Wells v. Fell

• Decision Date: 28 February 2013
• Docket Number: No. 2 CA–SA 2012–0076.,2 CA–SA 2012–0076.
• Citation: 655 Ariz. Adv. Rep. 29,231 Ariz. 525,297 P.3d 931
• Parties: Calisto Mariko WELLS, Petitioner, v. Hon. Howard FELL, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

231 Ariz. 525

297 P.3d 931

655 Ariz. Adv. Rep. 29

Calisto Mariko WELLS, Petitioner,

v. Hon. Howard FELL, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona, Real Party in Interest.

No. 2 CA–SA 2012–0076.

Court of Appeals of Arizona, Division 2, Department A.

Feb. 28, 2013.

The McDonald Law Firm, P.C. By Alfred McDonald, Tucson, Attorney for Petitioner.

Barbara LaWall, Pima County Attorney By Nicolette Kneup, Tucson, Attorneys for Real Party in Interest.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 In this special action, petitioner Calisto Wells challenges the respondent judge's ruling ordering him to disclose police-officer witness statements made during interviews of which the state had no notice, despite his intent to use the statements solely for impeachment. We accept special action jurisdiction to clarify that a trial court may, upon a showing of substantial need and undue hardship, order such materials disclosed. But because our record is unclear whether the state made such a showing here, we vacate the respondent judge's order.

Background

¶ 2 Wells was charged with two counts of aggravated assault, based on his having assaulted a police officer with a dangerous instrument. Unbeknownst to the prosecutor, Wells interviewed some of the police-officer witnesses, arranging the interviews directly with the Tucson Police Department. The state became aware of the interviews after Wells attempted to interview the victim officer. The state then filed a motion to require disclosure of recordings or transcripts of the interviews. It argued in its motion that it had substantial need of the recordings or transcripts “to see if there [is] any additional or different information in the police reports.”

¶ 3 In his response to the state's motion, Wells relied on this court's decision in Osborne v. Superior Court, 157 Ariz. 2, 754 P.2d 331 (App.1988), arguing that because he intended to use the officers' statements only for impeachment, he was not required to disclose them. The respondent judge granted the state's motion, concluding it could not obtain the “substantial equivalent” of the recordings because “obviously if the State interviews the police officers that have been interviewed they can't remember exactly what they said, and so the State wouldn't be prepared should [Wells] use the interviews for impeachment.” Wells then filed a petition for special action relief in this court.

Discussion

¶ 4 This court has a great deal of discretion in determining whether to accept special action jurisdiction. Arpaio v. Figueroa, 229 Ariz. 444, ¶ 5, 276 P.3d 513, 515 (App.2012). And “ ‘appellate courts do not routinely entertain petitions for extraordinary relief on discovery matters.’ ” Id., quoting Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, ¶ 10, 217 P.3d 1212, 1216 (App.2009). But, particularly when the issues presented are legal questions likely to recur, “ ‘special action jurisdiction may be appropriate because a discovery order is not immediately appealable.’ ” Id., quoting Am. Family Mut. Ins. Co., 222 Ariz. 507, ¶ 10, 217 P.3d at 1216. In this case, because the arguments made present legal questions left undeveloped in one of our previous decisions, we accept jurisdiction.

¶ 5 In his petition, Wells relies on this court's decision in Osborne. He contends the Osborne court broadly held “that the defendant cannot be ordered to disclose statements taken from State witnesses outside the presence of the prosecutor which the defendant intends to use solely for impeachment purposes.” He argues that the respondent judge therefore erred in ordering him to disclose the officers' statements because they “will be use[d] solely for impeachment purposes.”

¶ 6 In Osborne, the trial court had ordered the defendant to disclose to the state statements we characterized as falling into “three general categories”: (1) “statements of state witnesses who had been interviewed in the presence of the prosecutor,” (2) “statements of witnesses disclosed by the state who had been interviewed outside the presence of the prosecutor,” and (3) “tape recordings of a prison disciplinary hearing which was attended by” defense counsel but not the prosecutor. Id. at 4, 754 P.2d at 333. This court determined that Rule 15.2(c), Ariz. R.Crim. P., requires a defendant to disclose statements only of witnesses he or she will “call as witnesses at trial” and “papers, documents, photographs and other tangible objects” that he or she will use at trial. See Osborne, 157 Ariz. at 4–5, 754 P.2d at 333–34. Thus, we reasoned, that rule did not require disclosure of any of the statements because the defendant wished to use them solely for impeachment and because they were “testimonial” rather than “real” evidence. Id. at 5, 754 P.2d at 334.

