State of Arizona v. John Vincent Fitzgerald

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0307-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-111543-001
JOHN VINCENT FITZGERALD, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Jeffrey A. Zick, Chief Counsel,
Criminal Appeals/Capital Litigation
Kent E. Cattani, Former Chief Counsel,
Criminal Appeals/Capital Litigation
Julie A. Done, Assistant Attorney General
Attorneys for State of Arizona
BRUCE F. PETERSON, MARICOPA COUNTY Phoenix
OFFICE OF THE LEGAL ADVOCATE
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorney for John Vincent Fitzgerald
________________________________________________________________
P E L A N D E R, Justice
¶1 A jury found John Vincent Fitzgerald guilty of first
degree murder and first degree burglary. He was sentenced to
death for the murder and to a prison term for the burglary. We
have jurisdiction over this automatic appeal under Article 6,
Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.1
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 On April 15, 2005, after traveling from his home in
Hawaii to Arizona, Fitzgerald killed his mother, Margaret
(“Peggy”) Larkin, in her Sun City West home, striking her
several times with a samurai sword and shooting her twice in the
head.2 Peggy’s fiancé witnessed the murder. Fitzgerald was
arrested a few blocks away and later confessed during a police
interview.
¶3 Fitzgerald was charged with first degree murder and
first degree burglary. At trial, the jury rejected his guilty
except insane (“GEI”) defense, found him guilty on both counts,
and found the crimes were dangerous offenses. The jury found
three aggravating circumstances: Fitzgerald had a prior
conviction for a serious offense, A.R.S. § 13-751(F)(2); the
murder was especially cruel, id. § 13-751(F)(6); and the victim
was seventy years of age or older, id. § 13-751(F)(9). After a
mistrial in the penalty phase, a different jury determined that
Fitzgerald should be sentenced to death for the murder. The
trial court sentenced Fitzgerald to 10.5 years’ imprisonment for
1
We cite the current version of statutes that have not
materially changed since the events at issue.
2
The facts are presented in the light most favorable to
sustaining the jury’s verdicts. State v. Hardy, 230 Ariz. 281,
284 ¶ 2 n.2, 283 P.3d 12, 15 n.2 (2012).
2
the burglary.
II. ISSUES ON APPEAL
A. Denial of Fitzgerald’s motions for a new trial
¶4 Near the end of the guilt phase, the trial court
dismissed Juror 11, who insisted she had smelled alcohol on a
defense expert when he walked past her to testify, although the
expert denied drinking and the court detected no such odor. In
discharging Juror 11, the court admonished her to say nothing on
that topic to the other jurors, and she said she had not. The
guilt phase concluded the next week, followed by the jury’s
finding of aggravating factors two days later.
¶5 The penalty-phase proceedings were suspended at their
onset on January 14, 2010, when Fitzgerald had an involuntary
emotional outburst during victim impact statements. The court
continued the trial to allow for competency proceedings and
treatment that successfully restored Fitzgerald’s competency.
¶6 On March 23, the trial court declared a mistrial in
the penalty phase because of the January 14 incident. During an
informal discussion with counsel after the jury was dismissed,
Juror 1 asked why Juror 11 had been removed. When told that
Juror 11 supposedly had smelled alcohol on the defense expert,
Juror 1 allegedly said, “That’s right, she did mention that.”
The record contains no substantiating affidavits or statements
from any juror, attorney, or the bailiff regarding the March 23
3
discussion between jurors and counsel.
¶7 On April 15, before the second penalty-phase trial
began, Fitzgerald moved for a new guilt-phase trial and to
vacate the aggravation-phase verdict, arguing that he was
prejudiced by juror misconduct during the guilt phase. The
trial court denied the motion, finding that it lacked
jurisdiction to address the merits because the motion was not
filed within ten days of the guilt-phase verdict, as required by
Arizona Rule of Criminal Procedure 24.1.
¶8 During the second penalty phase, Fitzgerald moved to
unseal Juror 1’s contact information. Although the motion
essentially sought discovery, the trial court denied it because
the court had already found jurisdiction lacking on the motion
for a new trial under Rule 24.1 and because any motion to vacate
judgment under Arizona Rule of Criminal Procedure 24.2 was not
ripe because no judgment had been entered. Finally, ten days
after the penalty-phase verdict, Fitzgerald filed another motion
for a new trial on all phases, which the trial court again
denied as untimely.
