                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


KPNX-TV CHANNEL 12, a division of Multimedia Holdings Corporation;
 PHOENIX NEWSPAPERS, INC.; MEREDITH CORPORATION d/b/a/
              KPHO-TV; KTVK-3TV, Petitioners,

                                   v.

   THE HONORABLE SHERRY STEPHENS, Judge of the SUPERIOR
    COURT OF THE STATE OF ARIZONA, in and for the County of
                MARICOPA, Respondent Judge,

    STATE OF ARIZONA; JODI ANN ARIAS, Real Parties in Interest.

                         No. 1 CA-SA 14-0213
                           FILED 12-16-2014


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2008-031021-001
                 The Honorable Sherry K. Stephens, Judge

        JURISDICTION ACCEPTED AND RELIEF GRANTED


                              COUNSEL

Ballard Spahr LLP, Phoenix
By David J. Bodney, Christopher Moeser, Brunn W. Roysden III
Counsel for Petitioners

Maricopa County Attorney’s Office, Phoenix
By M. Colleen Connor, Anne C. Longo, Juan M. Martinez
Counsel for Real Party in Interest State of Arizona
Law Office of L. Kirk Nurmi, Phoenix
By L. Kirk Nurmi

Willmott & Associates PLC, Phoenix
By Jennifer L S Willmott
Co-counsel for Real Party in Interest Jodi Ann Arias



                                  OPINION

Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.


P O R T L E Y, Judge:

¶1             Petitioners, who are members of the broadcast and print
media, challenge a ruling closing the penalty phase of a capital murder trial
to the press, as well as to the public. As a result, we must decide whether a
“clear and present danger” exists under Arizona Rule of Criminal
Procedure (“Rule”) 9.3 that justifies excluding the press and public during
portions of the penalty phase of the trial. Because we find no clear and
present danger, we accept special action jurisdiction and grant relief by
vacating the ruling of October 30, 2014, closing the penalty phase of the trial
to the press and public.

                    SPECIAL ACTION JURISDICTION

¶2             We have discretion to accept special action jurisdiction when
a party does not have a plain, adequate, or speedy remedy by appeal. See
Ariz. R.P. Spec. Act. 1(a); Patterson v. Mahoney, 219 Ariz. 453, 455, ¶¶ 2, 5,
199 P.3d 708, 710 (App. 2008) (accepting special action jurisdiction to
interpret criminal procedure rules). Because Petitioners do not have any
other mechanism to challenge the ruling, we exercise our discretion and
accept jurisdiction. See Phoenix Newspapers, Inc. v. Superior Court, 140 Ariz.
30, 32-33, 680 P.2d 166, 168-69 (App. 1983).

            FACTUAL AND PROCEDURAL BACKGROUND

¶3          Jodi Arias was convicted of first degree murder, but after the
jury was unable to reach a verdict on the penalty, the superior court
declared a mistrial of the penalty phase of the trial. A new jury was
empaneled to consider evidence in the retrial of the penalty phase. The


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                      KPNX v. HON. STEPHENS/STATE
                           Opinion of the Court

court was subsequently advised that Arias wanted to testify in mitigation
outside the presence of the press and public and asked the court to seal the
transcript of the testimony.

¶4             After argument in chambers, the trial court granted the
motion. In open court, the court announced the ruling by stating the “next
witness will not testify unless these proceedings are closed to the public.”
The court found that the witness was necessary for the mitigation portion
of the trial’s penalty phase, and that closing the courtroom was necessary
for the administration of justice and was no broader than necessary given
Arias’ overriding and compelling interest in presenting mitigation
evidence. The court then closed the courtroom proceedings to all except
the family of the victim, and sealed the testimony of Arias until after a
verdict.

¶5             Several publishing and broadcasting entities unsuccessfully
objected to the ruling, and Petitioners subsequently filed this special action.
Petitioners also sought to stay the ruling closing the courtroom and, after a
hearing, this court granted a stay.

                                DISCUSSION

¶6            Petitioners argue that the ruling closing the proceeding to the
press and public violated the First Amendment to the United States
Constitution.1 Arias, however, contends that the ruling properly protected
her rights under the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution. Although the Arizona Constitution provides
that cases “shall be administered openly,” Ariz. Const. art. II, § 11; see also
Ariz. Const. art II, § 24 (an accused is entitled to a speedy public trial), we
need not resolve the dispute on constitutional grounds if “other principles
of law are controlling and the case can be decided without ruling on the
constitutional questions.” In re United States Currency of $315,900.00, 183
Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995).

