Moore v. State

• Decision Date: 15 April 1970
• Docket Number: No. 9925,9925
• Citation: 467 P.2d 904,105 Ariz. 510
• Parties: Robert Bruce MOORE, Jr., Petitioner, v. STATE of Arizona, Superior Court of the State of Arizona In and For the County of Pima, the Honorable Jack G. Marks, Judge of the Superior Court, and Rose Silver, Pima County Attorney, Respondents. . In Banc
• Court: Arizona Supreme Court

Page 904

467 P.2d 904

105 Ariz. 510

Robert Bruce MOORE, Jr., Petitioner, v. STATE of Arizona, Superior Court of the State of Arizona In and For the County of Pima, the Honorable Jack G. Marks, Judge of the Superior Court, and Rose Silver, Pima County Attorney, Respondents.

No. 9925.

Supreme Court of Arizona. In Banc.

April 15, 1970.

Krotenberg, Laber, Morrow & Lovallo, by Joseph A. Lovallo, Tucson, for petitioner.

Rose Silver, Pima County Atty., by Horton C. Weiss, Deputy County Atty., for respondents.

McFARLAND, Justice:

The sole question presented on this Petition for Special Action is whether the State is entitled to pre-trial discovery of certain psychiatric reports in the possession of the defendant.

Robert Bruce Moore, the defendant, stands charged with armed robbery and attempted murder. He duly filed notice, in both causes, of his intention to plead not guilty by reason of insanity in accordance with Rule 192, subd. A, Rules of Crim.Proc., 17 A.R.S. ¹ Subsequently, the court granted the motions of the State and the defendant, and appointed two psychiatrists to examine the defendant as provided in § 13--1621, subd. C, A.R.S. ², and Rule 250, subd. A, Rules of Crim.Proc., 17 A.R.S. ³, the reports to be furnished to the court and to counsel for both the State and the defendant.

A hearing was held under Rule 250, and as a result the court ruled that defendant was able to understand the proceedigs and to assist in his defense. A further hearing date was scheduled under the bifurcated trial procedure of $13--1621.01, A.R.S., to determine if the defendant was insane at the time the crimes were committed. The court granted both parties leave to reserve the right to call additional psychiatrists at such time.

At this point the State renewed prior motions to produce and inspect 'names, addresses and reports of every psychiatrist who has examined the defendant.' Such motions has been denied by the court on several prior occasions. The pertinent part of the motion follows:

'The Pima County Attorney, ROSE SILVER, by the Deputy, HORTON C. WEISS, respectfully moves this Court for an order requiring the defendant ROBERT BRUCE MOORE, JR., to produce the following for inspection by the State:

'1. Any and all papers, documents, reports or tangible objects which the defendant intends to use or introduce at his trial.

'2. The results of all tests and/or examinations of any sort (chemical, physical, psychological, psychiatric or biological) which will be the basis for testimony of witnesses which defendant intends to have testify at his trial.

'3. The names and addresses of all persons who performed tests and examinations and/or prepared reports set forth in 1 and 2 above.

'4. The names and addresses of all witnesses which the defendant intends to have appear and/or testify at his trial.

'5. The names and addresses of all psychologists and psychiatrists who have information relative to defendant's mental condition.

'6. Reports and results of tests and examinations conducted by persons set forth in 5 above.'

The trial court denied the motion as to numbers 5 and 6, but granted the remainder, and, as a result, the defendant filed a Petition for Special Action with this Court. Immediately thereafter the trial court ordered an amendment to its minute entry on the order to produce and inspect 'to truly reflect the intention of the court. * * *' The pertinent language of the amended order reads:

'With respect to items 1, 2, 3 and 4, it is Ordered that the motion to produce and inspect is granted; limited, however, to the defense of insanity; * * *'

On February 3, 1970, this Court ordered that an Alternative Writ of Prohibition issue to the Superior Court.

