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8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
9 IN AND FOR THE COUNTY OF PIMA
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) Superior Court No.


ROY WARDEN, )
)
Petitioner, )
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) City Court No. CR 9139247
v. )
)
HON. THOMAS BERNING, Judge of the )
Tucson City Court )
)
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Respondent )
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and )
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STATE OF ARIZONA, )
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Real Party in Interest. )
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)

11

12 PETITION FOR SPECIAL ACTION


13
14 Roy Warden, Petitioner
15 In Forma Pauperis
16 1015 W. Prince Road
17 #131-182
18 Tucson Arizona 85705
19 roywarden@hotmail.com
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1 TABLE OF CONTENTS
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3 Page
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5 Table of Citations 3
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7 Jurisdictional Statement 3-4
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9 Procedural History 4
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11 Statement of the Issue 4
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13 Statement of the Facts 4-12
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15 Argument 12-15
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17 Conclusion 16-17
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19 Prayer 17-18
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21 Exhibit One 19
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23 Court Order Under Review 20-22
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25 Certificate of Compliance 23
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27 Certificate of Service 24
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1 TABLE OF CITATIONS
2
3 CASE: PAGE
4
1 Calderon-Palomino v. Nichols, 201 Ariz. 419 10
(App) (2001)

2 State v. Cornell, 179 Ariz. 314 (1994) 7, 10, 11

3 Mason v. State of Arizona, 504 F.2d 1345 (1974) 9-13

4 State v Watson, 120 Ariz. 441 7, 10, 11

5 State v Lamar, 144 Ariz. 490 11

6 State v.Peeler, 126 Ariz. 254 11

7 Jones v. Sterling, 210 Ariz. 308 10

8 Arizona Rule of Criminal Procedure 15.9(a) 3, 10, 11, 13

5
6 JURISDICTIONAL STATEMENT
7 1. The foundational issue of this case, in which Respondent Tucson City Court Judge

8 Thomas Berning denied Petitioner’s request for the appointment of an expert

9 witness, as provided by Arizona Rules of Criminal Procedure Rule 15.9(a), by

10 instead applying the different standards set forth for the appointment of counsel for

11 an indigent defendant in Arizona Rules of Criminal Procedure Rule 6.2, presents

12 constitutional issues of great public significance and statewide importance.

13 2. The underlying facts which give rise to the pure issues of law presented in this

14 Petition are not in dispute. The issue concerns a denial of the fundamental right to

15 due process guaranteed by both the constitutions of Arizona and the United States of

16 America.

17

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1 OUTLINE OF PROCEDURAL HISTORY DATE
2
Petitioner files Motion for Appointment of Expert Witness December 20,
in Tucson City Court. 2010
Respondent Judge Berning Denies Petitioner’s Motion for February 14, 2011
Appointment Expert Witness.
Respondent Judge Berning Grants Petitioner’s Motion for March 8, 2011
Stay.
3
4 STATEMENT OF THE ISSUE

5 IS IT A VIOLATION OF DUE PROCESS AND ARIZONA RULES


6 OF CRIMINAL PROCEDURE RULE 15.9(A) FOR THE TRIAL
7 COURT TO DENY THE APPOINTMENT OF AN EXPERT
8 WITNESS TO AN INDIGENT DEFENDANT WHO SETS FORTH
9 “GOOD REASONS” FOR THE APPOINTMENT AND
10 DEMONSTRATES “SUBTANTIAL PREJUDICE” WILL OCCUR
11 IF THE REQUEST IS DENIED?
12
13 STATEMENT OF FACTS

14 3. On or about March 13, 2006 Petitioner’s common law wife, employed as a faux

15 finisher and artist, suffered the devastating loss of vision in her left eye

16 consequent to undiagnosed pneumonia, resulting in the loss of her livelihood.

17 4. Subsequently; Petitioner’s wife’s emotional health declined and she descended

18 into a profound clinical depression.

19 5. On January 29, 2007, Petitioner brought his wife to COPE for treat-ment, which

20 included counseling and the prescription of anti-depressant medications.

21 6. Several months later, COPE doctors commenced what was to become a four year

22 process of changing the type, and strength, of Petitioner’s wife’s anti-depressants,

23 and began prescribing a variety of additional medications, including Clonazepam

24 and Diazepam.

