Austin v. Alfred
| Decision Date | 27 February 1990 |
| Docket Number | CA-SA,No. 2,2 |
| Citation | 788 P.2d 130,163 Ariz. 397 |
| Parties | Mark AUSTIN, Petitioner, v. The Honorable Michael ALFRED, a Judge for The Superior Court of the State of Arizona, County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest. 90-0002. |
| Court | Arizona Court of Appeals |
Petitioner Mark Austin seeks special action relief from the respondent judge's granting of the real party in interest State of Arizona's motion to compel disclosure of names and reports of mental health experts retained by Austin in anticipation of an insanity defense. For the reasons stated below, we accept jurisdiction and grant partial relief, narrowing the scope of the trial court's disclosure order.
Austin was charged by indictment with first-degree murder, attempted first-degree murder, aggravated assault, and first-degree burglary. Austin submitted to several examinations by mental health experts. After Austin informed the state that he intended to raise an insanity defense, he disclosed only the names and reports of those experts he intended to call as witnesses at trial. The state filed a motion to compel disclosure, seeking the names and reports of all mental health experts who examined him, relying upon A.R.S. § 13-3993(D) and Rule 11.4(b), Ariz.R.Crim.P., 17 A.R.S. Austin opposed the state's motion. Ultimately, the respondent judge ordered Austin to
disclose the names and addresses of any and all mental health experts who have personally examined the Defendant or any evidence in this case, together with the results of mental examinations and scientific tests, experiments or comparisons, including all written reports or statements made by said experts in connection with this case.
This special action followed.
In this special action Austin argues that (1) Rule 11.4(b) requires the defense to disclose only the names and reports of those mental health experts who will be called as defense witnesses; (2) the trial court's order impermissibly requires disclosure of Austin's statements concerning the offenses with which he is charged; (3) his consultations with mental health experts are protected as work product; and (4) such consultations are also protected by the attorney-client privilege.
There are no reported Arizona decisions dealing directly with the issues presented by this special action. Because the matter is of statewide importance, we accept jurisdiction. See Rule 1, Ariz.R.P.Spec.Action, 17B A.R.S.; University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Davis v. Winkler, 51 Ariz.Adv.Rep. 62, (Ct.App. Jan. 9, 1990).
All issues raised by Austin are questions of law and are reviewed de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 52 (1966); Aldabbagh v. Department of Liquor Licenses, 162 Ariz. 415, 418, 783 P.2d 1207, 1210 (App.1989).
Austin argues that Rule 11.4(b), Ariz.R.Crim.P., 17 A.R.S., requires only that the names and reports of defense mental health experts who will testify at trial be disclosed to the state. Rule 11.4 provides in part:
a. Reports of Appointed Experts. The reports of experts made pursuant to Rule 11.3 shall be made available to all parties, except that any statement or summary of the defendant's statements concerning the offense charged shall be made available only to the defendant.
b. Reports of Other Experts. Both parties shall make available to the opposite party for examination and reproduction the names and addresses of mental health experts who have personally examined a defendant or any evidence in the particular case, together with the results of mental examinations and of scientific tests, experiments or comparisons, including all written reports or statements made by them in connection with the particular case.
We disagree with the interpretation suggested by Austin. Fairly construed, this rule permits discovery of all information set forth in the rule and does not limit the required disclosure to those experts who will be called as witnesses and have prepared reports in anticipation of testimony. This construction is reinforced by the provisions of A.R.S. § 13-3993:
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 his mental state at the time of the offense or his competency.
This is not to say, however, that disclosure of the entire contents of such reports are not subject to other restrictions.
