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,
2

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).
3

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
4

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
5

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
6

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,
7

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
8

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.”).
9

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).
10

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
11

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).
12

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
13

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 penaltyphase 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.
14

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
15

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
16

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
17

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
18

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
19

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
20

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
21

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 selfincrimination 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 penaltyphase 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
22

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 crossexamine 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 crossexamination 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
23

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
24

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
25

¶ 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)).
26

¶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
27

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.