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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-09-0133-AP Appellee, ) ) Maricopa County v. ) Superior Court ) No. CR2005-114414 DONALD DAVID DELAHANTY, ) ) Appellant. ) ) O P I N I O N __________________________________) Appeal from the Superior Court in Maricopa County The Honorable Warren J. Granville, Judge AFFIRMED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Jeffrey A. Zick, Assistant Attorney General Attorneys for State of Arizona Phoenix MICHAEL J. DEW Phoenix Attorney for Donald David Delahanty ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 murder, Donald David Delahanty was convicted of first degree attempted arson, conspiracy to commit first murder, and solicitation to commit first degree murder. degree He was sentenced to death for the murder and to prison terms for the other offenses. We have jurisdiction over his appeal under Article VI, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2010).1 FACTS AND PROCEDURAL BACKGROUND2 I. ¶2 David On May 10, 2005, Delahanty shot Phoenix Police Officer Uribe three times in the head and neck, killing him. Officer Uribe, driving a marked patrol car, had stopped a car driven by Christopher Wilson. Delahanty was in the front passenger seat of the car and John Armendariz sat in the back seat. As Wilson sped from the scene, Delahanty said I just shot a cop ; we got to burn the car. car, Delahanty unsuccessfully After Wilson stopped the attempted to destroy it by shooting its gas tank. ¶3 Delahanty and Wilson were charged with first degree murder. Wilson pleaded guilty testified against Delahanty. to second degree murder and While awaiting trial, Delahanty sent letters to a girlfriend seeking to have Wilson and Wilson s mother killed. ¶4 After conviction, jury trial on aggravation. Delahanty and the State waived a The trial judge found that Delahanty had been convicted of serious offenses committed on the same                                                              1 This opinion cites the current version of statutes that have not materially changed since the events at issue. 2 We view the facts in the light most favorable to upholding the verdicts. State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180 n.1 (2010). 2  occasion as the homicide, A.R.S. § 13-751(F)(2), and that the victim was a peace officer killed while performing official duties, A.R.S. § 13-751(F)(10). ¶5 Shortly after the penalty phase began, sought to waive presentation of mitigation. appointed Dr. Bruce Kushner, a Kushner s report, the court The trial judge psychologist, whether Delahanty was competent to do so. concluded Delahanty to determine After receiving Dr. that Delahanty had knowingly, intelligently, and voluntarily waived his right to present mitigation. The jury subsequently determined that Delahanty should be sentenced to death. II. A. ¶6 ISSUES ON APPEAL Prescreening Evaluation The State filed its notice of intent to seek the death penalty in September 2005. The trial court failed to order a competency prescreening, and Delahanty did not object or himself request one. He now claims that the court erred in not ordering a competency prescreening. Because Delahanty did not object below, he must show both that fundamental error exists and that the error in his case caused him prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005). ¶7 754(A) When the State seeks the death penalty, A.R.S. § 13provides psychologist or that the superior psychiatrist to 3  court conduct shall a appoint a prescreening evaluation to determine whether there is a reasonable basis to order further examination of the defendant s competence to stand trial. Because the statutory language is mandatory, see State v. Harrod, 218 Ariz. 268, 277 ¶ 28, 183 P.3d 519, 528 (2008), the superior court erred in not ordering an evaluation, cf. State v. Armstrong, 218 Ariz. 451, 458 ¶ 15, 189 P.3d 378, 385 (2008) (finding error in failure to order statutorily required mental retardation prescreening). ¶8 However, Delahanty cannot establish fundamental error. A competency hearing is required only if on the basis of the facts and circumstances known to the trial judge, there was or should have been a good faith doubt about the defendant's ability . . . to participate intelligently in the proceedings. State v. Cornell, 179 Ariz. 314, 322-23, 878 P.2d 1352, 1360-61 (1994) (internal citation and quotation marks omitted); see also Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001) (finding competency hearing required if the evidence raises a bona fide doubt about the defendant s competence to stand trial ). critical inquiry is whether [the defendant] has The sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well him. as factual understanding of the proceedings against Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam); see also Ariz. R. Crim. P. 11.1. 