State of Arizona v. Marshall Neal Ray

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Petitioner,
v.
HON. KENNETH LEE,
JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF PIMA
Respondent,
and
MARSHALL NEAL RAY,
Real Party in Interest.
No. 2 CA-SA 2015-0039
Filed August 24, 2015
Special Action Proceeding
Pima County Cause No. CR20134796-001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Petitioner
Law Office of Michael W. Storie, P.C.
By Michael W. Storie and Natasha Wrae, Tucson
Counsel for Real Party in Interest
STATE v. LEE
Opinion of the Court
OPINION
Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.
M I L L E R, Presiding Judge:
¶1 The State of Arizona seeks special action review of the
respondent judge’s order in the criminal prosecution against
Michael Ray permitting him to interview the victims and their
representative. We accept jurisdiction and grant relief.
¶2 Ray was charged with three counts of continuous sexual
abuse of a child, two counts of sexual abuse of a minor under the age
of fifteen, and two counts of child molestation. The indictment
named four victims. The victims know each other, and Ray alleges
that they spoke to each other about him. Each of the victims, as well
as their representative, invoked rights as established by Arizona’s
Victims’ Bill of Rights, including the right to refuse to be
interviewed by the defendant or his or her representative. See Ariz.
Const. art. II, § 2.1; A.R.S §§ 13-4401 through 13-4441. Ray
nonetheless sought to compel interviews with each victim and the
representative. Citing Champlin v. Sargeant, 192 Ariz. 371, 965 P.2d
763 (1998), he argued he was entitled to interview each of them
about statements the other victims may have made, as long as he did
not “explore anything with respect to a particular witness’s alleged
victimization.” Over the state’s objection, the respondent judge
granted Ray’s motion “to allow [Ray] to interview the various
victims with respect to their conversations with other victims about
the other victims’ situations.” The respondent judge prohibited any
questions that sought to obtain, by indirect means, information
about the victim’s own situation, such as whether another victim’s
experience was the same as what she experienced. The state timely
sought special action relief.
¶3 The exercise of special action jurisdiction is appropriate
to address issues concerning victims’ rights because the rights in
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STATE v. LEE
Opinion of the Court
question “would not be capable of protection if the matter were
reviewed post-trial.” Romley v. Schneider, 202 Ariz. 362, ¶ 5, 45 P.3d
685, 686 (App. 2002). Although Ray claims the state could appeal
the respondent judge’s order pursuant to A.R.S. § 13-4032(4), he is
incorrect. That provision applies only to post-judgment orders and
would not allow an appeal of the ruling at issue here, nor would any
other provision of § 13-4032 allow the state to dismiss the action
without prejudice in order to appeal the ruling. Thus, because the
state has no “equally plain, speedy, and adequate remedy by
appeal,” Ariz. R. P. Spec. Actions 1(a), we accept special action
jurisdiction.
¶4 In Champlin, our supreme court addressed whether the
Victims’ Bill of Rights and § 13-4433(A) permitted a trial court to
compel the interview of the victims of various sex offenses
concerning events those victims witnessed relevant to other charges
against the defendant. 192 Ariz. 371, ¶¶ 7-23, 965 P.2d at 764-67. At
that time, § 13-4433(A) stated “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.” 1997 Ariz.
Sess. Laws, ch. 126, § 12. As a matter of statutory interpretation, the
court in Champlin concluded the “same occasion” clause necessarily
modified the phrase “on any matter,” thereby allowing the
interview of eyewitness victims, so long as the eyewitness was not
also a victim of an offense committed on the same occasion. 192
Ariz. 371, ¶¶ 15-16, 18, 965 P.2d at 766-67. If Champlin controls, it
would permit the types of interviews ordered by the respondent
judge.
¶5 In 1999, after Champlin was decided, the legislature
amended § 13-4433(A) to read as it does now:
[T]he victim shall not be compelled to
submit to an interview on any matter,
including any charged criminal offense
witnessed by the victim and that occurred
on the same occasion as the offense against
the victim, or filed in the same indictment
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STATE v. LEE
Opinion of the Court
or information or consolidated for trial, that
is conducted by the defendant, the
defendant’s attorney or an agent of the
defendant.
1999 Ariz. Sess. Laws, ch. 261, § 45. The amendment added
protections for persons designated as victims for offenses
consolidated for trial or alleged in the same indictment, without
requiring the charged conduct to have occurred on the “same
occasion.” We agree with the state that this change to the statutory
language supersedes Champlin. See State v. Kindred, 232 Ariz. 611,
¶ 6, 307 P.3d 1038, 1040 (App. 2013) (statute’s plain language is best
indication of legislative intent).
