State v. Stauffer

• Citation: 58 P.3d 33,203 Ariz. 551
• Decision Date: 10 October 2002
• Docket Number: No. 2 CA-SA 2002-0067.,2 CA-SA 2002-0067.
• Parties: The STATE of Arizona, Petitioner, v. Hon. Monica STAUFFER, Judge of the Superior Court of the State of Arizona, in and for the County of Graham, Respondent, and Amiel Proto, Real Party in Interest.
• Court: Court of Appeals of Arizona

58 P.3d 33

203 Ariz. 551

The STATE of Arizona, Petitioner, v. Hon. Monica STAUFFER, Judge of the Superior Court of the State of Arizona, in and for the County of Graham, Respondent, and Amiel Proto, Real Party in Interest.

No. -0067.

Court of Appeals of Arizona, Division 2, Department B.

October 10, 2002.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Petitioner.

Dennis McCarthy, Safford, for Real Party in Interest.

OPINION

ESPINOSA, Chief Judge.

¶ 1 Petitioner the State of Arizona seeks special action relief from the respondent judge's order in the underlying sexual abuse prosecution granting real party in interest Amiel Proto's motion to compel interviews of three witnesses the state intends to call at trial. The state contends that these witnesses are victims who have the right to refuse defense interviews under the Victims' Bill of Rights, Ariz. Const. art. II, § 2.1(A)(5), and the equivalent statutory provision, A.R.S. § 13-4433. The issues raised are of first impression, pure questions of law, and have significant statewide ramifications. Moreover, the state does not have an equally plain, speedy, and adequate remedy by way of appeal. See State ex rel. Romley v. Hutt, 195 Ariz. 256, 987 P.2d 218 (1999). Because we find that the respondent judge erred by granting the motion to compel as to one of the witnesses, we accept jurisdiction of this special action and grant partial relief. Ariz. R.P. Special Actions 1(a), 3, 17B A.R.S.

¶ 2 Proto is being prosecuted for allegedly committing sexual abuse against V.M. in the fall of 2001. Rule 404(c), Ariz. R. Evid., 17A A.R.S., permits the admission of "evidence of other crimes, wrongs, or acts ... if relevant to show that the defendant had a character trait giving rise to aberrant sexual propensity to commit the offense charged." Under that rule, the state plans to call three witnesses, N.T., T.G., and D.M., to testify that Proto committed similar acts of sexual misconduct against them. The incident involving N.T. took place in the spring of 2000 and resulted in Proto's conviction for sexual abuse, the appeal from which is pending in this court. State v. Proto, No. 2 CA-CR XXXX-XXXX. The incident involving D.M. allegedly occurred in the summer of 1998. The incident involving T.G. allegedly occurred sometime in 1997. The latter two alleged incidents did not result in arrests or the filing of criminal charges.

¶ 3 Proto apparently sought pretrial interviews of N.T., T.G., and D.M. Invoking the Victims' Bill of Rights on their behalf, the state informed Proto that all three were victims of criminal offenses committed by him and that they refused to be interviewed by him about those offenses prior to their testimony in the prosecution of Proto's alleged sexual abuse of V.M. Proto moved to compel the interviews, see Ariz. R.Crim. P. 15.3, 16A A.R.S.; the state opposed that motion, claiming that the witnesses were victims and were entitled to refuse. The respondent judge summarily granted Proto's motion to compel all three interviews. At the state's request, the court stayed the proceedings pending the result of this special action. The issue we must address is whether victims' rights attach to such Rule 404(c) witnesses in the prosecution of a defendant for an offense against a third person, an issue of first impression in this state.

¶ 4 "The Victims' Bill of Rights ... was adopted and its statutory implementation enacted... to provide crime victims with `basic rights of respect, protection, participation and healing of their ordeals.'" Champlin v. Sargeant, 192 Ariz. 371, ¶ 20, 965 P.2d 763, ¶ 20 (1998), quoting the "Victims' Rights Implementation Act,"¹ 1991 Ariz. Sess. Laws, ch. 229, § 2. As amended in 1990, the Arizona constitution provides: "[A] victim of crime has a 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 victims' rights implementation legislation expanded on this concept and sets forth procedures by which this right can be invoked. § 13-4433. "Victim" is defined in both the constitution and the implementation legislation as "a person against whom the criminal offense has been committed." Ariz. Const. art. II, § 2.1(C); A.R.S. § 13-4401(19). "Criminal offense" is defined in § 13-4401(6) as "conduct that gives a peace officer or prosecutor probable cause to believe that a felony or that a [serious] misdemeanor ... has occurred."

