Morehart v. Barton

SUPREME COURT OF ARIZONA
En Banc

PATRICIA MOREHART and COLLEEN ) Arizona Supreme Court
DUFFY, ) No. CV-10-0327-PR
)
Petitioners, ) Court of Appeals
) Division One
v. ) No. 1 CA-SA 10-0126
)
THE HONORABLE JANET E. BARTON, ) Maricopa County
JUDGE OF THE SUPERIOR COURT OF ) Superior Court
THE STATE OF ARIZONA, in and for ) Nos. CR2005-140129
the County of Maricopa, ) CR2006-112056
)
Respondent Judge, )
)
THE STATE OF ARIZONA and WILLIAM ) O P I N I O N
CRAIG MILLER, )
)
Real Parties in Interest. )
__________________________________)

Special Action from the Superior Court in Maricopa County
The Honorable Janet E. Barton, Judge

REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
225 Ariz. 269, 236 P.3d 1216 (App. 2010)

VACATED
________________________________________________________________

CRIME VICTIMS LEGAL ASSISTANCE PROJECT Tempe
By Douglas L. Irish
Keli B. Luther
Attorneys for Patricia Morehart and Colleen Duffy

CARMEN L. FISCHER ATTORNEY AT LAW Phoenix
By Carmen L. Fischer

And

KESSLER LAW OFFICES Mesa
By Eric W. Kessler
Sandra Hamilton
Attorneys for William Craig Miller

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By Lisa Marie Martin, Deputy County Attorney
Attorneys for Real Party in Interest State of Arizona

ARIZONA CAPITAL REPRESENTATION PROJECT Tucson
By Natman Schaye
Attorney for Amici Curiae National Association of Criminal
Defense Lawyers, Southern Center for Human Rights, Oregon
Capital Resource Counsel, South Carolina Capital Trial
Division, Missouri Association of Criminal Defense Lawyers,
New Mexico Criminal Defense Lawyers, Texas Defender
Services, Arizona Attorneys for Criminal Justice, and
Arizona Capital Representation Project

STEVENS & VAN COTT, PLLC Scottsdale
By Charles Van Cott
Attorneys for Amicus Curiae National Crime Victim
Law Institute
________________________________________________________________

B A L E S, Justice

¶1 Arizona’s Constitution entitles victims “[t]o be

present at and, upon request, to be informed of all criminal

proceedings where the defendant has the right to be present.”

Ariz. Const. art. 2, § 2.1(A)(3). The issue here is whether

this provision entitles victims to attend an ex parte hearing on

the return of summonses issued as part of defense counsel’s

pretrial investigation of mitigation evidence in a capital case.

Because the defendant has no right to attend such a purely

procedural hearing, victims also have no right to attend.

I.

¶2 William Craig Miller is charged with five counts of

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first degree murder and the State seeks the death penalty. In

2006, the trial court found Miller indigent and approved his ex

parte motion for appointment of a mitigation specialist and a

neurologist. See Ariz. R. Crim. P. 15.9(b) (authorizing ex

parte application for appointment of investigators and experts

for indigent capital defendants upon showing of need for

confidentiality).

¶3 In April 2010, Miller filed a motion for an ex parte

hearing related to “the defense investigation into mitigation

matters.” The State did not oppose this request, but surviving

family members (the “Victims”) of two of the murder victims

objected, arguing that “[u]nder the Victims’ Bill of Rights, any

ex parte hearing excluding the crime victims is

unconstitutional.” The trial court initially found that it

could not determine from Miller’s motion whether an ex parte

hearing was appropriate and directed defense counsel to submit

an ex parte motion detailing the matters defense counsel wanted

to discuss. Defense counsel filed such a motion under seal.

¶4 At a June 2010 pretrial conference, the trial court

heard argument on the request for an ex parte hearing. The

trial court noted that the request concerned out-of-state

summonses. Under Arizona Revised Statutes (“A.R.S.”) section

13-4093, Arizona courts may issue certificates to be presented

to out-of-state courts to summon witnesses for Arizona criminal

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proceedings. The proposed hearing here evidently concerned

Miller’s efforts to obtain possible mitigation evidence from

third parties.

