State of Arizona v. Curtis T. Bunton , 230 Ariz. 51 ( 2012 )

FILED BY CLERK
JUN -4 2012
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0164
) DEPARTMENT A
Appellant, )
) OPINION
v. )
)
CURTIS T. BUNTON, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20101299001
Honorable Howard Fell, Judge
AFFIRMED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Appellant
Lori J. Lefferts, Pima County Public Defender
By Rebecca A. McLean Tucson
Attorneys for Appellee
H O W A R D, Chief Judge.
¶1 After contested competency hearings, appellee Curtis Bunton was found to
be “not competent and not restorable.” On appeal, the state argues the trial court abused
its discretion in not allowing the state’s doctor to conduct an additional examination of
Bunton. The state further contends that A.R.S. § 13-4505(D) should be interpreted to
allow the state to examine a defendant regardless of the court’s findings. Because the
trial court did not abuse its discretion, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court’s
findings on competency. State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d 1193, 1204
(2005). In April 2010, Bunton was charged with first-degree murder. He subsequently
moved for a mental examination to determine his competency to stand trial and for a stay
of the proceedings. The court granted Bunton’s motion and appointed “the next two
doctors on the rotating competency evaluator list” to examine him, specifying that one of
the doctors “be a Ph.D. and one an M.D.”
¶3 Dr. James Allender, a board-certified neuropsychologist, and Dr. Stephen
Streitfeld, a psychiatrist, both evaluated Bunton and prepared reports that were disclosed
to the trial court. The state moved the court to allow an expert retained by the state, Dr.
James Sullivan, to interview and evaluate Bunton. In two hearings, both Streitfeld and
Allender testified about their conclusions regarding Bunton’s incompetency. Streitfeld
testified that Bunton had been “persistently and acutely” disabled by his stroke, that his
disability “constantly affect[s] his functioning in a negative way,” and that his condition
is “unlikely to improve to a significant degree in the foreseeable future.” Allender
testified that Bunton would have difficulty in assisting his defense due to his expressive
aphasia, which the doctor “considered . . . fairly severe.”
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¶4 At the second hearing, Dr. Debra Joseph, a psychologist from the Pima
County Restoration to Competency Program, also testified regarding her evaluation of
Bunton in the court-ordered program, concluding that Bunton would be unable to “assist
counsel in preparation of his defense.” Based on the testimony of all three doctors, the
court concluded that no “additional testing would . . . be of assistance,” and it
“preclud[ed] Dr. Sullivan from interviewing and evaluating [Bunton].” The court
dismissed the case without prejudice and the state appealed.
Statutory Request for Evaluation
¶5 The state argues that A.R.S. § 13-4505(D) “allows a party to examine a
defendant if the party thinks it necessary,” regardless of the trial court’s findings. Bunton
counters that Rule 11, Ariz. R. Crim. P., gives the court discretion to determine whether
additional examinations are necessary. We review a court’s denial of a request for
further evaluation for an abuse of discretion, State v. Berger, 171 Ariz. 117, 120, 828
P.2d 1258, 1261 (App. 1992), but review questions of statutory interpretation de novo,
State v. Stauffer, 203 Ariz. 551, ¶ 8, 58 P.3d 33, 36 (App. 2002).
¶6 Competency proceedings are governed both by rules and statutes. State v.
Silva, 222 Ariz. 457, ¶ 14, 216 P.3d 1203, 1206 (App. 2009). In the event of a conflict
between a rule and a statute, we attempt to harmonize the two; however, we previously
have determined that the rules and statutes governing competency determinations do not
conflict. Id. ¶¶ 13, 14. And we interpret provisions of a statute consistently with other
related provisions. State ex rel. Horne v. Rivas, 226 Ariz. 567, ¶ 9, 250 P.3d 1196, 1199
(App. 2011).
