Opinion
No. 2 CA-CV 2017-0073
02-13-2018
THE STATE OF ARIZONA, Petitioner/Appellee, v. HON. ADAM WATTERS, JUSTICE OF THE PEACE, OF THE PIMA COUNTY CONSOLIDATED JUSTICE COURTS, Respondent Judge/Appellee, and ANDREW JAMES SCHLICKER, Real Party in Interest/Appellant.
COUNSEL Barbara LaWall, Pima County Attorney By Nicolette Kneup, Deputy County Attorney, Tucson Counsel for Petitioner/Appellee Benavidez Law Group P.C., Tucson By Javier Alatorre Counsel for Real Party in Interest/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20165564
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Petitioner/Appellee Benavidez Law Group P.C., Tucson
By Javier Alatorre
Counsel for Real Party in Interest/Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Andrew Schlicker, real party in interest, appeals the superior court's ruling accepting special-action jurisdiction and vacating a discovery order issued by the respondent judge. Because the superior court properly determined the respondent judge misapplied the law, we affirm.
Factual and Procedural Background
¶2 Schlicker is charged with driving under the influence (DUI). Before trial, he filed a motion to compel the state to produce eleven items relating to a chemical test it intended to use at trial. He argued the items fell within the scope of former Rule 15.1, subsections (b)(4), (b)(8), and (e)(3), Ariz. R. Crim. P., Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Price, 566 F.3d 900 (9th Cir. 2009), and were therefore subject to automatic disclosure by the state.
Rule 15.1 was amended effective January 1, 2018. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). Our analysis applies the rule as amended because it is feasible to do so and will not result in injustice. See id. Effective January 1, 2018, the rule added subsection (b)(4)(C), but it relates to "cold" experts and does not apply here. Id. Former Rule 15.1(e)(3) is now Rule 15.1(e)(1)(C). Id.
¶3 The state objected to the motion, arguing it had met its disclosure obligations and suggesting the requested materials fell within Rule 15.1(g), requiring Schlicker to show he had a substantial need for the materials before the state was obligated to provide them. Following a hearing, the respondent judge granted Schlicker's motion in part and in a written minute entry ordered the state to produce five of the eleven requested items. The minute entry did not specify the legal basis for the judge's ruling.
¶4 The state initially complied in part with the respondent judge's order, leaving three items undisclosed, and later filed a petition for special action in superior court, challenging the ruling. The undisclosed items included: records of evaluations and feedback given to the state's expert regarding his previous courtroom testimony, which the respondent judge found "could be used to show bias or prejudice" of the state's witness; the opinions of other experts that the state's expert would rely upon at trial; and records showing how the state's expert had calculated the "uncertainty budget" of the chemical test performed in the case.
An uncertainty budget is a measurement of uncertainty using a structured approach in which the various components that contribute to uncertainty are identified, quantified, and statistically combined. See Rod G. Gullberg, Estimating the Measurement Uncertainty in Forensic Blood Alcohol Analysis, 36 J. of Analytical Toxicology 153 (2012).
¶5 In its petition, the state argued the respondent judge had abused his discretion by not requiring Schlicker to show a substantial need for the requested items under Rule 15.1(g). The state provided the superior court copies of the underlying motions and the judge's written ruling, but did not include a transcript of the proceeding culminating in the respondent judge's order. The state's petition did not address whether the judge could have ordered the items under a different subsection of Rule 15.1.
The state had requested the transcript prior to the hearing, but received a transcript for a different proceeding.
¶6 Schlicker responded that he was not required to make a showing of substantial need, as his motion sought to compel the state to produce discovery under Brady, Price, and different subsections of Rule 15.1, which do not require such a showing. He also objected to the state's failure to provide a full record and argued that if the superior court considered the materials in relation to Rule 15.1(g), it would be engaging in a de novo review, rather than reviewing the respondent judge's decision for an abuse of discretion.