¶ 7 We also determined the trial court's order for disclosure could not be supported under Rule 15.2(g).¹See Osborne, 157 Ariz. at 5–6, 754 P.2d at 334–35. That supported under Rule 15.2(g).1 See Osborne, 157 Ariz. at 5–6, 754 P.2d at 334–35. That subsection of the rule provides: “Upon motion of the prosecutor showing that the prosecutor has substantial need in the preparation of his or her case for material or information not otherwise covered by Rule 15.2, that the prosecutor is unable without undue hardship to obtain the substantial equivalent by other means,” the court may order a person to make such material available. Ariz. R.Crim. P. 15.2(g). We concluded the state had not demonstrated undue hardship under the rule. Osborne, 157 Ariz. at 6, 754 P.2d at 335. We pointed out that the state had or could have had the same opportunity to record or transcribe the statements made when the prosecutor was present or at the disciplinary hearing and that “[t]he expense to the state of transcription does not amount to ‘undue hardship.’ ” Id. And we stated that, “[w]ith respect to all of the statements,” the state would “have the opportunity to review them and make ... objections as to accuracy and context if and when they are used by petitioner to impeach the state's witnesses.” Id. Relying on this final assertion, Wells argues essentially that a defendant need not disclose any statements of state witnesses made to the defense so long as they are to be used solely for impeachment.

¶ 8 We do not read Osborne so broadly. We stated that “the disclosure of prior statements used for impeachment is governed by Ariz. R. Evid. 613(a)” and that “[t]he mere possibility that such statements may be used and may be inaccurate or taken out of context does not justify a blanket order requiring disclosure of all statements not otherwise covered by Rule 15.2.” Osborne, 157 Ariz. at 5, 754 P.2d at 334. But in so ruling, we focused our analysis on whether the state had met the requirements of Rule 15.2(g) under the facts presented. Our Osborne decision does not state specifically whether the prosecutor was notified of, or had any opportunity to attend, the interviews at which she was not present. In this case, however, the parties agree that the defendant did not notify the prosecutor's office about the interviews, but rather had arranged them directly with the police department.

¶ 9 In his response to the state's motion for disclosure below, Wells argued that by arranging the interviews with the police department, he had notified the “State,” because police officers are representatives of the state and the officers could have called the prosecutor's office if they felt they needed legal help for the interviews. We do not agree. A prosecutor is responsible for disclosingmaterials in the possession of “[a]ny law enforcement agency which has participated in the investigation of the case and that is under the prosecutor's direction or control.” Ariz. R.Crim. P. 15.1(f)(2). Because the rule therefore anticipates that the prosecutor will control the discovery process, it does not provide that those other agencies may receive discovery or discovery requests or otherwise act as an “agent” or “representative” of the state for disclosure purposes. See id.

¶ 10 In Carpenter v. Superior Court, 176 Ariz. 486, 862 P.2d 246 (App.1993), this court rejected a claim similar to that presented here. In that case, the defendant had attempted to subpoena the police custodian of records without notifying the prosecutor's office. Id. at 488, 862 P.2d at 248. This court agreed with the trial court's ruling quashing the subpoena and its conclusion “that a criminal defendant cannot use the subpoena power of the court to circumvent the rules of criminal procedure and thereby obtain discovery without the knowledge of the state or consent of the trial court.” Id. at 489, 862 P.2d at 249. In the present situation, it does not appear that Wells invoked the court's subpoena power, and Carpenter did not extend its conclusion to mere independent investigation by the defendant. Id. at 491, 862 P.2d at 251. But, in our view, the fact the prosecutor did not have an opportunity to attend the interviews is relevant to determining whether the state can establish an undue hardship in obtaining the substantial equivalent of the statements sought. State v. Strickland, on which Wells relied below, decided in the context of trial scheduling and a police officer witness's scheduling conflict, is inapposite in this context. 27 Ariz.App. 695, 696–97, 558 P.2d 723, 724–25 (1976).

¶ 11 Although as outlined above, Osborne is distinguishable from this case to some extent, we recognize that some of the language therein more broadly asserts that impeachment evidence is not subject to court-ordered disclosure under Rule 15.2(g). To some extent, we recognize that some of the language therein more broadly asserts that impeachment evidence is not subject to court-ordered disclosure under Rule 15.2(g). To the extent that Osborne can be so read, we overrule it. “Respect for precedent demands ‘that we not lightly...