                                  IN THE

 SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA,
                                Appellee,

                                     v.

                       DARRELL BRYANT KETCHNER,
                               Appellant.

                           No. CR-13-0158-AP
                         Filed December 18, 2014

           Appeal from the Superior Court in Mohave County
               The Honorable Rick A. Williams, Judge
                          No. CR200900715

   AFFIRMED IN PART; REVERSED IN PART AND REMANDED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Jeffrey A. Zick (argued), Chief Counsel, Capital Litigation Section,
Jeffrey L. Sparks, Assistant Attorney General, Capital Litigation Section,
Phoenix, for State of Arizona

David Goldberg (argued), Attorney at Law, Fort Collins, CO, for Darrell
Bryant Ketchner

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER and JUSTICES
BERCH and BRUTINEL joined.

JUSTICE TIMMER, opinion of the Court:

¶1            Darrell Bryant Ketchner was sentenced to death after a jury
found him guilty of first-degree felony murder, attempted first-degree
murder, first-degree burglary, and three counts of aggravated assault. We
have jurisdiction over his automatic appeal under Article 6, Section 5(3) of
                           STATE v. KETCHNER
                            Opinion of the Court

the Arizona Constitution and A.R.S. § 13-4031.1

                          I.     BACKGROUND2

¶2            In 1997, Ketchner began an on-and-off romantic relationship
with Jennifer, the mother of two daughters, Ariel and Kenzie. In addition,
Ketchner and Jennifer had three children together.

¶3             Beginning in 2008, Ketchner and Jennifer’s relationship
became increasingly volatile. The couple had several verbal and physical
altercations, and Ketchner made death threats against Jennifer, Kenzie, and
Kenzie’s boyfriend, Nate. Jennifer obtained orders of protection in January
2008 and in January 2009 after violent encounters between Ketchner,
Jennifer, and Kenzie that resulted in criminal charges against Ketchner. At
Jennifer’s request, the court vacated each order of protection, but Ketchner
pleaded guilty to one misdemeanor assault charge, and other misdemeanor
charges remained pending at the time of the crimes here.

¶4            On March 25, 2009, Ketchner told Jennifer that he would “slit
her throat” if she sued for child support. He came to Jennifer’s home the
next day, but she refused to let him in. Ketchner then smashed the
windshield and driver-side window of Nate’s car, which was parked in the
driveway. As a result, a criminal damage charge was filed against
Ketchner. Jennifer obtained a third protective order, which was in place
when the crimes in this case occurred. Nevertheless, Jennifer continued to
see Ketchner occasionally and had dinner with him once at his home.

¶5           On May 15, Nate was driving when Ketchner blocked the way
with his own vehicle. Ketchner jumped out, ran to Nate’s car, and tried to
open the locked driver-side door. Ketchner repeatedly yelled that he was
going to “rip [Nate’s] head off” if he did not drop the criminal damage
charge against him. He also called Jennifer “a psychotic bitch” who “was
going to get what’s coming to her.” Ketchner then punched the car door


1     We cite the current versions of statutes unless material changes have
been made since Ketchner committed the offenses.

2      “We view the facts in the light most favorable to sustaining the jury’s
verdicts.” State v. Forde, 233 Ariz. 543, 552 ¶ 2 n.2, 315 P.3d 1200, 1209 n.2
(2014) (citation omitted).
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                           Opinion of the Court

and left.

¶6           On July 2, Ketchner approached a marked patrol car occupied
by Officer Kunert and said he wished to review a police report concerning
criminal charges against him that he believed might be dropped soon.
Officer Kunert told Ketchner how to obtain the report, and Ketchner left.

¶7            Two days later, Jennifer and her family celebrated a
daughter’s birthday without Ketchner, who had been told that he could not
have the children that day. Later that evening, Jennifer and Ariel sat at the
kitchen table while Kenzie went into a bedroom with her younger siblings
and Nate. A few minutes later, as Nate was walking back toward the
kitchen, Ketchner walked in through a side door. Jennifer moved to the
living room, screaming, “No, no, Darrell, no.” Ketchner then grabbed her
by the hair and began striking her. Nate retreated into a bedroom and then
fled. Meanwhile, Kenzie and her younger siblings escaped the home
through a bedroom window.

