                                   IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      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. 1 CA-SA 16-0075
                              FILED 6-23-2016


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2013-102236-002
                   The Honorable Hugh E. Hegyi, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                  COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Petitioner

The Blumenreich Law Firm PLLC, Phoenix
By Joshua Blumenreich

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Co-Counsel for Real Party in Interest
                  STATE v. HON. HEGYI/RASMUSSEN
                         Opinion of the Court



                               OPINION

Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            In this special action we are asked to determine whether the
superior court should have granted the State’s motion seeking disclosure of
unredacted mental-health evaluations of the Real Party in Interest, Josh
Rasmussen, who has raised a “guilty except insane” defense under Arizona
Revised Statutes (“A.R.S.”) section 13-502 (2010). Because this legal issue is
of statewide importance, we accept jurisdiction, and grant relief.

                    PROCEDURAL BACKGROUND

¶2            Rasmussen and two co-defendants are charged with armed
robbery and first-degree murder. Rasmussen hired John A. Moran, Ph.D.,
to evaluate his mental-health status. After the evaluation which questioned
his sanity, Rasmussen began exploring a guilty-except-insane defense.

¶3             The State raised concerns about the Moran diagnosis, and
Rasmussen agreed to be evaluated by a court-appointed psychologist. The
superior court appointed D.J. Gaughan, Ph.D., to perform the evaluation.
After the evaluation, Dr. Gaughan agreed Rasmussen met the guilty except
insane criteria. Rasmussen, upon request, provided a copy of both doctors’
notes and data to the State, but redacted statements he made to both
psychologists.

¶4            The State then moved to compel disclosure of Rasmussen’s
redacted statements, arguing disclosure was required because he had
raised the guilty-except-insane defense under A.R.S. §§ 13-502, -3993(D)
(2010), -4508(B) (2010), and Arizona Rule of Criminal Procedure (“Rule”)
11.7(a). Relying on Austin v. Alfred, 163 Ariz. 397, 788 P.2d 130 (App. 1990),
Rasmussen successfully argued he was only required to produce copies of
the doctors’ records with his statements redacted. This special action
followed.




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                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

                               JURISDICTION

¶5            Our decision to accept special action jurisdiction is “highly
discretionary.” State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d
82, 84 (App. 2001). Special action jurisdiction is appropriate when no
“equally plain, speedy, and adequate remedy by appeal” exists, Ariz. R.P.
Spec. Act. 1(a), or when the issue involves a matter of first impression,
statewide significance, or pure questions of law. Romley, 201 Ariz. at 323,
¶ 4, 35 P.3d at 84 (citation omitted). Because the issue of whether a
defendant who raises a guilty-except-insane defense has to disclose
statements he made to a mental-health evaluator is a legal issue of statewide
importance, we accept special action jurisdiction.

                                DISCUSSION

¶6            The State argues that the superior court abused its discretion
by following Austin and denying its motion to compel. The State
specifically argues Austin is inconsistent with case law, statutes, and the
rules of criminal procedure.

¶7              In Austin, this court granted special action relief from a ruling
requiring a criminal defendant to disclose the names and reports of all
mental-health experts he had retained in anticipation of an insanity defense.
163 Ariz. at 398, 788 P.2d at 131. After reviewing Austin’s four arguments,1
id. at 399-403, 788 P.2d at 132-36, this court found, as relevant here, “the trial
court properly required disclosure of the names and reports of mental
health experts retained by [the defendant], but failed to shield from
disclosure statements made by [the defendant] concerning the offenses,” id.
at 403, 788 P.2d at 136.

¶8             Although Austin has remained unchallenged, its premise was
based on the insanity affirmative defense, that is, not guilty by reason of
insanity, State v. Fletcher, 149 Ariz. 187, 192, 717 P.2d 866, 871 (1986) (stating
that insanity is an affirmative defense) (citation omitted), which has been
statutorily modified to “guilty except insane,” see 1993 Ariz. Sess. Laws, ch.


1 Austin raised the following arguments: (1) whether Rule 11.4 only
required disclosure of the experts and reports to be used at trial; (2) whether
the order impermissibly required disclosure of Austin’s statements about
the charged offenses; (3) whether his consultations with the mental-health
experts were protected by the work-product doctrine; and (4) whether his
consultations were protected by the attorney-client privilege. Austin v.
Alfred, 163 Ariz. 397, 399, 788 P.2d 130, 132 (App. 1990).


