                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Petitioner,

                                    v.

  THE HONORABLE HUGH HEGYI, JUDGE OF THE SUPERIOR COURT OF THE
      STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                         Respondent Judge,

                           JOSH RASMUSSEN,
                          Real Party in Interest.

                           No. CR-16-0264-PR
                            Filed July 7, 2017

       Special Action from the Superior Court in Maricopa County
                  The Honorable Hugh E. Hegyi, Judge
                          No. CR2013-102236
                    REVERSED AND REMANDED


             Opinion of the Court of Appeals, Division One
                       240 Ariz. 251 (App. 2016)
                              VACATED

COUNSEL:

William G. Montgomery, Maricopa County Attorney, Jeffrey R.
Duvendack, Amanda M. Parker (argued), Deputy County Attorneys,
Phoenix, Attorneys for State of Arizona

Joshua M. Blumenreich, The Blumenreich Law Firm, PLLC, Phoenix; and
Natalee Segal (argued), Ballecer & Segal, LLP, Phoenix, Attorneys for Josh
Rasmussen

Kevin D. Heade (argued), Mikel Steinfeld, Phoenix, Attorneys for Amicus
Curiae Arizona Attorneys for Criminal Justice
                     STATE v. HEGYI (RASMUSSEN)
                         Opinion of the Court



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            We hold that, pursuant to Arizona Rule of Criminal
Procedure 11.4(b), a defendant who asserts an insanity defense and
voluntarily undergoes a mental health exam must disclose a complete copy
of the expert’s examination report, including any statements made by the
defendant concerning the charges against him.             Accordingly, we
disapprove the holding in Austin v. Alfred, 163 Ariz. 397 (App. 1990) to the
extent it permits a defendant to redact such statements under Rule 11.4(b).

                             BACKGROUND

¶2             Defendant Josh Rasmussen was indicted for armed robbery
and felony murder. After the charges were filed, his attorney consulted
with several mental health experts regarding a possible insanity defense.
Based on their opinions, defense counsel filed a supplemental notice of
defenses listing insanity, or guilty except insane, as a defense. A.R.S. § 13-
502(A).

¶3            Rasmussen eventually retained a psychologist to testify in
support of his insanity defense. The State and Rasmussen also agreed to an
examination by a joint expert. Both experts prepared reports that included
statements Rasmussen made about the pending charges.

¶4             The State requested copies of the experts’ reports. Defense
counsel produced copies, but redacted Rasmussen’s statements. The State
moved to compel, seeking disclosure of complete copies. Rasmussen
objected based on Austin, 163 Ariz. at 400, and the superior court denied the
State’s motion. Cf. Austin, 163 Ariz. at 400 (stating that Rule 11.4(b)
implicitly allows a defendant to redact his statements from a mental health
expert’s report). The State then petitioned the court of appeals for special
action relief.



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                      STATE v. HEGYI (RASMUSSEN)
                          Opinion of the Court

¶5            The court of appeals accepted jurisdiction and granted relief,
reversing the superior court’s order. State v. Hegyi, 240 Ariz. 251, 256-57
¶¶ 21-22 (App. 2016). Departing from Austin, the court held “that a
defendant who is examined by a non-court-appointed expert cannot, after
giving notice of the guilty-except-insane defense . . . redact his statements
from his expert’s report under Rule 11.4(b).” Hegyi, 240 Ariz. at 256 ¶ 18.

¶6           We granted review to resolve whether Rule 11.4(b) requires a
defendant to disclose his statements contained in a mental health expert’s
report. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.

                                DISCUSSION

¶7            We review de novo the interpretation of constitutional
provisions, statutes, and rules. State v. Hansen, 215 Ariz. 287, 289 ¶ 6 (2007).

¶8            Rasmussen argues the statements he made during his mental
health exams are privileged under the Fifth Amendment and, as a result,
are not subject to disclosure under Rule 11.4(b). U.S. Const. amend. V.

¶9             The Fifth Amendment applies to statements made by a
defendant during a court-ordered mental health examination. Estelle v.
Smith, 451 U.S. 454, 462, 468 (1981); Phillips v. Araneta, 208 Ariz. 280, 282 ¶ 7,
284 ¶ 14 (2004). A defendant is not required to disclose statements made
during a court-ordered exam, and such statements are not admissible at
trial. Smith, 451 U.S. at 462, 468; Araneta, 208 Ariz. at 284 ¶ 14.