¶8            Ketchner pursued Jennifer outside to the driveway, where she
screamed, “He’s trying to kill me, he’s stabbing me,” and “Darrell, get out
of the house.” A neighbor saw Ketchner beating Jennifer, who was lying
on the driveway, and yelled, “Darrell, get off of her.” Ketchner stepped
back, looked at the neighbor, and then ran back into the house. Once inside,
he went toward Jennifer’s bedroom, where she kept a gun. Ketchner came
back outside, walked to where Jennifer was lying, and shot her in the head.
Neighbors called 911, and Ketchner ran off.

¶9            Law enforcement and emergency personnel arrived in
minutes. They found Ariel lying in a pool of blood in Jennifer’s bedroom.
Ketchner had stabbed her eight times, and she later died. Jennifer survived
her injuries but had no memory of the attacks.

¶10           Police searched the surrounding area but could not find
Ketchner that night. The next morning, police found him lying on a golf
course with Jennifer’s loaded gun and a bag of items that included sex toys,
pornographic movies, clothing, zip ties, and medicines.

¶11          A grand jury indicted Ketchner on seven counts: first-degree
murder, attempted first-degree murder, three counts of aggravated assault,
first-degree burglary, and misconduct involving weapons. Ketchner

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                            Opinion of the Court

pleaded guilty to the weapons charge and began serving a fifteen-year
sentence.

¶12          A jury convicted Ketchner on the remaining six counts. The
jury found that Ketchner had committed felony murder but did not reach a
consensus on premeditated murder. After finding three aggravating
circumstances and then considering evidence in the penalty phase, the jury
determined that Ketchner should be sentenced to death. The trial court
subsequently sentenced Ketchner to death for Ariel’s murder and imposed
prison sentences totaling seventy-five years for the non-capital counts.

                           II.     DISCUSSION

                            A. Profile Evidence

                              1. Admissibility

¶13           At trial, the State introduced expert testimony from Dr.
Kathleen Ferraro, a sociologist who specializes in domestic violence issues,
to educate the jury about domestic violence patterns and general
characteristics exhibited by domestic violence victims and abusers.
Ketchner argues, as he did before the trial court, that Dr. Ferraro
impermissibly created a “profile” of domestic abusers. We review the trial
court’s ruling permitting this testimony for an abuse of discretion, see State
v. Boyston, 231 Ariz. 539, 544 ¶ 14, 298 P.3d 887, 892 (2013), which can
include an error of law, State v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150
(2006).

¶14          Dr. Ferraro testified about characteristics common to
domestic violence victims and their abusers, many of which matched the
evidence in this case. Notably, Dr. Ferraro testified about “separation
assault”:

              Q.     What is separation assault?

               A.    When someone decides to leave a violent
       relationship is a very dangerous time, because then the abuser
       feels their control has—they’ve lost their control and they’ll
       use violence. It’s a very high risk period for homicide when
       a person does leave the relationship. And it’s another aspect

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                            Opinion of the Court

       of why people go back again, because they’re not safe just
       because they leave the relationship.

Dr. Ferraro then described risk factors for “lethality” in an abusive
relationship: presence of a gun in the house, stepchildren in the home, prior
threats to kill, drug and alcohol use, forced sex, and strangulation.

¶15            Profile evidence tends to show that a defendant possesses one
or more of an “’informal compilation of characteristics’ or an ‘abstract of
characteristics’ typically displayed by persons” engaged in a particular
kind of activity. See State v. Lee, 191 Ariz. 542, 544–45 ¶ 10, 959 P.2d 799,
801–02 (1998) (quoting Florida v. Royer, 460 U.S. 491, 493 (1983); Reid v.
Georgia, 448 U.S. 438, 440-41 (1980)) (describing drug-courier profiles).
Although there may be legitimate uses for profile evidence, such as at
suppression and probable cause hearings when the justification for making
a stop or arrest is at issue, profile evidence may not be used as substantive
proof of guilt because of the “risk that a defendant will be convicted not for
what he did but for what others are doing.” Id. at 545 ¶¶ 11–12, 959 P.2d at
802 (quoting State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.
1991)).

