State v. Hon. adleman/beasley ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STATE OF ARIZONA ex rel. ALLISTER ADEL,
Maricopa County Attorney, Petitioner,
v.
THE HONORABLE JAY R. ADLEMAN, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
SHAVONTE DESHAWN BEASLEY, Real Party in Interest.
No. 1 CA-SA 21-0028
FILED 03-25-2021
Petition for Special Action from the Superior Court in Maricopa County
No. CR2012-008302
The Honorable Jay R. Adleman, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND
DENIED IN PART
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Julie A. Done, John Schneider, Kirsten Valenzuela
Counsel for Petitioner
Michael S. Reeves, Phoenix
Co-Counsel for Real Party in Interest
Daniela De La Torre, Phoenix
Co-Counsel for Real Party in Interest
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.
T H U M M A, Judge:
¶1 The Maricopa County Attorney’s Office (the State) seeks
special action review of a superior court order denying the State’s “Motion
to Determine Non-Privileged Status of Communications” and finding that
text messages between Shavonte Deshawn Beasley and his paralegal and
mitigation specialist are privileged. See Ariz. Rev. Stat. (A.R.S.) § 13-
4062(A)(2). Accepting special action jurisdiction, this court affirms that
portion of the court’s finding that text messages sent after March 4, 2020 at
10:21 a.m. are privileged. For text messages sent before that date and time,
this court remands for further proceedings to resolve the “fact specific”
inquiries of whether the communications were made in confidence and
treated as confidential applying the analysis set forth in Clements v. Bernini,
249 Ariz. 434, 440-41 ¶¶ 9–18 (2020).1
FACTS AND PROCEDURAL HISTORY
¶2 Beasley is awaiting trial on various felony charges, including
first degree murder where the State is seeking the death penalty. Beasley
was arrested in 2012 and has been in custody ever since. Beasley has
asserted that he is not eligible for the death penalty based on intellectual
disability, which the State disputes.
¶3 In late 2019, the Maricopa County Sheriff’s Office (MCSO)
started making Telmate-brand computer tablets available to individuals
held in its jails. These tablets allowed detainees to (1) make phone calls; (2)
participate in video visits and (3) send and receive text messages. Beasley
began using a tablet for text messaging on about February 10, 2020. He
exchanged text messages with his family, a use that is not at issue here. He
1Absent material revisions after the relevant date, statutes and rules cited
refer to the current version unless otherwise indicated.
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also exchanged text messages with mitigation specialist Anna Nelson and
his defense paralegal Nicole Erich, members of his defense team.
¶4 On March 11, 2020, the State issued and served a criminal
subpoena duces tecum on the MCSO seeking Beasley’s text messages from
January 1, 2020 to the present and specifying an April 1, 2020 return date.
The subpoena noted “The State is not seeking any legal correspondence
with this subpoena.” The subpoena, however, did not list the names of
Beasley’s attorneys or other members of his defense team. The State did not
serve Beasley with a copy of the subpoena when it was provided to the
MCSO.
¶5 In response to the subpoena, the MCSO produced to the State
all of Beasley’s text messages, including those with his mitigation specialist
Anna Nelson and his defense paralegal Nicole Erich. Although the precise
date of the MCSO’s production is unclear, the text messages produced to
the State are from February 10, 2020 to April 10, 2020. After analyzing
Beasley’s text messages, the State disclosed them and the subpoena to
Beasley in April and May 2020. The disclosure included hundreds of text
messages with mitigation specialist Nelson and about 20 text messages with
paralegal Erich.
¶6 On May 12, 2020, the State filed a “Motion to Determine Non-
Privileged Status of Communications,” claiming the text messages between
Beasley and Nelson/Erich were not privileged. The State based this claim
on two documents:
• MSCO Rules and Regulations for Inmate
Addendum, Section 32, Effective 12/02/2019,
stating: “All actions on a tablet are subject to
review and/or approval by MCSO Staff and the
tablet vendor. All non-legal phone calls, non-
legal video visits, messages, and photos will be
monitored by staff.”
