Opinion
No. 1 CA-SA 21-0219
11-22-2022
Isaac Damon KING, Petitioner, v. The Honorable Patricia STARR, 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.
Maricopa County Legal Defender's Office, Phoenix, By Raquel Centeno-Fequiere, Chad D. Garner, Counsel for Petitioner Maricopa County Attorney's Office, Phoenix, By Rachel Mitchell, Kirsten Valenzuela, Juli S. Warzynski, Counsel for Real Party in Interest
Maricopa County Legal Defender's Office, Phoenix, By Raquel Centeno-Fequiere, Chad D. Garner, Counsel for Petitioner
Maricopa County Attorney's Office, Phoenix, By Rachel Mitchell, Kirsten Valenzuela, Juli S. Warzynski, Counsel for Real Party in Interest
Judge Brian Y. Furuya delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
FURUYA, Judge:
¶1 Defendant Isaac King seeks special action relief, challenging the superior court's order requiring disclosure of unredacted reports for any mental health professional King hired who he discloses as a testifying witness at an Arizona Rule of Criminal Procedure ("Rule") 11 competency hearing. King argues he has a right to disclose redacted reports, and a contrary finding would violate his Fifth Amendment, due process, and equal protection rights. For the following reasons, we accept jurisdiction, grant relief in part, and deny relief in part.
FACTS AND PROCEDURAL HISTORY
¶2 King is charged with first-degree murder and other felonies. Defense counsel retained Dr. Jennifer Weller—a mental health expert, per Rule 11.3(a)(1)—to evaluate King's competency and provide written reports, which she did on various occasions. Dr. Weller's reports opined King was incompetent. On defense counsel's motion, the superior court appointed two doctors to evaluate King's competency. Both court-appointed doctors concluded King was incompetent but restorable.
¶3 King was then ordered to participate in restoration services. In the months that followed, Dr. Leslie Dana-Kirby, a court-appointed mental health expert, submitted reports opining King remained incompetent but restorable. Later, Dr. Dana-Kirby reported that King would remain incompetent unless restoration services included medication. After further services, King became compliant with his medication requirements, and restoration services continued.
¶4 After slightly more than a year of restoration services, Dr. Dana-Kirby submitted a report opining that King had been restored to competency, albeit medically dependent. The court then set a Rule 11 evidentiary hearing at defense counsel's request. Before this hearing, Defense counsel hired Dr. Weller to consider Dr. Dana-Kirby's report and provide her own competency report. Dr. Weller evaluated King and provided a report, again finding King incompetent. Defense counsel provided notice of intent to call Dr. Weller as a witness for the competency hearing and disclosed a redacted copy of Dr. Weller's most recent report, apparently excluding reference to statements King may have made regarding the charges.
¶5 The State moved to preclude Dr. Weller's testimony, arguing the defense was required to provide the report without redactions because Dr. Weller was not a court-appointed expert. Following a hearing, the court ordered the defense to either provide Dr. Weller's report without redactions or avow that Dr. Weller could testify without reliance on the redaction. Otherwise, the court noted, the evidentiary hearing would be vacated. Defense counsel objected to disclosing King's statements reflected in Dr. Weller's report. The court then vacated the competency hearing. Defense counsel unsuccessfully moved for reconsideration and the court granted a stay of the restoration proceedings pending the outcome of this special action.
DISCUSSION
I. Jurisdiction and Standard of Review.
¶6 "Special action jurisdiction is highly discretionary but may be appropriate when no equally plain, speedy, and adequate remedy by appeal exists." E.H. v. Slayton , 251 Ariz. 289, 291, ¶ 7, 491 P.3d 396, 398 (App. 2021) (quoting Prosise v. Kottke , 249 Ariz. 75, 77, ¶ 10, 466 P.3d 386, 388 (App. 2020) ); Ariz. R. P. Spec. Act. 8(a). Acceptance of such jurisdiction is appropriate where a petitioner has no effective appellate remedy. Nataros v. Super. Ct. , 113 Ariz. 498, 499, 557 P.2d 1055, 1056 (1976).
