                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, MARICOPA
               COUNTY ATTORNEY, Petitioner,

                                        v.

 THE HONORABLE JOSE S. PADILLA, Judge of the SUPERIOR COURT
  OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                       Respondent Judge,

                 TIMOTHY LEE RAY, Real Party in Interest.

                             No. 1 CA-SA 14-0174
                              FILED 11-25-2014


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2013-001551-001
                   The Honorable Jose S. Padilla, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Petitioner

Law Office of Carrie M. Spiller, PLLC, Phoenix
By Carrie M. Spiller
Counsel for Real Party in Interest
                     STATE v. HON. PADILLA/RAY
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1             The State seeks special action review of the superior court’s
pretrial ruling that the State must provide Defendant Timothy Ray’s
counsel with a copy of assault victim M.C.’s sealed Rule 111 records from
an unrelated case, and that M.C. must produce other medical records
relating to his mental health as a condition to testifying regarding the facts
of the crime in the instant case. For reasons that follow, we accept special
action jurisdiction and grant relief by vacating the superior court’s ruling.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Ray is pending trial on three counts of assault arising from an
incident in May 2012, during which he allegedly used a box cutter in
attacking M.C. and another man. The State has indicated its intent to call
M.C. as a witness during its case in chief to testify about the incident.

¶3              On May 19, 2014, M.C. was ordered to submit to a Rule 11
evaluation in an unrelated criminal proceeding in which he was charged
with assault based on an incident that occurred in September 2012. On July
9, 2014, after learning of the Rule 11 evaluation, Ray’s counsel filed a motion
to dismiss the instant case, alleging that the State had violated Brady v.
Maryland2 by withholding disclosure material, including information
relating to M.C.’s then-pending Rule 11 proceeding.

¶4           The State responded that it was not aware of M.C.’s pending
Rule 11 proceeding until after Ray filed the motion to dismiss.3 The State


1      Ariz. R. Crim. P. 11.
2      373 U.S. 83 (1963).
3      The State noted that the prosecutor learned on July 6, 2014 that M.C.
had “regularly scheduled appointments [twice weekly] with a doctor
pertaining to anger management.” The prosecutor apparently advised the
court and defense counsel of this and other information in an unrecorded
discussion on August 5, 2014, the day set for trial.


                                      2
                      STATE v. HON. PADILLA/RAY
                          Decision of the Court

further noted that the Rule 11 proceeding was not relevant in the instant
case because victims are presumed competent to testify. The State also
noted that M.C. would be subject to cross-examination, which would allow
Ray’s counsel to question him regarding competence, and that the court
could determine at that point whether M.C.’s alleged competency issues
were relevant to his ability to testify competently in the instant case.

¶5               After taking the matter under advisement, the superior court
denied the motion to dismiss. The court concluded that “[M.C.]’s Rule 11
competency evaluation [was] not sufficient to warrant preclusion from
testifying . . . [and] the State was not compelled to disclose [M.C.]’s Rule 11
status in another unrelated matter.”

¶6             The case was subsequently assigned to a different judge for
trial, and when the parties met in chambers to discuss the case the morning
of trial, defense counsel requested M.C.’s mental health records. The State
indicated that M.C. had previously been diagnosed with schizoaffective
disorder, and that he was subject to involuntary commitment proceedings
in superior court. The court revisited the prior judge’s ruling regarding
M.C.’s Rule 11 report and continued the trial to permit an in camera review
of records relating to M.C.’s medical and psychological history. The State
then provided to the court a copy of the Rule 11 report from M.C.’s case.

¶7             Two days later, the State filed a memorandum regarding
M.C.’s mental health issues, arguing that the use of an expert’s confidential
report in an unrelated case for purposes of impeachment is prohibited
under Rule 11.8. Conversely, Ray asserted that he was entitled to the
expert’s report to overcome the presumption that M.C. was competent to
testify as a witness.

