IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

THE STATE OF ARIZONA , Petitioner,

v. HON

. RICHARD D. NICHOLS, Judge of the Superior Court of t he State o f Arizona, in and for t he County o f Pima , Respondent,
and
ROBERT ARTHUR ERGONIS ,

Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA

- SA 2010

- 0021 DEPARTMENT B
O P I N I O N

SPECIAL ACTION PROCEEDING Pima County Cause No. CR 20074823 JURISDICTION ACCEPTED; RELIEF GRANTED
Terry Goddard, Arizona Attorney General By Kimberly H. Ortiz
Payson & Gattone By Paul Gattone Tucson Attorneys for Petitioner

Tucson Attorneys for Real Party in Interest



### FILED BY CLERK

COURT OF APPEALS DIVISION TWO 

### JUN 14 20 102

B R A M M E R, Judge.
¶1 In this special action, t he State of Arizona seeks relief from the respondent judge ‟s order compelling a crime victim , J.C. , to submit to a pretrial interview by defense
counsel

. At issue is an ambigu ity in the definition of a “victim” in Arizona‟s Victims‟ Bill of Rights (“VBR”) , art icle II, § 2.1 of the Arizona Constitution

. 1 T h e question we
must answer is whether, b y excluding from the VBR‟s definition of a “victim” any person “in custody for an offense,” Arizona voters intend ed to deny victims‟ rights not only to inmates against whom a criminal offense has been committed while they are
in carcerated but also , more broa dly , to exclude those who , after having be en victim ized , subsequently are taken into custody and remain incarcerated for any reason when they
otherwise could exercise a right or rights conferred on victims by the VBR

. ¶2 W e accept jurisdiction of this special action for several reasons. First,
A.R.S. § 13

- 4437(A) and Rule 2(a)(2), Ariz. R. P. Spec. Actions, expressly authorize victims to enforce their rights under the VBR in special action proceedings

. Additionally, the c hallenged order is interlocutory in nature , and the s tate has no equally plain, speedy, or adequate remedy by appeal. S ee Ariz. R. P. Spec. Actions 1(a)

. A nd , the issue presented “ is one of first impression, involves only questions of law [,] and is of

1 The VBR was added to the Arizona Constituti on after voters in the November 1990 general election approved Proposition 104, which was based on a voter

initiative measure. See Ariz. Const. art. II, § 2.1 , hist. note. “[T]he constitutional amendment contained in Proposition 104 became effective upon the November 27[, 1990,] procla mation by the governor.” State v. Warner , 168 Ariz. 261, 263, 812 P.2d 1079, 1081 (App. 1990)

.3

statewide importance to the criminal justice system

. . . . ” State v. Warner , 16 8 Ariz. 261 , 262, 812 P.2d 1 079 , 1080 (1983)

. We conclude that J.C. retained his constitutional right

to refuse to be interview ed by the defense, see art. II. § 2.1(A)(5) , and that the respondent judge erred in compelling him to submit to an inter view, see Ariz. R. P. Spec. Actions
3 (c)

. FACTS AND PROCEDURE ¶3 Real party in interest Robert Ergonis is one of four codefendants indicted together in March 2008 in Pima County cause number CR 20074823. The indictment charges Ergonis with five dangerous

- nature felonies committed against J.C. , who was kidnapped , robb ed , and assaulted in Tucson on December 8, 2007

. Shortly there after J.C.
moved from Arizona to Massachusetts. There, he was arrested and later convicted o f an unrelated weapons offense , for which he was incarcerated from October 30, 2008, until March 10, 2009

. ¶4 In December 2008, w hile J.C. was in custody in Massachusetts , counsel for
Ku mari Fulbright, one of Ergonis‟s codefendants, requested a pretrial interview of J.C.
In a motion to compel the interview filed o n March 2, 2009 , Fulbright‟s counsel argu ed that, because J.C. was in custody on criminal charges, he “no longer ha[d] the status of a victim” under the VBR and therefore could not refuse to be interviewed. Although

t acit ly agreeing with that position, the state argu ed the issue was moot becau s e J.C. had been released on March 10, 2009

. By implication, the state suggested J .C. had regained
his status and rights as a victim under the VBR when release d

.4

¶5 At a hearing on November 9, 2009, Fulbright ‟s counsel re arg ued his previously filed motion to compel an interview with J.C. Counsel reiterat ed Fulbright‟s position that , “if a named victim is incarcerated, he gives up his victim‟s right to the extent he cannot decline to be interviewed.” A gain the state did not dispute Fulbright‟s interpretation of article II, § 2.1

