Free Exhibit List - District Court of Arizona - Arizona

EXHIBIT 7
Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 1 of 63

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Richard Farrall #148179 Arizona State Prison P.O. Box 3200 Florence, AZ 85232 Petitioner/In Pro per
IN TH

:»D 2-037? FILED
NOV - ^ 2002
NOEL CLERKJM _,

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,, DIVISION r OOURT OF APE=*EALS STATE OF AF=M5ONA

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OF THE STATE OF ARIZONA STATE OF ARIZONA, Respondent, VS. RICHARD FARRALL, Supreme Court No: Petitioner. PETITION FOR REVIEW Court of Appeals No: 1 CA-CR 01-0885PR Maricopa County Superior Court No: CR 98-013810

COMES NOW Petitioner, Richard Farrall, in propria persona, and respectfully requests this Supreme Court to hear his Petition for Review of the Court of Appeals denial of review, and the Macicopa County Superior Court's summarily dismissing Petitioner's Rule 32 Petition. Petitioner submits the following Memorandum of Points and Authorities: RESPECTFULLY SUBMITTED this XB^ day of October, 2002.

V

Richard Farrall Petitioner/Pro per

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ISSUES DECIDED BY THE COURT OF APPEALS 1. Defendant was coerced and intimidated into accepting his plea agreement, and therefore the plea was not entered into knowingly and willingly by Defendant. 2. The Constitutional right to representation by a competent lawyer at every critical sLage of the proceedings was denied. 8. Use by the State of purjured testimony which denied Defendant his Constitutional rights. 4. Defendant's rights against self-incrimination were unconstitutionally violated. 5. The plea agreement is an illegal and void document having been changed after Defendant signed it. 6. The State suppressed evidence that would have acquitted Defendant, thus violating Defendant's Constitutional rights. 7. Trial Court improperly refused to resolve withdrawal of guilty plea which was requested shortly after Defendant signed the plea agreement.

FACTS MATERIAL TO A CONSIDERATION FOR REVIEW 1. Defendant was charged by single 13 count indictment alleging various sexual offences involving Defendant's minor daughters on various dates between November, 1994 and September 1998. 2. Defendant pled not guilty on September 28, 1998 and requested jury trial in this matter. 3. Defendant was represented by six different attorneys, one at a time, after each being subsequently withdrawn, from between 9-28-98 to 8-26-99, an eleven month period. Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 3 of 63 -2-

4. One of the cpmplainants, Durina T.L. Farrall, attempted on numerous occasions to recant her allegations, which brought about the criminal charges: (See: Exhibit "A" & "B") 5. Mr. Mark Kennedy, counsel for Defendant, threatened, coerced and intimidated Defendant into accepting a plea agreement. (See: Exhibit "C") 6. Substantial changes were made after the plea was signed which Defendant was unaware of. (See: Exhibit "D") 7. Immediately after plea was accepted. Defendant rteguested to withdraw from plea, pursuant to Rule 17.5, Ariz.R.Crim.P. 8. On September 24, 1999, Defendant was denied his Motion to Withdraw. 9. Defendant was sentenced on November 23, 1999, to lifetime probation on Count 10, and 25 years in prison on Count 7. 10. Arizona Department of Corrections did away with all law libraries from all prisons. Therefore, Defendant is without the ability to research and properly supplement his appeal.

REASONS WHY PETITION SHOULD BE GRANTED CONFLICTING DECISIONS HAVE BEEN MADE BY THE COURT OF APPEALS .The allegations against Defendant, which landed him in prison for 25 years, were based solely on the testimony of Defendant's daughter and step-daughter. There was never any physical evidence produced, retrieved, or presented. There was not one corroborating witness to the allegations. The only basis for the State's case is the credibility of the complainants. Case 2:04-cv-00260-EHC-BPV Document 62-4 -3Filed 09/19/2008 Page 4 of 63

On October 27, 1998, complainants arrived at the prosecutor's office and attempted to recant their allegations against their father, the Defendant. The prosecutor sent the two young women away in tears, having been threatened with imprisonment for purgury. Again, on June 30, 1999, complainants attempted to recant their allegations by coming to the court house. At that time the prosecutor again threatened them with imprisonment. (See: Exhibit "A" & "B") A case directly on point to the argument presented herein is. State V. Fritz, 157 Ariz 139, 755 P2d 444 (Ct App 1988). The Court stated in Fritz that if the sole basis for the strength of the State's case is the credibility of the victim, and the Defendant's plea is based upon the supposition that the victim will be believed, then it appears in the interest of "manifest justice" that when the victim's credibility is called into question by a recantation, the triil court does not abuse its discretion by allowing a plea to be withdrawn in order that the victim's credibility be tested in the crucible of trial. The Fritx case needs to be applied to Defendant's case. It is exactly the same thing. Complainants have recanted. Defendant requested to withdraw from the plea, and the judge denied withdrawal. This Supreme Court needs to rule on the conflicting decisions which have been made by the Court of Appeals. This case and Fritz are exactly alike, yet have been ruled in opposing manners. One of the reasons for granting review of Appeals Court decisions by the Supreme Court is to right conflicting decisions by the Court of Appeals. NEWLY DISCOVERED MATERIAL FACTS From the beginning of Deffendant's initial Rule 32 proceedings. Defendant has requested certain Court transcripts that prove his allegations. The Trial Court denied this request. After persistent requests Case 2:04-cv-00260-EHC-BPV Document 62-4 -4Filed 09/19/2008 Page 5 of 63

by Defendant for these records, and a request with the Court of Appeals, Defendant was finally given the requested transcripts. As has been stated, these transcripts prove Defendant's allegations he has made to the Courts. It proves the lack of competence of attorney Mark Kennedy during both the Settlement Conference of August 26, 1999, and during the Change of PLea/Motion to Withdraw From Plea hearing on September 24, 1999. There is no definition of the word "advocate" that could be applied to Mark Kennedy other than "incompetent." Not only did Defendant have to argue his own motion to Withdraw from his plea agreement, but Mr. Kennedy chose to remain mute, only speaking when he needed to defend himself. Furthermore, Mr. Kennedy did not present any arguments, in the Settlement Conference, to show why and how the State had such a weak case against Defendant. Judge Reinstein and the prosecutor both painted a bleak picture in this Settlement Conference of the case against the Defendant. Whereas, the facts oE the case · v e e exactly the opposite. -'r The case was and is based on allegations of a witness who had recanted numerous times prior to acceptance of the plea. Judge Reinstein stated that "there is a very strong case for the state." This statement was not supported by any evidence, yet it was given credibility i i the j eyes of Defendant since it was stated by a Superior Court Judge. The purpose of the settlement conference is not to railroad the Defendant into a^ccepting the offered plea bargain. The conference involves both sides, defence and prosecution. Yet, Mr. Kennedy was mentally absent in presenting Defendant's case. Furthermore, Judge Reinstein stated that in recantation cases, "when they change their story, the original story is the true one." Again, this" opinion by the Judge is given credibility by the fact Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 6 of 63 -5-

that the statement was made by a Judge. Mr. Kennedy should have pointed out that many of the recantation cases are in fact true in the recantation . Also, the Judge advised Defendant that if he were to take the stand in his trial, the jury would know about his prior conviction for a theft charge years ago. And if the jury did not know that his prior was for a theft charge, the jury may "think it was a prior child molest, sexual conduct with a minor." This settlement conference was held to intimidate Defendant into accepting the plea offered by the state. This was not a two-sided conference, but a one sided fear-inducing tactic that was completely unfair to a lay person facing some serious charges. I highly doubt that this was the intent of the Courts allowing for the settlement conference to be initiated in the Rules of Criminal Procedure when it was first enacted in 1997, as Rule 17.4(a). The other transcripts Defendant received recorded the Motion to Withdraw from his plea agreement. It is quite clear from this hearing that Defendant did not want any part of the plea agreement. He presented clear grounds for withdrawing from the plea. He did not understand the terms of the plea. He was told a week earlier that the Si^ate had no case and there was no way the case would go to trial. Again, intimidation by persons in authority; the prosecution, the judge,and his supposed advocate, Mr. Kennedy, coerced Defendant into signing when he had no intention ofl doing so. (For the following transcripts, see attached Exhibit "E" & "F")

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CONCLUSION Petitioner has presented a colorable claim for relief on numerous grounds. The enclosed affidavits prove Petitioner's allegations to be true. The attached Court transcripts prove the allegations of ineffectiveness of counsel to be true, as well as the allegations of abuse of discretion by the Superior Court Judge. For the foregoing reasons. Petitioner respectfully requests this Court to grant relief to Petitioner as it sees fit and just.