25 7. Over the next year, exacerbated by the continual change in her medications,

26 Petitioner’s wife’s emotional state continued to deteriorate, she secretly began to


1 self-medicate with alcohol, and she began to demonstrate additional, terrifying

2 symptoms, including but not limited to rage, irrational anger, violent outbursts,

3 suicidal ideation and delusions, all of which is well documented in a series of

4 COPE reports.1

5 8. Over the next three years Petitioner’s wife was hospitalized on at least four

6 occasions for bizarre sometimes delusional behavior, irrational rage, violent

7 emotional outburst and attempted suicide.

8 9. Petitioner’s wife’s emotional distress (predictably) resulted in great distress and

9 acrimony within Petitioner’s household.

10 10. On May 24, 2008 the Tucson Police Department (TPD) responded to a report of

11 domestic violence at Petitioner’s household, discovered that Petitioner and his

12 wife had been in conflict, but did not issue a citation.

13 11. Petitioner called 911 the following day to report additional domestic disturbance;

14 TPD responded and Petitioner’s wife was arrested for domestic violence and

15 disorderly conduct.

16 12. On June 24, 2008 Petitioner’s wife was arrested for DUI.

17 13. On June 26, 2008 TPD Petitioner again called 911, TPD responded and arrested

18 Petitioner’s wife for domestic violence.

19 14. Over the next year TPD officers responded on at least three additional occasions

20 to calls regarding domestic violence at Petitioner’s home.

1
Astonishingly, Petitioner’s wife manifested the exact symptoms well documented as
adverse side effects of two of her prescribed medications, Clonazepam and Diazepam.
See Exhibit One
1 15. During one of these occasions, TPD officers, in sum and substance, informed

2 Petitioner: “We’re getting tired of coming out on all these domestic violence calls.

3 You better move out or one of these days we’re going to start arresting you,” to

4 which Petitioner responded to the officer, in sum and substance: “If I leave the

5 house I’m afraid my wife will commit suicide.”

6 16. The officer sympathetically replied, “I guess you are between a rock and a hard

7 place, aren’t you?”

8 17. On July 28, 2009 Petitioner’s wife was taken by ambulance, admitted to

9 University Medical Center and kept under observation for several days for an

10 apparent attempted suicide.

11 18. On August 10, 2009 TPD officers responded to a domestic violence call at

12 Petitioner’s residence. Significantly, TPD Officer Wolgemuth’s Incident Report

13 documented the following:

14 “Christopher (Petitioner’s wife’s eldest son) stated that his mother


15 will frequently drink and then start arguments with Warden. His
16 mother is typically the aggressor and Warden only lays hands on
17 her to control her when she becomes belligerent in an attempt to
18 calm her or defend himself. Christopher stated that his mother had
19 attempted suicide twice recently…”
20
21 19. On December 20, 2009 Petitioner again called 911 regarding his wife’s emotional

22 distress and resultant domestic violence. This time TPD officers arrested

23 Petitioner, resulting in the present case now before the Court.

24 20. On April 16, 2010 Petitioner again called 911 regarding his wife’s emotional

25 behavior. TPD transported her to Saint Mary’s Hospital where she was admitted

26 for overnight observation.


1 21. On July 25, 2010 TPD officers responded to a domestic violence call at

2 Petitioner’s residence. (case #2) TPD officers arrested both Peti-tioner and

3 Petitioner’s wife.

4 22. Subsequently; on December 20, 2010 Respondent Judge Berning, in response to a

5 motion filed by the Tucson City Prosecutor which stated they were “…unlikely

6 to obtain guilty at trial,” dismissed the charges against Petitioner in case #2.