. A sked by the respondent jud ge if she “agree[d] that once a victim is in custody even on other charges, that they lose their constitutional right to refuse to be interviewed,” the prosecutor responded , “That‟s what [ St a pleford v. Houghton , 185 Ariz. 560, 562, 917 P.2d 703, 705 (1996) ] says , yes. That‟s what the

statute says.” ¶6 The state opposed Fulbright‟s interview requests below based not on the meaning of the phrase “in custody,” but rather on the timing of Fulbright‟s requests in
relati on to the dates of Joshua‟ s incarceration a nd release from custody in Massachusetts

. With respect to Ergonis , t he state additionally argued he never had made a sufficient request to interview J.C. because his counsel had not filed a separate , written motion but , instead, merely had replied in the affirmative when asked orally if he wished to join in Fulbright‟s motion. 2 After the prosecutor agreed when the respondent judge asked if it was “purely as a practical matter that [counsel for Fulbright] wasn‟t able to interview

2 According to the state, Ergonis did not join in Fulbright‟s motion to interview J.C. until November 9, 2009, months after his release from custody. This assertion appears at least debatable, as Fulbright‟s counsel stated in the written “motion for sanctions to compel the interview of [J. C.]” he filed on March 2, 2009, that he had spoken to Ergonis‟s counsel “who indicates that not only does she join in the motion [but] requested that [Fulbright‟s counsel] advise the Court that she will be prepared for the interview, so that the timing of the interview is not an issue.”5

[ J.C. ] because he was deta ined and then released too quickly,” the respondent granted the
motion to compel the interview . The respondent found “the defense [had] file [d] a request to interview the victim at a time when the victim did not have the right to refuse to be interviewed because of his incarceration.” At the state‟s request, we have stayed the respondent‟s order compelling J .C. to submit to the interview and Erg onis‟s criminal trial pending our ruling in this matter

. DISCUSSION ¶7 Crime victims‟ rights in Arizona are protected by our constitution, by statute, and by court rule. Even before the constitutional amendment that added the VBR, our supreme court had adop ted Rule 39, Ariz. R. Crim. P ., “to preserve and protect a victim‟s rights to justice and due proc ess.” Ariz. R. Crim. P. 39(b) , eff ective Aug. 1,
19 89. Then, i n the November 1990 general election , voters approved Proposition 104,
the VBR, which was based on a voter

- initiative measure. 3 See Ariz. Const. art. II, § 2.1 , hist. note. The year followi n g the adoption of the VBR, und e r the authority granted by § 2.1(D) of article II , 4 our legislature enacted the Victims‟ Rights Implementation Act,

see 199 1 Ariz. Sess. Laws, ch. 229, § § 1

- 17 , now codified as A.R.S. §§ 13

- 4401 through

3 “[T]he constitutional amendment contained in Proposition 104 became effective upon the November 27[, 1990,] proclamation by the governor.” Warner , 168 Ariz. at 263, 812 P.2d at 1081

.

4 Subsection 2.1(D) of article II provides in pertinent part: “The legislature, or the people by initiative or referendum, have the authority to enact subst antive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section . . . .”6

13

- 4440

. 5 See generally State v. Roscoe , 185 Ariz. 68, 70, 912 P.2d 1297, 1299 (1996) ( providing historical overview ). ¶8 Article II, § 2.1(C) of the Arizona Constitution defines “[v]ictim” for purposes of the VBR as

a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person‟s spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused. Section 13

- 4401(19) of the Victims‟ Rights Implementation Act provides a definition of “[v]ictim” containing additional language not included in the VBR. 6 However, it is the
constitutional definition that ultimately controls

. See Roscoe , 185 Ariz. at 72, 912 P.2d at
1301 ( neither implementing statutes nor court rules “ „ eliminate or narrow rights

5 As originally enacted, chapter 40 of title 13, A.R.S., consisted of A.R.S. §§ 13

- 4401 through 13

- 4437

. S ee 1991 Ariz. Sess. La ws, ch. 229 , § 7. Sections 13

- 4438, 13

- 4439, and 13

- 4440, A.R.S ., were added sequentially later. See 1993 Ariz. Sess. Laws, ch. 235, § 1 (adding former § 13

- 3328, which later was amended and renumbered as A.R.S. § 13

- 610 , see 2002 Ariz. Sess. Laws, ch. 2 26 , § 2); 2004 Ariz. Sess. Laws, ch. 131, § 1 (adding current § 13

- 4438 ); 2001 Ariz. Sess. Laws, ch. 334 , § 24 (adding § 13

- 4439 ); 2008 Ariz. Sess. Laws, ch. 237 , § 2 (adding § 13

- 4440 ).