¶6 The court’s analysis in Champlin supports this
conclusion. For instance, it observed that the “particular date on
which each incident occurred is critical to our analysis” because the
statute only prohibited witness interviews of persons who also were
designated victims for offenses that occurred “on the same
occasion”—which the court concluded was limited to events
occurring on the same date. Champlin, 192 Ariz. 371, ¶¶ 2, 11, 15, 965
P.2d at 764, 765, 766. Moreover, the court rejected application of the
“broader victim protection” in Rule 39(b)(11), Ariz. R. Crim. P.,
because it did not contain the “same occasion” limitation. Id. ¶ 9.
By removing the “same occasion” clause for offenses in the same
charging document or consolidated for trial, the legislature
reinstated broader victim protections more like those provided by
Rule 39(b)(11).1
¶7 Ray does not specifically address this language or
suggest it is inapplicable. He instead argues, based on State v. Lee,
1Although not dispositive, we also note that the scope of the
victim protection added to Rule 39(b)(11) after enactment of the
Victims’ Bill of Rights remains as broad today as it was in 1991. 171
Ariz. LV (1991); see also Ariz. Const. art. II, § 2.1 (enacted 1990). It
recognizes a victim’s “right 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.”
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STATE v. LEE
Opinion of the Court
226 Ariz. 234, 245 P.3d 919 (App. 2011), that Champlin merely has
been limited in scope to hold that a victim “does not have the right
to refuse a deposition or interview on a subject unrelated to the
offense against the victim.” In Lee, this court addressed a deposition
in a civil forfeiture case of people named as victims in the
underlying criminal matter, ultimately concluding the interviews
were not permitted. Id. ¶¶ 1-2, 14. Our reference to Champlin in Lee
was in a footnote, id. n.6, and nothing in our decision can reasonably
be read to support an argument that Champlin overrides the plain
language of § 13-4433(A).
¶8 Although Ray suggests his confrontation rights would
be inappropriately limited by application of § 13-4433(A), we have
rejected that proposition, as well as the contention that prohibiting
victim interviews violates a defendant’s due process rights. See
Norgord v. State, 201 Ariz. 228, ¶¶ 20-21, 33 P.3d 1166, 1171 (App.
2001). Ray also claims that prohibiting the witness interviews
“deprives” him of his right to “effective assistance of counsel.” We
decline to address this argument, however, because Ray offers no
explanation or supporting authority. Cf. State v. Bolton, 182 Ariz.
290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives
claim on review).
¶9 Ray further asserts we should permit the interviews as a
matter of judicial economy because he could move to “sever the
charges by victim,” which would provide another justification to
interview them. 2 But he does not develop any argument that
severance is appropriate, and no ruling on that issue is before us.
Nor does he cite any authority suggesting judicial economy can
outweigh a victim’s constitutional rights. Like the United States
Constitution, our own constitution “recognizes higher values than
speed and efficiency.” Stanley v. Illinois, 405 U.S 645, 656 (1972).
Accordingly, we decline to address this argument further.
2Even assuming Ray is entitled to severance of the charges, the
fact remains that the charges were brought in the same indictment.
See § 13-4433(A).
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STATE v. LEE
Opinion of the Court
¶10 We recognize that a victim’s rights may, in some
circumstances, be abrogated on due process grounds. In Romley v.
Superior Court, 172 Ariz. 232, 238-39, 836 P.2d 445, 451-52 (App.
1992), we permitted the discovery of the victim’s mental health
records upon a showing that they were relevant to a claim of self-
defense. But, unlike a victim’s right to refuse a discovery request,
the right of a victim to refuse an interview is paramount. State v.
Roscoe, 185 Ariz. 68, 74, 912 P.2d 1297, 1303 (1996). And the Victims’
Bill of Rights expressly authorizes the legislature to define the rights
guaranteed to victims. Ariz. Const. art. II, § 2.1(D); see also J.D. v.
Hegyi, 236 Ariz. 39, ¶ 13, 335 P.3d 1118, 1120-21 (2014).
¶11 Accordingly, pursuant to § 13-4433(A), the respondent
judge had no authority to allow Ray to interview the victims. We
thus accept special action jurisdiction and vacate the respondent
judge’s order permitting Ray to interview the victims and their
representative.
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