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State ex rel. Montgomery v. Pineda

Court of Appeals of Arizona, First Division, Department A

June 25, 2013

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner,
v.
THE HONORABLE SUSANNA C. PINEDA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, MARISSA SUZANNE DEVAULT, Real Party in Interest.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Petition for Special Action from the Superior Court in Maricopa County Cause No. CR2009-030306-001 SE The Honorable Susanna C. Pineda, Judge.

William G. Montgomery, Maricopa County Attorney Phoenix By Keli B. Luther, Deputy County Attorney Attorney for Petitioner.

James J. Haas, Maricopa County Public Defender Phoenix By Alan I. Tavassoli Attorney for Real Party In Interest.

MEMORANDUM DECISION

CATTANI, Judge

¶1 The State of Arizona seeks special action review of the superior court's pre-trial discovery order requiring the State to provide mirror images of computer hard drives to a defense expert. For reasons that follow, we accept special action jurisdiction but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Defendant in this first-degree murder case sought to inspect and test her boyfriend's computer hard drives to profile who was using the computer when several documents arguably relevant to the case were created, opened, modified, searched, or deleted. Defendant's boyfriend has been listed as a witness for the State.

¶3 Mirror images of the hard drives were initially provided to the defense, but were returned to the State after the State determined that the drives contained child pornography.

¶4 Defendant subsequently requested that her expert be permitted to complete an analysis of the mirror image hard drives at the expert's laboratory facility. The State argued that under Rule 15.1(j) of the Arizona Rules of Criminal Procedure, items containing child pornography should not be copied or otherwise reproduced, and instead could be made available for inspection and testing at a government facility.

¶5 The superior court denied Defendant's request to have the mirror images provided again to her expert. Defendant filed a motion to reconsider, and the court thereafter conducted an evidentiary hearing regarding the need for off-site examination of the mirror image hard drives.

¶6 After hearing evidence and considering additional briefing by the parties, the court found that the State could not provide an adequate opportunity to inspect the material at a state facility and ordered the State to turn over the mirror image hard drives. The court further directed that the expert only examine written documents found on the hard drives, and that the expert not open any image or video files. The court also ordered that the expert not reproduce or distribute the hard drives, and ordered that they be held in the expert's possession at the expert's place of business, then returned, along with a completed chain of custody, on a specified date.

DISCUSSION

¶7 The State urges that special action relief is warranted because releasing contraband materials that contain images of child pornography raises a question of public importance, and because the harm to victims and society can only be stopped by halting the dissemination of these types of images. Although we agree that preventing dissemination of child pornography is important, we conclude that the superior court furthered that objective by prohibiting the defense expert from viewing ...


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