State v. King

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Petitioner,
v.
HOPE LYNETTE KING, Respondent.
No. 1 CA-CR 17-0543 PRPC
FILED 02-04-2021
Petition for Review from the Superior Court in Maricopa County
No. CR2001-003384
The Honorable Michael D. Gordon, Judge
REVIEW GRANTED;
RELIEF GRANTED; REVERSED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Lacey Stover Gard, Andrew S. Reilly
Counsel for Petitioner
Osborn Maledon PA, Phoenix
By Larry A. Hammond, Joseph N. Roth
Co-Counsel for Respondent
Arizona Justice Project, Phoenix
By Katherine Puzauskas
Co-Counsel for Respondent
Lewis Roca Rothgerber Christie LLP, Phoenix
By Robert H. McKirgan, Daniel A. Arellano
Counsel for Amicus Curiae International Association for Women’s Mental Health;
National Advocates for Pregnant Women; National Association of Social Workers;
National Women’s Health Network; Postpartum Support International; Tucson
Postpartum Depression Coalition; Margaret Spinelli; Michelle Oberman; Teresa
Twomey
STATE v. KING
Opinion of the Court
OPINION
Judge David D. Weinzweig delivered the Opinion of the Court, in which
Judge Maria Elena Cruz joined. Presiding Judge Michael J. Brown
dissented.
W E I N Z W E I G, Judge:
¶1 A jury convicted Petitioner Hope King of eight counts of
felony child abuse in 2002, and she was sentenced to the mandatory
minimum of four consecutive ten-year prison terms. Ten years later, King
petitioned the superior court (the “PCR court”) for post-conviction relief
under Arizona Rule of Criminal Procedure 32.1(e), seeking a new trial
based on “newly discovered scientific evidence” that enabled a clinical
psychologist in 2010 to conclude that King suffered from postpartum
psychosis in 2001 when she caused serious physical injury to her infant
daughter. After an evidentiary hearing, the PCR court granted post-
conviction relief, ordering that King receive a new criminal trial because the
scope of diagnostic criteria for postpartum psychosis had expanded since
her 2002 trial.
¶2 The State of Arizona petitions for review. We grant review
and relief, reversing the PCR court’s order because King could have been
diagnosed with postpartum psychosis before her criminal trial, even if the
likelihood of diagnosis later improved when medical science expanded the
menu of diagnostic criteria.
BACKGROUND
¶3 Paramedics responded to an emergency call from King’s
apartment in February 2001 to find an unresponsive, “limp” infant in
respiratory distress. The infant was King’s daughter, then nine months old.
She had dried blood stains around her nose and mouth; her chest cavity
was slightly deformed. The infant was rushed to the hospital, where tests
revealed a broken jaw, blood on the brain and in her eyes, two skull
fractures and 15 broken ribs. King admitted to police that she inflicted the
injuries. The State charged King with attempted murder and eight counts
of felony child abuse.
2
STATE v. KING
Opinion of the Court
¶4 A public defender, Bruce Peterson, was appointed to lead
King’s defense. Peterson generally understood that postpartum mothers
could develop mental health issues and harm their children, and he
believed King had mental health issues based on her frequent crying
episodes in his presence. Peterson thus hired Dr. Richard Rosengard, a
psychologist, to evaluate King’s mental health. Dr. Rosengard personally
examined King and interviewed her. Although her account of events has
now changed, the medical records show that in 2001 King denied having
“auditory or visual hallucinations” or suicidal thoughts. She “admitted to
biting her daughter on the arm,” but “could not tell [Dr. Rosengard] why.”
Based on his examination and King’s answers, Dr. Rosengard authored a
written report, diagnosing King with several mental disorders, including
“major affective disorder, depression” and “posttraumatic stress disorder.”
Dr. Rosengard’s report never examined whether King suffered from
postpartum mental illness; indeed, the word “postpartum” never appears
in his report.
¶5 What happened next is unclear. Although not mentioned in
the PCR petition, Peterson would later testify he retained a second
unnamed pretrial “postpartum expert,” who agreed that King had no
postpartum insanity defense. The record is largely silent about this second
expert. There is no written report, no contemporaneous description of a
report, no opinions or conclusions, no correspondence and no indication of
how or why this second expert reached the opinion.
A. Trial, Direct Appeal and First Petition for Post-Conviction
Relief
¶6 At the 2002 trial, Peterson argued that King did not
intentionally or knowingly harm her infant daughter and instead
“snapped,” pointing to “a history of mental disorders in her family and her
inability on th[at] particular day to control [a] switch.” The prosecution
called 13 witnesses. King called none, and she presented no other evidence.
The jury convicted King of eight counts of child abuse but hung on
attempted murder.
¶7 At sentencing, King offered evidence and argument to show
she suffered from postpartum mental illness when she committed the
offenses, including letters from family members who described her
misconduct as an “aberration[].” King herself emphasized that she suffered
from a “debilitating disorder” known as postpartum depression and “was
never prepared for [its] severity.” She wrote the judge only weeks after her
criminal trial, stressing that she “was extremely mentally not stable due to
3
STATE v. KING
Opinion of the Court
a serious disorder that is truly now being shined upon with a whole new
light.” She recounted the disorder’s “awful” symptoms, including her
“difficulty controlling emotions,” “cr[ying] for no apparent reason,”
sleeping too much or not at all, and never wanting to leave the house. The
court sentenced King to the minimum mandatory, mitigated sentence of
four consecutive ten-year terms. The trial judge remarked that “even if the
mental health experts didn’t tell us, it’s obvious that to do what [King] did
must involve serious mental health issues.”
¶8 On direct appeal to this court, King raised two evidentiary
issues but did not mention her mental condition. We affirmed the
convictions and sentences. State v. King (King I), 1 CA-CR 02-0889, ¶ 21
(Ariz. App. Oct. 9, 2003) (mem. decision).
¶9 King sought post-conviction relief from the superior court in
2004, arguing her mandatory sentence was “grossly disproportional” and
thus unconstitutional. She emphasized her “mental health,” but only as a
circumstance “support[ing] a finding that [her] 40-year prison term is
grossly disproportionate to her crimes.” The superior court summarily
dismissed King’s petition. We denied review. State v. King (King II), 1 CA-
CR 05-0439-PRPC (order filed Jan. 6, 2006).
B. 2010 Diagnosis
¶10 Around five years later, a nonprofit group retained Dr.
Christina Hibbert, a clinical psychologist, to examine King and “provide
[an] expert opinion” on whether King suffered from “postpartum mental
illness” when she abused the child.
¶11 Dr. Hibbert reviewed King’s medical records and twice
examined King in person before releasing her written conclusions in
December 2010. Dr. Hibbert determined that King suffered from
postpartum psychosis in 2001 and pointedly criticized Dr. Rosengard’s
pretrial evaluation:
Considering the time frame of the abuse (within the first year
postpartum), it seems obvious to this examiner that
postpartum mental illness must be ruled out. This report
does not mention the term ‘postpartum,’ however, and clearly
Ms. King was not evaluated for postpartum mental illness in
this evaluation.
¶12 Dr. Hibbert expressed dismay that King never received “a
thorough mental health examination” for postpartum issues, especially
4
STATE v. KING
Opinion of the Court
given the “serious,” “obvious” and “clear” mental health issues. Dr.
Hibbert also reported a greater “general awareness and understanding” of
postpartum disorders among the medical community since 2002. Even so,
Dr. Hibbert lamented the failure of “legal, medical and mental health
professionals helping Ms. King at the time of her trial [who] did not
comprehend perinatal mental illness.”
C. 2012 Petition for Post-Conviction Relief
¶13 In April 2012, King filed a successive petition for
post-conviction relief under Rule 32.1(e), requesting a new criminal trial
based on Dr. Hibbert’s 2010 diagnosis of postpartum psychosis, described
as “a disease that many in the medical community were not fully aware of”
in 2002 because it had “not yet [been] fully researched or understood.” She
floated a related, even if inconsistent, claim of ineffective assistance of
counsel, arguing her trial counsel “failed to discover and raise postpartum
psychosis to negate the specific intent of King’s convictions or as an
affirmative insanity defense.”
¶14 The State opposed King’s petition, countering that her 2010
diagnosis did not present “newly discovered material evidence” under
Arizona Rule of Criminal Procedure 32.1(e). The State framed its position
against a historical backdrop, arguing that “information about postpartum
depression and postpartum psychosis was available” and “could have been
discovered [before King’s original trial] through reasonable diligence.” It
offered a dozen published decisions “from [courts] across the country [that]
discuss[ed] postpartum psychosis” in the 49-year period leading to King’s
trial.1 The State also pointed to a dozen law reviews and legal periodicals
that explored the merits of King’s precise defense from coast (California) to
1 See Murray v. St. Mary’s Hosp., 113 N.Y.S.2d 104, 105 (1952); Pfeifer v.
Pfeifer, 280 P.2d 54, 55 (Cal. Dist. App. 1955); Schuler v. Berger, 275 F. Supp.
120, 122 (E.D. Pa. 1967); Burch v. Burch, 398 So.2d 84, 86 (La. App. 1981);
Commonwealth v. Comitz, 530 A.2d 473, 475 (Pa. Super. 1987); Edwards v.
Arlington Cty, 361 S.E.2d 644, 647 n. 5 (Va. App. 1987); People v. Massip, 271
Cal. Rptr. 868, 873 (App. 1990); In re Cory M., 2 Cal. App. 4th 935, 941 (1992);
Bahrenfus v. Psychiatric Sec. Rev. Bd, 853 P.2d 290, 292 n. 3 (Or. App. 1993);
In re Elizabeth R., 35 Cal. App. 4th 1774, 1778 (1995); In re Adoption No. 12612,
725 A.2d 1037, 1040 (Md. 1999); People v. Sims, 750 N.E.2d 320, 325 (Ill. App.
2001).
5
STATE v. KING
Opinion of the Court
coast (New York) before King’s trial.2 And, lastly, it emphasized that
postpartum psychosis was covered in the popular press before King’s trial,
citing ten examples between 1987 and 1997.3
¶15 Most important here, the cable network MSNBC reported on
the scourge of postpartum psychosis in April 2001. That story, A Mother’s
2 See Marcia Baran, Postpartum Psychosis: A Psychiatric Illness, a Legal
Defense to Murder, or Both?, 10 Hamline J. Pub. & Pol’y 121 (1989); Lori A.
Button, Postpartum Psychosis: The Birth of a New Defense?, 6 Cooley L. Rev.
323 (1989); John Dent, Postpartum Psychosis and the Insanity Defense, 1989 U.