7 23. On December 20, 2010 Petitioner filed his Declaration in Support and Motion for

8 Appointment of an Expert witness, as provided by Ari-zona Rules of Criminal

9 Procedure Rule 15.9(a).

10 24. As provided by State v. Cornell, 179 Ariz. 314 (1994), and State v Watson, 120

11 Ariz. 441 cited herein, Petitioner’s Motion for Appoint-ment of an Expert

12 Medical Witness, and Declaration of Roy Warden in Support, stated the

13 following “good reasons” why he required the appointment of an expert witness:

14 “Regarding (Petitioner’s) assertion of self defense: (Petitioner)


15 reasonably believes he needs the testimony of an expert witness to
16 establish the reasonableness of his decision to remain in the home
17 even though he had been the victim of domestic violence on
18 numerous occasions prior to the incidents which are the subject of
19 the above captioned cases now before the court
20
21 “During the course of (Petitioner’s wife) treatments, (Petitioner)
22 ‘sat in’ on several of her counseling sessions, read various reports,
23 viewed documentary films, re-searched the internet, spoke with
24 psychologists, psychiatrists, social workers. counselors, etc., and
25 otherwise familiarized (him)self with some of the vast amount of
26 medical data available regarding depression, alcohol abuse,
27 adverse reactions to prescription medications, subsequent domestic
28 strife, and the devastating effect such problems have upon society
29 in general and families in particular.
30
31 “In many cases (Petitioner) know(s) it is usual, reason-able and
32 responsible behavior for a person in (his) circumstances to stay in
1 his home and not abandon his family in the moment of their
2 greatest crisis.
3
4 “In order to establish the affirmative defense of self-defense, as
5 provided by Arizona law and set forth in (Petitioner’s) Motion for
6 Appointment of Expert Medical Witness—and to pre-empt the
7 state’s predictable argument, “if Mr. Warden felt endangered by
8 (Petitioner’s wife’s) conduct, why didn’t he simply leave his home
9 prior to December 20, 2009?”— (Petitioner) require(s) a medical
10 expert, psychologist, psychiatrist, or counselor, to read the
11 numerous police reports, interview the family, review the medical
12 literature, and provide the court with testimony that will establish
13 the reasonableness of (his) conduct in remaining in the home.”
14
15 25. On December 21, 2010 Petitioner again called 911 regarding his wife’s bizarre,

16 erratic and explosive emotional behavior. TPD officers arrested Petitioner’s wife

17 and charged her with assault/domestic violence and booked her into the Pima

18 County Jail.

19 26. Subsequently; at Petitioner’s wife’s bail hearing on December 28, 2010, Petitioner

20 made an impassioned plea for his wife’s release, on the basis of her medical

21 condition, so she could return to COPE and seek additional treatment regarding

22 what Petitioner then believed was an undiagnosed underlying emotional

23 pathology and/or continuing adverse reactions to some of the prescribed

24 medications she had been taking.

25 27. Subsequently; Tucson City Court Judge Wendy Million released Peti-tioner’s

26 wife and directed her to return to COPE for a treatment re-evaluation.

27 28. On January 03, 2011, in compliance with the Court’s directions, Petitioner and

28 his wife met with a COPE medical specialist who immediately increased the

29 dosage of Petitioner’s wife anti-depressant (Effexor) to 225 mg/daily and


1 suspended her prescription for Diazepam and Clonazepam, two drugs well known

2 to have serious side effects. (Exhibit 1)

3 29. Subsequently; over the next several months Petitioner’s wife’s mood significantly

4 improved; she no longer expressed delusional behavior, suicidal ideation or

5 violent mood swings.

6 30. On February 14, 2011 Respondent Judge Thomas Berning denied Petitioner’s

7 Motion for the Appointment of an Expert Witness, as provided by Arizona Rules

8 of Criminal Procedure Rule 15.9(a), by stating:

9 “The Defendant is not facing any jail if convicted. The Court


10 believes the standard re appointment of experts is comparable
11 to that of court appointed counsel pursuant to Rule 6.2. See
12 Mason v Arizona, 504 F.2d 1345 (9th Cir. 1345.) (emphasis added)
13
14 “Further the Court believes experts are not necessary in this matter.
15 The Court will consider a request to subpoena the alleged victim’s
16 medical/mental health records and review them in camera subject
17 to the victim’s right to object.”
18
19 31. Respondent Judge Berning’s Order is attached on page 18 of this Petition for

20 Special Action.

21 32. On April 08, 2011, based on COPE reports, a Declaration Petitioner had

22 previously submitted to the Court, and other documents regarding his wife’s

23 medical condition Petitioner had presented to his wife’s appointed counsel, the

24 state agreed to allow Petitioner’s wife to enter into an “informal diversion” on all

25 four of her domestic violence cases, the significant provisions being: (1) she

26 would not be required to change her “not guilty” pleas in any of the four pending

27 cases, (2) she would continue treatment at COPE for the next several months, (3)

28 COPE would provide a letter regarding her improved emotional condition


1 subsequent to the suspension of the prescription of Clonazepam and Diazepam,

2 and (4) all charges would be dismissed.

