Opinion
No. 1 CA-SA 23-0012
05-25-2023
STATE of Arizona EX REL. Rachel H. MITCHELL, Maricopa County Attorney, Petitioner, v. The Honorable Kevin B. WEIN, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge, Fernando Acosta, Real Party in Interest.
Maricopa County Attorney's Office, Phoenix, By Philip Casey Grove, Counsel for Petitioner Maricopa County Public Defender's Office, Phoenix, By Gary Beren, Jamaar Williams, Counsel for Real Party in Interest
Maricopa County Attorney's Office, Phoenix, By Philip Casey Grove, Counsel for Petitioner
Maricopa County Public Defender's Office, Phoenix, By Gary Beren, Jamaar Williams, Counsel for Real Party in Interest
Vice Chief Judge David B. Gass delivered the opinion of the court, in which Judge Brian Y. Furuya and Chief Judge Kent E. Cattani joined.
GASS, Vice Chief Judge:
¶1 The State of Arizona seeks special action relief from a superior court order denying the State's motion to compel real party in interest, Fernando Acosta, to submit to a mental-health examination by a State-selected expert. We accept special action jurisdiction but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State accused Acosta of attacking and killing his longtime girlfriend after a single-vehicle accident in which Acosta was the driver. Police arrested Acosta at the scene. Following his arrest, Acosta tested positive for methamphetamine, amphetamine, THC, midazolam (a depressant medication), and haloperidol (an anti-psychotic medication).
¶3 The State charged Acosta with first-degree murder, kidnapping, aggravated assault, possession of dangerous drugs, and possession of marijuana for sale. The State later filed a notice of intent to seek the death penalty, which remains pending.
¶4 Acosta disclosed three penalty-phase non-expert mitigation witnesses—his sister, maternal grandmother, and maternal cousin. Acosta indicated the proposed mitigation witnesses will testify about Acosta's relationship with his mother and history of low self-esteem, his history of addiction and drug rehabilitation efforts, the history and nature of his relationship with the victim, and his "erratic" and "paranoid" behavior and lack of sleep shortly before the incident.
¶5 The State then moved to compel Acosta to submit to a mental-health examination by a State-selected expert, arguing Acosta put his mental health at issue with his anticipated mitigation witness testimony. Although Acosta disclosed the mitigation witnesses as non-experts, the State contends the sister's and maternal cousin's testimony will blend the role of expert and non-expert witness testimony, consequently warranting rebuttal expert testimony for two reasons. First, because Acosta's sister handwrote the names of two doctors in a note, the sister may "attempt to buttress her observations of [Acosta's] behavior with information she obtained from medical professionals." Second, because Acosta's maternal cousin works as a nurse at an opioid addiction clinic, the Acosta may suggest his cousin possesses "experience that enhances her credibility with respect to an individual's capacity to appreciate and control their behavior while abusing drugs." ¶6 Acosta has not identified a mental-health expert, instead saying, "[a]t present, defense counsel are unable to identify any retained expert witnesses they may call at any aggravation or penalty trials that are conducted."
¶7 The superior court denied the State's motion, and the State brought this special action. See Ariz. R.P. Spec. Act. 1(a).
ANALYSIS
I. Special action jurisdiction is appropriate.
¶8 The decision to grant or deny special action jurisdiction is discretionary. See Ariz. R.P. Spec. Act. 1(a) (authorizing special action jurisdiction when a party has no "equally plain, speedy, and adequate remedy by appeal"). This court appropriately exercises its discretion to accept jurisdiction when the matter involves a purely legal question of first impression, is of statewide importance, and is likely to recur. See State ex rel. Adel v. Covil , 252 Ariz. 40, 41 ¶ 2, 497 P.3d 989, 990 (App. 2021).
¶9 This case presents an issue of first impression. Arizona's appellate courts have accepted special action jurisdiction in cases involving motions to compel mental-health examinations but have not addressed whether non-expert witness testimony opens the door to a court-ordered examination for rebuttal purposes. See, e.g. , State v. LaBianca , 254 Ariz. 206, 520 P.3d 1196, 1198–99 ¶ 5 (Ariz. App. 2022) ; State v. Druke , 143 Ariz. 314, 315, 693 P.2d 969, 970 (App. 1984). For his part, Acosta argues this court should decline jurisdiction, but his argument focuses on denying the State's requested relief.
