precluded testimony addres sing the consequences of a guilty except insane (“GEI”) verdict ; and (3) should have found him GEI as a matter of law. For the following reasons, we affirm

.
BACKGROUND

¶2 While Romero was working in a restaurant , he suddenly grab bed a large kitchen knife and repeatedly stab bed a co

- worker to death

. Romero then moved the v ictim’s body to a nearby room and attempted to clean up the blood. Other employees , including Romero’s brother, discovered the body shortly after the stabbing

. Security cameras also captured the incident. When Romero’s brother saw what had happened, he grabbed Romero and asked him what he had done. Romero did not respond ; his brother testified he “looked like a deer in the headligh ts . . . like he was shocked [at] what he did.”

¶3 When police officers arrived, they found Romero waiting in the restaurant with his supervisor, who explained what Romero had done. Romero had a blank expression on his face and did not seem to understand instructions. Noticing extensive cuts on Romero’s arms, officers took him to a hospital for treatment. Romero told hospital staff his wounds were self

inflicted. After his wounds were cared for, Romero reached out from his hospital bed and gra bbed at a nearby officer’s handgun. The officer prevented Romero from obtaining the weapon and restrained him, after which Romero looked at the officer and said, “I don’t know why I did that.”

¶4 A s an affirmative defense , Romero sought to prove he was GEI under A.R.S. § 13

- 502
, which states that “[a] person may be found [GEI] if at the time of the commission of the criminal act the person was a fflicted with a mental disease or defect of such severity that the person did notSTATE v. ROMERO Opinion of the Court

3 know the criminal act was wrong. ” At trial, the superior court’s preliminary instructions informed the jury t hat if it found beyond a reasonable doubt that Romero committed the charged offenses, it would then be required to decide whether he proved by clear and convincing evidence he wa s GEI when the crimes were committed.

¶5 T he three medical experts who testified at trial agreed that Romero suffered from schizophrenia but disagreed as to whether Romero knew at the time t hat his act s were wrong. Dr. James Sullivan, testifying for the defense, opined that Romero did not know his acts w ere wrong due
to a paranoid delusional episode. Dr. Janet Perry, the court

- appointed expert , agreed

. But the S tate’s expert , Dr. James Seward
, offer ed no definitive conclusion as to whether Romero knew his act s w ere wrong. Dr. Seward opined that when Romero began stabbing the v ictim , Romero was likely not aware what he was doing was wrong
, but there were signs he became aware what he was doing was wrong in the course of the stabbing. Dr. Seward also stated it was possible that Romero ’ s “ behaviors were all some kind of manifestation of his psychotic state rather than being an awareness that the act was wrong. ”

¶6 T he jury found Romero guilty on both counts , rejecting his GEI defense

. This timely appeal followed

.
DISCUSSION

¶7 O ur standard of review of the asserted errors depends on whether Romero object ed in the superior court. If he object ed and we find error, the State must prove the e rror was harmless

. See State v. Henderson
, 210 A r iz. 561, 567, ¶ 18 (2005). Otherwise
, we review for fundamental error resulting in prejudice

. See State v. Escalante , 245 Ariz. 135, 140, ¶ 12 (2018).

A. Jury Instructions

¶8 Romero argues the superior court erred by giving instructions that misinformed the jury of the elements required to establish GEI under A.R.S. § 13

- 502(A)

. We review the propriety of jury instructions de novo

. State v. Fierro , 220 Ariz. 337, 338, ¶ 4 (App. 2008). Instructions inform the jury how to apply the law
, State v. Noriega, 187 Ariz. 282, 284 (App. 1996)
, and we will not reverse unless the instructions, taken together, would have misled the jur ors , State v. Doerr , 193 Ariz. 56, 65, ¶ 35 (1998). Despite our de novo review of the legal sufficiency of the jury instructions, b ecause Romero did not object at trial to the instructions given, we will reverse only if the court committe d fundamental error resulting in prejudice

. See Fierro
, 220 Ariz. at 340, ¶ 11.STATE v. ROMERO Opinion of the Court

4 ¶9 Romero takes issue with two of the superior court’s instructions. The first one paraphrased the standard under A.R.S. § 13

- 502(A) and q uot ed the Revised Arizona Jury Instructions (“RAJI”) Sta tutory Criminal 5.02

- 1 (4th ed. 2018) :

You must determine from the evidence whether the defendant was [GEI] at the time the crime was committed. A defendant is [GEI] if at the time of the crime the defendant was afflicted with a mental disease or defect of such severity that the defendant did not know the criminal act was wrong.

