STATE v. HON. RAYES/MOORE

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) Petitioner, ) ) ) v. ) ) ) THE HONORABLE DOUGLAS RAYES, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) JULIUS JARREAU MOORE, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 07/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-SA 12-0134 Department C MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Petition for Special Action From the Maricopa County Superior Court Cause No. CR1999-016742 The Honorable Douglas L. Rayes, Judge JURISDICTION ACCEPTED; RELIEF GRANTED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals Section Lacey Alexandra Stover Gard, Assistant Attorney General Attorneys for Petitioner Tucson Law Offices of Patrick C. Coppen By Patrick C. Coppen Tucson Attorneys for Real Party in Interest T H U M M A, Judge ¶1 Julius superior court Jarreau of Moore three ( Defendant ) counts of was convicted first-degree in murder and sentenced to death for two of those counts. Having been found guilty in 2001, a second jury returned aggravation verdicts in 2004 and a third jury imposed the death penalty in 2007. Defendant s convictions were affirmed on appeal. State v. Moore, 222 Ariz. 1, 23, ¶ 140, 213 P.3d 150, 172 (2009), cert. denied, 130 S. Ct. 747 (2009). After the mandate issued on his direct appeal, Defendant filed a notice of post-conviction relief ( PCR ) in superior court pursuant to Rule 32.4 of the Arizona Rules Criminal Procedure ( Rule ). Defendant has not yet filed a Rule 32 PCR petition. ¶2 Defendant is investigating issues to press in a Rule 32 PCR petition and wants to contact trial jurors. The State filed a Motion for Court Order Prohibiting Defense Team from Contacting Jurors, seeking an order prohibiting defense counsel from having authorization contact from with [the the superior trial court] jurors . . absent . based prior upon a showing of good cause that such contact is necessary to develop a PCR claim. In response, Defendant filed a Request to Allow Limited Personal Contact with Jurors Based Upon Responses to 2 Approved Questionnaire. Defendant sought information from the penalty phase jurors about an alleged barbecue, get together or party after their deliberations, 1 seeking court approval for use of a questionnaire and cover letter directed to the jurors. Defendant asked the court to order that interviews of individual jurors may be conducted with both parties required presence, depending upon the juror s responses to the questionnaires. ¶3 The superior court denied the State s motion and granted Defendant s Request to Allow Limited Personal Contact with Jurors Based Upon Responses to Approved Questionnaire. The State filed a Petition for Special Action ( Petition ), seeking to vacate the order. 2 1 Defendant provided no explanation for how he learned of the alleged gathering and provided no affidavit or declaration supporting the claim. Although the appendices include Defendant s filing stating it has been reported that the 2007 penalty phase jury held a barbecue-type get together or party following their death penalty verdicts, no support is provided for that unverified statement. 2 Following a telephonic hearing, we granted the State s Motion for Stay. We grant Defendant s Motion to Accept Brief as Timely Filed and we deny as moot the State s Motion to Consolidate this matter with 1 CA-SA 12-0132. 3 DISCUSSION ¶4 The discretion State or alleges exceeded its the legal superior court authority, abused issues its that are properly raised in a special action. Ariz. R.P. Spec. Act. 3(b), (c). We agree that the State has no equally plain, speedy, and adequate order. remedy by Accordingly, appeal we to address exercise our the superior discretion court s and accept special action jurisdiction over the Petition. Ariz. R.P. Spec. Act. 1(a); State ex. Rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶¶ 8-10, 30 P.2d 649, 652 (App. 2001). ¶5 Turning to the relief requested in the Petition, we first address what we are not deciding. Among other things, we are not deciding: (1) what constitutes jury misconduct or what information may be relevant or admissible for a jury misconduct claim; (2) what claims are cognizable in a Rule 32 PCR proceeding; (3) what information may be discoverable for any claims made after Defendant files a Rule 32 PCR Petition; (4) whether Defendant has a constitutional right to the juror contact he seeks; or (5) when or how jurors may be contacted immediately after they are discharged from their deliberations. See State v. West, 176 Ariz. 432, 446-47, 862 P.2d 192, 206-07 (1993) (affirming, on direct appeal, trial court s refusal to release to defendant names and addresses of the trial jurors ), overruled in part on other grounds in State v. Rodriguez, 192 4 Ariz. 58, Instead, 64, we ¶ 30, address n.7, only 961 the P.2d 1006, proper 1012, procedure n.7 for (1998). discovery requests in a Rule 32 PCR proceeding. As such, our discussion is limited to the propriety of the superior court s order challenged in the Petition. ¶6 the The propriety of the order turns on two issues: (1) showing Defendant s discharged required request jurors before for and an the order obtain superior court permitting information him could grant to contact a written through questionnaire and (2) whether Defendant made that showing. We address these issues in turn. ¶7 Defendant seeks to obtain information in this Rule 32 PCR proceeding to use in a Rule 32 PCR petition that has not yet been filed. The State argues Defendant was required to show good cause before the court could grant Defendant s request to contact jurors and obtain information from jurors. Defendant argues that no such showing was necessary, and that even if good cause was required, he made that showing. We hold that allowing the requested juror contact and obtaining the requested information from jurors is proper only upon a showing of good cause. Canion v. Cole, 210 Ariz. 598, 600, ¶ 10, 115 P.3d 1261, 1263 (2005) ( trial judges have 5 inherent authority to grant discovery requests in PCR proceedings upon a showing of good cause ) (citing cases). 