IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, ex rel.

ALLISTER ADEL, Maricopa County Attorney, Petitioner, 

v.

THE HONORABLE JOHN R. HANNAH, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge, 

KIPLING DAVID HARRIS,

Real Party in Interest.

No. 1 CA-SA 20-0152 

Petition for Special Action from the Superior Court in Maricopa County

No. CR2016-132194-001 

The Honorable John R. Hannah, Jr., Judge

JURISDICTION ACCEPTED; RELIEF GRANTED; REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Julie A. Done, Kristin Larish

Counsel for Petitioner

Maricopa County Public Defender’s Office, Phoenix

By Alicia Dominguez, Nikolas Forner

Counsel for Real Party in Interest

FILED 12-31-2020
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

2

OPINION

Judge David B. Gass delivered the opinion of the Court, in which Presiding 

Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Along with lesser charges, the State charged Kipling David 

Harris with two counts of first-degree murder and noticed its intent to seek 

the death penalty for each. Though the case has not gone to trial, Harris has 

put the State on notice that he will offer evidence of his mental health in a 

potential penalty phase.

¶2 At issue here is whether the superior court abused its 

discretion when it limited the scope of the State’s psychological evaluation

of Harris. Because the superior court did, we accept special action 

jurisdiction and grant relief. We vacate the superior court’s orders and 

remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶3 Harris put the State on notice he intends to offer mitigation 

evidence from two psychologists—Drs. James Sullivan and Jolie Brams—

during the penalty phase if he is convicted of either of the first-degree 

murder charges. Sullivan and Brams authored summaries of their 

independent evaluations of Harris (discussed more fully below), but they 

did not write comprehensive reports. In response, the State sought to have 

Dr. James Seward evaluate Harris. 

¶4 Harris moved to limit the scope of Seward’s evaluation. The 

State opposed Harris’s motion, arguing, among other things, Harris opened 

the door to a full evaluation by putting his mental health at issue and the 

State was entitled to develop evidence rebutting his mitigation evidence. 

After briefing and oral argument, the superior court granted Harris’s 

motion, limiting Seward’s evaluation of Harris as follows: 

1. “[T]he State is not permitted to conduct a general exploration of 

Mr. Harris’ psychology in an effort to reach a diagnosis as though 

from scratch, because that is a lot broader than what the defense 

is intending to present.” 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

3

2. Seward’s “evaluation may not discuss the circumstances of the 

offense, the facts of the offense, and the events immediately 

surrounding the offense.” Instead, “Seward may address in his 

interview Mr. Harris’ life circumstances (to explain his 

developmental trajectory) and his personal history (including his 

experience and performance on probation.)” 

3. Regarding psychological testing:

a. “Seward may administer one broad based personality test, 

either the MMPI or the Personality Assessment Inventory 

(PAI), [but] is prohibited from administering the PCL-R or 

Hare Psychopathy Checklist.” 

b. “[P]rior to the evaluation of Mr. Harris, the State shall 

present the Defense with a good faith list of specific test(s) 

that Dr. Seward intends to administer. Alternatively, Dr. 

Seward may proceed with an evaluation and testing that 

mirrors the defense testing.” 

¶5 The State petitioned for special action review of the superior 

court’s orders. 

SPECIAL ACTION JURISDICTION

¶6 Though this court lacks jurisdiction over direct appeals from 

death sentences, it may “hear and determine petitions for special actions 

brought pursuant to the rules of procedure for special actions.” See A.R.S. 

§ 12-120.21.A.4. “This grant to the Court of Appeals of broad jurisdiction 

over special actions necessarily includes special actions arising out of 

capital cases.” State v. Arellano, 213 Ariz. 474, 476, ¶ 4 (2006). 

¶7 “Special action jurisdiction is highly discretionary but may be 

appropriate when no equally plain, speedy, and adequate remedy by 

appeal exists. Jurisdiction is also appropriate in matters of statewide 

importance, issues of first impression, cases involving purely legal 

questions, or issues that are likely to arise again.” Prosise v. Kottke, 249 Ariz. 

75, 77, ¶ 10 (App. 2020) (quotations omitted). 

¶8 This court generally will decline special action jurisdiction 

over discovery disputes. See Yuma Reg’l Med. Ctr. v. Superior Court, 175 Ariz. 

