Justia.com Opinion Summary: The Arizona Constitution entitles victims of crimes to be present and informed of all criminal proceedings where the defendant has the right to be present. In this case, Petitioners Morehart and Duffy challenged a court decision that denied them the opportunity to attend an ex parte hearing on the return of summonses issues as part of defense counsel’s pretrial investigation and mitigation of evidence in a capital case. The Defendant was charged with five counts of fist-degree murder. The State sought the death penalty. In 2006, the trial court found the defendant indigent, and approved an ex parte motion for the appointment of a mitigation specialist and an expert. Defense counsel filed a motion for a hearing on the matter. The court granted the ex parte request, and the Victims objected to it. The Victims sought special action relief from the appellate court, arguing that state law “does not displace a victim’s right to be present at all criminal proceedings." The Supreme Court held that because the defendant had no right to attend such a purely procedural hearing, the victims had no right to attend it too. The Court vacated the appellate court’s decision and remanded the case to the lower court for further proceedings.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
SUPREME COURT OF ARIZONA
En Banc
PATRICIA MOREHART and COLLEEN
DUFFY,
)
)
)
Petitioners, )
)
v.
)
)
THE HONORABLE JANET E. BARTON,
)
JUDGE OF THE SUPERIOR COURT OF
)
THE STATE OF ARIZONA, in and for )
the County of Maricopa,
)
)
Respondent Judge, )
)
THE STATE OF ARIZONA and WILLIAM )
CRAIG MILLER,
)
)
Real Parties in Interest. )
__________________________________)
Arizona Supreme Court
No. CV-10-0327-PR
Court of Appeals
Division One
No. 1 CA-SA 10-0126
Maricopa County
Superior Court
Nos. CR2005-140129
CR2006-112056
O P I N I O N
Special Action from the Superior Court in Maricopa County
The Honorable Janet E. Barton, Judge
REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
225 Ariz. 269, 236 P.3d 1216 (App. 2010)
VACATED
________________________________________________________________
CRIME VICTIMS LEGAL ASSISTANCE PROJECT
By
Douglas L. Irish
Keli B. Luther
Attorneys for Patricia Morehart and Colleen Duffy
CARMEN L. FISCHER ATTORNEY AT LAW
By
Carmen L. Fischer
Tempe
Phoenix
And
KESSLER LAW OFFICES
Mesa
By
Eric W. Kessler
Sandra Hamilton
Attorneys for William Craig Miller
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY
By
Lisa Marie Martin, Deputy County Attorney
Attorneys for Real Party in Interest State of Arizona
Phoenix
ARIZONA CAPITAL REPRESENTATION PROJECT
Tucson
By
Natman Schaye
Attorney for Amici Curiae National Association of Criminal
Defense Lawyers, Southern Center for Human Rights, Oregon
Capital Resource Counsel, South Carolina Capital Trial
Division, Missouri Association of Criminal Defense Lawyers,
New Mexico Criminal Defense Lawyers, Texas Defender
Services, Arizona Attorneys for Criminal Justice, and
Arizona Capital Representation Project
STEVENS & VAN COTT, PLLC
Scottsdale
By
Charles Van Cott
Attorneys for Amicus Curiae National Crime Victim
Law Institute
________________________________________________________________
B A L E S, Justice
¶1
Arizona’s
Constitution
entitles
victims
“[t]o
be
present at and, upon request, to be informed of all criminal
proceedings where the defendant has the right to be present.”
Ariz. Const. art. 2, § 2.1(A)(3).
The issue here is whether
this provision entitles victims to attend an ex parte hearing on
the return of summonses issued as part of defense counsel’s
pretrial investigation of mitigation evidence in a capital case.
Because
the
defendant
has
no
right
to
attend
such
a
purely
procedural hearing, victims also have no right to attend.
I.
¶2
William Craig Miller is charged with five counts of
2
first degree murder and the State seeks the death penalty.