RESPECTFULLY SUBMITTED this ^ ^ ^ d a y of October)^20p^2::^ 'Richard Farrall Petitioner/ pro per

The original and six copies of the foregoing mailed this ^gZZ^ay of October, 2002, to COURT Of APPEALS STATE OF ARIZONA DIVISION ONE 1501 West Washington Street Phoenix, AZ 85007 One true copy of the foregoing was mailed this ^2^^day of October, 2002, to: MS. COLLEEN FRENCH DEPUTY COUNTY ATTORNEY 2nd Floor 301 West Jefferson Phoeriix, AZ ^RTchard Fafrall Petitioner/Pro per

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EXHIBIT 8
Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 9 of 63

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DIVISION 1 COURT OF APPEALS STATE OF ARIZONA

OCT 1 0 2001
FILED GLBN D. OLARK, OLERK

EXHIBITS A. B. C. D. E. F. G. H. I. J. K. L. AFFIDAVIT OF GARY SECORE AFFIDAVIT OF JOHNNY VAN CAMP AFFIDAVIT OF RICHARD FARRALL, SR. PLEA AGREEMENT SENTENCING TRANSCRIPTS REQUEST FOR DOCUMENTS MINUTE ENTRY, MAY 25, 2001 PlEA AGREEMENT/CHANGE OF PLEA RESPONSE TO MOTION TO QUASH ORDER RE: DISCLOSURE OF RECORDS HEARING DATED SEPTEMBER 24, 199 9 9/27/1999 CONTINUANCE HEARING

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AFFIDAVIT STATE OF ARIZONA COUNTY OF MARICOPA ) ) ) SS.

COMES NOW, Gary Secore/ being ffrsi; duiy sworn upon his oath, deposes and says as follows: 1. I make this affidavit upon my own personal knowledge and belief. 2. I know for a fact that Bobbie-Joe, Durina (tihe complainants, and their mother, lied concerning the aiiegations against Mr. Farrall. 3. As it was common knowledge, Mr. Farrall found out tihat Durina (Mr. Farrall's daughter), was going out that night to see her 26 year old boy friend. Mr. Farrall tiold her that if this were true, Durina would be grounded. Durina's mother told them to call the police to get Mr. Farrall out of tihe house. When the police came, Mr. Farrall's wife t^oid him he would be out in a couple of days, after everytihing was cleared up. That didn't happen and Mr. Farrall was iater charged with the felonies he is now in prison for. 4. On June 30, ''999, myself and Johnny VanCamp, escorted Durina Farrall to the Maricopa County Court House so she could recant; her previous allegations. She told me that she had lied, as we all knew. Durina approached Mr. Mark Kennedy, Mr. Farrall's attorney, and tried to tell him she wished to recant. Mr. Kennedy told her he couldn't talk to her. We then sought; out th^e prosecufior. Thie prosecutor tiold Durina, in front of Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 11 of 63

EXHIBIT "A"

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myseif and Johnny VanCamp, that' if Durlna changed her st;ory, that he would file charges against; her. She vas scared Into leaving the court room.
5. 6.

"We f;hen all' left the court! room. TDHTHER AFFIANT SAYETH NAUGHT.

IDATED THIS o(f

DAY OF A u ^

, 2001.

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Affiant

SUBSCRIBED AND SWORN to before me, a Notiary Public, by
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known to me and otherwise sufficiently identified

to me on the ^ ]

day of A^Qy

,2001.

Notary Public

OFHCIALSEAL

My commission expires:Ab\) ^ 6 cP67\ /

.· GENE HAR'vVOOD NOTARY PUBLIC-ARIZONA MARICOPA COUNTY My Comm. Expires Nov. 30,2001

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AFFIDAVIT )

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EXHIBIT "B"

STATE OF ARIZONA COUNTRY OF MARICOPA

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COMES NOW, Johnny VanCamp, being fi'rst! duly sworn upon hi's oath, deposes and says as foifows: 1. I make this affidavit upon my own personal' knowledge and lieii'ef. 2. I know for a fact; that Bobbie-Joe, Durina and their mother lied concerning the aliega^^ions againsi; Mr. Farrall. 3.IMr. Farrall found out, as it' was common knowledge, that Durina (Mr. Farrali's daughter), was going ou^; that ni'ght ·c see her 26 year old boyfriend. Mr. Farrall told her I^hat fo if thi's was true, Durina would be grounded. The wife and motiher toid i;hem to call the police to get Mr. Farrall OTit of f;he house. When tihe police came, his wife tiold him lie would be out in a couple days and everything would be all right. It wasn't, as Mr. Farrall was later charged ·with the felonies he is now in prison for. 4. On June 30, 1999, myself and Gary Secore, escorted Durina Farrall, the complainant;, t o the Maricopa County Court i so that she could recant her previous allegations. She told me that she had lied, as we all knew. Durina approached Mr. Mark Kennedy, the attorney for Mr. Farrall', and tri'ed t o i tell him she wished to recant her aliegations. Mr. Kennedy told her he couldn't 1;alk to her. We tihen went! to the prosecui:or so Durina could teil she had li'ed. The prosecutior tioid Durina, in front of myself and Gary Secore/ thai if

she changed her s^ory that he would fi'ie charges against Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 13 of 63

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her. 5. 6. FURTHER AFFIANT SAYETH NAUGHT.

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AFFIDAVIT OF JOHNNY YAgTCAMP^ page tvo She was scared I n ' leaving the couri; room. 'to

We then ali iefi. the court room.

DATED THIS Q L DAY OF A Jfi-,2001.

Affiant

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SUBSCRIBED AND SWORN t o before me, a Notary Pubiic, by ' ·^h^J^^M KyjAi^l^ji known to me and otherwise sufficiently identified t o me on the i cQC day of M o t y ,2001,

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OFFICIAL S I A I T

GENE HARWOOD

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EXHIBIT "C" AFFIDAVIT STATE OF ARIZONA COUNTY OF MARICOPA ) ) ) SS.

COMES NOW, Richard Farrafle;, Sr., being first duly sworn upon his oath, deposes and says as foiiows: 1. I make this affidavit upon my ovn personal' knowiedge and beiief. 2. On August; 26, ""ggg, I was present i n the Mari'copa County ' Superi'or Court to give my support ^o my son, Ri'chard Farrali Jr., regarding CR 1998-013510. 3. I entered the court room at' approximately 9:00 a.m*, and left the court room at approximateiy 11:00 a.m. 4. 5. The Honorable Ronald S. Reinstein presided over the hearing. Ms. Cindi S. Nannetti of the Maricopa County Attorney·s Office was present for the State. 6. 7. Mr. Mark W. Kennedy, attorney for Mr. Farrall, was present. At approximately 9:1.5 the Court convened, at which time a settlement conference was conducted, presided by Judge Reinstein. 8. At approximately 9:30 the Court was recessed, at which time Mr. Kennedy initiated a meeting wi't'h Mr. Farrall, Jr., during which I witnessed the following dialogue and actions: Mr. Kennedy: "You have to sign the plea agreement^, Mr. Farralf." Mr. Farrall. Jr.: "But I didn't do anything. I told you I didn't want to plead gui'ltV. I thiought! we were going to t'ri'al." Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 15 of 63

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AFFIDAVIT OF RICHABP FlkRRALL, SS. / page tvo Mr· Kennedy: "You heard what; t!he Judge sai'd, tlhat he'd max

you out and stack all your sentences. You wouldn't be abfe f o add all the time you're gonna ge-l: wfth a smali calculator. : You'd need one this big [hioids oufi his liands four feet wi'de]. You're gonna be found gui'iliy." Mr. Farrall: Begins to cry. "But Durina and Bobbie-Joe

[the compiai'nants] said 1;hey were lying. And what! about! all the ffies you were geti:ing from CPS/ showing thai; BobbieJoe had lied before? That; proves I didn't do not!hing. I don't underst!and any of this." Mr. Kennedy: Grabs t!he plea agreement in his hand, swings

his hand in a wide arcing overhand motion and slams his hand down hard on the t!abie, making a loud echo in t!he court room. Mr. Kennedy brings his swofl'en red face within inches of Mr. Farrali's face, and yells, "SIGN THE DAMN PLEA!!" Mr. Farrall,Jr: Begins to sob, takes the pen Mr. Kennedy

held out to him and said, "I don't want! ^o do t!his. This ain'i; right." He then signed i:he piea agreement!. 9. At approximately 1.0:30, Judge Reinstein reconvened t h !e heari^ng. 10. FURTHER AFFIANT SAYETH NAUGHT. DATED THIS ^ ^ DAY OF /^-^92001.