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¶7 Section 13-4505 is entitled “Appointment of experts; costs” and sets forth
the basic framework for competency examinations. It requires a trial court to appoint at
least two mental health experts if there are reasonable grounds for an evaluation and
provides for their compensation. § 13-4505(A), (C). It then states, “The court may order
the defendant to submit to physical, neurological or psychological examinations, if
necessary, to adequately determine the defendant’s mental condition.” § 13-4505(B). It
also provides, “This section does not prohibit any party from retaining its own expert to
conduct any additional examinations at its own expense.” § 13-4505(D). Rule 11.3(a)
contains the same general framework as the statute. The rule also states that “[t]he court
may, in its discretion, appoint additional experts and order the defendant to submit to
physical, neurological or psychological examinations, if necessary for an adequate
determination of the defendant’s mental competency.” Ariz. R. Crim. P. 11.3(g).
¶8 Both the rules and statute give the trial court discretion to order the
defendant to submit to necessary examinations. See Ariz. R. Crim. P. 11.3(g); § 13-
4505(B). And although § 13-4505(D) permits both parties to retain their own experts for
the purpose of conducting additional examinations, it does not require a court to order a
defendant to submit to examination by such additional experts. When § 13-4505(D) is
interpreted consistently with § 13-4505(B) and is harmonized with Rule 11.3, it grants
the court discretion over whether to order a defendant to submit to any additional
examination. Moreover, if we interpreted § 13-4505(D) as requiring the trial court to
order a defendant to submit to additional examination upon any request by the state, we
would be adding provisions to the statute, which we are not permitted to do. Cf. Potter v.
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Vanderpool, 225 Ariz. 495, ¶ 13, 240 P.3d 1257, 1262 (App. 2010) (court cannot insert
words into Rule 11.2). Thus, the court had discretion to reject the state’s request that
Bunton submit to an additional examination by the state’s expert.
Discretionary Request for Evaluation
¶9 The state also contends, with minimal citation, that if additional
examinations are discretionary, the trial court abused its discretion by not requiring
Bunton to submit to an additional examination by the state’s expert. We review the
court’s decision for an abuse of discretion, State v. Berger, 171 Ariz. 117, 120, 828 P.2d
1258, 1261 (App. 1992), and will affirm if it is supported by reasonable evidence, viewed
in the light most favorable to upholding the court’s ruling, State v. Glassel, 211 Ariz. 33,
¶ 27, 116 P.3d 1193, 1204 (2005).
¶10 Rule 11.3(g), Ariz. R. Crim. P., permits a trial court to order a defendant to
submit to examinations by additional experts only if necessary to properly determine the
defendant’s competency. Section 13-4505(B), A.R.S., also allows the court to order the
defendant to submit to necessary examinations.
¶11 Here, Streitfeld described Bunton as “severely disabled” due to a left
hemisphere stroke, “unable to truly take care of himself,” and “unlikely to improve to a
significant degree in the foreseeable future.” Streitfeld testified that all the information
he had was consistent and he had not seen anything that would alter his opinion of
Bunton’s competency. Joseph concluded that Bunton “ha[d] almost unintelligible
speech,” and would be unable to “assist counsel in preparation of his defense.” She also
recounted that she did not “have any sense” that Bunton was malingering and that, in a
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test requested by the trial court, Bunton’s results had been “uncharacteristic of
malingering.” Allender testified that Bunton’s expressive aphasia was “fairly severe” and
that all information he had received was consistent. None of the three stated that they
needed additional assistance or testing. And, although Sullivan testified that he would
recommend additional testing, he declined to offer an opinion with respect to Bunton’s
competency because he had “not even seen any raw data on him.” Sullivan further stated
that he has never been certified to conduct Rule 11 evaluations in Arizona. Because all
of the experts who had evaluated Bunton agreed on his level of competence, we cannot
find the court abused its discretion in finding further evaluation unnecessary. See Berger,
171 Ariz. at 120, 828 P.2d at 1261.
Conclusion
¶12 For the foregoing reasons, the trial court’s order of dismissal is affirmed.
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
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