SUPREME COURT OF ARIZONA
En Banc
KENNETH PHILLIPS,
)
)
Petitioner, )
)
v.
)
)
THE HONORABLE LOUIS ARANETA,
)
JUDGE OF THE SUPERIOR COURT OF
)
THE STATE OF ARIZONA, in and for )
the County of Maricopa,
)
)
Respondent Judge, )
)
STATE OF ARIZONA,
)
)
Real Party in Interest. )
)
__________________________________)
Arizona Supreme Court
No. CV-03-0351-PR
Court of Appeals
Division One
No. 1 CA-SA 03-0201
Maricopa County Superior
Court
No. CR 02-007255
O P I N I O N
Special Action from Superior Court of Maricopa County
No. CR 02-007255
The Honorable Louis A. Araneta
VACATED; REMANDED
Susan Sherwin, Maricopa County Legal Advocate
by
Maria L. Schaffer, Deputy Legal Advocate
Attorneys for Kenneth Phillips
Phoenix
Richard M. Romley, Maricopa County Attorney
by
Paul J. McMurdie, Deputy County Attorney
and Catherine M. Hughes, Deputy County Attorney
Attorneys for the State of Arizona
Phoenix
M c G R E G O R, Vice Chief Justice
¶1
degree
The
murder
penalty.
State
and
has
charged
sexual
Kenneth
assault
and
Phillips
is
seeking
This case has not yet proceeded to trial.
with
the
firstdeath
We granted
review to consider whether the trial court judge abused his
discretion (1) by requiring the defendant to submit to a mental
health examination by the State mental health expert after the
defendant notified the State that he will call mental health
experts to testify at the penalty phase of his trial if the jury
returns
a
defendant
guilty
does
examination,
verdict
not
the
or
(2)
by
cooperate
with
the
judge
will
ordering
preclude
health-related mitigation evidence.
State’s
the
that,
if
the
mental
health
defendant’s
mental
We exercise jurisdiction
pursuant to Article VI, Section 5.3 of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) § 12-120.24 (2003).
I.
¶2
Phillips notified the State that he intends to call
Dr. Anthony Dekker, an addictionologist, and Dr. Marc S. Walter,
a neuropsychologist, to testify during the penalty phase of his
trial.
Phillips also provided the experts’ written reports to
the State.1
The State then moved to require Phillips to submit
to a mental health examination by a State-selected expert.
respondent
judge
granted
the
State’s
motion,
and
The
Phillips
informed the judge that he would not submit to the evaluation.
1
The Arizona Rules of Criminal Procedure require that, in a
capital case, the defendant shall provide to the prosecutor
“[t]he names and addresses of any experts whom the defendant
intends to call during the aggravation and penalty hearings
2
¶3
The judge then considered the appropriate sanction for
Phillips’ refusal.
After balancing “the immense gravity of the
death penalty sought by the State against the fair opportunity
to
rebut
Phillips,
mitigation
CR
from
2002-007255
the
Defendant’s
(Ariz.
Super.
experts,”
Ct.
Aug.
State
18,
v.
2003)
(minute entry), the judge issued an order precluding Phillips
from
calling
Drs.
Dekker
Phillips
filed
a
appeals,
which
declined
and
special
Walters
action
at
the
petition
jurisdiction.
We
penalty
in
phase.
the
court
of
granted
review
to
address these recurring issues of statewide importance.
See
ARCAP 23(c)(3).
II.
¶4
To
discretion,
determine
we
must
whether
balance
the
the
trial
State’s
judge
right
abused
his
rebut
the
to
defendant’s mitigation evidence, as assured by A.R.S. § 13-703.D
(Supp. 2003), with the defendant’s right to be free from selfincrimination,
as
guaranteed
United States Constitution.
by
the
Fifth
Amendment
U.S. Const. amend. V;
to
the
see also
Ariz. Const. art. 2, § 10.
_______________
together with any reports prepared excluding
statements.” Ariz. R. Crim. P. 15.2(h)(1)(c).
3
the
defendant’s
A.
¶5
Arizona’s statutory sentencing procedures permit both
the state and a defendant to rebut any information received at
the aggravation or penalty phase of a capital proceeding:
Evidence that is admitted at the trial and that
relates to any aggravating or mitigating circumstances
shall be deemed admitted as evidence at a sentencing
proceeding if the trier of fact considering that
evidence is the same trier of fact that determined the
defendant’s guilt.