Chi. Legal F. 355 (1989); Anne Damante Brusca, Postpartum Psychosis: A Way
Out for Murderous Moms?, 18 Hofstra L. Rev. 1133 (1990); Debora K. Dimino,
Postpartum Depression: A Defense For Mothers Who Kill Their Infants, 30 Santa
Clara L. Rev. 231 (1990); Christine Anne Gardner, Postpartum Depression
Defense: Are Mothers Getting Away with Murder?, 24 New Eng. L. Rev. 953(1990); Jennifer L. Grossman, Postpartum Psychosis-A Defense to Criminal
Responsibility or Just Another Gimmick?, 67 U. Det. L. Rev. 311 (1990); Laura
E. Reece, Mothers Who Kill: Postpartum Disorders and Criminal Infanticide, 38
UCLA L. Rev. 699, 701 (1991); Megan C. Hogan, Neonaticide and the Misuse
of the Insanity Defense, 6 Wm. & Mary J. Women & L. 259, 285-286 (1999);
Velma Dobson & Bruce Sales, The Science of Infanticide and Mental Illness, 6
Psychol. Pub. Pol’y & L. 1098, 1106 (2000) (Arizona professors noting that
“[p]ostpartum psychosis often involves hallucinations or delusions, severe
depression, and thought disorder”).
3 See Ann Japenga, Ordeal of Postpartum Psychosis: Illness Can Have
Tragic Consequences for New Mothers, L.A. Times, Feb. 1, 1987; Maud S.
Beelman, Mother Convicted of Murdering Baby: Killing Spurs Debate on
Postpartum Depression, L.A. Times, May 10, 1987; Marianne Yen, High-Risk
Mothers; Postpartum Depression, in Rare Cases, May Cause an Infant’s Death,
Wash. Post, Aug. 23, 1988; Constance L. Hays, Mother on Trial in 2 Deaths
Had Postpartum Psychosis, Lawyer Says, N.Y. Times, Sept. 7, 1988; Eric
Lichtblau, Postpartum Psychosis Key to Murder Defense, L.A. Times, Sep. 24,
1988; Eric Lichtblau, Expert: Massip Suffered Classic Maternal Psychosis, L.A.
Times, Oct. 20, 1988; Mary Peterson Kauffold, After Birth is There a Better
Way to Treat Postpartum Disorders?, Chi. Trib., Jul. 9, 1989; Mom Who
Drowned Baby Acquitted as Mentally Ill, Orlando Sentinel, Sep. 12, 1991
(“[The] judge said the woman may have suffered from postpartum
psychosis”); Mother Innocent in Baby’s Death, Bos. Globe, Sep. 12, 1991; Anna
Cekola, Mother Faces Trial in Death of Newborn, L.A. Times, Jan. 21, 1997
(“Postpartum psychosis gained national attention as a legal defense nearly
10 years ago”).
6
STATE v. KING
Opinion of the Court
Confession, aired nationally less than three months after King’s arrest.
Featured as an expert was Dr. Diane Barnes, the same medical expert hired
over 15 years later by King’s PCR counsel.
¶16 The PCR court ultimately held an evidentiary hearing on
King’s “newly discovered scientific evidence” claim in 2017. Her PCR
counsel conceded that postpartum psychosis was a known and diagnosed
condition well before King’s trial but argued that “[w]hat has changed is
how widely known, researched and understood the diagnostic presentation
[and] the symptom presentation” have become. The PCR court heard
testimony from King and Peterson, her defense attorney. Although she
denied them in 2001, King now told the PCR court she had suffered from
postpartum delusions and hallucinations after childbirth, adding that
violent and “weird” visual images and voices would “pop into [her] head.”
¶17 The PCR court heard from three medical experts. Dr. Hibbert
and Dr. Barnes testified on King’s behalf, and Dr. Steven Pitt testified for
the prosecution. All three medical experts agreed “it was possible to have
diagnosed King properly in the 2001 time frame.” Based on King’s jail
medical records, Dr. Barnes opined that King suffered from “bipolar
disorder with psychotic features” in 2001. Dr. Barnes acknowledged that
postpartum psychosis had been recognized for “hundreds and hundreds
and hundreds of years,” but noted how “the scope of symptoms has
broadened considerably since 2001.” Yet, Dr. Barnes still avowed that she
“personally” could have diagnosed King before her 2002 criminal trial. For
her part, Dr. Hibbert opined that “a postpartum woman” is more likely “to
get an accurate diagnosis today” than in 2002, but she agreed with Dr.
Barnes that King “could have” been diagnosed in 2001 “[w]ith the right
person evaluating.”
¶18 Dr. Pitt, a local forensic psychiatrist, testified that
“postpartum psychosis” is merely a label for “a series of psychotic
symptoms” and “[t]here’s nothing new or different about psychotic
features in 2002 than . . . today.” Then and now, he claimed that a
reasonable mental health professional would have asked whether King
presented “psychotic symptomatology” or “experienced perceptual
disturbances, either visual or auditory.” Dr. Pitt further opined that no
“special experience” was needed to diagnose this form of psychosis and the
Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) “does not
affect the understanding or recognition of the psychotic symptomology.”
¶19 The PCR court granted King’s petition in a minute entry. On
one hand, the court acknowledged that postpartum psychosis was a known
7
STATE v. KING
Opinion of the Court
and diagnosed condition long before King’s 2002 trial, and all three PCR
medical experts agreed that King could have been diagnosed in 2002. Even
so, the court found that King’s 2010 diagnosis was newly discovered
evidence, pointing to “advancements in understanding postpartum
psychosis.”4 From this judgment, the State appeals.5
DISCUSSION
¶20 Arizona Rule of Criminal Procedure 32.1(e) provides that a
convicted defendant can obtain a new criminal trial if “newly discovered
material facts probably exist, and those facts probably would have changed
the judgment or sentence.” Ariz. R. Crim. P. 32.1(e). A fact is “newly
discovered” only if (1) it was discovered after trial or sentencing, (2) the
petitioner exercised due diligence to discover it before trial, and (3) it is
material and not merely cumulative or solely for impeachment. Id. at (e)(1)–
(3); see also State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016). Our supreme court
has described this ground for post-conviction relief as “disfavored” and
warned courts to proceed “cautiously” before granting new trials based on
newly discovered evidence. State v. Serna, 167 Ariz. 373, 374 (1991).
¶21 We review the PCR court’s grant of post-conviction relief for
an abuse of discretion and its findings of fact for clear error. State v. Pandeli,
242 Ariz. 175, 180, ¶¶ 3-4 (2017). An abuse of discretion includes both legal
error and a PCR court’s failure to “adequately investigate the facts
necessary to support its decision.” Id. at ¶ 4. “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” State v. Burr, 126 Ariz. 338, 339 (1980)
(citations omitted). We defer to the PCR court’s credibility evaluations of
witnesses who testified at the PCR hearing. State v. Fritz, 157 Ariz. 139, 141
(App. 1988).
4 The PCR court described the 2010 diagnosis as a “2015 diagnosis”
based on 2015 “medical wisdom.”
5 By all accounts, the PCR court’s order represented a first. All 50
states have similar post-conviction relief rules that permit convicted
defendants to obtain a new trial based on newly discovered material
evidence. Yet no one—not the PCR court, not King and not the dissent—
has pointed to even one published or unpublished case in which any court
from any state has granted a new trial based on medical advancements in
the science of postpartum depression or psychosis.
8
STATE v. KING
Opinion of the Court
¶22 On this record, we reverse. The decision of the PCR court
misinterpreted and misapplied the requirements of Rule 32.1(e), and the
PCR court did not account for uncontested facts conflicting with the
decision.
A. King’s 2010 Diagnosis Was Not A Newly Discovered
Material Fact
1. The PCR court misinterpreted and misapplied Rule 32.1(e)
and Arizona decisional law
¶23 The State argued that King’s 2010 diagnosis was not “newly
discovered” evidence under Rule 32.1(e) because she raised a disorder that
was known to and diagnosed by “mental-health experts” before her trial.
The PCR court rejected the State’s interpretation as “unyielding,” “rigid,”
and “undu[ly] focused on the fact that postpartum psychosis was a
recognized medical condition.” Instead, the PCR court first examined the
second requirement of Rule 32.1(e) and then concluded King “met her
evidentiary burden” because “neither [her] nor her counsel, through the
exercise of reasonable diligence, could have understood and therefore
discovered her postpartum psychosis at the time of trial.”6
¶24 This was legal error. To secure post-conviction relief, King
had the burden to prove each requirement of Rule 32.1(e), beginning with
“the first requirement” that her post-conviction diagnosis was “in fact”
newly discovered and ending there if unproven. State v. Bilke, 162 Ariz. 51,
53 (1985) (describing the “first requirement” as whether the proffered
evidence is newly discovered); Serna, 167 Ariz. at 374; State v. Harper, 823
P.2d 1137, 1143-44 (Wash. App. 1992) (holding that due diligence prong
“need[] not be addressed” where new psychiatric opinion did not meet first
prong). By inverting or collapsing this first requirement and the second
requirement of reasonable diligence, the PCR court took a deep,
6 We do not suggest the first and second requirements are
unconnected. Petitioners who present a previously unknown medical
condition would necessarily satisfy the due diligence requirement. See
Amaral, 239 Ariz. at 220-21, ¶ 14.
9
STATE v. KING
Opinion of the Court
unnecessary and futile dive into whether King and her defense attorney
performed due diligence to locate the 2010 diagnosis before her 2002 trial.7
¶25 The PCR court’s approach also conflicts with Arizona
decisional law. Our supreme court has twice considered whether a post-
conviction medical diagnosis or scientific advancement presented “newly
discovered” evidence. See Amaral, 239 Ariz. 217; Bilke, 162 Ariz. 51.
¶26 Bilke came first. Petitioner Bilke was diagnosed with
post-traumatic stress disorder (“PTSD”) in 1987, more than ten years after
his 1974 conviction. The supreme court held that Bilke presented a
colorable claim for post-conviction relief based on the post-trial diagnosis,
reasoning that the disorder and now-common acronym were unknown to
medical science when Bilke was tried and convicted and that Bilke “could
not have been diagnosed until years after [his] trial.” Amaral, 239 Ariz. 217,
221, ¶ 18 (discussing Bilke).
¶27 King cannot meet the Bilke standard. The record shows that
postpartum psychosis was recognized and diagnosed by medical science
for hundreds if not thousands of years prior to King’s trial, and the disorder
had been raised as a defense by defendants accused of similar crimes for
decades.
¶28 Amaral later confirmed Bilke’s holding. Petitioner Amaral was
convicted of various felonies; each committed as a juvenile. Id. at 218, ¶ 2.