Affiant s;ErBSCRIBED A D S O N to before me, a Notary P u b l i c , by N WR MA^frJ.nrAll , known t o me and otherwise s u f f i c i e n t l y i d e n t i f i e d o me, on t h e O,f)fU day of px[^i^,2001 OfPlClAL SEAL
X. ij r. -^,4^ u MARK GAUDREAU3 NOTARY PUBLIC-ARRONAS % . « ^ i ^ MARICOPA COUNTY 1

Case 2:04-cv-00260-EHC-BPVNotary Public ^ Filed 09/19/2008 Page 16 of 63 Document 62-4 | ^^^&£^MyComm.ExpM.^I5,2A03, My commission expires: ^,^-^iS*\^(DO\J

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STATE OF AR ' \ )FMARICOPA !
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THE STATE OF ARIZONA
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PLEA AGREEMENT

""""OSptty

RICHARD FARRALL. Defendant. .

The State of Arizona and the Defendant hereby agree to the following disposition of this case: Plea: The Defendant agrees to plead mrifet to: COUNT >d: SEXUAL CONDUCT WITH A MINOR UNDER THE AGE OF 15. A CLASS 7 FELONY ANn nANr;FBni IQ C R I M F AGAINST CHILDREN-1NTHE-FIRST DEGREE, in violation of A.R.S. Sections 13-1401. 13-1405. 13-3821. 31-7S1 1 ^ 701-1^ 702. and 13-801. committed on thR 4 ^ day of SoptombGr, 1000 · ' ' ' '--^^ '~^ This is a nondanaerous. nonrepetitive offense under the criminal code. THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN COURT BY July 2. 1999. Ig^ms: On the following understandings, terms and conditions: The crime carries a presumptive sentence of 20 years; a minimum sentence of 13 years and a maximum sentence of 27 years Probation isjiot available. Restitution of economic loss to the victim and waiver of extradition for probation revocation Dr^edures are required. The maximum fine that can be imposed under A.R.S. §§ 13-801 to 804 is $3150.000 00 plus 60% surcharqe bpecial conditions regarding sentence, parole, or commutation imposed by statute (if any) are 1) The Defendant i..; nm Piinihi^ tor suspension or commutation of sentence, probation, oardon. parole, work furlough or release from confinement on anvnthpr basis until the sentence imposed bv the court has been served. The Defendant will also be sentenced to a terrn of rnmmi mitv" supervision as set forth above. 2^ The sentence imposed in this matter mav. at the discretion of the Court, be concurrent with Other sentences for Molestation of Child or Sexual Abuse offenses involving the same victim. The sentence however, must hf» consecutive to anv sentence imposed on the Defendant at anv time if the offensefs^ involved more than one victim' 3^ The" defendant must, within 10 davs after conviction, register with the Sheriff in accordance with A . R " S . S 13-3821^ 4) The deferidant must submit to Deoxvribonucleic Acid (DNA) testing for law enforcement identification ournoses and pay a fee (up to S500> to the Arizona State Treasurer for the cost of that testing in accordance with A.R.S. S 31-281' 2. The parties stipulate to the following additional terms: (These stipulations are subject to court approval at the time sentencing as set forth m paragraph 7.) ^

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The Defendant shall be sentenced to the Arizona Department of Corrections as to Count>fr' - 3. The following charges are dismissed, or if not yet filed, shall not be brought against the Defendant' All other Counts in the indictment with the exception of Count Z..
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T-his agreement sen/es to amend the compiaint or information, to charge the offense to which the Defendant pleads without the iiling or any additional pleading. However, if the plea is rejected by the court or withdrawn by either party or if the conviction is subsequenty reversed, the ong.p.al charges ang any charges that are dismissed by reason of this plea agreement are automatically reinstated. If the Defendant is charged with a felony, he hereby waives and gives up his rights to a preliminary hearing or other probable cause determination on the charges to which he pleads. The Defendant agrees that this agreement shall not be binding on the State should the Defendant be charged with or commit a crime between the time of this agreement and the time for sentencing in this cause; nor shall this agreerr.ent be binding on the State until the State confirms all representations made by the Defendant and his attorney, to-wit: The Defendant avows he was not on probation, parole, or anv other type of release status in this iurisdiction or any other iurisdiction at the time this crime was committed.. ' If the Defendant fails to appear for sentencing, the court may disregard the stipulated sentence and impose any lawful sentence which IS the same as or exceeds the stipulated sentence in the plea agreement. In the event the court rejects the plea or either the State or he Defendant withdraws the plea, the Defendant hereby waives and gives up his right to a preliminary hearing or other probable cause determination on the original charges. => f /a

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. THc STATE OF ARIZONA, Plaintiff, vs. RICHARD FARRALL, De,fenda,".t. NO. OR 98-13810 PLEA AGREEMENT

Unless this plea is rejected by the court or withdrawn by either partv motions defenses, objections, or requests which he has made or rafsed' against him and imposition of a sentence upon him consistent with'his further waives and gives up the right to appeal.

the Defonriant h^ K or could assert h ^ - ft """^''^H ' " ' ^ ' ' ^ ' " ^ " " ^ " " ^ ^" aareemenf Rv « n f M ° ' ' ° ' ' ' ^ ' ^ " ' ' ^ of judgment agreement. By entering this agreement, the Defendant

The parties hereto fully and completely understand and agree that it is the court's dutv to imn and that any sentence either stipulated to or recommended herein in paraaraoh t^o k^nl^ h ^H ^^T"""^ ' " P " " '^« Defendant, this plea the court concludes that any of the plea agreements p r i v i s S i S , ^ ^ n n t h '^'"^ " ^ ^^^ ' ' ° " ^ - '^ ^^^' accepting probation are inappropriate.nt can reject the^ plea^ l u h e couTdeddes ' ? reiect h r n i ' " ° ' " ^ '^'"^ " " ' '^°"^'"°"^ °' sentencing, it must give both the state ind the Defendant an opportunity t ^ w J h d S from f h p n i " ^ ' " ^ ' ^ ' " ' P ' ° ^ ' ' ' ° " ' '^9"^^'"9 ·agreement is withdrawn, all original charges will automatically b r r e S t e d T h ^ n ^ ^ ^ ^ ^ ^ ^ agreement. In case this plea his right to a probable cause determination on the original charges Defendant in such case waives and gives up

Date

on the terms and conditions set forth herein. Date

^ " ^ °^ '^^ P'^^ ^^ indicated above and Defense Counsel )\/l "il.'v Mark Kennedy L'3,

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I have reviewed this patter and concur that the plea and disposition set forth herein are appropriate a n ^ e in .he interests of justice

Date^ ^ l ^ t > l q ^

Prosecutor

C A A K ^^X^JA.
Cindi Nannetti

A . . .<

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·t, THE STATE OF ARIZONA.

