State v. Hamilton

• Decision Date: 25 June 2020
• Docket Number: No. 1 CA-CR 18-0593,1 CA-CR 18-0593
• Parties: STATE of Arizona, Appellee, v. Richard Thomas HAMILTON, Appellant.
• Court: Arizona Court of Appeals

249 Ariz. 303

468 P.3d 1264

STATE of Arizona, Appellee,

v.Richard Thomas HAMILTON, Appellant.

No. 1 CA-CR 18-0593

Court of Appeals of Arizona, Division 1.

FILED June 25, 2020

Arizona Attorney General's Office, Phoenix, By Michelle L. Hogan, Counsel for Appellee

DM Cantor, Phoenix, By Christine Whalin, Counsel for Appellant

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop joined.

BROWN, Judge:

¶1 Hamilton appeals from his convictions and sentences for various sexual-conduct offenses. He argues the trial court erred when it ruled that three witnesses who gave other-acts evidence were considered victims under Arizona law and therefore entitled to (1) refuse pretrial interviews and (2) remain in the courtroom during trial even though Hamilton had invoked the rule of exclusion of witnesses. He also challenges other rulings, which we separately address in a memorandum decision. We hold that the court properly declined to allow pretrial interviews of the three witnesses but erred in allowing them to hear other witnesses testify at trial. The error, however, did not cause prejudice.

DISCUSSION

¶2 Hamilton was indicted on two counts of sexual conduct with a minor and six counts of molestation of a child, committed against victims M.C. and A.C. The trial court later granted the State's motion to dismiss two of the molestation counts. At the conclusion of an 11-day trial, the jury found Hamilton guilty on the remaining counts and the court sentenced him to two life terms in prison, one for each count of sexual conduct with a minor, and 28 years on each count of child molestation. This timely appeal followed.

A. Witnesses’ Right to Refuse Pretrial Interviews

¶3 When a defendant is charged with a sexual offense, Arizona Rule of Evidence ("Rule") 404(c) allows a court to admit evidence that the defendant committed other crimes or acts if such evidence is "relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." See State v. Yonkman , 233 Ariz. 369, 373, ¶ 11, 312 P.3d 1135 (App. 2013). Here, the State noticed its intent to call three women, H.H., R.H., and R.P. ("the 404(c) witnesses"), to testify at trial pursuant to Rule 404(c). Their anticipated testimony stemmed from an earlier prosecution against Hamilton ("the 2000 case").¹ Hamilton asked the trial court to allow him to interview the 404(c) witnesses before trial, but the State objected, arguing the 404(c) witnesses were victims under Arizona law who had the right to refuse the interviews.

¶4 The trial court denied Hamilton's request to order the interviews, concluding the 404(c) witnesses were entitled to decline to be interviewed because they were victims in the 2000 case. The court explained that although Hamilton was no longer on probation from the 2000 case, that case had not reached final disposition because he was still required to register as a sex offender as a result of those convictions. Hamilton argues the court abused its discretion in denying his interview request.

¶5 The Victim's Bill of Rights ("VBR"), Ariz. Const. art. II, § 2.1 (12)(C), along with its statutory implementation act, A.R.S. §§ 13-4401 to -4443, were enacted "to provide crime victims with ‘basic rights of respect, protection, participation and healing of their ordeals.’ " Champlin v. Sargeant , 192 Ariz. 371, 375, ¶ 20, 965 P.2d 763 (1998) (citation omitted). We construe the victims’ rights statutes liberally "to preserve and protect the rights to which victims are entitled." A.R.S. § 13-4418. "[W]e review questions of statutory interpretation and constitutional law de novo." State v. Ramsey , 211 Ariz. 529, 532, ¶ 5, 124 P.3d 756 (App. 2005). "We are required to follow and apply the plain language of the Victims’ Bill of Rights in interpreting its scope." State ex rel. Romley v. Super. Ct. In & For Cty. of Maricopa , 184 Ariz. 409, 411, 909 P.2d 476, 478 (App. 1995). "When interpreting the scope and meaning of a constitutional provision, we are guided by fundamental principles of constitutional construction. Our primary purpose is to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it." Jett v. City of Tucson , 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994).

