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

2

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.
STATE v. MILES

Opinion of the Court

3

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.
STATE v. MILES

Opinion of the Court

4

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.”
STATE v. MILES

Opinion of the Court

5

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).
STATE v. MILES

Opinion of the Court

6

¶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 diminishedcapacity 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 
STATE v. MILES

Opinion of the Court

7

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.
STATE v. MILES

Opinion of the Court

8

¶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.
STATE v. MILES

Opinion of the Court

9

¶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).
STATE v. MILES

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and 

JUDGE SWANN, concurring

10

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 
STATE v. MILES

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and 

JUDGE SWANN, concurring

11

“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 
STATE v. MILES

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and 

JUDGE SWANN, concurring

12

(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.
STATE v. MILES

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and 

JUDGE SWANN, concurring

13

¶32 The current, restyled version of the rule (effective Jan. 1, 2018) 

allows relief when the petitioner demonstrates that “no reasonable factfinder 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.
STATE v. MILES

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE GOULD and 

JUDGE SWANN, concurring

14

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.
STATE v. MILES

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and 

JUSTICE BOLICK, concurring

15

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and 

JUSTICE BOLICK, concurring:

¶36 I concur fully with the Court’s legal holding that afteracquired 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.
STATE v. MILES

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and 

JUSTICE BOLICK, concurring

16

(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.
STATE v. MILES

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and 

JUSTICE BOLICK, concurring

17

¶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.
STATE v. MILES

JUDGE SWANN, joined by VICE CHIEF JUSTICE PELANDER and 

JUSTICE BOLICK, concurring

18

¶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.