Cervantes v. Cates, No. 1 CA-SA 03-0157.

CourtCourt of Appeals of Arizona
Writing for the CourtKESSLER.
Citation76 P.3d 449,206 Ariz. 178
Decision Date23 September 2003
Docket NumberNo. 1 CA-SA 03-0157.
PartiesAnthony Jon CERVANTES, Petitioner, v. The Honorable Jeffrey S. CATES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest.

76 P.3d 449
206 Ariz. 178

Anthony Jon CERVANTES, Petitioner,
v.
The Honorable Jeffrey S. CATES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,
State of Arizona, Real Party in Interest

No. -0157.

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

September 23, 2003.


76 P.3d 451
Robert L. Storrs, PC By Robert L. Storrs, Phoenix, Attorneys for Petitioner

Richard M. Romley, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.

OPINION

KESSLER, Judge.

¶ 1 The issue raised by special action petition is whether the due process clauses of the United States and Arizona Constitutions as well as Arizona Rule of Criminal Procedure ("Rule") 15.1 require that the State provide to a defendant or his counsel a copy of materials alleged by the State to be child pornography. We do not need to reach the constitutional issue because we hold that Rule 15.1, under the facts presented by this case, requires the State to copy or make available for copying the materials at issue. However, on remand the trial court may still issue an appropriate order setting conditions on such reproduction to ensure that the copies are used only for defending this action, the materials are not recopied, and providing other safeguards consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Petitioner Anthony Jon Cervantes is charged with four counts of exploitation of a minor and numerous counts of sexual offenses against children. The case involves videotapes and photographs the Glendale Police Department seized from Cervantes.

¶ 3 Cervantes requested that copies of the tapes and photos be made and provided to his counsel to prepare for his defense. The State refused to provide copies, but offered Cervantes and his counsel the opportunity to review the materials. Cervantes moved the trial court to order the State to produce copies. The State opposed the motion, arguing copies were not required under Rule 15.1 and mere access was sufficient. At the initial hearing on the motion, Cervantes agreed that alternative arrangements could be made for viewing the materials without requiring copies. The trial court ruled that the State make the materials available for review provided that defense counsel be present during the review and the review be at one session.

¶ 4 Following that hearing, Cervantes and his counsel reviewed the materials at the jail where Cervantes was being held pending trial. A Glendale detective was assigned to sit outside the room to observe their handling of the evidence to avoid its destruction and protect the chain of custody. It is undisputed that the detective could not overhear their conversations. Cervantes and his attorney claim they spent more than 12 hours reviewing the tapes and photographs, but did not finish their review.

¶ 5 An additional hearing was then held before the trial judge. At that time, Cervantes asked the court to either have a different detective be outside the viewing room or to order the State to copy the materials. Cervantes told the trial court he was uncomfortable with any detective being outside the viewing room watching Cervantes and his attorney review the materials. Cervantes' attorney also explained that having to make appointments to review the materials over different days at the jail was very inconvenient. The State argued that the objections to such a review were insufficient, that it was being inconvenienced by having to supervise the review, but had graciously made arrangements for that review. It again stated that it would not make copies for the defense without a court order. It did not provide any facts showing that Cervantes or his attorney

76 P.3d 452
might use the materials other than to defend the case at trial

¶ 6 The trial court held that Cervantes' objections to the supervised review were insufficient and denied the motion to compel copying. The court explained that it would reconsider Cervantes' motion if, after Cervantes and his counsel reviewed the materials over the next two days, they could convince the court they needed copies made.

¶ 7 Cervantes then filed his special action petition from the trial court's order denying his motion to compel. After an oral argument on a motion to stay the trial, this Court ordered that the trial be stayed pending this Court's decision on the petition.

SPECIAL ACTION JURISDICTION

¶ 8 We have jurisdiction to entertain the petition pursuant to Article VI, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.21(A)(4). We generally do not accept special action jurisdiction of a pretrial discovery dispute except where there is an order requiring disclosure of privileged or confidential material. However, this case presents two factors that justify accepting jurisdiction. First, this case presents an issue of law and a matter of first impression interpreting Rule 15.1 and related rules. Specifically, we need to decide whether a court can order the State to copy contraband under Rule 15.1 and who has the burden of proof to require copies to be made or to obtain a protective order under those rules. Carpenter v. Superior Court, 176 Ariz. 486, 487, 862 P.2d 246, 247 (App.1993).

¶ 9 The State contends that the petition is premature because the superior court instructed Cervantes to request relief if access to the materials proved difficult. That is not entirely accurate. The trial court stated that it would reconsider the motion to compel only if Cervantes could show why he needed copies to prepare his defense rather than continuing to review them at the jail. As we make clear in this decision, the trial judge erroneously placed the burden of proof on the defendant to justify copying.

¶ 10 Second, acceptance of special action jurisdiction is appropriate where there is a risk of conflicting decisions. State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 9, 30 P.3d 649, 652 (App.2001); Martin v. Reinstein, 195 Ariz. 293, 301, ¶ 11, 987 P.2d 779, 787 (App.1999). This Court is aware that different divisions of the Superior Court in and for Maricopa County have reached conflicting decisions on the issue presented by this petition. See State v. Racz, CR XXXX-XXXXXX (where the Superior Court ordered the State to copy the alleged pornographic materials).1

STANDARD OF REVIEW

¶ 11 While a discovery-related matter generally is reviewed for abuse of discretion, a trial court abuses its discretion when it misapplies the law. State v. Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App.1999). A court also abuses its discretion if there are no facts supporting its decision. Id.; United Imports and Exports, Inc. v. Superior Court, 134 Ariz. 43, 46, 653 P.2d 691, 694 (1982).