¶9 Fitzgerald argues the trial court violated his due
process rights under the Arizona and United States Constitutions
by denying his motions for a new trial as untimely under Rule
24.1. He contends the motions were timely and the trial court
should have addressed his argument that he was prejudiced by
4
Juror 11’s misconduct in the guilt-phase trial. Fitzgerald
urges us to remand the case for the trial court to conduct an
evidentiary hearing on that allegation.
¶10 We review a “trial court’s decision to grant or deny a
new trial based on alleged jury misconduct” for an abuse of
discretion, State v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90,
95 (2003), and review de novo matters involving interpretation
of court rules, Godoy v. Hantman, 205 Ariz. 104, 106 ¶ 5, 67
P.3d 700, 702 (2003). Based on our interpretation of Rule 24.1,
we conclude that Fitzgerald’s motions for a new trial were
untimely, and therefore the trial court properly refused to
consider them.
¶11 As amended in 2002, Rule 24.1 provides in part that
“[w]hen the defendant has been found guilty or sentenced to
death,” the court “may order a new trial or, in a capital case,
an aggravation or penalty hearing,” when a juror has “been
guilty of misconduct by [r]eceiving evidence not properly
admitted during the trial or the aggravation or penalty
hearing.” Ariz. R. Crim. P. 24.1(a), (c)(3)(i). Rule 24.1(b),
before and after 2002, requires that “[a] motion for a new trial
shall be made no later than 10 days after the verdict has been
rendered.” Ariz. R. Crim. P. 24.1(b).
¶12 Fitzgerald contends that the phrase “the verdict” in
subsection (b) is unclear in the capital-case context. He
5
argues that “a fair and sensible meaning” results only if the
term “verdict” is construed “as referring to the death verdict.”
Fitzgerald asserts that his motions for a new trial therefore
were timely because they were filed within ten days after the
death-sentence verdict. The State counters that the term
“verdict” in Rule 24.1(b) “refers to the verdict in each phase
of a capital case.”
¶13 As this case illustrates, three types of verdicts may
be rendered in a capital case: a “general” verdict of “guilty
or not guilty,” an aggravation verdict, and a capital (or
“death”) verdict. Ariz. R. Crim. P. 23.2(a), (e)–(f); see also
A.R.S. § 13-752. One plausible reading of Rule 24.1 would
require a capital defendant to move for a new trial within ten
days of the verdict in each contested phase to prevent the
motion from being time-barred. See Ariz. R. Crim. P. 24.1(b)
cmt. (noting that a trial court lacks the power to grant a new
trial after the Rule 24.1(b) time limit expires (citing State v.
Hill, 85 Ariz. 49, 330 P.2d 1088 (1958))); State v. Hickle, 129
Ariz. 330, 332, 631 P.2d 112, 114 (1981). Under that
interpretation, because Fitzgerald moved for a new guilt-phase
trial, he was required to file his motion within ten days of the
guilt-phase verdict, regardless of when he first learned of
possible juror misconduct.
¶14 The competing interpretation, urged by Fitzgerald,
6
would allow a capital defendant to move for a new trial for any
phase of the case within ten days of the final verdict. For
example, if a defendant is sentenced to death, but then claims
error or misconduct occurred in the guilt phase, he could move
for a new guilt-phase trial within ten days of the penalty-phase
verdict. Similarly, if a jury finds no alleged aggravating
circumstances proven, and a defendant seeks a new guilt-phase
trial, he could timely move for a new trial within ten days of
the aggravation-phase verdict.
¶15 Fitzgerald’s proffered interpretation of Rule 24.1 is
not persuasive. We read the rule as a whole and in a way that
harmonizes its subsections. State v. Wagstaff, 164 Ariz. 485,
491, 794 P.2d 118, 124 (1990); see also Rivera-Longoria v.
Slayton, 228 Ariz. 156, 159 ¶ 17, 264 P.3d 866, 869 (2011)
(explaining that we apply principles of statutory construction
when interpreting court rules). In prescribing the ten-day
period within which a motion for new trial must be filed, Rule
24.1(b) refers in the singular to the “verdict.” That term,
however, must be read in the context of Arizona’s three-phase
statutory scheme for capital-case trials. See A.R.S. § 13-752.