¶7 King argues that statements made by an incompetent defendant to a retained defense expert about a charged offense are entitled to confidentiality during Rule 11 competency restoration proceedings. Because this issue implicates important Fifth Amendment rights and because the order is interlocutory, we accept special action jurisdiction.
¶8 Resolution of this special action requires us to interpret the extent of Rule 11.4's disclosure requirements for mental health examinations. We review the interpretation of constitutional provisions, statutes, and rules de novo. State v. Hansen , 215 Ariz. 287, 289, ¶ 6, 160 P.3d 166, 168 (2007).
II. Rule 11.4 Disclosure Requirements.
¶9 In determining a defendant's competency, incompetent defendants may be compelled to submit to examination by a mental health expert, chosen and appointed under Rule 11.3. See also A.R.S. § 13-4505(C). Such experts provide their opinions regarding defendants' competency through reports and testimony. See A.R.S. §§ 13-4509, -4514. Disclosure of reports from these court-appointed mental health experts is required by A.R.S. § 13-4514(A), and governed by Rule 11.4(a), which provides, in relevant part:
An expert's report completed under Rule 11.3 must be made available to the examined defendant and the State, except that any statement by the defendant about the charged offense or any other charged or uncharged offense (or any summary of such a statement) may be made available only to the defendant. Upon receipt, court staff will copy and provide the expert's report to the court and defense counsel. Defense counsel is responsible for editing a copy of the report for the State. Defense counsel must provide the edited report to court staff to be made available to the State no later than 3 days after receiving the unedited report.
Rule 11.4(a)(2).
¶10 In addition to court-appointed experts, defendants are also permitted to retain their own experts to conduct any additional examinations at their own expense. A.R.S. § 13-4505(E). Rule 11.4(b) governs disclosure of reports by experts other than those appointed under Rule 11.3, and, as relevant, reads:
For any other mental health expert who has personally examined the defendant or any evidence in connection with the case to determine competence or the defendant's mental status at the time of the offense, the defendant and the State must disclose to each other at least 15 business days before any Rule 11.5 hearing:
...
(3) any written report or statement in connection with the case or, if the expert will testify without preparing a written report, a summary of the general subject matter and opinions on which the expert is expected to testify.
Rule 11.4(b)(3).
III. Hegyi and Austin Did Not Consider Rule 11 Evidentiary Proceedings where a Defendant is Not Competent.
¶11 King relies upon this court's opinion in Austin v. Alfred , 163 Ariz. 397, 788 P.2d 130 (App. 1990) and seeks to distinguish our supreme court's opinion in State v. Hegyi , 242 Ariz. 415, 396 P.3d 1095 (2017). But, neither case controls here.
¶12 In Austin , after submitting to examinations by mental health experts, the defendant gave notice he intended to assert an insanity defense at trial, and then disclosed only the names and reports of those experts he intended to call as witnesses at trial. Austin , 163 Ariz. at 398–99, 788 P.2d at 131–32. The State moved to compel, arguing A.R.S. § 13-3993(D) and Rule 11.4(b) required the disclosure of all mental health experts who had examined him. Austin , 163 Ariz. at 399, 788 P.2d at 132. The superior court granted the motion, finding Rule 11.4(b) required the disclosure of the names and unredacted reports of all mental health examiners. Id. On appeal, however, this court held that while Rule 11.4(b) required disclosure of the names and reports of all examiners, the redaction provisions of Rule 11.4(a) applied to any Rule 11.4(b) requirement. Accordingly, Austin modified the disclosure order "to prohibit disclosure of any statement or summary of [the defendant's] statements concerning the offenses." Id. at 400, 788 P.2d at 133.
