State v. Superior Court In and For Pima County, 2
| Decision Date | 26 May 1982 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 645 P.2d 1288,132 Ariz. 374 |
| Parties | The STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and the Honorable Philip Fahringer, Judge of the Superior Court, Respondent, and Patrick Allen COOK, Real Party in Interest. 4367. |
| Court | Arizona Court of Appeals |
This special action presents again the problem of allowing disclosure of internal affairs records of police officers to a defendant in a pending criminal prosecution. Real party in interest Cook is the defendant in a pending prosecution for resisting arrest. He filed a motion for disclosure of the internal affairs records of Officer Smith, the arresting officer, alleging that Smith was overly aggressive, assaultive, and unprofessional in his actions. The respondent court ordered production of the internal affairs records of Officer Smith for an in camera inspection and after reviewing the records, ordered the state to turn over two complaints against the officer which, according to the state, the respondent judge indicated dealt with acts of verbal over-aggressiveness, but not overly aggressive or assaultive conduct.
The state contends that the order of the respondent court exceeded the stringent requirements enunciated by this court in State ex rel. DeConcini v. Superior Court, 20 Ariz.App. 33, 509 P.2d 1070 (1973), and its progeny. In his cross-petition, the defendant contends that the respondent court misinterpreted our DeConcini holding by limiting the disclosure order to two complaints which resulted in departmental findings adverse to Officer Smith. He contends that the trial court should not be limited to ordering disclosure of only those complaints which resulted in adverse findings, but that when the alleged over-aggressiveness of a police officer is in issue, the judge should be free to determine what complaints are sufficiently similar and relevant to the present fact pattern to be discoverable.
Upon re-examination of the DeConcini holding, we conclude that prior complaints against a peace officer involved in a criminal case under the circumstances presented here should not be subject to discovery since they are not relevant. This information cannot lead to any admissible evidence and is not itself admissible. Therefore, disclosure in this case was improper and we grant relief.
In DeConcini we stated:
"There is no question that if defendant Franze could establish other incidents of 'over-aggressiveness' on the part of the police officers involved in this case, such evidence could seriously be considered by the trier of fact in determining his guilt or innocence." 20 Ariz.App. at 37, 509 P.2d 1070.
Division One of this court in State ex rel. Berger v. Superior Court, 21 Ariz.App. 320, 519 P.2d 73 (1974), in reliance on our DeConcini decision, declined to interfere with a trial court order requiring the state to disclose to the defendant charged with aggravated assault all reports, complaints, departmental investigations and actions taken, if any, in connection with similar incidents involving the arresting officers.
In State v. Birdsall, 116 Ariz. 196, 568 P.2d 1094 (App.1977), we upheld a limited intrusion into a homicide victim's school record which would be relevant to the self-defense issue, i.e., incidents involving the victim's aggressiveness or assaultive tendencies. We noted, however, that evidence of the deceased's reputation for belligerence and aggressiveness was admissible on the issue of self-defense, and that it would be unfair to the defendant to have to interview the entire junior high school population in an attempt to discover the deceased victim's reputation as an aggressor.
In three civil cases against the city or county for negligent employment and retention of police officers known to have vicious propensities, we upheld the plaintiff's right to information concerning complaints in regard to assaults or other incidents involving the police officers which would go to show their vicious propensities and notice to the employer regarding those propensities. See Pima County v. Harte, 131 Ariz. 68, 638 P.2d 735 (App.1981); City of Tucson v. Superior Court, 25 Ariz.App. 512, 544 P.2d 1113 (1976); City of Phoenix v. Peterson, 11 Ariz.App. 136, 462 P.2d 829 (1969). We believe the rationale of those cases is eminently correct, but disclosure of prior complaints against a peace officer involved in the case sub judice should not be subject to disclosure. Real party in interest Cook filed a motion to have an in...
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