¶16            The State disputes that Dr. Ferraro offered profile evidence,
characterizing her testimony as describing patterns in abusive relationships
rather than relating general characteristics of domestic abusers. According
to the State, “this testimony was not used to show that Ketchner was guilty
because he fit a domestic abuser profile, but rather to show that the
relationship between [Jennifer] and Ketchner was in many ways typical of
relationships involving abuse.”

¶17            Although the admissibility of profile evidence in the context
of domestic violence is an issue of first impression in Arizona, other courts
have addressed the issue. In Ryan v. State, 988 P.2d 46 (Wyo. 1999), the jury
in a first-degree murder trial heard extensive evidence that the defendant
physically abused his wife in the months leading to her murder, that he
demonstrated jealous and controlling behavior toward her, and that he and
his wife had separated a few weeks before the murder. Id. at 51–52. An
expert witness testified that “separation violence” occurs when an abuser
commits extreme acts of violence in an effort to assert control over his or
her partner after their relationship has ended. Id. at 53. The Wyoming
Supreme Court concluded that, although admission of the evidence was

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harmless in that case, this testimony was improper profile evidence that
implicitly invited the jury to infer criminal conduct based on the described
characteristics. Id. at 56–57. The court did not explicitly identify the
grounds for its decision, but it relied on cases that articulated three bases
for excluding profile evidence as substantive evidence of guilt: that the
evidence lacked relevance, that its probative value was substantially
outweighed by its prejudicial effect, and that it constituted impermissible
character evidence. Id. at 55.

¶18            Other courts have likewise found such profile evidence
inadmissible. See Brunson v. State, 79 S.W.3d 304, 312–13 (Ark. 2002)
(relying on Ryan to reverse a conviction after admission of testimony from
a domestic violence expert regarding a profile of batterers who become
murderers); Parrish v. State, 514 S.E.2d 458, 463 (Ga. Ct. App. 1999) (holding
that expert’s testimony about typical characteristics of a batterer
improperly placed defendant’s character in issue). Courts have also
precluded profile evidence relating to “battering parents,” see
Commonwealth v. Day, 569 N.E.2d 397, 399–400 & n.2 (Mass. 1991); Duley v.
State, 467 A.2d 776, 779–80 (Md. Ct. Spec. App. 1983), and persons who
sexually abuse children, see Hall v. State, 692 S.W.2d 769, 773 (Ark. Ct. App.
1985); State v. Maule, 667 P.2d 96, 99 (Wash. Ct. App. 1983). Ryan and like
cases are consistent with this Court’s decision in Lee that profile evidence
should not be introduced as substantive evidence of guilt.

¶19            Dr. Ferraro’s testimony about separation violence and
lethality factors was inadmissible profile evidence. This evidence did not
explain behavior by Jennifer that otherwise might be misunderstood by a
jury; indeed, the nature of her abusive relationship with Ketchner was
uncontested. Cf. State v. Salazar-Mercado, 234 Ariz. 590, 594 ¶ 15, 325 P.3d
996, 1000 (2014) (noting that expert testimony about general behavior
patterns of child sexual-abuse victims is permitted when helpful for a jury
to understand the evidence). Rather, Dr. Ferraro’s testimony predicted an
abuser’s reaction to loss of control in a relationship. There was no reason
to elicit this testimony except to invite the jury to find that Ketchner’s
character matched that of a domestic abuser who intended to kill or
otherwise harm his partner in reaction to a loss of control over the
relationship. The trial court thus erred by permitting Dr. Ferraro to opine
about separation violence, lethality factors, and any characteristics common
to domestic abusers.


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                           STATE v. KETCHNER
                            Opinion of the Court

                        2. Harmless Error Review

¶20            The admission of Dr. Ferraro’s testimony requires reversal of
Ketchner’s convictions and sentences unless the error was harmless. See
State v. Henderson, 210 Ariz. 561, 567 ¶ 18, 115 P.3d 601, 607 (2005).
“Harmless error review places the burden on the [S]tate to prove beyond a
reasonable doubt that the error did not contribute to or affect the verdict or
sentence.” Id. (citation omitted). Notably, the State failed to argue in its
brief that the error was harmless.