¶13 In Hegyi , by contrast, the Arizona Supreme Court held that "a defendant who asserts an insanity defense and voluntarily undergoes a mental health exam must disclose a complete copy of the expert's examination report, including any statements made by the defendant concerning the charge against him." Hegyi , 242 Ariz. at 416, ¶ 1, 396 P.3d at 1096. In doing so, Hegyi expressly disapproved the holding in Austin "to the extent it permits a defendant to redact such statements under Rule 11.4(b)." Hegyi , 242 Ariz. at 419, ¶ 20, 396 P.3d at 1099. Hegyi acknowledged that "[t]he Fifth Amendment applies to statements made by a defendant during a court-ordered mental health examination." Hegyi , 242 Ariz. at 416–17, ¶ 9, 396 P.3d at 1096–97. Such statements are not admissible at trial and need not be disclosed by the defense. Id. at 417, ¶ 10, 396 P.3d at 1097. However, statements made by a defendant during a non-compulsory mental health examination have no such privilege "because the Fifth Amendment only applies to compelled statements." Id. at ¶ 11. In so concluding, Hegyi expressly rejected an argument like one raised by King "that to safeguard [the defendant's] privilege against self-incrimination, the redaction provision contained in Rule 11.4(a) should be read into Rule 11.4(b)." 242 Ariz. at 418, ¶ 15, 396 P.3d at 1098 (citing Austin , 163 Ariz. at 400, 788 P.2d at 133 ).
¶14 As Hegyi observes, Rule 11.4(a)(2) "Reports of Appointed Experts Under Rule 11.3" requires that defense counsel edit any report made by a court-appointed mental health expert who examines a defendant during Rule 11 competency proceedings to remove any statement made by the defendant about charged offenses before being made available to the State.
¶15 Hegyi reasons that "[t]he fact that such language is contained in Rule 11.4(a) but not in Rule 11.4(b) suggests the omission was intentional." 242 Ariz. at 418, ¶ 15, 396 P.3d at 1098. It further explains:
In contrast to a court-ordered exam, a defendant may request a mental health exam. In such cases, a defendant's statements to the examiner are not compelled. Thus, because the Fifth Amendment only applies to compelled statements, the privilege is not implicated.
Consistent with these principles, Arizona's rules and statutes governing mental health exams preserve a defendant's privilege against self-incrimination. Arizona Rule of Criminal Procedure 11.7 is grounded in the Fifth Amendment, and provides that, absent waiver, a defendant's statements to a mental health expert are not admissible at trial.
Hegyi , 242 Ariz. at 417, ¶¶ 11–12, 396 P.3d at 1097 (citations and quotations omitted).
¶16 Hegyi addressed a defendant who raised an insanity defense, not a defendant who has been found incompetent. King argues Hegyi ’s rejection of Austin is inapplicable because he has not asserted an insanity defense but, instead, has been found incompetent and is receiving restoration services. Therefore, King maintains Austin governs and that Rule 11.4(b)’s full disclosure requirements do not apply to restoration hearings.
¶17 King's unresolved competency is a significant distinction from Hegyi . Only a competent defendant may effectively assert an insanity defense, waiving rights under the Fifth Amendment. See State v. Fitzgerald , 232 Ariz. 208, 217, ¶ 45, 303 P.3d 519, 528 (2013). The same cannot be said for an incompetent individual awaiting a competency hearing.
¶18 King further argues Hegyi did not overturn the applicability of Austin to competency restoration proceedings and Hegyi requires only disclosure of unredacted voluntary mental health evaluations if a defendant seeks to assert an insanity defense at trial. Citing Austin , King maintains that "statements made to a court-appointed expert and those made to an expert retained by the defendants" should be treated similarly. See Austin , 163 Ariz. at 400, 788 P.2d at 133. We disagree because Hegyi rejected this proposition. 242 Ariz. at 418, ¶ 15, 396 P.3d at 1098. And moreover, like Hegyi, Austin contemplated only the ability of a competent defendant who had noticed an insanity defense to redact statements made concerning the charged offenses. See Austin , 163 Ariz. at 398–99, 403, 788 P.2d at 131–32. We find no support in Austin that would justify its application to competency restoration proceedings. Therefore, Austin is equally distinguishable and neither case squarely addresses the constitutional implications of submitting unredacted inculpatory statements to the State that incompetent defendants have made during defense-initiated examinations within Rule 11 competency restoration proceedings. Our task, then, is to examine Rule 11.4's redaction provisions within this specific context.
