The STATE of Arizona ex rel. Wes POLLEY, County Attorney of Cochise County, Petitioner,
The SUPERIOR COURT OF SANTA CRUZ COUNTY, Honorable Gordon Farley, presiding Judge thereof, Respondent.
[81 Ariz. 128] Wes Polley, County Atty. of Cochise County, Bisbee, for petitioner.
Gordon Farley, in pro. per., and William Gordon and Hymen D. Goldberg, Tucson, for respondent.
The State of Arizona, at the relation of Wes Polley, County Attorney of Cochise County (hereinafter termed petitioner), sought an original writ of prohibition in this court directed to the Superior Court of Santa Cruz County and the Honorable Gordon Farley, presiding Judge thereof (hereinafter designated respondent), to restrain the court from enforcing an order requiring the petitioner to produce a stenographic transcript ('questions and answers') theretofore taken from defendant George Epstein and to allow the inspection and copying of said statement by counsel for defendant not later than a date therein fixed which was prior to the approaching trial date.
After notice had been given to respondent, and an informal hearing held in accordance with Rule 1(c), Rules of Supreme Court (1956), we issued an alternative writ of prohibition in order to resolve the jurisdictional question presented. A return to the writ having been filed and briefs submitted, with oral arguments waived, the matter is now ready for decision.
[81 Ariz. 129] In the instant case there can be no doubt as to the appropriateness of invoking prohibition to test the jurisdiction of the court to enter the order here drawn in question. State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887 (which is hereinafter referred to as the Demand case).
The record discloses the following situation: On October 9, 1955, one George Epstein allegedly shot and killed Andrew Shepard and Joseph Skinner. Epstein also suffered a bullet wound in this shooting affray. Thereafter Epstein (hereinafter termed the defendant) was charged with murder and after a preliminary hearing, was held to answer to the superior court of Cochise County. Informations were separately filed charging defendant with murder and he was placed on trial at Bisbee. The jury being unable to agree upon a verdict, a mistrial was declared. Later a change of venue to Santa Cruz County was granted and respondent court is awaiting a ruling upon this prohibition matter before again placing defendant on trial.
On the day of the shooting defendant was placed under arrest and moved to the hospital for an emergency operation. Some two hours after such operation, defendant was questioned at the hospital by petitioner concerning the circumstances surrounding the shooting. Present was a court reporter who stenographically recorded all questions asked and answers made. Carefully selected portions of a transcribed statement thereof were used by petitioner at the first trial to impeach defendant's testimony on material factual issues. Defense counsel's efforts to inspect or obtain a copy of such statement in its entirety were unavailing. The county attorney and court reporter both refused such demand and trial court did not see fit to require a compliance therewith. At the informal hearing before this court petitioner sought to justify such action upon authority of our decision in Kinsey v. State of Arizona, 49 Ariz. 201, 221, 65 P.2d 1141, 125 A.L.R. 3. He frankly avowed before us (and we assume before the respondent judge) that it was his intention on the second trial to again use the statement in some manner.
The sole contention here in 'that the Court had no jurisdiction to make such order' requiring defense counsel be given an opportunity to inspect and copy the statement taken from defendant, that it 'is in excess of the jurisdiction and authority of the said Court', and that if said order is permitted to stand it will 'seriously jeopardize lthe chances of the State of
Arizona in obtaining a conviction in this double murder case.' We shall confine our discussion to the narrow jurisditional question, relying upon the fact that here 'abuse of discretion' is not an issue.
Counsel for defendant Epstein seek to uphold order in question upon either [81 Ariz. 130] of these grounds: (1) that it is expressly authorized by the 1956 Rules of Criminal Procedure, or (2) under the inherent power of the court. The rule here relied upon is Rule 195, entitled 'Right of defendant to discovery and inspection'-which is a counterpart of the Federal Rules Crim.Proc. Rule 16, 18 U.S.C.A. We deem it unnecessary to set forth this rule haec verba, as it is our opinion a careful reading of same will readily disclose its inapplicability to the situation at hand. The only reported cases on the point we have been able to find are recent Federal decisions interpreting Federal Rule 16. The great majority of such decisions hold that this rule does not sanction an order such as that in question here. See: Schaffer v. United States, 5 Cir., 221 F.2d 17; Shores v. United States, 8 Cir., 174 F.2d 838, 11 A.L.R.2d 635 (Syl. 4, 5), followed in United States v. Pete, D.C., 111 F.Supp. 292; United States v. Peltz, D.C., 18 F.R.D. 394-f');"> 18 F.R.D. 394-followed in: United States v. Gogel, D.C., 19 F.R.D. 107; United States v. Chandler, 7 F.R.D. 365, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081, rehearing denied 336 U.S. 947, 69 S.Ct. 809, 93 L.Ed. 1103. Contra: United States v. Peace, D.C., 16 F.R.D. 423. On the basis of the rationale of the majority decisions above cited, we hold that our Criminal Rule No. 195 does not sanction or authorize the order in question.
However, as to the second ground, we believe that if the order in question were found to be essential to the due administration of justice, respondent court did have jurisdiction to issue it under its inherent powers because a statute or rule of court is not the exclusive authority. Shores v. United States, supra, and Cf. the Demand case, supra.
It should be noted tht while the inspection is not authorized under said Rule, the Rule itself does not express a policy prohibiting discovery; hence, the court is free under its inherent residual power to permit broader discovery. 67 Harv.L.R. 492, 498.
At the outset let it be clearly understood we are of the opinion a defendant does not have an unqualified right to inspect his written statement in the hands of the prosecutor-be it either a confession or an admission against interest-but that an application for same is addressed to the sound discretion of the trial court, and, speaking generally, it is only under exceptional circumstances that such an application should be granted. While there is some conflict in the reported decisions, the modern trend and great weight of authority support these principles. We quote from a few of the better reasoned federal and state decisions:
'In holding, as we have, that Rule 16 does not create in a defendant the [81 Ariz. 131] right to demand before trial a copy of his confession, the observation may be added that we are not intending thereby to imply that a federal court does not have the power in any situation to require the Government to furnish the defendant with a copy of his confession before trial. We think that such a power of control over a confession and its use does exist in a judicial proceeding, as part of the inherent nature and dignity of our system of administering criminal law, and that even without any rule or statute, therefore, the court is not powerless to require the Government to furnish the defendant with a copy of his confession, if the Government intends to use it as evidence on ...