State v. Roscoe

• Decision Date: 29 February 1996
• Docket Number: No. CR-95-0023-PR,CR-95-0023-PR
• Citation: 912 P.2d 1297,185 Ariz. 68
• Parties: STATE of Arizona, Appellee, v. Fred Woodrow ROSCOE, Appellant.
• Court: Arizona Supreme Court

Page 1297

912 P.2d 1297

185 Ariz. 68

STATE of Arizona, Appellee, v.Fred Woodrow ROSCOE, Appellant.

No. CR-95-0023-PR.

Supreme Court of Arizona, In Banc.

Feb. 29, 1996.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Linda L. Knowles, Assistant Attorney General, Phoenix, for Appellee.

Susan A. Kettlewell, Pima County Public Defender by Kristine Maish, Deputy County Public Defender, Tucson, for Appellant.

Opinion of the Court of Appeals, Division Two, 182 Ariz. 332, 897 P.2d 634(App.1994), VACATED.OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

In consolidated cases arising from two separate arrests, a Pima County jury convicted Fred Roscoe(defendant) of two counts of aggravated assault on a peace officer, one count of disorderly conduct, and one count of resisting arrest.After the court of appeals affirmed, State v. Roscoe, 182 Ariz. 332, 897 P.2d 634(App.1994), defendant filed a petition for review with this court.

A.R.S. § 13-4433(F)andRule 39(b)(11) of the Arizona Rules of Criminal Procedure both deny victim status to peace officers while acting in the scope of their official duties.Defendant's petition for review contends that the court of appeals erred by declaring both the statute and the rule to be unconstitutional restrictions on the Victims' Bill of Rights.SeeAriz. Const. art. II, § 2.1.We granted review and have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), andRule 31.19, Ariz.R.Crim.P.¹

QUESTION PRESENTED

Are the provisions of A.R.S. § 13-4433(F)andRule 39(b)(11), Ariz.R.Crim.P., which deny on-duty peace officers status as "victims," unconstitutional because they conflict with the definition of "victim" set forth in the Arizona Constitution, Article II, § 2.1(C)?

FACTS

The First Case

In June 1991, defendant visited Alma Green's apartment one evening around midnight.Defendant and Green began fighting and woke a neighbor, who called 911.Two Tucson police officers, Burrow and Anemone, arrived at the scene but were unable to subdue defendant.After several back-up officers arrived at the scene, police were finally able to subdue and arrest defendant.Defendant was indicted for one count of aggravated assault on a peace officer and one count of aggravated assault with a deadly weapon or dangerous instrument.Both counts named Officer Burrow as the victim.

The Second Case

In March 1992, Tucson police again investigated an incident of domestic violence involving defendant.Officer Egurrola reached the scene first, called for backup, and Officer Wilson arrived.A substantial altercation developed.Ultimately, with the help of additional back-up officers, defendant was subdued and arrested.

The indictment for this second incident included two counts of aggravated assault on a peace officer, with Officers Wilson and Egurrola named as the victims in those two counts.The cases were consolidated for trial.

LOWER COURT RULINGS

Prior to trial, defendant filed a Motion for Witness Interviews, in which he requested that Officers Wilson and Egurrola, the two victims in the second case, be ordered to attend witness interviews.The trial court denied the motion, holding that the officer victims were entitled to refuse interviews under the Victims' Bill of Rights.After the case was re-assigned to a different judge for trial, defendant again sought interviews with the police officers.His request was also denied by this judge, who agreed with the first judge that the provisions of § 13-4433(F) conflicted with the constitutional right of a victim to refuse an interview.Roscoe was subsequently convicted of two counts of aggravated assault on a police officer (Burrow and Wilson), resisting arrest, and disorderly conduct.

The court of appeals affirmed the convictions, Roscoe, 182 Ariz. 332, 897 P.2d 634(App.1994), agreeing with the trial courts' conclusion that A.R.S. § 13-4433(F) and its rules counterpart, Ariz.R.Crim.P. 39(b), unconstitutionally abrogate rights provided in the Arizona Constitution.The court of appeals pointed out that the Victims' Bill of Rights denies victim status only to those who are in custody and those who are the accused.Roscoe, 182 Ariz. at 335, 897 P.2d at 637."[P]eace-officer victims are not excepted from this definition and are therefore entitled to the same constitutional protections afforded to other victims."Id.Defendant petitioned this court to reverse the court of appeals' holding.We agree with the court of appeals' resolution of this issue and affirm the trial court.

