State v. Melendez

• Decision Date: 16 July 1992
• Docket Number: No. CR-91-0142-PR,CR-91-0142-PR
• Citation: 172 Ariz. 68,834 P.2d 154
• Parties: STATE of Arizona, Appellant, v. Ruben MELENDEZ, Appellee.
• Court: Arizona Supreme Court

Page 154

834 P.2d 154

172 Ariz. 68

STATE of Arizona, Appellant, v. Ruben MELENDEZ, Appellee.

No. CR-91-0142-PR.

Supreme Court of Arizona, In Banc.

July 16, 1992.

[172 Ariz. 69] Stephen D. Neely, Pima County Atty. by Jill Thorpe, Catherine M. Shovlin, Tucson, for appellant.

James W. Cochran, Tucson, for appellee.

Grant Woods, Atty. Gen. by Paul J. McMurdie, Crane McClennen, Phoenix, for amicus curiae.

OPINION

FELDMAN, Chief Justice.

Ruben Melendez (Defendant) was indicted for first degree murder for the 1987 killing of a fellow inmate at the Arizona State Prison in Tucson. Before trial, the trial court granted a number of Defendant's suppression motions, including a motion to suppress communications made to another inmate who had served as one of Defendant's "jailhouse lawyers" in preparation for a prison disciplinary proceeding arising from the killing. The state appealed. The court of appeals reversed the trial court's suppression order, State v. Melendez, 168 Ariz. 275, 277-78, 812 P.2d 1093, 1095-96 (Ct.App.1991), and Defendant appealed. We granted review to determine whether the trial court erred in suppressing the communications, a question of first impression. See Rule Rule 31.19(c), Ariz.R.Crim.P., 17 A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

On May 18, 1987, an inmate at the state prison was found stabbed to death. An investigation ensued, and Defendant was ultimately indicted for the killing in March 1989. On July 22, 1987, while the investigation was still in progress, Department of Corrections (DOC) personnel formally notified Defendant that he was accused of a DOC administrative violation for intentionally causing the victim's death and that he was to face a hearing before the prison disciplinary committee.

Under DOC regulations, inmates accused of major violations, including homicide, are entitled to representation by a retained attorney or, if unable to afford an attorney, by a willing staff member or fellow inmate. Ariz.Admin.Code § R5-1-603(D)(2). ¹ Pursuant to the regulations, the DOC gave Defendant a form notifying him of the alleged disciplinary infraction and informing him of "the following rights":

A. To have a lawyer appear in your behalf and at your expense (major violations only).

B. To assistance of a willing and available prisoner in your institution, or a willing staff member to aid and assist you in your defense (major violations only).

C. The right to question witnesses who will testify against you.

D. The right to appeal any adverse ruling or decision.

E. The right to plead guilty or not guilty to the charges.

F. The right to call witnesses who will give relevant and material testimony including staff.

G. The right to remain silent.

Arizona Department of Corrections, Rules of Discipline, Form No. 1--Notice of Alleged Rule Violation. DOC also provided Defendant with a form on which to indicate his plea to the disciplinary charge, the witnesses he wished present at the disciplinary hearing, and the name of the person whom Defendant wished to "appoint ... as [his] representative." Arizona Department of Corrections, Rules of Discipline, Form No. 3A--Request for Witness--Plea-Waiver.

On August 20, 1987, Defendant selected inmate Les Kerekes as his representative. On November 6, Defendant was transferred to another prison unit; under prison rules, Kerekes could no longer represent him. Reporter's Transcript (R.T.), July 17, 1990, at 10, 29-30. On November 18, Defendant formally selected inmate William Plew as his new representative. Plew met with Defendant to discuss and prepare his defense. Id. at 51. Shortly thereafter, on November 27, Defendant was transferred to Florence, and so could no longer be represented by Plew. ² Defendant allegedly requested but was not appointed another inmate to represent him in the disciplinary hearing, which was ultimately held on January 7, 1988. Id. at 30, 39-40. Defendant refused to present a defense to the alleged disciplinary violation without representation, and the hearing officer found him guilty as charged. Transcript of the Disciplinary Hearing Tape, May 24, 1990, at 4, 9. The sanctions imposed on Defendant included a fifteen-day disciplinary isolation, a recommendation that his earned time credits be forfeited, Class III placement for ninety days, loss of all privileges except visitation for thirty days, and referral to the institutional classification committee. Id. at 10.