3 ¶8 We reject Defendant s argument that he is not seeking discovery or disclosure. The order issued at Defendant s request authorizes contact with trial jurors to investigate colorable issues that Defendant wants to include in a Rule 32 PCR Petition. Defendant s Rule 32 defense team made the request to allow[] investigation of the issue at hand for PCR purposes. Simply put, Defendant seeks discovery for Rule 32 PCR purposes. Indeed, if Defendant was not seeking information relevant to this Rule 32 PCR proceeding, no authority is cited supporting his request. ¶9 seeks We also information find Canion from applies non-parties. even though Although Defendant the Canion defendant sought disclosure from the State, the Arizona Supreme Court held trial judges have inherent authority to grant discovery requests in PCR proceedings upon a showing of good cause. Id. at 600, ¶ 10, 115 P.3d at 1263. The reasoning and 3 Although the State mentions other authority for a good cause requirement, we hold Canion sets forth the applicable standard. See A.R.S. § 21-312(A) (Westlaw 2012) ( The list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court. ); Ariz. R. Crim. P. 18.3 (noting court shall keep all jurors home and business telephone numbers and addresses confidential unless good cause is shown ). Absent material revisions, we cite the current Westlaw version of applicable statutes. 6 analysis in discovery Canion from apply with non-parties full like force to Defendant requests seeks for here. Accordingly, we hold Canion s good cause requirement applies to requests for disclosure and discovery from parties as well as non-parties made in Rule 32 PCR proceedings. ¶10 Whether good cause has been shown is contextual. In a Rule 32 PCR proceeding, good cause can only be shown in the context of the claims made in a Rule 32 PCR petition. Canion crisply held that pre-petition discovery could not properly be compelled: This case raises the question whether a convicted defendant who has filed a notice of post-conviction relief ( PCR ), but has not filed a petition seeking relief, has a right to compel discovery for his PCR proceedings. We hold that he does not. Id. at 598, ¶ 1, 115 P.3d at 1261. Until the Rule 32 PCR petition is filed, we do not know the basis for [a defendant s] claim for Rule 32 relief and cannot assess whether any violation he might allege would state a colorable claim. Id. at 600, ¶ 14, 115 P.3d at 1263. permitted to show discovery about good and As applied, cause from for the before court jurors, Defendant involvement he must file may be seeking a PCR petition to provide context for his request. Id. at 600, ¶ 10, 115 P.3d at 1263. Absent the filing of a Rule 32 PCR petition, the court lack[s] any context in which to assess his request; 7 [o]nly when a petition has been filed can the trial judge and reviewing courts properly consider his request in light of his asserted grounds for relief. Id. at 600-01, ¶ 14, 115 P.3d at 1263-64. ¶11 Citing Wellons v. Hall, 130 S. Ct. 727 (2010), Defendant argues it is far better to allow the investigation of alleged jury misconduct in a capital case to take place when raised than to defer. We do not read Canion as inconsistent with such a directive. In the context of a Rule 32 PCR proceeding, however, Canion holds any issue of jury misconduct is raised when a Defendant files a Rule 32 PCR petition. Until then, good cause cannot be assessed. Id. at 600-01, ¶ 14, 115 P.3d at 1263-64. ¶12 Because the order exceeded the superior court s authority at this stage of the Rule 32 PCR proceeding, we vacate that order without prejudice to Defendant seeking such relief after filing a Rule 32 PCR petition. In doing so, we note that neither party focused on Canion when arguing to the superior court. Accordingly, the superior court did not have the benefit of the parties views on an opinion we find dispositive. 8 CONCLUSION ¶13 We accept jurisdiction of this special action and grant relief. We vacate the superior court s order to the extent it grants Defendant s Request to Allow Limited Personal Contact with Jurors Based Upon Responses to Approved Questionnaire or authorizes Defendant Defendant seeking to such contact an order jurors, after without filing a prejudice Rule 32 to PCR petition. We remand this case to the superior court for further proceedings consistent with this memorandum decision. _/s/_____________________________ SAMUEL A THUMMA, Judge CONCURRING: _/s/__________________________________ PATRICIA K. NORRIS, Presiding Judge _/s/________________________________ DONN KESSLER, Judge 9

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