¶5 The Victims again objected to the ex parte hearing.

The trial court explained that it would address any matters that

concerned trial scheduling in open court, but that Arizona law

allowed it to consider ex parte matters related to the

defendant’s discovery and procurement of mitigation, and it

accordingly granted Miller’s request for an ex parte hearing.

¶6 The Victims sought special action relief in the court

of appeals, which accepted jurisdiction and vacated the trial

court’s order. Morehart v. Barton, 225 Ariz. 269, 273 ¶ 12, 236

P.3d 1216, 1220 (App. 2010). The court noted that the Arizona

Constitution gives victims the right to be present at “all

criminal proceedings where the defendant has the right to be

present.” Id. at 271 ¶ 6, 236 P.3d at 1218 (quoting Ariz.

Const. art. 2, § 2.1(A)(3)); see also A.R.S. § 13-4420 (stating

that victims have right “to be present throughout all criminal

proceedings in which the defendant has the right to be

present”). Although Rule 15.9(b) contemplates ex parte

proceedings in some circumstances, the court of appeals said

that this rule does not displace a victim’s right to be present

at “all criminal proceedings.” 225 Ariz. at 271–72 ¶ 7, 236

P.3d at 1218–19.

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¶7 The court of appeals found support for its conclusion

in State v. Apelt, 176 Ariz. 349, 365, 861 P.2d 634, 650 (1993),

which held that a defendant has no constitutional right to ex

parte proceedings and noted that the Arizona Rules of Criminal

Procedure require a defendant to disclose all witnesses and

defenses. Morehart, 225 Ariz. at 272 ¶ 8, 236 P.3d at 1219.

The court of appeals acknowledged that it may sometimes be

necessary to balance the competing constitutional rights of

victims and the defendant, but found that the record here did

not establish that the defendant’s constitutional rights would

be jeopardized. Id. at 272–73 ¶ 11, 236 P.3d at 1219–20.

¶8 We granted review to determine whether the Victims are

entitled under Arizona law to attend an ex parte hearing

concerning defendant’s pretrial mitigation discovery. The issue

is one of first impression and statewide importance. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.

II.

¶9 Arizona has been a national leader in providing rights

to crime victims. Adopted as a constitutional amendment in

1990, the Victims’ Bill of Rights provides crime victims the

right “[t]o be treated with fairness, respect and dignity . . .

throughout the criminal justice process.” Ariz. Const. art. 2,

§ 2.1(A)(1); see also 1991 Ariz. Sess. Laws, ch. 229, § 2(2)

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(noting that the Victims’ Bill of Rights seeks to ensure that

“all crime victims are provided with basic rights of respect,

protection, participation, and healing of their ordeals”). One

of the rights specifically afforded to victims is “[t]o be

present at and, upon request, to be informed of all criminal

proceedings where the defendant has the right to be present.”

Ariz. Const. art. 2, § 2.1(A)(3). Similarly, A.R.S. § 13-4420

provides that “[t]he victim has the right to be present

throughout all criminal proceedings in which the defendant has

the right to be present.” The Arizona Rules of Criminal

Procedure also acknowledge a victim’s “right to be present at

all criminal proceedings,” Ariz. R. Crim. P. 39(b)(4), “at which

the defendant has the right to be present,” id. 39(a)(2)

(defining “criminal proceeding”).

¶10 At issue here is an ex parte hearing on the return of

summonses related to a capital defendant’s pretrial

investigation of potential mitigation evidence. A defendant is

entitled to present mitigation in a capital case and the state

must provide indigent defendants with resources to do so. See,

e.g., Dawson v. Delaware, 503 U.S. 159, 167 (1992) (observing

that “a capital defendant is entitled to introduce any relevant

mitigating evidence that he proffers in support of a sentence

less than death”); Ake v. Oklahoma, 470 U.S. 68, 77 (1985)

(concluding that state must provide indigent defendants with the

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“basic tools of an adequate defense”); State v. Bocharski, 200

Ariz. 50, 62 ¶ 61, 22 P.3d 43, 55 (2001) (noting that “Arizona’s

justice system must provide adequate resources to enable

indigents to defend themselves in a reasonable way” in capital

cases). Because mitigation evidence is a key component of the

defense in a capital case, defense counsel must conduct an

exhaustive investigation of the client’s past in order to

provide effective assistance of counsel for purposes of the

Sixth Amendment. Wiggins v. Smith, 539 U.S. 510, 522–23 (2003).

