State v. Hon Fish

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Petitioner,

v.

THE HONORABLE GEOFFREY FISH, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

KIPLING D. HARRIS (001); KIMBERLY M. LACOUNT (002),
Real Parties in Interest.

No. 1 CA-SA 24-0097
FILED 11-26-2024

Appeal from the Superior Court in Maricopa County
No. CR2016-132194-001
CR2016-132194-002
The Honorable Geoffrey H. Fish, Judge

VACATED & REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By John Jordan Uglietta, Kristin L. Larish
Counsel for Petitioner

Maricopa County Public Defender’s Office, Phoenix
By Nikolas D. Forner, Alicia M. Dominguez
Counsel for Respondent Kipling D. Harris

Maricopa County Office of the Legal Advocate
By Jabron Lynn Whiteside, Bruce A. Alldredge
Counsel for Real Party in Interest Kimberly LaCount
 STATE v. HON FISH, et al
Opinion of the Court

OPINION

Judge Brian Y. Furuya delivered the opinion of the Court, in which Presiding
Judge Anni Hill Foster and Vice Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 The State petitioned for special action relief from the superior
court’s order requiring disclosure of the State’s investigator’s trial notes
under Arizona Rule of Criminal Procedure (“Rule”) 15.1. By order issued
on May 28, 2024, we accepted jurisdiction and granted relief, with an
opinion to follow explaining our reasoning. This is that opinion.

¶2 Defendants argue, and the superior court concluded, that the
investigator’s trial notes constitute a witness’ “written materials” under
Rule 15.1(b)(1) and must be disclosed. Defendants also argue that the State’s
designation of the investigator as a testifying fact witness for purposes of a
penalty-phase retrial waived any protections under the work product
doctrine. As explained below, we hold: (1) mere observations recorded in
the investigator’s trial notes are not “written statements” subject to
disclosure; (2) opinions, theories, and conclusions recorded in the
investigator’s trial notes are protected from disclosure as work product; (3)
the State did not waive work product protections by designating its
investigator as a fact witness because, on this record, the State does not
propose any “testimonial use” of the trial notes; and (4) Defendants cannot
show requisite need and unavailability of information to overcome work
product protections. Therefore, we vacated the court’s order and remanded
for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶3 This special action stems from a murder case where the State
is seeking the death penalty. The two defendants involved, Kipling Harris
and Kimberly LaCount (collectively, “Defendants”), real parties in interest,
had their trials severed. Harris was tried first and found guilty of two
counts of first-degree murder and one count of attempted first-degree
murder. During the following penalty-phase trial, the court declared a
mistrial after the jury failed to reach unanimous verdicts on the appropriate
sentences.

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 STATE v. HON FISH, et al
Opinion of the Court

¶4 During both of Harris’ trials, the State designated a Glendale
Police Department detective as its investigator (“Investigator”) to assist the
prosecutors with the State’s case. The Investigator regularly attended court
proceedings, sat at counsel table with the prosecutors, and took notes. The
Investigator was not the officer primarily responsible for investigating this
case, and his notes can reflect only his observations or subjective
impressions of evidence as it was presented during trial. After the State
noticed its intent to call the Investigator as a fact witness at Harris’ penalty-
phase retrial, Harris moved to compel disclosure of the Investigator’s trial
notes, written throughout the course of both prior trials. LaCount joined
Harris’ motion, because the Investigator was also noticed as a fact witness
in her case, which had not yet begun. The State opposed the motion,
arguing the notes were protected under the work product doctrine and that
the Investigator would not be relying upon or referencing those notes while
he was testifying as a fact witness in either of Defendants’ cases.

¶5 Following oral argument, the court granted Defendants’
motions to compel, concluding the Investigator’s trial notes were “written
materials” of a testifying witness, subject to disclosure under Rule 15.1.
Recognizing the work product concern, however, the court ordered the
State to redact any potential work product in the Investigator’s trial notes,
disclose the redacted version of the trial notes to Defendants, and file an
unredacted copy under seal.1 The State then filed this special action.