¶6 Victims’ rights commence upon the defendant's arrest or formal charging and are enforceable "until the final disposition of the charges , including acquittal or dismissal of the charges, all post-conviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution." A.R.S. § 13-4402(A) (emphasis added); see State v. Leonardo, ex rel. Cty. of Pima , 226 Ariz. 593, 594, ¶ 5, 250 P.3d 1222 (App. 2011) (recognizing that victims’ rights continue to be enforceable until restitution is paid and probation is completed). "Final disposition" means "the ultimate termination of the criminal prosecution of a defendant by a trial court, including dismissal, acquittal or imposition of a sentence." A.R.S. § 13-4401(10).

¶7 Hamilton contends the trial court should not have allowed the 404(c) witnesses to refuse to be interviewed because their rights as victims terminated upon the final disposition of his previous charges. He argues that (1) R.P.’s rights as a victim terminated when Hamilton was discharged from probation in 2009, and (2) H.H. and R.H. could no longer assert victims’ rights after the charges involving them were dismissed as part of the plea agreement in the 2000 case.

¶8 "[V]ictims have a constitutional right to decline interviews." State v. Roscoe , 185 Ariz. 68, 73–74, 912 P.2d 1297, 1302–33 (1996) ("[T]he victim's right to decline an interview has been considered absolute."). 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. Stauffer , 203 Ariz. 551, 553–54, ¶ 7, 58 P.3d 33 (App. 2002).

¶9 In Leonardo , we held the victim retains the right to decline to be interviewed for as long as the defendant continues on probation. 226 Ariz. at 596, ¶ 11, 250 P.3d 1222. The defendant in that case was on probation from a prior case and the time for commencing a post-conviction relief proceeding had passed. Id. at 594–95, ¶ 6, 250 P.3d 1222. The victim in the prior case was to testify in the current case but objected to sitting for a pretrial interview with defense counsel. We held the victim could refuse the interview because "final disposition" of the charges could not occur as long as probation continued. Id. at 596, ¶ 11, 250 P.3d 1222. We reasoned that if a victim's rights were no longer enforceable while a defendant remained on probation, the victim would be unable to exercise other statutory rights, including the right to be present at any probation revocation or modification proceeding, or the right to request notice of changes to the defendant's terms of probation or probationary status. Id. at 595–96, ¶¶ 10–11, 250 P.3d 1222. Therefore, because the legislature granted statutory rights to victims throughout a defendant's term of probation, it could not have intended that an order placing the defendant on probation would constitute the "final disposition" of the charges against the defendant. Id.

¶10 We hold that, like a continuing term of probation, a continuing obligation to register as a sex offender extends the date of final disposition of a defendant's charges for purposes of victim's rights. As relevant here, a defendant convicted of sexual conduct with a minor is required to register. A.R.S. § 13-3821(A)(4). After successfully completing probation, if other conditions are met, the defendant may petition to terminate that requirement. A.R.S. § 13-3826(A). Before ruling on that petition, the superior court must provide enough notice for the State to notify the victim, and the victim must be given the opportunity to be heard. A.R.S. § 13-3826(B).

¶11 Although Hamilton's probation had ended, the charges against him had not reached final disposition because he had an ongoing duty to register as a sex offender. In Leonardo , we explained that the legislature could not have intended a defendant's placement on probation to constitute the "final disposition" of his charges because it had afforded victims ongoing rights throughout the defendant's probationary term. 226 Ariz. at 595–96, ¶¶ 8–11, 250 P.3d 1222. That reasoning applies with equal force to a defendant's duty to register as a sex offender. As with probation revocation proceedings, the legislature has provided victims the right to notice and an opportunity to be heard at any proceeding to terminate a defendant's obligation to register as a sex offender. Accordingly, the legislature could not have intended that charges against a defendant reach their final disposition so long as the defendant is still subject to the registration requirement.²

¶12 Hamilton cites State v. Noble as support for the proposition that his charges reached their final disposition despite his ongoing duty to register as a sex offender because the requirement to register is regulatory rather than punitive, and thus not part of the "criminal justice process" through which a victim's rights continue. 171 Ariz. 171, 178, 829 P.2d 1217, 1224 (1992) (disapproved on other grounds by State v. Trujillo , 248 Ariz. 473, ¶ 38, 462 P.3d 550, 557 (2020) ). While it is true that sex offender registration is not punitive, neither is a defendant's obligation to pay restitution to the victim.

Trujillo, 248 Ariz. at ––––, ¶ 27, 462 P.3d at 555 (agreeing with " Noble ’s conclusion that the structure of the [sex offender] registration scheme is regulatory, not punitive"); State v. Fancher , 169 Ariz. 266, 268, 818 P.2d 251, 253 (Ap...