'T^ · SUPERIOR COURT OF THE STATE Q I IN AND FOR THE COUNTY OF MARICC, rt ' )

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NO. CR 98-13810
PLEA AGREEMENT

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RICHARD FARRALL. Defendant. -- ) ) ) )

Depuf'

The State of Arizona and the Defendant hereby agree to the following disposition of this case: Plea: The Defendant agrees to plead no contest to: , _, ^ J _ _L1 V ·, I r-

C O U N T _ £ A S AMENDED: A T T E M P T E D MObCSTATIOM OV A-CWLO. A CLASS 3 FELONY AND DAMCCPOUg Cg ^'^{^I'l'ST C+tttrBRggON iHb .'jfafJOtstEcegGREE. in violation of A.R.S. Sections 13-1401. 13-1001. 13-141Q. 13-S04.91. 13-702. and 13-801. committed on or betweefl-thc Jet dov of Nfivcrnbor 1004 jiiU Llitj ^Llli .l^u iii This is a nondanaerous. nonrepetitive offense under the cdminal coda. THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN COURT BY July 2. 1999. Tejms: On the follov/ing understandings, terms and conditions: The crime carries a presumptive sentence of 10 years; a minimum sentence of 5 years and a maximum sentence of 15 years Probation is available. Restitution of economic loss to the victim and waiver of extradition for probation revocation procedures are required. The maximum fine that can be imposed under A.R.S. §§ 13-801 to 804 is $S150.000 00 plus 57% surcharqe Special conditions regarding sentence, parole, or commutation imposed by statute (if any) are 1) For anv danaerniis mm^ angin^i children in the second degree except child molest and/or sexual abuse involving a single victim, a orison sentence imposed rnMst be consecutive to anv other sentence imposed on the defendant at anv time. Prison sentences imposed for child molest and/nr sexual abuse of a single victim mav. at the discretion of the Court, be concurrent with anv other sentences for child molest and/or sexual abuse involving the same victim, but must be consecutive to anv other sentence imposed on the defendant at anv time including child molest and/or sexual abuse of any other victimfsi. 2^ The Court mav order that the defendant be supervlsad nn probation after release from confinement on such conditions as the Court deems appropriate for anv term UD to the rest of ths defendant's life. 3^ The defendant must, within 10 davs after conviction, reoister with the Sheriff in accordance with A R S S 133821. 4) The defendant must submit to Deoxvribonucleic Add ('DNA) testing for law enforcement identification purposes and pav a fee (up to 3500) to the Arizona State Treasurer for the cost of that testing in accordance with A.R.S. ^ 31-281 2. The parties stipulate to the following additional terms: (These stipulations are subject to court approval at the time sentencinq as set Sfit forth in paragraph 7 \ naranranh 7.) ^ \C The Defendant shall be placed on Lifetime Probation as to Count^ The following charges are dismissed, or if not yet filed, shall not be brought against the Defendant': All other Counts in the indictment with the exception of Count t£f. This agreement serves to amend the compiaint or information, to charge the offense to which the Defendant pleads without the filing of any additional pleading. However, if the plea is rejected by the court or withdrawn by either party, or if the conviction is subsequently reversed, the original charges and any charges that are dismissed by reason of this plea agreement are automatically reinstated. K a ^ If the Defendant is charged with a felony, he hereby waives and gives up his rights to a preliminary hearing or other probable cause determination on the charges to which he pleads. The Defendant agrees that this agreement shall not be binding on the State should the Defendant be charged with or commit a crime between the time of this agreement and the time for sentencing in this cause: nor shall this agreement be binding on the State until the State confirms all representations made by the Defendant and his attorney, to-wit: The Defendant avows he was not on orobation. parole, or anv other tvoe of release status in this jurisdiction or anv other lurisdiction at the time this crime was committed.. " ~ ' If the Defendant fails to appear for sentencing, the court may disregard the stipulated sentence and impose any lawful sentence which IS the same as or exceeds the stipulated sentence in the plea agreement. In the event the court rejects the plea or either the State or the Defendant withdraws the plea, the Defendant hereby waives and gives up his right to a preliminary hearing or other probable cause determination on the original charges. = r /a '^ '"' "T^ ^ -^^·'%pr \^fK^

,3.

Case 2:04-cv-00260-EHC-BPV

Document 62-4

Filed 09/19/2008

Page 19 of 63

',;,THE S TATE OF ARIZONA. Plaintiff, vs. RICHARD FARRALL, Defendant.

. : .

) ) ) ) ) ) ) ) .)

f NO. CR 98-13310 PLEA AGREEMENT

Unless this plea is rejected by the court or withdrawn by either party, the Defendant hereby waives and gives up any and all motions defenses, objections or requests which he has made or raised, or could assert hereafter, to the court's entrJ of iudqmen

S f :a^e^"l;7g°vt°;1hV^trap"p^e°r,.''"^ ^°""^^^"* ^'' '^'^ ''''''"^^' '^ ^^^^^^ *^'^ ^^reement, 1 ° K S
The parties hereto fully and completely understand and agree that it is the court's duty to impose sentence upon the Defendant

this altlTZ

TT"^

' f ^ " ' "T?'""^'°.

° : recommended herein in paragraph two is not binding on the court If after accep'ng

nn£y concludes hat any of the plea agreement's provisions regarding the sentence or the term and condiSons of probation are mappropnate, it can reject the plea. If the court decides to reject the plea agreement provisions r e S n a sentencing. It must give both the state and the Defendant an opportunity to withdraw from the plea a g S e n t n c a s e S ea hisTohtTo a n t h h T " ' ' " ° T ' ' '^'?'' will automatically be reinstated. The Defendant in such case waiJes and g ies' up his right to a probable ranso Hotormin-atmn nn tho r\rn oo r^U'^rr,^^ cause determination on the original charges. niS r a n t to a Dronah P > a " wo up f the court decides to reject the plea agreement provisions regarding sentencing and neither the state nor the Defendant elects 0 withdraw the plea agreement, then any sentence either stipulated to or recommended herein in paragraph 2 is not binding uoon the court, and the court is bound only by the sentencing limits set forth in paragraph 1 and the applicable statutes. This plea agreement in no way affects any forfeiture proceedings pursuant to A.R.S. § 13-4301 etseq § 13-2314 or 5 32 1993 A ?f Q / . - f O^HH'''^^^ *^^ P'c^^ agreement in any way compromise or abrogate any civil actions, including actions pursuant to A.R.S. § 13-2301 et seq. or § 13-4301 et seq., or the provisions of A.R.S. § 13-2314 or A.R.S. § 13-4310 I have read and understand the provisions of pages one and two of this agreement I have discussed the case and mv constitutional rights with my lawyer. I understand that by pleading no contest I will be waiving and giving up my right to a determination of probable cause, to a trial by jury, to confront, cross-examine, compel the attendance of witnesses to present evidence in my behalf, my nght to remain silent, my privilege against self-incrimination, presumption of innocence and riqht to appeal. I agree to enter my plea as indicated above on the terms and conditions set forth herein. I fully understand that if as Dart of this plea agreement, I am granted probation by the court, the terms and conditions thereof are subject to modification at anv time dunng the penod of probation. 1 understand that if I violate any of the written conditions of my probation, my probation mav be terminated and i can be sentenced to any term or terms state above in paragraph one, without iimitation. I have personally and voluntarily placed my initials in each of the above boxes and signed the signature line below to indicate I read and approved all of the previous paragraphs in this agreement, bothJndividually and.as aiotd'binding adp'^ment. :

Date 6 - 7b ~ ^17
o^'nihrtttTn' °^rH r set forth herein. "^^^^^r^ on the terms and conditions
Date -; '"''i'-\

Defendant

i^jjAKAk/D
RICHARDFAJRRALL '·

Aj'}AAAV'J^
' L ^

nSl'L'iiT^^^r*^'^ ^ f j l ! ' l ^ ""^ ""^"^'" '^®'^'' ^""^ ^""^'^^^ ^'"^ °^^'^ constitutional rights and all possible defenses. I believe that the

^^'^^''^ ^^^'^ °^*^^^ - - · ' --
Defense Counsel M [ Mark Kennedy '·; . · -J. "

·- '^^ -^^ °f the plea as indicated above and
^ / ,i

I have reviewed this matter and concur that the plea and disposition set forth j^erein are appropriate and are in the interests of justice.

