Action from the Superior Court in Maricopa County The
Honorable Pamela S. Gates, Judge No. CR2015-103569
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
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.
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.
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.
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
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."
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.
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.
We granted review because this case involves a legal issue of
statewide importance. We have jurisdiction pursuant to