As amended in 2002, Rule 24.1(a) mirrors the statutory scheme by
providing that “[w]hen the defendant has been found guilty or
sentenced to death by a jury or by the court, the
court . . . may order a new trial or, in a capital case, an
7
aggravation or penalty hearing.”3
¶16 Although subsection (a) is framed in the disjunctive —
permitting the grant of a new trial on any of the three phases
“[w]hen the defendant has been found guilty or sentenced to
death” — this language does not support Fitzgerald’s argument
that a capital defendant can timely move for a new guilt- or
aggravation-phase trial within ten days of the penalty-phase
verdict. Subsection (a) merely recognizes the three distinct
phases and possible verdicts in a capital case. Although that
provision authorizes a trial court to order a new trial for each
capital-case phase, it neither addresses nor extends Rule
24.1(b)’s time limit for filing a motion for new trial.
¶17 Our pre-2002 case law comports with this reading of
Rule 24.1. Before 2002, we interpreted that rule to require a
capital defendant to move for a new trial within ten days of the
3
The 2002 amendments to Rule 24.1 do not meaningfully aid our
analysis. At that time, this Court amended Rule 24.1(a) and (c)
— but not subsection (b) — in light of Ring v. Arizona, 536 U.S.
584 (2002), and the Arizona Legislature’s modification of the
capital-case statutory scheme. See Chronis v. Steinle, 220 Ariz.
559, 561 ¶ 12, 208 P.3d 210, 212 (2009) (noting that we amended
the rules of criminal procedure, including Rule 24.1, on an
“emergency interim basis” following the Ring decision); see also
State Bar of Arizona’s Comments to the Arizona Rules of Criminal
Procedure As Amended by the Supreme Court Order of October 11,
2002, R–02–0033, at 7 (Jan. 24, 2003) (on file with the Clerk of
the Court) (“The new language [of Rule 24.1] allows the court to
order a new aggravation or penalty hearing in addition to a new
trial.”).
8
guilt verdict, not the later sentencing order.4 Hickle, 129
Ariz. at 332, 631 P.2d at 114 (finding untimely a motion filed
twenty-one days after the guilt verdict, but before sentencing);
see also State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062,
1072 (1996) (“Defendant’s motion for new trial based on the
state’s failure to disclose was made more than three months
after the jury returned its guilty verdict and was therefore
untimely pursuant to rule 24.1 . . . .”). Those cases imply
that a guilt-phase trial is distinct from the subsequent
sentencing-related proceedings (now known as the aggravation and
penalty phases), and that a defendant must move for a new trial
on each contested phase within ten days of the verdict in that
particular phase. Cf. State v. Nordstrom, 230 Ariz. 110, 116-17
¶¶ 25-26, 280 P.3d 1244, 1250-51 (2012) (suggesting that the 60-
day time frame under Rule 24.2 began to run upon judgment of
conviction, not upon later resentencing judgment).
¶18 Because Rule 24.1’s language is reasonably susceptible
4
Before the 2002 amendments to subsection (a), Rule 24.1(a)
and (b) read as follows:
a. Power of the Court. When the defendant has been
found guilty by a jury or by the court, the court on
motion of the defendant, or on its own initiative
with the consent of the defendant, may order a new
trial.
b. Timeliness. A motion for a new trial shall be made
no later than 10 days after the verdict has been
rendered.
Ariz. R. Crim. P. 24.1(a)-(b) (2002).
9
to different interpretations in this setting, we may consider
not only the rule’s text, but also its subject matter, context,
historical background, effects and consequences, and spirit and
purpose. State ex rel. Romley v. Superior Court, 168 Ariz. 167,
169, 812 P.2d 985, 987 (1991). Practical considerations and
notions of judicial economy favor the State’s position and the
trial court’s ruling. When a guilty verdict is returned, if the
defendant believes grounds for a new guilt-phase trial exist,
allowing the aggravation and penalty phases to proceed to
completion before requiring him to move for a new trial on
grounds relating solely to the guilt phase would unnecessarily
waste time, effort, and resources by the parties, the judiciary,
court staff, and the jury. Thus, policy considerations support
interpreting Rule 24.1(b) as requiring the timely filing of a
motion for new trial no later than ten days after each separate
verdict in a capital case to challenge any aspect of the phase
in which that verdict was rendered. See Ariz. R. Crim. P. 1.2
(“[The Arizona Rules of Criminal Procedure] are intended to
provide for the just, speedy determination of every criminal
proceeding” and “shall be construed to secure,” inter alia, “the
elimination of unnecessary delay and expense.”).