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                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

256, § 3 (1st. Reg. Sess.); see also Renée Melançon, Arizona’s Insane Response
to Insanity, 40 Ariz. L. Rev. 287, 294-300, 303-304 (1998). After Austin was
decided, the legislature removed the first part of the two-part insanity
defense announced in M’Naghten’s Case, 8 Eng. Rep. 718 (1843), which
inquired into the person’s cognitive capacity; that is, whether a mental
defect leaves a defendant unable to understand what he is doing. Clark v.
Arizona, 548 U.S. 735, 747-48 (2006). What remains is the second part of the
M’Naghten test; namely, “moral capacity,” which requires the defendant to
demonstrate by clear and convincing evidence “that at the time of the
commission of the criminal act [the defendant] was afflicted with a mental
disease or defect of such severity that [the defendant] did not know the
criminal act was wrong.” Id. at 748 (internal quotation marks and citation
omitted); see A.R.S. § 13-502(A), (C).

¶9            Given the change in law after Austin, we review Rules 11.4
and 11.7 to determine whether the State is entitled to the mental-health
reports without any redaction of Rasmussen’s statements to the doctors.
We review the interpretation of court rules de novo, Haroutunian v.
Valueoptions, Inc., 218 Ariz. 541, 544, ¶ 6, 189 P.3d 1114, 1117 (App. 2008)
(citation omitted), and interpret court rules using the same principles
applicable to the interpretation of statutes, Fragoso v. Fell, 210 Ariz. 427, 430,
¶ 7, 111 P.3d 1027, 1030 (App. 2005) (citation omitted).

¶10            Moreover, when interpreting rules and statutes, they “should
be harmonized wherever possible and read in conjunction with each other.”
State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007) (quoting
Phoenix of Hartford, Inc. v. Harmony Rests., Inc., 114 Ariz. 257, 258, 560 P.2d
441, 442 (App. 1977)). However, if a statute and a rule conflict, and the
matter regulated is substantive, as opposed to procedural, the statute must
prevail. See Seisinger v. Siebel, 220 Ariz. 85, 92, ¶ 26, 203 P.3d 483, 490 (2009);
Hansen, 215 Ariz. at 289, ¶ 9, 160 P.3d at 168 (“[W]hen a statute and rule
conflict, we traditionally inquire into whether the matter regulated can be
characterized as substantive or procedural, the former being the
legislature’s prerogative and the latter the province of this Court.”).

                                        I

¶11          Once the insanity defense is raised, A.R.S. § 13-3993 (2010)
allows the defendant to be examined, and removes any physician-patient




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                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

privilege2 as to any communication made “as it relates to the defendant’s
mental state at the time of the alleged crime.” A.R.S. § 13-3993(A), (C). The
statute also provides that:

       If any mental disability defense is raised, both the state and
       the defendant shall receive prior to the trial complete copies
       of any report by a medical doctor or licensed psychologist
       who examines the defendant to determine the defendant’s
       mental state at the time of the alleged crime or the defendant’s
       competency.

A.R.S. § 13-3993(D).


                                        II

¶12            The statute does not address a defendant’s privilege against
self-incrimination under the Fifth Amendment to the United States
Constitution. That constitutional privilege is embodied in Rule 11.7, which
provides that “no [statement of the defendant obtained under these
provisions, or evidence resulting therefrom] . . . shall be admissible at any
proceeding to determine guilt or innocence unless the defendant presents
evidence intended to rebut the presumption of sanity.” Ariz. R. Crim. P.
11.7(a)-(b)(1); State v. Fitzgerald, 232 Ariz. 208, 216, ¶ 43, 303 P.3d 519, 527
(2013) (indicating, by citing to State v. Tallabas, 155 Ariz. 321, 746 P.2d 491
(App. 1987), that Rule 11.7 is grounded in the Fifth Amendment’s privilege
against compelled self-incrimination).

¶13            Although Rule 11.7 protects a defendant’s privilege against
self-incrimination, the rule also recognizes that a defendant can consent to
the use of those statements. Ariz. R. Crim. P. 11.7(b)(1) (stating that a
defendant’s statement cannot be admitted “at the trial of guilt or innocence
. . . without his or her consent”); Tallabas, 155 Ariz. at 323, 746 P.2d at 493.
For example, in Tallabas, after stating that “Rule 11.7(b)(1) codifies the

2 The physician-patient privilege, A.R.S. § 12-2235, is a statutorily created
substantive right, Benton v. Superior Court, 182 Ariz. 466, 469, 897 P.2d 1352,
1355 (App. 1994) (noting “there was no physician-patient privilege at
common law.”) (citation omitted). As such, it can be waived by statute. See
In re Shane B., 198 Ariz. 85, 88, ¶ 9, 7 P.3d 94, 97 (2000) (stating “a substantive
law creates, defines, and regulates rights while a procedural one prescribes
the method of enforcing such rights or obtaining redress.”) (citations
omitted).