4  ¶9 The record is replete with evidence that Delahanty understood the proceedings against him and was able to assist in his own defense. a motion to Delahanty testified in a pre-trial hearing on dismiss, filed a pro se motion for hybrid representation on the attempted arson count, and spoke directly with the trial judge about an alleged conflict of interest with counsel. The trial court observed Delahanty throughout the trial and characterized his behavior as appropriate. ¶10 Delahanty nonetheless contends that the trial court s appointment of a psychologist in connection with his waiver of mitigation and the report of Dr. Joseph Wu submitted at sentencing on the non-capital counts raised a bona fide doubt as to his competence. We disagree. Before ordering Dr. Kushner to evaluate Delahanty, the trial court made clear that it had no doubts about Delahanty s ability to understand the proceedings, but simply wanted to make consequences of the waiver. sure that he understood the Cf. Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (noting that competency involves the defendant s general ability to understand proceedings, but the purpose of the knowing and voluntary inquiry . . . is to determine whether the defendant consequences marks actually of omitted)). a does particular Dr. understand decision ) Kushner 5  the significance (internal concluded that and quotation Delahanty understood the consequences of waiving mitigation, and nothing in his report raised any doubt as to Delahanty s competence. ¶11 Nor conclusion. trauma to reduces does Dr. Wu s report suggest a contrary Dr. Wu opined that Delahanty suffered from physical the the brain ability violent urges. and of that an brain damage individual to of that control nature impulsive Volatility, however, should not be equated with mental incompetence to stand trial. Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000). ¶12 Accordingly, fundamental error. Delahanty has failed to establish We nonetheless caution all participants in a capital murder trial - defense counsel, the State, and the trial judge that a competency prescreening is required unless waived, even when the defendant does not request one. B. ¶13 Cross-Examination on Psychiatric History During a police interview several days after the shooting, Wilson said he had not been taking certain prescribed medications. After reviewing records from this interview, Correctional the Health defense obtained Wilson s Services ( CHS ). These records indicate that Wilson told CHS staff that he had been diagnosed with schizophrenia in Indiana, but they do not contain an independent diagnosis confirmation of any previous diagnosis. 6  of schizophrenia or a ¶14 The State moved in limine to preclude Delahanty from inquiring into Wilson s mental health history at trial, arguing that no evidence suggested that mental disease affected his ability to perceive and relate events and that discussing mental health would confuse and unduly prejudice the jury. responded, attaching Statistical Manual of an entry Mental from Disorders the Delahanty Diagnostic which stated and that schizophrenia can cause delusions and hallucinations. ¶15 Delahanty supplemented the response with a report from Dr. George DeLong, a clinical psychologist, who noted that in the CHS records, Wilson report[ed] that he has been diagnosed with Schizophrenia. Dr. DeLong concluded, however, that Wilson s use of drugs throughout his childhood and adult life confounds the ability of any practitioner to make a diagnosis of Schizophrenia as an independent illness in this case. Dr. DeLong further noted that Wilson had a number of conditions and/or symptoms that research conclusively demonstrates to negatively impact a person s abilities to attend, concentrate, and recall. ¶16 The trial court denied the motion in limine in part and granted it in part, stating as follows: The Court finds that the ability to perceive is always a relevant fact. The Court also recognizes under [Rule] 403 issues of confusion. The Court would allow either party to elicit that Mr. Wilson . . . had been prescribed medicine May 10th, 2005, and he was on it 7  or not on it, and what he self perceives his ability to perceive was. The Court would not admit any testimony by any other lay person in terms of any diagnosis, effects of any particular medicine, but would allow any percipient witness to testify regarding the demeanor, ability to perceive of Mr. Wilson, during the relevant period . . . . There will be no evidence regarding schizophrenia. The Court finds insufficient proffer of what impact, if any, a diagnosis of schizophrenia has on a witness ability to perceive or relate events. During cross-examination, Wilson testified that he had stopped taking his medications a month before the murder because they were too expensive, but that his memory was not affected. ¶17 Delahanty contends that precluding evidence of Wilson s alleged schizophrenia denied him a fair trial. We review limitations on the scope of cross-examination for abuse of discretion. