SUPREME COURT OF ARIZONA
En Banc
KENNETH PHILLIPS, ) Arizona Supreme Court
) No. CV-03-0351-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 03-0201
THE HONORABLE LOUIS ARANETA, )
JUDGE OF THE SUPERIOR COURT OF ) Maricopa County Superior
THE STATE OF ARIZONA, in and for ) Court
the County of Maricopa, ) No. CR 02-007255
)
Respondent Judge, )
)
STATE OF ARIZONA, )
) O P I N I O N
Real Party in Interest. )
)
__________________________________)
Special Action from Superior Court of Maricopa County
No. CR 02-007255
The Honorable Louis A. Araneta
VACATED; REMANDED
Susan Sherwin, Maricopa County Legal Advocate Phoenix
by Maria L. Schaffer, Deputy Legal Advocate
Attorneys for Kenneth Phillips
Richard M. Romley, Maricopa County Attorney Phoenix
by Paul J. McMurdie, Deputy County Attorney
and Catherine M. Hughes, Deputy County Attorney
Attorneys for the State of Arizona
M c G R E G O R, Vice Chief Justice
¶1 The State has charged Kenneth Phillips with first-
degree murder and sexual assault and is seeking the death
penalty. This case has not yet proceeded to trial. We granted
review to consider whether the trial court judge abused his
discretion (1) by requiring the defendant to submit to a mental
health examination by the State mental health expert after the
defendant notified the State that he will call mental health
experts to testify at the penalty phase of his trial if the jury
returns a guilty verdict or (2) by ordering that, if the
defendant does not cooperate with the State’s mental health
examination, the judge will preclude the defendant’s mental
health-related mitigation evidence. We exercise jurisdiction
pursuant to Article VI, Section 5.3 of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) § 12-120.24 (2003).
I.
¶2 Phillips notified the State that he intends to call
Dr. Anthony Dekker, an addictionologist, and Dr. Marc S. Walter,
a neuropsychologist, to testify during the penalty phase of his
trial. Phillips also provided the experts’ written reports to
the State.1 The State then moved to require Phillips to submit
to a mental health examination by a State-selected expert. The
respondent judge granted the State’s motion, and Phillips
informed the judge that he would not submit to the evaluation.
1
The Arizona Rules of Criminal Procedure require that, in a
capital case, the defendant shall provide to the prosecutor
“[t]he names and addresses of any experts whom the defendant
intends to call during the aggravation and penalty hearings
2
¶3 The judge then considered the appropriate sanction for
Phillips’ refusal. After balancing “the immense gravity of the
death penalty sought by the State against the fair opportunity
to rebut mitigation from the Defendant’s experts,” State v.
Phillips, CR 2002-007255 (Ariz. Super. Ct. Aug. 18, 2003)
(minute entry), the judge issued an order precluding Phillips
from calling Drs. Dekker and Walters at the penalty phase.
Phillips filed a special action petition in the court of
appeals, which declined jurisdiction. We granted review to
address these recurring issues of statewide importance. See
ARCAP 23(c)(3).
II.
¶4 To determine whether the trial judge abused his
discretion, we must balance the State’s right to rebut the
defendant’s mitigation evidence, as assured by A.R.S. § 13-703.D
(Supp. 2003), with the defendant’s right to be free from self-
incrimination, as guaranteed by the Fifth Amendment to the
United States Constitution. U.S. Const. amend. V; see also
Ariz. Const. art. 2, § 10.
_______________
together with any reports prepared excluding the defendant’s
statements.” Ariz. R. Crim. P. 15.2(h)(1)(c).
3
A.