The secon d instruction
, paraphrasing A.R.S. § 13

- 10 5(10)( b) and quoting RAJI Sta tutory Criminal 1.0510(b) , stated:

“ Knowingly ” means that a defendant acted with awareness of or belief in the existence of conduct or circumstances constituting an offense. It does not mean that a defendant must have known the conduct is forbidden by law.

¶10 Romero argues th e se instructions w rongly informed the jury it could find he knew his conduct was wrong even if he could not understand it was forbidden by law

. He contends the instructions given

were “in direct contradiction to the elements of the [GEI] affirmative defense
, ” and the super ior court should have sua sponte given the jury instruction at issue in State v. Corley , 108 Ariz. 240 , 242

– 43 (1972) and State v. Tamplin
, 1

95 Ariz. 246
, 247, ¶ 4 (App. 1999 ), to explain what “wrong” means in the context of A.R.S. § 13

- 502. The relevant instruction given in those two cases stated:
Knowledge that an act was wrong, as the phrase is used in these instructions, means knowledge that the act was wrong according to generally accepted moral standards of the community and not the defendan t’s own individual moral standards. Knowledge that an act was forbidden by law will permit the inference of knowledge that the act was wrong according to generally accepted moral standards of the community.
Corley , 108 Ariz. at 24 2

– 4 3 ; Tamplin , 195 Ariz . at 247, ¶ 4 (hereinafter referred to as the “ Corley instruction” )

. In those cases, the respective appellate courts rejected the defendants’ arguments that the instruction should not have been given, whereas here Romero contends the court fundamentally e rred by failing to give the same instruction

. Corley , 108 Ariz. at 243; Tamplin , 195 Ariz. at 249, ¶ 12.STATE v. ROMERO Opinion of the Court

5 ¶11 To address whether the superior court was required to sua sponte give t h e Corley instruction at Romero’s trial, w e begin with the well

accepted premise that u nless the legislature plainly indicates otherwise, a crime “ requires both guilty conduct and a culpable mental state .” See e.g., State v. Slayton , 214 Ariz. 511, 514, ¶ 9 (App. 2007)

. Under Arizona’s criminal code , a person ac ts “knowingly” when
, “with respect to conduct or to a circumstance de scribed by a statute defining an offense,” the person engages in such conduct with the “aware[ness] or belie[f] that the . . . conduct is of that nature or that the circumstance exists. ” A.R.S. § 13

- 105(10)(b)

. A defendant need not have acted , however, with “ any knowledge of the unlawfulness of the act or omission.” Id.

¶12 The criminal law ’s general indifferen ce to whether a defendant knows an act is criminal reflects a second core principle

— ig norance of the law is no defense. See A.R.S. § 13

- 204(B) ; State v. Morse
, 127 Ariz. 25, 31 (1980)

. “ K nowingly” thus refers to factual knowledge, not knowledge of an act’s legal or moral impropriety. See State v. Francis , 243 Ariz. 434, 436

– 37, ¶ 12 (2018) (collecting cases holding “that knowledge of an act, even without understanding its legal significance, can establish the culpable mental state necessary for conviction of a crime that must be ‘knowingly’ committed”) ; see also Bryan v. United States
, 524 U.S. 184, 193 (1998) (“ [T]he term ‘knowingl y’ merely requires proof of knowledge of the facts that constitute the offense.”)

. ¶13 Under the statutes at issue here
, the State was required to
prove that Romero had an awareness of or a belief that his conduct at the
restaurant was of such a nature that it would “cause death or serious physical injury
, ” A.R.S. § 13

- 1104 ( second degree murder)
, and that in the hospital he was aware of or had a belie f that he was “ tak[ing] or attempt[ing] to exercise control over” a firearm belonging to an officer, A.R.S. § 13

- 1204(A)(9)(a) (aggravated assault)

. Thus, the superior court’s instruction, stating that knowin gly “does not mean that a defendant must have known the conduct is forbidden by law
, ” properly reflect s Arizona law

. ¶14 Turning to the GEI instruction, wr ongful ness in context of a GEI defense has its origins in “what is known as the Rule of M’Naghten’s Case as the test for criminal insanity
, ” which Arizona has long followed. See State v. Schantz , 98 Ariz. 200, 206 (1965) (collecting cases). The Rule states as follows:

[T ] o establish a [defense] on the ground of insanity, it must be clearly proved that, at the time of the committing of the act,STATE v. ROMERO Opinion of the Court

6 the party accused was [ laboring ] under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did k now it , that he did not know he was doing what was wrong.
M’Naghten’s Case
, 8 Eng. Rep. 718, 722 (1843). T he Rule’s first part “ ask s about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he is doing.” Clark v. Arizona , 548 U.S. 735, 747 (2006). Its second part addresses the “ lack of moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action is wrong.” Id.

¶15 After its adoption in 1977, Arizona’s courts consistently understood A.R.S. § 13

- 502 as codif y ing M’Naghten

. See, e.g.
, St ate v. Mott , 187 Ariz. 536, 541 (1997) ; State v. Zmich , 160 Ariz. 108, 110 (1989); State v. Heartfield
, 196 Ariz. 407, 41 0 (App. 2000)

. In 1993, however, our legislature deleted the first prong of the test from the statute’s text
, so tha t now a person is GEI only if a “mental disease or defect” caused th e person to “not know the criminal act was wrong .” A.R.S. § 13

- 502 (A) ; see Clark , 548 U.S. at 742 (upholding changes t o Arizona’s moral incapacity

- based insanity test as constitutional ) ; cf

. Kahler v. Kansa s , No. 18

- 6135, 2020 WL 1325817, at *5

– 6 (U.S. Mar. 23, 2020) (upholding Kansas’s cognitive incapacity

- based insanity test as constitutional).

¶16 Though the meaning of “wrong
, ” as used in M’Naghten
, “ has been an enigma since the standard was

. . . adopted
, ” Arizona defines the word “wrong” in accordance with generally accepted moral standards of the community. Corley , 108 Ariz. at 243 (citing State v. Malumphy , 105 Ariz. 200, 212 (1969) (McFarland, J., special ly concurring)); see also State v. Skaggs
, 120 Ariz. 467, 472 (1978) (citing Malumphy ). This concept necessarily “includ e[s] both legal and moral wrong.” Corley , 108 Ariz. at 243

. ¶17 As relevant here, in pressing his GEI defense, Romero was required to prove by clear and convincing evidence that his mental disease or defect rendered him unable to know his act s w ere legally and morally wrong according to the standards of the community

. Id. Romero’s argum ent is that the instructions inform ed the jury that it could find he knew his act s were wrong

— and thus could not prove his GEI defense

— even if he did not know the act s were forbidden by law

. What Romero
asserts as error , however, is a correct statement of the law. In deed, M’Naghten contemplate d the scenario where a defendant lacks knowledge that his act was illegal :STATE v. ROMERO Opinion of the Court

7 If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction ; whereas the law is administered upon the principle that every one must be taken

con clusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable

. . . . M’Naghte n ’s Case
, 8 Eng. Rep. at 723 ; accord Malumphy , 105 Ariz. at 212

. Stated differently, evidence of a defendant’s inability to know an act has been criminalized is insufficient to establish a GEI defense

. Moreover, if the State counters this defense with evidence sho wing the defendant was aware his conduct was illegal , the n it would not be improper for the jury to conclude that h e also knew his conduct wa s morally wrong. See Corley , 108 Ariz. at 243 ( rejecting defendant’s challenge to jury instruction stating in part that “ ‘ [k] nowledge that an act was forbidden by law will permit the inference of knowledge that the act was wrong according to generally accepted moral standards of the community ’”) (empha sis added)

. ¶18 In the oft

- cited case of People v. Schmidt
, 110 N.E. 945 ( N.Y. 1915), the court further explained the difference between legally and morally wrong. See Malumphy , 105 Ariz. at 210

– 12. There, the defendant argued the trial court mis

- instructed the jury under a M’Naghten

- type statute by limiting “wrong” to mean no more than “contrary to the laws of the state.” Schmidt , 110 N.E. at 946 (internal quotations omitted). On appeal, however, the court was “unable to accept the view that the word ‘wrong’ . . . [should] receive so narrow a construction.” Id. Analyzing M’Naghten , the court explained that “a defendant who knew nothing of the law would none the less be responsible if he knew that the act