As the prosecution prepared for Defendant's ensuing criminal trial, Plew "came forward and agreed to give evidence against [Defendant and his codefendant] based on his conversations with them." State's Response to Petition for Review, at 5. Defendant moved to preclude Plew from testifying at trial regarding information received from Defendant in the course of representing him in the prison disciplinary proceeding, citing the attorney-client privilege, the fifth, sixth, and fourteenth amendments to the United States Constitution, and article 2, § 4 of the Arizona Constitution. The trial court ordered the evidence suppressed, without specifying upon which of Defendant's grounds the order was based. Minute Entry, Aug. 14, 1990. The court of appeals reversed the suppression order, holding that "a lay representative, even though authorized, is not an attorney under our privileged communications statutes." Melendez, 168 Ariz. at 277, 812 P.2d at 1095 (citing Hunt v. Maricopa County Employees Merit Sys. Comm'n, 127 Ariz. 259, 619 P.2d 1036 (1980)). The court did not address Defendant's due process arguments.

We granted Defendant's petition for review to resolve the following issue:

Whether the communications between the Defendant, a DOC inmate, and his lay legal representative are privileged either by operation of A.R.S. § 13-4062 or the Due Process Clause of the Fourteenth Amendment of the United States Constitution and/or art. 2, § 4 of the Arizona Constitution.

DISCUSSION

The DOC regulations grant prisoners the right to representation by retained counsel, willing inmates, or prison staff in prison disciplinary hearings. ³ After being formally apprised of this right by prison officials, and never informed that communications with his representative would not be guaranteed confidentiality, ⁴ Defendant confided in Plew, his official inmate representative. The State now seeks to call Plew as a witness at Defendant's criminal trial to testify regarding communications made in the course of the inmate representation.

Defendant argues that to permit Plew to testify at trial under these circumstances would violate the principle of fundamental fairness that underlies due process. ⁵ Defendant has timely asserted claims under both the Arizona and United States Constitutions regarding an issue on which there is neither Arizona nor federal precedent on point. We therefore address Defendant's claim under the due process provision of the Arizona Constitution.

The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness. See Oshrin v. Coulter, 142 Ariz. 109, 111, 688 P.2d 1001, 1003 (1984) ("[T]he denial of due process is a denial of 'fundamental fairness, shocking to the universal sense of justice.' ") (quoting Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 465-66, 440 P.2d 1000, 1005-06 (1968) and Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)). We agree with Defendant that to permit the state to introduce testimony garnered from communications between Defendant and his formal inmate representative would, under the circumstances, be fundamentally unfair and thus a deprivation of due process.

In Welfare Rights Org. v. Crisan, 33 Cal.3d 766, 190 Cal.Rptr. 919, 661 P.2d 1073 (1983), the California Supreme Court held that the California legislature, in enacting a statute authorizing lay representation in welfare rights administrative hearings, impliedly established a statutory privilege for confidential communications between a welfare claimant and his or her lay representative. While Crisan addressed an implied statutory privilege, and not due process, we nevertheless find one portion of the Crisan court's reasoning relevant and highly compelling:

the Legislature must have implied [the existence of the privilege] as an integral part of the right to representation by lay persons. Otherwise that right would, in truth, be a trap by inducing confidential communications and then allowing them to be used against the claimant. We do not attribute such a sadistic intent to the Legislature.

190 Cal.Rptr. at 923, 661 P.2d at 1076-77 (emphasis added). In the case before us, the state--through the DOC--allowed Defendant inmate assistance and representation, formalized the representation process by regulation, and permitted Defendant to meet and consult with his representative. The state now seeks the representative's testimony at a trial regarding the very conduct that served as the basis for the disciplinary proceeding in which he represented Defendant. The effect of such testimony is to take what the state offered Defendant as a "right" to representation and turn it into a trap, depriving Defendant of his due process right to fundamental fairness. See State v. Guerra, 161 Ariz. 289, 296, 778 P.2d 1185, 1192 (1989) (fundamental fairness precludes prosecution from using "an arrested person's silence to impeach an explanation subsequently offered at trial" given "implicit assurance" in Miranda warnings "that silence will carry no penalty"); Oshrin, 142 Ariz. at 111, 688 P.2d at 1003 (fundamental fairness violated where individual did not attempt to obtain breath sample for analysis or to have other tests taken after being told by police that driving under the influence charges were dropped, but not told that charges could and likely would be reinstated later); see also State v....