¶5 Arizona’s statutory sentencing procedures permit both
the state and a defendant to rebut any information received at
the aggravation or penalty phase of a capital proceeding:
Evidence that is admitted at the trial and that
relates to any aggravating or mitigating circumstances
shall be deemed admitted as evidence at a sentencing
proceeding if the trier of fact considering that
evidence is the same trier of fact that determined the
defendant’s guilt. The prosecution and the defendant
shall be permitted to rebut any information received
at the aggravation or penalty phase of the sentencing
proceeding and shall be given fair opportunity to
present argument as to whether the information is
sufficient to establish the existence of any of the
circumstances included in subsections F and G of this
section.
A.R.S. § 13-703.D.
¶6 The State argues that this statute requires the court
to order Phillips to submit to an examination by the State’s
expert witness because that is the only course that will allow
the State to fully rebut Phillips’ mitigation evidence. In
response, Phillips contends that the Fifth Amendment grants him
an absolute right to refuse to submit to an examination by an
expert chosen by the court or the State.
¶7 The Fifth Amendment commands that no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. As the United States Supreme Court held
in Estelle v. Smith, the right against self-incrimination
4
applies to statements made during court-ordered mental
examinations related to the penalty as well as the guilt phase
of a trial:
[T]he availability of the [Fifth Amendment] privilege
does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the
statement or admission and the exposure which it
invites. . . . Just as the Fifth Amendment prevents a
criminal defendant from being made the deluded
instrument of his own conviction it protects him as
well from being made the deluded instrument of his own
execution.
451 U.S. 454, 462 (1981) (internal quotations and citations
omitted). Moreover, statements uttered by a defendant in the
context of a court-ordered psychiatric inquiry must be “given
freely and voluntarily without any compelling influences and, as
such, [may] be used [by] the State . . . at the penalty phase
only if [the defendant] ha[s] been apprised of his rights and
ha[s] knowingly decided to waive them.” Id. at 469 (internal
quotations omitted).
¶8 When a defendant places his mental condition at issue,
however, he generally “opens the door” to an examination by an
expert selected by the state or the court. We previously have
considered the right of the state to require a defendant to
submit to a mental health examination for use during the guilt
phase of a capital trial. In State v. Schackart, 175 Ariz. 494,
499, 858 P.2d 639, 644 (1993), for example, defense counsel
indicated that he planned to call a psychiatrist to testify
5
regarding the defendant’s mental state at the time of the
killing. The State then moved to have the defendant examined by
a mental health professional appointed pursuant to Rule 11 of
the Arizona Rules of Criminal Procedure.2 Id. When the trial
court appointed a psychiatrist and ordered the defendant to
submit to an examination with this psychiatrist, the defendant
objected, arguing that ordering him to submit to such an
examination violated his right to be free from compelled self-
incrimination. Id. at 500, 858 P.2d at 645. This court held
that “a defendant who places his or her mental condition in
issue and gives notice of an intention to rely on psychiatric
testimony has ‘opened the door’ to an examination by an expert
appointed on motion of the state.” Id. To hold otherwise, we
2
Rule 11.2(a) provides:
At any time after an information or complaint is filed
or indictment returned, any party may request in
writing, or the court on its own motion may order, an
examination to determine whether a defendant is
competent to stand trial, or to investigate the
defendant’s mental condition at the time of the
offense. The motion shall state the facts upon which
the mental examination is sought. On the motion of or
with the consent of the defendant, the court may order
a screening examination for a guilty except insane
plea pursuant to A.R.S. § 13-502 to be conducted by
the mental health expert. In a capital case, the
court shall order the defendant to undergo mental
health examinations as required under A.R.S. § 13-
703.02 and 13-703.03.
Ariz. R. Crim. P. 11.2(a).
6
explained, “would deprive the state of the only adequate means
to contest the conclusions of a defense psychiatric expert.”
Id.
