                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Petitioner,

                                   v.

THE HONORABLE PAMELA S. GATES, JUDGE OF THE SUPERIOR COURT OF THE
      STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                         Respondent Judge,

                        APOLINAR ALTAMIRANO,
                         Real Party in Interest.

                           No. CR-17-0326-PR
                         Filed February 16, 2018

       Special Action from the Superior Court in Maricopa County
                 The Honorable Pamela S. Gates, Judge
                          No. CR2015-103569
                     VACATED AND REMANDED


COUNSEL:

William G. Montgomery, Maricopa County Attorney, Karen Kemper
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Maricopa County Public Defender’s Office, Steve Warren McCarthy
(argued), Joel Brown, Deputy Public Defenders, Phoenix, Attorneys for
Real Party in Interest Apolinar Altamirano

Amy P. Knight (argued), Kuykendall & Associates, Tucson; Jana L. Sutton,
Osborn Maledon, P.A., Phoenix; and John R. Mills, Phillips Black Project,
San Francisco, California, Attorneys for Amicus Curiae, Arizona Attorneys
for Criminal Justice
                    STATE V. GATES (ALTAMIRANO)
                         Opinion of the Court




JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, TIMMER, BOLICK, and LOPEZ joined.

JUSTICE GOULD, opinion of the Court:

¶1            In this case, we address the procedure for evaluating a capital
defendant’s intellectual disability (“ID”) status before trial. Arizona
Revised Statutes § 13-753(B) states the trial court shall order a pretrial ID
evaluation in every capital case unless the defendant objects. If an objection
is lodged, the defendant waives the right to a pretrial evaluation. Id.

¶2            We hold a defendant cannot void his waiver under § 13-
753(B) by later withdrawing his objection. We also hold, however, that a
defendant’s waiver does not deprive the court of its discretionary authority
to order a pretrial ID evaluation if the defendant later requests or consents
to one.
                                       I.

¶3            In January 2015, Apolinar Altamirano was charged with first
degree murder. Following his indictment, the State filed a notice of intent
to seek the death penalty. In April 2015, the trial court ordered Altamirano
to undergo an ID prescreening evaluation pursuant to § 13-753. Altamirano
objected to the evaluation but also stated he did “not waive his right to raise
these issues at a later time, if appropriate, and his refusal to participate in
the evaluation[] pursuant to the Court’s order . . . should not be deemed or
construed as a waiver of that right.”

¶4             In May 2017, more than two years after filing his objection,
and only four months before the scheduled trial date, Altamirano filed a
motion “withdraw[ing] his objection to court-ordered testing” and
“requesting that the statutory requirements of A.R.S. § 13-753(B) be
applied.” Over the State’s objection, the trial court granted the motion. The
court concluded that § 13-753(B) permits Altamirano to reinstate his right
to a pretrial ID evaluation by withdrawing his objection.



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                     STATE V. GATES (ALTAMIRANO)
                          Opinion of the Court

¶5           The State filed a special action with the court of appeals,
which declined to exercise jurisdiction. The State then filed a petition for
review with this Court.

¶6             We granted review because this case involves a legal issue of
statewide importance. We have jurisdiction pursuant to article 6, section
5(3), of the Arizona Constitution.
                                   II.

¶7             We review the trial court’s interpretation of a statute de novo.
Parrot v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶ 7 (2006). In interpreting
a statute, our goal is to give effect to the legislature’s intent. State v. Peek,
219 Ariz. 182, 184 ¶ 11 (2008). If a statute, by its terms, is unambiguous, we
apply it as written without resorting to other rules of statutory
interpretation. State v. Jurden, 239 Ariz. 526, 530 ¶ 15 (2016). Statutes
relating to the same subject or having the same general purpose “should be
read in connection with, or should be construed together with other related
statutes, as though they constituted one law.” State ex rel. Larson v. Farley,
106 Ariz. 119, 122 (1970); see Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7
(2017) (same).

¶8            Here, we also construe § 13-753(B) against the backdrop of the
Eighth Amendment. Executing a defendant who has an ID violates the
Eighth Amendment’s protection against cruel and unusual punishment.
Atkins v. Virginia, 536 U.S. 304, 307, 321 (2002). Thus, if a court or a jury
determines a defendant has an ID, a death sentence cannot be imposed. Id.;
see also A.R.S. § 13-753(A) (stating a person who has an ID “shall not be
sentenced to death”); State v. Escalante-Orozco, 241 Ariz. 254, 266 ¶ 8 (2017).

