                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


 STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa
                 County Attorney, Petitioner,

                                        v.

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

              CHRISTOPHER WILSON, Real Party in Interest.

                             No. 1 CA-SA 15-0128
                              FILED 8-27-2015


 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2012-142112-001 DT
                 The Honorable Sherry K. Stephens, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Keli B. Luther
Counsel for Petitioner

Robert J. Campos Associates, PLC, Phoenix
By Robert J. Campos
Counsel for Real Party in Interest
                   STATE v. HON. STEPHENS/WILSON
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


C A T T A N I, Judge:

¶1            Real Party in Interest Christopher Wilson has been charged
with several counts of sexual conduct involving a 14-year-old boy (“M.C.”)
and a 17-year-old boy (“C.L.”). In this special action proceeding, the State
of Arizona seeks relief from the superior court’s order granting Wilson’s
request for an in camera review of the victims’ school records. The State
argues that the court’s order is improper because it violates the victims’
rights under the Arizona Constitution to refuse discovery requests in a
criminal case.

¶2            Because the State has no timely or adequate remedy by appeal
once confidential school records are subjected to an in camera review, we
accept jurisdiction. See Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v.
Superior Court (Harris), 184 Ariz. 351, 353, 909 P.2d 418, 420 (App. 1995); see
also Romley v. Schneider (Porras-Salazar), 202 Ariz. 362, 363, ¶ 5, 45 P.3d 685,
686 (App. 2002) (noting that a victim’s right under the Arizona Constitution
not to provide information (fingerprints) to a defendant before trial is
incapable of protection if the matter is not reviewed until post-trial).
Because Wilson has not demonstrated a compelling reason to overcome the
victims’ right to refuse Wilson’s discovery request, we grant relief.

              FACTS AND PROCEDURAL BACKROUND

¶3            Wilson first met C.L. when Wilson was a Phoenix police
detective assigned to the Community Relations Bureau as a liaison to the
LGBT community. Several years later, when C.L. was 17 years old, Wilson
allegedly began to have sexual relations with him. Through C.L., Wilson
met M.C., and a short time later, Wilson allegedly engaged in sexual
conduct with both boys.

¶4            The State charged Wilson with four counts of sexual conduct
relating to M.C. (class 2 felonies and dangerous crimes against children in
the first degree), and six counts of sexual conduct relating to C.L. (class 6
felonies).



                                       2
                  STATE v. HON. STEPHENS/WILSON
                         Decision of the Court

¶5            Following various pre-trial proceedings, Wilson filed a
motion to compel the disclosure of both victims’ school records, arguing
that the records were relevant to prepare a defense to the State’s allegation
of emotional harm as an aggravating circumstance and to the victims’
motives to lie. After briefing and oral argument, the court granted Wilson’s
motion in part, authorizing a subpoena to be issued to the victims’ schools
to require disclosure of their school records for purposes of an in camera
review.1 The State filed this special action, arguing that forced disclosure
of the victims’ school records would violate the victims’ rights under the
Arizona Constitution.

                              DISCUSSION

¶6           Arizona’s Victims’ Bill of Rights provides, in relevant part:

      To preserve and protect victims’ rights to justice and due
      process, a victim of crime has a right:

      1. To be treated with fairness, respect, and dignity, and to be
      free from intimidation, harassment, or abuse, throughout the
      criminal justice process.

      ...

      5. To refuse an interview, deposition, or other discovery
      request by the defendant, the defendant’s attorney, or other
      person acting on behalf of the defendant.

      ...

      11. To have all rules governing criminal procedure and the
      admissibility of evidence in all criminal proceedings protect
      victims’ rights . . . .

Ariz. Const. art. II, § 2.1(A). Consistent with that provision, under Rule
39(b) of the Arizona Rules of Criminal Procedure:

      Notwithstanding the provisions of any other rule . . . a victim
      shall have and be entitled to assert each of the following
      rights: . . . The right to refuse an interview, deposition, or



1      The order “relates to the grades, attendance and disciplinary records
for the victims for the period January 1, 2012 through December 31, 2012.”