¶19 We recognize that this interpretation could preclude a
defendant who first learns of the grounds supporting a new trial
more than ten days after the verdict is rendered from obtaining
10
relief under Rule 24.1. In this case, for example, Fitzgerald
first learned of Juror 11’s alleged misconduct well after the
guilt-phase verdict, during the discussion between counsel and
the other jurors following the penalty-phase mistrial.
¶20 Rule 24, however, contains no “discovery rule”
exception to the ten-day requirement in Rule 24.1(b). Cf. Ariz.
R. Crim. P. 16.1(c) (permitting an otherwise untimely pre-trial
motion when “the basis therefor was not then known, and by the
exercise of reasonable diligence could not then have been known,
and the party raises it promptly upon learning of it”). Thus,
if a defendant who first discovers possible grounds for a new
trial after the ten-day time frame has no available relief under
Rule 24.1, he would have to resort to a Rule 24.2 motion to
vacate the judgment or a Rule 32 petition for post-conviction
relief.5 See State v. Adamson, 136 Ariz. 250, 265, 665 P.2d 972,
987 (1983) (addressing post-conviction relief claim of newly
discovered evidence allegedly showing jury misconduct during
5
Because a defendant may move to vacate the judgment “no
later than 60 days after the entry of judgment and sentence but
before the defendant’s appeal,” Ariz. R. Crim. P. 24.2 (emphasis
added), the longer time frame for filing under Rule 24.2 would
begin to run in a capital case upon the penalty-phase verdict,
not the jury’s guilt verdict, Nordstrom, 230 Ariz. at 116-17
¶¶ 25-26, 280 P.3d at 1250-51; see also Spears, 184 Ariz. at
288, 908 P.2d at 1073 (noting that the trial court reached the
merits of a motion alleging juror misconduct by apparently
construing it as a timely motion to vacate judgment based on
newly discovered evidence, rather than an untimely motion for a
new trial).
11
voir dire); Hickle, 129 Ariz. at 332, 631 P.2d at 114 (noting
that a defendant whose motion for new trial was untimely under
Rule 24.1(b) might not be “foreclosed from relief” under Rule
24.2).
¶21 Fitzgerald learned of the alleged juror misconduct on
March 23, 2010, but did not move for a new trial until April 15.
Thus, Fitzgerald knew about the alleged juror misconduct, on
which his motions for new trial were based, considerably more
than ten days before he filed the motion. The trial court
implied a discovery-rule component in its ruling, stating that
Fitzgerald should have moved for a new trial within ten days of
when the mistrial was declared. The State apparently agrees
with that conclusion, asserting that Fitzgerald’s “motion for
new trial had to be made no later than 10 days after March 23,
2010 — the date when a mistrial was declared and counsel learned
of the basis for the motion.” But even were we to imply a
“discovery rule” exception to Rule 24.1(b)’s deadline,
Fitzgerald’s motion was untimely, as the trial court correctly
ruled.
¶22 Based on Rule 24.1’s language, policy, practical
considerations, and our pre-2002 case law, we hold that in
capital cases, Rule 24.1 requires a defendant to timely move for
a new trial after each contested capital-case phase, and does
not permit one to wait until a penalty-phase verdict before
12
moving for a new trial on a prior phase of trial. Therefore,
the trial court properly denied Fitzgerald’s motions as untimely
without reaching their merits.
B. Fitzgerald’s absence from portions of the second penalty-
phase trial
¶23 Fitzgerald argues the trial court erred in finding
that he voluntarily absented himself from portions of the second
penalty-phase trial, entitling him to a new penalty-phase trial.
He contends his waiver was not voluntary because it was based on
his inability to ensure that he could properly comport himself
during the proceedings because of mental illness. “We review de
novo whether a defendant knowingly and voluntarily waived his
right to be present at trial.” State v. Lehr, 227 Ariz. 140,
145 ¶ 8, 254 P.3d 379, 384 (2011).
