                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Petitioner,

                                        v.

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

              THERON CHAMBERS III, Real Party in Interest.

                             No. 1 CA-SA 20-0012
                               FILED 3-12-2020


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2019-133326-001
                The Honorable Katherine M. Cooper, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey L. Sparks
Counsel for Petitioner

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey B. Cloud
Counsel for Real Party in Interest
                STATE v. HON COOPER/CHAMBERS III
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.


J O N E S, Judge:

¶1            The State petitions for special action relief from the trial
court’s order requiring the victims of a burglary to make their home
available to defense counsel for a one-hour inspection. For the following
reasons, we accept jurisdiction and grant relief.

                FACTS AND PROCEDURAL HISTORY

¶2             On May 4, 2019, the victims returned home to find two video
game systems, two cameras, and two laptops missing. A window,
accessible via a fenced backyard, was open. Two latent fingerprints lifted
from the exterior of the window were matched to Theron Chambers III, the
Real Party in Interest, who lived next door but was unknown to the victims.
Although Chambers denied involvement, he was charged with one count
of second-degree burglary.

¶3            In December 2019, Chambers moved for an order requiring
the victims to make their home available for an inspection. Chambers
argued the home was “the heart of the State’s case,” but the State had not
disclosed any information about the layout of the home, the location of the
missing items prior to the burglary, or the surfaces within the home where
other forensic evidence might have been recoverable. Chambers also
asserted “the measurements on the window, it’s [sic] height from the
ground, length and width of the ledge, [and] the numerous areas in the
home that could have been touched by the perpetrator” could exculpate
him or be relevant to impeach the investigating officers and victims. Thus,
Chambers urged the trial court to find that his due process right to obtain
this information outweighed the victims’ right to refuse a discovery request
under the Victims’ Bill of Rights. See Ariz. Const. art. 2, § 2.1.

¶4           The trial court granted the motion over the State’s objection
and entered an order authorizing Chambers’ counsel and his associate to
conduct a one-hour daylight inspection of the interior and exterior of the
victims’ home. In doing so, the court noted:



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                 STATE v. HON COOPER/CHAMBERS III
                          Decision of the Court

       The court does want to point out . . . that the Victim[s] did
       make . . . their home available to the prosecution by allowing
       police officers in to investigate. So they were willing to allow
       third parties in for that purpose, and I appreciate the issue of
       having people into your home. I appreciate the rights that the
       Victim has in this case as well as the Defendant’s rights, and I
       agree with [defense counsel] that this is a — this is an
       interesting issue, because it is a weighing or balancing of both
       the rights of the Victim and the rights of the Defendant in this
       case.

¶5             The State petitioned for special action relief on the victims’
behalf. See Ariz. Rev. Stat. (A.R.S.) § 13-4437(A)1 (authorizing a victim to
pursue a special action to enforce rights guaranteed by the Arizona
Constitution and challenge orders denying those rights), (C) (“At the
request of the victim, the prosecutor may assert any right to which the
victim is entitled.”). This Court stayed enforcement of the order pending
resolution on the merits. Because the victims have no adequate remedy by
appeal and the petition presents a legal question that may arise again, we
accept jurisdiction of the special action. See Ariz. R.P. Spec. Act. 1(a); R.S.
v. Thompson, 247 Ariz. 575, 577-78, ¶ 7 (App. 2019).

                               DISCUSSION

¶6             The State argues the trial court abused its discretion in
granting Chambers access to the victims’ home. “A court abuses its
discretion if it commits an error of law in reaching its decision.” State v.
Martinson, 241 Ariz. 93, 96, ¶ 13 (App. 2016) (citing State v. Cowles, 207 Ariz.
8, 9, ¶ 3 (App. 2004)). We review both the legal principles underlying a
discovery ruling and constitutional issues de novo. R.S., 247 Ariz. at 578, ¶ 8
(citing State v. Zeitner, 246 Ariz. 161, 164, ¶ 8 (2019)); State v. Connor, 215
Ariz. 553, 557, ¶ 6 (App. 2007) (citing Emmett McLoughlin Realty, Inc. v. Pima
Cty., 212 Ariz. 351, 355, ¶ 16 (App. 2006)).

¶7           The Arizona Constitution grants crime victims the right “[t]o
refuse an interview, deposition, or other discovery request by the
defendant, the defendant’s attorney, or other person acting on behalf of the
defendant.” Ariz. Const. art. 2, § 2.1(A)(5). When the exercise of the
victim’s constitutional right conflicts with the defendant’s due process
rights under the U.S. and Arizona Constitutions, “due process is the


1      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


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                STATE v. HON COOPER/CHAMBERS III
                         Decision of the Court

superior right.” State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232,
236 (App. 1992).