¶8            Although acknowledging M.C.’s competence to testify, the
superior court set parameters on M.C.’s testimony. Specifically, the court
stated: “[M.C.] can testify to anything that happened after the event, but if
he is going to be pointing fingers as to who caused the event, then his
mental state becomes very relevant.” Citing State ex rel. Romley v. Superior
Court (Roper), 172 Ariz. 232, 836 P.2d 445 (App. 1992), the court concluded
that M.C.’s privacy interest in keeping his Rule 11 documents confidential
was secondary to Ray’s right to cross-examine and impeach him at trial.
The court thus ruled that if M.C. were to testify that Ray was the person
who attacked him, defense counsel would be permitted “to question his
ability to recollect and accurately relate that information, which would
bring in his mental state, and at that point in time all his medical records
[would] come in.”


                                      3
                      STATE v. HON. PADILLA/RAY
                          Decision of the Court

¶9          When the parties appeared for trial on August 11, 2014, the
State requested clarification of the court’s ruling regarding M.C.’s
testimony. The court then stated:

       [T]he relevant inquiry as far as [M.C.]’s state of mind . . . is at
       the point of incident . . . . [I]f he does testify in substance that
       he is aware of what happened shortly before, during or after
       the alleged attack in this case, [] the Court would order that
       he disclose his previous medical records dealing with mental
       state whether involved in the Rule 11 process or not. Basically
       that will be all relevant to his ability to accurately reflect upon
       and accurately relate information to the jury. If he is
       unwilling or will not provide those records . . . the Court
       would be inclined to strike his testimony.

¶10            After noting its intent to question M.C. regarding all aspects
of the incident, the State requested a stay to file a special action petition with
this court to challenge the superior court’s ruling.

¶11            The following day, M.C. was found to be competent and able
to assist in his own defense in his separate criminal matter. The Rule 11
court ordered that M.C.’s mental health records be sealed and opened only
by court order. M.C. subsequently pleaded guilty to misdemeanor assault.

                                DISCUSSION

¶12           Recognizing that the State lacks an adequate remedy by
appeal, see Ariz. R.P. Spec. Act. 1(a), we initially accepted jurisdiction by
order dated September 11, 2014. Respondent Judge dismissed the
indictment that same date on the basis that Ray’s speedy trial deadline had
passed, but on September 17, 2014, we vacated the dismissal. The dismissal
was erroneous because the delay beyond the August 5, 2014 trial date
resulted from Ray’s motion to compel disclosure of the victim’s medical
records, which suspended the running of speedy trial deadlines pending
resolution of the motion and a rescheduled trial date. See State v. Burrus,
134 Ariz. 251, 253, 655 P.2d 371, 373 (App. 1982) (delay resulting from
defendant’s motion, causing trial to be rescheduled at a later date, is
excluded from calculation of speedy trial time, as delay “occasioned by or
on behalf of the defendant”). We therefore affirm our order vacating
dismissal.




                                        4
                      STATE v. HON. PADILLA/RAY
                          Decision of the Court

I.     Victim’s Competence to Testify.

¶13            The State argues that the superior court improperly found
that the victim is incompetent to testify without inquiring into the victim’s
ability to perceive, remember, and relate the facts of the crime against him.
We agree that a court must make more of a record than has been made in
this case before determining that a victim is incompetent to testify. See State
v. Schossow, 145 Ariz. 504, 507–08, 703 P.2d 448, 451–52 (1985). But here, the
court made no generalized competency finding and instead conditioned
any testimony from the victim that goes beyond what “happened as a result
of the incident” on disclosure of the victim’s sealed Rule 11 records and
other mental health records. Thus, the superior court has not ruled that
M.C. is incompetent to testify.

II.    Order that the State Disclose the Victim’s Rule 11 Records.

¶14            In making the victim’s testimony contingent on the disclosure
of mental health records, the superior court stated that “if the State refuses
to release the mental health records of the victim/witness, the Court will
preclude his testimony.” But because Rule 11 documents are sealed, they
are not in “the prosecutor’s possession [or] control.” Roper, 172 Ariz. at 239,
836 P.2d at 452. The prosecutor thus does not have discretion to disclose
these documents. Cf. State v. Kevil, 111 Ariz. 240, 243, 527 P.2d 285, 288
(1974) (finding that trial court did not abuse its discretion by denying
motion to disclose victim’s psychiatric records because the victim “did not
become an agent of the prosecutor’s office [and thus subject to the State’s
disclosure obligations] by his cooperation”). And the record does not show
the State has possession of any of M.C.’s other mental health records.
Accordingly, because the State does not control the records at issue, the
superior court erred by ruling that the victim would be precluded from
testifying “if the State refuses to release the mental health records of the
victim/witness.” (Emphasis added.)