¶11 Consistent with this constitutional framework, Rule

15.9 addresses the appointment of investigators and expert

witnesses for indigent defendants in capital cases. As

initially adopted in 2002, this Rule did not provide for ex

parte proceedings, which prompted concerns that defense counsel

might improperly be required to disclose privileged or work

product material in seeking to obtain mitigation evidence.

Accordingly, the Rule was amended to expressly allow ex parte

proceedings upon a “proper showing . . . [of a] need for

confidentiality,” and directing that “any such proceeding,

communication, or request shall be recorded verbatim and made a

part of the record available for appellate review.” Ariz. R.

Crim. P. 15.9(b); cf. Ariz. Sup. Ct. R. 81, Code of Judicial

Conduct, Rule 2.9(A)(5) (providing “[a] judge may initiate,

permit, or consider any ex parte communication when expressly

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authorized by law to do so”).

¶12 We assume for purposes of this case that the trial

judge correctly determined that a proper showing had been made

to justify an ex parte hearing on the return of the out-of-state

summonses. Rule 15.9(b) recognizes that certain requests may be

made by ex parte motions (e.g., a request for approval of

payments for an investigator where there is a need for

confidentiality), and courts often resolve such matters without

a hearing. Here, the judge ordered an ex parte hearing only

after considering a motion detailing why confidentiality was

required, and the judge explained in open court that the hearing

would be limited to mitigation discovery matters. Rule 15.9(b),

we further assume, authorizes such a proceeding ancillary to the

court’s appointment of a mitigation specialist and its approval

of funds for a mitigation investigation. Indeed, the State has

not claimed that it was entitled to attend the hearing. The

issue instead is whether exclusion of the Victims would violate

their rights “to be present at” a criminal proceeding “where the

defendant has the right to be present.” Ariz. Const. art. 2, §

2.1(A)(3).

¶13 A criminal defendant generally has the right to be

present in the courtroom during proceedings in his case. U.S.

Const. amend. VI; id., amend. XIV; Ariz. Const. art. 2, § 24;

Ariz. R. Crim. P. 19.2. Although the right to be present is

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largely rooted in the Sixth Amendment’s Confrontation Clause,

the Fourteenth Amendment’s Due Process Clause also entitles the

criminal defendant to be present when “not actually confronting

witnesses or evidence against him.” Kentucky v. Stincer, 482

U.S. 730, 745 (1987). Thus, “a defendant is guaranteed the

right to be present at any stage of the criminal proceeding that

is critical to its outcome if his presence would contribute to

the fairness of the procedure.” Id.

¶14 The right to be present extends to those proceedings

at which the defendant’s “presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend

against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105–

06 (1934), overruled in part on other grounds by Malloy v.

Hogan, 378 U.S. 1 (1964); State v. Dann, 205 Ariz. 557, 571–72

¶ 53, 74 P.3d 231, 245–46 (2003). Nonetheless, a criminal

defendant’s constitutional right to be present does not extend

to purely procedural hearings. E.g., United States v. Gagnon,

470 U.S. 522, 526 (1985) (per curiam); Snyder, 291 U.S. at 105–

06; Dann, 205 Ariz. at 571–72 ¶ 53, 74 P.3d at 245–46; State v.

Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981).

¶15 Stincer, Gagnon, and Dann indicate that a hearing on a

return of summonses issued in the pretrial investigation of

mitigation is not the type of proceeding at which the defendant

has a right to be present. In Stincer, the defendant was

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excluded from an in-chambers hearing at which the trial court

preliminarily determined that two child victims of a sexual

offense were competent to testify. 482 U.S. at 732–33. Defense

counsel attended the competency hearing and cross-examined the

witnesses. Id. In these circumstances, the Court held that the

defendant’s right to be present had not been violated because

his involvement in the competency hearing would not have had a

“‘relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge.’” Id. at 745 (quoting

Snyder, 291 U.S. at 105–06).

