IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Petitioner,

v.

THE HONORABLE PAMELA S. GATES, JUDGE OF THE SUPERIOR COURT OF THE 

STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

APOLINAR ALTAMIRANO,

Real Party in Interest.

No. CR-17-0326-PR

Filed February 16, 2018

Special Action from the Superior Court in Maricopa County

The Honorable Pamela S. Gates, Judge

No. CR2015-103569 

VACATED AND REMANDED

COUNSEL:

William G. Montgomery, Maricopa County Attorney, Karen Kemper

(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Maricopa County Public Defender’s Office, Steve Warren McCarthy

(argued), Joel Brown, Deputy Public Defenders, Phoenix, Attorneys for 

Real Party in Interest Apolinar Altamirano

Amy P. Knight (argued), Kuykendall & Associates, Tucson; Jana L. Sutton, 

Osborn Maledon, P.A., Phoenix; and John R. Mills, Phillips Black Project, 

San Francisco, California, Attorneys for Amicus Curiae, Arizona Attorneys 

for Criminal Justice
STATE V. GATES (ALTAMIRANO)

Opinion of the Court

2

JUSTICE GOULD authored the opinion of the Court, in which CHIEF

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES 

BRUTINEL, TIMMER, BOLICK, and LOPEZ joined.

JUSTICE GOULD, opinion of the Court:

¶1 In this case, we address the procedure for evaluating a capital 

defendant’s intellectual disability (“ID”) status before trial. Arizona 

Revised Statutes § 13-753(B) states the trial court shall order a pretrial ID

evaluation in every capital case unless the defendant objects. If an objection 

is lodged, the defendant waives the right to a pretrial evaluation. Id. 

¶2 We hold a defendant cannot void his waiver under § 13-

753(B) by later withdrawing his objection. We also hold, however, that a 

defendant’s waiver does not deprive the court of its discretionary authority 

to order a pretrial ID evaluation if the defendant later requests or consents 

to one. 

I.

¶3 In January 2015, Apolinar Altamirano was charged with first

degree murder. Following his indictment, the State filed a notice of intent 

to seek the death penalty. In April 2015, the trial court ordered Altamirano

to undergo an ID prescreening evaluation pursuant to § 13-753. Altamirano 

objected to the evaluation but also stated he did “not waive his right to raise 

these issues at a later time, if appropriate, and his refusal to participate in 

the evaluation[] pursuant to the Court’s order . . . should not be deemed or 

construed as a waiver of that right.” 

¶4 In May 2017, more than two years after filing his objection,

and only four months before the scheduled trial date, Altamirano filed a 

motion “withdraw[ing] his objection to court-ordered testing” and 

“requesting that the statutory requirements of A.R.S. § 13-753(B) be 

applied.” Over the State’s objection, the trial court granted the motion. The 

court concluded that § 13-753(B) permits Altamirano to reinstate his right 

to a pretrial ID evaluation by withdrawing his objection. 
STATE V. GATES (ALTAMIRANO)

Opinion of the Court

3

¶5 The State filed a special action with the court of appeals, 

which declined to exercise jurisdiction. The State then filed a petition for 

review with this Court. 

¶6 We granted review because this case involves a legal issue of 

statewide importance. We have jurisdiction pursuant to article 6, section

5(3), of the Arizona Constitution.

II.

¶7 We review the trial court’s interpretation of a statute de novo. 

Parrot v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶ 7 (2006). In interpreting 

a statute, our goal is to give effect to the legislature’s intent. State v. Peek,

219 Ariz. 182, 184 ¶ 11 (2008). If a statute, by its terms, is unambiguous, we 

apply it as written without resorting to other rules of statutory 

interpretation. State v. Jurden, 239 Ariz. 526, 530 ¶ 15 (2016). Statutes 

relating to the same subject or having the same general purpose “should be 

read in connection with, or should be construed together with other related 

statutes, as though they constituted one law.” State ex rel. Larson v. Farley, 

106 Ariz. 119, 122 (1970); see Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 

(2017) (same).

¶8 Here, we also construe § 13-753(B) against the backdrop of the 

Eighth Amendment. Executing a defendant who has an ID violates the 

Eighth Amendment’s protection against cruel and unusual punishment. 

Atkins v. Virginia, 536 U.S. 304, 307, 321 (2002). Thus, if a court or a jury 

determines a defendant has an ID, a death sentence cannot be imposed. Id.;

see also A.R.S. § 13-753(A) (stating a person who has an ID “shall not be 

sentenced to death”); State v. Escalante-Orozco, 241 Ariz. 254, 266 ¶ 8 (2017).