. . . was morally wrong.” Id. at 94 7 . Although M’Naghten had not explicitly considered “[w]hether [a defendant] would also be responsible if he knew [the act] was against the law, but did not know it was morally wrong,” id.
, the Schmidt court pointed out that, in most cases, the analysis w ill be coterminous because “[o]bedience to the law is itself a moral duty

. ” I d. at 949

. ¶19 B y not limiting “wrong” to mean “against the law,” the GEI instruction here did not incorrectly bar the jury from considering evidence related to Romero’s understand ing of both the legal and moral wrongness of his act s

. The instruction accurately reflected § 13

- 502, and Romero hasSTATE v. ROMERO Opinion of the Court

8 not shown that modeling the jury instruction on the statutory language was improper

. See State v. Harris , 151 Ariz. 236, 238 (1986) ( upholding jury instructions for burglary based on statutory language, despite subsequent clarifying case law). In the absence of any authority requiring the Corley instruction, we cannot say the superior court erred here

. Cf. 1 Wayne R. LaFave, Substanti ve Criminal Law § 7.2(b)(4) (3d ed. 2018) (noting that this prong of M’Naghten is often “simply given to the jury without explanation”).

¶20 W e appreciate Romero’s argument that the superior court should have given the Corley instruction because it more accurately describe s this unique area of law. Thus, in future cases we encourage trial judges to give the Corley instruction because it provide s juries, expert witnesses , and counsel a better understanding of the GEI defense

. The instruction may have been helpful in this case given that the State’s expert was the only individual at trial who offered the jury wit h a definition of “wrong
, ” and he incorrectly stated that “ to the best of my understanding
, in Arizona, not knowing that an action was wrong refers to the legal wrongness as opposed to moral wrongness.” Nonetheless, the court ’s failure to sua sponte give the Corley instruction wa s not improper.

B. Testimony Regarding Consequences of a GEI Verdict

¶21 Romero also argues the superior cou r t erred by not allowing him to examine Dr. Perry about the consequences of a GEI verdict. Romero contends he needed to question Dr. Perry about the issue “to rebut the State’s insinuation that the GEI defense was less punishment .” Because Romero raised this issue in the superior court, which rejected his argument, we review that ruling for harmless error.

¶22 We review the superior court’s evi dentiary rulings and restrictions on witness examination for an abuse of discretion. State v. McGill , 213 Ariz. 147, 156, ¶ 40 (2006)

. Because the decision of which punishment to impose is generally the court’s task alone, j uries are not permitted to consider the consequences of their verdicts. State v. Cornell
, 179 Ariz. 314, 327 (1994)

. ¶23 During cross

- examination of court

- appointed expert Dr. Perry, the prosecutor questioned whether Romero was malingering when Perry interviewed him in the following exchange :
Q. Okay.

. . . A person in Mr. Romero’s position, hypothetically may consider, a finding of legal insanity to be a benefit over a finding of guilt in a cou r troom?STATE v. ROMERO Opinion of the Court

9 A. I did not discuss that [with] him.

Q. Okay. But, hypothet ically, I mean, people may perceive one option is better than the other ?

¶24 Romero objected to this line of questioning, but the superior court overruled him

. The prosecutor continued:

Q.

. . . A subject that you ’ re examining such as Mr. Romero

--

A. Uh

- huh.

Q

. -- may in the time he’s had between the incident and when he’s being evaluated

-- may come in his mind
, rightly

or wrongly
, to a realization that one result might be better for him than another ?

A

. Yes.

Q. More in his self

- interest?

A. Yes.

. . . Q

. And that’s one of the problems in competency exams as well, test subjects may feel a certain result might be more favorable to them?

A. Yes

. Q. Now that might be true not just of persons charged with crimes, but anyone seeing someone in your profession?

A. Yes.

. . . Q.

. . . In your experience doing GEI cases, have you encountered test subjects who fabricate information about the offense?

