State v. Hon hannah/harris

                               IN THE
                            DIVISION ONE

                  STATE OF ARIZONA, ex rel.
        ALLISTER ADEL, Maricopa County Attorney, Petitioner,


    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
                          FILED 12-31-2020

 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2016-132194-001
                 The Honorable John R. Hannah, Jr., Judge



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
                   STATE v. HON. HANNAH/HARRIS
                          Opinion of the Court


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.


¶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

       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.


¶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

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.


¶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

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

¶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
          •   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 Function-
              Adult Version;
          •   Delis Kaplan Executive Function Systems (selected
          •   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

¶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
          •   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

          •   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

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

¶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

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


¶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.

                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT


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