¶16 In Gagnon, the trial court excluded defendants from an

in camera inquiry concerning juror prejudice. 470 U.S. at 523.

After a juror expressed concern that one of four defendants in

an alleged drug distribution conspiracy was sketching juror

portraits, the judge ordered the defendant to stop sketching.

Id. At defense counsel’s request, the trial court briefly

interviewed the juror in camera to ensure the sketching had not

prejudiced the juror. Id. Defendant Gagnon’s counsel was

present during the in camera inquiry. Id. at 524. On appeal,

each defendant claimed that the in camera discussion with the

juror violated his right to be present at all stages of the

trial. Id. at 524–25. Rejecting this argument, the Supreme

Court observed that “‘[t]he mere occurrence of an ex parte

conversation between a trial judge and a juror does not

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constitute a deprivation of any constitutional right,’” and that

the defendants’ presence “was not required to ensure fundamental

fairness or a ‘reasonably substantial . . . opportunity to

defend against the charge.’” Id. at 526-27 (second alteration

in original) (citations omitted).

¶17 More recently, in Dann we considered a defendant’s

exclusion from “a series of pretrial conferences” and “a series

of side-bar and in-chambers conferences held during jury

selection and trial.” 205 Ariz. at 571 ¶ 52, 74 P.3d at 245.

Discussing the defendant’s federal constitutional rights to be

present at trial, this Court noted:

[T]he right does not extend to in-chambers pretrial
conferences, . . . to brief bench conferences with
attorneys conducted outside the defendant's hearing,
and to various other conferences characterized as
relating only to the resolution of questions of law.
When reviewing a defendant's absence from preliminary
hearings, the court should examine the record as a
whole and determine whether [the] accused suffered any
damage by reason of his absence.

Id. at 571–72 ¶ 53, 74 P.3d at 245–46 (alterations in original)

(internal quotation marks and citations omitted). Although we

emphasized in Dann that “[a] trial judge should make every

effort to honor a defendant's request to attend all

proceedings,” id. at 575 ¶ 72, 74 P.2d at 249, we held that “[a]

defendant does not have a constitutional right to be personally

present” during all conferences concerning procedural issues,

id. at 573–75 ¶¶ 61, 64–66, 68, 74 P.2d at 247–49 (internal

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quotation marks omitted).

¶18 Here defense counsel conceded that Miller had no right

to be present at the hearing on the return of out-of-state

summonses related to his mitigation investigation. This

conclusion is inescapable given the case law. The hearing would

concern purely procedural matters that do not implicate Miller’s

right to confront witnesses and evidence against him and that

have no “relation, reasonably substantial, to the fullness of

his opportunity to defend against the charge.” Snyder, 291 U.S.

at 105–06. Defense counsel represented, and the Victims do not

dispute, that hearings on the return of out-of-state summonses

are often canceled after being scheduled because the production

of documents obviates the need for a hearing. The trial court’s

comments reflect that it did not intend to discuss trial

scheduling or any substantive issue ex parte. Thus, the

contemplated hearing is not one “where the defendant has the

right to be present.” Ariz. Const. art. 2, § 2.1(A)(3).

¶19 The Victims argue that they are entitled to attend the

hearing regardless of Miller’s right to attend because his

counsel will be present. We agree with the Victims that they

cannot be excluded from a proceeding that the defendant is

entitled to attend merely because the defendant voluntarily

waives his presence. But the Victims argue further that their

right to attend proceedings “where the defendant has a right to

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be present” should include proceedings where either the

defendant or defense counsel is entitled to appear. This

argument, however, is refuted by the language of the Victims’

Bill of Rights and the parallel statutory provision, which refer

to the “defendant” rather than the “defense” or “defense

counsel.” Cf. Ariz. Const. art. 2, § 2.1(A)(5) (describing

victims’ right to refuse interviews and discovery requests “by

the defendant, the defendant’s attorney, or other person acting

on behalf of the defendant”).