72, 74 (App. 1993). Here, however, the State has no adequate, alternative 

remedy if it is denied the opportunity to independently develop evidence 

to rebut Harris’s proffered mitigation. This case also raises questions of 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

4

statewide importance concerning the appropriate scope of the State’s 

discovery when a defendant’s mental health will be at issue in a potential 

penalty phase in a capital case. We, therefore, exercise our discretion and 

accept special action jurisdiction. 

ANALYSIS

¶9 When Harris put his mental health at issue as a mitigating 

factor, he waived his Fifth Amendment right against self-incrimination in a 

potential penalty phase. See State v. Rushing, 243 Ariz. 212, 224, ¶ 54 (2017).

The waiver, however, does not mean the State has a right to use Harris’s

statements against him before the penalty phase. See Phillips v. Araneta, 208 

Ariz. 280, 284, ¶ 14 (2004). Indeed, the State may not use, or admit into 

evidence, statements Harris may make during Seward’s examination, any 

testimony from Seward based on those statements, or any “other fruits of 

[Harris’s] statements . . . except on those issues on which [Harris] introduces 

expert testimony during the penalty phase.” See id. (emphasis added).

¶10 Consistent with Phillips, whether evidence from Seward’s 

evaluation of Harris will be admissible is a matter for another day. See id. 

The issue for today is scope of discovery, not Harris’s Fifth Amendment 

rights or the protection of those rights. Specifically, the issue here is the 

extent to which the superior court may limit the State’s ability to develop 

evidence—through psychological testing and interviews—to rebut Harris’s 

mitigation evidence. 

¶11 The State is entitled to “a meaningful opportunity to rebut the 

defendant’s expert testimony.” Id. at 283, ¶ 9; see also State v. Cota, 229 Ariz. 

136, 146, ¶ 37 (2012) (“The State’s examination need not mirror that of the 

defense.”). Though no Arizona case has addressed the precise issue before 

us, Phillips is instructive. In Phillips, the supreme court recognized the need 

“to maintain a fair state-individual balance.” 208 Ariz. at 283, ¶ 9 (quotation 

omitted). Accordingly, when a defendant makes mental health an issue for 

a penalty phase, the superior court cannot “deprive the State of the only 

adequate means to contest the conclusions of a defense psychiatric expert.” 

Id. at ¶ 8 (quoting State v. Schackart, 175 Ariz. 494, 500 (1993)). 

¶12 “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.’” Id. at 285, 

¶ 18 (quoting Ethical Standard 9.01(b) of the Ethical Principles of 

Psychologists and Code of Conduct (2002)). As a result, and as shown in the 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

5

hearing before the superior court, the State’s expert must be allowed to 

conduct the scope of examination, including testing, he believes ethically 

necessary to provide adequate support for his opinions. Id. If the superior 

court’s limitations constrain an expert’s ethical and professional duties, the 

expert is unlikely to consent to offer a professional opinion. See id.

¶13 Within this framework, we examine the orders in this case. 

I. The State’s expert may conduct a general exploration of Harris’s

psychology—even making a diagnosis—to the extent the expert 

deems it ethically necessary to provide adequate support for his 

opinions. 

¶14 Harris’s experts engaged in the examination and testing they 

felt necessary under the circumstances, though so far Harris has given only 

limited insight into their reasoning and conclusions. Sullivan alone 

conducted the following seventeen tests:

• Halstead-Reitan Neuropsychological Battery (selected 

subtests); 

• Perceptual, Motor & Linguistic Screening; 

• Wechsler Adult Intelligence Scale-IV; 

• Wide Range Achievement Test (reading subtest); 

• Judgment of Line Orientation; 

• Wechsler Memory Scale-IV (selected subtests); 

• Rey Osterreith Complex Figure Test; 

• Wisconsin Card Sorting Test; 

• Behavior Rating Inventory of Executive FunctionAdult Version; 

• Delis Kaplan Executive Function Systems (selected 

subtests); 

• Understanding and Appreciation of Miranda Rights; 

• Gudjonsson Suggestibility Scales; 

• The MacArthur Competence Assessment; 

• Tool-Criminal Adjudication; 

• Inventory of Legal Knowledge; 

• Test of Memory Malingering; and 

• Dot Counting Test. 

¶15 Harris asserts “Sullivan did not conduct a forensic interview.” 