¶7 At oral argument, Schlicker asked the superior court to review the transcript of the justice court proceeding, arguing it would support the respondent judge's ruling, and further urged the superior court to decline to reach the merits of the state's argument. The superior court determined it could proceed without a transcript and heard arguments on the merits. Schlicker argued he had not been required to demonstrate substantial need under Rule 15.1(g) in the justice court because he had based his motion on other grounds. He presented the court with the arguments he had made in the justice court and again indicated he would like the superior court to consider the transcript of that proceeding. He specifically stated he had "read into the record one of the procedures and manuals" of the expert's laboratory to support his argument below.
The state acknowledged that the record of the justice court proceedings "could be fuller" and that a transcript would be helpful to give the superior court "a better understanding of what was happening in court on the day that the parties presented their sides," but indicated it was willing to proceed with oral argument despite the missing transcript.
¶8 The superior court took the issue under advisement, accepted special-action jurisdiction, and issued a written ruling vacating the respondent judge's order. The court acknowledged Schlicker's argument that the materials fell within different subsections of Rule 15.1, but agreed with the state that the requested materials instead fell within Rule 15.1(g). The court further determined that the respondent judge had abused his discretion by ordering the state to produce the materials without showing substantial need under that rule. The court did not review a transcript of the hearing in the justice court before ruling. This appeal, challenging that special-action ruling, followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). See also Ariz. R. P. Spec. Act. (8)(a).
Sufficiency of the Record
¶9 The only questions that may be raised in a special action are whether (a) the defendant failed to exercise discretion when so required, (b) the defendant has acted without or in excess of jurisdiction or legal authority, or (c) "a determination was arbitrary and capricious or an abuse of discretion." Ariz. R. P. Spec. Act. 3. "Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, ¶ 2 (App. 2001).
¶10 A court sitting in special-action jurisdiction may order the parties to produce any part of any lower court records in their possession. Ariz. R. P. Spec. Act. 4(d). It is not required to review a transcript of lower proceedings "when the pertinent facts are not disputed and . . . no one argues that the testimony below would support the court's actions." Kuhn v. Smith, 154 Ariz. 24, 27 (App. 1987). Because the superior court's decision not to review a transcript before vacating the discovery order involves a mixed question of law and fact, we review it de novo. See In re Estate of Ward, 200 Ariz. 113, ¶ 9 (App. 2001).
¶11 Schlicker argues the superior court was required to review a transcript of the justice court proceeding before concluding the respondent judge abused his discretion. Because the superior court lacked a transcript, he contends it could not assess all of the factual information presented to the respondent judge. Accordingly, he maintains it would be difficult for the superior court to find the respondent judge's reliance on that information was irrational, and, therefore, an abuse of discretion. Cf. State v. Zuck, 134 Ariz. 509, 513 (1982) (missing portions of record on appeal will be presumed to support the action of the trial court). However, the transcript's utility to the superior court was limited to providing the factual basis for the respondent judge's ruling. The parties did not dispute what Schlicker had requested. And there was no dispute about what legal authority Schlicker had presented in the justice court. Under these facts, the superior court could still determine the respondent judge misapplied the law without a transcript.
We reject Schlicker's argument that the superior court erred by conducting a de novo review. Instead, as detailed below, it properly concluded the respondent judge abused his discretion by misapplying the law. This determination falls within the appropriate standard of review. See Ariz. R. P. Spec. Act. 3(c); Files, 200 Ariz. 64, ¶ 2.
The Superior Court's Ruling
¶12 A trial court has broad discretion over discovery matters and is in the best position to rule on discovery requests. State v. Fields, 196 Ariz. 580, ¶ 4 (App. 1999). However, it "abuses its discretion when it misapplies the law or predicates its decision upon irrational bases." Id., quoting Blazek v. Superior Court, 177 Ariz. 535, 537 (App. 1994). We review the superior court's decision granting special-action relief for an abuse of discretion. Files, 200 Ariz. 64, ¶ 2.
Disclosure Relating to State's Experts
¶13 Rule 15.1(b)(4) requires the state to disclose its expert's qualifications, reports prepared by the expert, or "the results of any completed physical examination, scientific test, experiment, or comparison conducted by the expert." In addition, Rule 15.1(e)(1)(C) requires the state to disclose, on request, any completed report, statement, and examination notes completed by an expert that is related to the case. See also Ariz. R. Crim. P. 15.4 (statement includes "a writing, prepared, signed or otherwise adopted or approved by a person"). The scope of disclosure required under Rule 15.1(b)(4) and (e)(1)(C) is a question of law. See State v. Roque, 213 Ariz. 193, ¶ 21 (2006) (considering former version of Rule 15.1), overruled on other grounds by State v. Escalante-Orozco, 241 Ariz. 254 (2017).