¶21           The only charges in dispute at trial were first-degree murder
and burglary. Ketchner did not contest that he assaulted Jennifer and
assaulted and killed Ariel. But he claimed that the State had failed to prove
that he premeditatedly murdered Ariel or committed burglary, the
predicate charge for felony murder. Because the jury did not find Ketchner
guilty of premeditated murder, we must decide whether the State has
demonstrated beyond a reasonable doubt that the profile evidence did not
contribute to or affect the felony-murder verdict.

¶22            As the State acknowledged at oral argument before this
Court, the prosecutor did not argue that Ketchner remained unlawfully in
Jennifer’s home with the intent to commit a felony. Instead, the key factual
dispute relating to the burglary charge was whether Ketchner entered
Jennifer’s home intending to commit a felony or instead to have consensual
sex with Jennifer. The prosecutor argued that Ketchner entered to kill
Jennifer “to take control of the family that he was losing.” Defense counsel
countered that Ketchner entered, possibly high on methamphetamine,
expecting to have sex. Counsel further maintained that after Ketchner saw
Nate, a quarrel erupted that sparked the violent events, and therefore
Ketchner was guilty of only second-degree murder. Evidence supported
both scenarios, and the trial court instructed the jury on first-degree murder
and the lesser-included offense of second-degree murder. State v. Vickers,
159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989) (“The court must instruct the
jury on every lesser-included offense to the one charged if the evidence
supports the giving of the instruction.”).

¶23            Dr. Ferraro’s profile evidence provided an expert opinion
about how abusers who have lost control of a victim react, inviting the jury
to conclude that Ketchner went to Jennifer’s home that evening intending
to either kill or harm her to regain control of his family. The prosecutor

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                           Opinion of the Court

repeatedly referred to this “control” motive as a theme in his opening
statement and closing argument:

             They were moving on. They were happy. He had
      lost control, and that night he decided to take control. That
      night he decided to fulfill his threats, and that night he was
      there to kill. . . .

              Darrell Bryant Ketchner came to [Jennifer’s house] to
      kill, to take control of the family that he was losing. The
      family that had shut him out. . . .

             Darrell Ketchner had come there to kill, to take
      control of this family that he was losing. . . .

              The defendant was angry. . . . Because they are not
      letting him back in where he has always been allowed back.
      He is losing his control. . . .

             The defendant no longer had control of her, of his
      kids, of their life. . . .

             They were moving on. They were strong. And he
      had lost control. And that night he decided to take that
      control back. He decided to kill, and he did. . . .

             On that night, Darrell Ketchner entered into the
      house . . . knife in hand, dark clothes, immediately attacking,
      taking control of the family that was shutting him out, the
      family he was losing. . . .

            He was losing his family. He was losing control. He
      was losing it.

¶24           The prosecutor emphasized the profile evidence by pointing
out Dr. Ferraro’s testimony to the jury as aiding their understanding of
domestic violence “commonalities” and “patterns,” including separation
violence. The prosecutor then related these patterns to the parties’
relationship in this case and described the “lethality” factors present — gun
in the home, stepchildren in the home, prior threats to kill, and drug use —

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                           Opinion of the Court

and impliedly asked the jurors to find that Ketchner acted in conformity
with the abuser profile.

¶25           Because the profile evidence provided an expert opinion on a
key issue before the jury—whether Ketchner entered Jennifer’s house with
the intent to commit a felony—the State has not proved beyond a
reasonable doubt that the evidence did not contribute to or affect the jury’s
verdict on the felony murder and burglary counts. For this reason, we
reverse the felony murder and burglary convictions and resulting
sentences.

¶26          The error, however, is harmless as to the convictions and
sentences for aggravated assault and attempted first-degree murder.
Whether Ketchner entered Jennifer’s house with the intent to commit a
felony was not relevant to these offenses, and the evidence that he
committed those offenses was uncontested.

                          III.   CONCLUSION

¶27          We reverse Ketchner’s convictions and sentences for first-
degree murder and first-degree burglary and remand for a new trial. We
affirm Ketchner’s convictions and sentences on three counts of aggravated
assault and one count of attempted first-degree murder.




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