¶9 In Atkins, the United States Supreme Court left to the states 

“the task of developing appropriate ways to enforce” this constitutional 

restriction. 536 U.S. at 317; see also Moore v. Texas, 137 S. Ct. 1039, 1048-49 

(2017) (holding that states do not have unfettered discretion to reject 

medical community standards in defining ID); Bobby v. Bies, 556 U.S. 825, 

831 (2009) (stating that Atkins “did not provide definitive procedural or 

substantive guides for determining when a person” has an ID). As relevant 

here, Atkins does not require an ID determination be made before trial. See 

Commonwealth v. Sanchez, 36 A.3d 24, 51–53 (Pa. 2011) (noting that Atkins

did not prescribe a procedure mandating a pre-trial determination of a 

defendant’s ID status). 
STATE V. GATES (ALTAMIRANO)

Opinion of the Court

4

¶10 Arizona’s procedure for determining a defendant’s ID status 

is set forth in § 13-753(B), which states:

If the state files a notice of intent to seek the death penalty, the 

court, unless the defendant objects, shall appoint a 

prescreening psychological expert in order to determine the 

defendant's intelligence quotient . . . . If the defendant objects 

to the prescreening, the defendant waives the right to a

pretrial determination of status. The waiver does not 

preclude the defendant from offering evidence of the 

defendant's intellectual disability in the penalty phase.

¶11 Section 13-753 thus grants a capital defendant the right to 

obtain a pretrial evaluation of his ID status. Stated another way, under the 

statute, the court is required to order an ID evaluation; the defendant does 

not have to request an evaluation, nor is he required to make any showing 

to obtain one. Id. 

¶12 If the defendant objects to prescreening, he waives his right to 

a pretrial determination of his intellectual status. Id.; Escalante-Orozco, 241 

Ariz. at 287 ¶ 134. This waiver provision is, by its terms, limited to a 

defendant’s right to obtain a pretrial evaluation; a defendant may still 

present evidence of his ID status during the penalty phase. Id; § 13-753(B). 

¶13 Altamirano argues that § 13-753(B) permits him to void any 

waiver by withdrawing his objection. We disagree. Altamirano’s 

construction of the statute renders the waiver provision meaningless. If, as 

Altamirano contends, he can withdraw his objection at any time before trial

and obtain a pretrial evaluation, there is, effectively, no statutory waiver. 

“We presume the legislature did not intend to write a statute that contains 

a void, meaningless, or futile provision”; thus, “[w]hen possible, we 

interpret statutes to give meaning to every word.” State v. Pitts, 178 Ariz. 

405, 407 (1994). 

¶14 Accordingly, we conclude that § 13-753(B) prohibits

Altamirano from reinstating his right to a pretrial ID evaluation by 

withdrawing his objection. And this conclusion is not altered by 

Altamirano’s qualified objection in which he tried to avoid waiver by 

preserving “his right to raise these issues at a later time.”
STATE V. GATES (ALTAMIRANO)

Opinion of the Court

5

III.

¶15 As noted above, a defendant’s waiver under § 13-753(B) only 

applies to his right to a pretrial ID determination. See supra ¶ 12. The waiver 

provision does not, however, prohibit the court from ordering an ID 

evaluation despite a defendant’s earlier waiver. Section 13-753(B) 

authorizes courts in capital cases to order a prescreening determination of 

a defendant’s ID status. See also A.R.S. § 13-753(H) (stating that if a “trial 

court finds that defendant has an [ID],” it “shall dismiss the intent to seek 

the death penalty,” and “shall not impose a sentence of death on the 

defendant”) (emphasis added). And courts generally have the authority to 

evaluate a criminal defendant’s mental status before trial in both capital and 

noncapital cases. See A.R.S. § 13-754 (authorizing a court, unless defendant 

objects, to order a competency exam in a capital case); A.R.S. § 13-4503 

(stating courts have the authority to order a competency exam in a 

noncapital case); A.R.S. § 13-4506 (permitting a court to order an insanity 

examination). 

 

¶16 However, the court’s authority to order an examination is not 

unlimited. Because a defendant has the right to object to an ID evaluation,

the court may not order an examination unless the defendant either 

requests or consents to the examination. See supra ¶¶ 11, 14. Additionally, 

in making a post-waiver determination, the court must consider whether 

ordering an evaluation would prejudice the state or the victims. Such 

prejudice includes, but is not limited to, whether the evaluation would

require the court to continue an existing trial date. See Ariz. Const. art. 2, 

§ 2.1(A)(10) (stating the victim has a right “[t]o a speedy trial . . . and prompt 

and final conclusion of the case”). Moreover, if the court, after considering 

all the above factors, decides to deny the defendant’s request, the defendant 

may still offer evidence of his ID status during the penalty phase. A.R.S. 

§ 13-753(B). 

IV.

¶17 For the foregoing reasons, we vacate the trial court’s order, 

and we remand this case for that court to consider Altamirano’s request for 

an ID evaluation applying the guidelines set forth in this opinion.