Amaral moved for post-conviction relief in 2012 based on scientific
advancements in juvenile psychology and neurology since his 1993 trial. Id.
at 219, ¶ 6. The supreme court held that “advances in juvenile psychology
and neurology” were not newly discovered evidence because “juvenile
behavioral tendencies and characteristics were generally known [before
Amaral’s trial], and the trial judge contemplated Amaral’s youth and
attendant characteristics” and “personal idiosyncrasies” at sentencing. Id.
at 219, 221, ¶¶ 8, 17.
7 The dissent contends that whether evidence is “newly discovered”
is not a “threshold question” under Rule 32.1(e), “but rather, must be
considered concurrently with the rest of the elements,” citing Bilke in
support. Infra ¶ 76 n. 17. That argument, however, conflicts with Bilke and
Amaral, neither of which envisions or articulates a free-floating balancing
test that implicates all elements at once. To the contrary, Bilke described the
“first requirement” as showing “the evidence [is] newly[] discovered.” 162
Ariz. at 53.
10
STATE v. KING
Opinion of the Court
¶29 Most important here is how Amaral framed, contrasted and
applied Bilke:
Unlike Amaral, Bilke suffered from a condition that existed at
the time of the trial but was not yet recognized by mental
health professionals and, consequently, could not have been
diagnosed until years after the trial. Thus, at the time of
sentencing, it would have been impossible for the trial judge
in Bilke to have assessed the petitioner’s actions in light of his
disorder. In contrast, Amaral’s juvenile status and
impulsivity were known at the time of sentencing and were
explicitly considered by the trial judge. Hence, his condition
was not newly discovered.
Id. at 221, ¶ 18.
¶30 Amaral does not help King’s petition. First, King and her
defense attorney in fact urged the sentencing judge in 2002 to consider her
actions in light of her disorder. Second, just as Amaral offered evidence
based on “advances in juvenile psychology and neurology” that
“supplement[ed] then-existing knowledge of juvenile behavior,” id., ¶ 17
(emphasis added), King offers “advancements in understanding postpartum
psychosis” that supplement or confirm then-existing knowledge of
postpartum behavior. Applied here, Amaral teaches that “newly
discovered” evidence:
• Does not mean broadened research into supplemental diagnostic
criteria, even if it reduces the likelihood of misdiagnosis;
• Does not mean a greater professional awareness or appreciation
of suspected risks and known mental disorders, even if this
development bolsters or perfects a previously available but
marginal defense; and
• Does not mean expanded training or the geographic assimilation
of specialized knowledge from experts in California to
generalists in Arizona, even if this development increases the
chances of diagnosis.
See, e.g., Henry v. State, 125 So. 3d 745, 750-51 (Fla. 2013) (newly discovered
evidence is not a revised medical definition drawn from “decades of
advancement in neuroscience”); Shuman, 836 N.E.2d at 1090-91 (newly
discovered evidence is not advancements reported in medical, scientific
and academic circles); McSwain, 676 N.W.2d at 258 (Murray, J., concurring)
11
STATE v. KING
Opinion of the Court
(distinguishing between newly discovered evidence and “an argument that
the materiality of the evidence is newly discovered”); State v. Fosnow, 624
N.W.2d 883, 886 (Wis. App. 2001) (newly discovered evidence is not a “new
appreciation” of known but unused evidence).
¶31 This approach accounts for real-world issues and interests,
enabling courts to balance the perpetual evolution of behavioral science
against the constitutional rights of defendants and victims, along with the
critical interest in finality. See State v. Miles, 243 Ariz. 511, 519, ¶ 35 (2018)
(Pelander, J., concurring) (allowing a petitioner to seek relief “decades later
based solely on newly discovered mental-health evidence and expert
opinions[] seems at odds with [the] interests of finality and victim rights.”);
see also 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”); State v.
Mata, 185 Ariz. 319, 337 (1996) (“If we were to accept defendant’s present
arguments, this case and others like it[] would go on indefinitely.”).8
2. Evidence is not “newly discovered” simply because it was
not introduced at trial or sentencing
¶32 The PCR court deemphasized Amaral as mere confirmation of
“well-settled principles regarding newly discovered evidence” that facts
cannot be newly discovered if already presented and considered at trial.
Amaral held, however, that “advances in juvenile psychology and
neurology” are not “newly discovered material facts” under Rule 32.1(e)
“because juvenile behavioral tendencies and characteristics were generally
known in 1993.” Amaral, 239 Ariz. at 221, ¶ 17 (emphasis added); see also
Foster v. State, 132 So. 3d 40, 72 (Fla. 2013) (“Most importantly, new research
studies are not recognized as newly discovered evidence.”).
¶33 A medical diagnosis is not new evidence under Rule 32.1(e)
merely because it was not introduced at a defendant’s trial. After all,
criminal defense attorneys have many reasons for not introducing
evidence, often purely strategic. See, e.g., Amy L. Nelson, Postpartum
8 The dissent deems Amaral less significant, countering that “[o]f
course, advancements or changes in understanding of a condition, by
themselves, cannot constitute newly discovered evidence,” but concluding
that King offered “significant advances [which] may allow the condition to
be diagnosed.” Infra ¶ 89 (emphasis added). That confuses the issue. The
diagnosis only exists because of the alleged scientific advances, which
purportedly enabled and justified the diagnosis. They cannot be separated.
12
STATE v. KING
Opinion of the Court
Psychosis: A New Defense?, 95 Dick. L. Rev. 625, 635 (1991) (warning that
“[j]udges and juries may also hesitate to acquit a woman suffering from
postpartum psychosis because there is a natural tendency to sympathize
with the deceased infant,” and “most lawyers representing women in
postpartum infanticide cases have declined to advocate for a specialized
defense based on postpartum psychosis.”).
¶34 If unused evidence is newly discovered evidence, then
criminal defendants could indefinitely preserve their Rule 32.1(e)
arguments “simply by not introducing generally known” material facts at
trial or sentencing. See Mata, 185 Ariz. at 333 (“Simply because [a]
defendant presents the court with evidence for the first time does not mean
that such evidence is ‘newly discovered.’”); Commonwealth v. Shuman, 836
N.E.2d 1085, 1091-92 (Mass. 2005) (distinguishing “newness” of evidence
from whether the evidence was presented at trial).
3. The PCR court conflated “newly discovered” evidence with
a wider acceptance or dissemination of previously available
evidence
¶35 The PCR court found the diagnosis was “newly discovered”
evidence because “advancements in understanding postpartum psychosis”
have since shown that “a combination of bipolar disorder and PTSD could
result in psychotic episodes in peripartum women like King.” The record,
however, shows this evidence was available before King’s trial from an
unknown number of medical professionals who had already made the
connection between postpartum psychosis, bipolar disorder and PTSD.
Just consider the testimony of King’s medical experts:
• Although Dr. Barnes testified that bipolar disorder has been
conclusively recognized as evidence of postpartum psychosis
since King’s trial, she acknowledged that bipolar disorder was
still a “red flag” for postpartum psychosis before King’s trial.
• Dr. Hibbert testified that the connection between bipolar
disorder and postpartum psychosis was recognized by a
definitive publication in 2007, but also testified that “a few
different studies” had made the connection before King’s trial.
• Dr. Hibbert testified that “a definite link” now exists between
trauma and postpartum psychosis. But Dr. Hibbert also testified
that mental health professionals might have previously drawn
the connection.
13
STATE v. KING
Opinion of the Court
¶36 In sum, by 2002, medical science had connected King’s
symptoms to postpartum psychosis—at least in Southern California. Even
if later confirmed, the uncontested record shows that medical science had
long suspected a link between postpartum psychosis and the
“constellation” of bipolar disorder and PTSD.
4. New experts and assimilated knowledge do not convert old
evidence into newly discovered evidence
¶37 Rule 32.1(e) demands that petitioners offer actual new
evidence to secure a new trial in post-conviction proceedings—not for PCR
counsel to unearth new experts after trial who examine the same record as
their pretrial counterparts and reach different conclusions, especially when
the petitioner could have hired these same post-conviction experts before
trial.
¶38 First, a petitioner does not get a new criminal trial “simply
because [she] found a new expert who reached conclusions different from
those of the expert appointed during trial.” Foster, 132 So. 3d at 60 (citations
omitted); Harper, 823 P.2d at 1143 (rejecting post-conviction psychiatric
diagnosis as newly discovered evidence where petitioner simply “retains a
new expert, who reviews the same evidence, and presents a new opinion”);
cf. Kreisman v. Thomas, 12 Ariz. App. 215, 222 (1970) (testimony of a new
expert witness is not newly discovered evidence). That is especially true
when, as here, the new expert was a prominent, experienced California
doctor of psychology who testified that she could have “personally”
diagnosed King with the same disorder in 2001. The record proves at most
that Dr. Barnes was more experienced and qualified in 2001 than Dr.
Rosengard, which is not a recognized legal basis for a new trial under Rule
32.1(e). Cf. Hinton v. Alabama, 571 U.S. 263, 275 (2014) (“We do not today
launch federal courts into examination of the relative qualifications of
experts hired and experts that might have been hired.”).
¶39 “[C]redible experts” often reach different conclusions based
on “good faith disagreements.” Pandeli, 242 Ariz. at 192, ¶ 74. Divergent
expert opinions are even more likely here—in the inexact and fluctuating
sphere of mental health, where existing disorders are routinely modified
and new disorders are routinely recognized, see John P. Vincent et al.,
Psychological Trauma: What Every Civil Litigator Needs to Know, 53 Hous. Law.
22, 22-23 (Aug. 2015), and where medical advancements or revised
diagnostic criteria “may mask vigorous debate within the psychiatric
profession about the very contours of the mental disease itself,” Clark v.
Arizona, 548 U.S. 735, 774-75 (2006). Just consider the conflicting opinions
14
STATE v. KING
Opinion of the Court
of King’s post-conviction experts, Drs. Hibbert and Barnes, who each
diagnosed King as suffering from postpartum psychosis in 2001 but for
different reasons. Hibbert diagnosed King as having a “brief psychotic
disorder with postpartum onset” based on the DSM-4, while Barnes
diagnosed King as suffering from a “bipolar disorder with psychotic
features” based on the DSM-5. Simply stated, the presence of dueling
expert opinions should not be confused with the “newly discovered
material facts” that guarantee a new trial under Rule 32.1(e).
¶40 Second, old evidence does not morph into new evidence after
crossing state lines. The PCR court mistook “newly discovered material
facts” for something known in California before trial that was assimilated
and became known in Arizona after trial. The record is plain and
uncontested. “With [her] expertise in this field,” Dr. Barnes said that she
could have diagnosed King as suffering from postpartum psychosis in 2001
or 2002, when Dr. Barnes worked out of her Southern California office and
already enjoyed a national reputation, having just appeared on a national
cable network.
