Horne v. Owens State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BENJAMIN WADE HORNE, Petitioner/Appellant,

v.

BRUCE R. OWENS, Respondent Judge,

and

STATE OF ARIZONA, Real Party in Interest/Appellee.

No. 1 CA-CV 24-0252

FILED 11-26-2024

Appeal from the Superior Court in Maricopa County
No. LC2024-000032-001
The Honorable Jeffrey A. Rueter, Judge

AFFIRMED

COUNSEL

Law Office of Robert P. Jarvis, Mesa
By Robert P. Jarvis, Garrett L. Smith
Counsel for Petitioner/Appellant

Gilbert Town Prosecutor’s Office, Gilbert
By Jacob D. Brown
Counsel for Real Party in Interest/Appellee
 HORNE v. OWENS/STATE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Benjamin Wade Horne, facing charges in municipal court,
moved to depose two forensic scientists involved in the case. The municipal
court denied Horne’s motions as premature because the witnesses had
agreed to submit to one-hour interviews.

¶2 Horne petitioned the superior court for special-action relief.
The superior court “decline[d] Special Action jurisdiction as the ruling at
issue was not clearly erroneous or an abuse of discretion.” Horne now
appeals to this court.

¶3 The superior court may decline jurisdiction based on it
finding that the municipal court neither committed clear error nor abused
its discretion. State v. Chopra, 241 Ariz. 353, 355, ¶ 10 (App. 2016). In such
circumstances, we only review whether the decision to decline jurisdiction
was an abuse of discretion. See Bilagody v. Thorneycroft, 125 Ariz. 88, 92
(App. 1979).

¶4 Horne argues that the time-limited interviews equated to
witness non-cooperation, depriving him of due process. We reject Horne’s
arguments and find no abuse of discretion in the court’s decision to decline
jurisdiction.

¶5 A witness may place reasonable conditions on interviews.
State ex rel. McDougall v. Municipal Court, 155 Ariz. 186, 190 (App. 1987). It
is only when the interview conditions “make[] the situation untenable for
defense counsel to discover needed material” (in contravention of due
process, see, e.g., California v. Trombetta, 467 U.S. 479, 485 (1984)) that a
witness is uncooperative and must be ordered to submit to a deposition.
McDougall, 155 Ariz. at 190 (citation omitted). For example, we have upheld
uncooperativeness findings where an undercover witness insisted on being
interviewed in the presence of other witnesses, where a witness refused to
be recorded, and where a witness insisted on scheduling his interview
outside of regular business hours. Id. at 190–91 (recapping caselaw). “The

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 HORNE v. OWENS/STATE
Decision of the Court

trial court in its discretion may determine in a given case whether the
witness is cooperative or uncooperative, and an appellate court will seldom
interfere with the exercise of this discretion.” Id. at 190.

¶6 Here, the witnesses agreed to be interviewed but placed a
one-hour time restriction on the interviews. Horne points out that under
Arizona Rule of Criminal Procedure 15.3(d)(1) and Arizona Rule of Civil
Procedure 30(d)(1), depositions are presumptively limited to four hours.
But the rules do not preclude a determination that one-hour interviews will
be adequate in a particular case. Horne speculates that the hour-long
interviews will be insufficient to develop his defense. But, it is not until the
interviews have been conducted and cut short that Horne could argue that
additional time with the witnesses is needed.

¶7 Additionally, nothing in the municipal court’s rulings would
preclude Horne from requesting follow-up interviews if necessary. The
superior court did not abuse its discretion by declining jurisdiction based
on the absence of apparent error. We therefore affirm.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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