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State ex rel. Montgomery v. Kemp

Court of Appeals of Arizona, First Division

April 7, 2016

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner,
THE HONORABLE MICHAEL W. KEMP, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DARREN CORTIZ DAVIS, Real Party in Interest

          Petition for Special Action from the Superior Court in Maricopa County. No. CR2014-001685-001 DT. The Honorable Michael W. Kemp, Judge.

         Maricopa County Attorney's Office, Phoenix, By Amanda M. Parker, Counsel for Petitioner.

         Law Office of David L. Lockhart, Phoenix, By David L. Lockhart, Counsel for Real Party in Interest.

         Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


         Lawrence F. Winthrop, Judge:

         [¶1] In this special action, the State of Arizona challenges an order denying the State's request for an alleged sexual assault victim (" E.P." ) to testify via two-way video conferencing during the trial of her alleged assailant, Real Party in Interest Darren Cortiz Davis.

         [¶2] E.P. is an adult who currently lives in Montana and suffers from numerous mental and physical difficulties, including post-traumatic stress disorder (" PTSD" ) and non-epileptic seizures. These difficulties are well-documented--so much so that a Montana trial court refused to compel E.P. to testify in Arizona, finding she would suffer psychological harm if required to be in the same room with Davis. E.P. has, however, indicated a willingness to testify before the jury and Davis from Montana, utilizing two-way video conferencing technology. Under the State's requested trial accommodation, E.P. and Davis would hear each other and see each other, face-to-face, via two-way video, but would not be in the same room during E.P.'s testimony. Relying on the principles set forth in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and its progeny, we accept jurisdiction and grant the relief sought by the State.


         [¶3] A grand jury indicted Davis on two counts of sexual assault involving E.P., each a class 2 felony, in violation of Arizona Revised Statutes (" A.R.S." ) section 13-1406 (2010). The State alleges that, on January 2, 2003, Davis kidnapped then-twenty-year-old E.P., threatened to harm her and her family if she did not cooperate, physically assaulted her, and forced her to engage in two nonconsensual sexual acts.

         [¶4] Sometime after the alleged assault, E.P. moved to Montana, where she is currently under the care of a psychiatrist and another medical doctor. E.P. suffers extreme mental and physical distress, and at some point in time, the prosecutor in Arizona became aware that, due to the trauma and resultant illnesses, stress, and anxiety, E.P. likely would not voluntarily testify against Davis in Arizona.

         [¶5] According to E.P.'s psychiatrist--who has treated E.P. since she was in high school--E.P. was in a fragile mental state before the alleged assaults, receiving psychiatric treatment for Major Depressive Disorder with psychotic features. In a letter to the prosecutor, the psychiatrist opined that,

subsequent to her rape in Arizona, [E.P. suffers from] a Post-Traumatic Stress Disorder that exacerbated the primary diagnosis. In addition, [E.P.] has a diagnosis of non-epileptic seizures and several other medical problems that are more likely than not related to her psychiatric disorders.
Since her sexual assault, [E.P.] has been in and out of hospitals several times. She has made several attempts on her life. What could have been a reasonably promising prognosis from her depression has been altered by the assault. For years she was barely able to function. In the past year or two, fortunately, she has started going back to school, is making healthy friendships and living somewhat independently. In my professional opinion, returning to Arizona to testify against her assailant would almost certainly set her back several years in her recovery. My recommendation is that she not travel and not testify in front of her perpetrator.

         [¶6] According to E.P.'s medical doctor for the past six years, E.P. presently experiences non-epileptic seizures and severe abdominal/pelvic pains as a result of her anxiety associated with testifying in court. The doctor has confirmed that E.P. " has a history of complex partial seizures related to an assault in her past where she was beat about her head." E.P. therefore experiences both real and pseudoseizures. E.P. also experiences severe migraines and has intractable emesis (repeated bouts of vomiting resistant to medical treatment) when her anxiety level is too high, and in the doctor's opinion, E.P.'s severe anxiety issues and chronic pelvic pain are " a direct result of this past assault." Moreover, E.P.'s chronic pelvic pain has resulted in other ...

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