State v. Butler in and for County of Pima
| Citation | 60 Arizona Cases Digest 7,502 P.3d 997 |
| Decision Date | 30 December 2021 |
| Docket Number | 2 CA-SA 2021-0043 |
| Parties | The STATE of Arizona, Petitioner, v. Hon. Michael BUTLER, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent, and Valentin Valenzuela, Real Party in Interest. |
| Court | Court of Appeals of Arizona |
Laura Conover, Pima County Attorney, By Tai Summers and Myles A. Braccio, Deputy County Attorneys, Tucson, Counsel for Petitioner
Kevin Burke, Pima County Legal Advocate, By John Repovsch and Walter L. Palser, Assistant Legal Advocates, Tucson, Counsel for Real Party in Interest
Presiding Judge Espinosa authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.
¶1 This special action presents a novel question in Arizona law—whether Arizona's Victims’ Bill of Rights (VBR) provision allowing a victim to refuse an interview by the defendant applies to a victim-witness called to testify in a case involving a different victim and the prosecution of the same defendant whose crime against the victim-witness took place in another state. For the reasons that follow, we accept special action jurisdiction, conclude the VBR provision applies to a non-Arizona victim, and therefore grant relief.
¶2 Our special action jurisdiction is discretionary, but its exercise is appropriate " ‘when there is no plain, speedy and adequate remedy by way of appeal’ [and] ‘in cases involving a matter of first impression, statewide significance, or pure questions of law.’ " Phx. Newspapers, Inc. v. Ellis , 215 Ariz. 268, ¶ 9, 159 P.3d 578 (App. 2007) ; see Ariz. R. P. Spec. Act. 1(a). Such is the case when addressing whether a victim called to testify to present evidence under Rule 404, Ariz. R. Evid., may be compelled to be interviewed by the defendant. See State v. Stauffer , 203 Ariz. 551, ¶¶ 1, 5, 58 P.3d 33 (App. 2002) ; State v. Leonardo , 226 Ariz. 593, ¶¶ 3-4, 250 P.3d 1222 (App. 2011) ; State ex rel. Romley v. Hutt , 195 Ariz. 256, ¶ 5, 987 P.2d 218 (App. 1999). Thus, the exercise of our jurisdiction is appropriate in this case.
¶3 Valentin Valenzuela was indicted in May 2019 on one charge of sexual conduct with a minor under fifteen, for his alleged sexual abuse of his daughter, V.B., from September 1997 to September 1999. Another daughter, A.V., had reported in 2018 that Valenzuela abused her as well when she was living with him in North Dakota. Valenzuela pled guilty in North Dakota to continuous sexual abuse of A.V. and was sentenced to twelve years’ imprisonment in January 2020.
¶4 In the current proceeding as to the abuse of V.B., the state filed a motion to introduce evidence of Valenzuela's abuse of A.V. pursuant to Rules 404(b) and 404(c). Valenzuela sought to interview A.V. before trial, but the state filed a notice stating that A.V. was asserting rights as a victim under Arizona's VBR and declined to be interviewed. In response Valenzuela filed a motion to compel an interview, and the respondent judge concluded he could not "institute victims[’] rights from Arizona onto a North Dakota resident," and granted the motion to compel. The state filed this petition for special action.
¶5 In its petition, the state urges us to conclude that a "victim should not be deprived of her right to decline a pretrial interview—a right that has been deemed ‘absolute’ in Arizona—simply because she is now a witness about those crimes in another state." Arizona's constitution provides various rights to crime victims in its Victims’ Bill of Rights. See Ariz. Const. art. II, § 2.1. Among these is the right "[t]o refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant." Ariz. Const. art. II, § 2.1 (A)(5); see also A.R.S. § 13-4433(A). Although the totality of victim's rights do not apply to those called as witnesses pursuant to Rule 404, Stauffer , 203 Ariz. 551, ¶¶ 10, 12, 58 P.3d 33, "[a] victim's right to refuse to be interviewed extends to a separate prosecution involving another charge against the same defendant when that interview will require the victim to recount the particulars of the offense the defendant committed against the victim," State v. Hamilton , 249 Ariz. 303, ¶ 8, 468 P.3d 1264 (App. 2020) (citing Stauffer , 203 Ariz. 551, ¶ 7, 58 P.3d 33 ); see also Leonardo , 226 Ariz. 593, ¶ 11, 250 P.3d 1222. Thus, had Valenzuela victimized A.V. in Arizona, there is no question that she would be constitutionally entitled to refuse an interview.
