State ex rel. Corbin v. Superior Court In and For Maricopa County

• Decision Date: 31 October 1967
• Docket Number: CA-CIV,No. 1,No. 2,2,1
• Citation: 433 P.2d 65,6 Ariz.App. 414
• Parties: STATE of Arizona ex rel. Robert K. CORBIN, County Attorney of Maricopa County, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA and Honorable Donald F. Daughton, as Judge of Divisionthereof, Russell Floyd Long, real parties in interest, Respondents. 668.
• Court: Arizona Court of Appeals

Page 65

433 P.2d 65

6 Ariz.App. 414

STATE of Arizona ex rel. Robert K. CORBIN, County Attorney of Maricopa County, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA and Honorable Donald F. Daughton, as Judge of Division No. 2 thereof, Russell Floyd Long, real parties in interest, Respondents.

No. 1 CA-CIV 668.

Court of Appeals of Arizona.

Oct. 31, 1967.

Rehearing Denied Dec. 19, 1967.

Review Denied Feb. 15, 1968.

Darrell F. Smith, Atty. Gen., N. Warner Lee, Deputy Maricopa County Atty., Phoenix, for petitioner.

Lewis, Roca, Beauchamp and Linton, by Roger W. Kaufman and Charles D. Roush, Phoenix, for respondents.

HATHAWAY, Chief Judge.

Review of a Maricopa County Superior Court order is sought in these certiorari proceedings instituted by the State of Arizona. It is contended by the State that the respondent judge exceeded his jurisdiction and abused his discretion in granting an order for production, inspection and copying, of the transcript of a statement given to the Maricopa County Attorney. The availability of the extraordinary remedy of certiorari is not disputed by respondents. The State has no remedy unless extraordinary relief be granted. State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887 (1954). Accordingly, we have issued a writ of certiorari.

The subject order for discovery was entered in a criminal cause pending in Maricopa County Superior Court, State v. Russell Floyd Long, No. 51950. The defendant filed a motion to suppress the testimony of one Robert Glenn Hyatt or in the alternative for an order allowing the defendant to inspect and copy a certain transcript or statement dated April 13, 1967 and April 14, 1967, reported by a court reporter. The transcript purportedly contained certain statements of Hyatt and agreements relative to granting him immunity or leniency in exchange for his testimony at the defendant's trial.

Attached to this motion were various exhibits: copies of newspaper articles allegedly prejudicial to defendant which referred to Hyatt as a 'star witness' for the State and a copy of a superior court order for production of Hyatt's statement, granted in another criminal cause.

At the hearing on the motion, Hyatt testified that he had made a statement, recorded by a court reporter, as alleged in the defendant's motion and that the statement concerned the defendant's prosecution and Hyatt's immunity from prosecution. The motion to suppress Hyatt's testimony at defendant's trial was denied but the motion for production and inspection of his statement was granted. The State challenges the propriety of allowing this discovery.

The State contends that Hyatt's statement does not come within the scope of Rule 195, Rules of Criminal Procedure, 17 A.R.S., ¹ and we agree. Judicial interpretation of the counterpart federal rule supports this view. See United States v. Telles, 226 F.Supp. 670 (D.C.1964); United States v. Hughes, 195 F.Supp. 795 (D.C.1961); United States v. Van Allen, 28 F.R.D. 329 (D.C.1961).

However, it has been held that Rule 195 does not delimit the trial court's inherent power to order discovery when the due administration of justice so dictates. State ex rel. Helm v. Superior Court of Cochise County, 90 Ariz. 133, 137, 367 P.2d 6 (1961); State v. Wallace,97 Ariz. 296, 300, 399 P.2d 909 (1965).

We believe that previous decisions of our Supreme Court in this troublesome area of discovery in criminal actions indicate that the order of discovery entered was not proper. In State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962), our Arizona Supreme Court held, on appeal from a judgment of conviction, that a refusal to grant the defendant's motion to inspect statements made by an accomplice, the only eyewitness to the homicide, did not constitute an abuse of the trial court's discretion. The defendant's contention that such refusal was an abuse of discretion was predicated on the fact of diversity of defenses and that the accomplice was listed as a witness against him. The court pointed out that, notwithstanding its prior recognition of the merit in permitting greater pretrial discovery in criminal cases, State ex rel. Helm v. Superior Court of Cochise County, 90 Ariz. 133, 367 P.2d 6 (1961), the trial judge is the one 'who can best ascertain whether good cause for inspection has been shown' and 'whether inspection in a particular instance is in the interest of justice.' (91 Ariz. at 106, 370 P.2d 264) It was further stated, however:

'We have not held, however, that a defendant has an unqualified right to inspect and copy statements of defendant and other witnesses. Such matter is within the sound discretion of the trial court. However, we do not at this time decide the question whether the defendant has a right to inspect and copy the statements of other witnesses even under exceptional circumstances.' (Emphasis supplied)

91 Ariz. at 107, 370 P.2d at 264.

It is apparent that, at the very least, a showing of exceptional circumstances would be required to obtain pretrial discovery of statements of witnesses. This is in accord with a statement found in an earlier case, State ex rel. Polley v. Superior Court of Santa Cruz County, 81 Ariz. 127, 302 P.2d 263 (1956):

'At the outset let it be clearly understood we are of the opinion a defendant does not have an unqualified right to inspect his written statement in the hands of the prosecutor * * * but that an application for same is addressed to the sound discretion of the trial court, and, speaking generally, It is only under exceptional circumstances that such an application should be granted.' (Emphasis supplied)

81 Ariz. at 130, 302 P.2d at 265. ²

In State ex rel. Mahoney v. Superior Court of Maricopa County, 78 Ariz. 74, 275 P.2d 887 (1954), the court examined the question of whether the State should be required to produce for inspection certain documents, papers and tangible objects, pointing out that under the common law a defendant had no right of discovery. Inspection of certain tangible objects was permitted but discovery of papers and documents which were not and could not be evidence in themselves was refused.

Expansion of the range of permissible pretrial discovery in criminal cases has been advocated by numerous law review writers. ³ Few states, however, allow a defendant to inspect the statements of prosecution witnesses in advance of trial. A substantial number of courts, when faced with the question, have denied the right of inspection. See, e.g. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250 (1959); State v. Zimnaruk, 128 Conn. 124, 20 A.2d 613 (1941); State v. Shouse, Fla.App., 177 So.2d 731 (1965); Williams v. State, 222 Ga. 208, 149 S.E.2d 449 (1966); Kinder v. Commonwealth, 279 S.W.2d 782 (Ky.1955); Bellew v. State, 238 Miss. 734, 106 So.2d 146 (1958), appeal dismissed 360 U.S. 473, 79 S.Ct. 1430, 3 L.Ed.2d 1531; Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960); Hill v. State, 167 Tex.Cr.R. 229, 319 S.W.2d 318 (1958); State v. Lavallee, 122 Vt. 75, 163 A.2d 856 (1960); State ex rel. Byrne v. Circuit Court of Dane County, 16 Wis.2d 197, 114 N.W.2d 114 (1962); State v. Hutchins, 1 Storey 100, 51 Del. 100, 138 A.2d 342 (1957); State ex rel. Regan v. Superior Court, 102 N.H. 224, 153 A.2d 403 (1959); State v. Foster, 242 Or. 101, 407 P.2d 901 (1965). New Jersey, which has adopted a very liberal view as to pretrial inspection of confessions, has declined to authorize pretrial inspection of witnesses' statements. See State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958).

California, on the other hand, has recognized that a defendant has a Right to pretrial inspection of the statement of any witness on a showing of need. Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593 (1959); Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698 (1957). However, even under the liberalized California view, the defendant must show a better cause for discovery 'than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.' People v. Cooper, 53 Cal.2d 755, 3 Cal.Rptr. 148, 157, 349 P.2d 964, 973 (1960).

One other jurisdiction, just as our Supreme Court in McGee, supra, recognizes a certain discretion in the trial court. See People v. Maranian, 359 Mich. 361, 102 N.W.2d 568 (1960). In this case, on appeal from his conviction, the defendant alleged error in the trial court's denial of his motion for production of witnesses' statements. His argument was predicated on 'the modern and more desirable trend in discovery practice and procedure'. (102 N.W.2d at 571). The court, in holding that no sufficient showing was made to justify the discovery, stated:

'Discovery will be ordered in all criminal cases, When, in the sound discretion of the trial judge, The thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. The burden of showing the trial court facts indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition, rests upon the moving party.' (Emphasis supplied)

102 N.W.2d at 571--572.

In the federal courts, it is well settled that a defendant in a criminal case is not entitled to pretrial inspection of statements of prospective prosecution witnesses. United States v. Palermo, 21 F.R.D. 11 (D.C.1957); Caldwell v. United States, 338 F.2d 385 (8th Cir. 1964); United States v. Telles, 226 F.Supp. 670 (D.C.1964); See Anno. 7 A.L.R.3d 273.

As stated in Palermo:

'Statements made by prospective witnesses for the Government are not 'evidentiary' at the pretrial stage. They may ripen into evidentiary material for purposes of impeachment if and when, and only if and when, the witness who has made the statement takes the stand and testifies. The defendant only then is entitled to inspect statements given to the Government by such a witness concerning...