IV. King Cannot Waive His Fifth Amendment Rights While Incompetent.
¶19 King argues that due to his incompetence, he cannot waive his Fifth Amendment rights and approve disclosure of a report containing incriminating statements. We recognize that the Fifth Amendment is not usually implicated in situations where government compulsion is not implicated. See e.g. , Hegyi , 242 Ariz. at 417, ¶ 11, 396 P.3d at 1097 ("the Fifth Amendment only applies to compelled statements"). Therefore, we begin with the foundational question whether the Fifth Amendment is implicated under the circumstances present in this case.
¶20 As noted, Hegyi ’s conclusion that Fifth Amendment protections are not available when competent defendants voluntarily choose to undergo non-compulsory mental health examinations is predicated on implied waiver of those rights implicit in a competent defendant's choice to use such services to support their election to present an insanity defense. Id. But, the situation is substantively different where a defendant has been found incompetent. Our supreme court has already clarified that a "mentally incompetent defendant cannot knowingly or intelligently waive constitutional rights." State v. Cornell , 179 Ariz. 314, 322, 878 P.2d 1352, 1360 (1994). Thus, incompetent defendants are incapable of waiving their Fifth Amendment rights against self-incrimination, impliedly or otherwise.
¶21 While true that defendants are not—strictly speaking—compelled to submit to examinations by defense-retained mental health experts, neither are they capable of agreeing to such examinations. Id. Nor can incompetent defendants be said to validly consent to use of any report of any statements they make during examinations arranged by their counsel. See A.R.S. § 13-4508(D). Because waiver and agreement thereto are not possible, we conclude that additional examinations of incompetent defendants must be treated as akin to compulsion. Thus, where our supreme court has already decreed that "[t]he Fifth Amendment applies to statements made by a defendant during a court-ordered mental health examination," Hegyi , 242 Ariz. at 416–17, ¶ 9, 396 P.3d at 1096–97, we see no reason why the Fifth Amendment would not also apply to statements incompetent defendants make during non-compulsory mental health examinations requested by defense counsel, since incompetent defendants cannot validly agree to undergo them. ¶22 Therefore, to the extent it has not before been stated with clarity, we hold that Fifth Amendment protections apply to statements incompetent defendants make during mental health examinations conducted by examiners retained by the defense pursuant to A.R.S. § 13-4505(E) during Rule 11 competency restoration proceedings. By extension, we agree with King that because he cannot waive his Fifth Amendment rights, Cornell , 179 Ariz. at 322, 878 P.2d at 1360, any of his statements that implicate those Fifth Amendment rights found in Dr. Weller's report cannot be disclosed. Assuming Dr. Weller's report contains inculpatory statements, King is not presently capable of knowingly, voluntarily, and intelligently waiving his constitutional rights to authorize their disclosure. See State v. Jimenez, 165 Ariz. 444, 449, 799 P.2d 785, 790 (1990) ("To be voluntary, a ... defendant's waiver of his constitutional rights must be knowing and intelligent."). We therefore grant partial relief and hold that Dr. Weller's unredacted report cannot be disclosed.
¶23 However, because Hegyi ’s construction of the disclosure requirements of Rule 11.4 remains binding—and is not dependent upon the context of a defendant's competence—the practical result under Rule 11.4(b) in this case is that Dr. Weller also may not testify in the competency hearing. This is because, as a precondition to providing testimony, Rule 11.4(b) requires disclosure of "the results of any mental examinations, scientific tests, experiments, or comparisons conducted on the defendant or on any evidence in the case by or on the behalf of the mental health expert" and "any written report or statement in connection with the case." Rule 11.4(b)(2)–(3).