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). ¶18 Evidence of a witness s psychological history may be admissible when it goes to [his or] her credibility. States v. Sasso, 59 F.3d 341, 347 (2d Cir. 1995). United However, recognizing that [m]any psychiatric problems do not affect a witness s credibility or capacity to observe and communicate, we have held that the psychiatric history of a witness may be excluded under Arizona Rule of Evidence 403 unless the proponent make[s] an offer of proof showing how it affects the witness s ability to observe and relate 8  the matters to which he testifies. Zuck, 134 Ariz. at 513, 658 P.2d at 166 (upholding exclusion of evidence of paranoid schizophrenia). cases take a schizophrenia seemingly diagnosis broader is witness s credibility. approach, generally Some federal suggesting admissible to that a attack a See, e.g., United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001) ( [T]he decisions of this and other circuits stand for the general principle that a diagnosis of schizophrenia . . . will be relevant, unless the diagnosis is too remote in time from the events alleged in the indictment. ). ¶19 In this schizophrenia suggesting case, presented. that Wilson however, The there only suffered was no evidence from in expert and the only mental the schizophrenia unconfirmed statement he made to a CHS employee. defense diagnosis health of record was an Dr. Delong, a professional to address the issue, concluded that Wilson s history confounds the ability of Schizophrenia. any practitioner (Emphasis added.) to make a diagnosis of Delahanty did not request an independent examination of Wilson. Moreover, although nothing in the trial court s order prevented Dr. DeLong from testifying about Wilson s alleged cognitive deficiencies, Delahanty chose not to call Dr. DeLong as an expert witness. ¶20 Wilson was subjected to lengthy cross-examination about his credibility, including extensive reference to his plea bargain. See, e.g., United States v. Rivera-Santiago, 872 F.2d 9  1073, 1085 (1st Cir. 1989) (upholding trial court s exclusion of evidence of a witness s psychiatric evaluation when the witness received a complete and thorough grilling by defense counsel on all matters that properly went to her credibility ). More importantly, Wilson was not the only eyewitness to the murder. His account was substantially similar to that of Armendariz. It thus seems quite unlikely that his testimony resulted from a schizophrenic delusion. ¶21 On this record, the trial court did not abuse its discretion by precluding Delahanty from mentioning schizophrenia during Wilson s cross-examination. C. Lesser-Included Offense Instructions ¶22 Delahanty requested jury instructions on the lesser- included offenses negligent homicide. that there offense. are of second degree murder, manslaughter, and The trial court denied the request, stating no facts supporting any We review for abuse of discretion. lesser included State v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006). ¶23 In a first degree murder trial, instructions for second degree murder, manslaughter, or negligent homicide are required when supported by the evidence. State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d 1184, 1195 (1989), disapproved on other grounds by State v. King, 225 Ariz. 87, 90 ¶ 12, 235 P.3d 240, 243 (2010). To determine whether sufficient evidence existed 10  to require examine a lesser-included whether distinguishing Bearup, 221 the jury element Ariz. could of 163, offense rationally the 168 ¶ instruction, greater 23, 211 fail to must 684, find the State offense. P.3d [we] v. 689 (2009) (internal quotation marks omitted). ¶24 Delahanty was convicted under A.R.S. § 13-1105(A)(3), which provides that a person commits first degree murder if, [i]ntending or knowing that the person's conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty. He contends that the jury should have been instructed on second degree murder both because he may have only intended to inflict serious physical testimony about injury, his A.R.S. freaking § 13-1104(A)(2), out during the and because traffic stop suggests that he only acted recklessly, A.R.S. § 13-1104(A)(3). He further appropriate argues because that of his a manslaughter confused instruction emotional state was and panicked response to being stopped. ¶25 The evidence does not support Delahanty s contentions. Delahanty shot Officer Uribe three times at close range in the face and neck during a routine traffic stop, actions almost certain to bring about death. Officer Uribe was in full uniform and driving a marked police cruiser with its lights engaged. Delahanty undoubtedly knew he was shooting a police officer. 