Lopez v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LEILAH LOPEZ, Petitioner,

v.

STATE OF ARIZONA, Respondent.

No. 1 CA-SA 25-0220
FILED 11-18-2025

Petition for Special Action from the Superior Court in Maricopa County
No. CR2023-008427-001
The Honorable Kristin Culbertson, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART;
REMANDED WITH INSTRUCTIONS

COUNSEL

Maricopa Public Defender’s Office, Phoenix
By Alicia M. Dominguez (argued) & Nikolas Forner
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Julie A. Done (argued), Josh Maxwell & Richard Dusterhoft
Counsel for Respondent

Law Office of Eric W. Kessler, Scottsdale
By Eric W. Kessler
Co-counsel for Amicus Curiae Co-Defendant Johnny Brazell
Law Office of Candice L. Shoemaker, Phoenix
By Candice L. Shoemaker
Co-counsel for Amicus Curiae Co-Defendant Johnny Brazell

OPINION

Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Leilah Lopez seeks special action relief from the superior
court’s denial of her motion to release physical evidence. Because access to
the physical evidence may lead to the discovery of information relevant to
Lopez’s defense against her pending criminal charges, we accept
jurisdiction and grant relief in part, remanding with instructions.

FACTS AND PROCEDURAL BACKGROUND

¶2 In December 2022, Lopez and her romantic partner,
co-defendant Johnny Brazell, moved to a townhome in Glendale with her
son, Brian (a pseudonym), from a previous relationship. In May 2023,
Brazell called 9-1-1 to report that while on a walk, a dog attacked Brian, and
after napping, Brian was no longer breathing. Emergency Medical Services
(“EMS”) arrived soon after and found Brian without a pulse and not
breathing. EMS transported Brian to the hospital, where the hospital staff
pronounced him dead. Brazell and Lopez told the hospital staff that a dog
had attacked Brian. But the staff believed that his injuries did not appear to
be from a dog attack and notified the Glendale Police Department of the
suspicious circumstances. The hospital staff told detectives Brian’s internal
temperature suggested he died one to two hours before arriving at the
hospital. While the physician did not find any dog bites or attack wounds,
detectives did see bruising across Brian’s body and face, as well as cuts and
swelling. Lopez contends that while being interrogated by the police,
Brazell confessed to hitting Brian’s head on a table earlier that morning
when Lopez was not in the room.

¶3 The parties agree that several days later, the Medical
Examiner (“ME”) performed an autopsy on Brian and collected, tested, and
preserved organs and tissue samples. The ME removed small tissue
samples from some organs and preserved them in paraffin blocks, which
the ME could later use to prepare tissue slides. The ME stated the cause of

2
 LOPEZ v. STATE
Opinion of the Court

death was multiple blunt force injuries, and the manner of death was
homicide. The State alleges that during a search of the home, detectives
found videos spanning the weeks before Brian’s death, which show Brazell
and Lopez repeatedly abusing the child.

¶4 A grand jury indicted Lopez for six counts of child abuse, one
count of conspiracy to commit child abuse, one count of attempt to commit
child abuse, one count of kidnapping, ten counts of aggravated assault
causing serious physical injury, and one count of first-degree murder,
charged as both felony murder and premeditated murder. The State later
filed an intent to seek the death penalty.

¶5 Lopez hired an independent medical expert, Dr. Evan
Matshes, to evaluate the ME’s findings and conclusions. Lopez requested
that the ME release the autopsy file and duplicate tissue slides prepared
from the paraffin blocks to her expert. The superior court ordered the
release of the report and tissue slides.

¶6 The ME’s retention policy required destruction of the tissue
and organ specimens after two years. In April 2024, Lopez sought
preservation of the tissue and organs set for destruction.