DISCUSSION

I. Special Action Jurisdiction Accepted.

¶6 The decision to grant or deny special action jurisdiction is
discretionary. See Ariz. R.P. Spec. Act. 1(a) (authorizing special action
jurisdiction when a party has no “equally plain, speedy, and adequate
remedy by appeal”). When the matter involves a purely legal question of
first impression, is of statewide importance, or is likely to recur, we may

1 Defendants argue the court correctly ordered the State to file the
Investigator’s unredacted notes under seal for appeal purposes per Rule
15.5(d). The State disagrees. But because we hold that nothing in the
Investigator’s trial notes could be subject to disclosure and because Harris
did not timely appeal his convictions and sentences, that issue is moot, and
we do not address it further. See Welch v. Cochise Cnty. Bd. of Supervisors, 251
Ariz. 519, 523 ¶ 12 (2021) (Arizona courts “exercise restraint to ensure they
refrain from issuing advisory opinions, that cases be ripe for decision and
not moot.”) (internal quotation omitted).

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Opinion of the Court

exercise our discretion to accept jurisdiction. See State v. Covil, 252 Ariz. 40,
41 ¶ 2 (App. 2021). Special action jurisdiction is proper to determine a
question of privilege or protection from disclosure by the work product
doctrine because an appeal offers no adequate remedy for the prior
disclosure of protected information. Cf. McGlothlin v. Astrowsky, 255 Ariz.
449, 455 ¶ 12 (App. 2023). Because this case involves “purely legal issues,
which are likely to arise again,” regarding applicability of Rule 15.1 and the
work product protections to an investigator’s trial notes, we accept special
action jurisdiction. Arpaio v. Figueroa, 229 Ariz. 444, 446 ¶ 5 (App. 2012).

¶7 We review discovery rulings in criminal cases for an abuse of
discretion. Naranjo v. Sukenic, 254 Ariz. 467, 472 ¶ 17 (2023). A “court abuses
its discretion when it misapplies the law or predicates its decision on
incorrect legal principles.” Johnson v. Hartsell, 254 Ariz. 585, 589 ¶ 14 (App.
2023) (internal quotation omitted). Legal issues, including the
interpretation of the Rules, are reviewed de novo. Id.

II. The Investigator’s Trial Notes Are Not Subject to Disclosure.

¶8 Defendants argue, and the court concluded, that because the
Investigator was subsequently designated as a testifying fact witness, his
notes taken during Harris’ previous trials are “written statements” per Rule
15.1(b)(1), and therefore at least portions of them are not attorney work
product and must be disclosed.

¶9 “There is no general constitutional right to discovery in a
criminal case.” See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Draper v.
Gentry, 255 Ariz. 417, 422 ¶ 16 (2021) (observing that the due process right
to a meaningful opportunity to present a complete defense does not “entail
a general constitutional right to discovery” (cleaned up)). Rather, discovery
in criminal cases is largely governed by court rules. Central here is Rule
15.1, which governs defendants’ specific rights to discovery. See Draper, 255
Ariz. at 422–23 ¶¶ 16, 18. Rule 15.1 requires the State to disclose “any
relevant written or recorded statement of [a] witness” in its case-in-chief
and also such materials and information that “tend[] to mitigate or negate
the defendant’s guilt or would tend to reduce the defendant’s punishment.”
Rule 15.1(b)(1), (8). Thus, our task is to determine whether Rule 15.1
compels disclosure of the Investigator’s trial notes or any portion of them.

¶10 The record provided does not contain a copy of the notes at
issue. Nevertheless, it is undisputed that they were taken exclusively
during trial. Nor was the Investigator the original case agent investigating

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the crimes. Disregarding any irrelevant material2, it follows that his trial
notes can reflect only what the Investigator perceived, considered, or
concluded during the two trials. As such, the Investigator’s notes could
contain only his descriptions of trial proceedings and evidence as he
observed it being presented, his subjective impressions and thoughts about
what he observed during trial, or his in-trial communications with
prosecutors about this material. But contrary to Defendants’ arguments,
nothing that could be recorded within the Investigator’s trial notes is
subject to disclosure.