5. A diagnosis based on then-existing but unshared facts is not
newly discovered
¶41 King’s medical experts in the PCR proceeding agreed that
medical science had long associated certain traditional symptoms with
postpartum psychosis, including hallucinations and delusions. According
to Dr. Barnes:
A reasonable clinician diagnosing Hope King in 2001
would have had a rather limited understanding of the
symptom presentation of a postpartum psychotic episode
in order to diagnose her at that time, relying
predominantly on the presence or absence of auditory
hallucinations and delusions as Dr. Steven Pitt did in his
clinical conclusions.
¶42 But King testified that she suffered those traditional
symptoms at her PCR evidentiary hearing in 2017. She recounted the
postpartum delusions and hallucinations, describing “weird [and] odd
things that would pop into [her] head.” She heard voices inside her head,
which directed her to harm the infant, and recounted a disturbing vision in
which she left the infant in the street in a stroller and “cars just running us
over and bodies, blood, everything everywhere.”
15
STATE v. KING
Opinion of the Court
¶43 And yet, when interviewed by her pretrial expert in January
2002, King denied having “auditory or visual hallucinations” and “showed
no psychotic thought process.” Only later, in 2010 and 2016, would King
share these frightening 2001 episodes with her PCR medical experts,
including the disturbing images and “evil” voices directing her to “bite” or
starve the infant. King also confided to Dr. Hibbert that she “was suicidal
[in 2001] but didn’t tell anyone.”
¶44 This uncontested record shows that King could have been
diagnosed with postpartum psychosis before her 2002 trial, even under the
“rather limited understanding of the symptom presentation” at the time,
but she denied the symptoms when examined by Dr. Rosengard in January
2002. King cannot manufacture or preserve an argument of newly
discovered evidence by selectively sharing different information with
mental health experts before and after trial. “It would work havoc on the
system if we held that information possessed by the defendant during the
trial is ‘newly-discovered’ when revealed by him after the trial.” Saenz, 197
Ariz. at 491, ¶ 13 (quoting State v. Mabry, 630 P.2d 269, 275 (N.M. 1981)). At
bottom, “[i]f anyone was in a position to provide the numerous
psychologists . . . with the background information to which defendant
now points, it was [the] defendant [her]self.” Mata, 185 Ariz. at 333 (“A
careful review of the voluminous record in this case reflects that all of the
evidence as to defendant’s history was available to defendant and [her]
counsel” from the moment of her arrest.). King prevented Dr. Rosengard
from discovering her postpartum psychosis. And her reluctance to share
these private, painful thoughts is no excuse, even if understandable.
¶45 Compounding the error, the PCR court appropriated real
meaning and significance from Dr. Rosengard’s missed diagnosis in
January 2002, finding it “highlight[s]” how the medical community lacked
the knowledge to diagnose postpartum psychosis in 2002 because it lacked
“the benefits of 2015 medical wisdom.” The PCR court reasoned that Dr.
Rosengard found no psychosis because he was without the “benefit [of]
2015 wisdom” and future advancements. So too, King’s defense attorney
“surely” could not have been “expected to” recognize the disorder when a
trained physician could not. 9
9 The PCR court did not mention Dr. Hibbert’s unvarnished criticism
of Dr. Rosengard for missing the “obvious” diagnosis in January 2002. See
Pandeli, 242 Ariz. at 180, 182, ¶¶ 4, 15; People v. McSwain, 676 N.W.2d 236,
253 (Mich. App. 2003) (“Failure to recognize a reasonably discoverable
16
STATE v. KING
Opinion of the Court
CONCLUSION
¶46 We reverse the PCR court’s order granting post-conviction
relief.
B R O W N, Judge, dissenting:
¶47 The State seeks review of the PCR court’s order (1) finding
that the diagnosis of postpartum psychosis King obtained in 2010
constitutes newly discovered evidence that probably would have changed
her 2002 jury verdict to guilty except insane (“GEI”), and (2) granting her a
new trial. After conducting an evidentiary hearing consistent with the
express mandate of this court, the PCR court issued its order, which
included various findings of fact. The State does not challenge any of those
factual findings on appeal; instead, it raises a legal issue: whether the court
erred by failing to follow State v. Amaral, 239 Ariz. 217 (2016), when it
concluded that King’s diagnosis constituted newly discovered evidence
even though postpartum psychosis was a recognized and diagnosable
condition at the time of trial.
¶48 As shown below, my analysis focuses on what the State has
actually argued in its petition for review—that Amaral precludes King’s
claim under Arizona Rule of Criminal Procedure (“Rule”) 32. I therefore
disagree with the majority’s decision to (1) analyze issues, findings, and
evidence not challenged or even mentioned by the State in its petition for
review, (2) frame the evidence in the light most favorable to the State, (3)
reweigh the evidence presented to the PCR court, and (4) disregard the PCR
court’s factual findings and credibility determinations. Because the PCR
court properly weighed the relevant facts and applied the relevant law, the
State has not demonstrated the court abused its discretion. I would
therefore accept review, but deny relief.
mental illness is not enough to require a grant of postjudgment relief,
especially a number of years later.”).
17
STATE v. KING
Brown, J., dissenting
FACTUAL AND PROCEDURAL BACKGROUND
¶49 If, as the majority claims, the law under Rule 32.1(e) is so clear
and Amaral so dispositive, there is no need for the majority’s factual
analysis, especially when the State’s petition for review of the PCR court’s
ruling does not challenge a single factual finding that court made. And
though I think much of the issue before us is a question of law, I begin by
providing a summary of the facts because the majority omits relevant
procedural events and focuses only on the evidence it thinks undercuts the
PCR court’s analysis and findings.
¶50 In 2001, King called 9-1-1 about her infant daughter, and
paramedics arrived to find the child unresponsive, pale, and barely
breathing. The child was treated for multiple serious injuries. Because
many of the injuries were in various stages of healing, the evidence
suggested they were inflicted on multiple occasions. The State charged
King with attempted second-degree murder and eight counts of child
abuse.
¶51 King was evaluated for mental health issues while she was
held before trial in the Maricopa County Jail. Although the resulting
records indicate King had various depressive and adjustment disorders,
and that bipolar and borderline personality disorders were considered, the
records do not indicate King was diagnosed with or treated for a psychotic
disorder.
¶52 Bruce Peterson, King’s lead counsel during trial and
sentencing, testified he was generally aware in 2001 and 2002 that “women
could develop postpartum mood disorders,” and that women with these
“disorders could harm their children.” Based on his experience and
meetings with King, as well as the nature of the offenses, he thought King
“may have [had] mental [health] issues that were relevant to the case.” To
determine whether he could pursue a mental health related defense and a
mitigated sentence, he retained Dr. Rosengard.
¶53 After reviewing various medical records and meeting with
King, Rosengard issued a detailed report, diagnosing King with, inter alia,
depression, “social phobia, generalized anxiety disorder, posttraumatic
stress disorder, and polysubstance abuse and dependence.” He indicated
that “[a] multidisciplinary approach to [King’s] problem would be
important,” and concluded by expressing confusion over King’s statements
regarding the abuse of her daughter.
18
STATE v. KING
Brown, J., dissenting
¶54 After consulting with Rosengard, Peterson sought out a
second expert, Dr. Levy, because, among other things, he wanted an expert
in postpartum mood disorders to determine whether King had any
“postpartum issues.” Though the record is scant as to Levy, it reflects he
completed a “postpartum evaluation,” and his invoice to Peterson shows
he was a “Diplomate in Psychiatry with Subspecialty Certification in
Forensic Psychiatry” and he reviewed multiple records “with regard to
psychiatric issues.”10 Peterson considered raising an ”affirmative defense”
but ultimately decided against it, concluding the “postpartum evaluation”
resulted in a finding that King “fell short of the diagnosis of postpartum
depression.” No evidence showed Levy diagnosed King with postpartum
psychosis or any other psychotic disorder.
¶55 At trial, King did not testify and no expert opined on her
mental health. The jury convicted King of the child abuse charges but was
unable to reach a verdict on the attempted murder charge. At sentencing,
the superior court considered King’s mental health issues that were known
at the time. The court then sentenced King to a mitigated 40-year prison
sentence, to be followed by probation for 15 years.
¶56 On appeal, this court affirmed King’s convictions and
sentences. State v. King (“King I”), 1 CA-CR 02-0889 (Ariz. App. Oct. 9, 2003)
(mem. decision). King then challenged the constitutionality of her
sentences in a PCR petition, which this court denied. State v. King (“King
II”), 1 CA-CR 05-0439-PRPC (order filed Jan. 6, 2006); Rule 32.1(e).
¶57 In 2009, Dr. Hibbert, a clinical psychologist specializing in
maternal mental health, examined King and later provided an expert
opinion regarding the possibility of postpartum mental illness at the time
of King’s criminal acts. Hibbert’s clinical evaluation report stated, “It is
clear [King] was under the influence of perinatal mental illness in
pregnancy and the months following childbirth.” The report suggested
several possible diagnoses of perinatal mental illness, including “Brief
Psychotic Disorder, with postpartum onset, moderate to severe, (or
Postpartum Psychosis),” using the Diagnostic and Statistical Manual of
10 If Levy issued a report on the postpartum evaluation, it is not in the
record before us.
19
STATE v. KING
Brown, J., dissenting
Mental Disorders (“DSM”)-IV (the DSM-V had not yet been released).11
Hibbert concluded that “King was under the influence of a severe mental
illness—Postpartum Psychosis—at the time of the incidents of 2001,
meaning she would not have been able to distinguish ‘right’ from ‘wrong,’
as she was, in essence, under the influence of a ‘temporary madness.’”
¶58 Relying on Hibbert’s opinion, King filed an amended PCR,
requesting an evidentiary hearing and a new trial on the ground that her
recent diagnosis of postpartum psychosis was newly discovered evidence
that would probably change her verdicts to GEI under A.R.S. § 13-502(A),
(C), which requires clear and convincing evidence that at the time King
committed the acts of child abuse she was afflicted with a mental disease or
defect of such severity that she did not know the criminal act was wrong.
King’s petition also alleged actual innocence and conditional ineffective
assistance of counsel.