¶7             We review the interpretation of statutes and court rules, and
constitutional rules de novo. Fragoso v. Fell, 210 Ariz. 427, 430, 432, ¶¶ 7, 13,
111 P.3d 1027, 1030, 1032 (App. 2005). We interpret rules of criminal
procedure by applying the principles of statutory construction and first
look to the plain text of the rule because that is “the best and most reliable
index of [the rule’s] meaning[.]” State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160
P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser,


1   The State also opposes closing the proceedings to the press and public.


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                    KPNX v. HON. STEPHENS/STATE
                         Opinion of the Court

214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007)). Where issues involve mixed
questions of fact and law, we defer to the court’s factual findings unless
clearly erroneous, but review the legal conclusions de novo. See State v.
Gonzales-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). And
“[b]ecause the value of the public trial guarantee to the judicial system is
incalculable, we carefully scrutinize any trial court order that denies,
restricts or limits” a public trial. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875
P.2d 1306, 1308 (1994).

¶8             It is undisputed that the public has a constitutional and
common law right of access to observe court proceedings. Id. “Courts are
public institutions[] [and] [t]he manner in which justice is administered
does not have any private aspects.” Phoenix Newspapers, Inc. v. Superior
Court In & For Maricopa Cnty., 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966).
The exclusion of the public, therefore, “is an extraordinary measure and
should be done with caution[,]” State v. Atwood, 171 Ariz. 576, 633, 832 P.2d
593, 650 (1992) (quoting State v. Bush, 148 Ariz. 325, 330, 714 P.2d 818, 823
(1986)) opinion modified on denial of reconsideration (July 10, 1992) disapproved
on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001),
especially when requested by a defendant and “would take from the public
its right to be informed of a proceeding to which it is an interested party,”
Phoenix Newspapers, Inc., 101 Ariz. at 259, 418 P.2d at 596.

¶9             Although Arizona’s constitution directs that criminal
proceedings be open, our supreme court, following the guidance of the
United States Supreme Court, has determined that the public may be
excluded from a criminal trial if there are circumstances which “establish a
clear and present danger that the judicial process will be subverted by an
open hearing,” in which case “appropriate action should be taken by a court
to preserve judicial integrity.” Phoenix Newspapers, Inc. v. Jennings, 107 Ariz.
557, 560, 490 P.2d 563, 566 (1971) (citing Thomas v. Collins, 323 U.S. 516 (1945)
and Bridges v. California, 314 U.S. 252 (1941)). Our supreme court defined
clear and present danger to “mean[] that the substantive evil must be
extremely serious and the degree of imminence extremely high.” Id. (citing
Bridges, 314 U.S. at 252). As a result, the right to an open, public trial is not
absolute, but a trial court must balance the right to a public trial against
other interests that might justify closing a courtroom to the public. State v.
Smith, 123 Ariz. 243, 249, 599 P.2d 199, 206 (1979) (closing the courtroom to
the public but not the press when the rape victim testified).

¶10          The definition of clear and present danger in Phoenix
Newspapers, Inc. v. Jennings was subsequently adopted in Rule 9.3(b). See
comment to Ariz. R. Crim. P. 9.3(b). The Rule provides as follows:


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                    KPNX v. HON. STEPHENS/STATE
                         Opinion of the Court

              b. Spectators. All proceedings shall be open to
              the public, including representatives of the
              news media, unless the court finds, upon
              application of the defendant, that an open
              proceeding presents a clear and present danger
              to the defendant’s right to a fair trial by an
              impartial jury. A complete record of any closed
              proceedings shall be kept and made available to
              the public following the completion of trial or
              disposition of the case without trial.

Ariz. R. Crim. P. 9.3(b) (emphasis in text added). Stated differently, the
court can close a proceeding at the request of a defendant only when the
public proceeding would create a clear and present danger to the
defendant’s right to a fair trial with an impartial jury.

¶11             If the court finds a clear and present danger, the court must
then consider four constitutional factors before closing the proceedings;
namely, the party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced; the closure must be no broader than
necessary to protect that interest; the trial court must consider reasonable
alternatives to closing the proceeding; and the court must make findings to
support the closure. Waller v. Georgia, 467 U.S. 39, 48 (1984); see also State v.
Tucker, 231 Ariz. 125, 132-33, ¶¶ 9-13, 290 P.3d 1248, 1255-56 (App. 2012)
(discussing Waller and noting that “the Waller test applies to both complete
and partial closures of Arizona criminal trials”). Waller is a reminder that a
public trial is for the benefit of the public and a defendant, and the presence
of the public may keep the judges, lawyers, witnesses and jurors “keenly
alive to a sense of their responsibility and to the importance of their
function[.]” Waller, 467 U.S. at 46.