¶9            In Atkins, the United States Supreme Court left to the states
“the task of developing appropriate ways to enforce” this constitutional
restriction. 536 U.S. at 317; see also Moore v. Texas, 137 S. Ct. 1039, 1048-49
(2017) (holding that states do not have unfettered discretion to reject
medical community standards in defining ID); Bobby v. Bies, 556 U.S. 825,
831 (2009) (stating that Atkins “did not provide definitive procedural or
substantive guides for determining when a person” has an ID). As relevant
here, Atkins does not require an ID determination be made before trial. See
Commonwealth v. Sanchez, 36 A.3d 24, 51–53 (Pa. 2011) (noting that Atkins
did not prescribe a procedure mandating a pre-trial determination of a
defendant’s ID status).

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                     STATE V. GATES (ALTAMIRANO)
                          Opinion of the Court

¶10             Arizona’s procedure for determining a defendant’s ID status
is set forth in § 13-753(B), which states:

       If the state files a notice of intent to seek the death penalty, the
       court, unless the defendant objects, shall appoint a
       prescreening psychological expert in order to determine the
       defendant's intelligence quotient . . . . If the defendant objects
       to the prescreening, the defendant waives the right to a
       pretrial determination of status. The waiver does not
       preclude the defendant from offering evidence of the
       defendant's intellectual disability in the penalty phase.

¶11            Section 13-753 thus grants a capital defendant the right to
obtain a pretrial evaluation of his ID status. Stated another way, under the
statute, the court is required to order an ID evaluation; the defendant does
not have to request an evaluation, nor is he required to make any showing
to obtain one. Id.

¶12           If the defendant objects to prescreening, he waives his right to
a pretrial determination of his intellectual status. Id.; Escalante-Orozco, 241
Ariz. at 287 ¶ 134. This waiver provision is, by its terms, limited to a
defendant’s right to obtain a pretrial evaluation; a defendant may still
present evidence of his ID status during the penalty phase. Id; § 13-753(B).

¶13            Altamirano argues that § 13-753(B) permits him to void any
waiver by withdrawing his objection. We disagree. Altamirano’s
construction of the statute renders the waiver provision meaningless. If, as
Altamirano contends, he can withdraw his objection at any time before trial
and obtain a pretrial evaluation, there is, effectively, no statutory waiver.
“We presume the legislature did not intend to write a statute that contains
a void, meaningless, or futile provision”; thus, “[w]hen possible, we
interpret statutes to give meaning to every word.” State v. Pitts, 178 Ariz.
405, 407 (1994).

¶14          Accordingly, we conclude that § 13-753(B) prohibits
Altamirano from reinstating his right to a pretrial ID evaluation by
withdrawing his objection. And this conclusion is not altered by
Altamirano’s qualified objection in which he tried to avoid waiver by
preserving “his right to raise these issues at a later time.”


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                     STATE V. GATES (ALTAMIRANO)
                          Opinion of the Court

                                       III.

¶15            As noted above, a defendant’s waiver under § 13-753(B) only
applies to his right to a pretrial ID determination. See supra ¶ 12. The waiver
provision does not, however, prohibit the court from ordering an ID
evaluation despite a defendant’s earlier waiver. Section 13-753(B)
authorizes courts in capital cases to order a prescreening determination of
a defendant’s ID status. See also A.R.S. § 13-753(H) (stating that if a “trial
court finds that defendant has an [ID],” it “shall dismiss the intent to seek
the death penalty,” and “shall not impose a sentence of death on the
defendant”) (emphasis added). And courts generally have the authority to
evaluate a criminal defendant’s mental status before trial in both capital and
noncapital cases. See A.R.S. § 13-754 (authorizing a court, unless defendant
objects, to order a competency exam in a capital case); A.R.S. § 13-4503
(stating courts have the authority to order a competency exam in a
noncapital case); A.R.S. § 13-4506 (permitting a court to order an insanity
examination).

¶16            However, the court’s authority to order an examination is not
unlimited. Because a defendant has the right to object to an ID evaluation,
the court may not order an examination unless the defendant either
requests or consents to the examination. See supra ¶¶ 11, 14. Additionally,
in making a post-waiver determination, the court must consider whether
ordering an evaluation would prejudice the state or the victims. Such
prejudice includes, but is not limited to, whether the evaluation would
require the court to continue an existing trial date. See Ariz. Const. art. 2,
§ 2.1(A)(10) (stating the victim has a right “[t]o a speedy trial . . . and prompt
and final conclusion of the case”). Moreover, if the court, after considering
all the above factors, decides to deny the defendant’s request, the defendant
may still offer evidence of his ID status during the penalty phase. A.R.S.
§ 13-753(B).
                                       IV.

¶17          For the foregoing reasons, we vacate the trial court’s order,
and we remand this case for that court to consider Altamirano’s request for
an ID evaluation applying the guidelines set forth in this opinion.




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