                                     3
                   STATE v. HON. STEPHENS/WILSON
                          Decision of the Court

       other discovery request by the defendant, the defendant’s
       attorney, or other person acting on behalf of the defendant.

¶7             Unless a defendant’s due process rights are implicated, there
is generally no federal or state constitutional right to pre-trial discovery. See
Pennsylvania v. Ritchie, 480 U.S. 39, 53-54 (1987) (holding that a defendant’s
right of cross-examination was not violated when a child protective service
agency refused to turn over its confidential records to him); Norgord v. State
ex rel. Berning, 201 Ariz. 228, 233, ¶ 21, 33 P.3d 1166, 1171 (App. 2001)
(upholding victim’s right to refuse pre-trial interview); cf. State v. Tucker,
157 Ariz. 433, 438, 749 P.2d 579, 584 (1988) (noting that although there is no
general federal constitutional right to discovery, “the Constitution does
impose on the prosecution a due process obligation to disclose exculpatory
evidence that is material on the issue of guilt or punishment.”) (citing Brady
v. Maryland, 373 U.S. 83, 87-88 (1963); United States v. Bagley, 473 U.S. 667,
676-84 (1985)).

¶8            The superior court acknowledged the victims’ right to decline
discovery requests, but nevertheless concluded—based on State ex rel.
Romley v. Superior Court (Roper), 172 Ariz. 232, 836 P.2d 445 (App. 1992), and
State v. Connor, 215 Ariz. 553, 161 P.3d 596 (App. 2007)—that “some limited
infringement on the victim’s rights may be required” upon consideration of
the defendant’s due process right of access to evidence favorable to the
defense and material to either guilt or punishment. Although we generally
review the superior court’s discovery rulings for an abuse of discretion, we
consider de novo the constitutional claims underlying the request (and the
State’s opposition) in this case. See Connor, 215 Ariz. at 557, ¶ 6, 161 P.3d at
600.

¶9            In Roper, this court ordered a pre-trial in camera review of a
victim’s medical records under circumstances very different than those
here. The defendant asserted a justification defense premised on the
aggravated assault victim (her husband) having multiple personalities,
including some that were violent. 172 Ariz. at 237, 836 P.2d at 450. The
defendant claimed that she stabbed the victim in self-defense after he
attacked her while manifesting one of his violent personalities. Id. The
defendant sought disclosure of the victim’s medical (psychiatric) records,
and the superior court ordered in camera review of the records solely on
the issue of multiple personalities. Id. at 234–35, 836 P.2d at 447–48.

¶10           On the State’s petition for special action, this court held that,
“when the defendant’s constitutional right to due process conflicts with the
Victims’ Bill of Rights in a direct manner, such as the facts of this case


                                       4
                  STATE v. HON. STEPHENS/WILSON
                         Decision of the Court

present, then due process is the superior right.” Id. at 236, 836 P.2d at 449.
As such, the court reasoned that any such records provided by the victim
to the prosecution would be subject to disclosure if exculpatory as Brady
material, because Brady considerations squarely implicate the defendant’s
constitutional rights. Id. at 239, 836 P.2d at 452.2 The court also reasoned
that, to the extent the Victims’ Bill of Rights imposes restrictions on a
defendant’s access to information “essential to preparation for effective,
reasonable cross-examination or impeachment of the victim,” such
restrictions “must be proportionate to the interest of protecting the victim
as balanced against the defendant’s due process right to a fundamentally
fair trial.” Id. at 240, 836 P.2d at 453. Because the court had already ordered
an in camera inspection of the medical records, the superior court was
instructed to consider the defendant’s need for the information for effective
cross-examination as well. Id.