¶12           During the proceeding to resolve Arias’ motion to exclude
spectators and seal the proceedings, her lawyer stated Arias would not
testify because the media coverage of her testimony would affect her ability
to think and answer questions in a manner “she truly means” to “fully
actualize her mitigation.” Specifically, counsel stated that Arias was
receiving threatening mail, including death threats, and as a result, Arias
did not feel that she would be “able to fully communicate what she wants
to say, communicate her remorse and go through all the mitigating factors
and get them out there in front of the jury with [ ] the public here.”




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                    KPNX v. HON. STEPHENS/STATE
                         Opinion of the Court

¶13            After considering the State’s objection, the court conducted
the Waller analysis and determined that completely closing the proceeding
to the public was not necessary. The court suggested that the press and
public be moved to the overflow courtroom to view the trial. Arias was
advised of the ruling, and Arias subsequently advised the court that she
would not testify if the press and public could know how she testified
“because of the pressure that I would feel because of these threats.”
Although expressing concern that Arias was being manipulative, the court
stated it had considered the potential legal ramifications if an appellate
court later determined that Arias did not voluntarily waive her right to
present evidence in mitigation. As a result, the court closed the proceeding
for Arias’ testimony.

¶14           Although the court did not specifically find a clear and
present danger to a fair trial before an impartial jury, we infer the court
considered Arias’ refusal to testify in a public proceeding and its potential
legal implications to be a clear and present danger. We disagree with the
implicit finding, however.

¶15           Despite Arias’ belief that the public reaction to her testimony
would inhibit her ability “to present a full and complete case for her life,”
her concerns do not demonstrate the existence of a clear and present danger
that would impede her right to a fair trial with an impartial jury. See State
v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) (concluding that there was no
specific evidence that a witness was threatened or intimidated or the
specific nature of the threat or intimidation). In fact, in Press-Enterprise Co.
v. Superior Court, the Supreme Court recognized that criminal cases may
“provoke public concern, outrage, and hostility[,]” but “[w]hen the public
is aware that the law is being enforced and the criminal justice system is
functioning, an outlet is provided for these understandable reactions and
emotions.” 478 U.S. 1, 13 (1986) (internal quotation marks and citations
omitted). As a result, while we do not discount the volume or nature of
Arias’ mail or the fact that some people may wish her ill, her concern does
not, as a matter of law, amount to an extremely serious substantive evil
warranting closing the trial to the public and press.

¶16          We recognize the trial court did not make the ruling lightly.
However, even if Arias decides not to testify in open court, her lawyers or
the State can present evidence from the guilt phase trial or the earlier




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                    KPNX v. HON. STEPHENS/STATE
                         Opinion of the Court

penalty phase trial that could be considered to be mitigation.2 A defendant
who testified in open court during the guilt phase of the trial cannot decide
she will only testify in the penalty phase if the press and public are excluded
and her testimony is sealed until after any verdict. Neither the rule nor case
law envisions that her concerns amount to a clear and present danger to a
fair trial before an impartial jury. See Phoenix Newspapers, Inc., 101 Ariz. at
260, 418 P.2d at 597 (noting that it “is clear that a defendant has no right to
a secret trial”).

¶17           The trial court correctly found that there was an alternative to
closing the trial—having the press and public view her testimony from a
different courtroom. Although Arias balked at the alternative, she has not
demonstrated a clear and present danger to a fair trial with an impartial
jury. Consequently, we grant Petitioners’ request for relief and vacate the
ruling allowing Arias to testify with the courtroom closed to the public and
press.3

                              CONCLUSION

¶18           We accept special action jurisdiction, grant relief to
Petitioners by vacating the ruling closing the proceedings to allow Arias to
testify and temporarily sealing the transcripts of the October 30 hearing.
Furthermore, if Arias began to testify in a closed proceeding, those
transcripts shall be unsealed.




                                   :gsh


2 Although Arias argued to the trial court that her refusal to testify might
not be voluntary, nothing in the special action record reflects that she will
waive her right to present any mitigation if the proceedings are not closed.
Cf. State v. Hausner, 230 Ariz. 60, 84-86, ¶¶ 116-22, 280 P.3d 604, 628-30
(2012).
3 Because we have resolved the issue on non-constitutional grounds, we

need not address the constitutional arguments. See State v. Korzuch, 186
Ariz. 190, 195, 920 P.2d 312, 317 (1996).


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