But the “status report” Sullivan produced says he “conducted a forensic 

neuropsychological evaluation” of Harris at defense counsel’s request.
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

6

¶16 Harris has not disclosed any detail about the extent of Brams’s

evaluation or identified the tests she conducted. Instead, Harris disclosed a 

letter from Brams stating, in part: 

The scope of my testimony is not to provide an excuse for the 

offense behaviors, but to opine on the defendant’s reduced 

culpability, related to marked deficits in attachment, 

interpersonal relationships, problem solving, and impulse 

control, all primarily related to extremely destructive early 

and later developmental experiences that thwarted his 

emotional growth.

¶17 And Harris’s list of mitigating factors is extensive—26 in all. 

One is a statutory mitigating factor, and 25 are non-statutory. They are: 

• Ability to appreciate the wrongfulness of his conduct 

was significantly impaired (statutory factor); 

• Premature Birth /Insecure Attachment; 

• Brain Damage / Traumatic Brain Injury; 

• Low Average I.Q.; 

• Impaired Executive Function; 

• High Suggestibility; 

• Hyper-masculinity; 

• Dysfunctional Family Background; 

• Family History of Domestic Violence; 

• Verbal and Physical Abuse by Father; 

• Parental Overprotectiveness; 

• Inconsistent Parental Stability; 

• Death of Mother; 

• Exposure to Parental Substance Abuse; 

• Self-Loathing / Self-Blame; 

• Lack of Social Skills / Deficits in Interpersonal 

Relationships; 

• Need for Family and Belonging; 

• Good Conduct during Trial; 

• Good Behavior during Pretrial Incarceration; 

• Ability to Adapt to a Prison Environment; 

• Remorse; 

• Residual Doubt; 

• Parental Abandonment; 

• Deficits in Problem Solving;

• Impulse Control Deficits; and
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

7

• Cumulative Effect of Mitigation. 

¶18 Harris now asserts he “has withdrawn the statutory 

mitigator” regarding his alleged inability to appreciate the wrongfulness of 

his conduct. But, as the State rightly notes, the record does not support this 

assertion. Stated simply, Harris claims Sullivan and Brams will provide 

broad and numerous items supporting mitigation, should they be called on 

to do so. That context—broad potential and as yet undisclosed mitigation 

evidence—makes particularly stark the orders restricting the State’s 

discovery by its expert. 

¶19 Defendants who seek to narrow the State’s discovery 

regarding their mental health bear a heavy burden. See, e.g., Cota, 229 Ariz.

at 146, ¶¶ 36–37; Phillips, 208 Ariz. at 281–84, ¶¶ 4–14. Harris has not met 

this burden. He identifies no prejudice or material inconvenience to him if 

Seward can perform the evaluation Seward determines to be ethically 

necessary to support his opinions. Harris will receive a copy of Seward’s 

report and the evaluation results. If the case proceeds to the penalty phase, 

Harris will be able to challenge the admissibility of this evidence. And until 

then—during the guilt phase—the State is prohibited from inappropriately 

using any evidence Seward develops. See Phillips, 208 Ariz. at 284, ¶ 14. 

¶20 The order barring Seward from conducting a general 

exploration of Harris’s psychology denies the State a “meaningful 

opportunity to rebut [Harris’s] expert testimony.” See id. at 283, ¶ 9. Given 

Harris’s wide-ranging list of mitigating factors, the extensive testing done 

by his experts, and his vague disclosures, Seward must be allowed to 

conduct his work “from scratch” to identify and explore his understanding 

of Sullivan’s and Brams’s theories while also developing his own 

alternative theories. As Seward explained in a letter supporting the State’s 

opposition to Harris’s motion, he does not know exactly what Sullivan and 

Brams addressed with Harris during their evaluations and testing. And he 

does not know the full scope of Sullivan’s and Brams’s opinions.

¶21 Even if Harris’s experts did not conduct forensic 

neuropsychological evaluations, Seward may perform such an evaluation

if he concludes it is ethically necessary to provide adequate support for his 

opinions. Such flexibility is crucial if Seward’s expertise is to guide his 

analysis. Just because Seward may pursue a broader line of investigation 

than the defense experts does not mean it is inappropriate. See id. at 284, 

¶ 12 (additional post-examination testing and investigation “may be crucial 

to an expert’s ability to accurately assess and diagnose a defendant’s mental 

health”). This order effectively precludes Seward from developing his own 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

8

theories to rebut Harris’s evidence by limiting Seward to double-checking 

Sullivan’s and Brams’s work. 

¶22 In short, when Harris put his mental health at issue, he

opened the door to the State examining his general mental-health history 

and condition. See id. at 283, ¶ 8. This order cannot stand because it blocks 

Seward’s ability to meet his ethical and professional obligations when 

forming an opinion of Harris’s psychological state. See id.