11  ¶26 Moreover, Delahanty shot Officer Uribe after telling Armendariz that if he was ever pulled over by an officer, I would shoot him, I would kill him, and after telling another friend that he would shoot to kill when he got pulled over. Delahanty s previous statements did not suggest anything other than intent to kill. There was no evidence that Delahanty acted in a simply reckless manner. Cf. State v. Ovind, 186 Ariz. 475, 477, 924 P.2d 479, 481 (App. 1996) (finding killing committed knowingly when defendant threatened victim, shot him in the head, and left a note relating what she had done). ¶27 On this evidence, no rational jury could have found that Delahanty committed a lesser-included offense. trial court did not err in declining the Thus, the requested defense instructions. D. ¶28 Waiver of Mitigation After opening statements on the first day of the penalty phase, Delahanty s counsel told the trial judge that his client was seriously considering waiving mitigation. then requested a competency evaluation. Counsel The court stated that in the opening statements for the penalty phase, [defense counsel] had proffered that there will be at least three different expert witnesses testifying about mental health issues. Because of that, and solely because of that, and not because of any belief that you re not your inability 12  to understand what s going on right now, the Court will order a Rule 11 examination of you. ¶29 The court then Delahanty. Based on Delahanty competent ordered Dr. to Dr. Kushner s render any Kushner report, decision to the evaluate court with found respect to mitigation. ¶30 Delahanty now argues that the trial court erred because Arizona Rule of Criminal Procedure 11.3(a) requires the court to appoint at least two mental health experts to examine the defendant and to testify regarding the defendant s mental condition when it determines that reasonable grounds for an examination exist. Delahanty did not raise this argument Rule 11 below, so we review for fundamental error. ¶31 Although the trial judge referred to when appointing Dr. Kushner, it is not clear that the appointment was made pursuant to that Rule. Rule 11.2(a) provides for an examination as to whether a defendant is competent to stand trial. The superior court explicitly stated that it had no question as to Delahanty s competence, and plainly ordered the evaluation to determine whether he was acting knowingly intelligently in waiving his right to present mitigation. Godinez, competence 509 to U.S. at stand 401 trial n.12 (noting and competence constitutional rights). 13  distinction to waive and See between certain ¶32 Even assuming the trial court did order a Rule 11 evaluation, there was no reversible error. Under Rule 11.2(c), the court may order that a preliminary examination be conducted pursuant to A.R.S. § 13-4503C to assist the court in determining if reasonable grounds exist to order further examination of the defendant. Section 13-4503(C) in turn provides that [t]he court may request that a mental health expert assist the court in determining defendant. if reasonable grounds for examining a Further examination is required only when the court finds such reasonable grounds. ¶33 exist Ariz. R. Crim. P. 11.3(a). Dr. Kushner s examination was, at most, the functional equivalent of the preliminary examination contemplated by Rule 11.2(c) and § 13-4503(C). grounds for further His report did not suggest reasonable examination. Rather, he concluded that Delahanty understood the implications of waiving mitigation and was able to pathological thought mitigation, Dr. rationalize processes. Kushner his choice Delahanty reported, outside decided because his of to any waive family s participation would cause more angst and the penalty phase would be difficult for Officer Uribe s family. ¶34 The record amply supports the trial court s finding that Delahanty knowingly and intelligently waived mitigation. In addition to Dr. Kushner s report, the court had before it a written waiver, prepared by defense 14  counsel and signed by Delahanty, which fully outlined the mitigation evidence that could have been presented. E. Issues Raised to Avoid Federal Preclusion ¶35 To avoid preclusion, Delahanty raises eighteen issues that he states have been rejected in decisions by the Supreme Court of the United States or this Court. These issues and the decisions Delahanty identifies as rejecting them are listed in the appendix to this opinion. F. Review of the Death Sentence. ¶36 Because August 1, whether 2002, the aggravating the we trier murder review of fact circumstances A.R.S. § 13-756(A). of Officer the death abused and its imposing Uribe sentence occurred to discretion a sentence after determine in finding of death. A finding of aggravating circumstances or the imposition of a death sentence is not an abuse of discretion if there is any reasonable evidence in the record to sustain it. State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007) (internal quotation marks omitted). ¶37 The trial court did not finding aggravating circumstances. abuse its discretion in Ample evidence supported the court s findings that Delahanty had been convicted of serious offenses, A.R.S. § 13-751(F)(2), and that Delahanty knew or should have known that the victim was an on-duty peace officer, A.R.S. § 13-751(F)(10). 