State ex rel. Romley v. Hutt
Decision Date | 31 August 1999 |
Docket Number | No. 1 CA-SA 99-0146.,1 CA-SA 99-0146. |
Citation | 195 Ariz. 256,987 P.2d 218 |
Parties | STATE of Arizona, ex rel., Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Sherry HUTT, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Robin Treen, Real Party in Interest. |
Court | Arizona Court of Appeals |
Richard M. Romley, Maricopa County Attorney by David J. Drexler, Deputy County Attorney, Phoenix, Attorneys for Petitioner.
Dean W. Trebesch, Maricopa County Public Defender by Allyson D. Ochs, Deputy Public Defender and Jeffrey T. Roth, Deputy Public Defender, Phoenix, Attorneys for Real Party in Interest Robin Treen.
¶ 1 This special action arises out of a request by Real Party in Interest Robin Treen (defendant) to interview victim James Hickey (Hickey). The trial court ordered the interview, and the state challenges the order as violative of the Victims' Bill of Rights. We have jurisdiction pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 12-120.21(A)(4). For the following reasons, we accept jurisdiction and grant relief.
¶ 2 James T. Hickey, a member of the State Bar of Arizona, served as attorney for Larry Treen1 (Treen) until December 15, 1997 when Hickey terminated the attorney-client relationship. Apparently, Hickey had allowed Treen to use his car, a Camaro. In addition, Hickey had paid Treen in advance to repair his wife's car, a Celica. Treen cashed the checks Hickey paid him for the repairs but failed to do the work. Because Treen never did the repairs on the Celica and failed to complete other work he was to do for Hickey, Hickey terminated their various business dealings, including the attorney-client relationship. Hickey demanded that Treen return certain items of property, including the Camaro. On December 15, 1997, Hickey informed Treen in writing that he had until 5:00 p.m. that day to make arrangements to return the items or Phoenix police would be called in and Treen arrested.
¶ 3 Treen never returned the Camaro. Police detectives eventually located Treen and defendant, and the Camaro. Defendant allowed the detectives to search the car. The police investigation revealed that Treen had fraudulently obtained Arizona title and registration documents transferring ownership of the Camaro to himself. Treen and defendant were charged with theft of the Camaro, a class 4 felony.2 The indictment also contained eleven other counts, none of which involved this victim.
¶ 4 Defendant asked to interview Hickey. Hickey declined. Defendant then filed a motion for a pretrial hearing to determine whether Hickey refused an interview based on bias, interest, or hostility. The trial court indicated that Hickey could be impeached at trial with his declination to be interviewed, and also ordered that Hickey submit to the interview he had already refused. The record of the hearing contains the following exchange:
The state then filed a petition for special action.
¶ 5 The acceptance of jurisdiction in a special action is discretionary. See King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983)
. We may accept special action jurisdiction when there is no other means of obtaining justice on the issue raised. See id. (citing Nataros v. Superior Court of Maricopa County, 113 Ariz. 498, 557 P.2d 1055 (1976)). In this case, the state could not wait until after trial to appeal Judge Hutt's ruling because the defense interview already would have taken place. Therefore, we accept special action jurisdiction in this matter.
¶ 6 In 1990, the people of Arizona amended their constitution to include a Victims' Bill of Rights, which states:
Ariz. Const. art. 2, § 2.1(A)(5). This provision is implemented in A.R.S. § 13-4433, which provides, in part:
¶ 7 Arizona's appellate courts have considered the victim's right to decline a defense interview "absolute." See State v. Roscoe, 185 Ariz. 68, 74, 912 P.2d 1297, 1303 (1996)
. However, in some cases some victims' rights may be required to give way to a defendant's federal constitutional rights. See State ex rel. Romley v. Superior Court, 172 Ariz. 232, 240-41, 836 P.2d 445, 453-54 (App.1992) ( ). Defendant argues that she should be allowed to inquire of Hickey as to the reasons for his refusal to be interviewed, asserting that "[a] witness's refusal to grant a[p]retrial interview is often relevant to the witness's credibility." But our supreme court has said that the refusal of a crime victim to grant an interview does not necessarily indicate bias. See State v. Riggs, 189 Ariz. 327, 334, 942 P.2d 1159, 1166 (1997). Defendant further claims that her federal Sixth Amendment right to confront witnesses outweighs the victim's state constitutional rights. However, confrontation rights under the Sixth Amendment do not normally afford criminal defendants a right to pretrial discovery. See Pennsylvania v. Ritchie, 480 U.S. 39, 52-53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality decision).3 The right to confront witnesses at trial "does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Id. at 53, 107 S.Ct. 989.4 Defendant also invokes State ex rel. Dean v. City Court of City of Tucson, 173 Ariz. 515, 844 P.2d 1165 (App.1992), for the notion that there is no violation of victims' rights when a victim is compelled before trial to disclose information in a court hearing.5 The Dean opinion, however, which involved compulsory process at a probable cause hearing, does not support the trial court's order for a pretrial discovery interview. See id. at 516, 844 P.2d at 1166. Indeed, Dean specifically disallowed the use of a preliminary hearing as a discovery device. See id. at 517, 844 P.2d at 1167 ( ).6
¶ 8 Defendant in these proceedings has sought to explain why she should be allowed pretrial inquiry of the victim regarding bias, interest or hostility. We reject these arguments. But defendant has not even attempted to support the further reaches of the trial...
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