State v. Birdsall
| Decision Date | 17 May 1977 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 116 Ariz. 196,568 P.2d 1094 |
| Parties | The STATE of Arizona, Petitioner, v. Honorable Ben C. BIRDSALL, Judge of the Superior Court, Respondent, and Robert Ortiz SALCIDO, Real Party in Interest. 2536. |
| Court | Arizona Court of Appeals |
The real party in interest is the defendant in a pending Pima County Superior Court criminal case. He is charged with first degree murder and two counts of assault with a deadly weapon. The murder charge is based on the death of a fourteen year old junior high school student. The defenses disclosed to the state were self-defense, intoxication, and insanity. A motion for disclosure of the deceased victim's school records was filed by defendant pursuant to Rule 15.1(e), Rules of Criminal Procedure, as amended, which provides:
The respondent court granted the motion for disclosure, over the state's opposition, and ordered the deposition of a school counselor and the issuance of a subpoena duces tecum to the deponent requiring his presence and the production of all the victim's school records. The school board thereupon moved for a protective order, or in the alternative, an order of modification, and the state filed a motion to quash the order for deposition and subpoena duces tecum. It was argued that the school records were protected from disclosure by statute and that the subpoena was too broad. The state alternatively moved for an in camera inspection of the school records before disclosure and that disclosure be limited to records of incidents, if any, wherein the deceased was shown to be an aggressor. The respondent court modified the disclosure order to exclude the victim's scholastic records but to include all his disciplinary records.
We agree with the state that since the victim's prior bad acts, if any, were not known to the defendant, they are not admissible in evidence. Mendez v. State, 27 Ariz. 82, 229 P. 1032 (1924); State v. Canedo, 563 P.2d 315 (Ariz.App., filed March 1, 1977). However, here the issue of self-defense is raised, and therefore evidence of the deceased's reputation for belligerence and aggressiveness is admissible. State v. Griffin, 99 Ariz. 43, 406 P.2d 397 (1965). The respondent court, in granting the defendant's motion for disclosure, apparently concluded that he had substantial need for information relevant to his theory of self-defense and that it would impose an undue hardship upon him to require him to resort to other means, such as interviewing the entire junior high school population, in an attempt to discover the deceased victim's reputation as an aggressor. Since the disclosure authorized under the criminal rules dealing with discovery is available in the trial court's discretion, appellate courts do not interfere in the absence of a clear abuse of discretion. State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974). We find no abuse of discretion in requiring disclosure. As we shall subsequently discuss, however, we believe the order was too broad in scope.
We do not agree with the state that disclosure of the victim's school records was barred by the federal and Arizona statutes pertaining to students' records. 20 U.S.C.A. § 1232g(b)(1), provides that no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein other than directory information as defined in another section) of students without the written consent of their parents to any individual, agency, or organization other than the ones specifically designated therein. 20 U.S.C.A. § 1232g(b)(2), further provides that no funds shall be made available to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information and educational records other than directory information, or as permitted under paragraph (1) of the subsection, unless there is written consent from the student's parents or such information is furnished in compliance with judicial order or pursuant to a lawfully issued subpoena. (In the latter instance, the educational institution or agency is required to notify the parents and students in advance of compliance with such order or subpoena).
A.R.S. § 15-151 et seq., which became effective May 14, 1974, defines the right of parents and guardians to pupil records. A.R.S. § 15-152 provides:
"Pupil records are considered professional and confidential and shall be available under the following circumstances:
1. To the parents or guardian of the pupil,...
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...state of mind and specific acts known by defendant admissible to show defendant's state of mind). Cf. State v. Birdsall, 116 Ariz. 196, 198, 568 P.2d 1094, 1096 (App.1977) (unknown prior acts of victim ¶ 18 We have not revisited the admissibility of unknown specific acts of violence by a vi......
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