¶24 On January 14, 2010, the first day of the initial
penalty-phase trial, the trial court suspended the proceedings
because of Fitzgerald’s disruptive behavior during the victim
impact statements. Fitzgerald asked to be removed from the
courtroom. After a brief recess, the trial court discussed the
matter with counsel outside the presence of the jury and
Fitzgerald:
Frankly, [Fitzgerald is] not able to be composed and
he’s unable to stay on this floor. He is so loud with
his crying and his sobbing that it’s disrupting other
trials on the floor. I’ve indicated to the deputy to
take him off the floor so that other court proceedings
can continue.
13
The court then suspended the penalty-phase trial because
Fitzgerald had not knowingly, intelligently, and voluntarily
waived his right to be present. The court also explained that
if Fitzgerald intended to absent himself from future
proceedings, the court would first have to conduct a colloquy
with him.
¶25 The trial court later found that Fitzgerald was unable
to knowingly and intelligently waive his presence, relying on
several physicians’ reports. The court ordered Rule 11
proceedings to restore Fitzgerald to competency, and told his
attorneys:
Once [Fitzgerald is] restored, if he chooses to
continue with the proceeding, which obviously he has a
right to be present, he’ll need to conduct [sic]
himself and be able to conduct himself in a manner
consistent with a trial proceeding. In the
alternative, if he feels that he is not going to be
able to conform his behavior in an appropriate manner,
or that he is going to melt down, he needs to signal
that to counsel immediately so that it doesn’t happen
in the manner it happened before.
¶26 In March 2010, several weeks after the trial court
found that Fitzgerald had been restored to competency, the court
declared a mistrial in the penalty-phase trial and discharged
the jury. From February 11, 2010, to the start of the second
penalty-phase trial in May 2010, however, Fitzgerald attended
each of the eleven court proceedings in the case.
¶27 On May 19, as jury selection began in the second
14
penalty-phase trial, the court spoke with Fitzgerald and his
counsel about the prior outburst that caused the mistrial and
the procedures to follow if Fitzgerald became disruptive again.
Several medical reports indicated that Fitzgerald was
“medicated” and “more stable at this time.” The court
instructed Fitzgerald to speak with his attorneys during trial
if he felt that he could not control himself. The proceedings
could then be stopped in an orderly manner. Fitzgerald said he
understood those instructions, but was concerned that he could
not follow them. Fitzgerald also explained that he “lost
control” during the first penalty-phase trial and allegedly
“[t]here was no warning.”
¶28 Because Fitzgerald did not want to risk any further
delay in the proceedings, he told the court that he did not want
to attend the victim impact statements:
I was hoping that I could just not be there during the
victim impact, because I just don’t want to risk
another delay for the whole court. I apologize for the
whole delay. It was just a horrible feeling, a
horrible thing. I’d rather just not be there during
the victim impact and not risk a whole nother [sic]
mess, Your Honor.
This was the first time Fitzgerald told the court that he wanted
to absent himself from those proceedings. But he also told his
attorneys earlier in the day that he did not want to attend the
victim impact statements. The court then indicated that it
would have a future colloquy with Fitzgerald, but also wanted a
15
signed affidavit acknowledging that defense counsel had advised
him “about participating meaningfully in the proceedings and
that there was a knowing, intelligent, voluntary decision to
waive his appearance for that portion of the penalty phase.”
Fitzgerald said he understood the court’s instruction and had no
questions at that time.
¶29 Fitzgerald attended the voir dire of prospective
jurors between May 19 and May 26. On May 27, he submitted an
affidavit waiving his right to appear for the victim impact
statements. He had previously reviewed that waiver with his
attorneys. The court conducted an extensive colloquy with
Fitzgerald that day and determined that he was taking his
prescribed medications. The court also found Fitzgerald’s
affidavit to be knowingly, intelligently, and voluntarily
executed. Later that day, the court conducted another lengthy
colloquy after Fitzgerald clarified that he wanted to absent
himself from all of the victim impact statements if they lasted
more than a day. The court again found a knowing, intelligent,
and voluntary waiver.
¶30 The victim impact statements began on June 3.
Fitzgerald absented himself from all of those, as well as other
portions of the second penalty-phase trial, including the final
steps of jury selection on June 2; preliminary jury
instructions; opening statements; portions of testimony from
16
defense mitigation expert, Dr. Alan Ellis; testimony from
Fitzgerald’s family to rebut his mitigation evidence; portions
of testimony from the State’s mental health expert, Dr. Brad
Bayless; and initial closing arguments, but not for the
defense’s rebuttal closing argument, which he attended. The
trial court conducted a colloquy with Fitzgerald every time he
absented himself, finding a knowing, intelligent, and voluntary
waiver in each instance. At Fitzgerald’s request, the court
gave a limiting instruction that he was entitled to absent
himself from proceedings and that the jury could not consider
his absence.