3 ARGUMENT

4 32. Arizona Rule of Criminal Procedure 15.9(a) provides:

5 “An indigent defendant may apply for the appointment of an


6 investigator and expert witness…to be paid at county expense if
7 the defendant can show that such assistance is reasonably
8 necessary to present a defense adequately at trial or sentencing.”
9 Jones v. Sterling, 210 Ariz. 308 (emphasis added)
10
11 33. Calderon-Palomino v. Nichols, 201 Ariz. 419 (App) (2001)
12 “The facts of each case determine what is ‘reasonably necessary’
13 for the preparation of an indigent’s defense, for the purpose of an
14 indigent defendant’s due process right to State funding for the raw
15 materials integral to the building of an effective defense.”
16 (emphasis added)
17
18 34. State v. Cornell, 179 Ariz. 314, 315, 320, 321 (1994)
19 “Whether it is a violation of due process for trial court to refuse to
20 provide public funds to indigent defendant to aid in his defense
21 depends on whether there were good reasons for the requested
22 expenditure…Indigent defendant requesting trial court to authorize
23 payment should at least advise the court of general lines of inquiry
24 that re- quested material will help to pursue.” (emphasis added)
25
26 35. State v Watson, 120 Ariz. 441
27 “Question of whether denying appointment of expert is violation of
28 due process and statute authorizing appointment of experts in
29 criminal case turns on whether there were good reasons for the
30 appointment.” (emphasis added)
31
32 36. State v Lamar, 144 Ariz. 490
33 “Decision on whether to appoint expert for indigent defendants in
34 non capital cases is within the sound discretion of trial court and
35 will not be overturned on appeal unless defendant clearly
36 establishes substantial prejudice.” (emphasis added)
37
38 37. State v.Peeler, 126 Ariz. 254, 257
39 “The Arizona statute on the appointment of experts for indigent
40 defendants, A.R.S. 13-4013 (B), limits the appointment to capital
1 offenses. Constitutional considerations may mandate the
2 appointment of experts in other cases, however, if the denial
3 would substantially prejudice the defendant” (citing Mason v.
4 State of Arizona, 504 F.2d 1345 (1974) (emphasis added)
5
6 38. Petitioner has made a diligent review of all the above cited cases, including

7 Mason v State of Arizona cited by the trial court in its order denying Petitioner

8 the services of an expert witness, and, regarding the appointment of an expert

9 witness as provided by Arizona Rule of Criminal Procedure 15.9(a), Petitioner

10 finds two sole criteria for proper judicial determination: (1) Petitioner must set

11 forth “good reasons” for the appointment, and (2) Petitioner must demonstrate he

12 will suffer “substantial prejudice” if the Court denies the appointment.

13 39. In the above cited cases, the various defendants were facing consequences arising

14 out of their convictions for capital murder, murder in the second degree, assault

15 and battery, sexual assault, burglary, etc.

16 40. In none of the cases, including the capital murder case, did the re-viewing court

17 consider that severity of sentence was a proper criteria for judicial consideration

18 to resolve the question of whether or not the appellant was entitled to the services

19 of a court appointed expert.

20 41. In none of the cases, including Mason, does the reviewing court grant the trial

21 court the option to ignore the standards for appointment set forth in Arizona Rules

22 of Criminal Procedure Rule 15.9(a), by substituting instead the standards set for in

23 Rule 6.2 for the appointment of counsel for an indigent defendant.

24 42. In all of the cases, including Mason, the Court reversed, or affirmed, depending

25 solely on whether or not appellant had (1) provided “good reasons” for the

26 appointment of an expert witness, and demonstrated the appellant had suffered


1 (or in the instant case would suffer) “substantial prejudice” in the absence of an

2 appointment.