¶9 Phillips argues that Schackart does not apply because
the defendant there wished to use expert testimony to prove lack
of intent, rather than for mitigation purposes. In our view,
however, the same considerations apply in both contexts. In
both instances, requiring a defendant to submit to a court-
ordered mental examination often provides the only way to
maintain a “fair state-individual balance,” id., and to ensure
the state a meaningful opportunity to rebut the defendant’s
expert testimony. We hold, therefore, that once a defendant
notifies the state that he intends to place his mental condition
at issue during the penalty phase of a capital trial, a trial
judge has discretion to order the defendant to submit to a
mental examination by an expert chosen by the state or the
court.
B.
¶10 Phillips next asserts that, if he must undergo a
court-ordered mental health examination, the results of such an
examination should not be disclosed to the State until and
unless the jury returns a verdict of guilty. Phillips argues
that no procedural safeguards exist to prevent the State from
misusing the results of an examination by a State expert. He is
7
particularly concerned that if he submits to an examination by
the State’s mental health expert, the State either will use his
statements during the guilt phase or will misuse the results
during the sentencing phase of the trial. To prevent such
misuse from occurring, Phillips urges, this court should require
that any report generated by an examination of him by a
government expert be filed under seal and that the result of any
examination be released to the State only in the event that the
jury reaches a guilty verdict and Phillips confirms his intent
to offer mental health evidence in mitigation.
¶11 A number of federal district courts have imposed such
a requirement. For example, in United States v. Edelin, 134 F.
Supp. 2d 45 (D.D.C. 2001), the district court ordered that the
report of the government mental health expert be sealed and not
be discussed with either government or defense lawyers until
after the guilt phase of the trial. Id. at 58-59. The court
further ordered that, if the defendant gave notice, within two
days of the guilty verdict, of his continued intent to use
mental health information at sentencing, the court would release
the sealed reports. Id. at 59; see also United States v.
Minerd, 197 F. Supp. 2d 272, 277 (W.D. Pa. 2002) (ordering that
the results of any examination by the government’s expert be
filed under seal and released only in the event that the jury
reaches a guilty verdict and only after the defendant confirms
8
his intention to offer mental health evidence in mitigation);
United States v. Beckford, 962 F. Supp. 748, 764 (E.D. Va. 1997)
(same); United States v. Vest, 905 F. Supp. 651, 654 (W.D. Mo.
1995) (same).
¶12 Phillips encourages this court to adopt a similar
“seal and gag” procedure. While we agree that a trial judge, in
ordering a defendant to submit to a mental health examination by
an expert of the state’s or court’s choosing, must protect the
defendant’s privilege against self-incrimination, we decline to
require the “seal and gag” procedure required by federal law.3
3
Rule 12.2(b) of the Federal Rules of Criminal Procedure
provides:
If a defendant intends to introduce expert evidence
relating to a mental disease or defect or any other
mental condition of the defendant bearing on either
(1) the issue of guilt or (2) the issue of punishment
in a capital case, the defendant must—within the time
provided for filing a pretrial motion or at any later
time the court sets—notify an attorney for the
government in writing of this intention and file a
copy of the notice with the clerk. The court may, for
good cause, allow the defendant to file the notice
late, grant the parties additional trial-preparation
time, or make other appropriate orders.
Fed. R. Crim. P. 12.2(b).
Rule 12.2(c) of the Federal Rules of Criminal Procedure
provides:
(1) (A) The court may order the defendant to submit
to a competency exam under 18 U.S.C. § 4241.
9
We agree with the State that such a procedure could severely
encumber the State’s ability to rebut the defendant’s mental
health-related mitigation evidence. As the State points out,
the evaluation of a defendant is often the “starting point,”
rather than the “main event,” in determining the mitigating
impact of an individual’s mental health status. After an
examination, an expert frequently requests additional testing or
documentation to assist in forming an opinion, and the
prosecution may need to investigate the accuracy of a
defendant’s assertions. Such post-examination investigation may
be crucial to an expert’s ability to accurately assess and
diagnose a defendant’s mental health. Furthermore, Arizona’s
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(B) If the defendant provides notice under Rule
12.2(a), the court must, upon the
government’s motion, order the defendant to
be examined under 18 U.S.C. § 4242. If the
defendant provides notice under Rule 12.2(b)
the court may, upon the government’s motion,
order the defendant to be examined under
procedures ordered by the court.
