Opinion
No. 2 CA-CV 2014-0094
12-04-2014
THE STATE OF ARIZONA, Petitioner/Appellee, v. DAVID THOMAS CARR WRIGHT, Real Party in Interest/Appellant.
COUNSEL Barbara LaWall, Pima County Attorney By Nicolette Kneup, Deputy County Attorney, Tucson Counsel for Petitioner/Appellee Piccarreta Davis PC, Tucson By Michael L. Piccarreta and Jefferson Keenan 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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20141363
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Petitioner/Appellee
Piccarreta Davis PC, Tucson
By Michael L. Piccarreta and Jefferson Keenan
Counsel for Real Party in Interest/Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 David Wright appeals from the superior court's order accepting special action jurisdiction and vacating the justice court's order that the state disclose information pertaining to the analysis of Wright's blood. For the following reasons, we affirm the superior court's order.
Factual and Procedural Background
¶2 Wright was charged with several driving under the influence (DUI) offenses, including extreme DUI. He filed a request for disclosure, asking the justice court to order the state to provide information regarding the analyst and laboratory that determined the alcohol concentration of his blood (BAC). After the court granted the request in part, the state filed a petition for special action in the superior court, requesting that the justice court's order be vacated. The superior court determined the justice court had abused its discretion by ordering the state to disclose the information and vacated the justice court's order. Wright timely appealed.
Extreme DUI is defined as driving or being in actual physical control of a vehicle with an alcohol concentration of at least .15. See A.R.S. § 28-1382(A).
Discussion
¶3 In this appeal, Wright argues the superior court erred by vacating the justice court's order. Specifically, he argues the justice court did not abuse its discretion in finding that Wright had a substantial need for the information requested. "On appeal from a superior court's ruling on a petition for special action, we conduct a bifurcated review. First we determine whether the superior court accepted special-action jurisdiction. If it did, we review the decision on the merits. If it did not, we determine whether the court abused its discretion." Stapert v. Ariz. Bd. of Psychologist Exam'rs, 210 Ariz. 177, ¶ 22, 108 P.3d 956, 961 (App. 2005) (citations omitted).
¶4 Wright's request for disclosure sought, among other things, "protocols and/or standard procedures" for analyzing blood, and documentation regarding both certification of the laboratory where the blood test was performed and "proficiency testing" by the analyst who tested his blood. He argued that a court may order disclosure when a defendant "indicates that he has substantial need for [the] information, which he cannot obtain without undue hardship by any other method." The state objected, arguing that Wright could not demonstrate a substantial need for the information requested. The justice court granted the disclosure requests and found that Wright had "shown a substantial need for these items."
¶5 In its petition for special action, the state asked the superior court to vacate the justice court's order, arguing Wright had not met "his burden of showing substantial need." The superior court accepted jurisdiction and determined the record "lack[ed] sufficient evidence to support a disclosure order pursuant to Rule 15.1(g)" for three reasons: Wright's "motions and oral argument lack any assertions that Wright's 0.170 BAC determination was incorrect or inaccurate, or how, or even if, the alleged lab deficiencies affected his results"; "there is no evidence to suggest that . . . Wright was 'unable without undue hardship to obtain the substantial equivalent by other means'"; and "the record suggests that the [justice] court employed the wrong standard of proof." The superior court determined the justice court had abused its discretion because "Wright failed to present sufficient evidence to establish a substantial need for the requested material or that he was unable without undue hardship to obtain the substantial equivalent by other means."
¶6 Rule 15.1(g), Ariz. R. Crim. P., provides that a court may order disclosure to the defendant of information not otherwise required to be disclosed if the defendant shows that he or she "has substantial need in the preparation of the defendant's case for [the information], and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means." Wright asserts he "need[s] these materials in order to conduct an effective and efficient pre-trial interview of the analyst [who tested his blood]." Although Wright asserted in his request for disclosure that there are deficiencies in how the laboratory tests blood, he did not assert that his BAC determination was incorrect or specify how the alleged lab deficiencies might affect its test results, or indicate what admissible evidence he expected to find in the information requested. See State v. Fields, 196 Ariz. 580, ¶ 7, 2 P.3d 670, 673 (App. 1999).