3 43. In the instant case, Petitioner has provided the Court with an extensive factual

4 picture regarding his wife’s profound medical history, her use of prescribed

5 medications which are well known to have serious side effects, and the dismissal

6 of all the charges in her four domestic violence cases on the basis of her response

7 to the side effects.

8 44. Moreover; as clearly set forth in paragraph 24, Petitioner apprised the trial court

9 regarding the extensive medical literature he intends to introduce at trial,

10 including his wife’s medical history and supporting medical documentation

11 regarding his wife’s prescribed use of Clonazepam and Diazepam, two

12 medications known to cause serious side effects including “rage, violent

13 outbursts, delusions…” etc.

14 45. Petitioner, at best a well informed layperson, reasonably anticipates at trial the

15 state will object to his introduction of medical documents and testimony

16 regarding his wife’s response to her use of prescribed medications, etc., on the

17 basis Petitioner is not an expert.

18 46. Moreover; in the event the trial court does allow Petitioner to testify on medical

19 issues, he reasonably anticipates, on the basis of his non-expert status, the trial

20 court will place little value on his testimony regarding medical issues.

21 47. Regarding Petitioner’s request for the appointment of an expert wit-ness as

22 provided by Rule 15.9(a), Petitioner earnestly believes he has set forth “good
1 reasons” for the appointment and has demonstrated he will suffer “substantial

2 prejudice” if his request is denied.

3
4 CONCLUSION

5 In his 2009 address to the Rogers School of Law John Roberts, Chief Justice of

6 the United States Supreme Court, cited two favorite questions former Chief Justice John

7 Rehnquist would pose to lawyers:

8 (1) "'You say that's what Congress meant. What did Congress say?'" (2) "'Which

9 of our cases support that proposition?'"

10 Petitioner has carefully read the Arizona Rules of Criminal Procedure and the

11 opinions of the cases cited herein and respectfully submits: the judges who wrote them

12 wrote clearly, without excess verbiage or ambiguity. They said what they meant and

13 meant what they said.

14 In the instant case, Respondent Judge Berning simply does not have the authority

15 to deny Petitioner’s Request for the Appointment of an Expert Witness as provided by

16 Rule 15.9(a) by misapplying the standards set forth in Rule 6.2.

17 Frankly; Petitioner agrees with Respondent Judge Berning that Mason v State of

18 Arizona does set forth Arizona law regarding the appointment of expert witnesses for

19 indigent defendants; Petitioner simply cannot find any part of the holding or rationale in

20 Mason (or the other cases cited herein) to support Judge Berning’s (implied) contention

21 that severity of possible sentence, or the application of Rule 6.2 for that matter, has any

22 bearing on whether or not due process requires the appointment of an expert witness in

23 the case under review.


1 Moreover; as required by Mason, Jones, Calderon-Palomino, Cornell, Watson,

2 Lamar and Peeler, Petitioner provided the trial court “good reasons” why he required the

3 services of an expert witness, and why the denial of expert testimony to interpret and

4 render an expert opinion on the data contained in the various medical reports, police

5 reports, reports on the dangerous effects of Clonazapam and Diazapam, etc., would

6 “substantially prejudice” his rights to due process and a fair trial.

7 Petitioner is forever mindful of the need for judicial economy in these days of

8 budgetary restraint, furlough court days and diminished resources.

9 However Petitioner earnestly submits: Arizona law is clearly set forth in the

10 cases, and the Rules of Criminal Procedure cited above.

11 The law is the law, and regarding the appointment of an expert wit-ness as

12 provided by Arizona Rule of Criminal Procedure 15.9(a) Petitioner respectfully submits

13 he has met the requisite standard.

14 PRAYER

15 Petitioner herein prays the Court to:

16 A. Reverse the trial court’s order denying Petitioner the appointment of an expert

17 medical witness and remand back to the trial court for further proceedings,

18 B. Provide such additional relief the Court deems proper.

19 RESPECTFULLY SUBMITTED this 25th day of April 2011.


20

21 BY
22 _________________________
23 Roy Warden, Petitioner
24 In Forma Pauperis
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