Date

io p C M R

Prosecutor

| y \ A A O ^ ^ CL'VVVi^-v^'"'fr^,

Case 2:04-cv-00260-EHC-BPV

Document 62-4

Filed 09/19/2008

Page 20 of 63

c
EXHIBIT "E" IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA --oOo--

STATE OF ARIZONA, Plaintiff,

vs.
RICHARD FARRALL, Defendant.

CR 98-13810

Phoenix, Arizona November 23, 1999

BEFORE:

The Honorable FRANK T. GALATI, Judge

REPORTER'S TRANSCRIPT OF PROCEEDINGS SENTENCING

PREPARED FOR: POST-CONVICTION RELIEF (COPY)
Case 2:04-cv-00260-EHC-BPV Document 62-4

Laura A. Ashbrook Certified Court Reporter No. 50360
Filed 09/19/2008 Page 21 of 63

c
1 A P P E A R A N C E S 2 3 4 5 MICHAEL BAKER, Deputy County Attorney 6 7 8 9 10 MARK W. KENNEDY, Court Appointed Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 22 of 63

For the Plaintiff:

For the Defendant:

c
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Richard Farrall. MR. BAKER: Michael Baker appearing for Cindy Number one is 98-13810, state versus P R O C E E D I N G S .

Nannetti for the state, your Honor. MR. KENNEDY: Mark Kennedy for Mr. Farrall. We're

ready to proceed with sentencing. THE COURT: here. THE COURT: We're ready to proceed? As far as I know. I understand that Mr. Farrall, why don't you come down

MR. KENNEDY:

Mr. Farrall may have some motion or motions that he wishes to address the Court with on his own, but that's nothing that I intend to bring up at this point. THE COURT: Mr. Farrall? THE DEFENDANT: If I may take this little thing here, Did you have something you wanted to say,

you know, your Honor, you know, I've been in this Court for -- THE COURT: Tell me what it is you want to do here. If you've got some

It's not time to make a speech yet. motion or something, make it. THE DEFENDANT:

I have tried to get my attorney to He coerced me.
Page 23 of 63

make a motion to pull this plea bargain.
Document 62-4 Filed 09/19/2008

Case 2:04-cv-00260-EHC-BPV

r
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: front of Judge Reinstein? THE DEFENDANT: No.

c
Have you not already litigated this in There was not a motion made.

Mr. Kennedy took me before Judge Reinstein and Mr. Kennedy never helped me do anything in regards to trying to put this together. do nothing. THE COURT: I have got a September 24th, 1999 minute He told me I was on my own. He would not

entry from Judge Reinstein denying defendant's motion to. withdraw from the plea agreement. THE DEFENDANT: file a motion. THE COURT: Well, you must have told Judge Reinstein I never got a motion. He wouldn't

why it was that you wanted to withdraw? THE DEFENDANT: Yes, I did and Mr. Reinstein wouldn't

listen to what I had to say. THE COURT: motion is denied. Your motion has been ruled on, so the Do you have any other grounds that you

didn't raise at that time? THE DEFENDANT: THE COURT: Yeah.

What's happened since then? Since?

THE DEFENDANT: THE COURT:

Yeah. Well, actually, the reason I signed is that what you're talking about?
Filed 09/19/2008 Page 24 of 63

THE DEFENDANT:

the plea bargain was --

Case 2:04-cv-00260-EHC-BPV

Document 62-4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT:

No.

Judge Reinstein denied a motion to

withdraw from the plea agreement on September 24th, 1999. What has happened since September 24th, 1999 that gives you a ground to withdraw from the plea agreement? THE DEFENDANT: with. I didn't understand the plea to begin They took I

I was talked into taking the plea.

advantage of me while I was crying and incoherent. didn't understand none of it. to explain none of this to me.

He has never took any time He's not even came to talk He's done nothing.

to me in regards to this sentencing. THE COURT:

Your motion to withdraw from the plea Let's proceed. Do you have

agreement is denied again.

any mitigation to present, Mr. Kennedy? MR. KENNEDY: THE COURT: I do not, judge. Is there anything you want to say in

response to what Mr. Farrall just said? MR. KENNEDY: Well, Mr. Farrall has been provided Without breaching

with a copy of the presentence report.

any work product privilege, I have made an effort to acquire evidence that would be in mitigation in the form of a risk assessment. I do not have any such evidence well, it doesn't My investigator

available at this time because of -- matter why.

I was in trial last week.

went to visit with Mr. Farrall about the sentencing because I couldn't do it.
Document 62-4

I think I can simply say that
Filed 09/19/2008 Page 25 of 63

Case 2:04-cv-00260-EHC-BPV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that meeting was unproductive. nothing further to say.

At this point, I have

We have been through this motion

to withdraw from the plea and at this point, it's a moot issue. THE COURT: All right. For you.

THE DEFENDANT: THE COURT: Farrall? THE DEFENDANT: THE COURT: 4th, 1961? THE DEFENDANT: THE COURT:

Mr. Farrall, your true name is Richard

Yes, sir.

And your date of birth is February the

Yes, sir.

And based upon the previous plea that was

entered in this Court in front of Judge Reinstein, it is the judgment of the Court that you are guilty in Count 7 of sexual conduct with a minor under the age of 15 years of -- under the age of 15, a Class 2 non-dangerous,

non-repetitive felony, but it is a dangerous crime against children in the first degree and Count 10, attempted sexual conduct with a minor over the age of 15, a Class 3 non-dangerous, non-repetitive felony. That's a dangerous

crime against children in the second degree, committed on August 17th of 1999 and September 15th of 1998 respectively. I have read the presentence report.
Document 62-4 Filed 09/19/2008

I have

Case 2:04-cv-00260-EHC-BPV

Page 26 of 63

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

considered everything in it.

I have letters that were I

written on your behalf that I have read and considered. show you've now spent 432 days in custody. MR. KENNEDY: THE COURT: I have 432 exactly.

Mr. Kennedy, anything you want to say on

behalf of Mr. Farrall? MR. KENNEDY: Judge, I think the recommendation of Mr. Farrall's

the presentence report is appropriate. criminal history is old.

It's not related to any conduct

of this sort, and I think that the recommendation for presumptive terms is appropriate. THE COURT: Mr. Farrall, anything you want to say? Well, I don't know. I don't know

THE DEFENDANT:

what's the recommendation. THE COURT: Mr. Kennedy said he gave you the

presentence report. THE DEFENDANT: He brought me something from a He brought me a paper from a

psychologist, a Brian Yee.

psychologist from Maricopa County, a man named Brian Yee, a report that he made. MR. KENNEDY: Judge, the last time we were in court

and I had the document in my file, I gave Mr. Farrall away from other people on the chain a copy of the presentence report. It had a blank sheet of paper over the front of He read it

it so that no one else could see what it was.
Document 62-4 Filed 09/19/2008

Case 2:04-cv-00260-EHC-BPV

Page 27 of 63

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20. 21 22 23 24 25

and reviewed it. THE COURT: Thank you. Anything more you want to

say, Mr. Farrall? THE DEFENDANT: I don't agree with all this but I You know, I have done I was coerced I mean, I

don't have a choice I suppose.

things wrong but not what I'm charged for. into taking the plea bargain. signed it under duress.

If, you know --

That's all I can tell you.

Supposedly, Mr. Kennedy was supposed to be trying to get me the very least of whatever it was that was on the plea bargains through all this. don't know what to call it -- That was part of his -- I

soothing me to try to get me

to calm down, to try to get me to so-called not be moody, but, I mean, if he came to supposedly help me, it hasn't happened. You know, if he came to supposedly see that

justice was done, you know, I wonder how come that they made changes on the plea bargain after I signed it and then got me, while I was crying and everything, to come back up here in front of Mr. Reinstein to accept the plea bargain that I never understood, that was never explained to me to begin with. I don't understand it. I'm not

stupid but I just don't understand the court proceedings and what's going on. THE COURT: The idea that Judge Reinstein would take

a plea from you that he didn't fully explain to you before Document 62-4 Filed 09/19/2008 Page 28 of 63

Case 2:04-cv-00260-EHC-BPV

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you entered into it boggles my mind. THE DEFENDANT: me. Mr. Reinstein didn't explain it to

He read it off and I was asked do you understand this

or that. THE COURT: This was the product of a settlement

conference, wasn't it? MR. KENNEDY: conference. THE COURT: With Judge Reinstein? That went on for a long time and, yes, This was a protracted settlement

MR. KENNEDY:

there was a little glitch in the paperwork which we corrected, re-explained it to Mr. Farrall. I can't think

of a case where more time was spent with someone explaining, reading that. THE COURT: Again, what happened there. Judge

Reinstein had the opportunity to allow Mr. Farrall to withdraw after it was presented to him in September? MR. KENNEDY: THE COURT: Right.