In
2006, the trial court found Miller indigent and approved his ex
parte motion for appointment of a mitigation specialist and a
neurologist.
See
Ariz. R. Crim. P. 15.9(b) (authorizing ex
parte application for appointment of investigators and experts
for
indigent
capital
defendants
upon
showing
of
need
for
confidentiality).
¶3
In April 2010, Miller filed a motion for an ex parte
hearing related to “the defense investigation into mitigation
matters.”
The State did not oppose this request, but surviving
family members (the “Victims”) of two of the murder victims
objected, arguing that “[u]nder the Victims’ Bill of Rights, any
ex
parte
hearing
unconstitutional.”
excluding
The
trial
the
court
crime
initially
victims
found
that
is
it
could not determine from Miller’s motion whether an ex parte
hearing was appropriate and directed defense counsel to submit
an ex parte motion detailing the matters defense counsel wanted
to discuss.
¶4
Defense counsel filed such a motion under seal.
At a June 2010 pretrial conference, the trial court
heard argument on the request for an ex parte hearing.
trial
court
summonses.
noted
that
the
request
concerned
The
out-of-state
Under Arizona Revised Statutes (“A.R.S.”) section
13-4093, Arizona courts may issue certificates to be presented
to out-of-state courts to summon witnesses for Arizona criminal
3
proceedings.
Miller’s
The
efforts
proposed
hearing
obtain
possible
to
here
evidently
mitigation
concerned
evidence
from
third parties.
¶5
The Victims again objected to the ex parte hearing.
The trial court explained that it would address any matters that
concerned trial scheduling in open court, but that Arizona law
allowed
it
defendant’s
to
consider
discovery
and
ex
parte
matters
procurement
of
related
to
mitigation,
the
and
it
accordingly granted Miller’s request for an ex parte hearing.
¶6
The Victims sought special action relief in the court
of appeals, which accepted jurisdiction and vacated the trial
court’s order.
Morehart v. Barton, 225 Ariz. 269, 273 ¶ 12, 236
P.3d 1216, 1220 (App. 2010).
Constitution
gives
victims
The court noted that the Arizona
the
right
to
be
present
at
“all
criminal proceedings where the defendant has the right to be
present.”
Id. at 271 ¶ 6, 236 P.3d at 1218 (quoting Ariz.
Const. art. 2, § 2.1(A)(3)); see also A.R.S. § 13-4420 (stating
that victims have right “to be present throughout all criminal
proceedings
present”).
in
which
Although
the
defendant
Rule
15.9(b)
has
the
right
contemplates
ex
to
be
parte
proceedings in some circumstances, the court of appeals said
that this rule does not displace a victim’s right to be present
at “all criminal proceedings.”
225 Ariz. at 271–72 ¶ 7, 236
P.3d at 1218–19.
4
¶7
The court of appeals found support for its conclusion
in State v. Apelt, 176 Ariz. 349, 365, 861 P.2d 634, 650 (1993),
which held that a defendant has no constitutional right to ex
parte proceedings and noted that the Arizona Rules of Criminal
Procedure
require
a
defendant
to
disclose
all
witnesses
and
defenses.
Morehart, 225 Ariz. at 272 ¶ 8, 236 P.3d at 1219.
The
of
court
necessary
to
appeals
balance
acknowledged
the
competing
that
it
may
sometimes
constitutional
rights
be
of
victims and the defendant, but found that the record here did
not establish that the defendant’s constitutional rights would
be jeopardized.
Id. at 272–73 ¶ 11, 236 P.3d at 1219–20.
¶8
We granted review to determine whether the Victims are
entitled
under
Arizona
law
to
attend
an
ex
parte
concerning defendant’s pretrial mitigation discovery.
hearing
The issue
is one of first impression and statewide importance.
We have
jurisdiction
Arizona
under
Article
6,
Section
5(3)
of
the
Constitution and A.R.S. § 12-120.24.
II.
¶9
Arizona has been a national leader in providing rights
to crime victims.