15  ¶38 Nor did the jury abuse its discretion in determining that death was the appropriate sentence. We will not disturb the jury s decision if any reasonable jury could have concluded that the mitigation established by the defendant sufficiently substantial to call for leniency. was not Morris, 215 Ariz. at 341 ¶ 81, 160 P.3d at 220; see A.R.S. § 13-751(E). Here, particularly mitigation could evidence conclude given in that Delahanty s the the penalty decision phase, mitigation was a not to present reasonable jury not sufficiently affirm Delahanty s substantial to call for leniency. III. CONCLUSION ¶39 For the foregoing reasons, we convictions and sentences. _____________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice 16  17  APPENDIX 1. The death penalty is per se cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983). 2. Execution by lethal injection is cruel and unusual punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995). 3. The death statute is unconstitutional because it fails to guide the sentencing jury. State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). 4. The statute unconstitutionally fails to require either cumulative consideration of multiple mitigating factors or that the jury make specific findings as to each mitigating factor. State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602 (1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990). 5. Arizona s statutory scheme for considering mitigating evidence is unconstitutional because it limits full consideration of that evidence. State v. Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980). 6. Arizona s death statute insufficiently channels the sentencer s discretion in imposing the death sentence. State v. West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993); Greenway, 170 Ariz. at 162, 823 P.2d at 31. 7. Arizona s death statute is unconstitutionally defective because it fails to require the State to prove that death is appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605. 8. The prosecutor s discretion to seek the death penalty unconstitutionally lacks standards. Salazar, 173 Ariz. at 411, 844 P.2d at 578. 9. The Constitution requires a proportionality review of a defendant's death sentence. Salazar, 173 Ariz. at 416,844 P.2d at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056, 1065-66 (1990). 18  10. There is no meaningful distinction between capital and noncapital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578. 11. Applying a death statute enacted after the Supreme Court s decision in Ring II violates the ex post facto clauses of the federal and state constitutions and A.R.S. § 1-244. Ring III, 204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928. 12. The death penalty is cruel and unusual because it is irrationally and arbitrarily imposed and serves no purpose that is not adequately addressed by life in prison. State v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988). 13. Arizona's death penalty statute is unconstitutional because it requires imposition of the death penalty whenever at least one aggravating circumstance and no mitigating circumstances exist. Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Miles, 186 Ariz. 10, 19,918 P.2d 1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995). State v. Tucker ( Tucker II ), 215 Ariz. 298, 160 P.3d 177 (2007). 14. The death penalty is unconstitutional because it permits jurors unfettered discretion to impose death without adequate guidelines to weigh and consider appropriate factors and fails to provide principled means to distinguish between those who deserve to die or live. State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d 735, 750 (2006). 15. The trial court improperly omitted penalty phase instructions that the jury could consider mercy or sympathy in evaluating the mitigation evidence and determining whether to sentence the defendant to death. State v. Carreon, 210 Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005). 16. The jury instruction that required the jury to unanimously determine that the mitigating circumstances were sufficiently substantial to call for leniency violated the Eighth Amendment. State v. Ellison, 213 Ariz. 116, 139 ¶¶ 101-102, 140 P. 3d 899, 922 (2006). 19  17. The refusal to permit voir dire of prospective jurors regarding their views on specific aggravating and mitigating circumstances violates Appellant's rights under the Sixth and Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440 ¶¶ 29-35, 133 P.3d 735, 750 (2006). 18. Refusing to instruct the jury or permit the introduction of evidence and argument regarding residual doubt violated Appellant's rights under the Sixth, Eighth and Fourteenth Amendments and Arizona law. State v. Harrod (Harrod III), 218 Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007). 20