6 Section 13

- 4401(19) provides:

“Victim” means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person‟s spouse, parent, child, grandparent or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person‟s spouse, parent, child, grandparent, sibling, other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in cust ody for an offense or is the accused.7

guaranteed by the state constitution‟” ) , quoting State v. Lamberton , 183 Ariz. 47, 50, 899 P.2d 939, 942 (1995) ; Knapp v. M artone , 170 Ariz. 237, 240 n.5, 823 P.2d 685, 688 n.5 (1992) (legislature has power to “„define, implement, preserve and protect‟” victims‟ rights but not “to redefine the scope of those rights”), quoting Ariz. Const., art. II, § 2.1(D) ; Turley v. Bolin , 27 Ariz. App. 345, 348, 554 P.2d 1288 , 1291 (1976) ( rights created by initiative or referendum not subject to derogation by legislature; “ „ legislative authority, acting in a representative capacity only, [i]s in all respects intended to be
subordinate to direct action by the people ‟”), quoting Whitman v. Moore , 59 Ariz. 211, 220, 125 P.2d 445, 451 (1942)

. ¶9 In a reversal of the position it presented the respondent judge , the state now contend s the phrase “in custody for an offense” refers only to the time w hen “the criminal offense [w]as . . . committed” against the “ person ,” who, if n either then “ in custody ” nor “the accused,” thereby became a victim for purposes of the VBR. Ergonis, on the other hand, maintain s the phrase “in custody” con notes no such temporal restriction. Under his interpretation, a person against whom a crime was committed subsequently lose s the rights conferred by the VBR if later taken into custody for any reason

. ¶10 I n all proceedings b efore the respondent judge , the state agreed

— either implicitly or expressly

— with the defense argument that J.C. had lost his rights under the VBR during the time he was in custody in Massachusetts

. 7 Th at th e state now has
abandon ed that interpretation in favor of its present position

— presumably hav ing

7 Both parties appeared to assume implicitly that J.C. regained his status and rights as a victim under the VBR automatically upon his release.8

advanced both views in good faith and thus having by turns deemed either construction plausible

— well illustrates and aptly underscores the temporal ambiguity permitted by the phras e “in custody for an offense” as used in the definition of a “victim” in § 2.1(C) of
the VBR. ¶11 We appreciate that the legal basis for our decision was not argued to the respondent judge below. We do not apply the customary rules of waiver in this instance , however, because it is not the state‟s rights but J.C.‟ s that the VBR protects. See generally A.R.S. § 13

- 4437(C) (“At the request of the victim, the prosecutor may assert any right to which the victim is entitled.”). And we decline to penalize him for the state‟s having ur ged a legal position below that it since has reconsidered and abandoned in its special action petition. ¶12 T he proper interpretation of constitutional language present s a question of
law this court reviews de novo. See Massey v. Bayless , 187 Ariz. 72, 73, 927 P.2d 338, 339 (1996)

. When the wording of a constitutional provision is clear and unambiguous, we apply it according to its plain meaning , without resort to other means of construction. Jett v. City of Tucson , 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994)

. A mbigu ity exists
when , as her e, the meaning or interpretation of a provision is uncertain. Heath v. Kiger , 217 Ariz. 492, ¶ 6, 176 P.3d 690, 692 (2008)

. When a constitutional provision is ambiguous, “„ we may consider the history behind the provision, the purpose sought to be accompl ished, and the evil sought to be remedied. ‟ ” Id. ¶ 9, quoting Jett , 180 Ariz. at 119, 882 P.2d at 430

.9

¶13 Here, that purpose is stated clearly and succinctly in the opening language of the VBR: “To preserve and protect victims‟ rights to justice and due process.” As our supreme court elaborated in Champlin v. Sargeant , 192 Ariz. 371, ¶ 20, 965 P.2d 763, 767 (1998) , the VBR and its implementing legislation were enacted “to provide crime victims with „basic rights of respect, protection, participation and healing of their ordeals.‟” Id. , quoting 1991 Ariz. Sess. Laws, ch. 229, § 2. 8 Since the adoption of the VBR, “the victim‟s right to decline an interview has been considered absolute.” Roscoe , 185 Ariz. at 74, 912 P.2d at 1303 ; accord State v. O ‟ Neil , 1 72 Ariz. 180, 182, 836 P.2d 393, 395 (App. 1991) (“[T]he [VBR] abrogated a defendant‟s right under Rule 15[, Ariz. R. Crim. P.,] to interview or otherwise seek discovery from an unwilling victim.”); Day v. Superior Court , 170 Ariz. 215, 217, 823 P.2d 82, 8 4 (App. 1991) (“The [VBR] precludes the trial court from ordering the deposition of a victim who has indicated an unwillingness to be interviewed.”). ¶14 Despite both Ergonis‟s argument in his response to the petition for special
action and the state‟s previous concurrence in that interpretation below , no Arizona case
has h e ld, even implicitly, that a victim loses his or her status and rights under the VBR if
later taken in to custody for an unrelated reason

