Court of Appeals of Arizona, First Division, Department D
[208 Ariz. 134] Martin Lieberman, P.C. By Martin Lieberman, Phoenix, Attorneys for Petitioner.
Richard M. Romley, Maricopa County Attorney's Office By Faith C. Klepper, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.
¶ 1 This action arises from a discovery dispute between the State and Dennis Wayne Canion. In post-conviction-relief ("PCR") proceedings, Canion unsuccessfully sought from the trial court the disclosure of documents to which he claims to have been entitled during pre-trial discovery. He then petitioned this court to accept jurisdiction of his special action and grant relief. He contends that the State continues to withhold from him exculpatory evidence despite its duties of disclosure as mandated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Arizona Rule of Criminal Procedure ("Rule") 15.1 (2003).  In brief, we accept jurisdiction and hold that, as a matter of state and federal due process, the State's duty of disclosure does not simply end with the verdict.
FACTUAL  AND PROCEDURAL BACKGROUND
¶ 2 Canion, while on parole, was driving a car when Glendale Police Officer David Madeya stopped him for traffic violations. Canion accompanied Madeya to the rear of the car as requested by the officer, and there Canion admitted that he was carrying a gun and a pocket knife. Madeya removed the gun, but, as he attempted to remove the knife from Canion's pocket, Canion began to struggle. At this point, Canion's passenger, Patricia Coburn, got out of the car. She was told by the officer to get back in the car and apparently was beginning to do so when Canion began to run back to the car. Madeya grabbed him, and Canion struck him several times. What then happened remains in dispute, but Madeya fatally shot Coburn. Canion was convicted by a jury of first-degree (felony) murder. 
¶ 3 Canion initiated Rule 32 PCR proceedings in superior court, including a request of the Maricopa County Attorney's Office ("MCAO") for discovery of copies of the crime-scene diagram, copies of all photographs taken of the crime scene, and the Glendale Police Department Shooting Review Board reports and notes ("Police Shooting Reports"). In a letter to the MCAO, he sought not only those items but the reports of evidence submitted to the Arizona Department of Public Safety for analysis, and the requests to and responses of the allegedly involved federal law-enforcement agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives. The MCAO made an effort to honor the requests, but, on September 9, 2003, a deputy sent Canion a letter stating in part:
I generally have no problem providing defense attorneys in Rule 32 cases with copies of police reports and so forth. However, the requests in your letter go far beyond that and would require significant time and effort to comply with. At this stage in the proceedings, I believe there is a presumption that the State provided the required pretrial disclosure to Mr. Canion's trial attorney. I also believe that at this stage of the proceedings, it is not the State's burden to assist you in re-investigating the case.
¶ 4 This letter was consistent with an earlier response of the MCAO in which the deputy stated that "Canion does not explain why these items are necessary to file a petition for post-conviction relief. The State does not concede that Rule 15 discovery applies to post-conviction relief proceedings."
¶ 5 Canion filed a Motion To Compel Discovery ("Motion") asking for the "materials
[208 Ariz. 136] that had not been disclosed to the defense prior to or during the trial of this case." He specifically wanted (1) a longer portion of the dispatch tape, (2) the notes or dispatch logs pertaining to the relevant radio transmissions or an acknowledgment that a search was made and that no such documents exist, (3) six aerial photographs of the crime scene, (4) all crime-scene photographs, (5) the crime-scene log, (6) the Glendale jail records, (7) the complete Police Shooting Reports regarding the incident, (8) any scientific reports of residue on Coburn's hands, (9) any reports of surveillance and other documents to impeach Madeya, (10) the complete Professional Standards Report and/or Use of Force Board Report on Madeya, (11) the internal affairs policy/procedure manual for Madeya and (12) Madeya's personnel file.
¶ 6 The State responded that it was not required by any rule of criminal procedure to produce any of the documents that might exist. It added that Canion was only seeking impeachment evidence and that such evidence could not support post-conviction relief, concluding that it could not be compelled to disclose any of the materials requested.
¶ 7 Canion replied that any materials that had not been disclosed to him before or during his trial pursuant to Brady and Rule 15.1 nonetheless still had to be disclosed pursuant to the same legal authority. In supplemental briefing, he attached an independent report of a forensic expert, the affidavit of Canion's trial counsel and the affidavit of a private investigator researching the matter. Canion added that the entire prosecution file should be provided to him, "expect[ing] that, if his motion to compel discovery is granted, he will find material and relevant exculpatory information that could cause the court to grant his petition for relief."
¶ 8 The State responded that, even were the trial court to allow such discovery in PCR proceedings, Canion had not shown sufficient good cause to obtain the requested documents. It also argued that, even if the materials alleged to exist were relevant, the standard for a PCR proceeding of good cause or a colorable claim of relief for newly discovered evidence was not met.
¶ 9 The trial court summarily denied Canion's Motion, and Canion asked this court for relief.
¶ 10 The trial court's decision on a motion to compel discovery is not appealable, making it appropriate for special-action consideration. See State Farm Mut. Auto. Ins. Co. v. Superior Court ex rel. Miel, 167 Ariz. 135, 136, 804 P.2d 1323, 1324 (App.1991). This general proposition acquires, however, a peculiar cast in the context of Rule 32 proceedings because of the collateral nature of post-conviction relief.
¶ 11 "In Arizona, the appeal is the post-conviction proceeding of primary importance. The right to appeal is guaranteed by our constitution, Ariz. Const. art. 2, § 24, but the Rule 32 procedure is not.... Rule 32 is separate and apart from the right to appeal, and it is not designed to afford a second appeal." State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984) (citation omitted), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). Nonetheless, PCR proceedings are critical because, while an "appeal is designed to give prompt, full appellate review to those who have grounds to believe they have not had a fair trial[,] ... Rule 32 'is designed to accommodate the unusual situation where justice ran its course and yet went awry.' " Id. at 146, 692 P.2d at 995 (citation omitted).
¶ 12 We accept for the purpose of this jurisdictional analysis that Canion was convicted having been denied pre-trial discovery to which he was entitled and that the trial court compounded the State's malfeasance by denying him that discovery in PCR proceedings. To now deny Canion interlocutory appellate intervention would mean to now deny him the opportunity to present evidence that the State violated his constitutional right to discovery. This would not only further delay ...