¶59 The PCR court denied the petition without a hearing, finding
in part that the diagnosis of postpartum psychosis was not a newly
discovered material fact, and that King did not exercise due diligence in
securing the “newly discovered material facts.” This court accepted review
and granted relief in part. State v. King (“King III”), 2 CA-CR 2015-0140-PR,
2015 WL 3749686, at *5, ¶ 17 (Ariz. App. June 12, 2015) (mem. decision). We
explained that although King conceded her “postpartum psychosis was a
known medical condition . . . it does not necessarily follow that trial counsel
would have discovered the diagnosis with the exercise of reasonable
diligence.” Id. at *2, ¶ 7. Because King’s factual assertions presented a
colorable claim, we remanded to the PCR court, directing it to “conduct an
evidentiary hearing to determine whether King or her counsel in the
exercise of reasonable diligence could have discovered at the time of trial
the diagnosis of postpartum psychosis and, if not, whether presentation of
Hibbert’s testimony would probably change the verdict.” Id. at *3, ¶ 12 We
denied relief on King’s other two claims, and our supreme court denied the
State’s subsequent petition for review.
¶60 The State then retained Dr. Pitt to evaluate King. He
concluded, based on the DSM-IV, that King had “Major Depressive
Disorder, Severe, with Possible Psychotic Features, Postpartum Onset”
when she abused her daughter. He also stated that King did not have
11 Unless otherwise noted, for ease of reference, I use the term
“postpartum psychosis” throughout this dissent, recognizing that the
condition as diagnosed may be described in more precise terms.
20
STATE v. KING
Brown, J., dissenting
malingering amnesia, meaning she did not give false symptoms or grossly
exaggerate her symptoms. Pitt opined nonetheless that King’s condition
“was not of such severity that she was unable to know that her criminal acts
were wrong,” largely basing his conclusion on the statements she made and
behaviors she exhibited during police interrogation and in other situations
before trial.
¶61 In 2016, King was evaluated by Dr. Barnes, a psychotherapist
specializing in women’s reproductive mental health. She diagnosed King
as having postpartum psychosis at the time of her criminal offenses; stated
in DSM-V terms, King had “Bipolar I Disorder, with psychotic features,
with peripartum onset” and “Posttraumatic Stress Disorder [(“PTSD”)],
dissociative subtype.” Barnes expounded extensively on how the
understanding of postpartum psychosis had evolved since King’s trial and
opined that the lack of understanding affected King’s ability to obtain a
proper diagnosis before trial.
¶62 The parties submitted prehearing memoranda to the PCR
court addressing the two issues identified in King III. The King III decision
specifically directed that court to consider whether King or her counsel, in
the exercise of reasonable diligence, could have discovered the condition of
postpartum psychosis. The State, however, chose to focus its efforts
primarily on its argument, based on Amaral, that King could not prevail
because her condition was recognizable and diagnosable when she was
convicted. According to the State, and notwithstanding King III, the
supreme court’s decision in Amaral compelled the PCR court to determine
as a matter of law that King’s diagnosis could not constitute newly
discovered evidence because “postpartum psychosis was a known medical
condition at the time of her trial.”
¶63 At the evidentiary hearing, the PCR court heard testimony
from Hibbert, Barnes, and Pitt, as well as testimony from King and
Peterson.12 The State has not offered any evidentiary challenges to the
testimony presented at the four-day hearing or the numerous exhibits
admitted in evidence. Nevertheless, a brief overview of the evidence is
useful in understanding the context of the legal argument the State makes
based on Amaral.
12 Notwithstanding the seemingly narrow remand order in King III,
nothing in the record indicates the State objected to Barnes’ reports or
testimony.
21
STATE v. KING
Brown, J., dissenting
¶64 Addressing whether King could have been diagnosed with
postpartum psychosis in 2002, Pitt opined that the condition is merely “a
label” to describe a “series of symptoms that speak to psychotic features,”
and there was “nothing new or different about psychotic features in 2002
than . . . there are today.” He therefore asserted a reasonable mental health
professional in 2002 “would have considered a constellation of symptoms
that . . . included something along the lines of postpartum psychosis.”
According to Pitt, no special experience was needed to “diagnose someone
who is postpartum who becomes depressed who then may or may not have
some psychotic features,” and that even “a third-year medical student
could do this.”
¶65 By contrast, Barnes testified about the medical community’s
awareness of postpartum psychosis in 2001. Recognizing that the condition
had been observed at least since the time of Hippocrates, Barnes explained
that “in terms of symptom presentation, there have been enormous changes
and the scope of the symptoms has broadened considerably since 2001.”
Accordingly, she testified, a doctor in 2001 might have identified that a
patient suffered from a number of different issues, but he or she “wouldn’t
have concluded that [the diagnosis] was postpartum psychosis.” To
illustrate, Barnes analyzed Rosengard’s pretrial mental health evaluation of
King. Rosengard gave King “a number of different diagnoses,” but did not
(1) consider the possibility that she had a peripartum-onset mental illness,
(2) analyze the trauma in her background, or (3) discuss possible signs of
dissociation, all of which are relevant considerations for identifying
postpartum psychosis. Barnes opined that this lack of understanding about
postpartum psychosis affected King’s ability to obtain a diagnosis before
trial. For example, Barnes focused on the condition’s “waxing and waning
[symptom] presentation,” which she explained is
a very important part of . . . a postpartum psychotic episode
in that women can look very lucid in one moment, and then,
in another moment, their reality is unraveling. So it’s . . . like
women can live in two realities, two different realities
simultaneously.
. . . .
But when you look at women with postpartum psychosis,
they could look perfectly fine on the outside and you would
have no sense of what might be going on . . . inside.
22
STATE v. KING
Brown, J., dissenting
¶66 Barnes opined further that at the time of her offenses, King
suffered from dissociation and dissociative amnesia, which “were not really
part of the picture” in 2001. The understanding in 2001 was “narrow” or
“traditional,” in that it was thought that a psychotic disorder must involve
hallucinations and delusions. Barnes explained it is now understood that
the symptoms of postpartum psychosis wax and wane, and her symptoms
increased and decreased in intensity and severity. In one reality, King
appeared lucid and acted lovingly toward her child, but then in the other
reality—the dissociative episodes—she severely harmed her child. She
testified that practitioners now understand that women often do not
remember the dissociative episodes.
¶67 Barnes also opined that even though King’s psychosis was not
diagnosed before trial, King had bipolar disorder with psychotic features,
which is “significant for a diagnosis of postpartum psychosis” because of
the link between bipolar disorder and postpartum psychosis. She
explained, however, that limited knowledge of that link in the field in 2001
would have made it difficult for a clinician to use bipolar disorder to draw
a more definitive diagnosis of postpartum psychosis.
¶68 According to Barnes, King had a long history of trauma, such
as childhood sexual abuse and a traumatic birth experience in which her
placenta was ripped from the uterine wall, resulting in profuse bleeding
and a “radical abdominal hysterectomy.” Barnes testified that how this
history affected King’s mental health was not well recognized at the time of
her trial. Although King was diagnosed with PTSD at the time of trial, she
was not diagnosed with PTSD with a dissociative subtype, which, Barnes
testified, was a significant part of her postpartum psychosis. The DSM-IV,
which was used to diagnose King before trial, “did not acknowledge that
dissociation is a very important outcome of women who have experienced
trauma,” and only recently has the causal connection between trauma and
psychosis been understood. Additionally, she noted, recent research shows
that a traumatic birth experience involving hemorrhaging and a
hysterectomy is a predictor of postpartum psychosis.
¶69 Barnes added that King’s psychotic symptoms began in the
last trimester of her pregnancy, the timing of which now is considered a
precursor and significant predictor of psychotic symptoms in the
postpartum period. Barnes explained that at the time of King’s trial, onset
was believed to occur only in the postpartum period, but today, it is
understood that onset may occur in the last trimester of pregnancy. Barnes
concluded that a doctor in 2001 might have identified that a patient suffered
23
STATE v. KING
Brown, J., dissenting
from several different issues, but he or she “wouldn’t have concluded that
[the diagnosis] was postpartum psychosis.”
¶70 Hibbert explained that at the time of King’s trial, “there
simply was not enough research and provider education for many
practitioners to fully comprehend the wide range of symptoms that fall into
the category of Perinatal Mood Disorders,” and “there were few who could
have given [King] the proper evaluation she deserved” at the time of her
arrest and trial. Hibbert agreed with Barnes’ findings, describing the
symptomology of postpartum psychosis and emphasizing that the
condition may involve waxing and waning. Hibbert explained that moving
in and out of a psychotic state is significantly different than the type of
psychosis where a person continuously maintains “bizarre behavior at that
intense level.” Hibbert testified that when a mother is in the psychotic state,
she would not understand that her thoughts of harming her child or herself
were wrong.
¶71 In its comprehensive ruling, the PCR court found that King
“met her evidentiary burden . . . [and] that neither King nor her counsel,
through the exercise of reasonable diligence, could have understood and
therefore discovered her postpartum psychosis at the time of trial.” The
court also found that presenting such evidence to the jury probably would
have changed the jury’s verdicts to GEI. In reaching these conclusions, the
court weighed the credibility of Hibbert, Barnes, and Pitt and found the
opinions of King’s experts, particularly Barnes, more compelling. The court
therefore concluded King was entitled to relief under Rule 32.1 and ordered
a new trial.
¶72 The State then petitioned for review in this court, asserting (1)
the PCR court “erred by failing to follow Amaral and concluding that King’s
recent diagnoses constituted newly discovered evidence, despite the
conditions being recognized and diagnosable at the time of her trial”; (2)
the court “erred by failing to consider whether King had acted diligently in
pursuing her newly discovered evidence claim” after trial; and (3) the court
“erred by failing to make the necessary factual findings” that “King’s recent
diagnoses probably would have resulted in a guilty except insane verdict.”
ANALYSIS
¶73 Under Rule 32.1(e), King is entitled to post-conviction relief
only if “newly discovered material facts probably exist, and those facts
probably would have changed the judgment or sentence.” “[R]equests for
24
STATE v. KING
Brown, J., dissenting
a new trial based on newly discovered evidence are disfavored and should
be granted cautiously.” State v. Saenz, 197 Ariz. 487, 490, ¶ 13 (App. 2000).
¶74 In reviewing a PCR petition, we defer to “the sound
discretion” of the PCR court and we will not reverse “unless an abuse of
discretion affirmatively appears.” State v. Schrock, 149 Ariz. 433, 441 (1986).
An abuse of discretion occurs if the court “makes an error of law or fails to
adequately investigate the facts necessary to support its decision.” State v.
Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). When the PCR court conducts an
evidentiary hearing, we defer to that court’s factual findings unless they are
clearly erroneous. State v. Sasak, 178 Ariz. 182, 186 (App. 1993). It is not our
role to resolve conflicts in the evidence or to judge the credibility of the
experts or other witnesses; that role is left to the trial court. Id.; State v. Fritz,
157 Ariz. 139, 141 (App. 1988) (“The trial court is the sole arbitrator of the
credibility of witnesses.”).