¶7 Dr. Matshes informed defense counsel that by personally
inspecting the tissue and organs, he may be able to estimate the time and
cause of death more accurately. In April 2024, Lopez moved for the release
of the organs and tissue for independent testing, under Arizona Rule of
Criminal Procedure (“Rule”) 15.1 and the Federal and State Due Process
Clauses, to “better understand the etiology of [the] reported injuries and
the possible mechanisms and timeframes of causation.” The State objected,
arguing that the discovery request violated the victim’s rights and did not
satisfy the criteria of Rule 15.1(g). The ME, however, did not object and
requested that the court extend the destruction date to May 2026.

¶8 The court denied Lopez’s motion, finding that under State v.
Fields, 196 Ariz. 580, 582 (App. 1999), she did not meet the criteria of Rule
15.1(g) and that Lopez failed to show the tissue and organ specimens were
necessary to present a complete defense. The court, however, granted the
ME’s request, extending the destruction date to May 2026.

¶9 Lopez moved for reconsideration, claiming she had a right
under Rule 15.1(e) to examine and test tangible evidence. The court denied
her reconsideration motion without ordering a response. Lopez then
brought this special action.

3
 LOPEZ v. STATE
Opinion of the Court

DISCUSSION

¶10 We may accept special action jurisdiction when a party has no
“equally plain, speedy, and adequate remedy by appeal or if the issue is of
statewide significance, a matter of first impression, or a pure question of
law.” State v. LaBianca, 254 Ariz. 206, 208–09, ¶ 5 (App. 2022) (quotation
omitted); see also Ariz. R.P. Spec. Act. 12(a), (b)(5) (“In deciding whether to
accept jurisdiction, the court should consider . . . whether the petition asks
the court to resolve questions . . . tending to evade review, including
questions that may become moot before an appeal.”).

¶11 Relief for Lopez’s claim would be unavailable after the May
2026 destruction date passes. And from the record provided, the trial here
will not be resolved by that time. For this reason, we accept special action
jurisdiction.

¶12 We review the legal scope of disclosure under Rule 15 de novo,
while we review the superior court’s rulings for an abuse of discretion. State
v. Johnson, 247 Ariz. 166, 193, ¶ 82 (2019).

A. A Criminal Defendant Has the Right to Present a Complete
Defense.

¶13 A defendant has a due process right to “a meaningful
opportunity to present a complete defense.” R.S. v. Thompson, 251 Ariz. 111,
117, ¶ 13 (2021). And while that right does not entail a “general
constitutional right to discovery,” “the due process right to present a
complete defense is vitiated if a defendant is prevented access at the pretrial
discovery stage to the ‘raw materials’ necessary to build his defense,
rendering his trial fundamentally unfair.” Id. at 117, ¶ 16; Draper v. Gentry, 255 Ariz. 417, 422, ¶ 16 (2023). This due process right does have some limits.
For example, when the defense’s requested investigation would require a
defendant to secure a victim’s privileged personal information from a third
party, a court may order its release “only where the defendant establishes
a ‘reasonable possibility’ that the information includes evidence to which
the defendant is entitled as a matter of due process.” Draper, 255 Ariz. at
422, ¶ 15.

¶14 To effectuate the due process right to present a complete
defense, our supreme court has established detailed competency standards
for attorneys appointed in capital cases. See Ariz. R. Crim. P. 6.8. Such
attorneys must be permitted to investigate the State’s case thoroughly. In
fact, they are required to do so. See Wiggins v. Smith, 539 U.S. 510, 522 (2003);

4
 LOPEZ v. STATE
Opinion of the Court

see also 2003 American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases [“ABA
Guidelines”] 10.7(A) (Counsel must “conduct thorough and independent
investigations relating to the issues of both guilt and penalty.”); Ariz. R.
Crim. P. 6.8(a)(5) (Attorneys must be “familiar with and guided by the
performance standards in the [ABA Guidelines])”). Rule 6.8 integrates and
ensures that the ABA Guidelines are not merely advisory but set forth
expectations for defense counsel in capital cases. Cf. State v. Hausner, 230
Ariz. 60, 86, ¶ 125 (2012) (The ABA Guidelines are “guidelines and not
requirements.”); Fitzgerald v. Myers, 243 Ariz. 84, 90, ¶ 15 (2017) (same).

