STATE of Arizona, Appellee, v. John Vincent FITZGERALD, Appellant.
No. CR-10-0307-AP.
Supreme Court of Arizona, En Banc.
May 31, 2013.
303 P.3d 519
Bruce F. Peterson, Maricopa County, Office of the Legal Advocate by Kerri L. Chamberlin, Deputy Legal Advocate, Phoenix, Attorney for John Vincent Fitzgerald.
OPINION
PELANDER, 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
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,
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 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
¶ 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
¶ 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
¶ 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
¶ 11 As amended in 2002,
¶ 12 Fitzgerald contends that the phrase “the verdict” in subsection (b) is unclear in the capital-case context. He 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
¶ 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.
¶ 14 The competing interpretation, urged by Fitzgerald, 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
¶ 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
¶ 18 Because
¶ 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 relief under
¶ 20 Rule 24, however, contains no “discovery rule” exception to the ten-day requirement in
¶ 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 a 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
¶ 22 Based on
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 ¶ 18, 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.
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.
¶ 27 On May 19, as jury selection began in the second 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 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 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
¶ 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 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 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
¶ 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
¶ 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
¶ 42
¶ 43
¶ 44 Fitzgerald, however, waived his privilege against compelled self-incrimination and any protections under
¶ 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, 107 S.Ct. 2906, 97 L.Ed.2d 336 (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 ¶ 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.
¶ 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
¶ 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 death sentence, are affirmed.6
CONCURRING: REBECCA WHITE BERCH, Chief Justice, SCOTT BALES, Vice Chief Justice, ROBERT M. BRUTINEL and ANN A. SCOTT TIMMER, Justices.
Notes
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.