¶31 A defendant has a constitutional right to be present
at every stage of a trial under the Sixth and Fourteenth
Amendments to the United States Constitution and Article 2,
Section 24 of the Arizona Constitution. State v. Levato, 186
Ariz. 441, 443, 924 P.2d 445, 447 (1996); see also Ariz. R.
Crim. P. 19.2. That right applies “whenever [a defendant’s]
presence has a relation, reasonably substantial, to the fullness
of his opportunity to defend against the charge.” State v.
Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981) (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). A
defendant, however, may voluntarily waive his right to be
present. Ariz. R. Crim. P. 9.1; see also State v. Avila, 127
Ariz. 21, 25, 617 P.2d 1137, 1141 (1980) (noting that the record
17
must indicate a knowing, intelligent, and voluntary waiver of a
constitutional right). A voluntary waiver “presupposes
meaningful alternatives . . . [and] requires true freedom of
choice.” State v. Garcia-Contreras, 191 Ariz. 144, 147 ¶ 11,
953 P.2d 536, 539 (1998).
¶32 Fitzgerald suggests that he did not voluntarily absent
himself from the second penalty-phase trial, arguing that he did
so only because he was unable to ensure that another disruptive
outburst would not occur in those proceedings. That argument,
however, is undermined by the trial court’s March 2010 finding
that Fitzgerald had been restored to competency. He has not
challenged that finding on appeal.
¶33 In addition, the trial court frequently asked
Fitzgerald if he was appropriately medicated and had lengthy
colloquies with him each time he absented himself. Each time,
the court found Fitzgerald’s waiver to be knowingly,
intelligently, and voluntarily made. Moreover, it was
Fitzgerald who initiated discussion on May 19 about possibly
waiving his rights to attend portions of the trial. That
Fitzgerald was previously incompetent did not prevent him from
voluntarily waiving his constitutional rights once he was
restored to competency. Cf. United States v. Reynolds, 646 F.3d
63, 75 (1st Cir. 2011) (upholding the district court’s
conclusion that the defendant voluntarily waived her right to a
18
jury trial after being restored to competency).
¶34 Fitzgerald also claims that his waiver was not
voluntary because the trial court warned him on May 19 that the
second penalty-phase trial could proceed in his absence if he
could not control his behavior. But the court also said it
would first have to find that Fitzgerald was voluntarily
absenting himself through that disruptive conduct and that he
should speak to his attorneys on a “minute-to-minute basis” if
he felt he could not control his behavior. The court also
explained that Fitzgerald’s absence from the penalty phase was
not “desirable” because he was facing the death penalty, and
that the better course would be for him to attend the trial and
consult with his counsel. In sum, the record does not reflect
that Fitzgerald’s waiver was involuntary.
¶35 In a related argument, Fitzgerald suggests that
Garcia-Contreras controls because, like the defendant there, he
did not have “true freedom of choice” to voluntarily absent
himself from the proceedings. See 191 Ariz. at 147 ¶ 11, 953
P.2d at 539. In Garcia-Contreras, the defendant moved for a
short continuance during jury selection to obtain civilian
clothes. Id. at 146 ¶ 6, 953 P.2d at 538. After the trial
court denied that motion, the defendant absented himself from
the entire jury-selection process — even though he apparently
wanted to attend those proceedings — once his attorney advised
19
him against appearing in jail garb. Id. at 146 ¶ 6, 148 ¶ 14,
953 P.2d at 538, 540. We reversed the convictions and ordered a
new trial, holding that the defendant’s waiver was involuntary
because he had no meaningful alternative other than to absent
himself from jury selection. Id. at 147 ¶ 11, 953 P.2d at 539.
¶36 This case does not involve the type of dilemma the
defendant faced in Garcia-Contreras. Under the procedure
discussed and agreed to here, Fitzgerald could have attended all
the proceedings and, if he felt another impending emotional
outburst, he could have informed his counsel and requested a
recess or continuance. Unlike the court in Garcia-Contreras,
the trial court here provided Fitzgerald with a meaningful
alternative that appropriately recognized his right to be
present, yet still preserved the integrity of the proceedings by
avoiding future disruptive behavior. In addition, Fitzgerald
did attend various parts of the second penalty-phase trial
without incident. The trial court did not err in finding that
Fitzgerald voluntarily absented himself from other portions of
the second penalty-phase trial.