Adopted as a constitutional amendment in
1990, the Victims’ Bill of Rights provides crime victims the
right “[t]o be treated with fairness, respect and dignity . . .
throughout the criminal justice process.”
Ariz. Const. art. 2,
§ 2.1(A)(1); see also 1991 Ariz. Sess. Laws, ch. 229, § 2(2)
5
(noting that the Victims’ Bill of Rights seeks to ensure that
“all crime victims are provided with basic rights of respect,
protection, participation, and healing of their ordeals”).
of
the
rights
specifically
afforded
to
victims
is
One
“[t]o
be
present at and, upon request, to be informed of all criminal
proceedings where the defendant has the right to be present.”
Ariz. Const. art. 2, § 2.1(A)(3).
Similarly, A.R.S. § 13-4420
provides
the
that
“[t]he
victim
has
right
to
be
present
throughout all criminal proceedings in which the defendant has
the
right
to
be
present.”
The
Arizona
Rules
of
Criminal
Procedure also acknowledge a victim’s “right to be present at
all criminal proceedings,” Ariz. R. Crim. P. 39(b)(4), “at which
the
defendant
has
the
right
to
be
present,”
id.
39(a)(2)
(defining “criminal proceeding”).
¶10
At issue here is an ex parte hearing on the return of
summonses
related
to
a
capital
defendant’s
investigation of potential mitigation evidence.
pretrial
A defendant is
entitled to present mitigation in a capital case and the state
must provide indigent defendants with resources to do so.
See,
e.g., Dawson v. Delaware, 503 U.S. 159, 167 (1992) (observing
that “a capital defendant is entitled to introduce any relevant
mitigating evidence that he proffers in support of a sentence
less
than
death”);
Ake
v.
Oklahoma,
470
U.S.
68,
77
(1985)
(concluding that state must provide indigent defendants with the
6
“basic tools of an adequate defense”); State v. Bocharski, 200
Ariz. 50, 62 ¶ 61, 22 P.3d 43, 55 (2001) (noting that “Arizona’s
justice
system
must
provide
adequate
resources
to
enable
indigents to defend themselves in a reasonable way” in capital
cases).
defense
Because mitigation evidence is a key component of the
in
exhaustive
provide
a
capital
investigation
effective
Sixth Amendment.
¶11
15.9
case,
assistance
addresses
for
the
of
counsel
client’s
counsel
must
past
for
conduct
an
order
to
in
purposes
of
the
Wiggins v. Smith, 539 U.S. 510, 522–23 (2003).
Consistent
witnesses
of
defense
the
with
this
constitutional
appointment
indigent
of
defendants
framework,
investigators
in
capital
and
Rule
expert
cases.
As
initially adopted in 2002, this Rule did not provide for ex
parte proceedings, which prompted concerns that defense counsel
might
improperly
product
material
be
required
to
disclose
in
seeking
to
obtain
privileged
mitigation
or
work
evidence.
Accordingly, the Rule was amended to expressly allow ex parte
proceedings
upon
confidentiality,”
a
“proper
and
showing
directing
.
that
.
.
“any
[of
a]
such
need
for
proceeding,
communication, or request shall be recorded verbatim and made a
part of the record available for appellate review.”
Ariz. R.
Crim. P. 15.9(b); cf. Ariz. Sup. Ct. R. 81, Code of Judicial
Conduct,
Rule
2.9(A)(5)
(providing
“[a]
judge
may
initiate,
permit, or consider any ex parte communication when expressly
7
authorized by law to do so”).
¶12
We assume for purposes of this case that the trial
judge correctly determined that a proper showing had been made
to justify an ex parte hearing on the return of the out-of-state
summonses.
made
by
Rule 15.9(b) recognizes that certain requests may be
ex
payments
for
parte
an
motions
(e.g.,
investigator
a
request
where
there
for
is
approval
a
need
of
for
confidentiality), and courts often resolve such matters without
a hearing.
after
Here, the judge ordered an ex parte hearing only
considering
a
motion
detailing
why
confidentiality
was
required, and the judge explained in open court that the hearing
would be limited to mitigation discovery matters.