¶75 These standards are critical, and from my perspective, the
outcome of this case should depend only on a reasoned interpretation and
application of Rule 32.1(e), as well as adherence to the abuse of discretion
standard of review.
¶76 Rule 32.1(e) states as follows:
Newly discovered material facts exist if:
(1) the facts were discovered after trial or sentencing;
(2) the defendant exercised due diligence in discovering these
facts; and
(3) the newly discovered facts are material and not merely
cumulative or used solely for impeachment, unless the
impeachment evidence substantially undermines
testimony that was of such critical significance that the
impeachment evidence probably would have changed the
judgment or sentence.
25
STATE v. KING
Brown, J., dissenting
If granted an evidentiary hearing, “[t]he defendant has the burden of
proving factual allegations by a preponderance of the evidence.” Rule
32.13(c).13
A. Amaral/Bilke
¶77 The PCR court’s ruling turned on its finding that, although
postpartum psychosis was a known condition at the time of King’s trial,
given the general state of practitioners’ knowledge at the time, her
symptoms would not have triggered that diagnosis, even with the exercise
of reasonable diligence. As the court put it, “in [2010] King discovered that
back in 2001 that she suffered from [a] constellation of symptoms that
resulted in postpartum psychotic episodes” and “this evidence was not
reasonably available in 2001 notwithstanding her lawyer’s diligent efforts
to discover mental-health issues.” The court based these findings on
numerous pieces of evidence, explaining in part as follows:
[T]he Court acknowledges that all 3 experts testified that it
was possible to have diagnosed King properly in the 2001
time frame. Their differences on just how reasonable it would
have been to have made that diagnosis under the 2001 state-
of-the-art diagnostic understanding is where rubber meets
the road.
While the State argued otherwise, Bruce Peterson’s
consideration and investigation actually supports this
conclusion. He consulted others in order to determine
whether he could raise the insanity defense because of
postpartum psychosis. As noted supra, he found an
insufficient basis to do so. . . . [H]is investigation and
consultation with experts reveals the 2002 misunderstanding
13 Despite how the majority may characterize these requirements
under Rule 32.1(e), supra ¶ 24, the first prong (i.e., when the facts were
discovered) is not a threshold question, but rather, must be considered
concurrently with the rest of the elements. That is particularly so when, as
here, the question about when the facts were discovered (first prong) hinges
in large part on whether the defendant acted diligently in discovering the
diagnosis before trial. The majority cites no authority to support
prioritizing the first prong as a stand-alone question, and framing the
question as “first” simply because the rule lists it first does not require
treating it as a threshold question. See State v. Bilke, 162 Ariz. 51, 53 (1989).
26
STATE v. KING
Brown, J., dissenting
of the nature of King’s condition and how that condition
impacted her ability to discern right from wrong.
The evidence presented fully supports Barnes’ opinion and
this Court’s finding that it was unreasonable to expect that
diagnosis in 2001.
The bottom line is that Dr. Barnes’ testimony and Dr.
Hibbert’s testimony on the operative factual points carry the
day. The lack of understanding of critical matters such as
trauma on the brain, PTSD and postpartum psychosis so
totally obscured the diagnosis to the point where a well-
trained professional like Dr. Rosengard failed [to] raise the
issue in any meaningful way.
¶78 Significantly, the State does not argue that any of the PCR
court’s factual findings were clearly erroneous. And contrary to the
majority’s implicit conclusion that the court “failed to “adequately
investigate the facts,” the State did not make that argument in its petition.
Our rules require an appellant’s brief to specify its “contentions with
supporting reasons” and legal authorities. See Rule 31.10(a)(7). The
corollary to that rule is that we generally do not address arguments the
parties do not raise. Moreover, the PCR court was in the best position
to―and did―consider the credibility of the conflicting expert testimony.
¶79 That being the case, I turn to the only substantive argument
the State raises, which is that the PCR court erred by failing to apply the
correct legal standard in deciding that King’s postpartum psychosis
diagnosis constituted newly discovered evidence. The State contends that
as a matter of law, under Amaral, King’s postpartum psychosis cannot be
newly discovered evidence because postpartum psychosis was known,
recognized, understood, and diagnosable at the time of her trial.
¶80 In Amaral, a 17-year-old defendant was sentenced to life
imprisonment with the possibility of parole after serving a minimum of 57.5
years. 239 Ariz. at 218, ¶¶ 1-2. More than 20 years later, Amaral filed a PCR
petition, alleging that “recent scientific findings concerning juvenile
psychology and neurology . . . were newly discovered material facts that
warranted post-conviction relief.” Id. at 219, ¶ 6. The PCR court dismissed
the petition, which this court affirmed. Id. at ¶¶ 6–7. On review, our
supreme court considered “whether these advances in juvenile psychology
and neurology constitute newly discovered evidence that, if known . . .
probably would have changed his sentence.” Id. at ¶ 8.
27
STATE v. KING
Brown, J., dissenting
¶81 Affirming the petition’s dismissal, the supreme court focused
on the facts of the case, explaining that
[t]he advances in juvenile psychology and neurology offered
by Amaral merely supplement then-existing knowledge of juvenile
behavior that was considered at the time of sentencing. As
noted by the United States Supreme Court in Roper, [such]
scientific and sociological studies simply confirmed what was
already known. Although the research itself was conducted
after . . . sentencing, the results of the research cannot
constitute newly discovered material facts because juvenile
behavioral tendencies and characteristics were generally
known in 1993, and the trial judge contemplated Amaral’s
youth and attendant characteristics . . . at the sentencing
hearing.
Id. at 221, ¶ 17 (citing Roper v. Simmons, 543 U.S. 551, 569 (2005)) (emphasis
added).
¶82 The supreme court then distinguished Amaral’s case from
Bilke, where the court ordered a new trial in the case of a defendant who
had successfully advanced a PCR claim by presenting newly discovered
evidence that he had been diagnosed with PTSD and “he had suffered from
the disorder when he committed [his] crimes.” Amaral, 239 Ariz. at 220–21,
¶ 14 (citing Bilke, 162 Ariz. at 51–52). The distinctions between the newly
discovered evidence claimed in Amaral and the evidence in Bilke were
readily apparent. In Amaral, the defendant cited developments in juvenile
psychology that merely reinforced what was known at the time of trial
about the psychology and neurology of underage perpetrators. By contrast,
the defendant in Bilke pointed to a mental-health diagnosis that was not
made until years after trial. In ticking off those distinctions, the supreme
court noted that the defendant in Bilke had a condition (PTSD) (1) “that
existed at the time of the trial” but (2) “was not yet recognized by mental
health professionals” and thus (3) “could not have been diagnosed” until
later. Id. at 221, ¶ 18.
¶83 The State argues that when the Amaral court listed these
factors that distinguished that case from Bilke, it was setting out the
elements required of any PCR claim based on newly discovered medical
evidence. But I do not read Amaral as setting down requirements for any
comparable PCR petition. Nothing in Amaral specifies that these are
conditions that must be met—in the passage on which the State relies, the
court was not fundamentally changing the law, but was simply explaining
28
STATE v. KING
Brown, J., dissenting
how the facts in Bilke were different from those in Amaral. And just because
the Amaral court distinguished Bilke in this manner does not mean our
supreme court held that a defendant’s diagnosis cannot be newly
discovered evidence if, as here, the finder of fact concluded the defendant
could not have been reasonably diagnosed with that condition before trial.
¶84 To the extent the State argues the PCR court erred because
King’s diagnosis is more analogous to that of the defendant in Amaral rather
than Bilke, I disagree. Adopting the State’s position would also conflict with
the supreme court’s analysis in Bilke. See 162 Ariz. at 53. The supreme court
in Bilke concluded the defendant “easily meets the first requirement that the
evidence be newly-discovered; his PTSD was not diagnosed until well after
his trial and was not a recognized mental condition at the time . . . . [W]hile
defendant may have been aware that his mental condition was not stable,
he was not aware that he suffered from PTSD.” Id. Although the first
sentence in this passage could be construed to require that the mental
condition may not have been “recognized” at the time, the second sentence
makes plain that the point is whether the defendant knew or should have
known he suffered from the condition—i.e., whether the condition was
reasonably diagnosable at the time of trial.14 It is also consistent with this
court’s analysis in King III, 2 CA-CR 2015-0140-PR, at *2, ¶ 9, where we
rejected the State’s argument that “the condition must be unknown to the
scientific community at the time of trial to be considered newly
discovered.”
¶85 In emphasizing this point, Bilke cited Henry, in which the
supreme court held that a plaintiff had timely filed a claim for workers’
compensation based on PTSD more than 20 years after its onset. Henry v.
Indus. Comm’n of Ariz., 157 Ariz. 67, 69–70 (1988). The basis for the supreme
court’s decision was that the claimant’s PTSD was not diagnosable at the
14 In analyzing the applicability of Amaral, the PCR court explained
that the supreme court denied relief after it “applied well-settled principles
regarding newly discovered evidence and found that the trial court already
considered these facts.” I agree. Thus, although the PCR court’s conclusion
that the existence of newly discovered evidence requires a “flexible” and
“particularized analysis . . . that considers the facts and circumstances of
each particular case” may have been inartful, read in context, it hardly
misstated the law. I view the court’s labeling as a recognition that
evaluating a colorable claim, including a diagnosis of a mental illness,
requires careful consideration of the elements set forth in Rule 32.1(e), and
nothing in Amaral changes that requirement.
29
STATE v. KING
Brown, J., dissenting
time of the injury: “We refuse to hold a claimant to the knowledge that his
job had caused a serious medical condition based on post-traumatic stress
syndrome when the condition was not diagnosable at the time he first
sought treatment.” Id. at 70. As applied here, Henry teaches that the point
is not whether medical experts had long recognized postpartum psychosis
and diagnosed it in some women, but rather, as the PCR court found, it was
not until after King’s trial that her particularized symptoms came to be
generally recognized as symptoms of postpartum psychosis.
¶86 The State points to no authority supporting the position that
just because the relevant medical field put a name to a condition long ago,
a defendant who could not reasonably have been diagnosed with that
condition at the time of trial cannot prevail in a PCR proceeding when she
later proves that newly discovered evidence (the diagnosis) shows she had
the condition. Yet under the majority’s analysis, a court must, as a matter
of law, reject any claim of newly discovered evidence if the condition was
known at the time of trial.