C. Evidence presented during the second penalty-phase trial
from Fitzgerald’s Rule 11 competency proceedings
¶37 Fitzgerald argues the trial court erred by allowing
the State in the penalty phase to rebut his mental-impairment
mitigation evidence by introducing statements he had made during
20
pretrial Rule 11 competency proceedings. Admission of that
evidence, he contends, violated Arizona Rules of Criminal
Procedure 11.1 and 11.7, as well as his rights against self-
incrimination and to due process under the Fifth and Fourteenth
Amendments to the United States Constitution. We review a trial
court’s rulings admitting evidence in the penalty phase for an
abuse of discretion. State v. Harrod, 218 Ariz. 268, 279 ¶ 38,
183 P.3d 519, 530 (2008). Legal issues, including
constitutional questions, are reviewed de novo. Id.¶38 During the second penalty-phase trial, Fitzgerald
moved to preclude certain statements he had made to Correctional
Health Services (“CHS”) personnel during the pretrial Rule 11
competency proceedings (the “CHS statements”), evidence the
State intended to offer to rebut his mental-impairment
mitigation evidence. Those statements, contained in various CHS
medical records, suggested that Fitzgerald was malingering. In
denying Fitzgerald’s motion, the trial court ruled that Rule
11.7 applies only in a “proceeding to determine guilt or
innocence,” which is not at issue in the penalty phase, and
therefore the rule did not apply to Fitzgerald’s second penalty-
phase trial. The court also concluded that the Fifth
Amendment’s protection against self-incrimination did not
preclude the State’s rebuttal evidence because Fitzgerald had
already offered psychiatric evidence in the guilt phase and
21
planned to do so again in the penalty phase, thereby placing his
mental health at issue.
¶39 Pursuant to the court’s cautionary suggestion, the
State agreed not to use the CHS statements to elicit any
testimony about Fitzgerald’s guilt or the murder itself. The
State, however, was allowed to use the CHS statements to cross-
examine Fitzgerald’s mental health expert, Dr. Thomas Thompson,
and impeach his opinions through the testimony of Dr. Bayless,
the State’s mental health expert.
¶40 Dr. Thompson opined in the second penalty phase that
Fitzgerald was psychotic when he murdered his mother and that he
suffered from a delusional-type disorder, paranoid
schizophrenia, or a schizoaffective disorder. Those opinions
were consistent with Dr. Thompson’s guilt-phase testimony. He
had reviewed the CHS statements in forming his opinions. The
State referred to those statements in Dr. Thompson’s cross-
examination and Dr. Bayless’s testimony. The CHS statements
suggested that Fitzgerald was not delusional and was malingering
for the secondary gain of reduced punishment.
¶41 Contrary to Fitzgerald’s argument, admission of the
State’s rebuttal evidence did not violate Rule 11.1. That rule
merely addresses the definition and effect of incompetency,
prohibiting a defendant from being “tried, convicted, sentenced
or punished for a public offense . . . [when he or she] is
22
unable to understand the proceedings against him or her or to
assist in his or her own defense.” Ariz. R. Crim. P. 11.1.
Rule 11.1 does not address whether evidence obtained from Rule
11 competency proceedings may later be admitted in the penalty
phase after a defendant is restored to competency.
¶42 Rule 11.7 governs the admissibility of evidence
obtained from, and a defendant’s privileged statements made in,
Rule 11 competency proceedings. The State persuasively argues
that Rule 11.7 does not apply to the penalty phase of a capital
case because that phase is neither a “proceeding to determine
guilt or innocence,” nor the phase in which a defendant’s GEI
defense or other sanity issues are litigated. Ariz. R. Crim. P.
11.7(a); see also A.R.S. § 13-502(A) (“A mental disease or
defect constituting legal insanity is an affirmative defense.”);
State v. Roque, 213 Ariz. 193, 223 ¶ 122, 141 P.3d 368, 398
(2006) (insanity at the time of the offense is not at issue in
the penalty phase).
