State ex rel. Helm v. Superior Court of Cochise County
Citation | 90 Ariz. 133,367 P.2d 6 |
Decision Date | 29 November 1961 |
Docket Number | No. 7436,7436 |
Parties | STATE of Arizona ex rel. Lloyd C. HELM, County Attorney Cochise County, Petitioner, v. SUPERIOR COURT OF COCHISE COUNTY, Honorable Anthony T. Deddens, Judge thereof, Respondent. |
Court | Supreme Court of Arizona |
Lloyd C. Helm, County Atty. Cochise County, Bisbee, for petitioner.
Robert J. Snyder, Jr., Sierra Vista, for respondent.
This is a proceeding for a writ of prohibition commanding Superior Court Judge Anthony T. Deddens to desist from ordering petitioner, County Attorney of Cochise County, to produce for pretrial inspection by defendant a medical report of the results of a blood alcohol test. Defendant, Clarence Edward Wine, had submitted to balloon and blood alcohol tests immediately after being arrested on July 8, 1961 in connection with the death of one Gary Bingham. 1
An information filed against defendant on August 9, 1961 charged him with manslaughter and driving a motor vehicle while intoxicated. On August 17, 1961 defendant by his counsel moved for a bill of particulars by which he sought to ascertain, inter alia, the types and results of any tests made to establish the fact of his intoxication. The motion was denied with respect to the names and results of the tests on August 28, 1961. 2
The residue of the whole blood sample drawn from defendant's body on July 8, 1961 was stored in a laboratory freezer until disposed of by a chemist on September 10, 1961. Defendant's motion for an order permitting pretrial inspection of the laboratory report was made on October 2, 1961 and granted on October 9, 1961. 3
Two questions are presented: (1) Did the trial court have discretionary power to provide defendant with an opportunity to inspect the medical report; and (2) if so, was there nevertheless an abuse of discretion in entering the order complained of here?
Pretrial discovery in criminal cases was unknown at common law. Rex v. Holland, 4 Durn. & E. 691, 100 Eng.Rep. 1248 (K.B. 1792). And the extensive legislative reforms in English criminal procedure 4 have not, generally speaking, been adopted in this country. People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200 (1927). Instead, the general rule developed by the various state courts is that a request for pretrial inspection of prosecution evidence is addressed to the sound discretion of the trial court. 5
In State ex rel. Mahoney v. Superior Court of Maricopa County, 78 Ariz. 74, 275 P.2d 887 (1954), a homicide case, defendant moved for production of and an opportunity to inspect (1) documents and papers constituting the 'work product' of the prosecutor and (2) 'tangible physical objects such as pistols, a lead slug taken from the body of the man whom he was accused of killing; a shirt, car keys, etc.' The trial court properly denied the motion as to (1) and granted it as to (2). This court sustained the order 'under the inherent powers of the court necessary to the due administration of justice.' 78 Ariz. at 77, 275 P.2d at 889. Cf. State ex rel. Andrews v. Superior Court of Maricopa County, 39 Ariz. 242, 250, 5 P.2d 192, 195 (1931).
Two years later in State ex rel. Polley v. Superior Court of Santa Cruz County 6 this court (3-2) again found support for such an order in a trial court's 'inherent powers.' In Polley, defendant was accused of murdering another during a shooting in which defendant was also wounded. While convalescing in a hospital he answered certain questions propounded by the county attorney; the questions and answers were recorded by a court reporter.
Defendant's motion for pretrial inspection of the stenographic transcript of the hospital conversation was allowed. In refusing to grant a writ of prohibition to the county attorney this court held that the trial court had jurisdiction to compel production 'it the order in question were found to be essential to the due administration of justice * * *.' 7
In the interim between Mahoney and Polley this court, pursuant to Section 19-202 of the 1939 Code (A.R.S. § 12-109 (1956)), adopted Rule 195 of the Rules of Criminal Procedure. Rule 195, identical for all practical purposes to Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides:
It was argued and held in Polley, and it is true in this case, that Rule 195 'does not sanction or authorize the order in question.' 8
Nevertheless, as this court there stated:
'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.' 81 Ariz. at 130, 302 P.2d at 265.
The advisory committee's note to the federal progenitor of Rule 195 indicates simply that Rule 16 provides for a limited right of discovery such as had been developed by the courts up to the time of its promulgation in 1946. It was never intended, however, that adoption of Rule 195 should operate to divest a trial court of the power to order discovery of items not within the Rule but necessary, in the opinion of the court, to the proper preparation of a defendant's case.
This view was expressed recently in United States v. Taylor, 25 F.R.D. 225 (E.D.N.Y.1960), a prosecution for unlawful sale and conspiracy to make unlawful sales of narcotics. Defendant's motion for an order permitting inspection and analysis of a drug in the government's possession was granted. The court in Taylor held the order permitting inspection and analysis was 'within the ambit of Rule 16' and, in a significant dictum, remarked:
See Shores v. United States, 174 F.2d 838, 845, 11 A.L.R. 635 (8th Cir. 1949).
With regard to the development of discovery in criminal cases generally, see State v. Haas in which the Maryland Court of Appeals observed that:
188 Md. 63, 75, 51 A.2d 647, 653 (1947).
See generally Fletcher, Pretrial Discovery in State Criminal Cases, 12 Stan.L.Rev. 293 (1960).
Most if not all of the advances in the law of criminal discovery have been occasioned at the instance of trial judges who, seeing the need in particular cases for discovery by defendants, have exercised their discretion and have ordered production and inspection. It is the trial judge who is best able to determine on a case by case basis whether inspection in a particular instance is in the interests of justice. And it is the trial judge who can best ascertain whether good cause for inspection has been shown or the defense is merely trying to pry into the prosecution's case or attempting to profit from the State's legal research and investigation.
For these reasons 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.' As Dean Wigmore put it: 'The question is one of policy, not of power.' VI Wigmore, Evidence, § 1850 (3d ed. 1940) at 395.
On the record presented we cannot say that defense counsel failed to exercise due diligence in seeking the requested information by alternative means. And the medical report now constitutes the only source from which information respecting defendant's intoxication on the night of the alleged crimes may be obtained. 9
Recently a California district court of appeals was presented with a similar situation in Walker v. Superior Court, 155 Cal.App.2d 134, 317 P.2d 130 (1957). There defendant, indicted for under of one victim and attempted rape of another, moved unsuccessfully for pretrial inspection of, inter alia, a report of the laboratory analysis of scrapings from his shoes which were taken from him at the time of his arrest. The prosecution's theory was that defendant had kicked his victim to death; defendant therefore urged that inspection of the laboratory report was necessary in preparation of his defense in that if the shoe scrapings contained no human tissue his innocence...
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