III.   Defendant’s Right to Review the Victim’s Mental Health Records.

¶15            Under Roper, if a trial court determines that a victim’s medical
records are essential for impeachment of the victim relevant to the defense
theory, “the defendant’s due process right to a fundamentally fair trial . . .
overcomes the statutory physician patient privilege . . . [and] the Victim’s
Bill of Rights,” and the defense is entitled to the relevant records. 172 Ariz.
at 239, 836 P.2d at 452. But Roper addressed only victim’s records that were
already in the prosecution’s possession. The Roper majority did not address
the authority of a court to order a victim or a victim’s doctors to produce



                                      5
                     STATE v. HON. PADILLA/RAY
                         Decision of the Court

his or her medical records (as opposed to ordering the State to produce
those records in its possession) when the defendant has not availed himself
of compulsory process by subpoena to obtain the records from the person
or entity possessing them. Citing United States v. Agurs, 427 U.S. 97 (1976),
and McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988), the Roper majority stated
its view that “[b]efore the Victim’s Bill of Rights, a defendant’s due process
rights were generally recognized to be violated if the victim possessed
exculpatory information that was not disclosed to the defendant.” 172 Ariz.
at 238, 836 P.2d at 451. But both Agurs and McDowell also involved
information known to the government, which thus implicated the due
process protections of Brady. See Agurs, 427 U.S. at 106–07; McDowell, 858
F.2d at 946. The concurrence in Roper asserted—without citation to
authority—that a defendant’s access to a victim’s records is not dependent
on Brady considerations. 172 Ariz. at 241, 836 P.2d at 454. We are unaware,
however, of any controlling authority for the proposition that a court may
order a non-party to produce confidential medical or mental health records
that have not been sought by subpoena. Here, we note that Ray has not
subpoenaed the victim’s medical records from M.C. or M.C.’s physicians
and, as we have described, there is no indication that the State possesses
these records.

¶16           The absence of a subpoena notwithstanding, the superior
court erred in applying Roper, because under Roper, a court must specify
“[w]hich portions of the medical records, if any, are essential to the
determination of the ability of the victim to perceive, recall, and/or
accurately relate the events of the day in question.” Id. at 239, 836 P.2d at
452. Here, there is no indication that Ray sought by subpoena other mental
health records or that records other than the Rule 11 report were provided
to the court for in camera review. In any event, the superior court did not
make the findings required under Roper, and the court’s ruling must thus
be set aside. Accordingly, we vacate the court’s ordered disclosure of the
victim’s mental health records.4


4       We note that the purpose of the Rule 11 proceeding—and,
accordingly, the focus of the Rule 11 expert’s report—was to determine
M.C.’s competence as a defendant to assist in his own defense in the
proceedings against him, not to determine his ability to testify as a witness
about unrelated observations in the instant case. We also note that M.C.’s
Rule 11 examination occurred more than two years after the crime at issue
in this case, and that the Rule 11 proceeding resulted in a finding that M.C.
was competent to stand trial in the proceeding against him. In this context,



                                      6
                      STATE v. HON. PADILLA/RAY
                          Decision of the Court

                               CONCLUSION

¶17            For the foregoing reasons, we accept jurisdiction and grant
relief by vacating the superior court’s pretrial ruling conditioning the scope
of M.C.’s testimony on disclosure of certain of his mental health records.




                                     :gsh




absent evidence and a finding that the Rule 11 report (or other records) call
into question M.C.’s ability to perceive, recall, or accurately relate the events
of the crime at issue in the instant case, these records are of dubious value
in the instant case.


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