                     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,
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).

                                           2
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


                                             3
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


                                             4
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


                                               5
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,


                                                     6
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


                                           7
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.”).

                                         8
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).

                                          9
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


                                        10
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).

                                      11
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


                                          12
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 penalty-
      phase 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.


                                        13
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


                                            14
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


                                       15
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


                                             16
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


                                             17
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


                                           18
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


                                         19
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



                                             20
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 self-

incrimination 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 penalty-

phase     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


                                                21
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 cross-

examine 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     cross-

examination 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


                                             22
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


                                            23
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


                                          24
¶ 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)).


                                       25
¶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




                                             26
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.

                                 27