¶24 Of course, King remains free to retain a different expert, and that expert may evaluate and consult as to his competence. See A.R.S. § 13-4505(E). King may also seek permission from the court to permit such an expert to testify as to his competence. See Rule 11.3(d); Ariz. R. Evid. 702. However, if an expert retained by King is to testify, that expert's materials would be subject to unredacted disclosure. Id. This is because Rule 11.4 does not permit redaction or withholding of any materials generated by a party-retained expert's examinations. Rule 11.4(b).
¶25 Thus, if King's defense wishes to present its own expert's testimony at a competency hearing, it can only do so if the expert's examination, report, and all their materials are free of statements that would implicate constitutional rights that an incompetent defendant cannot waive. Otherwise, the expert must remain a consultant only and cannot testify. Id.
V. Rule 11 Does Not Violate Due Process and Equal Protection Rights.
¶26 King further argues that if, as we hold here, Rule 11 and A.R.S. § 13-4508 effectively preclude his presenting redacted evidence from his defense's own chosen, non-compulsory expert during a competency hearing, then the rule and statute violate his rights to due process and to present a complete defense. We disagree.
King also argues that an interpretation that ignores a Rule 11 defendant's Fifth Amendment rights would violate equal protection. However, our decision makes no such interpretation, so we need not address this argument. See Big D Const. Corp. v. Ct. App. for State of Ariz., Div. One , 163 Ariz. 560, 562–63, 789 P.2d 1061, 1063– 64(App. 1990).
¶27 "[D]ue process is not a static concept, and may vary with the setting." Wassef v. Ariz. State Bd. of Dental Examiners through Hugunin , 242 Ariz. 90, 93, ¶ 12, 393 P.3d 151, 154 (App. 2017). It is understood to generally require "notice and an opportunity to be heard in a meaningful manner and at a meaningful time," Wassef , 242 Ariz. at 93, ¶ 12, 393 P.3d at 154, quoting Gaveck v. Ariz. Bd. of Podiatry Exam'rs , 222 Ariz. 433, 437, ¶ 14, 215 P.3d 1114, 1118 (App. 2009), but overall is "flexible and calls for such procedural protections as the particular situation demands," State v. Stocks , 227 Ariz. 390, 394, ¶ 8, 258 P.3d 208, 212 (App. 2011), quoting Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997).
¶28 King's argument does not account for the limited, non-adversarial purpose of Rule 11 competency proceedings. Rule 11 outlines procedures, examinations, and hearings to protect a defendant's "due process right not to be tried or convicted while incompetent." State v. Kuhs , 223 Ariz. 376, 380, ¶ 13, 224 P.3d 192, 196 (2010) (internal quotation marks omitted); Rule 11. As King acknowledges, Rule 11 proceedings are by nature non-adversarial and do not determine guilt. Huu Thanh Nguyen v. Garcia , 477 F.3d 716, 724–25 (9th Cir. 2007) (citing Tarantino v. Super. Ct. , 48 Cal.App.3d 465, 122 Cal. Rptr. 61, 62–64 (1975) ). To safeguard a defendant's rights to due process, Rule 11.3(a)(2) requires that the court appoint two or more qualified mental health experts to examine a Rule 11 defendant charged with a felony, report to the court, and testify about the defendant's competence. These reports are first provided to defense counsel to make redactions before being shared with the State. See Rule 11.4(a)(2). Procedures and limitations for restoration-of-competency efforts were also explicitly enacted to protect due process and equal protection. See State v. Silva , 222 Ariz. 457, 460–61, ¶ 17, 216 P.3d 1203, 1206–07 (App. 2009) (citing Jackson v. Indiana , 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) ); See also A.R.S. § 13-4508 ; Cmt. to Rule 11.5.