¶14 Schlicker's request for feedback given to the expert about his previous courtroom testimony has nothing to do with the chemical test completed in the case or the expert's qualifications and is not otherwise a statement of the expert. It is therefore not governed by Rule 15.1(b)(4) or (e)(1)(C).
¶15 Schlicker's second and third requests, for opinions relied on by the expert and information used to calculate the uncertainty budget of the chemical test, essentially seek the same information. Schlicker argues the uncertainty budget itself is an opinion adopted by the state's expert and he is therefore entitled to all information showing how it was calculated. However, Schlicker does not argue the uncertainty budget is a calculation performed by the expert, which brings his request outside the scope of Rule 15.1(b)(4). Further, to the extent the uncertainty budget is a statement of the expert under Rule 15.1(e)(1)(C), there is nothing in that rule that requires disclosure of how the statement was formulated. Accordingly, Schlicker's requests fall outside the state's disclosure obligations relating to expert witnesses, and the superior court did not abuse its discretion in so concluding.
Disclosure of Exculpatory Evidence
¶16 Rule 15.1(b)(8) requires the state to disclose "all existing material or information that tends to mitigate or negate the defendant's guilt or would tend to reduce the defendant's punishment." The rule codifies the due process requirements for disclosure of exculpatory evidence set forth in Brady. See State v. O'Dell, 202 Ariz. 453, ¶ 10 (App. 2002).
¶17 We have previously concluded a defendant is not entitled to personnel files of a state's witness absent facts or evidence to suggest the files would contain impeachment evidence. State v. Acinelli, 191 Ariz. 66, 71 (App. 1997). Schlicker's request for feedback related to the expert's previous testimony is analogous. At oral argument in the superior court, Schlicker did not argue the requested feedback would show the state's expert was untruthful. And he did not show the feedback would contradict the expert's testimony. Instead, he argued only that the evidence would show the expert had received feedback on the effectiveness of his testimony in other cases and was therefore biased. As the superior court noted, the request relates only to the mode of the expert's presentation, not the truthfulness of his testimony. Thus, the superior court properly concluded that Schlicker's request for the expert's feedback was not governed by Rule 15.1(b)(8) or Brady.
¶18 Schlicker's similar requests related to the laboratory's uncertainty budget also fail because he has not shown how this information is exculpatory. Instead, he speculatively argues there could be something in the uncertainty budget that would allow him to challenge the chemical test result in his case. See Acinelli, 191 Ariz. at 71 (defendant's mere speculation that evidence contains exculpatory material does not impose a disclosure duty upon the state). Accordingly, neither of these requests fall within the definition of disclosure required under Rule 15.1(b)(8) or Brady.
Schlicker also argues the superior court abused its discretion by not considering Price, 566 F.3d 900. Price liberally evaluated whether evidence would be "favorable to the defense," in determining the pretrial disclosure obligations of the state for exculpatory evidence. Id. at 913 n.14. But we need not consider whether the superior court erred in not considering Price because, first, as noted above, Schlicker's request is too speculative to meet that proposed standard, and second, federal appellate cases are, in any event, not binding on our state courts. See State v. Swoopes, 216 Ariz. 390, ¶ 35 (App. 2007); cf. Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006) ("We may affirm the trial court's ruling if it is correct for any reason apparent in the record."). --------
¶19 We conclude that all of Schlicker's requests fall outside the scope of the state's disclosure obligations. Further, because the superior court determined the respondent judge misapplied the law to discovery requests, and because the grounds on which those requests had been made was not in dispute, it was not required to review a transcript of the justice court proceeding as Schlicker requested. Accordingly, the superior court did not abuse its discretion in granting special-action relief.
Disposition
¶20 For the foregoing reasons, we affirm the superior court's ruling and remand to the justice court for further proceedings consistent with this decision.