B. The State Has Limited Standing to Object to a Defendant’s
Discovery Request.

¶15 The State opposed Lopez’s motion for release, arguing that
Lopez did not have a substantial need under Rule 15.1(g). In opposing a
defense discovery motion, the State has limited standing to object. As noted
below, courts have recognized that the State has standing to object (1) on
behalf of another state agency if requested, (2) on behalf of the victim if
requested or required by statute, or (3) to assert reasonable conditions
about the evidence.

¶16 The State first argued that a substantial need was required,
citing Fields, 196 Ariz. at 582. But in Fields, the objection was to interference
with the crime lab’s functioning. Here, the ME did not object to Lopez’s
request. And Fields did not involve independent testing. The State, serving
in its prosecutorial capacity, lacked standing to challenge the request
directed to an independent State agency. See Humana Hosp. Desert Valley v.
Superior Ct., 154 Ariz. 396, 403 (App. 1987) (“Generally, a party may not
challenge a discovery order directed to a nonparty witness, the right to
object being reserved solely for the witness subpoenaed.”). As noted, there
is no question that the ME did not request the prosecution to object on its
behalf, as the Office of the Medical Examiner appeared through separate
counsel and did not object.

¶17 The right to oppose motions directed at a nonparty state
agency is reserved for the agency. Cf. Knapp v. Hardy, 111 Ariz. 107, 112
(1974) (“[T]he county attorney has no standing to object as to who will or
will not represent the defendant or be associated as counsel.”); Mota v.
Buchanan, 26 Ariz. App. 246, 249 (1976) (“[T]he prosecution has no right to
interfere with or prevent a defendant’s access to a witness.”). Only if a party
can show a “personal right or privilege” in the subject matter of the order
directed at the non-party can the party contest it. See Humana, 154 Ariz. at

5
 LOPEZ v. STATE
Opinion of the Court

403 (quotation omitted); see also State v. Moody, 208 Ariz. 424, 456, ¶ 129
(2004) (The State may not unreasonably interfere with a defendant’s request
for a scientific test.); MacDonald v. Hyder, 12 Ariz. App. 411, 417 (1970)
(“Unless a party to an action can make claim to some personal right or
privilege in respect to the subject matter of a subpoena duces tecum
directed to a nonparty witness, the party to the action has no right to relief.”
(quoting Shepherd v. Castle, 20 F.R.D. 184 (W.D. Mo. 1957))). The State lacked
standing to object on behalf of the ME.

¶18 The State also opposed the request by claiming the tissue and
organ specimens were protected under the Victim’s Bill of Rights (“VBR”).
Ariz. Const. art. 2, § 2.1; A.R.S. § 13-4401 to -4443. Section 2.1(A)(1) of the
VBR mandates that victims are “[t]o be treated with fairness, respect, and
dignity,” and the prosecution has a role in ensuring that those principles
are respected. But the record does not suggest that allowing the defense
expert access to perform the same types of testing that the medical examiner
has conducted infringes on the victim’s right to be treated fairly and with
respect and dignity.

¶19 While the VBR confers some duties on the State to act on
behalf of victims, “the rule is well established that a prosecutor does not
‘represent’ the victim in a criminal trial; therefore, the victim is not a ‘client’
of the prosecutor.” State ex rel. Romley v. Superior Ct., 181 Ariz. 378, 381-82
(App. 1995). For support of its VBR position, the State cited State v. Connor,
which requires a balancing of the defendant’s constitutional right to a fair
trial with the victim’s right to be free from pretrial discovery sought by the
defendant. 215 Ariz. 553, 558, ¶ 9 (App. 2007). But in Connor, the victim’s
parents objected to the defendant’s request, id. at 557, ¶ 5, and because the
victim in that case had been killed, his parents were considered victims
under the VBR with standing to assert his rights, id. at 557, ¶ 2; Ariz. Const.
art. 2, § 2.1(C) (“‘Victim’ means a person against whom the criminal offense
has been committed or, if the person is killed . . . the . . . parent, child or
other lawful representative, except if the person is in custody for an offense
or is the accused.”). And here, the victim’s body had been examined by the
ME, and the preserved slides, tissue, and organs memorializing the victim’s
suffering were already evidence in a criminal proceeding, whether the
defendant’s expert sought to examine them. There is no further imposition
on the victim during the defense’s examination of them.