¶10 Exercising our discretion, we accept special action review to address a purely legal question of statewide importance. See LaBianca , 520 P.3d at 1198–99 ¶ 5, 520 P.3d at 1198-99.
II. Non-expert witness testimony does not open the door to a court-ordered mental-health examination.
¶11 Acosta intends to proffer non-expert witness mitigation evidence under A.R.S. § 13-751.G.1. That subsection allows Acosta to show his "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution." A.R.S. § 13-751.G.1. Asserting Acosta's proposed non-expert witness testimony about his history of addiction necessarily put his mental health at issue, the State contends the superior court's denial of its request to compel Acosta to participate in a mental-health examination by a state-selected expert deprived it of the "most effective and reliable avenue to meaningfully contest Acosta's mitigation."
¶12 This court reviews a superior court's denial of a motion to compel a mental-health examination for an abuse of discretion. Id . at 1199 ¶ 6 ; see also Druke , 143 Ariz. at 316, 693 P.2d 969. But we review the superior court's conclusions of law de novo . State v. Johnson , 184 Ariz. 521, 523, 911 P.2d 527, 529 (App. 1994).
¶13 As a general principle, "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Estelle v. Smith , 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In deciding whether the superior court erred in denying a request to compel a mental-health examination, this court "must balance the State's right to rebut the defendant's evidence with the defendant's Fifth Amendment protections against self-incrimination." LaBianca , 520 P.3d at 1199 ¶ 6.
¶14 The State relies on Phillips v. Araneta , 208 Ariz. 280, 93 P.3d 480 (2004), in which the Arizona Supreme Court concluded a defendant who plans to call mental-health experts to testify in a trial's penalty phase "opens the door" to examination by a state-selected mental-health expert by putting his mental health at issue. 208 Ariz. at 282 ¶¶ 6, 8, 93 P.3d at 482. But here, Acosta has not expressed an intent to offer expert testimony from any mental-health expert. As a result, the State's reliance on Phillips is unavailing. The State does not identify, and this court has not found, any Arizona case in which a defendant's proposed non-expert witness testimony at the penalty phase opened the door to a compelled mental-health examination by a state-selected expert.
¶15 The State cites cases from other jurisdictions holding proposed non-expert witness testimony is enough to order an examination by a state-selected expert—but those cases involve guilt-phase, mental-status defenses, not penalty-phase mitigation as is the case here. See, e.g. , State v. Fair , 197 Conn. 106, 496 A.2d 461 (1985) ; People v. Diaz , 62 A.D.3d 157, 876 N.Y.S.2d 69 (N.Y. App. Div. 2009) ; Porter v. State , 492 So.2d 970 (Miss. 1986). Defendants who place a specific mental-health condition at issue in that context waive the privilege against compulsory submission to psychiatric examination. Fair , 496 A.2d at 463.
¶16 In the penalty-phase context, however, the analysis is different. Arizona law provides for mitigating factors "relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character." A.R.S. § 13-751.G. Under § 13-751.G.1, a defendant's mental-health evidence may be insufficient to constitute "a defense to prosecution" and may not establish a specific mental-health condition, but the evidence is still relevant to the defendant's request for leniency. And because this type of evidence does not necessarily implicate a specific mental-health condition, it does not automatically open the door to a court-ordered mental-health examination. Cf. A.R.S. § 13-502 (explaining the burden of proof for an insanity defense).
¶17 In the penalty phase, the State may not compel a defendant to submit to a mental-health evaluation unless the defendant proffers a specific mental-health diagnosis or expert testimony. Instead, the State's remedy is to rebut non-expert witness testimony by cross-examining the non-expert witnesses, by offering other testimony, and by highlighting for the fact finder that the non-expert witness is not testifying as a mental-health expert. In reaching our conclusion, we note non-expert witnesses are limited to their own observations and cannot give the impression they are experts. Further, non-expert witnesses cannot offer an opinion or testimony about a defendant's mental-health diagnoses, including current or past diagnoses. If the State raises such issues during defense witness testimony, the superior court should ensure the witness complies with the restrictions regarding non-expert testimony.
CONCLUSION
¶18 The superior court did not err when it found a meaningful difference between expert and non-expert testimony for penalty-phase, mental-health, mitigation issues. But if raised by the State, the superior court can and should appropriately restrict testimony from non-expert witnesses to ensure the jury does not perceive them to be experts.