The prosecution and the defendant
shall be permitted to rebut any information received
at the aggravation or penalty phase of the sentencing
proceeding and shall be given fair opportunity to
present argument as to whether the information is
sufficient to establish the existence of any of the
circumstances included in subsections F and G of this
section.
A.R.S. § 13-703.D.
¶6
The State argues that this statute requires the court
to order Phillips to submit to an examination by the State’s
expert witness because that is the only course that will allow
the
State
to
fully
rebut
Phillips’
mitigation
evidence.
In
response, Phillips contends that the Fifth Amendment grants him
an absolute right to refuse to submit to an examination by an
expert chosen by the court or the State.
¶7
The Fifth Amendment commands that no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V.
in
Estelle
v.
Smith,
As the United States Supreme Court held
the
right
4
against
self-incrimination
applies
to
statements
made
during
court-ordered
mental
examinations related to the penalty as well as the guilt phase
of a trial:
[T]he availability of the [Fifth Amendment] privilege
does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the
statement or admission and the exposure which it
invites. . . . Just as the Fifth Amendment prevents a
criminal defendant from being made the deluded
instrument of his own conviction it protects him as
well from being made the deluded instrument of his own
execution.
451
U.S.
omitted).
454,
462
(1981)
(internal
quotations
and
citations
Moreover, statements uttered by a defendant in the
context of a court-ordered psychiatric inquiry must be “given
freely and voluntarily without any compelling influences and, as
such, [may] be used [by] the State . . . at the penalty phase
only if [the defendant] ha[s] been apprised of his rights and
ha[s] knowingly decided to waive them.”
Id. at 469 (internal
quotations omitted).
¶8
When a defendant places his mental condition at issue,
however, he generally “opens the door” to an examination by an
expert selected by the state or the court.
We previously have
considered the right of the state to require a defendant to
submit to a mental health examination for use during the guilt
phase of a capital trial.
In State v. Schackart, 175 Ariz. 494,
499, 858 P.2d 639, 644 (1993), for example, defense counsel
indicated that he planned to call a psychiatrist to testify
5
regarding
killing.
the
defendant’s
mental
state
at
the
time
of
the
The State then moved to have the defendant examined by
a mental health professional appointed pursuant to Rule 11 of
the Arizona Rules of Criminal Procedure.2
court
appointed
a
psychiatrist
and
Id.
ordered
When the trial
the
defendant
to
submit to an examination with this psychiatrist, the defendant
objected,
arguing
that
ordering
him
to
submit
to
such
an
examination violated his right to be free from compelled selfincrimination.
Id. at 500, 858 P.2d at 645.
This court held
that “a defendant who places his or her mental condition in
issue and gives notice of an intention to rely on psychiatric
testimony has ‘opened the door’ to an examination by an expert
appointed on motion of the state.”
2
Id.
To hold otherwise, we
Rule 11.2(a) provides:
At any time after an information or complaint is filed
or indictment returned, any party may request in
writing, or the court on its own motion may order, an
examination to determine whether a defendant is
competent to stand trial, or to investigate the
defendant’s mental condition at the time of the
offense. The motion shall state the facts upon which
the mental examination is sought. On the motion of or
with the consent of the defendant, the court may order
a screening examination for a guilty except insane
plea pursuant to A.R.S. § 13-502 to be conducted by
the mental health expert.
In a capital case, the
court shall order the defendant to undergo mental
health examinations as required under A.R.S. § 13703.02 and 13-703.03.
Ariz. R. Crim. P. 11.2(a).
6
explained, “would deprive the state of the only adequate means
to contest the conclusions of a defense psychiatric expert.”
Id.
¶9
Phillips argues that Schackart does not apply because
the defendant there wished to use expert testimony to prove lack
of intent, rather than for mitigation purposes.
In our view,
however, the same considerations apply in both contexts.
