State Ex Rel. Romley v. Hutt

987 P.2d 218, 195 Ariz. 256

• Court: Court of Appeals of Arizona
• Decided: September 23, 1999
• Docket: 1 CA-SA 99-0146
• Status: Published

Opinions

OPINION

THOMPSON, Judge.

¶ 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.

FACTUAL AND PROCEDURAL . HISTORY

¶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 Célica. Treen cashed the checks Hickey paid him for the repairs but failed to do the work. Because Treen never did the repairs on the Célica 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 COURT:] Bias and prejudice are defense[s] raised which cannot be fully explored by the defendant without the ability to go into these areas with the witness. Failure to allow the defendant to go into these areas in this case would cut to the heart of the defense and deny the defendant the constitutional guarantees of due process.

Where the two rights are in conflict the defendant’s right to due process must be paramount and therefore I’m inclined to grant the defense motion.

[PROSECUTOR:] Your Honor, notwithstanding the Court’s decision I would be asking for a stay. The State wishes to file a special action with the Court of Appeals on the Court’s ruling.

THE COURT: All right. And let’s be real clear since if we’re going to take this up as to what I’m ruling. We’re talking about the ability of the defendant to ask the witness at trial whether they refused a pretrial interview.

[PROSECUTOR:] I understand that, Your Honor, but the motion per se was for a pretrial interview.

THE COURT: Correct. There’s two parts.

[PROSECUTOR:] Let me hold back on mine.

THE COURT: I want to make sure if you’re going to take a special action I want to make real sure that when we get something back from the Court of Appeals we know what to do with it. I think it’s [i]neumbent upon me to be very specific as to what I’m ruling[.]

The first part is the ability of the defendant to cross-examine the witness at trial with the refusal of the out of court pretrial interview as impeachment on bias and prejudice. The Court considers in this case the allegation — the defendant’s asserted defense of bias, of breach of an agreement, or of permission all of these aspects go to the heart of the offense and are tantamount to the defense in this matter.

And not to allow the defense to impeach the victim on these areas at trial would effectively deny the defendant her defense. So as to the trial examination the motion of defense is granted over objection by the State.

Then we get to the second issue which is the pretrial interview. And the Court further finds with regard to the pretrial interview that the facts of this case are so entwined — so entwined the victim with the defendant in terms of the agreement and any breach of that agreement that becomes the essence of the offense that to not conduct a pretrial interview of the witness effectively denies the defendant the ability to prepare for trial and thus to effectively prepare a defense at trial.

The state then filed a petition for special action.

DISCUSSION

¶ 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:

(A) To preserve and protect victims’ rights to justice and due process, a victim of crime has a right:

(5) To 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. 2, § 2.1(A)(5). This provision is implemented in A.R.S. § 13-4433, which provides, in part:

A. Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter, including a charged criminal offense witnessed by the victim that occurred on the same occasion as the offense against the victim, that is conducted by the defendant, the defendant’s attorney or an agent of the defendant.

B. The defendant, the defendant’s attorney or another person acting on behalf of the defendant shall only initiate contact with the victim through the prosecutor’s office. The prosecutor’s office shall promptly inform the victim of the defendant’s request for an interview and shall advise the victim of his right to refuse the interview.

F. If the defendant or the defendant’s attorney comments at trial on the victim’s refusal to be interviewed, the court shall instruct the jury that the victim has the right to refuse an interview under the Arizona constitution.

¶ 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) (disclosure of victim’s medical records ordered). 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 (citing State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975) for the proposition that “pretrial hearings are not to be used for purposes of discovery”).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 judge’s ruling. The judge determined that:

[T]he facts of this case are ... so entwined the victim with the defendant in terms of the agreement and any breach of that agreement that becomes the essence of the offense that to not conduct a pretrial interview of the witness effectively denies the defendant the ability to prepare for trial and thus to effectively prepare a defense at trial.

