STATE v. HON. FLORES/MENA-COBIAN

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ex rel., WILLIAM G. MONTGOMERY, Maricopa County Attorney, ) ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE LISA DANIEL FLORES, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) JONATHON MENA-COBIAN (001) and ) JOHN MITCHELL MENA (002), ) ) Real Parties in Interest. ) __________________________________) DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-SA 12-0146 DEPARTMENT E Maricopa County Superior Court No. CR 2010-159525-001 CR 2010-159525-002 DECISION ORDER Real Parties in Interest in this special action are charged with various violent offenses involving the use of firearms. They argue superior they court to shot in order self-defense, disclosure involving the victims in this case. of and prior they asked crime the reports The State produced the crime reports but redacted personally identifying information relating to the victims and witnesses in those prior crimes. At Real Parties request, and after receiving briefs and argument 1 and reviewing the crime reports in camera, the court ordered the State to disclose personally identifying information about victims and witnesses contained in 11 crime reports in which the victims in violence, this allegedly participated further case in allegedly used criminal ordered that or used violence possessed street defense gang or weapons, threats or allegedly activities. counsel may not of The court disclose the personally identifying information to their clients or to any persons other than their investigators. The State petitioned this Court for special action relief. It asks court s us to accept order jurisdiction compelling and disclosure reverse of the the superior personally identifying information.1 The State does not challenge the superior court s conclusion that specific prior acts of violence and aggression by the victims in this case may be admissible at trial. And the court found that Real Parties require the personally identifying information to develop evidence of such prior acts. Although the State s petition asserts in passing that is not so, we have no reason to upset the court s factual finding. quarrel with the court s finding that Real Nor may we Parties have a compelling need for the information because the harm from 1 We stayed the superior court s order pending our resolution of the petition. 2 non-disclosure of some of the redacted information . . . could significantly impact their ability to defend themselves in this case. after Further, the superior court ordered disclosure only finding substantially that the specific outweighs victims/witnesses in the the harm [general] prior cases to Real harm might Parties that suffer the from disclosure.2 The State asserts that under no circumstances may it be compelled contained to in disclose crime a victim s identifying It on reports. relies information Arizona Revised Statutes ( A.R.S. ) section 13-4434(B) (2012), which provides, A victim s contact and identifying information that is obtained, compiled or reported by a law enforcement agency shall be redacted by the originating agency in publicly accessible records pertaining to the criminal case involving the victim. 3 The State argues this provision requires that when an investigating agency is required in the course of a criminal proceeding to disclose crime reports that otherwise are publicly accessible, the court may not order it to un-redact victims 2 The superior court held that if any victim/witness identified in the prior police reports raises any personal objection to disclosure, it would further consider any specific harm that might be alleged. 3 Absent material revision after the relevant date, we cite a statute s current version. 3 identifying information from the copies of the reports provided to the defense. To the contrary, while § 13-4432(B) imposes requirements that apply to documents an agency makes available to the public in the ordinary course, nothing in the statute suggests that it precludes a court in a proceeding such as this from balancing the respective interests and ordering disclosure when a criminal defendant s due-process rights outweigh the victims interests in privacy. a court We note that subpart (A) of A.R.S. § 13-4434 allows to identifying information compel a crime information exists. victim when This a to testify compelling provision about her for the need undermines the State s assertion that subpart (B) imposes a blanket bar to compelled disclosure of the same information by an investigating agency. Given that the superior court in this case found that Real Parties have a compelling need for the information, nothing in subpart (B) precludes the court from ordering disclosure. See generally State v. Romley, 172 Ariz. 232, 236, 836 P.2d 445, 449 (App. 1992) ( when the defendant s constitutional right to due process conflicts with the Victim s Bill of Rights in a direct manner . . . then due process is the superior right ). The State further argues the superior court incorrectly concluded that a victim s rights to privacy under the Victims Bill of Rights, Article 2, Section 4 2.1(A) of the Arizona Constitution expire after the conclusion of proceedings relating to the crime at issue. Assuming for purposes of argument that a victim s rights under the Victims Bill of Rights continue after the conclusion of proceedings relating to the original crime, the State points to no constitutional provision that bars disclosure of victims identifying information when required by due process. See Romley, 172 Ariz. at 236, 836 P.2d at 449. Accordingly, upon consideration, IT IS ORDERED accepting jurisdiction of the petition for special action; IT IS court s FURTHER prior order ORDERED denying staying the relief order and lifting challenged petition. /S/ DIANE M. JOHNSEN, Judge CONCURRING: /S/ ANN A. SCOTT TIMMER, Presiding Judge /S/ PATRICIA A. OROZCO, Judge 5 by this the

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