Kenneth Phillips v Hon Louis Araneta and State of Arizona
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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
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