(2) The results and reports of any examination
conducted solely under Rule 12.2(c)(1) after
notice under Rule 12.2(b)(2) must be sealed and
must not be disclosed to any attorney for the
government or the defendant unless the defendant
is found guilty of one or more capital crimes and
the defendant confirms an intent to offer during
sentencing proceedings expert evidence on mental
condition.
Fed. R. Crim. P. 12.2(c).
10
sentencing statutes direct that “[t]he penalty phase shall be
held immediately after the . . . aggravation phase . . . .”
A.R.S. § 13-703.01.F (emphasis added). As a practical matter,
the follow-up work often required after an initial mental health
examination cannot be performed during the short recess before
the penalty phase begins.
¶13 We also doubt that most defendants would benefit from
a procedure in which neither the defendant nor his counsel could
examine the report of the state’s expert witness until
immediately before the penalty phase of the trial. Defense
counsel, as much as the prosecutor, generally needs time to
prepare to meet the opinions advanced by the other party’s
expert witness; defense counsel, as much as the prosecutor,
generally requires substantial time to follow up on questions
raised during the mental health examination. For these reasons,
we decline to require that any report generated by an
examination of the defendant by a government expert be filed
under seal or that the result of any examination be released to
the government only in the event that the jury reaches a guilty
verdict and the defendant confirms his intent to offer mental
health evidence in mitigation.4
4
Despite the considerable problems caused by a “seal and
gag” order, a trial judge has discretion to consider that
11
¶14 The trial judge, however, must assure that an order
subjecting a defendant to a mental health examination protects
the defendant’s privilege against self-incrimination. The judge
must fashion an order that ensures that no statement made by the
defendant during the course of the examination, no testimony by
the mental health expert based upon the defendant’s statement,
and no other fruits of the defendant’s statements may be used by
the prosecution or admitted into evidence against the defendant
except on those issues on which the defendant introduces expert
testimony during the penalty phase of the trial. We leave to
the trial judge the decision, in the first instance, as to which
conditions must be imposed to ensure that no statements made by
a defendant will be used improperly during either the guilt or
the penalty phase of the trial.
III.
¶15 We now turn to the issue of whether a trial court may
preclude a defendant from presenting mental health-related
mitigation evidence at the penalty phase of his capital case
when the defendant refuses to undergo an evaluation by the
state’s expert. The State argues that preclusion should always
be the penalty for a defendant’s refusal to submit to an
_______________
procedure in the rare case in which such an order would be
appropriate.
12
evaluation by the State’s expert. Phillips, in contrast,
asserts that preclusion is never an appropriate sanction. We
adopt neither of these extreme positions. We hold that a trial
judge, in the exercise of her discretion, can impose an
appropriate sanction, including preclusion, if a defendant
refuses to cooperate with a court-ordered mental health
examination.
¶16 Although the Arizona Rules of Criminal Procedure do
not directly address the sanction to apply in this instance, the
Rules do allow preclusion as a sanction. Rule 15.7 provides
that a court may impose a sanction of preclusion if a party
fails to make a disclosure required by Rule 15. Ariz. R. Crim.
P. 15.7(a)(1). Similarly, A.R.S. § 13-3993 (2001), which
pertains to examinations of defendants who have invoked an
insanity defense, directs a court to preclude the defendant from
offering expert testimony of his mental state if he refuses to
be examined by the state’s expert.5 Phillips’ refusal to submit
to the court-ordered examination in this instance is closely
analogous to the situations addressed in those provisions.
Reasoning from them, and drawing upon the court’s inherent
5
“If a defendant in a criminal prosecution refuses to be
examined by the state’s mental health experts, the court shall
preclude the defendant from offering expert evidence of the
defendant's mental state at the time of the alleged crime.”
