Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Petition for Special Action from the Superior Court in Maricopa County Cause No. CR2007-006487-001 The Honorable Karen L. O'Connor, Judge
James J. Haas, Maricopa County Public Defender Phoenix by Joseph A. Stazzone, Deputy Public Defender Jeffrey A. Kirchler, Deputy Public Defender Attorneys for Petitioner
William G. Montgomery, Maricopa County Attorney Phoenix by Jason Kalish, Deputy County Attorney Michelle Arino, Deputy County Attorney Attorneys for Real Party in Interest
SAMUEL A. THUMMA, Presiding Judge
¶1 Petitioner Avtar Singh Grewal faces first degree capital murder and burglary charges and is alleged to have killed his wife N.K. on March 29, 2007 in Maricopa County and then fled the country. Grewal was arrested on March 31, 2007 upon his arrival at the Indira Gandhi International Airport in New Delhi, India. On April 3, 2007, Grewal was indicted in Maricopa County. Following lengthy extradition proceedings, Grewal was extradited from India and returned to Arizona in September 2011.
¶2 On September 13, 2011, the government of India transferred custody of Grewal to United States Federal Bureau of Investigation (FBI) agents in India to be transported to Arizona. At that time, Grewal had in his possession three binders (about 160 pages) of documents. Whether the documents in those three binders are protected from disclosure by the attorney-client privilege is the issue to be resolved in this special action.
¶3 Although the circumstances are disputed, Grewal gave the binders to FBI Agent Wilson who forwarded them to law enforcement in Arizona. On November 3, 2011, Grewal filed a motion for protective order in Maricopa County Superior Court, claiming the entirety of the binders were privileged and seeking an order preventing law enforcement from reviewing the binders. On November 4, 2011, the superior court issued the requested protective order.
¶4 Grewal then filed a motion for finding of privilege and request for order to transfer materials to defense, arguing the binders were "protected by the sixth amendment and the attorney-client privilege" and that they should immediately be transferred to defense counsel. Grewal's Sixth Amendment argument was that he created the binders after his indictment, meaning he "had a sixth amendment right to counsel at the time he compiled the binders." Grewal's attorney-client privilege claim asserted that he "intended the binders to be read only by his counsel so they could render legal advice and prepare for his defense." The State opposed the motion and, among other things, asked that a special master review the binders and determine if any of the documents were privileged.
¶5 In a May 25, 2012 nunc pro tunc ruling (issued July 19, 2012), after briefing, other motion practice and oral argument (but not an evidentiary hearing), the superior court found that "[b]ased on the pleadings, it appears that the binders . . . are covered by the attorney-client privilege. The binders were written by [Grewal] to assist his American attorneys in defending him against the instant charges and possibly upon the advice of his Indian attorneys." Accordingly, the court directed the State to provide the binders to Grewal's counsel; that the State not be allowed to view the binders and found the appointment of a special master was not necessary.
¶6 On August 1, 2012, the State provided the binders to Grewal's counsel, with whom they have remained ever since.
¶7 In March 2013, the State filed a motion to reconsider, attaching a portion of the FBI report and a handwritten note signed by Grewal, and claiming the binders "did not contain work product, but rather contained [Grewal's] . . . 'full confession.'" The FBI report and Grewal's note state Grewal "read out loud 'Part I' [the first binder]" to FBI Agents Wilson and Sharma, which "contains [Grewal's] full confession regarding the death of" N.K. Grewal opposed the motion, arguing there was no new information or evidence of waiver that would properly allow the court to reconsider the May 2012 ruling.
¶8 In July 2013, the superior court held an evidentiary hearing on the State's motion and FBI Agent Wilson testified. Agent Wilson testified that his involvement was limited to coordinating the transfer of Grewal from the government of India to the United States government at the Indira Gandhi International Airport in New Delhi. Agent Wilson met with Grewal "to explain the process, how it would go that day in terms of his going through customs and immigration, being put on a plane with the U.S. Marshals, things of that nature." Agent Wilson also explained to Grewal his rights and gave him a standard advice of rights form that Grewal signed.
¶9 When they met, Grewal had the three binders and Agent Wilson recalled Grewal saying "they were his diary of what had transpired involving his wife." Grewal "stated that he did not want to lose them [the binders], but he wanted me [Agent Wilson] to have them. He said that they were definitely important documents."
¶10 Grewal tried to tell Agent Wilson what was in the binders and, when asked at the evidentiary hearing how that came about, Agent Wilson answered:
In fact, he - I wanted - because of the essence of time, I just wanted him to briefly tell me what was in the binders, but he demanded or was very assertive that he wanted to read out loud the binders. And in the time that we were given, he actually read through the entire volume one of three volumes, and would have read all three had we had sufficient time.
Grewal took these actions in the airport waiting area after Agent Wilson clearly identified himself to Grewal as an FBI agent and after Agent Wilson had explained to Grewal his rights. Agent Wilson was seated next to Grewal and "could read, verbatim, as [Grewal] was reading out loud" and confirmed that Grewal was reading the binder verbatim. Agent Wilson tried to have Grewal summarize the documents "several times" to speed things along, "but [Grewal] felt compelled to read out loud the verbiage that was in this [sic] document." Although noting Grewal wanted the binders safe, Agent Wilson testified Grewal did not indicate ...