¶8            “Due process requires that a defendant receive a
fundamentally fair trial, including ‘a meaningful opportunity to present a
complete defense.’” R.S., 247 Ariz. at 579, ¶ 14 (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984), and citing Oshrin v. Coulter, 142 Ariz.
109, 111 (1984)). But we have recently reiterated that “a defendant does not
have a general constitutional right to discovery from a third party” under
either the Arizona or U.S. Constitutions. Id. at 581, ¶ 22. Accordingly, a
victim’s constitutional rights yield only in the exceptional case where the
specific circumstances render the discovery sought of constitutional
magnitude, id. at ¶¶ 21-22; Connor, 215 Ariz. at 561, ¶ 22 — that is, where
the denial of access to the evidence fatally infects the trial and renders the
proceedings fundamentally unfair, see State v. Smith, 215 Ariz. 221, 233, ¶ 54
(2007) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)).

¶9             “Due process is flexible and calls for such procedural
protections as the particular situation demands.” Samiuddin v. Nothwehr,
243 Ariz. 204, 211, ¶ 20 (2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 334
(1976)). Chambers’ asserted need for an inspection of the victims’ home
here does not implicate due process. Chambers complains that law
enforcement’s investigation of the burglary did not yield any photographs
or documentation regarding the appearance and layout of the victims’
home, the locations of the missing items, or the possible surfaces upon
which additional forensic evidence may have been located. But he does not
explain how this information would tend to exculpate him or discredit any
witnesses, and his conclusory assertions that the information is “necessary
for the defense” and “may be relevant in order to impeach the victims,
police officers, and/or other witnesses” are insufficient. See Connor, 215
Ariz. at 557-58, ¶¶ 4, 11 (affirming the trial court’s order denying a
defendant access to the murder victim’s medical records despite the
defendant’s assertion that the information “may be exculpatory” and
would “likely solidify” his claim of self-defense).

¶10           Nor do we find the evidence sought to be essential to
Chambers’ defense. The nature of the request suggests Chambers seeks to
challenge the State’s factual theory that a burglar entered the victims’ home
through the open window, and/or suggests reasonable doubt exists
regarding Chambers’ identity as the perpetrator in light of the assertedly
less-than-thorough investigation. A site inspection might reveal relevant
evidence, but more is required to implicate due process. See R.S., 247 Ariz.
at 581, ¶ 21 (noting that a “mere relevance” test provides no meaningful


                                      4
                STATE v. HON COOPER/CHAMBERS III
                         Decision of the Court

safeguard for protected information) (citing Jaffee v. Redmond, 518 U.S. 1, 18
(1996), and Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Chambers can
obtain information regarding the appearance and layout of the victims’
home and the nature and extent of the investigation through interviews
with the investigating officers. Thus, the inspection is not necessary to
substantiate the defense theories implicated by Chambers’ request.2 See
Connor, 215 Ariz. at 559, ¶¶ 15-16, 18, 22-23, 27 (finding no need “of
constitutional dimension” where the information sought was either
inadmissible or could have been obtained through other means); Ariz. R.
Crim. P. 15.1(g) (authorizing the trial court to order “any person to make
available to the defendant material or information . . . if the court finds:
(A) the defendant has a substantial need for the material or information to
prepare the defendant’s case; and (B) the defendant cannot obtain the
substantial equivalent by other means without undue hardship”).

¶11           The trial court here described Chambers’ motion to inspect
the victims’ home as involving “a weighing or balancing of both the rights
of the Victim[s] and the rights of the Defendant.” Because Chambers’
motion does not raise an issue of constitutional magnitude, he does not
have a due process right to the discovery, and application of a balancing
test was error. Accordingly, we vacate the order permitting Chambers’
counsel to inspect the victims’ home.




2       The State is also required to affirmatively disclose evidence in its
possession that is “both favorable to the defendant and material to guilt or
punishment.” R.S., 247 Ariz. at 578, ¶ 9 (citing Brady v. Maryland, 373 U.S.
83, 87 (1963), and United States v. Bagley, 473 U.S. 667, 682 (1985)). Although
Chambers suggests the State has a right of access to the victims’ home by
virtue of their report to law enforcement, “[t]he victim does not become an
agent of the state simply by his cooperation.” State v. Piper, 113 Ariz. 390,
392 (1976) (citing State v. Kevil, 111 Ariz. 240, 243 (1974)). Moreover,
Chambers does not contend that the information he seeks regarding the
layout, measurements, and composition of the home is currently in the
State’s possession. Accordingly, the State’s disclosure obligations are not
at issue here.


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                STATE v. HON COOPER/CHAMBERS III
                         Decision of the Court

                               CONCLUSION

¶12           We accept jurisdiction and grant relief. The trial court’s order
is vacated, rendering our stay of the order moot.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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