DISCUSSION

I.Are the provisions of A.R.S. § 13-4433(F)andRule 39(b)(11), Ariz.R.Crim.P., which deny peace officers status as "victims," unconstitutional because they conflict with the definition of "victim" set forth in the Arizona Constitution, Article II, § 2.1(C)?

In 1989, this court promulgated the first Victims' Rights rule in Arizona;Rule 39,Rules of Criminal Procedure.Necessarily, its applicability was limited to the judicial department.In the election of 1990, the people of Arizona voted to constitutionalize a much broader Victims' Bill of Rights (the Bill) and granted statutory implementation powers to the legislature.Ariz. Const. art. II, § 2.1.The Bill provides victims of crimes with several constitutional rights, including 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).The Bill defines a victim as "a person against whom the criminal offense has been committed ... except if the person is in custody for an offense or is the accused."Ariz. Const. art. II, § 2.1(C).The Bill expressly grants to the legislature"the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section."Ariz. Const. art. II, § 2.1(D).

In 1991, the legislature passed an extensive Victims' Rights Implementation Act (the Act) pursuant to its powers under § 2.1(D).SeeA.R.S. §§ 13-4401 to -4438.The 1991 Act did not deny peace officer victims the right to refuse interviews.SeeA.R.S. § 13-4433.Following that enactmentthis court amended Rule 39 to conform to the Act.An accompanying comment observes:

In general, it appeared that the definition of victim should be a generous one.Law enforcement officers, for example, should not be excluded from the rights enjoyed by victims because of their employment in the criminal justice system.

(Emphasis added).

In 1992, the legislature added a provision to the Act dealing with victim interviews:

For the purposes of this section[dealing only with pretrial interviews], a peace officer shall not be considered a victim if the act that would have made him a victim occurs while the peace officer is acting in the scope of his official duties.

A.R.S. § 13-4433(F).Following that enactment, this court again revised and amended its Rule 39 to conform to the legislative provisions.One of those revisions appeared as a portion of Rule 39(b)(11) as follows:

For purposes of a pretrial interview, a peace officer shall not be considered a victim if the act that would have made him or her a victim occurs while the peace officer is acting in the scope of his or her official duties.

(Emphasis added).Thus, the amended rule allowed police officers to maintain victim status as a general rule, but carved out an exception for the limited purpose of pretrial interviews.In this respect, our Rule 39(b)(11) mirrored the 1992 legislative provisions.

Although this statutory amendment(and subsequent rule amendment) did not become effective until after defendant's convictions in these consolidated cases, it was called to the trial court's attention before closing arguments and in post-trial motions.The court of appeals addressed the constitutionality of the amended statute and the earlier court rule simultaneously, as do we.See182 Ariz. at 335, 897 P.2d at 637.

In holding that the police officer victims, like other victims, had a right to decline interviews, the court of appeals relied, in part, on this court's decision in Knapp v Martone, 170 Ariz. 237, 823 P.2d 685(1992).In Knapp, we held that "the plain language of this new amendment" provides for only two types of people who are "excluded from the protection of the Victims' Bill of Rights ... those 'in custody for an offense' or those who are 'the accused.' "170 Ariz. at 239, 823 P.2d at 687.We held in Knapp that the trial court erred by denying victim status to an unindicted principal "who was, is, or could be a suspect in a case."Id.

Defendant claims that the court of appeals erred when it applied "the plain language of the Victims' Bill of Rights" analysis of Knapp, thus "overlook[ing] the spirit and intent of the Proposition 104 ballot initiative."Defendant asks us to find an intent at variance with the clear language of the constitutional provision.He cites Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136(1963), andState v. Lycett, 133 Ariz. 185, 650 P.2d 487(1982), as proof that this court has a duty to construe legislation such as the Implementation Act so as to be constitutional.Those cases do not support his argument.

Schecter involved the interpretation of ambiguous legislation.93 Ariz. at 282, 380 P.2d at 142.The constitutional provision in this case is not ambiguous.The portion of Lycett which defendant cites for the proposition that this court should construe a statute as constitutional whenever possible relates to claims of vagueness and overbreadth.133 Ariz. at 190, 650 P.2d at 492.No such claim is involved here.Defendant presents no authority, nor are we aware of any, which supports the proposition that a court is empowered to depart from the unambiguous language of a constitutional provision.

Were this court to accept defendant's invitation to embark on the task of...