Brooks v. Jennings

• Decision Date: 15 June 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 498 P.2d 481,17 Ariz.App. 407
• Parties: Don Joseph BROOKS, Petitioner, v. The Honorable Renz D. JENNINGS, Justice of the Peace, East Phoenix Precinct; The Honorable Robert L. Myers, Judge of the Maricopa County Superior Court; STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Real Party in Interest, Respondents. 1988.
• Court: Arizona Court of Appeals

Page 481

498 P.2d 481

17 Ariz.App. 407

Don Joseph BROOKS, Petitioner, v. The Honorable Renz D. JENNINGS, Justice of the Peace, East Phoenix Precinct No. 1; The Honorable Robert L. Myers, Judge of the Maricopa County Superior Court; STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Real Party in Interest, Respondents.

No. 1 CA-CIV 1988.

Court of Appeals of Arizona, Division 1, Department B.

June 15, 1972.

Rehearing Denied July 13, 1972.

Review Denied Sept. 19, 1972.

Stewart & Florence, by Henry J. Florence, Phoenix, for petitioner.

Moise Berger, Maricopa County Atty., by Joseph Abodeely, Deputy County Atty., Phoenix, for respondents.

JACOBSON, Judge.

This special action seeks a determination of whether a departmental report prepared in part by a witness law enforcement officer is available for inspection by the defense at a preliminary hearing.

Petitioner Don J. Brooks is presently charged in the East Phoenix Precinct No. 1 Justice Court with violations of certain criminal statutes. Respondent, The Honorable Renz D. Jennings, is the justice of the peace for the said precinct, who is conducting a preliminary hearing on said charges. Respondent, The Honorable Roybert L. Myers, is a judge of the superior court who heard a previous special action involving the same subject matter as the present case and denied the relief requested by petitioner. Respondent State of Arizona is the real party in interest.

On October 15, 1971 petitioner's preliminary hearing began before Justice of the Peace Jennings. The first witness called by the state was one of the investigating law enforcement officers who, on several occasions during his testimony, referred to a 'departmental report' to refresh his recollection. This officer testified that this report had been prepared in part by him, and the state claims that this particular document is a 'composite report' covering not only matters investigated by this officer but also by several others who had not testified. After the witness had used the departmental report to refresh his recollection, petitioner's counsel requested that he be permitted to examine those portions of the report which had been prepared by the witness and which were referred to by him during his testimony, for the purpose of impeachment. Respondent Jennings denied the request and refused to permit any access to the report by the defense counsel. He did, however, suspend the hearing and grant a continuance to permit the defendant to bring a special action in superior court to question his ruling.

Petitioner brought such a special action seeking an order requiring that he be permitted to examine the departmental report, and respondent Myers denied the requested relief. Thereupon petitioner brought this special action in this court, requesting an order directing respondent Jennings to permit petitioner to examine the departmental report.

We note initially that the preliminary hearing started on October 15, 1971 and was suspended on that date. Thus, a period of approximately six months had elapsed before this matter was filed in this court, during which time the preliminary hearing has been suspended. For this reason, and this reason alone, this court accepts jurisdiction in this matter, so that the lapse of time will not be a complete waste. We also note that Department A of this court has a similar type of case pending at the present time (Eva Mae Zarate v. The Honorable Renz D. Jennings, et al., 17 Ariz.App. 401, 498 P.2d 475 (1972).

For the future guidance of those concerned, however, this court views with disapproval the procedure of suspending a preliminary hearing for the purpose of obtaining a review by a higher tribunal of evidentiary or other interlocutory rulings made by the justice conducting the preliminary hearing. After the completion of the preliminary hearing, rulings as to whether the totality of evidence presented constitutes probable cause can be promptly reviewed either by means of a writ of Habeas corpus or by a motion to quash the information in the superior court.

Under our rules of criminal procedure, Rule 195, Rules of Criminal Procedure, 17 A.R.S., and the decisions of our Supreme Court, the defendant in a criminal case has limited discovery rights, including, in the appropriate circumstances, the right to examine a departmental report such as that involved here. The basic rules for such procedure are summarized in State ex rel. Corbin v. Superior Court, 103 Ariz. 465, 445 P.2d 441 (1968). With respect to a departmental report or notes prepared by a law enforcement officer who testifies at the trial, it has been held that the defendant is entitled to examine the report or notes for impeachment purposes, whether or not the witness uses the document to refresh his recollection, and failure of the court to permit examination of the officer's report or notes by the defense constitutes prejudicial error. State v. Ashton, 95 Ariz. 37, 386 P.2d 83 (1963); State v. Saenz, 88 Ariz. 154, 353 P.2d 1026 (1960).

However, where the document includes matters or statements other than those prepared personally by the witness in connection with whose testimony the examination is sought, discovery or examination is permitted only with respect to those portions prepared by the witness, and the entire report or document is not...