In
both instances, requiring a defendant to submit to a courtordered
mental
examination
often
provides
the
only
way
to
maintain a “fair state-individual balance,” id., and to ensure
the
state
a
meaningful
expert testimony.
opportunity
to
rebut
the
defendant’s
We hold, therefore, that once a defendant
notifies the state that he intends to place his mental condition
at issue during the penalty phase of a capital trial, a trial
judge
mental
has
discretion
examination
to
by
order
an
the
expert
defendant
chosen
by
to
the
submit
state
to
or
a
the
court.
B.
¶10
Phillips
next
asserts
that,
if
he
must
undergo
a
court-ordered mental health examination, the results of such an
examination
should
not
be
disclosed
to
the
unless the jury returns a verdict of guilty.
State
until
and
Phillips argues
that no procedural safeguards exist to prevent the State from
misusing the results of an examination by a State expert.
7
He is
particularly concerned that if he submits to an examination by
the State’s mental health expert, the State either will use his
statements during the guilt phase or will misuse the results
during
the
sentencing
phase
of
the
trial.
To
prevent
such
misuse from occurring, Phillips urges, this court should require
that
any
report
generated
by
an
examination
of
him
by
a
government expert be filed under seal and that the result of any
examination be released to the State only in the event that the
jury reaches a guilty verdict and Phillips confirms his intent
to offer mental health evidence in mitigation.
¶11
A number of federal district courts have imposed such
a requirement.
For example, in United States v. Edelin, 134 F.
Supp. 2d 45 (D.D.C. 2001), the district court ordered that the
report of the government mental health expert be sealed and not
be discussed with either government or defense lawyers until
after the guilt phase of the trial.
Id. at 58-59.
The court
further ordered that, if the defendant gave notice, within two
days
of
the
guilty
verdict,
of
his
continued
intent
to
use
mental health information at sentencing, the court would release
the
sealed
reports.
Id.
at
59;
see
also
United
States
v.
Minerd, 197 F. Supp. 2d 272, 277 (W.D. Pa. 2002) (ordering that
the results of any examination by the government’s expert be
filed under seal and released only in the event that the jury
reaches a guilty verdict and only after the defendant confirms
8
his intention to offer mental health evidence in mitigation);
United States v. Beckford, 962 F. Supp. 748, 764 (E.D. Va. 1997)
(same); United States v. Vest, 905 F. Supp. 651, 654 (W.D. Mo.
1995) (same).
¶12
Phillips
encourages
“seal and gag” procedure.
this
court
to
adopt
a
similar
While we agree that a trial judge, in
ordering a defendant to submit to a mental health examination by
an expert of the state’s or court’s choosing, must protect the
defendant’s privilege against self-incrimination, we decline to
require the “seal and gag” procedure required by federal law.3
3
Rule 12.2(b) of the Federal Rules of Criminal Procedure
provides:
If a defendant intends to introduce expert evidence
relating to a mental disease or defect or any other
mental condition of the defendant bearing on either
(1) the issue of guilt or (2) the issue of punishment
in a capital case, the defendant must—within the time
provided for filing a pretrial motion or at any later
time the court sets—notify an attorney for the
government in writing of this intention and file a
copy of the notice with the clerk. The court may, for
good cause, allow the defendant to file the notice
late, grant the parties additional trial-preparation
time, or make other appropriate orders.
Fed. R. Crim. P. 12.2(b).
Rule 12.2(c)
provides:
(1)
of
the
Federal
Rules
of
Criminal
Procedure
(A) The court may order the defendant to submit
to a competency exam under 18 U.S.C. § 4241.
9
We agree with the State that such a procedure could severely
encumber the State’s ability to rebut the defendant’s mental
health-related mitigation evidence.
As the State points out,
the evaluation of a defendant is often the “starting point,”
rather
than
impact
of
the
an
“main
event,”
individual’s
in
mental
determining
health
the
mitigating
status.
After
an
examination, an expert frequently requests additional testing or
documentation
prosecution
to
may
assist
need
defendant’s assertions.
be
crucial
to
an
to
in
forming
investigate
an
opinion,
the
and
accuracy
of
a
Such post-examination investigation may
expert’s
ability
to
diagnose a defendant’s mental health.
accurately
assess
(B) If the defendant provides notice under Rule
12.2(a),
the
court
must,
upon
the
government’s motion, order the defendant to
be examined under 18 U.S.C. § 4242. If the
defendant provides notice under Rule 12.2(b)
the court may, upon the government’s motion,
order the defendant to be examined under
procedures ordered by the court.