II. The State’s expert may question Harris about the circumstances, 

facts, and events immediately surrounding the crimes if the expert 

deems it ethically necessary to provide adequate support for his 

opinions. 

¶23 Harris and the State dispute the extent to which Harris 

discussed the crimes with Sullivan and Brams and how those discussions 

arose. Regardless, those discussions occurred. And Sullivan and Brams

both documented the discussions in their summaries, suggesting they may 

be relevant. The State must be allowed a fair opportunity to discover the 

same information. See Rushing, 243 Ariz. at 224–25, ¶ 54; see also Phillips, 208 

Ariz. at 283, ¶ 9; Schackart, 175 Ariz. at 500.

¶24 As in Rushing, Harris’s mitigating factors relate to the 

circumstances of the offense. See 243 Ariz. at 224–25, ¶ 54. It, therefore, 

would be unfair to prohibit the State’s expert from discussing the offenses 

with Harris. See id. Moreover, discovery of evidence pretrial is a broader 

concept than admissibility of evidence at trial. See State v. Fields, 196 Ariz. 

580, 582, ¶ 4 (App. 1999) (information is discoverable if “it could lead to 

admissible evidence or would be admissible itself”). Though some 

information Harris discloses to Seward ultimately may be inadmissible, the 

State is entitled to discover it based on Harris’s alleged mitigating factors. 

See id. 

III. The State’s expert may administer the tests the expert deems 

ethically necessary to provide adequate support for his opinions, 

which may include new tests and re-administering tests done by 

Harris’s experts. 

¶25 Harris’s experts each presumably conducted the tests they 

determined necessary to comply with their ethical and professional duties.

But the order challenged here does not give the State the same opportunity. 

Under this order, if Seward wants to perform a broad-based personality 

test, he must choose either the MMPI or the PAI. Under no circumstances 

may he use an alternative test, such as the PCL-R or the Hare Psychopathy 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

9

Checklist, even if—in his professional opinion—a different test is more 

appropriate. By dictating the specific tests Seward may perform, the 

superior court inappropriately substituted its judgment for Seward’s. Cf.

State v. Conner, 249 Ariz. 121, 126, ¶ 26 (App. 2020) (“Although serving as a 

gatekeeper, the trial court does not replace the adversarial system.”). 

¶26 Instead of allowing Seward to exercise his professional 

judgment as he evaluates Harris, this order requires Seward to choose 

either Option A (use the same tests Harris’s experts used) or Option B 

(provide in advance a best-guess list of the specific tests he might 

administer—subject to defense objection and court approval). What the 

superior court did is analogous to telling a surgeon to decide in advance 

whether to use Procedure A or Procedure B and barring the surgeon from 

deviating from the chosen course regardless of new circumstances that may 

arise during the surgery or the potential impact on the patient. Few—if 

any—surgeons or patients would accept such a proposal, let alone have a 

court specify what options the surgeon will consider. 

¶27 Here, the superior court imposed such unacceptable 

limitations on Seward. See Phillips, 208 Ariz. at 285, ¶ 18. As Seward 

explained, he cannot determine in advance what tests he will need to 

perform to comply with his ethical and professional duties. Seward, like 

any psychologist, must make those decisions based on his professional 

judgment as he proceeds. And Harris has not explained why the numerous 

tests his experts performed were necessary but other tests Seward may 

want to perform are not. 

¶28 The type and extent of testing an expert performs while

forming an opinion generally is an issue for the expert, not a judge. If 

otherwise qualified experts, providing otherwise admissible evidence,

disagree on the extent or nature of required testing, they should explain 

their reasoning to the jury, not the court. Cf. State v. Bernstein, 237 Ariz. 226, 

230, ¶ 18 (2015) (“In close cases, the trial court should allow the jury to 

exercise its fact-finding function, for it is the jury’s exclusive province to 

assess the weight and credibility of evidence.”). Indeed, Seward’s 

credibility could be subject to devastating cross-examination if he were 

compelled to admit that, in his professional opinion, his work was

incomplete or inadequate because of the order’s limitations. See Phillips, 208 

Ariz. at 285, ¶ 18. 
STATE v. HON. HANNAH/HARRIS

Opinion of the Court

10

CONCLUSION

¶29 This court accepts jurisdiction, grants relief by vacating the 

superior court’s orders, and remands to the superior court for further 

proceedings consistent with this opinion.