The trial court accordingly ordered a victim interview in which defendant would be allowed to explore not just whether the refusal of an interview demonstrated bias, interest or hostility, but also allegations that Treen breached an agreement with Hickey, and that the Treens lacked permission to use his ear. In short, the trial court ordered a victim interview to explore the state’s case, and did not even purport to limit the interview to questions of bias, interest or hostility.⁷

¶ 9 The trial court’s determination that key elements of the charge, and the defense to the charge, will likely involve information provided by Hickey does not justify breach of Hickey’s constitutional right to decline to be interviewed. Certainly, Hickey is a key witness, and it would be useful to defendant to talk to him before trial, but our constitution precludes this, and no superior constitutional right of defendant’s compels it. Indeed, the trial court’s conclusions regarding the facts of this case would be broadly applicable in a great many criminal cases involving victims. Victims are often important, crucial, and even critical witnesses. It is no doubt a sound practice for lawyers to interview witnesses before trial. But to compel victim interviews based on the kind of generic considerations presented here would nullify a significant constitutional protection afforded crime victims. The victim’s right to refuse a defense interview protects the victim’s privacy and allows him to minimize contact with the defendant, if he so chooses. In order to uphold the determination of the people of this state that such protections be available to crime victims, we must reverse the trial court’s order of a compelled victim interview in this case.

CONCLUSION

¶ 10 For the foregoing reasons, we accept special action jurisdiction and grant relief. We vacate the trial court’s order for a pretrial victim interview.

CONCURRING: E.G. NOYES, JR., Chief Judge.

1 . Larry Treen is defendant’s husband. Both are co-defendants in the underlying case.

2 . The record does not contain the charging document or police report.

3 . A majority of the court in Ritchie held there was no constitutional right, whether under a due process or confrontation clause analysis, to have confidential child protective service reports made available to defense counsel, unless and until the materiality and exculpatory nature of the information could be established through in camera inspection or otherwise. 480 U.S. at 55-61, 107 S.Ct. 989.

4 . Ritchie does acknowledge, and enforce, a Fifth Amendment due process right to discover information which is both material and exculpatory. 480 U.S. at 57-61, 107 S.Ct. 989 (citing inter alia Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Defendant does not contend that the information she seeks is Brady material.

We do not agree with the assertion of the dissent that Ritchie involves a different due process analysis than that provided in Brady. The Ritchie majority clearly invokes Brady and its progeny in describing the principle that supported the discovery remedy ordered in that case, in camera inspection of confidential records:

It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, supra at 87, 83 S.Ct. 1194.

Ritchie, 480 U.S. at 57, 107 S.Ct. 989.

5 . Defendant’s response in this special action for the most part constitutes an argument that the state should be denied relief because defendant is entitled to a pretrial hearing to explore Hickey’s alleged bias. Defendant’s motion before the trial court sought a hearing, not an interview. However, the trial judge ordered an interview, and that ruling is what the state has challenged here. We have considered defendant’s arguments, to the extent possible, as they may be applicable to the question before us, that is, a victim interview.

6 . Defendant also relies on Riggs, 189 Ariz. 327, 942 P.2d 1159, in urging that we deny relief. Riggs involved cross-examination at trial regarding a victim's pretrial refusal of an interview. See id. at 330, 942 P.2d at 1162. It did not purport to delineate when, if ever, a defendant could compel a pretrial defense interview of a victim. Nowhere in Riggs did the supreme court authorize victim interviews.

7 . The dissent says the state is not entitled to relief because it has not attacked the substance of the "findings” the trial judge offered in support of her compulsion of a victim interview. As we have noted, conversely, defendant has never attempted to justify those findings, and never sought, even in these proceedings, what the trial judge ordered, an interview of the victim as to the merits of the case. Presumably, defendant has made a tactical decision to seek, not what the constitution expressly forbids, but some middle ground by way of a pretrial hearing to explore why the victim refused an interview. Under such circumstances, it would not seem unreasonable if the state had decided to address only defendant's arguments and rely on the express language of our constitution in opposing a victim interview which defendant never sought.

In any event, the state has attacked the trial judge's findings. The state urges that the fact that Treen and Hickey had business and professional relationships that defendant might want to explore is insufficient to override the victims’ right to decline to be interviewed, and that the trial judge's findings in this regard, if allowed to stand, would permit the victims’ right to decline to be interviewed to be ignored in every case where a victim and a defendant had some "relationship” that predated the charged offense. We agree with these contentions.