• Telmate Terms and Conditions, last updated
04/04/2017, which set forth terms of use for a
Telmate tablet. Paragraph 3 (of 30) in this 12-
page “clickwrap” user agreement states: “The
only method of communication that offers the
protection of privileged attorney-client
communication at this time is telephone
communications. Any and all other content or
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STATE v. HON. ADLEMAN/BEASLEY
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information shared, transmitted, or sent using
any messaging or video visitation system or any
other method, may be accessed, reviewed,
searched, used, recorded, copied, viewed,
listened to, displayed, or distributed by Telmate
correctional facility staff, or agents of law
enforcement. You hereby acknowledge your
awareness of, understand, and consent to all
such activity. Attorneys who wish to make
privileged communications with their
respective clients must first inquire and confirm
their identity and client relationship with the
facility staff before utilizing the Telmate
system.” This user agreement also limits
Telmate’s liability; mandates arbitration for any
dispute; requires court disputes to be resolved
in “state and federal courts located in San
Francisco, California” and provides it is
governed by Delaware law.
The State’s motion also quoted some of Beasley’s texts, claiming they
supported its argument that Beasley and his defense team had no
expectation of privacy and knew the texts were being monitored. The
State’s motion did not request an evidentiary hearing and did not ask the
court to undertake a document-by-document review of the text messages.
¶7 Beasley then responded to the State’s motion.2 Beasley’s
response included an email to Beasley’s mitigation specialist Nelson from
MCSO Sergeant Jason House at 10:21 a.m. on March 4, 2020, stating that
“For the purposes of mitigation, [Beasley’s tablet] account has been marked
professional, not recorded and free.”
¶8 The State then replied in further support of its motion, again
citing the MSCO Rules and Regulations for Inmate Addendum and the
Telmate Terms and Conditions. Consistent with the State’s motion, this
reply asked the court to find Beasley’s text “messages are not privileged in
any way.” Consistent with the State’s motion, the reply did not request an
2Before responding, Beasley moved for a more definite statement, seeking
an order that the State disclose the specific text messages it intended to use.
After the State responded, the superior court noted the motion and
response; presumably denied the motion and, in any event, the motion for
a more definite statement is not part of this special action.
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evidentiary hearing and did not ask the court to undertake a document-by-
document review of the text messages.
¶9 The court then heard extended oral argument on the State’s
motion. After taking the matter under advisement, the court issued a nine-
page minute entry denying the State’s motion. The court noted Sergeant
House’s March 4, 2020 acknowledgment that for “the purpose of
mitigation, this account has been marked professional, not recorded, and
free.” (Emphasis added.) In focusing on the “account” reference by
Sergeant House, the court rejected the State’s position, raised at oral
argument, that text messages were not included in Sergeant House’s
directive and would be treated differently than other forms of legal
communication. Along with setting forth the applicable law, the court
found Ethical Rule 4.4 (specifying the appropriate process for an attorney
receiving inadvertent production of documents or electronically stored
information) “instructive” about the State’s obligations upon receipt of the
text messages. Ultimately, the court found Beasley’s “tablet
communications with Anna Nelson and Nicole Erich are privileged and
confidential in accordance with Arizona law. See A.R.S. § 13-4062(2)” and
that Beasley’s conduct did not waive that privilege.
¶10 The State moved to reconsider, claiming various legal and
factual errors and noting the Arizona Supreme Court’s then-new decision
in Clements v. Bernini, 249 Ariz. 434 (2020). Although the State’s original
motion did not request an evidentiary hearing, the State’s motion to
reconsider claimed the court “erred in denying the State’s request for an
evidentiary hearing” and requested an evidentiary hearing on the motion
to reconsider. Although not requested in the State’s original motion, the
State’s motion to reconsider stated the superior court “should make specific
findings as each communication [text message] or group of
communications necessitates,” citing Clements.
¶11 After receiving a response from Beasley, the court denied the
State’s motion to reconsider, including its request for an evidentiary
hearing. In doing so, the court found that Clements validated the original
ruling and that Beasley “has met his burden of demonstrating the
applicability of the attorney-client privilege.” This special action followed.
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DISCUSSION
¶12 Because special action jurisdiction is appropriate to determine
the application of a privilege, see, e.g., Roman Catholic Diocese of Phoenix v.
Superior Court, 204 Ariz. 225, 227 ¶ 2 (App. 2003), this court accepts
jurisdiction.