¶7 In Fields, the defendants sought to inspect and videotape the crime lab where their blood was tested. Id. ¶ 1. They presented exhibits and testimony from an expert defense witness regarding alleged deficiencies in the crime lab's procedures. Id. ¶ 8. We stated that the evidence the defendants presented did not "explain[] how inspecting the Crime Lab and videotaping its personnel and procedures now would be relevant to these proceedings or would produce additional information for which the defendants have a substantial need to prepare their cases and that cannot be obtained by other means." Id. We concluded, "in the absence of any showing of need or any actual dispute as to the correctness of the test results, the defendants' motion to inspect the Crime Lab can only be viewed as an attempted 'fishing expedition,' which the rules do not permit." Id. ¶ 9. Similarly, here, Wright did not specifically dispute his BAC determination or state why he needed the information he requested aside from his desire to "conduct a meaningful pre-trial interview."
Wright asserts that "Fields explicitly recognizes that there is a substantial need for the 'relevant testing protocols' and other 'documents' requested in the present case." We did not so hold. Instead, we merely observed that the defendants had not provided evidence that inspecting and videotaping the crime lab would be "more productive than interviews and documents in analyzing and critiquing the Crime Lab's methods." Id. We did not state, as Wright suggests, that a defendant always has a substantial need for a specific type of document.
¶8 According to Wright, the materials ordered to be disclosed by the justice court "relate[] directly to the reliability and admissibility of the state's scientific evidence and expert testimony" concerning his blood test. Even if that is true, it does not resolve whether Wright had a "substantial need" for the information. See Ariz. R. Crim. P. 15.1(g). Similarly, although Wright argues that Fields is distinguishable because the discovery ordered there "was much more intrusive and expansive than the [justice] court's limited order in the present case," the court cannot order disclosure unless the defendant has made the showing required by Rule 15.1(g), regardless of the lack of intrusiveness or expansiveness of the disclosure.
Wright also cites State v. Bernini as an example of a case in which the defendants sought more expansive disclosure than Wright claims he is seeking. 220 Ariz. 536, 207 P.3d 789 (App. 2009). But that case is inapposite because in it we determined that the state had no obligation to disclose the information the defendants requested because it did not possess or control that information; we specifically declined to address whether the defendants had a substantial need for the information. Id. ¶¶ 8-10.
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¶9 Wright contends that "[a]ny deficiencies in the laboratory's certifications or protocols, or the analyst's proficiency testing, could very well create reasonable doubt, especially in a close case given the margin of error for the testing." In his request for disclosure, he offered no basis, other than the assertions of his counsel, to support the suggestion that the lab's procedures were deficient. The possibility that the documents requested would reveal deficiencies in the lab's procedures is mere speculation, and we will not permit such a "fishing expedition." See Fields, 196 Ariz. 580, ¶ 9, 2 P.3d at 673; cf. State v. Hatton, 116 Ariz. 142, 150, 568 P.2d 1040, 1048 (1977) ("[M]ere conjecture without more that certain information might be useful as exculpatory evidence is not sufficient to reverse a trial court's denial of a request for disclosure.").
¶10 Although Wright implies the superior court should have provided him a "suggestion of what possible 'other means' [he] could have employed" to obtain the requested information, Rule 15.1(g) does not require the court to do so. See Ariz. R. Crim. P. 15.1(g). Wright also asserts "[t]he state makes no claim that it does not possess the materials at issue." This misses the point. The question is not simply whether the state possesses the requested information; the question is whether Wright made the showings required by Rule 15.1(g).
¶11 Wright claims that if the state does not disclose the information at the analyst's interview, he will have to file another motion for disclosure and a motion for another interview or deposition of the analyst. As the superior court noted, Wright did not attempt to interview the analyst before requesting disclosure, and we agree with the superior court that "mere inconvenience does not establish undue hardship." Wright presented no evidence regarding his ability to obtain the information requested by other means, see Fields, 196 Ariz. 580, ¶ 9, 2 P.3d at 673, the justice court made no finding on that issue, and the superior court concluded that Wright had not presented sufficient evidence to show that he could not "without undue hardship . . . obtain the substantial equivalent by other means." The superior court did not err in so concluding.
Disposition
¶12 For the foregoing reasons, we affirm the order of the superior court.