¶11 First, the disclosure rules do not apply to those portions of the
Investigator’s trial notes that may record his observations of the trials
because such material does not qualify as a “statement” under Rule 15.1.
Second, concerning the Investigator’s subjective impressions and thoughts
recorded throughout the trials, his notes about such things are protected
work product. Third, the State’s designation of the Investigator as a
testifying witness did not waive the work product protections because the
State did not propose any “testimonial use” of the trial notes. Fourth,
Defendants cannot show requisite need and unavailability of information
to override applicable work product protections.

A. The Investigator’s Observations Recorded in His Trial
Notes Are Not “Statements” Subject to Disclosure.

¶12 The State’s disclosure obligation is limited to “any relevant
written or recorded statement of [a] witness.” Rule 15.1(b)(1) (emphasis
added). However, the Rules further clarify that “[h]andwritten notes are
not a statement if they . . . were preserved electronically, mechanically, or
by verbatim dictation.” Rule 15.4(a)(3).

¶13 Here, all events and evidence presented at the trials were
preserved by admission of exhibits and use of court reporters to take
verbatim dictation of the proceedings. This more faithful preservation of
trial events and evidence supersedes any observations the Investigator may
have made in his handwritten trial notes. Id. Thus, to the extent the
Investigator’s trial notes contain any such observations, they are not
“statements” subject to disclosure. See Rules 15.1(b)(1); 15.4(a)(3). And the
same is true of any communications with prosecutors recorded in the trial

2 Any required disclosures must be relevant. Rule 15.1(b)(1).
Therefore, any irrelevant material in the Investigator’s trial notes is not
subject to disclosure. Id.

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notes regarding these observations. These communications would likewise
not qualify as “statements” and would not be subject to disclosure. Id.

B. The Investigator’s Opinions, Theories, and Conclusions
About the Trials Recorded in His Trial Notes Are Protected
Work Product.

¶14 Even if Defendants could show that the Investigator’s notes
contain “statements” under Rule 15.1, Rule 15.4(b)(1) expressly excludes
disclosure of work product. Such non-disclosable work product includes
“legal research or records, correspondence, reports, or memoranda to the
extent they contain the opinions, theories, or conclusions of the prosecutor
or defense counsel, members of their respective legal or investigative staff,
or law enforcement officers.” Id. This exception recognizes not only the
privacy of an attorney’s own work product but also recognizes that
attorneys must, and will, interact with investigative staff and law
enforcement officers, who will also assist in developing opinions, theories,
or conclusions regarding the case. Id.

¶15 Here, the Investigator is a qualifying person for purposes of
determining work product protections under Rule 15.4(b)(1) because he is
a “law enforcement officer,” who attended both trials and sat at counsel
table with prosecutors as a designated investigator of the State. During the
trials, he observed the presented evidence and arguments of counsel and
took notes. Any impressions and thoughts about the trials and evidence
contained within the Investigator’s trial notes would reflect his own
processing of trial events, arguments, and evidence. Such subjective
reflection necessarily would constitute “opinions, theories, or conclusions.”
Rule 15.4(b)(1).

¶16 Defendants counter that the Investigator’s trial notes are not
protected under the work product doctrine, citing State v. Johnson, 247 Ariz.
166, 193 ¶ 86 (2019). But Johnson is distinguishable. Johnson involved pre-
trial disclosure of a defense attorney’s notes taken during interviews of
mitigation witnesses. Id. at 193 ¶ 83. Those notes related to anticipated
testimony of the noticed mitigation witnesses—that is, they recorded what
the witnesses indicated they would testify to at trial. Id. The notes were
written “statements” and subject to disclosure obligations under the Rules
because such statements “are not theories, opinions and conclusions of the
parties or their agents.” Id. at 193 ¶ 86 (internal citations omitted).