¶ 5 The respondent judge's order appears to conflict with the statutory and constitutional provisions cited above. By declaring N.T., T.G., and D.M. to be Rule 404(c) witnesses and by invoking § 13-4433 on their behalf, the prosecutor essentially avowed that he had probable cause to believe that Proto had committed felonious acts against them, which facially would appear to qualify them as victims under §§ 13-4401(6) and (19). But, A.R.S. § 13-4402(A) provides: "Except as provided in §§ 13-4404² and 13-4405,³ the rights and duties that are established by this chapter arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim." Of the alleged incidents involving the three potential Rule 404(c) witnesses, only the offense against N.T. resulted in an arrest or formal criminal charges.

Application of § 13-4402(A) to Rule 404(c) Witnesses

¶ 6 We first address whether § 13-4402(A) applies to N.T. in this prosecution of Proto for an offense against another. N.T. is a victim whose rights have arisen under the statute by virtue of the formal charges filed against Proto that led to his prosecution and conviction for committing an offense against her. Those rights remain in effect while Proto appeals that conviction. § 13-4402(A). Whether N.T.'s rights extend to the instant, unrelated prosecution is a question for which there is no direct answer in the Victims' Bill of Rights or in Chapter 40, Title 13, although our supreme court addressed a similar issue in Champlin. The defendant in that case had been charged with offenses arising out of four criminal acts committed against three victims on three separate occasions. Some victims allegedly had witnessed some of the crimes committed against other victims. The trial court denied the defendant's motion to depose all three of these individuals, finding they were victims and could, therefore, decline to be interviewed under § 13-4433(A). The defendant sought special action review in Division One of this court, which declined jurisdiction. The defendant then petitioned the supreme court, which granted review "in order to provide guidance under article 2, section 2.1 of the Constitution and to apply section 13-4433(A) to the facts of [that] case." 192 Ariz. at 372, 965 P.2d at 764. The court rejected the state's contention that the three victims could refuse to be interviewed entirely and held that the victims were required to submit to interviews about incidents they might have witnessed on other occasions, even if committed by the same defendant. The court concluded, however, that each victim could refuse to be interviewed about offenses committed against that victim or offenses against others that that victim had witnessed on the same occasion as the offenses committed against that victim. Champlin.

¶ 7 Although not directly on point, Champlin stands for the principle that a victim's right to refuse to be interviewed about the offense committed against that victim is inviolate, even as to other offenses allegedly committed on the same occasion by the defendant.⁴ We see no reason not to extend that principle to a separate prosecution involving another charge against the same defendant when that prosecution will require the victim of an unrelated offense by the defendant to recount the particulars of that offense. Thus, the respondent judge erred in ordering that N.T. be interviewed about her prospective testimony, pursuant to Rule 404(c), which by its nature will be limited to Proto's offense committed against her.

¶ 8 We next address whether § 13-4402(A) applies to T.G. and D.M. The state, noting that the statute specifies that the triggering event is "the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim" (emphasis added), maintains that the arrest or formal charging upon which a victim's rights arise under § 13-4402(A) is not "victim-specific." The state thus argues that Proto's arrest and prosecution in the instant case for the offense against V.M. activated victims' rights for "all persons whom he has victimized," specifically including T.G. and D.M. Although this is a tenable interpretation of § 13-4402(A), an equally tenable interpretation is that "a criminal offense against a victim" refers to the offense against the victim whose rights are in question. Under this latter interpretation, although T.G. and D.M. might be "victims" in the abstract, their rights to refuse a defense interview would not yet have arisen because Proto has been neither arrested nor subjected to criminal charges for the acts the state claims he committed against them. We review statutory construction and interpretation issues de novo. Rowland v. Great States Ins. Co., 199 Ariz. 577, 20 P.3d 1158 (App.2001).

¶ 9 If, as here, the language of the statute is not clear, we look to other indicia of legislative intent, "including `the statute's context, subject matter, historical background, effects, consequences, spirit and purpose.'" Norgord v. State ex rel. Berning, 201 Ariz. 228, ¶ 7, 33 P.3d 1166, ¶ 7 (App. 2001), quoting Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶ 8, 19 P.3d 1241, ¶ 8 (App.2001). The provision at issue must be considered in the context of the entire legislative scheme of which it is a part. Hobson. Upon reviewing the entirety of the...