A. Yes.

Q. And usually, would that be hypothetically to make themselves look better?STATE v. ROMERO Opinion of the Court

10 A. Yes.

¶25 At an ensuing bench conference
, Romero argued that the prosecutor’s questions “opened the door to punishment

. . . [by] asking those questions about what [Romero’s] feelings were about being convicted ” and requested to ask the witness “ about what happens if a person gets conv icted of GEI, where do they go.” The superior court ultimately denied Romero’s request to ask Dr. Perry about the consequences of a GEI verdict

. ¶26 Romero cites authority d iscussing appropriate factors for the jury to consider during a capital case’s penalty phase in support of his assertion that the jury should have been informed about the consequences of a GEI verdict. See Simmons v. South Carolina , 512 U.S. 15 4 (1994) (plurality opinion); State v. Escalante

- Orozco
, 241 Ariz. 254 (2017)
, abrogated in part by Escalante , 245 Ariz. at 140

– 41, ¶ 16

. But nothing in those cases implies that

a jury should be allowed to consider the consequence of its verdict during

a trial’s guil t phase. See , e.g

. , Simmons , 512 U.S. at 163 (explaining that “[a] rguments relating to a defendant’s future dang erousness ordinarily would be inappropriate at the guilt phase of a trial ” but may be considered when the jury “ has sentencing responsibilities ” )

. ¶27 In fact, our supreme court has rejected a similar argument. S ee S tate v. McLoughlin , 133 Ariz. 458, 461 (1982). In McLoughlin
, “an unidentified third party” told a juror the defendant would go free if the jury found him insane, and “[t] his juror passed along this information to the rest of the jury ” during delibera tions. Id. at 460. The court made clear that “this information is always inadmissible

. ” Id. at 461. Although ultimately reversing his conviction
, the court nonetheless disagree d with the defendant’s assertion that “an instruction correctly stating what would have happened had he been acquitted by reason of insanity . . . would have avoided the problem caused by the juror misconduct.” Id. Because “disposition of a defendant upon the jury’s verdict has nothing to do with the defendant’s guilt or innocence,” it can “never be considered by the jury in its deliberations.” Id. at 461

– 62. In other words, the court would not correct an error by allowing another error to occur. See id

. Consistent with this principle, th e superior court properly instructed the jury not to consider Romero’s possible punishment in its deliberations.

¶28 Furthermore, v iewed in context, we do not view the questions posed to Dr. Perry as entering the impermissible area of punishment. Importantly, the prosecutor ’ s questions contain ed qualified, conditional terms such as “ hypothetically
, ” “perceive,” and “rightly or wrongly.” AndSTATE v. ROMERO Opinion of the Court

11 they were generally sought to elicit possible explanations f or malingering and why that was a concern for psychologist s in many cl inical situations

. T his was a relevant and proper subject of questioning, one Romero ’s counsel raised while examining Dr. Sullivan. And on re

- direct
, without mentioning consequences, defense counsel address ed whether and to what
extent the issue of malingering contributed to Dr. Perry’s opinions , giving Romero an adequate opportunity to rebut any implication that he might have been feigning his mental c ondition. Accordingly, the superior court acted within its discretion in denying Romero’s request

.
C. GEI a s a Matter of Law

¶29 Citing A.R.S. § 13

- 103(B), and State v. Bayardi , 230 Ariz. 195 (App. 2012)
, Romero contends the superior court should have declared him GEI as a matter of law. We are aware of no authority that authorizes a court to take such action , and § 13

- 502 explicitly leaves insanity in the fact finder’s hands

. See A.R.S. § 13

- 502(D) (stating “if the finder of fact f inds the defendant [GEI]

. . . . ”)

. Nor does Bayardi
, which concerned the types of criminal defenses available under Arizona law, provide support. Id. at 198, ¶ 13. The issue the re was whether the defendant’s proffered statutory defense was “an affirmative defense, a justification defense or a defense that denies an element of the charge or responsibility.” Id. at 198, ¶ 10. We held that the statute at issue created an affirmative defense, expressing no view about whether any affirmative defense

— such as GEI

— can be established as a matter of law. Id. at 201, ¶ 2 2

. To the contrary, Bayardi contemplated that such defenses are questions of fact for the factfinder to resolve. Id. at 2 00, ¶ 20 ( providing that affirmative defense s excuse a defendant from responsibility “[w]hen the requisite facts are established” )

. We therefore reject Romero’s contention that the court should have found him GEI as a matter of law.STATE v. ROMERO Opinion of the Court

12 CONCLUSION

¶30 We hold that the superior court did not (1) commit fundamental error by failing to instruct the jury with more specificity on the definition of insanity; (2) abus e its discretion in precluding testimony about the consequences of a GEI verdict ; or (3) err in failing to declare Romero GEI as a matter of law. We therefore affirm Romero’s convictions and sentences.