State v. King

250 Ariz. 433

480 P.3d 1250

STATE of Arizona, Petitioner,

v.Hope Lynette KING, Respondent.

No. 1 CA-CR 17-0543 PRPC

Court of Appeals of Arizona, Division 1.

FILED February 4, 2021

WEINZWEIG, 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.

¶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 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 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 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 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 ...