And he declined to do that and, you know,

I wasn't there, but certainly relying on the judgment of the associate presiding judge of this Court is something I'm going to do. I have complete faith in his ability to

be able to tell when somebody has knowingly, intelligently and voluntarily entered into a plea and when someone hasn't. Anything more you want to say, Mr. Farrall?
Document 62-4 Filed 09/19/2008 Page 29 of 63

Case 2:04-cv-00260-EHC-BPV

c
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 say. THE DEFENDANT: Just that -- I don't know what to I don't think what's I don't know what to say.

10

going on is right, not at all. THE COURT: MR. BAKER: Mr. Baker, anything you want to say? Yes, your Honor. Miss Nannetti has I don't

reviewed the presentence report in this matter.

believe she gave a written recommendation when the plea was submitted along with the APO packet, but I think it's her practice to see what the presentence investigation revealed before she makes a recommendation. Miss Nannetti is recommending a maximum term in the Department of Corrections for the count in which the defendant is required to go to the Department of Corrections. Her rational for this is as follows: She

notes the defendant is admitting part of the sexual behavior in which he was involved but minimizing his extent, his behavior and his reasons for doing it. She

would note that the defendant participated in various behaviors which lead her to the conclusion that he is more dangerous or that he is a danger to society, and most of those are contained on page two. Miss Nannetti would note there are two victims involved in this particular matter, and while she has not pointed out the defendant's criminal history, I'll leave that to -- I believe it is fairly old from my quick review
Document 62-4 Filed 09/19/2008 Page 30 of 63

Case 2:04-cv-00260-EHC-BPV

11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the matter. in addition, Ms. Nannetti notes the defendant is still attempting to contact the victims, still attempting to interfere with the prosecution in this matter. Miss Nannetti points out the defendant has both The Again,

hands-on and hands--off sexually deviant behavior. conclusion is the defendant is a sexual deviant.

he continues to minimize his conduct and he is only partially accepting responsibility in this. For these

reasons, she's requesting an aggravated maximum term in the Department of Corrections for that particular count. THE COURT: you want to say? MR. KENNEDY: proceed. THE COURT: considered here. don't find any. here, none. On the aggravating side, I see these things and I agree the prior felony convictions are old. -- Mr. Farrall, these are the things I've On the mitigating side, to be blunt, I I don't see any mitigation whatsoever No, judge. There is no legal cause to Thank you. Mr. Kennedy, anything more

They're

on the records aggravating but minimally aggravating because of the age, but two prior felony convictions, two misdeameanor convictions, those are aggravating. Sending

letters at this stage to the victims is aggravating. Document 62-4 Filed 09/19/2008 Page 31 of 63

Case 2:04-cv-00260-EHC-BPV

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Denying doing anything at all in this case. You

acknowledged showing pornography to your daughter but saying it was for sexual education purposes. Everything

else you basically deny, all the other incidents, when both of these girls, both of them, detailed over a long period of time sexual activity with them. One of these To me,

girls is your stepdaughter; one is your daughter. that's incredibly aggravating.

The very people that are

on earth for you to protect, you are victimizing for your own sexual gratification is among the most aggravating things that one can do as far as I am concerned. The

length of time that this happened to these girls is abominable, about four years of abuse for each of them. THE DEFENDANT: THE COURT: That's untrue.

About four years for each of them; one of

them from age 11 to 16, the other almost four years. All those things are aggravating. apparently are -- The fact that you The presentence

well, let me see.

report justifies a conclusion that you're a sexual deviant, that you are a danger to the community. think that the aggravated sentence is appropriate. It's the judgment of the Court you be sentenced to an aggravated term of 25 years, that you get credit for 432 days of presentence incarceration. It's ordered I do

waiving the term of community supervision on Count 10.
Document 62-4 Filed 09/19/2008 Page 32 of 63

Case 2:04-cv-00260-EHC-BPV

13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lifetime probation is consecutive to Count 7, a 25-year aggravated sentence, under the standard terms and conditions for probation, including term 11, community punishment program. no-contact provision. and conditions. There's a probation fee. There is a

There are the sexual offender terms Go over

All of these are in writing.

them with Mr. Kennedy.

When you understand them, sign the

original and return it to the Court. You will be given a notice of your rights to file a petition for post-conviction relief. are in writing. Those rights They

Go over those with Mr. Kennedy.

tell you you've got the right to file such a petition. You have to do it within 90 days of today's date. If you

fail to file within that period of time, you lose your right to do so. You have a right to have the records and

transcripts of the proceedings prepared free of charge if you can't afford those and have a lawyer to represent you during those proceedings. writing. Again, all those rights are in

When you understand them, sign the original and All of other counts will be

return it to the Court. dismissed.

I don't think there was any restitution

requested in this matter, correct? MR. KENNEDY: MR. BAKER: no, your Honor. Document 62-4 Filed 09/19/2008 Page 33 of 63 I am not familiar with any. I think the witness advocate indicates

Case 2:04-cv-00260-EHC-BPV

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 34 of 63

THE COURT:

Anything more? Thank you.

MR. KENNEDY: THE COURT:

Stand at recess.

(Whereupon, the proceedings in the above-entitled matter were concluded.)

r
EXHIBIT 1 2 3 4 5 6 7 8 STATE OF ARIZONA 9 10 11 12 13 14 15 16 17 Plaintiff,
V.

r

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

COUNTY OVlhiAMJlA__
^No.CR )

y /S9>/0

) REQUEST FOR PREPARATION OF ) POST-CONVICTION RELIEF )RECORD )

(INMATE'S NAME\/fecy/^^
Defendant

f^,e^/^LL

The Defendant has filed a Notice of Post-Conviction Relief in the above-entitled cause me

18 requests, pursuant to Rule 32.4(d), Arizona Rules of Criminal Procedure, the preparation of the 19 following portions of the record and transcripts for review. 20 21 22 23 24 25 26 27 TRANSCRIPTS Filed 09/19/2008 Page 35 of 63 The Defendant has not previously received the documents requested. SUPERIOR COURT RECORD X^ )C }/^__ instruments minute entries pre-sentence report

/V__^. criminal histor\' Rule 11 reports

28 Probation Revocation; Case 2:04-cv-00260-EHC-BPV Document 62-4

c
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00260-EHC-BPV Document 62-4 /\ Deletions: Trial: violation hearing

c
admission of violation

pre-disposition hearing (if any) disposition hearing ' Change of Plea: ^V^ change of plea --JL^ pre-sentence hearing (if any) _ _ Z ^ sentencing

all pre-trial motions (except deletions) voir dire opening arguments closing arguments . all trial proceedings (from calling of the case to the verdict) trial or admission of prior conviction(s) all post-trial motions (except deletions) pre-sentence hearing (if any) sentencing

motions to continue by Defendant hearings dealing with release conditions" pre-trial conferences arraigrunents

/ ^ mistried cases stipulated Rule 11 hearings

OTf/e^'

X ^6p^(rrF^LLy

^EQa&^T- A^f ^^^

^'-'~

^^"^

Filed 09/19/2008

Page 36 of 63

^EAy'T

To

dEf^£/OdAA^~^

c
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Copy of the foregoing mailed this day of ,
, to:

c
is/# Dated this , dav of

efendant or Attorney for Defendant

Source of Form: Form 26, Arizona Rules of Criminal Procedure,

Case 2:04-cv-00260-EHC-BPV

Document 62-4

Filed 09/19/2008

Page 37 of 63

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY 05/25/2001 HON. FRANK T. GALATI CR 1998-013810 FILED: STATE OF ARIZONA
V.

