STATE v. HON. WELTY/PRINCE

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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. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 10/31/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Petitioner, ) ) ) THE HONORABLE JOSEPH C. WELTY, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) WAYNE PRINCE and PETE J. ) VANWINKLE, ) ) Real Party in Interest. ) __________________________________) This matter was considered 1 CA-SA 13-0259 1 CA-SA 13-0260 (Consolidated) Maricopa County Superior Court No. CR 1998-004885 CR 2008-128068-001-DT DECISION ORDER by Presiding Judge Maurice Portley and Judges John C. Gemmill and Samuel A. Thumma. After consideration, and for the reasons that follow, IT discretion, IS ORDERED, declining in special the exercise action of the jurisdiction court s in these matters. IT IS FURTHER ORDERED denying as moot the motion to strike the petitions for special action, filed by real party in interest Wayne Benoit Prince, Jr., and joined by real party in interest Pete J. VanWinkle. I. Procedural Background. A jury found Prince guilty of, inter alia, first degree murder, committed in 1998, and sentenced him to death. After intervening sentence were appeals affirmed and and remands, the mandate his has conviction issued. and State v. Prince, 226 Ariz. 516, 250 P.3d 1145, cert. denied, 132 S. Ct. 582 (2011). murder, A jury committed conviction and found in 2008, sentence VanWinkle and were guilty sentenced affirmed of him and first to the degree death. His mandate has issued. State v. VanWinkle, 230 Ariz. 387, 285 P.3d 308 (2012), cert. denied, 133 S. Ct. 909 (2013). Prince and VanWinkle have filed notices of intention to seek post-conviction relief pursuant to Ariz. R. Crim. P. 32 in Maricopa County Superior Court, but neither has filed a petition for post-conviction relief. As described in the special action Petitions, in both cases, [i]n an effort to stem unauthorized and unsupervised post-verdict juror contact by defense attorneys, and consistent with Arizona laws and rules protecting jurors from post-verdict attorney contact, the State filed a motion seeking [to] ensure that no member of [Prince s or VanWinkle s] defense team contact any juror or venire member absent court permission based on a showing of good cause. The trial court denied the State s motion, concluding that because the defendant had not requested disclosure of any juror contact or biographical information, Canion v. Cole, 210 Ariz. 598, 115 P.3d 1261 (2005), did not 2 apply, and the court otherwise had authority to grant the State s motion: no In Canion, the Supreme Court held that a trial judge could grant discovery requests in PCR proceedings upon a showing of good cause. The good cause could only be shown in the context of the claims made in a Rule 32 petition. 210 Ariz. at [600-01,] ¶¶ 12,14. The Court finds that Canion is inapposite because the defendant has made no request for discovery here. The State has not cited any authority, and the Court has found none, requiring the Court to preclude the defendant from independently investigat[ing] potential PCR claims. The superior reconsideration court in both denied the cases. The State s State motions then filed for these special actions, claiming an abuse of discretion in denying the State s including motions because inherent the authority, superior to court regulate has authority, post-verdict juror contact. II. Special Action Jurisdiction. Special action jurisdiction is highly discretionary, and is not appropriate where there is an equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). In these consolidated cases, VanWinkle states that no juror contact will be attempted without prior superior court involvement: 3 The VanWinkle team has no intention of contacting jurors without court involvement. We are investigating a claim that the trial judge improperly ordered the defendant to wear a stun belt and a leg brace during trial and improperly permitted the presence of an armed Special Response Team in the vicinity of the courtroom. . . . Based upon this claim, we are prepared to ask the Superior Court to establish appropriate procedures for contacting and questioning former jurors. Although it is unclear whether Prince adopts this approach, Prince adds there was no evidence before the superior court that any member of the Prince team currently intended to contact, much less attempted to contact any jurors. Accordingly, accepting special action jurisdiction at this time could result in addressing legal issues on a situation that may never occur. Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 536, ¶ 13, n.6, 278 P.3d 310, 314 n.6 (App. 2012) (citation omitted; discussing ripeness and standing). For these reasons, on this record, this court declines special action jurisdiction in these matters and denies as moot the motion to strike the petitions for special action. __/S/______________________________ SAMUEL A. THUMMA, Judge 4

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