                                        5
                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

holding that it is fundamentally unfair for a court-appointed psychiatrist
after compulsory examination to transmit a defendant’s incriminating
statements to the jury,” we held that if a defendant calls a doctor to prove
insanity, the defendant consents to the “prob[ing] and test[ing of] the bases
of the doctor’s opinion of insanity and expos[ing] any statements by
defendant to the doctor insofar as they underlay or relate[] to that opinion.”
155 Ariz. at 323, 746 P.2d at 493; see also Fitzgerald, 232 Ariz. at 217, ¶ 44, 303
P.3d at 528 (stating defendant “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”). Our
holding in Tallabas was consistent with the concept that a defendant “may
not use the privilege as both a sword and a shield . . . by asserting a
particular factual position and then invoking the privilege not only to
buttress such a position but also to prevent the opposing party from
impeaching or otherwise challenging it.” State v. Wilson, 200 Ariz. 390, 396,
¶ 16, 26 P.3d 1161, 1167 (App. 2001) (internal quotes and citations omitted).
As a result, “waiver can be implied when a party injects a matter that, in
the context of the case, creates such a need for the opponent to obtain the
information allegedly protected by the privilege that it would be unfair to
allow that party to assert the privilege.” Id. (quoting State Farm Mut. Auto.
Ins. Co. v. Lee, 199 Ariz. 52, 61, ¶ 23, 13 P.3d 1169, 1178 (2000)); Tallabas, 155
Ariz. at 324, 746 P.2d at 494 (citation omitted).

                                       III

¶14            Rasmussen relies on Austin to preclude the disclosure of his
voluntary statements to his expert, as well as statements he made to the
court-appointed expert, which he might use to support his affirmative
defense. We review Austin in light of Rasmussen’s notice that he plans to
assert the affirmative defense of guilty except insane.

¶15           Austin examined the provisions of Rule 11.4, which is entitled
“[d]isclosure of mental health evidence.” Austin found that Rule 11.4(a),
involving the reports of appointed experts, precludes the disclosure of a
defendant’s statements to a court-appointed expert and requires that any
inculpatory statements be redacted from that expert’s report. 163 Ariz. at
400, 788 P.2d at 133. Austin then turned to subsection (b), which applies to
other experts, that is, non-court-appointed experts, and found the provision
does not require a defendant’s statements to be redacted before being
disclosed. Id. Austin then saw “no reason why subsection (b) should not
provide the same safeguard against disclosure as subsection (a)” because
“[n]o basis exists for disparate treatment of statements made to a court-



                                        6
                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

appointed expert and those made to an expert retained by the defendant.”
Id.

¶16            We find no basis for the conclusion in Austin that Rule 11.4(b)
necessarily must be construed like Rule 11.4(a). First, there was no analysis
leading to the statement. Second, there is a real difference between the two
provisions. A defendant who voluntarily makes statements to a non-court-
appointed expert is not being compelled by a court order to participate in
the mental-health examination, and the privilege against self-incrimination
is not implicated. Compare Phillips v. Araneta, 208 Ariz. 280, 284, ¶ 14, 93
P.3d 480, 484 (2004) (stating that a trial judge ordering a defendant to
participate in a mental-health examination must protect the defendant’s
privilege against incrimination by ensuring no statement made by the
defendant may be used by the prosecution) with State ex rel. Hyder v. Superior
Court (Realtor), 128 Ariz. 253, 256, 625 P.2d 316, 319 (1981) (noting that a
communication is compelled when “when an individual is forced to make
[a] . . . communicative act”).