Rule 15.9(b),
we further assume, authorizes such a proceeding ancillary to the
court’s appointment of a mitigation specialist and its approval
of funds for a mitigation investigation.
Indeed, the State has
not claimed that it was entitled to attend the hearing.
The
issue instead is whether exclusion of the Victims would violate
their rights “to be present at” a criminal proceeding “where the
defendant has the right to be present.”
Ariz. Const. art. 2, §
2.1(A)(3).
¶13
A criminal defendant generally has the right to be
present in the courtroom during proceedings in his case.
U.S.
Const. amend. VI; id., amend. XIV; Ariz. Const. art. 2, § 24;
Ariz. R. Crim. P. 19.2.
Although the right to be present is
8
largely rooted in the Sixth Amendment’s Confrontation Clause,
the Fourteenth Amendment’s Due Process Clause also entitles the
criminal defendant to be present when “not actually confronting
witnesses or evidence against him.”
U.S. 730, 745 (1987).
Kentucky v. Stincer, 482
Thus, “a defendant is guaranteed the
right to be present at any stage of the criminal proceeding that
is critical to its outcome if his presence would contribute to
the fairness of the procedure.”
¶14
Id.
The right to be present extends to those proceedings
at which the defendant’s “presence has a relation, reasonably
substantial,
to
the
against the charge.”
06
(1934),
overruled
fullness
of
his
opportunity
to
defend
Snyder v. Massachusetts, 291 U.S. 97, 105–
in
part
on
other
grounds
by
Malloy
v.
Hogan, 378 U.S. 1 (1964); State v. Dann, 205 Ariz. 557, 571–72
¶
53,
74
P.3d
231,
245–46
(2003).
Nonetheless,
a
criminal
defendant’s constitutional right to be present does not extend
to purely procedural hearings.
E.g., United States v. Gagnon,
470 U.S. 522, 526 (1985) (per curiam); Snyder, 291 U.S. at 105–
06; Dann, 205 Ariz. at 571–72 ¶ 53, 74 P.3d at 245–46; State v.
Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981).
¶15
Stincer, Gagnon, and Dann indicate that a hearing on a
return
of
summonses
issued
in
the
pretrial
investigation
of
mitigation is not the type of proceeding at which the defendant
has
a
right
to
be
present.
In
9
Stincer,
the
defendant
was
excluded from an in-chambers hearing at which the trial court
preliminarily
determined
that
two
offense were competent to testify.
child
victims
of
a
482 U.S. at 732–33.
sexual
Defense
counsel attended the competency hearing and cross-examined the
witnesses.
Id.
In these circumstances, the Court held that the
defendant’s right to be present had not been violated because
his involvement in the competency hearing would not have had a
“‘relation,
reasonably
substantial,
to
the
opportunity to defend against the charge.’”
fullness
of
his
Id. at 745 (quoting
Snyder, 291 U.S. at 105–06).
¶16
In Gagnon, the trial court excluded defendants from an
in camera inquiry concerning juror prejudice.
470 U.S. at 523.
After a juror expressed concern that one of four defendants in
an
alleged
drug
distribution
conspiracy
was
sketching
juror
portraits, the judge ordered the defendant to stop sketching.
Id.
At
defense
counsel’s
request,
the
trial
court
briefly
interviewed the juror in camera to ensure the sketching had not
prejudiced
the
juror.
Id.
Defendant
present during the in camera inquiry.
Gagnon’s
counsel
Id. at 524.
was
On appeal,
each defendant claimed that the in camera discussion with the
juror violated his right to be present at all stages of the
trial.