The results and reports of any examination
conducted solely under Rule 12.2(c)(1) after
notice under Rule 12.2(b)(2) must be sealed and
must not be disclosed to any attorney for the
government or the defendant unless the defendant
is found guilty of one or more capital crimes and
the defendant confirms an intent to offer during
sentencing proceedings expert evidence on mental
condition.
Fed. R. Crim. P. 12.2(c).
10
and
Furthermore, Arizona’s
_______________
(2)
the
sentencing statutes direct that “[t]he penalty phase shall be
held immediately after the . . . aggravation phase . . . .”
A.R.S. § 13-703.01.F (emphasis added).
As a practical matter,
the follow-up work often required after an initial mental health
examination cannot be performed during the short recess before
the penalty phase begins.
¶13
We also doubt that most defendants would benefit from
a procedure in which neither the defendant nor his counsel could
examine
the
report
of
the
state’s
expert
witness
immediately before the penalty phase of the trial.
until
Defense
counsel, as much as the prosecutor, generally needs time to
prepare
expert
to
meet
witness;
the
opinions
defense
advanced
counsel,
as
by
much
the
as
other
the
party’s
prosecutor,
generally requires substantial time to follow up on questions
raised during the mental health examination.
we
decline
to
require
that
any
report
For these reasons,
generated
by
an
examination of the defendant by a government expert be filed
under seal or that the result of any examination be released to
the government only in the event that the jury reaches a guilty
verdict and the defendant confirms his intent to offer mental
health evidence in mitigation.4
4
gag”
Despite the considerable problems caused by a “seal and
order, a trial judge has discretion to consider that
11
¶14
The trial judge, however, must assure that an order
subjecting a defendant to a mental health examination protects
the defendant’s privilege against self-incrimination.
The judge
must fashion an order that ensures that no statement made by the
defendant during the course of the examination, no testimony by
the mental health expert based upon the defendant’s statement,
and no other fruits of the defendant’s statements may be used by
the prosecution or admitted into evidence against the defendant
except on those issues on which the defendant introduces expert
testimony during the penalty phase of the trial.
We leave to
the trial judge the decision, in the first instance, as to which
conditions must be imposed to ensure that no statements made by
a defendant will be used improperly during either the guilt or
the penalty phase of the trial.
III.
¶15
We now turn to the issue of whether a trial court may
preclude
a
defendant
from
presenting
mental
health-related
mitigation evidence at the penalty phase of his capital case
when
the
defendant
refuses
to
undergo
an
evaluation
by
the
state’s expert.
The State argues that preclusion should always
be
for
the
penalty
a
defendant’s
refusal
to
submit
to
an
_______________
procedure in the rare case in which such an order would be
appropriate.
12
evaluation
by
the
State’s
expert.
Phillips,
in
contrast,
asserts that preclusion is never an appropriate sanction.
adopt neither of these extreme positions.
judge,
in
the
appropriate
refuses
exercise
sanction,
to
cooperate
of
her
with
a
We hold that a trial
discretion,
including
We
can
preclusion,
if
court-ordered
impose
a
an
defendant
mental
health
examination.
¶16
Although the Arizona Rules of Criminal Procedure do
not directly address the sanction to apply in this instance, the
Rules do allow preclusion as a sanction.
Rule 15.7 provides
that a court may impose a sanction of preclusion if a party
fails to make a disclosure required by Rule 15.
Ariz. R. Crim.
P.
(2001),
15.7(a)(1).
pertains
to
Similarly,
examinations
of
A.R.S.
§
defendants
13-3993
who
have
which
invoked
an
insanity defense, directs a court to preclude the defendant from
offering expert testimony of his mental state if he refuses to
be examined by the state’s expert.5
Phillips’ refusal to submit
to the court-ordered examination in this instance is closely
analogous
to
Reasoning
from
the
situations
them,
and
addressed
drawing
5
upon
in
the
those
provisions.
court’s
inherent
“If a defendant in a criminal prosecution refuses to be
examined by the state’s mental health experts, the court shall
preclude the defendant from offering expert evidence of the
defendant's mental state at the time of the alleged crime.”