¶13 The State acknowledges that, to secure relief, it must show the
superior court abused its discretion or exceeded its jurisdiction or legal
authority in denying the State’s motions. Twin City Fire Ins. Co. v. Burke, 204
Ariz. 251, 253 ¶ 10 (2003); Ariz. R.P. Spec. Act. 3. The State argues the court
erred by incorrectly interpreting and applying the law on the attorney-
client privilege.
¶14 The State argues the court erred in denying its motion by
finding all text messages were privileged without undertaking a document-
by-document review and without holding an evidentiary hearing. The
State’s “Motion to Determine Non-Privileged Status of Communications”
did not request such a review or an evidentiary hearing. Although the
State’s motion to reconsider at least arguably did so, the State has not shown
that expanding the relief sought for the first time in a motion to reconsider
is proper or appropriate. Cf. Ariz. R. Crim. P. 16.1(d); Brookover v. Roberts
Enterprises, Inc., 215 Ariz. 52, 57 ¶ 17 n.2 (App. 2007) (noting in dicta that
this court seldom considers new arguments or evidence presented for the
first time to the superior court in a motion to reconsider). To the extent that
the State claims the superior court erred in failing to undertake those
requests, on this record, the State has shown no error.
¶15 Turning to the merits, Arizona’s attorney-client privilege
codified at A.R.S. § 13-4062(A)(2) arises from a criminal defendant’s due
process rights “guaranteed by the Fourteenth Amendment to the United
States Constitution and by article 2, section 4 of the Arizona Constitution,
and from a criminal defendant’s right to the assistance of counsel under the
Sixth Amendment to the United States Constitution and article 2, section 24
of the Arizona Constitution.” Clements, 249 Ariz. at 439 ¶ 7 (citations
omitted). When a privilege is disputed, the proponent must make a prima
facie showing that the privilege applies. Id. at ¶ 8. That fact-specific inquiry
looks at whether “1) there is an attorney-client relationship, 2) the
communication was made to secure or provide legal advice, 3) the
communication was made in confidence, and 4) the communication was
treated as confidential.” Id. at ¶ 9.
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STATE v. HON. ADLEMAN/BEASLEY
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¶16 The first Clements element is undisputed and the State, by
failing to request a document-specific review in its original motion, failed
to properly join the second element. “The third and fourth elements of the
privilege reflect that only communications made in confidence and treated
as confidential are protected.” Clements, 249 Ariz. at 440 ¶ 11. As applied,
this confidentiality determination turns on when the text messages were
sent.
¶17 As the superior court noted, MCSO Sergeant House at 10:21
a.m. on March 4, 2020 wrote that “For the purposes of mitigation,
[Beasley’s] account has been marked professional, not recorded and free.”
This representation by Beasley’s jailer provided the assurances of
confidentiality necessary to comply with the third and fourth elements in
Clements. Although the State argues the superior court should have
construed Sergeant House’s email differently, it has shown no error by that
court in reaching this conclusion. As a result, on this record, text messages
sent on or after March 4, 2020 at 10:21 a.m. were sent following assurances
of confidentiality by Beasley’s jailors, meaning the third and fourth
Clements elements have been satisfied.
¶18 By contrast, for text messages that predate 10:21 a.m. on
March 4, 2020, there were no such assurances of confidentiality. And the
MCSO Rules and Regulations for Inmate Addendum and the Telmate
Terms and Conditions could be read in various ways, including as
providing that, in fact, the assurances were to the contrary. Thus, on the
record provided, that portion of the superior court’s order finding text
messages sent before 10:21 a.m. on March 4, 2020 were privileged is
vacated. As a result, additional proceedings before the superior court are
necessary to determine whether text messages sent before 10:21 a.m. on
March 4, 2020 are privileged.
¶19 This court leaves to the superior court the appropriate
procedure to address the substantive issue of whether elements 3 and 4 of
the Clements analysis have been met as to the pre-10:23 a.m. on March 4,
2020 text messages. See Clements, 249 Ariz. at 441-42 ¶¶ 13-18 (“declin[ing]
to adopt a bright-line approach,” instead identifying factors for a trial court
to consider in addressing the issue).
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STATE v. HON. ADLEMAN/BEASLEY
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CONCLUSION
¶20 Accepting special action jurisdiction, this Court denies relief
for that portion of the superior court’s order finding the text messages sent
on or after March 4, 2020 at 10:21 a.m. are privileged. For text messages that
precede that date and time, the matter is remanded to the superior court for
further proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: HB
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