Court
Id.
at 524–25.
observed
conversation
that
between
Rejecting this argument, the Supreme
“‘[t]he
a
mere
trial
occurrence
judge
10
and
a
of
an
juror
ex
does
parte
not
constitute a deprivation of any constitutional right,’” and that
the defendants’ presence “was not required to ensure fundamental
fairness
or
a
‘reasonably
substantial
defend against the charge.’”
.
.
.
opportunity
to
Id. at 526-27 (second alteration
in original) (citations omitted).
¶17
More
recently,
in
Dann
we
considered
a
defendant’s
exclusion from “a series of pretrial conferences” and “a series
of
side-bar
and
in-chambers
selection and trial.”
conferences
held
during
jury
205 Ariz. at 571 ¶ 52, 74 P.3d at 245.
Discussing the defendant’s federal constitutional rights to be
present at trial, this Court noted:
[T]he right does not extend to in-chambers pretrial
conferences, . . . to brief bench conferences with
attorneys conducted outside the defendant's hearing,
and to various other conferences characterized as
relating only to the resolution of questions of law.
When reviewing a defendant's absence from preliminary
hearings, the court should examine the record as a
whole and determine whether [the] accused suffered any
damage by reason of his absence.
Id. at 571–72 ¶ 53, 74 P.3d at 245–46 (alterations in original)
(internal quotation marks and citations omitted).
emphasized
effort
to
in
Dann
honor
that
a
“[a]
trial
defendant's
Although we
judge
should
make
request
to
attend
every
all
proceedings,” id. at 575 ¶ 72, 74 P.2d at 249, we held that “[a]
defendant does not have a constitutional right to be personally
present” during all conferences concerning procedural issues,
id. at 573–75 ¶¶ 61, 64–66, 68, 74 P.2d at 247–49 (internal
11
quotation marks omitted).
¶18
to
Here defense counsel conceded that Miller had no right
be
present
the
related
summonses
at
hearing
to
his
on
the
return
mitigation
of
out-of-state
investigation.
conclusion is inescapable given the case law.
This
The hearing would
concern purely procedural matters that do not implicate Miller’s
right to confront witnesses and evidence against him and that
have no “relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge.”
at 105–06.
Snyder, 291 U.S.
Defense counsel represented, and the Victims do not
dispute, that hearings on the return of out-of-state summonses
are often canceled after being scheduled because the production
of documents obviates the need for a hearing.
comments
reflect
scheduling
or
that
any
it
did
substantive
not
intend
issue
ex
The trial court’s
to
discuss
parte.
trial
Thus,
the
contemplated hearing is not one “where the defendant has the
right to be present.”
¶19
Ariz. Const. art. 2, § 2.1(A)(3).
The Victims argue that they are entitled to attend the
hearing
regardless
of
Miller’s
counsel will be present.
cannot
be
entitled
excluded
to
attend
waives his presence.
from
right
to
attend
because
his
We agree with the Victims that they
a
merely
proceeding
because
the
that
the
defendant
defendant
is
voluntarily
But the Victims argue further that their
right to attend proceedings “where the defendant has a right to
12
be
present”
defendant
should
or
include
proceedings
where
defense
counsel
is
to
entitled
either
appear.
the
This
argument, however, is refuted by the language of the Victims’
Bill of Rights and the parallel statutory provision, which refer
to
the
“defendant”
counsel.”
Cf.
rather
than
the
“defense”
or
“defense
Ariz. Const. art. 2, § 2.1(A)(5) (describing
victims’ right to refuse interviews and discovery requests “by
the defendant, the defendant’s attorney, or other person acting
on behalf of the defendant”).
¶20
Our conclusion that the Victims are not entitled to
attend the contemplated ex parte hearing is not affected by this
Court’s decision in Apelt, 176 Ariz. at 365, 861 P.2d at 650.
There we rejected a defendant’s argument that the trial court
erred in refusing to hold an ex parte hearing on a request for
expert assistance in a capital case.
Id.
