State v. Delahanty

• Citation: 226 Ariz. 502,250 P.3d 1131,605 Ariz. Adv. Rep. 4
• Decision Date: 08 April 2011
• Docket Number: No. CR–09–0133–AP.,CR–09–0133–AP.
• Parties: STATE of Arizona, Appellee,v.Donald David DELAHANTY, Appellant.
• Court: Supreme Court of Arizona

226 Ariz. 502

250 P.3d 1131

605 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Donald David DELAHANTY, Appellant.

No. CR–09–0133–AP.

Supreme Court of Arizona, En Banc.

April 8, 2011.

Thomas C. Horne, Arizona Attorney General by Kent Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.Michael J. Dew, Phoenix, Attorney for Donald David Delahanty.

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 Donald David Delahanty was convicted of first degree murder, attempted arson, conspiracy to commit first degree murder, and solicitation to commit first degree murder. He was sentenced to death for the murder and to prison terms for the other offenses. We have jurisdiction over his appeal under Article VI, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031 and 13–4033(A)(1) (2010).¹

I. FACTS AND PROCEDURAL BACKGROUND²

¶ 2 On May 10, 2005, Delahanty shot Phoenix Police Officer David Uribe three times in the head and neck, killing him. Officer Uribe, driving a marked patrol car, had stopped a car driven by Christopher Wilson. Delahanty was in the front passenger seat of the car and John Armendariz sat in the back seat. As Wilson sped from the scene, Delahanty said “I just shot a cop”; “we got to burn the car.” After Wilson stopped the car, Delahanty unsuccessfully attempted to destroy it by shooting its gas tank.

¶ 3 Delahanty and Wilson were charged with first degree murder. Wilson pleaded guilty to second degree murder and testified against Delahanty. While awaiting trial, Delahanty sent letters to a girlfriend seeking to have Wilson and Wilson's mother killed.

¶ 4 After conviction, Delahanty and the State waived a jury trial on aggravation. The trial judge found that Delahanty had been convicted of serious offenses committed on the same occasion as the homicide, A.R.S. § 13–751(F)(2), and that the victim was a peace officer killed while performing official duties, A.R.S. § 13–751(F)(10).

¶ 5 Shortly after the penalty phase began, Delahanty sought to waive presentation of mitigation. The trial judge appointed Dr. Bruce Kushner, a psychologist, to determine whether Delahanty was competent to do so. After receiving Dr. Kushner's report, the court concluded that Delahanty had knowingly, intelligently, and voluntarily waived his right to present mitigation. The jury subsequently determined that Delahanty should be sentenced to death.

II. ISSUES ON APPEAL

A. Prescreening Evaluation

¶ 6 The State filed its notice of intent to seek the death penalty in September 2005. The trial court failed to order a competency prescreening, and Delahanty did not object or himself request one. He now claims that the court erred in not ordering a competency prescreening. Because Delahanty did not object below, he must show “both that fundamental error exists and that the error in his case caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).

¶ 7 When the State seeks the death penalty, A.R.S. § 13–754(A) provides that the superior court “shall appoint a psychologist or psychiatrist” to conduct a “prescreening evaluation” to determine whether there is a reasonable basis to order further examination of the defendant's competence to stand trial. Because the statutory language is mandatory, see State v. Harrod, 218 Ariz. 268, 277 ¶ 28, 183 P.3d 519, 528 (2008), the superior court erred in not ordering an evaluation, cf. State v. Armstrong, 218 Ariz. 451, 458 ¶ 15, 189 P.3d 378, 385 (2008) (finding error in failure to order statutorily required mental retardation prescreening).

¶ 8 However, Delahanty cannot establish fundamental error. A competency hearing is required only if “on the basis of the facts and circumstances known to the trial judge, there was or should have been a good faith doubt about the defendant's ability ... to participate intelligently in the proceedings.” State v. Cornell, 179 Ariz. 314, 322–23, 878 P.2d 1352, 1360–61 (1994) (internal citation and quotation marks omitted); see also Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (finding competency hearing required if the evidence “raises a bona fide doubt about the defendant's competence to stand trial”). The critical inquiry is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); see also Ariz. R.Crim. P. 11.1.