*** FILED *** 05/30/2001

'

CLERK OF THE COURT FORM ROOOA C. Holt Deputy

GERALD R GRANT

RICHARD FARRALL

RICHARD FARRALL #1481779, ADOC P 0 BOX 3200 FLORENCE AZ 85232 APPEALS-PCR-CCC .VICTIM WITNESS DIV-CA-CCC

MINUTE ENTRY On May 1, 2001, the court because Mr. Farrall failed to conviction relief by April 23, a copy of a petition that was its untimely filing, the Accordingly, dismissed this Rule 32 proceeding file a pro per petition for post2001. The court has now received filed on April 30, 2001. Despite court accepts the petition.

IT IS ORDERED vacating' the court's minute entry of May 1, 2001, and, IT IS FURTHER ORDERED reinstating this Rule 32 proceeding. IT IS FURTHER ORDERED that the State file either a response or motion to dismiss by no later than July 15, 2001. A copy of the petition will be forwarded to the County Attorney.

Docket Code 197 Case 2:04-cv-00260-EHC-BPV EXHIBIT "G" Document 62-4 Filed 09/19/2008

Page 1 Page 38 of 63

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EXHIBIT "H*
08/26/1999

c
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY
(

-f- ytfMSmU&s'SvSU^iO^

CLERK OF THE COURT FORM R105B K. Branding Deputy . ,

HON. RONALD S. REINSTEIN CR 1998-013810

FILED:
STATE OF/ARIZONA
V.

SEP 0 1 1999

CINDI S NANNETTI

RICHARD/FARRALL

MARK W KENNEDY APO-CCC JUDGE GALATI MCSO-DIS VICTIM WITNESS DIVISION-CA-CCC

PLEA AGREEMENT/CHANGE OF PLEA 9:17 a.m. State is represented^by above-named counsel. Defendant is present with above-named counsel. Court Reporter, Karen Jackson, is present. The court conducts a settlement conference. 9:34 a.m. Court stands at recess. reconvenes with defendant and

10:23 a.m. Court respective counsel present.

Court Reporter, Karen Jackson, is present. Executed Plea Agreement is presented to the Court and reviewed with Defendant. Defendant states true name is as noted in the agreement. 10:27 a.m. Court stands at recess. reconvenes with defendant and

10:41 a.m. Court respective counsel present.
Case 2:04-cv-00260-EHC-BPV Docket Number 105

Document 62-4

Filed 09/19/2008

Page 39 of 63

Page

c
08/2 6/1999 HON. RONALD S. REINSTEIN

c
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CLERK OF THE COURT FORM R105B ' T, T,^, , . J. oiranaing s. Deputy

CR 1998-013810 Court Reporter, Karen Jackson, is present. r,^ · , , >possible ^ ^ 1 ^°'^^^ advises the Defendant as to the ranae of sentences for the offense, including whether o? not Th4

iSc?Sdtr '^ ^^?\1^^1^ ^"^ ^^y °ther conditions iliposed by statute
including special requirements for probation, if available

Arizona Court of Appeals review the proceedings by way of a direct

S r ^ ; · ^"""l "^^ ^^^^ ''^^^^'' °"ly ^y filing ^ petition for PoSt !-

?uSSeSranf ^L\'4n^Sr^' " "' " ^"' ^° ^^ °^ ^^^ °^ ^^ '^^ ^^ ^^
to forego t^cirti^uk^o^nal^Tl^^httn^^^^^^^^ ^^^^^
tL^'resuf? o^^ r ^ ^ knowingly, intelligently and voluntarily, not
the result of force, threats or promises; that there is a factual

llltt / ^^ plea of No Contest; that due consideration of the lirl%.° ?^- P^f ^t^ ^"^ ^^^t interest of the public in the

llll Zlt^?^'-'"Ti^^i°\°^ i^^"^^^^ requires the acceptance of the othS; p\\\\tTe^3 avantbfe.""'^"^'^"'^ ""^ ^^^^^ °^ ^-^--^. -^

following crJme'Jlfr""" ^ ' " ^ ^'^^ °" ^° ^°^^^^^ ^° ^ ""^ ^
OFFENSE: Count 7: Sexual Conduct with a Minor under the Age of l^'J ^^^^^ 2 felony and Dangerous Crime against Children in the li t\ t"^^^^' ^ondangerous and nonrepetitive offense in violation ?f ok^ Sections 13-1401, 1405, 3821, 701, 702, 801, 604.01 and 31-281 committed on August 17, 1998. OFFENSE: Count 10: Attempted Sexual Conduct with a Minor over the t? .H 1 ^- ^ f^^ ^ felony, nondangerous and nonrepetitive offense m violation of A.R.S. Sections 13-1001, 1401, 1410, 3821 702 801 and 31-281 committed on September 15, 1998. record. The plea of the Defendant is accepted and entered of
Document 62-4 Filed 09/19/2008 Page 40 of 63

Case 2:04-cv-00260-EHC-BPV Docket Number 105

Page

2.

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

°"/2^/^^^^ HON. RONALD S. REINSTEIN CR 1998-013810

CLERK OF THE COURT FORM R105B K. Branding Deputy

IT IS ORDERED setting time for entry of judgment of quilt

GaLtT

"^ °'' September 27, 1999 at 8:30 a.m.before jSdge

. IT IS FURTHER ORDERED that a presentence investigation and report be made and that the Defendant, if not in custody, shall immediately report to the Adult Probation Department. ISSUED: Request for Presentence Report (Green Slip).

- 4V , ., . ^ ^ ^^ FURTHER ORDERED that the motion to dismiss Counts ' 1 through 6, 8, 9 and 11 through 13 as reflected in the Plea Agreement, will be deemed submitted at the time of sentencing. IT IS FURTHER ORDERED affirming prior custody orders. IT IS FURTHER ORDERED vacating any pending dates. FILED: Plea Agreement Hearing concludes.

10:50 a.m.

Case 2:04-cv-00260-EHC-BPV Docket Number 105

Document 62-4

Filed 09/19/2008

Page 41 of 63 p^g^

3 4 5 6 7

'Ma]rk W. Kennedy (004994) ?4^ West Jefferson, Suite 206 loenix, Arizona 85003 (602) 257-8002 Attorney for Defendant

BY .,.
FILE

· -^K

'D2P

1399 AUG 20 PH 2 ·21^

SUPERIOR COURT OF ARIZONA 8 MARICOPA COUNTY 9 10 11
V.

STATE OF ARIZONA, Plaintiff,

No. CR 98-13810 RESPONSE TO MOTION TO QUASH SUBPOENAS DUCES TECUM (Assigned to the Hon. Frank T. Galati) )

RICHARD FARRALL, Defendant.

Ji^i 1 4
15 15 17 denied. 18 19 20 21

The State's Motion to Quash the Defendant's Subpoenas Duces Tecum for certain of the victim's medical records should be A.R.S. §13-3620(G) abrogates the physician-patient In addition, the State of

privilege in cases such as this.

Arizona has waived whatever privilege might have existed by its disclosure of the victim's medical records. Respectfully submitted this 1*0 day of August, 1999.