The main thrust of the defendant's argument is that Rule 195, supra, is a defendant's rule for discovery and makes no provision--nor does any other rule--for discovery by the prosecution. The State apparently concedes this to be so, but advances the contention that the trial court has inherent power to permit discovery, in the interests of justice, separate and apart from the rules. In support thereof, the State cites, among other cases, the opinions of this Court in State ex rel. Helm v. Superior Court, 90 Ariz. 133, 367 P.2d 6; State ex rel. Polley v. Superior Court, 81 Ariz. 127, 302 P.2d 263; and State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887.

The Mahoney case was decided prior to the promulgation of Rule 195, but nevertheless permitted a limited discovery under the inherent powers of the court. In Polley, after Rule 195, the inherent power of the court was sustained as follows:

'However, as to the second ground, we believe that If the order in question were found to be essential to the due administration of justice, respondent court did have jurisdiction to issue it under its inherent powers because a statute of rule of court is not the exclusive authority. Shores v. United States, (8 Cir., 174 F.2d 838) supra, and Cf. the Demand case, (State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887) supra.

'It should be noted that while the inspection is not authorized under said Rule, the Rule itself does not express a policy prohibiting discovery; hence, the court is free under its inherent residual power to permit broader discovery. 67 Harv.L.R. 492, 498.'

Then, in Helm, supra, this Court held:

'* * * we adhere to our decision in Polley that a trial court has a residuum of inherent power, notwithstanding the limitations of Rule 195, to order production and inspection when such is 'essential to the due administration of justice."

However, the latter two cases involved only the liberalization of the subject matter available for inspection, and all of them relates to the defendant's rights--not the prosecution. This Court has never, either by rule or by decision, extended discovery and inspection to the prosecution, a fact which the State readily acknowledges in its brief, where it is said:

'However, this Court has not seen fit to grant pretrial disclosure to the State. There is no reason why this 'inherent power' does not exist for the State as well as the defendant.'

There may be many good reasons why the State should be provided with limited discovery rights but in an area as potentially volatile as that here involved '* * * we think it inadvisable to enlarge existing practice and procedure, which is limited by a specific Rule, by the exercise of inherent power on a case-to-case basis. * * *' State v. Thompson, 50 Del. 456, 134 A.2d 266. Opening pretrial discovery to the State involves many possible pitfalls. For example, how extensive can it be before it infringes on the defendant's constitutional rights, such as self-incrimination. Or, although statements made during the course of psychiatric examination under § 13--1621.01, A.R.S., are inadmissible at the trial on the question of guilt or innocence, are similar statements made to a private psychiatrist and 'discovered' by the State equally inadmissible?

These and other problems require the development of adequate safeguards which can be best formulated under the formal rule-making procedure of this Court rather than the case-by-case basis.

We are cognizant that the State's position has much support in an ever-growing number of authorities. The federal practice permits discovery by the government, but this came about by a specific amendment, in 1966, to Rule 16, Fed.R.Crim.P., 18 U.S.C.A. The Advisory Notes to this Rule point up the position we take here:

'The extent to which pretrial discovery should be permitted in criminal cases is a complex and controversial issue. The problems have been explored in detail in recent legal literature, most of which has been in favor of increasing the range of permissible discovery. (Citations omitted.) The rule has been revised to expand the scope of pretrial discovery. At the same time provisions are made to guard against possible abuses.' (Emphasis added.)

Notes of Advisory Committee, Rule 16, supra.

The Advisory Committee of the American Bar Assoication, in a tentative draft on Discovery and Procedure Before Trial advocates broad discovery on behalf of both the defendant and the prosecution. But the suggestions are in the form of proposed rules. That the Committee did not expect that the proposals be implemented by case law is apparent from a paragraph in the Introduction at page 4:

'The standards do not recommend a particular method of implementation. In some jurisdictions the adoption or modification of court rules may be appropriate; in others a combination of rules and legislation may be necessary or desirable. Purely on a cooperative basis, by agreement of counsel and the court, some federal districts have already adopted most of the standards on an Experimental basis, * * *'

In the area of discovery by the accused, where the possibilities of infringement on constitutional...