¶10            However, when a defendant asserts an insanity defense, he
waives his self-incrimination privilege. Kansas v. Cheever, 134 S. Ct. 596, 601
(2013); State v. Schackart, 175 Ariz. 494, 500-01 (1993); State v. Tallabas, 155
Ariz. 321, 324-26 (App. 1987). Such waiver is analogous to the rule that a
defendant who chooses to testify at trial may not invoke his Fifth
Amendment privilege to avoid cross-examination. Cheever, 134 S. Ct. at 601;
Schakart, 175 Ariz. at 500-01; Tallabas, 155 Ariz. at 324-26. Additionally,
fairness requires the State have access to a defendant’s statements to “rebut
the evidence [of insanity] presented by the defendant.” State v. Druke, 143
Ariz. 314, 318 (App. 1984); see Cheever, 134 S. Ct. at 601 (same).



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                      STATE v. HEGYI (RASMUSSEN)
                          Opinion of the Court

¶11            In contrast to a court-ordered exam, a defendant may request
a mental health exam. In such cases, a defendant’s statements to the
examiner are not compelled. Thus, because the Fifth Amendment only
applies to compelled statements, the privilege is not implicated. See
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987) (when a defendant
requests a psychiatric exam or presents expert testimony in support of a
psychiatric defense, he has no Fifth Amendment privilege against the
admission of statements made during the psychiatric exam); State v. Mauro,
159 Ariz. 186, 195 (1988) (holding that “the [F]ifth [A]mendment protections
. . . are inapplicable” when a defendant asserts an insanity defense and
requests the court appoint an expert to examine him); State v. Smith, 131
Ariz. 29, 34 (1981) (“Since the appellant was examined at his own request,
the exposure which was invited was a clear waiver of constitutional
guarantees.”).

¶12            Consistent with these principles, Arizona’s rules and statutes
governing mental health exams preserve a defendant’s privilege against
self-incrimination. Cf. Hansen, 215 Ariz. at 289 ¶ 7 (stating that when
possible, rules, statutes and constitutional protections should be
harmonized). Arizona Rule of Criminal Procedure 11.7 is “grounded in the
[F]ifth [A]mendment,” and provides that, absent waiver, a defendant’s
statements to a mental health expert are not admissible at trial. Tallabas, 155
Ariz. at 323. Similarly, A.R.S. § 13-4508(A) states that “[t]he privilege
against self-incrimination applies to any [mental health] examination that
is ordered by the court pursuant to this chapter.”

¶13            Arizona’s rules and statutes also provide that a defendant
may waive his self-incrimination privilege if he asserts an insanity defense.
Rule 11.7(a) prohibits admission of a defendant’s statements “unless the
defendant presents evidence intended to rebut the presumption of sanity.”
Similarly, Rule 11.7(b)(1) provides that a defendant’s statements about the
pending charges are not admissible “without his [ ] consent.” See State v.
Fitzgerald, 232 Ariz. 208, 217 ¶ 44 (2013) (stating defendant waives privilege
contained in Rule 11.7(b)(1) by placing his mental health at issue; by doing
so “defendant consent[s] to” admission of his statements “for purposes of
[Rule 11.7(b)(1)]”); Tallabas, 155 Ariz. at 325-26 (holding that a defendant
who has an expert testify regarding an insanity defense thereby “consents”
to the use of his statements for rebuttal under Rule 11.7(b)(1)); see also A.R.S.
§ 13-4508(B) (defendant’s statements obtained during an examination are
not admissible “unless the defendant presents evidence that is intended to

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                     STATE v. HEGYI (RASMUSSEN)
                         Opinion of the Court

rebut the presumption of sanity”); A.R.S. § 13-3993(D) (requiring disclosure
of a mental health expert’s complete report “[i]f any mental disability
defense is raised”).

¶14           Finally, Rule 11.4 addresses disclosure of a defendant’s
statements made during court-ordered and noncompulsory exams.
Compare Rule 11.4(a) (referring to “Reports of Appointed Experts”), with
Rule 11.4(b) (referring to “Reports of Other Experts”). Under Rule 11.4(a),
when a defendant undergoes a court-ordered exam, his statements to the
examiner “shall be made available only to the defendant.” In contrast, Rule
11.4(b), which applies to noncompulsory exams, provides that each party
“shall make available to the opposite party . . . all written reports or
statements made by them in connection with the particular case.” Id.
(emphasis added).