DISCUSSION

¶ 12 Cervantes argued in his petition and at the stay hearing before this Court that he needs the materials seized by the police under Rule 15.1. He explained there are more than 23 hours of videotapes that must be reviewed and it would be impossible for him to review those tapes effectively at the jail. Cervantes relies on Westerfield v. Superior Court, 99 Cal.App.4th 994, 121 Cal.Rptr.2d 402 (2002), where the California Court of Appeal held that under California's pretrial disclosure rules the mere right to inspection is not sufficient and the trial court should have permitted the defendant to copy the materials to prepare for trial.

¶ 13 The State posits several arguments against copying. First, it contends that Cervantes did not make an adequate showing why supervised review was insufficient and

76 P.3d 453
the trial court's finding that review was adequate for preparation of the defense was within the trial court's discretion

¶ 14 Second, relying on several decisions from other jurisdictions, the State appears to argue that since the materials are contraband, it does not have to make copies for the defense under Rule 15.1 provided the defense is given sufficient access to the materials. E.g., United States v. Kimbrough, 69 F.3d 723 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996).

¶ 15 Third, although the State argued below it could copy the materials pursuant to a court order without violating Arizona's child pornography laws, it contended there was no immunity from those laws for defense counsel's possession of the materials. Thus, defense counsel could be charged with a crime if he had possession of the materials. The State attempts to distinguish Westerfield because, unlike section 13-3553, California's child pornography statute has an immunity provision for prosecutors and law enforcement officers.

¶ 16 As applicable to this case, Rule 15.1(c)(Supp.2002) provided, in pertinent part, that

The prosecutor, upon written request, shall ... make available to the defendant for examination, testing and reproduction any specified items contained in the list submitted under Rule 15.1(a)(4). The prosecutor may impose reasonable conditions, including an appropriate stipulation concerning chain of custody, to protect physical evidence produced under this section.

(Emphasis supplied.)2 Rule 15.1(a)(4) refers to a list of "all papers, documents, photographs or tangible objects which the prosecutor will use at trial or which were obtained from or purportedly belong to the defendant." The duty to make materials available for examination, testing and reproduction applies only to materials in the possession or control of the prosecutor, members of the prosecutor's staff or of other persons who have participated in the investigation or evaluation of the case, and are under the prosecutor's control. Rule 15.1(d). Rule 15.1 provides no exception for...

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25 practice notes
  • State v. Roque, No. CR-03-0355-AP.
    • United States
    • Supreme Court of Arizona
    • August 14, 2006
    ...us from considering a conviction arising out of the same series of events as the murder to be a previous conviction.11 Rutledge, 206 Ariz. at 178, ¶ 25, 76 P.3d at 449. But Rutledge does not speak to the use of facts underlying a simultaneous conviction for other aggravating factors, such a......
  • State v. Velazquez, No. CR-04-0361-AP.
    • United States
    • Supreme Court of Arizona
    • August 9, 2007
    ...aggravator, that the abuse of Isabella described in count five had occurred separately from the murder of Liana. See id. at 178 ¶ 25, 76 P.3d at 449. He did not, however, request such an instruction, and he has not established the prejudice necessary for its omission to be fundamental ¶ 35 ......
  • State v. Boyd, No. 79371-9.
    • United States
    • United States State Supreme Court of Washington
    • May 17, 2007
    ...Protection and Safety Act of 2006, H.R. 4472, § 504, amending section 3509 of Title 18 of the United States Code. See Cervantes v. Cates, 206 Ariz. 178, 76 P.3d 449 (2003); United States v. Isa, 413 F.2d 244, 248 (7th Cir.1969). The Act altered both the burden and the standard of proof. Sin......
  • State v. Curtis, No. 1 CA-CR 11-0387
    • United States
    • Court of Appeals of Arizona
    • April 1, 2014
    ...Ariz. R. Crim. P. 15.1(j). This court reviews rulings on pretrial discovery issues for abuse of discretion. Cervantes v. Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003), superseded on other grounds by Ariz. R. Crim. P. 15.1(j).¶35 Shortly after Curtis was indicted, the State p......
  • Request a trial to view additional results
25 cases
  • State v. Roque, No. CR-03-0355-AP.
    • United States
    • Supreme Court of Arizona
    • August 14, 2006
    ...us from considering a conviction arising out of the same series of events as the murder to be a previous conviction.11 Rutledge, 206 Ariz. at 178, ¶ 25, 76 P.3d at 449. But Rutledge does not speak to the use of facts underlying a simultaneous conviction for other aggravating factors, such a......
  • State v. Velazquez, No. CR-04-0361-AP.
    • United States
    • Supreme Court of Arizona
    • August 9, 2007
    ...aggravator, that the abuse of Isabella described in count five had occurred separately from the murder of Liana. See id. at 178 ¶ 25, 76 P.3d at 449. He did not, however, request such an instruction, and he has not established the prejudice necessary for its omission to be fundamental ¶ 35 ......
  • State v. Boyd, No. 79371-9.
    • United States
    • United States State Supreme Court of Washington
    • May 17, 2007
    ...Protection and Safety Act of 2006, H.R. 4472, § 504, amending section 3509 of Title 18 of the United States Code. See Cervantes v. Cates, 206 Ariz. 178, 76 P.3d 449 (2003); United States v. Isa, 413 F.2d 244, 248 (7th Cir.1969). The Act altered both the burden and the standard of proof. Sin......
  • State v. Curtis, No. 1 CA-CR 11-0387
    • United States
    • Court of Appeals of Arizona
    • April 1, 2014
    ...Ariz. R. Crim. P. 15.1(j). This court reviews rulings on pretrial discovery issues for abuse of discretion. Cervantes v. Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003), superseded on other grounds by Ariz. R. Crim. P. 15.1(j).¶35 Shortly after Curtis was indicted, the State p......
  • Request a trial to view additional results

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