¶87 The State’s position, like the majority, overlooks the
established principles governing the second prong of Rule 32.1(e), which
requires consideration of whether “the defendant exercised due diligence
in discovering” the material facts. See Rule 32.1(e)(2). This element requires
a defendant to demonstrate he or she (1) could not discover the newly
discovered facts before trial through reasonable diligence, and (2) diligently
pursued a remedy under Rule 32 after trial. State v. Hess, 231 Ariz. 80, 82,
¶¶ 6–7 (App. 2012) (citing Rule 32.1(e); Bilke, 162 Ariz. at 53; Saenz, 197 Ariz.
at 489, ¶ 7). The majority’s decision to disregard the PCR court’s finding
and hold that King did not exercise due diligence because the experts
opined she “could have” been properly diagnosed before trial effectively
adds a requirement to Rule 32.1(e): “If any possibility exists a defendant
could have, but did not, discover the evidence before trial, then the claim is
barred as a matter of law.” Making that addition is not our role.
¶88 It is therefore significant the State does not challenge on
appeal the PCR court’s finding that, given the limitations of medical
experts’ understanding of postpartum psychosis at the time, King
reasonably could not have been diagnosed with that condition before trial.
When a defendant claims newly discovered evidence based on a new
medical diagnosis, the question of whether the diagnosis could have been
discovered in the exercise of reasonable diligence must be answered before
the defendant can obtain relief. To say this is not to add a requirement to
Rule 32.1(e), nor to say that it is the only factor—it is a confirmation of what
is required by the second prong of the Rule. Amaral’s condition was not
30
STATE v. KING
Brown, J., dissenting
newly discovered because his condition (his tender age) and that
condition’s behavioral implications were known and considered at
sentencing, but Bilke’s condition and the accompanying behavioral
implications could not have been known and considered at sentencing
because the condition was undiagnosable at the time of sentencing. See
Amaral, 239 Ariz. at 221, ¶ 18.
¶89 The State contends Amaral made clear that advancements or
changes in the understanding of a previously known condition do not
constitute newly discovered evidence, citing the supreme court’s statement
that “it is the condition, not the scientific understanding of the condition,
that needs to exist at the time of [trial or] sentencing.” 15 Of course,
advancements or changes in understanding of a condition, by themselves,
cannot constitute newly discovered evidence; instead, significant advances
may allow the condition to be diagnosed for a defendant who could not
have been diagnosed before trial, subject to whether the diagnosis meets
the requirements of Rule 32.1(e), including proof that the defendant acted
with due diligence in attempting to discover the diagnosis. In this case, the
PCR court weighed the evidence presented and found that trial counsel
exercised such diligence.
¶90 Although the majority discusses Amaral and Bilke, it does not
expressly respond to or resolve the State’s contention that a defendant may
never prevail on a newly discovered evidence claim based on a condition
that was recognized and diagnosable at the time of trial. But the majority
seems to take the position that because the medical field named postpartum
psychosis and identified some of its symptoms long ago, under no
circumstances can a defendant claim a post-trial diagnosis of postpartum
psychosis as newly discovered evidence, even if there have been significant
advances in what the condition entails and how its complex symptoms may
be diagnosed. If this is in fact the majority’s view of the matter, it is unclear
why the majority believes it is necessary to question the PCR court’s
decision based on theories that are not raised by the State. For, example,
the majority sua sponte declares (1) that King cannot manufacture newly
15 The supreme court made this statement in refuting this court’s focus
on the fact that scientific advances in psychology and neurology “did not
exist at the time of Amaral’s sentencing.” See Amaral, 239 Ariz. at 222, ¶ 19.
The supreme court explained that although it was true the scientific
advancements had not yet been discovered, the proper inquiry was
whether the “condition” existed at the time of sentencing, just as with Bilke,
whose PTSD condition existed at the time of trial, but had not been
discovered because it was previously unrecognized. Id.
31
STATE v. KING
Brown, J., dissenting
discovered evidence by sharing different information with mental health
experts who examined her before and after trial, and (2) she prevented
Dr. Rosengard from discovering her post-partum psychosis. Supra ¶ 44.
The majority would have no need to raise such matters if it agrees with the
State that, under Amaral, a defendant cannot as a matter of law bring a
newly discovered evidence claim based on a condition that was known at
the time of trial.
¶91 Similar to the majority’s view, the State’s argument ignores
the plain language of Rule 32.1(e), and seeks to add the additional
requirement that if the condition existed at the time of trial and could have
been discovered, a claim of newly discovered evidence fails as a matter of
law. In doing so, the State attempts to distance itself from the pretrial due
diligence requirement because, given our standard of review, it presumably
recognizes it cannot present a compelling challenge to the PCR court’s
finding that the post-partum diagnosis could not have been discovered by
King or her counsel in the exercise of due diligence. It therefore makes
sense that the State repeatedly asks us to focus only on whether post-
partum psychosis was a recognized and diagnosable condition, and avoids
the companion issue of whether the diagnosis could have been discovered
with the exercise of reasonable diligence. The State, however, does include
one sentence on the topic, asserting the PCR court “abused its discretion in
finding that King could not have discovered the diagnoses at the time of
her trial through the exercise of reasonable diligence.”
¶92 The State’s petition makes it clear that only three specific
issues were presented for our review. Supra ¶ 72. And even though the
issue of pretrial due diligence was contested before the PCR court, the State
did not include it as one of those three issues.16 The issue has therefore
been waived. See Rule 32.16(c)(4) (“A party’s failure to raise any issue that
could be raised in the petition for review or cross-petition for review
constitutes a waiver of appellate review of that issue.”). Even assuming the
State properly challenged the PCR court’s pretrial due diligence finding,
the record supports that finding.
¶93 The proper focus of the due diligence inquiry is whether the
evidence demonstrates that King and her counsel made reasonable efforts
before trial to discover the newly discovered evidence, i.e., her diagnosis of
postpartum psychosis. See State v. Turner, 92 Ariz. 214, 221 (1962) (stating
16 The State’s second issue is whether King “acted diligently” in filing
her newly discovered evidence claim, not whether she acted with due
diligence in pursuing a diagnosis.
32
STATE v. KING
Brown, J., dissenting
that the evidence must show “due diligence was used to ascertain and
produce the evidence in time for use at his [or her] trial,” and that an
account must be made of the “failure to produce the evidence by stating
explicitly the details of his [or her] efforts to ascertain and procure it”). The
majority relies on the PCR court’s finding that “all three experts testified it
was possible to have diagnosed King properly in the 2001 time frame,” but
it does not necessarily follow that King or her counsel failed to take
reasonable steps to discover her mental health condition at the time of trial.
See Saenz, 197 Ariz. at 489, ¶ 7 (“[U]nder Rule 32.1(e), a defendant must
establish that the evidence . . . could not have been discovered and
produced at trial through reasonable diligence . . . .”) (emphasis added).
Instead, whether their efforts were reasonable necessarily required a factual
determination, which is precisely what occurred here.
¶94 When we remanded for a hearing on King’s PCR petition, we
specifically directed the PCR court and the parties to address whether King
or her counsel could have discovered her mental health condition before
trial with reasonable diligence. See King III, 2 CA-CR 2015-0140-PR, at *5,
¶ 17 (remanding for evidentiary hearing); see also State v. Dogan, 150 Ariz.
595, 600 (App. 1986) (using the phrase “reasonable diligence” in articulating
Rule 32.1(e)’s requirements); State v. Mann, 117 Ariz. 517, 520 (App. 1977)
(“The court must also consider whether the defendant was diligent in
attempting to develop the new evidence prior to trial.”); Skakel v. State, 991
A.2d 414, 449 (Conn. 2010) (“Due diligence means doing everything
reasonable, not everything possible. . . . The question which must be
answered is not what evidence might have been discovered, but rather
what evidence would have been discovered by a reasonable plaintiff by
persevering application, [and] untiring efforts in good earnest.”) (citation
omitted). To say a defendant must establish that a mental health condition
was unknown, unrecognized, and not capable of diagnosis by any mental
health practitioner at the time of trial or sentencing as a prerequisite of
proving a subsequent diagnosis of the condition plainly disregards this
court’s prior ruling, which properly applied the due diligence prong of Rule
32.1(e).
¶95 Peterson testified that he believed King likely suffered from
mental health issues and he retained an expert psychologist to determine
whether an insanity defense could be raised. When this first evaluation
recommended additional testing, Peterson retained a psychiatrist to
specifically address “postpartum issues.” Notwithstanding these efforts,
neither expert at the time diagnosed King with postpartum psychosis, or
otherwise provided a non-frivolous ground for an affirmative defense
based on King’s symptomology. Thus, although the record establishes that,
33
STATE v. KING
Brown, J., dissenting
similar to the situation in Bilke, King and Peterson knew she was mentally
unstable at the time of her trial, there is no evidence that either of them
knew King suffered from postpartum psychosis at the time of trial. Cf.
Saenz, 197 Ariz. at 490–91, ¶ 13 (explaining that knowledge of evidence
precluded due diligence); State v. Jeffers, 135 Ariz. 404, 427 (“[W]here a
defendant knows of the existence and identity of a witness before trial and
makes no effort to obtain the witness’ testimony, such testimony will not
ordinarily justify a new trial.”). The State does not point to any conflicting
evidence; nor does it suggest that Peterson retained an unqualified expert
to determine whether King had a postpartum mood disorder, or that it was
unreasonable for him to rely on the information he received.
¶96 The State’s assertion that the PCR court abused its discretion
by finding that King exercised due diligence before trial fails to properly
account for the court’s uncategorical rejection of Dr. Pitt’s testimony on the
issue of whether King’s condition was readily diagnosable at the time of her
trial. For example, the PCR court was not persuaded by Dr. Pitt’s testimony
“that the differences between DSM-IV and DSM V (and the understanding
of postpartum psychosis) were mere repackaging and were not
substantive.” The court went on to say that Dr. Pitt “also unconvincingly
testified that a reasonable health-care provider would have considered a
constellation of symptoms that would have included something ‘along the
lines of postpartum psychosis,’” and observed that “Dr. Pitt did not
adequately explain just how he reached that conclusion other than to
suggest that the puzzle pieces were there because the lexicon existed.” The
court also explained that Dr. Pitt was “far too strident and too vested in the
State’s position,” noting that he “openly ridiculed Doctors Barnes and
Hibbert’s belief that postpartum issues required any specialized knowledge
at all.”
¶97 Measuring the mental health professionals’ lack of
understanding of King’s condition at the time of the trial against Peterson’s
efforts, the PCR court did not abuse its discretion by concluding that “[i]f
the medical community did not understand the complex nature of post-
partum psychotic episodes brought on by a combination of disorders,
surely her counsel could not have been expected to do so.” See Orndorff v.