¶15           Relying on Austin, Rasmussen argues that to safeguard his
privilege against self-incrimination, the redaction provision contained in
Rule 11.4(a) should be read into Rule 11.4(b). Austin, 163 Ariz. at 400. We
reject Rasmussen’s argument. Rule 11.4(b), by its terms, does not refer to
redacting a defendant’s statements. The fact that such language is
contained in Rule 11.4(a) but not in Rule 11.4(b) suggests the omission was
intentional. See City of Flagstaff v. Mangum, 164 Ariz. 395, 398-99 (1990)
(“Where the legislature uses a term within one statute and excludes it from
another, the term usually will not be read into the provision from which it
was excluded.”).

¶16            Rasmussen also contends that Rule 11.7(b)(1) prohibits
disclosure of his statements. We disagree. Here, Rasmussen waived the
privilege contained in Rule 11.7(b)(1) by asserting an insanity defense. See
supra at ¶ 13.

¶17           Rasmussen also argues that, as a policy matter, compelling
defendants to disclose statements under Rule 11.4(b) will force defense
counsel to make an untenable choice. On the one hand, if counsel seeks to
investigate whether a defendant has a viable insanity defense, and retains
an expert to assist in investigating that possibility, the defendant’s
potentially incriminating statements must be disclosed to the state. On the
other hand, if counsel foregoes investigating an insanity defense in order to
protect a defendant’s incriminating statements from the state, the
defendant may be deprived of asserting a viable defense. Cf. Austin, 163

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                      STATE v. HEGYI (RASMUSSEN)
                          Opinion of the Court

Ariz. at 401 (stating that “counsel’s duty to investigate the charges and
prepare for trial are seriously impeded as a consequence of disclosing the
names and reports of retained experts”).

¶18           These concerns are unwarranted. The work product privilege
protects disclosure of a defendant’s statements to an expert retained solely
for the purpose of trial preparation. See Ariz. R. Crim. P. 15.4(b)(1) (work
product privilege); see also Ariz. R. Civ. Proc. 26(b)(4)(B) (“[A] party may
not discover facts known or opinions held” by an expert retained for trial
preparation “and who is not expected to be called as a witness at trial.”).
However, when a defendant asserts an insanity defense and lists a mental
health expert as a trial witness, the work product privilege is waived, and
his statements to the expert must be disclosed. State ex rel. Corbin v. Ybarra,
161 Ariz. 188, 191-93 (1989); see Ariz. R. Crim. P. 15.2(c)(2) (requiring
defendant to disclose the names and examination reports of trial experts).

¶19            Although we hold that disclosure is required under Rule
11.4(b), this does not mean that all of Rasmussen’s statements are
admissible at trial. Such statements are only admissible to rebut his insanity
defense, and are not admissible to prove his guilt. A.R.S. § 13-4508(B);
Cheever, 134 S. Ct. at 601; Buchanan, 483 U.S. at 422-23; Tallabas, 155 Ariz. at
323-25; cf. Ariz. R. Evid. 403. We recognize there may be overlap between
Rasmussen’s statements about the offense and those relevant to his insanity
defense. Tallabas, 155 Ariz. at 326. Nonetheless, the superior court must
ensure that the State’s use of Rasmussen’s statements is “closely tailored”
to rebutting his insanity defense. Fitzgerald, 232 Ariz. at 216-17 ¶¶ 39, 45;
see Cheever, 134 S. Ct. at 603 (holding that a defendant’s statements to an
examiner are only admissible for the limited purpose of rebutting
defendant’s insanity evidence); Tallabas, 155 Ariz. at 325 (distinguishing
between the admissibility of “statements relating to the issue of insanity
from [inadmissible] statements wholly unrelated to that issue but tending
to prove guilt”).

¶20            We therefore hold that under Rule 11.4(b), a defendant who
asserts an insanity defense and voluntarily undergoes a mental health exam
must disclose a complete copy of his trial expert’s report, including any
statements made about the pending charges. Accordingly, we disapprove
of Austin to the extent it holds that such statements must be redacted under
Rule 11.4(b).


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                     STATE v. HEGYI (RASMUSSEN)
                         Opinion of the Court

                             CONCLUSION

¶21           For the foregoing reasons, we vacate the opinion of the court
of appeals, reverse the superior court’s order denying the state’s motion to
compel, and remand the case to the superior court for further proceedings.




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