¶17 Here, Defendants are seeking the Investigator’s trial notes.
That distinction alone is determinative. The pre-trial notes in Johnson, taken

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during development of the case, contained the substance of witness
testimony yet to be offered at trial, and for which no other record existed.
Id. at 193 ¶ 83. By contrast, as to relevant factual matters, the Investigator’s
trial notes can contain only observations of what others presented during
trial or his characterizations and thoughts about the same. They could not
reflect his own anticipated testimony because he was not the investigating
case agent for the crimes, and he was not designated as a testifying fact
witness until after both trials had already concluded. Further, notes
concerning the Investigator’s subjective processing of the events unfolding
during trial constitute his opinions, theories, or conclusions about the trial,
and, therefore, are protected as work product.

¶18 Because the Investigator’s observations reflected in his trial
notes do not qualify as “statements” under Rule 15.1(b)(1), and all other
relevant material is protected by the work product doctrine under Rule
15.4(b)(1), Johnson is inapplicable. See Johnson, 247 Ariz. at 193 ¶¶ 85–86
(reasoning that Johnson’s attorney’s notes were subject to disclosure
because they were “statements” and not otherwise protected).

C. Because the State Did Not Propose to Make Testimonial Use
of the Trial Notes, the State Has Not Waived Work Product
Protections.

¶19 Work product protection “is not absolute.” United States v.
Nobles, 422 U.S. 225, 239 (1975). It may be waived when parties elect to make
“testimonial use” of their work product. Id. at 239–40. Nevertheless,
LaCount argues that the work product doctrine does not shield the
Investigator’s trial notes because they are highly relevant to the credibility
of other witnesses. She points to Nobles for this proposition, but that case
does not help her.

¶20 In Nobles, defense counsel hired a private investigator who
interviewed two key witnesses and prepared a written report. Id. at 227. At
the following trial, defense counsel relied on the report during cross-
examination of the witnesses and sought to call the private investigator as
a witness to provide a contrast with those same witnesses’ statements. Id.
at 227–29. The Nobles Court observed that “testimonial use of [protected]
materials” causes “the normal rules of evidence [to] come into play with
respect to cross-examination and production of documents.” Id. at 239 n.14.
The Nobles Court held that by choosing to call the private investigator as a
witness to impeach the credibility of other witnesses, the defendant waived
any applicable work product protections applicable to the matters to which
the private investigator testified. Id. at 239–40. But here, unlike the pre-trial

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report in Nobles used to contrast the witnesses’ statements, the State never
used the Investigator’s trial notes during examination of other witnesses.
Nor does the record indicate that the State intended to question the
Investigator on the contents of his trial notes for any purpose. To the
contrary, the State affirmed to the court that the Investigator would not rely
on or reference his trial notes while he testified in either of Defendants’
cases. As such, LaCount failed to prove that the State intended the
testimonial use of the Investigator’s trial notes simply by designating the
Investigator as a testifying fact witness or that “the production of [the
Investigator’s trial notes] might substantially enhance ‘the search for
truth.’” Id. at 232 (quoting Williams v. Fla., 399 U.S. 78, 82 (1970)).

¶21 Citing Para v. Anderson, 231 Ariz. 91 (App. 2012), Defendants
maintain that the act of designating the Investigator as a testifying fact
witness waives any applicable work product protection. Harris analogizes
the Investigator’s designation to the transition from “consulting expert” to
“testifying expert.” While the work product doctrine protects an expert
performing services in a purely consulting role, a party waives any such
protections when it redesignates a consulting expert as a testifying expert.
See Para, 231 Ariz. at 93 ¶ 8; see also Corbin v. Ybarra, 161 Ariz. 188, 193 (1989)
(discussing waiver of work product protections due to transition from
consulting to testifying expert status in the context of a criminal case).
Harris contends this principle applies to the Investigator here. We disagree.

¶22 The analogy to cases involving use of expert witnesses is inapt
here because the Investigator was designated as a fact witness, not an expert
witness. And this record contains nothing beyond mere speculation that
would support an intention to use the Investigator as an expert witness.
Waiver as to work product protections of trial notes might make some sense
in the context of expert witnesses, who may rely upon observations during
trial to supplement or refine their opinions, thereby arguably making
testimonial use of those notes. See Nobles, 422 U.S. at 239 n.14. But we decline
to extend that analysis to the context of designated investigators who assist
counsel at counsel table during trial and are later disclosed as non-expert
fact witnesses in a subsequent proceeding and no testimonial use is
contemplated. Such investigators’ subjective opinions, as recorded in their
trial notes, are irrelevant to their later testimony as fact witnesses.