A.R.S. § 13-3993.B (2001).
13
power, a trial court clearly has discretion to preclude a
defendant’s expert evidence at the penalty phase of a trial if
the defendant refuses to submit to a court-ordered evaluation.
¶17 Phillips asserts that, even if the court has authority
to preclude expert evidence, the court should instead impose a
less onerous sanction than preclusion as a penalty for an
accused’s refusal to comply with a court-ordered examination by
the state’s expert. He suggests that the court could, for
example, permit the state to offer evidence that the accused
refused to comply with its expert’s evaluation. See State v.
Schantz, 98 Ariz. 200, 214, 403 P.2d 521, 530 (1965). We doubt,
however, that such a procedure generally would give the state a
“fair opportunity” to refute a defendant’s claim of mental
impairment, as required by A.R.S. § 13-703.D. The procedure
would entirely deprive the state of any ability to present
expert testimony supporting a view contrary to that espoused by
the expert testimony presented on behalf of a defendant.
Furthermore, given that a defendant’s right to remain silent
includes the right not to be questioned about the exercise of
that right, Doyle v. Ohio, 426 U.S. 610, 618-19 (1976); State v.
Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997),
permitting the state to offer evidence that the defendant
refused to comply with a court-ordered expert evaluation could
pose constitutional problems that we need not address today.
14
¶18 Alternatively, Phillips suggests, the trial court
could permit the state’s expert to watch and listen to the
relevant testimony and then render an opinion thereon. See
Burgunder v. State, 55 Ariz. 411, 427, 103 P.2d 256, 263 (1940).
The State finds this suggestion untenable, and we agree. Under
the American Psychological Association’s Code of Ethics,
“psychologists provide opinions of the psychological
characteristics of individuals only after they have conducted an
examination of the individuals adequate to support their
statements or conclusions.” Ethical Standard 9.01(b) of the
Ethical Principles of Psychologists and Code of Conduct (2002).
Because of this requirement, the State argues, it is unlikely
that an expert would consent to testify and offer a professional
opinion based simply on hearing the testimony of the defendant’s
expert during the penalty phase of the trial. The State further
points out that, even if it could find an expert willing to
testify under such circumstances, on cross-examination the
defendant could severely undermine the credibility of an expert
who had neither examined the defendant nor administered any
psychological testing. Moreover, the prosecution would have
been deprived of any opportunity to investigate claims made
during the course of a mental health examination. We agree with
the State that this alternative does not provide an adequate
opportunity to rebut Phillips’ expert testimony.
15
¶19 A trial judge may consider whether, in a particular
case, a sanction other than preclusion adequately protects the
right of the state to rebut a defendant’s testimony. The judge,
however, also has discretion to preclude the use of the
defendant’s expert testimony related to mental health issues
raised by the defendant in mitigation.
IV.
¶20 For the foregoing reasons, we hold that the trial
judge did not abuse his discretion by ordering Phillips to
submit to a mental health evaluation by the State’s expert. We
also hold that the trial judge can preclude Phillips from
presenting mental health-related mitigation evidence if he
refuses to comply with an order directing him to cooperate with
the State’s mental health evaluation.
¶21 The order directing Phillips to submit to the court-
ordered mental health examination did not, however, expressly
protect Phillips’ privilege against self-incrimination. We
therefore vacate the order of the trial court and remand this
matter to the trial court for further proceedings consistent
with this opinion.
____________________________________
Ruth V. McGregor, Vice Chief Justice
16
CONCURRING:
__________________________________
Charles E. Jones, Chief Justice
__________________________________
Rebecca White Berch, Justice
__________________________________
Michael D. Ryan, Justice
__________________________________
Andrew D. Hurwitz, Justice
17
Phillips v. Araneta
Court: Arizona Supreme Court
Date filed: 2004-06-30
Citations: 93 P.3d 480, 208 Ariz. 280
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