¶29 Due to the limited nature of Rule 11 competency proceedings, it does not offend due process that parties are not per se entitled to retain their own experts who will be partisan to their cause to perform examinations. Stocks , 227 Ariz. at 394, ¶ 8, 258 P.3d at 212. Rather, because these proceedings are intended as non-adversarial fact-finding exercises, the court alone is vested with discretion to permit use of additional experts as it deems necessary for adequate determination of the defendant's mental competence. See Rule 11.3(d) (providing for the court to determine whether a competence examination warrants appointment of additional experts); State v. Bunton , 230 Ariz. 51, 53, ¶ 8, 279 P.3d 1213, 1215 (App. 2012) ("Both the rules and statute give the trial court discretion to order the defendant to submit to necessary examinations"). By extension, allowing such additional experts to provide testimony at trial is also properly a matter left to the sound discretion of the trial court. See Ariz. R. Evid. 702 ; Cf. Bunton , 230 Ariz. at 53, ¶ 8, 279 P.3d at 1215. But the court's discretion is limited by the disclosure requirements of Rule 11.4(b), and we conclude that these requirements likewise do not offend due process, given the demands and circumstances attendant to Rule 11 competency proceedings. Stocks , 227 Ariz. at 394, ¶ 8, 258 P.3d at 212.
¶30 Similarly, the right to present a complete defense—itself derivative from the rights to due process and to confront witnesses—is also not without limit. See State v. Abdi , 226 Ariz. 361, 367, ¶ 27, 248 P.3d 209, 215 (App. 2011) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) ). States may establish rules that appropriately regulate presentation of evidence to assure fairness, even where such rules may operate to constrain a defendant's presentation of their case. See, e.g., id. , (citing Holmes v. South Carolina , 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) ) (acknowledging power of states to enact rules that exclude evidence where its probative value is outweighed by unfair prejudice, confusion of the issues, or potential to mislead the jury). Within Rule 11 competency proceedings, Rule 11.4(b)’s disclosure requirements do not violate King's right to present a complete defense.
¶31 In this case, the record reflects that the court-appointed expert Dr. Dana-Kirby was able to make a final determination of King's competency without asking about the alleged crimes or otherwise soliciting information from King that could implicate his Fifth Amendment rights. It was at defense counsel's behest that King was re-examined and questioned about the offense, but King's answers did not change the court-appointed expert's conclusions. King asks that we allow Dr. Weller to testify to rebut these conclusions at an evidentiary hearing without making the disclosures required under Rule 11.4(b). But, the plain language of Rule 11 does not allow this. Where Dr. Weller's unredacted materials and report would reveal inculpatory statements—thereby placing King's Fifth Amendment rights at issue—Dr. Weller is precluded from making the disclosure required to permit her to testify. See Rule 11.4(b). Therefore, we hold that Dr. Weller cannot testify at King's competency restoration hearing and we deny King's request to allow otherwise.
¶32 This is not to say King cannot offer evidence to rebut Dr. Dana-Kirby's findings. The testimony and evidence so offered need only be free of constitutionally problematic material, such as that which would betray an inculpatory disclosure by King, who at this juncture must be regarded as incompetent and therefore incapable of waiving his Fifth Amendment rights. Cornell , 179 Ariz. at 322, 878 P.2d at 1360.
CONCLUSION
¶33 Inasmuch as Dr. Weller's report contains inculpatory statements made by King, who is incompetent and incapable of waiving his constitutional rights, we accept jurisdiction over King's petition for special action and grant partial relief. We order that King shall not disclose Dr. Weller's unredacted report.
¶34 We deny the further relief King requests and order that Dr. Weller cannot testify at King's competency restoration hearing because Dr. Weller cannot testify absent complete compliance with Rule 11.4(b)’s disclosure requirements, which is impossible for those reasons explained.