¶23 Because the Investigator was not disclosed to provide expert
opinions in this case, and no other testimonial use is evident, merely
electing to present him as a fact witness does not waive any protections as
concerns his trial notes. Id. Thus, the State did not waive work product
protections concerning the Investigator’s trial notes.

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Opinion of the Court

D. Defendants Have Not Demonstrated Substantial Need and
Unavailability to Overcome Work Product Protections.

¶24 Our supreme court has directed that “[o]n any consideration
of the work product doctrine, [a court] must consider an additional factor:
availability of the item sought in discovery.” Corbin, 161 Ariz. at 194. “If the
information sought is equally available to both parties, it receives the
broadest protection.” Id. On the other hand, “if the information sought is
unavailable to one of the parties, the work product doctrine may not protect
it, ensuring that both parties have equal access to all information necessary
for a fair determination of the case.” Id. Further, the Rules explicitly
recognize the principle of equal access to information. Specifically, Rules
15.1(g) and 15.2(g) allow the State and defendants to obtain material upon
a showing of “substantial need” of the material when the party cannot
obtain it without “undue hardship.” Id.

¶25 Here, LaCount argues she has great need for the
Investigator’s trial notes because the notes are allegedly important to
witness credibility. But “Arizona prohibits testimony from an expert or lay
witness that opines as to the truthfulness of a statement by another witness”
because “[t]estimony about the truthfulness or credibility of other witnesses
invades the province of the jury.” State v. Martinez, 230 Ariz. 382, 385 ¶ 11
(App. 2012). Thus, LaCount fails to demonstrate need for the Investigator’s
notes for the purpose of questioning him about the credibility of other
witnesses.

¶26 Defendants also invoke Johnson for the proposition that
“where relevant and non-privileged facts remain hidden in an attorney’s
file and where production of those facts is essential to the preparation of
one’s case, discovery may properly be had.” 247 Ariz. at 194 ¶ 88 (cleaned
up). But Defendants provide nothing beyond pure speculation that such
relevant and non-privileged facts could be contained in the Investigator’s
trial notes. Id. And, as the Johnson Court recognized, “without purported
necessity or justification,” counsel is not entitled to gather evidence
“revealed to him already through the interrogatories or is readily available
to him direct from the witnesses for the asking, . . . only to help prepare
himself to examine witnesses and to make sure that he ha[d] overlooked
nothing.” Id. at 193–94 ¶ 87 (quoting Hickman v. Taylor, 329 U.S. 495, 510–13
(1947)). We agree with the Johnson Court that no legitimate purpose would
be served by disclosing information that is available to both parties without
sufficient substantial need or undue hardship. See id.

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¶27 Here, even if the purpose to obtain the trial notes was merely
to inform Defendants’ preparations for examining the Investigator or to
glean material for impeachment, any observations that could be recorded
in the Investigator’s trial notes—about credibility or otherwise—were
equally available to Defendants because the trials were open to the public,
as are the verbatim records of them. Again, the Investigator was not the
officer primarily responsible for investigating this specific case, and his
notes can reflect only his observations or subjective impressions of evidence
as it was presented during the two trials in question. And the Investigator
took these notes during trials that were “readily available” to Defendants.
With equal access to the same information about which the Investigator was
taking notes, Defendants cannot show requisite substantial need or undue
hardship that permit them to ignore the verbatim record in favor of
compelling disclosure of the Investigator’s trial notes. They need only look
to the record. As such, the Investigator’s trial notes must receive the
broadest protection under the work product doctrine. Corbin, 161 Ariz. at
194. Therefore, Defendants cannot overcome the work product protections
shielding the Investigator’s trial notes.

CONCLUSION

¶28 For the reasons explained, we accept special action
jurisdiction and grant relief, vacating the superior court’s disclosure order
and remanding for further proceedings.

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

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