Virginia, 628 S.E.2d 344, 353–54 (Va. 2006) (holding that the defendant
exercised due diligence in discovering her mental health condition, which
was discovered after trial, because when “presented with [two expert’s
opinions] that [defendant] did not have a mental disorder that might
support an insanity defense, [defendant’s] counsel reasonably relied on
those opinions and w[as] not required to seek the opinions of other
experts”). These findings, which the court made based on its careful review
34
STATE v. KING
Brown, J., dissenting
of the evidence, provided more than ample support for its finding that King
and her counsel exercised due diligence before trial in investigating a
defense based on her mental condition.
B. Post-Trial Diligence in Discovering Material Facts
¶98 The State argues the PCR court abused its discretion because
it failed to consider whether King was diligent in pursuing her claim, as
required under Rule 32.1(e). The State contends that King “never attempted
to explain” her delay in retaining Dr. Hibbert, and then Dr. Barnes, and
therefore she “failed to allege, let alone prove, that she diligently pursued
her claim.” See Rule 32.1(e)(2); Hess, 231 Ariz. at 82, ¶ 7 (explaining that the
defendant must show it diligently pursued a remedy under Rule 32). But
because the State failed to raise this argument in the PCR court, it has been
waived. See State v. Vera, 235 Ariz. 571, 573–74, ¶ 8 (App. 2014) (“[W]e
ordinarily do not consider issues on review that have not been considered
and decided by the trial court; this is particularly true when we are
reviewing a court’s decision to grant or deny post-conviction relief under
Rule 32.”).
C. Sufficiency of Findings
¶99 Finally, the State argues the PCR court “abused its discretion
by failing to make sufficient factual findings when it concluded that
evidence of King’s recent diagnoses probably would have resulted in a
[GEI] verdict.” See Rule 32.13(d)(1) (“The court must make specific findings
of fact and expressly state its conclusions of law relating to each issue
presented.”) The State contends the court improperly focused only on
determining witness credibility in accepting Dr. Barnes’ opinion that due to
her condition, King could not have appreciated the wrongfulness of her
conduct. See Pandeli, 242 Ariz. at 180, ¶ 3 (explaining that deference to the
court’s factual findings was not required where the court “made few
specific findings and failed to connect them to its conclusions”). This
argument fails to acknowledge the court’s analysis of expert testimony
offered on the issue of whether King’s diagnosis of postpartum psychosis
probably would have resulted in a GEI verdict.
¶100 As an initial matter, the court’s findings on whether the
outcome would probably have been different must be read in context with
the rest of the court’s ruling. For example, earlier in the ruling, the court
explained in part as follows:
Dr. Barnes concluded that King’s diagnosis, under the DSM-
V[], is that in 2001, she suffered bipolar disorder of a
35
STATE v. KING
Brown, J., dissenting
dissociative type with psychotic episodes. She also met the
diagnostic criteria for PTSD. . . . She further opined that:
• The symptoms included mania, confusion, cognitive
clouding, hallucinations and/or delusions,
depersonalization, dissociation, thought disorder,
memory loss and insomnia. . . .
• King suffered from postpartum psychosis in 2001 when
she seriously harmed her daughter, incidents for which
she was convicted.
....
Dr. Barnes carefully documented her findings in her report
and supported those findings based on the various clinical
evaluations of King and Dr. Pitt’s forensic evaluation. The
support for her diagnosis included her review of King’s
childhood history of trauma, drug abuse, family drug abuse,
sexual abuse, her mother’s mental illness, physical abuse and
abandonment.
She noted that King’s history included memory loss now
known to be a symptom of psychotic episodes and there was
evidence that King endured dissociative states that included
both depersonalization and derealization.
¶101 At the outset of the section of the ruling addressing the
likelihood of a different outcome, the PCR court stated that it agreed with
King’s argument “that had the postpartum evidence been presented at trial,
the result probably would have been different.” After outlining the legal
principles governing a GEI defense under A.R.S. § 13-502(A),(C), including
the defendant’s burden, the court explained in part the significance of
witness credibility in deciding this issue:
At the outset of the Court’s evaluation of the likely impact of
this newly discovered evidence, the Court wants to be clear
about it how it views Dr. Pitt’s overall testimony and
evaluation because it is here where he decidedly differs with
Doctors Barnes and Hibbert.[] Indeed, Dr. Pitt was
unequivocal and unwavering in his position that King knew
right from wrong.
36
STATE v. KING
Brown, J., dissenting
First, the Court notes that Dr. Pitt’s forensic evaluation was
exhaustive. He too had access to the same information and
reviewed all of it. Moreover, like Barnes, Dr. Pitt’s credentials
were impressive.
Nonetheless, the Court finds that clinical experience is vital to
a proper evaluation of postpartum psychosis. Stated another
way, the value arising from real-life clinical experience in
assessing and treating women with postpartum issues cannot
be understated. . . . Such hands-on experience placed Dr.
Barnes in a commanding position to offer more sound
opinions in this case. In sharp contrast, Dr. Pitt had no recent
clinical experience and, in any event, had very little clinical
experience with perinatal and mood disorders.
....
The Court finds that Dr. Pitt’s findings were predetermined
and aimed at undermining a finding that [King] did not know
right from wrong. Strangely, he recognized possible
psychotic features of King’s condition as part of the diagnosis
but still categorically rejected any suggestion that King
endured a dissociative state at the time the offenses took
place. He did so, in part, because he did not believe that the
psychosis could come and go. . . . Not surprisingly, he
disagreed with Dr. Barnes’ diagnosis of PTSD (which strongly
supports a finding that psychosis waxed and waned) and in
so doing Dr. Pitt overlooked the impact of King’s long history
of childhood abuse as a high risk factor.
Forensically, Dr. Pitt purportedly attached his opinions to
behaviors that were documented from collateral sources and
repeatedly drew inferences that the behaviors demonstrated
that King knew right from wrong. He came to this conclusion
because: (i) the very serious injuries occurred over a fairly
significant period of time; (ii) King stopped taking her
daughter to the pediatrician which he viewed as concealment;
(iii) King “deceived“ her fiancé[] by calling 9-1-1 and feigned
ignorance of why her daughter was listless; (iv) King made
false statements to medical personnel and detectives (e.g.,
King stating “all I wanted to know what is wrong with my
baby”).
37
STATE v. KING
Brown, J., dissenting
The problem with Dr. Pitt’s analysis is that he viewed these
collateral sources through a lens that presumes guilt, offered
a glowing review of the prosecution’s effort in the case and
did not meaningfully weigh the impact of the postpartum
evidence with respect to whether it could prove her
affirmative insanity defense.
....
Excluding the possibility of the waxing-and-waning nature of
the psychotic episodes, Dr. Pitt opined that if that were the
case, she would have reached out for help during the waning
periods. Oddly, he acknowledged that she did reach out but
without success—Dr. Pitt then slighted her revelation of that
effort as somehow engaging in a blame game.
Ultimately, Dr. Barnes and Dr. Hibbert’s explanations of how
the psychosis presented itself fit hand [in] glove with the
clinically documented presentation of King’s actions. The
evidence paints a clear picture that proves to this Court that
King suffered from a mental health disease or defect that
rendered her unable to discern right from wrong. The weight
of this evidence is clear and convincing.
Accordingly, the Court concludes that a jury probably would
have found King guilty except insane. The same testimony
and evidence presented to this Court would clearly and
convincingly have demonstrated to a jury that King suffered
from a mental disease or defect that rendered her unable to
tell right from wrong.
The court then concluded that a jury probably would have found King GEI
because “[t]he same testimony and evidence presented to this Court”
would have demonstrated to a jury that King “suffered from a mental
disease or defect that rendered her unable to tell right from wrong.” Unlike
the cryptic findings described in Pandeli, the PCR court here properly made
specific findings and connected them to its conclusions. See Pandeli, 242
Ariz. at 180, ¶ 3.
¶102 The State’s argument also fails to account for the PCR court’s
discretion in this type of proceeding. In an evidentiary hearing to
determine whether newly discovered evidence would probably result in a
different verdict, Hess, 231 Ariz. at 83, ¶ 11, a court must “receive evidence,
make factual determinations, and resolve material issues of fact.” State v.
38
STATE v. KING
Brown, J., dissenting
Gutierrez, 229 Ariz. 573, 579, ¶ 31 (2012). And when the new evidence relies
on expert witnesses willing to testify at a new trial, “those witnesses must
appear worthy of belief to the trial judge hearing the motion.” State v. Serna,
167 Ariz. 373, 374 (1991). Thus, the PCR court “was in a much better
position than we are to determine the weight to be given the [testimony]
and whether or not the testimony set forth . . . would probably change the
result in case of a new trial.” Id. at 375 (citing Turner, 104 Ariz. at 471–72).
¶103 In sum, the PCR court properly exercised its discretion in
weighing the testimony and ensuring sufficient facts supported its
evidentiary findings; the court did not abuse that discretion in not
addressing King’s claim with greater specificity, as its order contains
sufficient findings to facilitate our review. See State v. Tankersley, 211 Ariz.
323, 325 (2005) (“An important purpose of Rule 32.[13] is to facilitate
appellate review of superior court determinations regarding post-
conviction relief.”).
D. Conclusion
¶104 As I have discussed at length above, and contrary to the
State’s contention, Amaral and Bilke do not foreclose relief in this case. And
I further disagree with the majority’s decision to overturn the PCR court’s
findings based on its implicit belief that King should have been diagnosed
before trial. Our role is not to reweigh evidence. Sasak, 178 Ariz. at 186.
¶105 While purporting to analyze the evidence presented to the
PCR court, the majority focuses only on facts favorable to the State in
reaching different conclusions than the trial judge about the weight,
credibility, and reliability of nearly all the testimony that court heard. For
example, the State’s briefing does not anywhere address the actions
Peterson took or failed to take to discover King’s condition. Nor does the
State’s briefing reference Dr. Rosengard, and it mentions Dr. Hibbert only
in the context of procedural history; yet the majority presses points related
to these experts that the State never even mentions.
¶106 This is, of course, a difficult case, and our decision must reflect
a commitment to the sound application of unbiased review and detached
application of the rule of law. If I were the judge hearing this matter in the
PCR court, I might have come to a different conclusion. But I was not there
to hear the witnesses testify; thus, what I might have done has no bearing
on the outcome. When a case involves factual determinations, the question
has never been what I, or any other appellate judge, would do if we had
39
STATE v. KING
Brown, J., dissenting
presided at the evidentiary hearing. Instead, we defer to the PCR court’s
resolution of the factual conflicts.
¶107 On the issues raised by the State in its petition for review, the
State has not shown the PCR court abused its discretion in finding King
successfully established that her diagnosis of postpartum psychosis was
newly discovered evidence that probably would have changed her verdict.
Thus, I respectfully dissent, and I would accept review, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: JT
40