¶6 As the parties agree, Arizona courts have not yet addressed a victim's rights when the defendant's criminal acts against them took place in another state. In this instance, Valenzuela committed continuous sexual abuse of a child against A.V. in North Dakota. The Arizona and North Dakota constitutions do not conflict as to the right of a victim to refuse an interview by the defendant in the criminal matter involving the crime committed against that victim. See Ariz. Const. art. II, § 2.1 (A)(5); N. D. Const. art. I, § 25 (1)(f). Valenzuela argues, however, that Arizona law does not have "any bearing on rights that arose in North Dakota" and that North Dakota's constitution should not "impose[ ] obligations on the procedure in an Arizona criminal court." Additionally, while all states have some form of victim protection, many do not have similar provisions relating to defense interviews. Our decision as to the application of Arizona's VBR to victim-witnesses must therefore encompass circumstances in which the victim does not happen to live in a state with a similar constitutional provision. We therefore view the question as one of choice of law.
¶7 Relying on a South Dakota case interpreting its constitution, Valenzuela contends Arizona's VBR "only makes sense in the context of a criminal offense that occurs in Arizona in which the authorities are aware of a victim." In that case, the South Dakota Supreme Court addressed whether a provision of its state VBR, which provides that a victim is entitled to be advised that they may consult an attorney about their rights, was applicable in a criminal case in Minnesota. In re Issuance of Summons Compelling Essential Witness To Appear & Testify in State of Minn. , 908 N.W.2d 160, ¶¶ 1, 13-19 (S.D. 2018). There, the defendant was accused of assaulting the victim in Minnesota, after which the victim moved to South Dakota and was summoned by Minnesota as a witness in the criminal action against the defendant. Id. ¶ 2. The South Dakota court determined that because its VBR included language stating it applied "in any trial or appellate court, or before any other authority with jurisdiction over the case ," id. ¶ 15 (quoting S. D. Const. art. VI, § 29 ), and because South Dakota's courts only had jurisdiction over crimes committed within the state, it was "inapplicable to crimes committed wholly outside the State of South Dakota," id. ¶¶ 15, 18.
¶8 Arizona's VBR does not include the jurisdictional language on which the South Dakota court relied. Ariz. Const. art. II, § 2.1. And although North Dakota's VBR includes the same jurisdictional language, N. D. Const. art. I, § 25 (2), its courts have not addressed the application of its VBR outside of state bounds. Nor have the courts of this state addressed the question presented here—not whether our VBR applies when a crime is committed in another state and prosecuted there, but whether it applies when a crime has been committed elsewhere and testimony about it is sought in an Arizona prosecution against that perpetrator pursuant to Rule 404.
¶9 Generally, Arizona courts follow the Restatement (Second) of Conflict of Laws (1971) in addressing choice-of-law questions. See Swanson v. Image Bank, Inc. , 206 Ariz. 264, ¶ 6, 77 P.3d 439 (2003) (); Cook v. Cook , 209 Ariz. 487, ¶ 11, 104 P.3d 857 (App. 2005) (); Moore v. Montes , 22 Ariz. App. 562, 565, 529 P.2d 716 (1974) (). The Restatement broadly provides, "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." Restatement § 6.
¶10 As noted above, Arizona and North Dakota's VBRs generally do not conflict on the question of victim interviews. But while all fifty states have adopted some form of VBR, see Michael E. Solimine & Kathryn Elvey, Federalism, Federal Courts, and Victims’ Rights , 64 Cath. U. L. Rev. 909, 909-10 (2015), express provisions relating to victim interviews are less common, see, e.g. , David S. Caudill, Professional Deregulation of Prosecutors: Defense Contact with Victims, Survivors, and Witnesses in the Era of Victims’ Rights , 17 Geo. J. of Legal Ethics 103, 114-15 (2003) ("While some states do not provide victims a specific constitutional right to refuse a pre-trial interview, the ‘right’ of a victim or witness to refuse an interview (and the corresponding law of any ‘right’ of the defendant to compel an interview) is...
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