¶ 9 The record is replete with evidence that Delahanty understood the proceedings against him and was able to assist in his own defense. Delahanty testified in a pre-trial hearing on a motion to dismiss, filed a pro se motion for “hybrid representation” on the attempted arson count, and spoke directly with the trial judge about an alleged conflict of interest with counsel. The trial court observed Delahanty throughout the trial and characterized his behavior as “appropriate.”

¶ 10 Delahanty nonetheless contends that the trial court's appointment of a psychologist in connection with his waiver of mitigation and the report of Dr. Joseph Wu submitted at sentencing on the non-capital counts raised a “bona fide doubt” as to his competence. We disagree. Before ordering Dr. Kushner to evaluate Delahanty, the trial court made clear that it had no doubts about Delahanty's ability to understand the proceedings, but simply wanted to make sure that he understood the consequences of the waiver. Cf. Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (noting that competency involves the defendant's general ability to understand proceedings, but “the purpose of the knowing and voluntary inquiry ... is to determine whether the defendant actually does understand the significance and consequences of a particular decision”) (internal quotation marks omitted). Dr. Kushner concluded that Delahanty understood the consequences of waiving mitigation, and nothing in his report raised any doubt as to Delahanty's competence.

¶ 11 Nor does Dr. Wu's report suggest a contrary conclusion. Dr. Wu opined that Delahanty suffered from physical trauma to the brain and that “brain damage of that nature reduces the ability of an individual to control impulsive violent urges.” Volatility, however, should not “be equated with mental incompetence to stand trial.” Burket v. Angelone, 208 F.3d 172, 192 (4th Cir.2000).

¶ 12 Accordingly, Delahanty has failed to establish fundamental error. We nonetheless caution all participants in a capital murder trial—defense counsel, the State, and the trial judge—that a competency prescreening is required unless waived, even when the defendant does not request one.

B. Cross–Examination on Psychiatric History

¶ 13 During a police interview several days after the shooting, Wilson said he had not been taking certain prescribed medications. After reviewing this interview, the defense obtained Wilson's records from Correctional Health Services (“CHS”). These records indicate that Wilson told CHS staff that he had been diagnosed with schizophrenia in Indiana, but they do not contain an independent diagnosis of schizophrenia or a confirmation of any previous diagnosis.

¶ 14 The State moved in limine to preclude Delahanty from inquiring into Wilson's mental health history at trial, arguing that no evidence suggested that mental disease affected his ability to perceive and relate events and that discussing mental health would confuse and unduly prejudice the jury. Delahanty responded, attaching an entry from the Diagnostic and Statistical Manual of Mental Disorders which stated that schizophrenia can cause delusions and hallucinations.

¶ 15 Delahanty supplemented the response with a report from Dr. George DeLong, a clinical psychologist, who noted that in the CHS records, Wilson “report[ed] that he has been diagnosed with Schizophrenia.” Dr. DeLong concluded, however, that Wilson's “use of drugs throughout his childhood and adult life confounds the ability of any practitioner to make a diagnosis of Schizophrenia as an independent illness in this case.” Dr. DeLong further noted that Wilson had “a number of conditions and/or symptoms that research conclusively demonstrates to negatively impact a person's abilities to attend, concentrate, and recall.”

¶ 16 The trial court denied the motion in limine in part and granted it in part, stating as follows:

The Court finds that the ability to perceive is always a relevant fact. The Court also recognizes under [Rule] 403 issues of confusion. The Court would allow either party to elicit that Mr. Wilson ... had been prescribed medicine May 10th, 2005, and he was on it or not on it, and what he self perceives his ability to perceive was. The Court would not admit any testimony by any other lay person in terms of any diagnosis, effects of any particular medicine, but would allow any percipient witness to testify regarding the demeanor, ability to perceive of Mr. Wilson, during the relevant period....

There will be no evidence regarding schizophrenia. The Court finds insufficient proffer of what impact, if any, a diagnosis of schizophrenia has on a witness' ability to perceive or relate events.

During cross-examination, Wilson testified that he had stopped taking his medications a month before the murder because they were too expensive, but that his memory was not affected.

¶ 17 Delahanty contends that precluding evidence of Wilson's alleged schizophrenia denied him a fair trial. We review limitations on the scope of cross-examination for abuse of discretion. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982).

¶ 18 “Evidence of a witness's psychological history may be admissible when it goes to [his or] her credibility.” United States v. Sasso, 59 F.3d 341, 347 (2d Cir.1995)....