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

• Decision Date: 18 May 1992
• Docket Number: No. 1,CA-SA,1
• Citation: 836 P.2d 445,172 Ariz. 232
• Parties: STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Robert L. Gottsfield, a judge thereof, Respondent Judge, Ann Roper, Real Party in Interest. 92-0004.
• Court: Arizona Court of Appeals

Page 445

836 P.2d 445

172 Ariz. 232

STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Robert L. Gottsfield, a judge thereof, Respondent Judge Ann Roper, Real Party in Interest.

No. 1 CA-SA 92-0004.

Court of Appeals of Arizona Division 1, Department A.

May 18, 1992.

Review Denied Sept. 22, 1992.

[172 Ariz. 234] Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Deputy County Atty., Phoenix, for petitioner State of Ariz.

Dean W. Trebesch, Maricopa County Public Defender by Curtis F. Beckman, Deputy Public Defender, Phoenix, for real party in interest.

OPINION

GRANT, Presiding Judge.

The state petitioned for special action in this case, asking for relief from an order of the trial court in Maricopa County Superior Court Cause No. CR 91-03494. In the trial court the defendant is Ann Roper, the real party in interest in this special action. She is charged with aggravated assault, a class 3 felony. The state alleges that she used a knife to cause physical injury to her husband. The defendant filed a motion asking the trial judge to compel the victim/husband to make available to the defense for copying "all of his past and present medical records from any institution in any jurisdiction." According to the defense motion, the victim has received psychiatric treatment over the years for a multiple personality disorder. The motion alleged that, at the time of the assault, the victim "was manifesting one of his violent personalities" and that the defendant had acted in self-defense.

The trial court granted the defense motion to require disclosure of all the victim's medical records. The court said:

The Court determines that the defense has shown by credible psychiatric evidence that the victim's mental illness (multiples) could have adversely affected his ability to perceive, recall, or accurately relate what occurred on the day in question so that the examination of such documents is important for both the experts for the State as well as the defense. The second ground used by the Court to grant this motion is there has been a waiver of the physician/patient privilege by [victim] with respect to Mrs. Roper at least in connection with all sessions at which she was present with [victim] and Dr. Gould. Under the circumstances, the Arizona Constitution (i.e. Victim's Bill of Rights) does not prohibit the disclosure of all the medical records of [victim] herein.

* * * * * *

Accordingly and in connection with the medical records disclosure,

IT IS ORDERED that all such records be forwarded to the Court for the Court to hold an in camera inspection for the reasons as set forth in argument this date.

On reflection since the Court has found a need for an in camera examination of [victim's] medical records solely on the issue of multiple personalities,

IT IS ORDERED denying request of defense that the Court also examine such records for disclosure of as yet undefined other issues.

IT IS FURTHER ORDERED denying request of defense that the Court find a general waiver of [victim's] privilege with respect to his medical records on all issues. [Emphasis in original.]

Thereafter the court issued a second minute entry:

IT IS FURTHER ORDERED that the alleged victim supply a list of the physicians who he has seen with respect to the multiple personality issue, as stated on the record.

The state seeks relief by special action from these orders of the trial court. We accept review. "When a trial court orders disclosure that a party or witness believes to be protected by a privilege, appeal provides no rememdy. Special action is the proper means to seek relief." Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 25-26, 764 P.2d 759, 780-781 (App.1988).

After hearing oral argument, we entered an order on January 28, 1992, granting partial relief. We remanded the case to the trial court for an in camera inspection of the victim's medical records in accordance with the trial court's order. We further directed the trial court to make findings as follows:

1. which portions of the medical records, if any are essential to the presentation of the defense of self-defense;

2. which portions of the medical records, if any, are essential to the determination of the ability of the victim to perceive, recall, and/or accurately relate the events of the day in question.

We further ordered that only those portions of the medical records that the trial court determines are essential under the findings of 1 and 2 above are to be made available to the defense. We explain our order in this opinion.

The state's position is that article 2, section 2.1(A) of the Arizona Constitution ("the Victim's Bill of Rights") precludes the trial court from compelling disclosure of the victim's medical records. The state also argues that the records are protected from disclosure by the physician/patient privilege as set forth in Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-4062(4).

We discuss the application of the Victim's Bill of Rights first. Prior to this constitutional amendment, Arizona had open discovery in criminal cases as manifested by Rule 15, Arizona Rules of Criminal Procedure. Under Rule 15.1(a)(7), the state was required to provide the defendant with all materials or information which tended to mitigate or negate the defendant's guilt or which tended to reduce his punishment therefor. A defendant's right to discovery has been restricted by the adoption of the Victim's Bill of Rights so that the Arizona Constitution now provides in part:

To preserve and protect victims' rights to justice and due process, a victim of crime has a right:

. . . . .

5. To refuse an interview, deposition, or other discovery request by the defen dant, the defendant's attorney, or other person acting on behalf of the defendant.

Ariz. Const. art. II, § 2.1(A).

This court has recognized that this amendment precludes a trial court from ordering the deposition of a victim who has refused a defense request for a pretrial interview. Day v. Superior Court, 170 Ariz. 215, 823 P.2d 82 (App.1991).

The federal constitution gives the defense no greater right to discovery than exists under state law. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). However, concomitant with the Arizona Victim's Bill of Rights, the defendant has a due process right, under the federal and Arizona constitutions, to present a defense. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The defendant also has a concomitant right to effective cross-examination of a witness at trial. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Due process rights are guaranteed in the Arizona Constitution at art. 2, section 4: "No person shall be deprived of life, liberty, or property without due process of law." This guarantee is congruent with the U.S. Constitution, amendments 5 and 14. State v. Herrera-Rodriguez, 164 Ariz. 49, 52, 790 P.2d 747, 750 (App.1989). We therefore have no problem reconciling state due process rights with federal due process rights. However, we must also reconcile and balance the state due process guarantee with the Victim's Bill of Rights. As both are constitutional rights, this is a difficult task. See State ex rel. Dean v. City of Tucson, Ariz., (2 CA-CV 91-0161 filed April 30, 1992). Due process of law is the primary and indispensable foundation of individual freedom in our legal system. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Our supreme court has also held that denial of due process is a denial of fundamental fairness, shocking to a universal sense of justice. Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984). See Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 466, 440 P.2d 1000, 1006 (1968). Our supreme court has also held that, if a trial court excludes essential evidence, thereby precluding a defendant from presenting a theory of defense, the trial court's decision results in a denial of the defendant's right to due process that is not harmless. Oshrin, 142 Ariz. at 111, 688 P.2d at 1003. We therefore hold that when the defendant's constitutional right to due process conflicts with the Victim's Bill of Rights in a direct manner, such as the facts of this case present, then due process is the superior right. This is so because due process is the foundation of our system of laws, having been first provided to the people in the Magna Carta and given to us by our founders in the United States Constitution. When there is a conflict, the due process clause of the U.S. Constitution prevails over a provision of a state constitution by virtue of the Supremacy Clause, which states:

This Constitution and the Laws of the United States which shall be made ... under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

United States Const. art. VI.

Division 2 of this court has held that the discovery rules, Rules 15 and 17, have been abrogated by the Victim's Bill of Rights constitutional amendment with respect to victim interviews. State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App.1990); see State v. O'Neil, 172 Ariz. 180, 836 P.2d 393 (App.1991). The Warner court also held that defendants have neither a federal constitutional right to discovery, citing Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), nor any such right under the Arizona Constitution. The Warner court also stated Because the Arizona criminal discovery rules were unique in the United...