¶20 Other than its statutory duties, the State may only object
under the VBR if the victim has standing to object under the VBR and
requests that the State object on his or her behalf. A.R.S. § 13-4437(C). In this
case, the record does not contain such a request.

6
 LOPEZ v. STATE
Opinion of the Court

¶21 More importantly, the State identifies no privileged or
confidential victim information covered by the VBR in this case. Nor could
it. The State’s expert—the ME—used the tissue or slides in reaching his
conclusion. And there is no dispute that the ME removed the organs from
the deceased victim, examined them, determined what tissue samples were
necessary from those organs, and took samples. The defense expert was
entitled to review the ME’s work, just as a State’s expert has a right to
review a noticed defense expert’s conclusion. See State ex rel. Adel v. Hannah, 250 Ariz. 426, 430, ¶ 11 (App. 2020) (“The State is entitled to ‘a meaningful
opportunity to rebut the defendant’s expert testimony.’” (quoting Phillips v.
Araneta, 208 Ariz. 280, 283, ¶ 9 (2004))). Nor is the review of an opposing
party’s expert’s results limited to the tests performed by the opposing
expert. State v. Cota, 229 Ariz. 136, 146, ¶ 37 (2012) (“The State’s examination
need not mirror that of the defense.”). Experts from both sides of a criminal
prosecution are subject to review by an opposing expert and are not limited
by the tests performed by the initial expert.

¶22 While the State lacked standing to object generally to the
investigation conducted by an opposing expert, it had standing to request
“reasonable conditions, including an appropriate stipulation concerning
chain of custody to protect physical evidence or to allow time for the
examination or testing of any items.” Ariz. R. Crim. P. 15.1(e); Moody, 208
Ariz. at 457, ¶ 129. Because the court accepted the State’s objection about
Fields limiting discovery, it never considered the State’s alternate position
on the release of the physical evidence. The State may request reasonable
conditions for the release of the evidence, but we find no support for its
general objection. The superior court must determine the reasonableness of
any requested conditions on remand.

C. Lopez Did Not Waive Her Argument Under Rule 15.1(e) or Due
Process.

¶23 The State argues that Lopez has waived any argument under
Rule 15.1(e) because she failed to raise this argument until her motion for
reconsideration. Generally, an appellate court need not consider arguments
first raised in a motion for reconsideration. See Evans Withycombe, Inc. v. W.
Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006). The reasoning behind
this general rule is that when a party raises a new argument in a motion for
reconsideration, the prevailing party is denied the opportunity to respond
to it. Id.

¶24 But here, the State and court were sufficiently on notice of
Lopez’s argument in her original motion. While the motion cited Rule

7
 LOPEZ v. STATE
Opinion of the Court

15.1(g) and not (e), it stated that Lopez had a constitutional right to present
a complete defense, which included the ability to investigate, evaluate, and
examine the physical evidence collected and preserved by the ME during
the autopsy to address the causation and timing of the victim’s injuries. The
disclosure requirements of Rule 15.1 derive from the Due Process Clauses
found in both the Federal and State Constitutions. State v. Meza, 203 Ariz.
50, 55, ¶ 20 (App. 2002); U.S. Const. amend. XIV, § 1; Ariz. Const. art. 2, § 4.
So while Lopez did not specifically cite Rule 15.1(e) in the original motion,
the State and the superior court were on notice and had an opportunity to
respond to the basic principles underlying Lopez’s request.

