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State v. Lee

Court of Appeals of Arizona, Second Division

August 24, 2015

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

Special Action Proceeding Pima County. Cause No. CR20134796-001.

For Petitioner: Barbara LaWall, Pima County Attorney, By Nicolette Kneup, Deputy County Attorney, Tucson.

For Real Party in Interest: Law Office of Michael W. Storie, P.C., By Michael W. Storie and Natasha Wrae, Tucson.

Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.

OPINION

Page 622

MILLER, 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 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,"

Page 623

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 STATE v. LEE Opinion of the Court or information or consolidated for trial, that ...

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