The Court noted that
there was no Arizona legal authority for such a hearing, that
neither due process nor equal protection generally requires ex
parte proceedings for such requests, and that the defendant had
failed to show any prejudice from the denial of an ex parte
procedure.
(Ala.
Id.
1996)
But cf. Ex Parte Moody, 684 So. 2d 114, 120
(holding
that
Fifth,
Sixth,
and
Fourteenth
Amendments entitle criminal defendant to ex parte hearing on
request for expert assistance); Stevens v. Indiana, 770 N.E.2d
739,
759
(Ind.
2002)
(describing
13
split
among
state
courts
whether ex parte hearings may be constitutionally required).
¶21
Apelt did not address a defendant’s entitlement to be
present at a hearing, much less whether victims could attend.
Moreover, that opinion’s comments about the legal authority for
ex parte proceedings have been superseded by Rule 15.9(b), which
authorizes ex parte communications related to court-appointed
investigators and experts for indigent capital defendants when
there is a need for confidentiality.
that
Arizona’s
Rules
of
Criminal
Although Apelt recognized
Procedure
provide
for
the
disclosure of witnesses and other evidence the defense intends
to
use
at
trial,
including
evidence
regarding
mitigating
circumstances, see Ariz. R. Crim. P. 15.2(h), that fact does not
obviate the need to preserve the confidentiality of defense work
product or attorney-client material during the investigation of
mitigation evidence.
determining
interfere
that,
with
Apelt does not preclude trial courts from
in
the
particular
defendant’s
cases,
rights
to
disclosure
receive
would
effective
assistance of counsel and to obtain the “basic tools” for an
adequate defense. Ake, 470 U.S. at 77.
¶22
We acknowledge that our constitution broadly protects
the rights of crime victims, including the right to be present
at
proceedings
present,”
Ariz.
proceedings
“where
the
Const.
art.
generally
must
defendant
2,
“be
14
§
has
the
2.1(A)(3),
administered
right
and
that
openly,”
to
be
court
Ariz.
Const.
art.
2,
§
11.
Our
holding
today
respects
these
provisions while ensuring capital cases are conducted in the
manner
the
United
States
constitutionally required.
Supreme
Court
has
said
is
To summarize, an ex parte hearing
related to pretrial mitigation discovery is permitted under Rule
15.9(b) only when the defense has made a proper showing of a
need for confidentiality.
such
hearings
under
Victims are not entitled to attend
Arizona
Constitution,
article
2,
section
2.1(A)(3) or A.R.S. § 13-4420, if, as is the case here, the
defendant does not have a right to be present.
¶23
We
recognize,
moreover,
that
victims
have
various
rights to participate in court proceedings that are independent
of the defendant’s right to be present.
For example, victims
are statutorily entitled to “be given notice of and the right to
be heard at any proceeding involving a subpoena for records of
the victim from a third party,” A.R.S. § 13-4071(D), and, “on
the filing of a notice of appearance and if present, counsel for
the victim shall be included in all bench conferences and in
chambers
meetings
and
sessions
with
the
trial
court
that
directly involve a victim's right enumerated in article II, §
2.1, Constitution of Arizona.”
A.R.S. § 13-4437(D).
Trial
courts must consider if such rights are implicated in any ex
parte proceeding sought under Rule 15.9(b), and, if so, must
enforce the victims’ rights unless the result would deprive the
15
defendant of a fair trial.
See U.S. Const. art. VI, cl. 2; see
also State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162
(1997)
(“[I]f,
in
a
given
constitutional
rights
conflict
constitutional
rights
to
case,
due
with
process
the
a
victim's
defendant's
and
effective
state
federal
cross-
examination, the victim's rights must yield.”); State v. Bible,
175 Ariz. 549, 602-03, 858 P.2d 1152, 1205-06 (1993) (noting that
victims’ rights cannot conflict with right to a fair trial).
III.
¶24
For the reasons stated, we vacate the opinion of the
court of appeals and remand this case to the superior court for
further proceedings.
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
16
]]>