¶43 Rule 11.7, however, is grounded in the Fifth
Amendment’s privilege against compelled self-incrimination, see
State v. Tallabas, 155 Ariz. 321, 323, 746 P.2d 491, 493 (App.
1987), and that privilege applies to penalty-phase trials,
Estelle v. Smith, 451 U.S. 454, 462-63 (1981) (“We can discern
no basis to distinguish between the guilt and penalty phases of
[a defendant’s] capital murder trial so far as the protection of
23
the Fifth Amendment privilege is concerned.”); see also State v.
Evans, 104 Ariz. 434, 436, 454 P.2d 976, 978 (1969) (admitting a
defendant’s incriminating statements from competency proceedings
would be “fundamentally unfair”). The rule, of course, cannot
override constitutional considerations.
¶44 Fitzgerald, however, waived his privilege against
compelled self-incrimination and any protections under Rule 11.7
by offering evidence relevant to his mental health during the
second penalty-phase trial. He placed his mental health at
issue in that phase by presenting mental-impairment mitigation
evidence. Even if Rule 11.7 might apply in the penalty phase,
Fitzgerald consented to admission of the CHS statements for
purposes of that rule. See Ariz. R. Crim. P. 11.7(b)(1).
¶45 Fitzgerald’s contention that his “incompetency
precluded him from knowingly waiving his constitutional rights
at the time the [CHS] statements were made” is unavailing.
Fitzgerald’s competency had been restored, and no competency
issues remained, when he waived his Fifth Amendment privilege by
placing his mental health at issue in the penalty phase. See
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987) (“[I]f a
defendant requests [a psychiatric] evaluation or presents
psychiatric evidence, then, at the very least, the prosecution
may rebut this presentation with evidence from the reports of
the examination that the defendant requested.”); see also supra
24
¶ 33. In addition, the State’s rebuttal evidence was closely
tailored to refuting Fitzgerald’s allegations of mental
impairment and did not re-open the issue of guilt or delve into
the murder itself.
¶46 Estelle does not control when, as here, “a defendant
claims a diminished mental condition and offers supporting
psychiatric testimony.” State v. Schackart, 175 Ariz. 494, 501,
858 P.2d 639, 646 (1993); cf. Tallabas, 155 Ariz. at 324, 746
P.2d at 494 (“The defendant cannot cast aside the protection of
the privilege for matters that benefit him and then invoke the
privilege to prevent the prosecution from inquiring into matters
that may be harmful to him.”). In sum, Fitzgerald has not
established that the trial court abused its discretion in the
penalty phase by admitting rebuttal evidence, including his CHS
statements, from the Rule 11 competency proceedings.
III. ABUSE OF DISCRETION REVIEW
¶47 We review the jury’s finding of aggravating
circumstances and the imposition of a death sentence for abuse
of discretion. A.R.S. § 13-756(A). “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. Delahanty, 226 Ariz. 502, 508
¶ 36, 250 P.3d 1131, 1137 (2011) (quoting State v. Morris, 215
Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007)).
25
¶48 Fitzgerald does not contest that the three aggravators
alleged and found in this case — (F)(2) (prior serious offense),
(F)(6) (especial cruelty), and (F)(9) (age of victim) — were
proven beyond a reasonable doubt. Because the record supports
those findings, the jury did not abuse its discretion.
¶49 Fitzgerald alleged three mitigating circumstances —
honorable military service, good character, and mental
impairment. The State presented evidence to rebut each of those
mitigating factors. The jury did not find the proffered
mitigation sufficiently substantial to call for leniency. See
A.R.S. § 13-751(C), (E).
¶50 We will overturn a jury’s imposition of a death
sentence only if no “reasonable jury could have concluded that
the mitigation established by the defendant was not sufficiently
substantial to call for leniency.” Morris, 215 Ariz. at 341
¶ 81, 160 P.3d at 220. Even if we assume Fitzgerald proved each
of his alleged mitigating factors, the jury did not abuse its
discretion in finding the mitigation insufficient to warrant
leniency.
IV. CONCLUSION
¶51 Fitzgerald’s convictions and sentences, including his
26
death sentence, are affirmed.6
__________________________________
John Pelander, Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Ann A. Scott Timmer, Justice
6
Fitzgerald also raises, but does not argue, thirteen issues
“to avoid procedural default and preserve them for further
review.” We do not address those issues here.
27