¶20 Our conclusion that the Victims are not entitled to

attend the contemplated ex parte hearing is not affected by this

Court’s decision in Apelt, 176 Ariz. at 365, 861 P.2d at 650.

There we rejected a defendant’s argument that the trial court

erred in refusing to hold an ex parte hearing on a request for

expert assistance in a capital case. Id. The Court noted that

there was no Arizona legal authority for such a hearing, that

neither due process nor equal protection generally requires ex

parte proceedings for such requests, and that the defendant had

failed to show any prejudice from the denial of an ex parte

procedure. Id. But cf. Ex Parte Moody, 684 So. 2d 114, 120

(Ala. 1996) (holding that Fifth, Sixth, and Fourteenth

Amendments entitle criminal defendant to ex parte hearing on

request for expert assistance); Stevens v. Indiana, 770 N.E.2d

739, 759 (Ind. 2002) (describing split among state courts

13 
whether ex parte hearings may be constitutionally required).

¶21 Apelt did not address a defendant’s entitlement to be

present at a hearing, much less whether victims could attend.

Moreover, that opinion’s comments about the legal authority for

ex parte proceedings have been superseded by Rule 15.9(b), which

authorizes ex parte communications related to court-appointed

investigators and experts for indigent capital defendants when

there is a need for confidentiality. Although Apelt recognized

that Arizona’s Rules of Criminal Procedure provide for the

disclosure of witnesses and other evidence the defense intends

to use at trial, including evidence regarding mitigating

circumstances, see Ariz. R. Crim. P. 15.2(h), that fact does not

obviate the need to preserve the confidentiality of defense work

product or attorney-client material during the investigation of

mitigation evidence. Apelt does not preclude trial courts from

determining that, in particular cases, disclosure would

interfere with the defendant’s rights to receive effective

assistance of counsel and to obtain the “basic tools” for an

adequate defense. Ake, 470 U.S. at 77.

¶22 We acknowledge that our constitution broadly protects

the rights of crime victims, including the right to be present

at proceedings “where the defendant has the right to be

present,” Ariz. Const. art. 2, § 2.1(A)(3), and that court

proceedings generally must “be administered openly,” Ariz.

14 
Const. art. 2, § 11. Our holding today respects these

provisions while ensuring capital cases are conducted in the

manner the United States Supreme Court has said is

constitutionally required. To summarize, an ex parte hearing

related to pretrial mitigation discovery is permitted under Rule

15.9(b) only when the defense has made a proper showing of a

need for confidentiality. Victims are not entitled to attend

such hearings under Arizona Constitution, article 2, section

2.1(A)(3) or A.R.S. § 13-4420, if, as is the case here, the

defendant does not have a right to be present.

¶23 We recognize, moreover, that victims have various

rights to participate in court proceedings that are independent

of the defendant’s right to be present. For example, victims

are statutorily entitled to “be given notice of and the right to

be heard at any proceeding involving a subpoena for records of

the victim from a third party,” A.R.S. § 13-4071(D), and, “on

the filing of a notice of appearance and if present, counsel for

the victim shall be included in all bench conferences and in

chambers meetings and sessions with the trial court that

directly involve a victim's right enumerated in article II, §

2.1, Constitution of Arizona.” A.R.S. § 13-4437(D). Trial

courts must consider if such rights are implicated in any ex

parte proceeding sought under Rule 15.9(b), and, if so, must

enforce the victims’ rights unless the result would deprive the

15 
defendant of a fair trial. See U.S. Const. art. VI, cl. 2; see

also State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162

(1997) (“[I]f, in a given case, the victim's state

constitutional rights conflict with a defendant's federal

constitutional rights to due process and effective cross-

examination, the victim's rights must yield.”); State v. Bible,

175 Ariz. 549, 602-03, 858 P.2d 1152, 1205-06 (1993)  (noting that

victims’ rights cannot conflict with right to a fair trial).

III.

¶24 For the reasons stated, we vacate the opinion of the

court of appeals and remand this case to the superior court for

further proceedings.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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