State v. Fitzgerald

• Decision Date: 31 May 2013
• Docket Number: No. CR–10–0307–AP.,CR–10–0307–AP.
• Citation: 232 Ariz. 208,303 P.3d 519
• Parties: STATE of Arizona, Appellee, v. John Vincent FITZGERALD, Appellant.
• Court: Arizona Supreme Court

232 Ariz. 208

303 P.3d 519

STATE of Arizona, Appellee,

v.John Vincent FITZGERALD, Appellant.

No. CR–10–0307–AP.

Supreme Court of Arizona,

En Banc.

May 31, 2013.

Thomas C. Horne, Arizona Attorney General 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, Phoenix, Attorneys for State of Arizona.

Bruce F. Peterson, Maricopa County, Office of the Legal Advocate by Kerri L. Chamberlin, Deputy Legal Advocate, Phoenix, Attorney for John Vincent Fitzgerald.

OPINION

PELANDER, Justice.

[232 Ariz. 209]¶ 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 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 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 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 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 alsoA.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. SeeAriz. 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, 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. SeeA.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 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.

[232 Ariz. 212]¶ 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 guilt verdict, not the later sentencing order.⁴Hickle, 129 Ariz. at 332, 631 P.2d at 114 (finding untimely a motion filed twenty-one days after...