Austin argues that the trial court's order impermissibly requires disclosure of all statements made by him to the experts he retains, including any statements regarding the charged offense. Austin argues that disclosure of such statements is prohibited by Rule 1.2, Ariz.R.Crim.P., 17 A.R.S., 1 and State v. Decello, 113 Ariz. 255, 550 P.2d 633 (1976). Rule 1.2 is of little assistance as far as this specific issue is concerned. In Decello, the supreme court found that providing the county attorney with a psychiatric report containing the defendant's statements about the murder offense with which the defendant had been charged constituted error even though the statements were not introduced at trial. 113 Ariz. at 257, 550 P.2d at 635. See also State v. McDonald, 117 Ariz. 159, 160, 571 P.2d 656, 657 (1977); State v. Ramirez, 116 Ariz. 259, 270, 569 P.2d 201, 212 (1977) ().
Decello, McDonald and Ramirez all involved disclosure of defendants' statements contained in reports of court-appointed mental health experts. Rule 11.4(a) expressly exempts from disclosure a defendant's statements made to a court-appointed mental health expert. In the matter before us, the reports were prepared by experts retained by the defense rather than court-appointed defense experts. Subsection (b), which encompasses retained experts, contains no similar exemption for such reports. However, we see no reason why subsection (b) should not provide the same safeguard against disclosure as subsection (a). No basis exists for disparate treatment of statements made to a court-appointed expert and those made to an expert retained by the defendant. Moreover, since the statements may not be used at trial, Rule 11.7, Ariz.R.Crim.P., 17 A.R.S., there is no justification for requiring that they be disclosed. 2
The respondent judge's order must be modified to prohibit disclosure of any statement or summary of Austin's statements concerning the offenses. The reports should be submitted to the trial court for in camera review so that the trial court can excise Austin's statements concerning the offenses.
Austin contends that in order to withstand constitutional scrutiny, Rule 11.4(b) must be read in conjunction with Rule 15.4(b)(1). Rule 15.4(b)(1) codifies the work product principle that originated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 191, 777 P.2d 686, 689 (1989). Rule 15.4(b)(1) provides:
b. Materials Not Subject To Disclosure
(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecutor, members of his legal or investigative staff or law enforcement officers, or of defense counsel or his legal or investigative staff.
Relying upon Ybarra for the principle that the work product of an attorney's expert is also counsel's work product, Austin contends that the work product of all non-testifying mental health professionals retained by him must be treated as counsel's work product. Austin contends that (1) the work product protection was not waived because he is not calling these experts as witnesses, and (2) both parties have equal access to the same information, i.e., the state may retain its own expert to evaluate the defendant.
The general discovery provisions of Rule 15 were not intended to limit the specific procedures set forth under Rule 11. By its own terms, Rule 15 applies to "all discovery under this rule." Rule 15.4, Ariz.R.Crim.P., 17 A.R.S. The rules must be read together in a manner that will not render either of them redundant or contradictory. Cf. City of Mesa v. Salt River Project Agric. Improvement & Power Dist., 92 Ariz. 91, 98, 373 P.2d 722, 727 (1962); Cochise County v. Borowiec, 162 Ariz. 192, 196, 781 P.2d 1379, 1383 (1989). The rules were clearly intended to provide procedures for different circumstances, with Rule 11 applying to the more specific situation where an accused's mental status is at issue. This interpretation recognizes, as the Ybarra court noted, that Ybarra, 161 Ariz. at 193, 777 P.2d at 691. Thus, even if the disclosure ordered comes within the purview of the work product doctrine, protection of such work product is waived where an insanity defense is raised.
Austin raises the related argument that the respondent judge's order violates Austin's right to counsel under both the federal and state constitutions. Austin contends that counsel's duty to investigate the charges and prepare for trial are seriously impeded as a consequence of disclosing the names and reports of retained experts, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80...
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...of [n]ot taking verbatim statements in order to avoid the disclosure required by the rules." Id. ; see also Austin v. Alfred , 163 Ariz. 397, 403, 788 P.2d 130, 136 (App. 1990) (stating that it "would be incongruous to allow a party" to use the attorney-client privilege as a strategic tool ......
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