A.R.S. § 13-3993.B (2001).
13
power,
a
trial
court
clearly
has
discretion
to
preclude
a
defendant’s expert evidence at the penalty phase of a trial if
the defendant refuses to submit to a court-ordered evaluation.
¶17
Phillips asserts that, even if the court has authority
to preclude expert evidence, the court should instead impose a
less
onerous
sanction
than
preclusion
as
a
penalty
for
an
accused’s refusal to comply with a court-ordered examination by
the
state’s
expert.
He
suggests
that
the
court
could,
for
example, permit the state to offer evidence that the accused
refused to comply with its expert’s evaluation.
See State v.
Schantz, 98 Ariz. 200, 214, 403 P.2d 521, 530 (1965).
We doubt,
however, that such a procedure generally would give the state a
“fair
opportunity”
to
refute
a
defendant’s
claim
impairment, as required by A.R.S. § 13-703.D.
would
entirely
deprive
the
state
of
any
of
mental
The procedure
ability
to
present
expert testimony supporting a view contrary to that espoused by
the
expert
testimony
presented
on
behalf
of
a
defendant.
Furthermore, given that a defendant’s right to remain silent
includes the right not to be questioned about the exercise of
that right, Doyle v. Ohio, 426 U.S. 610, 618-19 (1976); State v.
Riggs,
189
permitting
Ariz.
the
327,
state
to
330,
942
offer
P.2d
evidence
1159,
that
1162
the
(1997),
defendant
refused to comply with a court-ordered expert evaluation could
pose constitutional problems that we need not address today.
14
¶18
Alternatively,
could
permit
the
Phillips
state’s
expert
suggests,
to
watch
the
and
trial
listen
court
to
relevant testimony and then render an opinion thereon.
the
See
Burgunder v. State, 55 Ariz. 411, 427, 103 P.2d 256, 263 (1940).
The State finds this suggestion untenable, and we agree.
the
American
Psychological
“psychologists
provide
Association’s
opinions
of
Code
the
of
Under
Ethics,
psychological
characteristics of individuals only after they have conducted an
examination
of
the
individuals
statements or conclusions.”
adequate
to
support
their
Ethical Standard 9.01(b) of the
Ethical Principles of Psychologists and Code of Conduct (2002).
Because of this requirement, the State argues, it is unlikely
that an expert would consent to testify and offer a professional
opinion based simply on hearing the testimony of the defendant’s
expert during the penalty phase of the trial.
The State further
points out that, even if it could find an expert willing to
testify
under
such
circumstances,
on
cross-examination
the
defendant could severely undermine the credibility of an expert
who
had
neither
psychological
examined
testing.
the
defendant
Moreover,
the
nor
administered
prosecution
been deprived of any opportunity to investigate
during the course of a mental health examination.
would
any
have
claims made
We agree with
the State that this alternative does not provide an adequate
opportunity to rebut Phillips’ expert testimony.
15
¶19
A trial judge may consider whether, in a particular
case, a sanction other than preclusion adequately protects the
right of the state to rebut a defendant’s testimony.
however,
also
defendant’s
has
expert
discretion
testimony
to
preclude
related
the
The judge,
use
to
mental
reasons,
we
hold
discretion
by
ordering
of
health
the
issues
raised by the defendant in mitigation.
IV.
¶20
judge
For
did
the
not
foregoing
abuse
his
that
the
trial
Phillips
submit to a mental health evaluation by the State’s expert.
also
hold
presenting
that
the
mental
trial
judge
health-related
can
preclude
mitigation
Phillips
evidence
if
to
We
from
he
refuses to comply with an order directing him to cooperate with
the State’s mental health evaluation.
¶21
The order directing Phillips to submit to the court-
ordered mental health examination did not, however, expressly
protect
Phillips’
privilege
against
self-incrimination.
We
therefore vacate the order of the trial court and remand this
matter to the trial court for further proceedings consistent
with this opinion.
____________________________________
Ruth V. McGregor, Vice Chief Justice
16
CONCURRING:
__________________________________
Charles E. Jones, Chief Justice
__________________________________
Rebecca White Berch, Justice
__________________________________
Michael D. Ryan, Justice
__________________________________
Andrew D. Hurwitz, Justice
17