22 23 24 25 25 27
· 28

By: Mark W. Kenned£/ 45 West Jefferson, Suite 205 Phoenix, Arizona 85003 Attorney for Defendant

Mai ^.rhy

EXHIBIT "I" Document 62-4 Filed 09/19/2008 Page 42 of 63

Case 2:04-cv-00260-EHC-BPV

1 2 3 4 5 6 7 8 9 10 11 ^MEMORANDUM OF POINTS AND AUTHORITIES FACTHAT, PACKORnn>Tp The defendant is charged with, among other things, five counts Of sexual conduct with Bo.bie .o.West, a ^inor, two counts Of molesting her, and two counts of sexually abusing her. The

alleged misconduct covers the period froTM Novenier of 1994 to late August of 1998. AS part Of the disclosure process, the State of Arizona has provided information about Bobbie Jo West, the extended West family, and the defendant from, the Phoenix Police Department, Child Protective Services, a psychologist who evaluated Bobbie Jo west, and the Gila Valley Clinic where Bobbie Jo West received a medical assessment as a result of an allegation of child molestation that was made in 1993. These records also contain

o o

12 13 14

-f ^ F2 , -

15 16 17 18 19 20 21 22 23 24 25

several references to assessments of Bobbie Jo West conducted at the Maricopa Medical Center.^

26 27 28

a-gi-t^^ -^ -Se^t°i--by^Se-^Srr- ^^^^i^J^l,^^

. ,

Case 2:04-cv-00260-EHC-BPV

Document 62-4

Filed 09/19/2008

Page 43 of 63

II 2 3 4 5 6 7 8 9 10 11 o o 12 13 14 15

ARGUMENT A. A.R.S. §13-3620(G) abrogates the physician-patient privilege in this case. A.R.S. §13-3620(G) provides in pertinent part: Except as provided in subsection H of this section the physician-patient privilege, the ' husband-wife privilege or any privilege except the attorney-client privilege, provided for by professions such as the practice of social work or nursing covered by law or a code of ethics regarding practitioner-client confidences, both as they relate to the competency of the witness and to the exclusion of confidential communications, sJtiall not pertain in any civil or criminal litigat-.inn or administrative proceeding in which a child's neglect, dependency, abuse or abandonment is an issue nor. in an^ judicial or administrative prorpeHing resulting from a report, information or records submitted pursuant to this section nor in any investigation of child's neglect or abuse conducted by a peace officer or child protective services in the department of economic security, (emphasis supplied) A.R.S. §13-3620 encompasses a number of sexual offenses

16 including sexual abuse, sexual conduct with a minor and 17 molestation of a child--all charges which have been brought 18 19 The physician-patient privilege was created by the 20 legislature. 21 limit it as it sees fit. 22 21, 34(CAl,5/13/99). 23 physician-patient privilege in criminal cases like this. 24 25 26 27 28 Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 44 of 63 legislature did not qualify its abolition in any way. The As a The legislature has chosen to abolish the Martin v. Rein.gi-Pin 295 Ariz .Adv.Rep. As a statutory privilege, the legislature is free to against the defendant.

result, the victim's medical history is subject to review by the defendant.

,B. 2 3 4 5 6

.The State has waived any claim of privilege by its
disclosures. · ^

^ y j-ub

A waiver occurs when a party intentionally relinquishes
a k n o w n r i g h t . N o r t h e r n Ari 7.nr^^ q^.=, ^^^^,j^^^_ -pf^n. y. Ppi-r-ni

Icansportr Jnr . , 145 Ariz. 467, 476, 702 , . 2d 696 (App .1985) . P Assuming, for the sake of argument, that the physician-patient privilege applied in this case to Bobbie Jo West, the State has waived that privilege by its disclosure of her medical records.

i
8 9
10 11

C.

purpose.

The subpoenas were issued in good faith and for a proper
f-Luptii

In its Motion to Quash, the Maricopa County Attorney

oo

12
asserted, "It is clear that harassment' and embarrassment of the

13
victim is the.defendant's sole purpose in this matter." The
)Z O , 0

14 15 16 17 18

Maricopa County Attorney also alleges that there is no good faith reason to believe that these records contain any relevantinformation. These assertions are groundless, ill-advised and

should be stricken. The records that the State has chosen to produce to date

19
contain a wealth of relevant information about Bobbie Jo, West.

20
For example, she recanted an earlier accusation about the

21
defendant and her contemporaneous medical examination proved

22
inconclusive. The defendant did not disclose this information to

23 24

the State--the State disclosed it to the defendant. The State apparently takes the position that it is free to

25
disclose what it wants to, but that the defendant is precluded

26
from ensuring that he has complete information about his accuser.

27 28
Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 45 of 63

c
1 2 simply is trying to defend himself. 3 4 5 6

(
He if the State truly thought

The defendant is not attempting to harass Bobbie Jo West.

that Bobbie Jo West's medical history had no relevance,.one can only wonder why it disclosed what it did. III.' coNCLn.qTnN The subpoenas duces tecum for Bobbie Jo West's medical

7 records should not be quashed because the physician-patient 8 privilege does not exist in this case. 9 10 11 Respectfully submitted this ^iQ day of August, 1999. '^
850
o (NT _a)
X/1
1

In addition, even if the

privilege existed, it has been waived by the conduct of the State of Arizona.

o

m
Id

12 13 By 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 46 of 63 Cindi S. Maricopa 301 West Phoenix, Nannetti County Attorney's Office Jefferson, 5th Floor Arizona 85003 Honorable Frank T . Galati . Judge of the Superior Court 201 W. Jefferson Street Phoenix, Arizona 85003 Honorable Roger W. Kaufman Judge of the Superior Court 101. W. Jefferson Street Phoenix, Arizona 85003 COPY of the foregoing hand-delivered this /XJTZ^ day of August, 1999, to:

'3

: MOU^L^-A-/
Mark W. Kennec ^ 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 Attorney for Defendant

H

0

3
fin

Ari

1

'S

'Mark W. Kennedy (004994) 45 West Jefferson, Suite 205 Phoenix, Arizona 85003 (602) 257-8002 · Attorney for Defendant

TbSv^

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY STATE OF ARIZONA, Plaintiff,
V.

10 11 o o 12 13
4] ^^^4

)

No. CR 98-13810 ORDER RE: DISCLOSURE OF RECORDS OF THE ARIZONA DEPARTMENT OF ECONOMIC SECURITY

RICHARD FARRALL, Defendant. )

H

14

^ J i ^ 15
^ in 2 c

^ ^ J S 16
17 18 19 20 21 22 23 24 25 26 27

Upon motion of the defendant, and the matters discussed in open court on August 23, 1999, the Arizona Department of Economic Security (DES) and Child Protective Services (CPS) are to immediate1y provide to the defendant any and all of its written ^ox

(yfw

iuAn

YLOSJC

p^ohcM

6--) arnt.^/\-ecj~(iiie'>^r p/^iJ'fi^,

electronically recorded documents and records that pertain to the Ou^ following individuals: 1. 2. 3. 4. 5. Richard Farrall (born 2/4/61); Sheila Farrall (born 12/15/66); Durina Farrall (born 8/15/82); Bobbie Jo West (born 11/18/83); and Sherice Farrall (born 7/8/91).

Case 2:04-cv-00260-EHC-BPV EXHIBIT "J"

Document 62-4

Filed 09/19/2008

Page 47 of 63

r('
1 2 3 4 5 3. 6 files; and 7 4. 8 evaluations. 9 10 11 ^cn 12 1. 2.

(^

DES and CPS are ordered to provide oopies of the following among the documents they will disclose: All records from medical files; All records' from social files; All non-privileged records from legal

All psychological assessments or

DATED this JP S day of August, 1999.

ilfi 1 3
vy u , 0
I. ^^

_/f^j JA^A^.
HON. ROGER W. KAUi Judge of the Supe/rior Court

-14

^ J M 15 "
S^^ §
J2

If) "1 s

16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00260-EHC-BPV Document 62-4 Filed 09/19/2008 Page 48 of 63

Office Distribution

r
' MARICOPA COUNPr' "K"

r
\ ·" 1

^^ '

SUPERIOR COURT OF A R I Z O N A ' ~

EXHIBIT

· . , . u . . - ,, _ , . . . ,_.,.,.^...-.,,^_

CLERK OF THE COURT FORM RCXWA

·"

September 24, 1999 THE HONORABLE RONALD S. REINSTEIN
N2 C R 98-13810 FILED:

A. Sandoval
Deputy

SEP 2 9 1999

STATE OF ARIZONA
V.

County Attorney By: Cindi S. Nannetti Mark W. Kennedy

RICHARD FARRALL

10:00 a.m. This is the time set for hearing defendant's Motion to Withdraw From Plea Agreement. Cindi S. Nannetti is present for the State. Defendant is present and represented by Mark W. Kennedy. Court reporter: Karen Jackson Defendant states his position. Argument is presented to the Court. The Cou