¶11           In Connor, this court rejected the defendant’s request that the
superior court be ordered to conduct an in camera review of the victim’s
medical records in a case in which the victim, an intellectually and
emotionally challenged young man, was stabbed to death.
Notwithstanding the defendant’s assertion of self-defense, this court
distinguished Roper and concluded that the defendant had not presented a
sufficiently specific basis to require that the victim’s medical records be
provided for an in camera review. 215 Ariz. at 558, ¶ 11, 161 P.3d at 601.
This court noted that although an in camera review was ordered in Roper,
“we did so in the context of a reasonable possibility that the information
sought by the defendant included information to which she was entitled as
a matter of due process.” Id. This court further stated:

       [I]n a case such as this in which ordering any production of
       the information sought would also infringe on a victim’s

2      Because Roper involved medical records, this court also addressed
the parallel concern of the victim’s statutory physician–patient privilege
and instructed the superior court to consider on remand whether the victim
had waived the privilege to the extent (if at all) he had shared the records
with the prosecution or as a result of the defendant’s presence during some
of the victim’s counseling sessions. 172 Ariz. at 239, 836 P.2d at 452. The
court further held that, even absent an implied waiver, the defendant’s due
process right would overcome the statutory privilege if Brady applied, the
records were exculpatory, and the records were essential to the defense
theory or otherwise necessary for impeachment. Id. Because the school
records at issue here are not privileged, however, we address only the
victims’ rights considerations.


                                      5
                  STATE v. HON. STEPHENS/WILSON
                         Decision of the Court

       constitutional and statutory privileges, before the Court could
       order an in camera production of the materials for its review,
       the defendant would have to demonstrate that his
       “substantial need” for the information would, at least
       potentially, amount to one of constitutional dimension.

Id. at 561, ¶ 22, 161 P.3d at 604. Accordingly, under Connor, unless a
defendant’s need for information implicates a constitutional right, e.g.,
exculpatory information under Brady, the victim should not be required to
provide pre-trial discovery, even for the limited purpose of an in camera
review.

¶12           Here, Wilson has not provided any concrete basis establishing
that the information he seeks is necessary to secure his constitutional rights.
Unlike the Roper defendant—who had presented the victim’s multiple
arrests and prior domestic violence conviction as well as his extensive
psychiatric treatment (at least some of which the defendant had attended)
to explain why the medical records were relevant and potentially necessary
to support a justification defense, 172 Ariz. at 238, 836 P.2d at 451—Wilson
has not demonstrated why the victims’ school records would help his case.
He has not indicated a theory of the case he would pursue if the records
evidence problems at school, as opposed to a theory of the case he would
pursue if the records do not evidence problems at school. Without some
substantial, concrete showing of necessity, Wilson’s request is essentially a
fishing expedition in search of undefined evidence.

¶13           Wilson acknowledges having engaged in sexual conduct with
the two victims; the only dispute is the number of times he did so. Wilson
notes that the victims have an incentive to lie, citing in particular a civil
lawsuit the younger victim has filed against the City of Phoenix, and Wilson
thus asserts that the victims’ credibility must be explored, including
through information that may or may not be present in school records. But
to permit the type of discovery Wilson seeks, tethered only to an
unsubstantiated assertion relating to a victim’s alleged lack of credibility,
would contravene the Victims’ Bill of Rights.

¶14           Wilson also asserts that the school records may be relevant to
a potential sentencing factor, i.e., emotional trauma to the victims. But the
State has avowed that it will not be offering school records to establish
emotional harm to the victims as a sentencing factor. Thus, Wilson will be
free to argue that there are no school records that support harm to the
victims, and Wilson has not established that his need for the records
implicates a constitutional right.


                                      6
                  STATE v. HON. STEPHENS/WILSON
                         Decision of the Court

¶15           Because the victims are entitled under the Arizona
Constitution to refuse Wilson’s discovery request, and because Wilson has
not shown that the failure to disclose school records for in camera review
implicates a constitutional right, we accept jurisdiction and grant relief by
vacating the superior court’s order directing the disclosure of school
records.




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