¶17             Moreover, this court’s role was not to try to guess why our
supreme court had adopted a different rule for non-appointed experts. See
State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003) (“When the
plain text of a statute is clear and unambiguous there is no need to resort to
other methods of statutory interpretation to determine the [drafter’s] intent
because its intent is readily discernable from the face of the statute.”);
Fragoso, 210 Ariz. at 430, ¶ 7, 111 P.3d at 1030 (stating we interpret rules
using tools of statutory interpretation) (citation omitted). And it was not
the court’s role to re-write the rule by inserting a provision from a different
subsection. See Potter v. Vanderpool, 225 Ariz. 495, 500, ¶ 13, 240 P.3d 1257,
1262 (App. 2010) (stating court may not “insert[] words into the rule that do
not exist.”) (relying on Cervantes v. Cates, 206 Ariz. 178, 184, ¶ 24, 76 P.3d
449, 455 (App. 2003)); Bigelsen v. Ariz. State Bd. of Med. Exam’rs, 175 Ariz. 86,
91, 853 P.2d 1133, 1138 (App. 1993) (declining to read term into statutory
provision when legislature has included the term in some places within the
statute, and excluded it in another). Instead, the court’s role was to
determine the drafter’s intent by examining the plain language of the rule
in order to determine whether the trial court had misinterpreted the rule in
ordering disclosure of the medical records. See Fragoso, 210 Ariz. at 430,
¶ 7, 111 P.3d at 1030.

¶18          If our supreme court had intended to allow a defendant’s
statement to a non-court-appointed mental-health expert to be redacted
from the expert’s reports, we presume the court knew how to include that
requirement because the redaction provision was inserted in Rule 11.4(a).


                                       7
                   STATE v. HON. HEGYI/RASMUSSEN
                          Opinion of the Court

See Potter, 225 Ariz. at 499-500, ¶ 13, 240 P.3d at 1261-62 (stating we will not
insert words into the rule that do not exist, and will presume supreme court
would have explicitly stated that a provision applied if it intended to
include it in the rule). For these reasons, we depart from Austin in
concluding that a defendant who is examined by a non-court-appointed
expert cannot, after giving notice of the guilty-except-insane defense, as a
matter of law, redact his statements from his expert’s report under Rule
11.4(b).

                                       IV

¶19            We now turn to this matter. A defendant who undergoes a
court-ordered mental-health examination has a Fifth Amendment privilege
against self-incrimination, and any statement to the examiner about the
facts in the case shall be redacted. See A.R.S. § 13-4508(A), (C) (2010); Ariz.
R. Crim. P. 11.4(a). If, however, a defendant gives notice under Rule 15.2(b)
that he will raise the guilty-except-insane defense, the defendant must
provide the complete and unredacted report from any non-court-appointed
expert. See Ariz. R. Crim. P. 11.4(b).

¶20             Accordingly, Rasmussen will have to provide an unredacted
copy of the court-appointed expert’s report under Rule 15.2(c). Following
our guidance in Tallabas, a court “will imply consent” to any evidence
relating to the expert’s report, “including disclosure of defendant’s
statements at the time of examination, to the extent that such statements
relate to the issue of [guilty except insane],” 155 Ariz. at 325, 746 P.2d at 495,
and which also includes the defendant’s statements that he or she did not
know the criminal act was wrong under § 13-502. See also A.R.S. § 13-
4508(B) (“Any evidence or statement that is obtained during an
examination is not admissible . . . unless the defendant presents evidence
that is intended to rebut the presumption of sanity.”). Moreover, the
disclosure is a matter of fundamental fairness, so that the State can be
prepared to address the affirmative defense at trial. See Wardius v. Oregon,
412 U.S. 470, 475 (1973) (noting that “discovery must be a two-way street”).

¶21           Finally, although the unredacted mental-health reports with
Rasmussen’s statements can be disclosed, the State cannot use them at trial
to prove any element of its case beyond a reasonable doubt. See Fletcher,
149 Ariz. at 192, 717 P.2d at 871. In accordance with Tallabas, at trial the
State may only use the defendant’s statements at the time of the
examination to the extent such statements relate to whether the defendant
was guilty except insane or underlie the examiner’s opinion on that issue.
155 Ariz. at 325, 746 P.2d at 495. Evidence of a defendant’s inculpatory


                                        8
                  STATE v. HON. HEGYI/RASMUSSEN
                         Opinion of the Court

statements may not be admitted at trial to prove guilt. Id. at 326, 746 P.2d
at 496 (citation omitted). Consequently, because Rasmussen has given
notice that he is raising the affirmative defense of guilty except insane, we
grant relief, reverse the ruling denying the State’s motion to compel, and
direct the superior court to order Rasmussen to provide a complete and
unredacted copy of his expert’s report to the State, as well as a complete
and unredacted report from the court-appointed expert to allow the State
to prepare to meet the affirmative defense.

                              CONCLUSION

¶22           Based on the foregoing, we accept special action jurisdiction,
grant relief by reversing the superior court’s order denying the State’s
motion to compel disclosure of the complete, unredacted reports of the two
doctors, and remand for further proceedings consistent with this decision.




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