D. Lopez Has a Constitutional Right to Examine and Test the Physical
Evidence.

¶25 The superior court considered and denied Lopez’s request
under Fields, but not under the Due Process Clause of the Fourteenth
Amendment of the Federal Constitution. Under the Due Process Clause, a
criminal defendant is entitled to a “meaningful opportunity to present a
complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); State v.
Lehr, 227 Ariz. 140, 150, ¶ 39 (2011); U.S. Const. amend. XIV, § 1. “To
safeguard that right, the [Supreme] Court has developed what might
loosely be called the area of constitutionally guaranteed access to
evidence.” Trombetta, 467 U.S. at 485 (quotation omitted). In Arizona, Rule
15.1 codified and expanded a defendant’s right to evidence disclosure even
beyond this federal constitutional floor. See State v. Jones, 120 Ariz. 556, 560
(1978) (The Due Process Clause requires, as stated in Brady v. Maryland, 373
U.S. 83, 87 (1963), that the prosecution disclose evidence that tends to negate
or mitigate the defendant’s guilt on request. Rule 15.1 makes such
disclosure automatic.). Rule 15.1(e) provides that upon a defendant’s
request, the State “must make [tangible evidence] available to the defendant
for examination, testing, and reproduction,” unless the court orders
otherwise.

¶26 The federal courts have held that an expert may be a
necessary component of a defendant’s complete defense. In Ake v. Oklahoma,
a capital case, the Supreme Court found the Due Process Clause required
the appointment of an expert psychiatrist when the defendant’s sole
defense was insanity. 470 U.S. 68, 72, 86-87 (1985). In Little v. Armontrout,
the court applied Ake to all criminal defendants and expert witnesses. 835
F.2d 1240, 1243-44 (8th Cir. 1987). And in Jones v. Sterling, our supreme court
acknowledged Ake and Little’s applicability to criminal cases in Arizona.
210 Ariz. 308, 314-15, ¶ 27 (2005).

8
 LOPEZ v. STATE
Opinion of the Court

¶27 The analysis of these cases applies with full force in this
context. Lopez asked the court to release the tissue and organs to her
pathology expert for testing and examination. The relief sought in Lopez’s
motion was to allow her expert, Dr. Matshes, to perform an independent
analysis of the tissue and organs. In his declaration, Dr. Matshes stated
there are some cases with “questions about timing and causation that
require additional examination and testing. In those cases, I request and am
sometimes provided with the retained tissues, organs, bones, and other
specimens. In those cases, the additional review and testing frequently
leads to additional information regarding timing and causation.”
Depending on the results of this analysis, the defense plans to use Dr.
Matshes’s analysis to refute the ME’s conclusions about the time of death
and cause of the fatal injuries.

¶28 The reasons for releasing the tissue and organs are central to
Lopez’s defense on the charges. Key issues in the case are how the injuries
were caused, when the fatal injuries were inflicted, and whether Lopez was
present when the injuries occurred. Lopez’s strategy for these issues is to
argue that the State cannot show that she was in the room or present when
Brazell inflicted the injuries on the victim, and to potentially use Dr.
Matshes’s findings to cast doubt on the State’s timeline. Dr. Matshes asserts
that his analysis will be more accurate if he can access the same materials
as the ME, a foundational concept on which expert analysis, disclosure, and
discovery is based. Because this effort is critical to Lopez’s defense, and the
reliability of Dr. Matshes’s analysis depends on access to the tissue and
organs, the release of those materials, which the ME has already captured
and analyzed, is necessary to Lopez’s ability to present a complete defense.
See Ariz. R. Crim. P. 15.1(e).

CONCLUSION

¶29 We accept jurisdiction and grant relief. We vacate the superior
court’s order denying Lopez’s motion for release and order the superior
court to hold proceedings to set reasonable conditions on the release of the
evidence.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

9