. Indeed, the principal case on which the parties have relied, Staple ford , stands only for the narrower interpretation of the phrase

8 In a n earlier comment to Rule 39 following the enactment of the Victims‟ Rights Implementation Act in 1991, our supreme court observed, “„ In general , it appeared that the definition of a victim should be a generous one.‟” Roscoe , 185 Ariz. at 70, 912 P.2d at 1299 , quoting Ariz. R. Crim. P. 39 1991 cmt. (emphasis in Roscoe ).10

“in custody” as meaning the victim was in custody when the criminal offense was
committed. ¶15 T he victim in Staple ford was a prison er named Corso who had been assaulted by his cellmate

. 185 Ariz. at 561, 917 P.2d at 704 . Reversing the trial court ‟s ruling , and requiring Corso to submit to a pretrial interview, our supreme court concluded
Corso was not a “victim” as defined in the VBR because he was in custody. 185 Ariz. at 563, 917 P.2d at 706 . Although nowhere in its discussion did the court expressly state that the words “in custody” meant “ in custody when the offense was committed against
h im,” that is the only specific holding the facts of the case permit. It is also the only holding the case requires. Interpreting the words “in custody” to mean “subsequently in custody” or “in custody at any time” would broad en the holding of Staple ford beyond its facts, and nothing in the court‟s language expressly supports , much less compels, such an expansive interpret ation of the phrase

. ¶16 We evinced the same view , albeit in dicta, in State v. Carlos , 199 Ariz. 273, ¶ 20, 17 P.3d 118 , 124 (App. 2001) . There, too, the underlying criminal charges had

ar i se n from the alleged assault of one prison inmate by another . T he defendant successfully argued on appeal that the trial court had abused its discretion in pre venti ng him from calling the victim, F. , to testify. In conclu ding the court had “ denied Carlos his Sixth Amendment right to compulsory process by precluding him from calling F. as a witness,” id. ¶ 2 2 , we observed: “Because F. was incarcerated at the time of the assault , he was not entitled to the protections of the Victims‟ Bill of Rights, and thus had no11

constitutional right to refuse an interview with Carlos under article II, § 2.1 of the
Arizona Constitution .” Id. ¶ 20. ¶17 Ergonis has cited no legal authority directly support ing his broad
inte rpretation of the phrase “in custody

. ” Nor has he persuaded us that a victim‟s later incarceration on unrelated charges should divest that victim of constitutional rights previously acquired. 9 As we observed in State v. Stauffer , 203 Ariz. 551, ¶ 9, 58 P.3d 33, 36 ( App. 2002) , “a crime victim‟s rights are specific to a crime committed upon that victim and arise . . . upon an arrest for or formal charging of that crime.” Ergonis has not urged , and w e cannot conceive, a compelling reason why , in the absen ce of clear language in the VBR expressly so providing , accrued constitutional rights that are “specific to a crime committed upon” a victim should later be suspended or forfeited if the victim is taken into custody for an entirely unrelated reason. 10

9 A subsequent arrest on “related” charges, on the other hand, could in some cases make the victim “the accused”

— or, at least, “[an] accused”

— who then presumably would no longer meet the definition of a “victim” for purposes of the VBR

— a question neither presented nor addressed here.

10 Section 13

- 4402(A) of the Victims‟ Rights Implementation Act provides that the constitutional rights conferred by the VBR “arise on the arrest or formal charging of the person or pers ons who are alleged to be responsible for a criminal offense against a victim.” They remain enforceable until the “final disposition of the charges, including acquittal or dismissal of the charges, all post

- conviction release and relief proceedings and th e discharge of a ll criminal proceedings relating to restitution.” § 13

- 4402(A)

. Such rights cease to exist only “[a]fter the final termination of a criminal prosecution by dismissal with prejudice or acquittal.” § 13

- 4402(C) ; see also State ex rel. Roml ey v. Dairman , 208 Ariz. 484, ¶ 20, 95 P.3d 548, 554 (App. 2004) . Neither § 13

- 4402 , nor the VBR itself, provides for the interruption, suspension, or divestiture of a victim‟s rights should the victim subsequently be taken into custody.12

¶18 C l e a r ly , the mere possibility that a victim later might be in custody for some suspected or actual wrongdoing is not alone disqualifying. In State v. Clinton , 181 Ariz. 299, 300, 890 P.2d 74 , 75 (App. 1995) , for example, Division One of this court held
that an assault victim , partially at fault for her injuries , nonetheless was entitled to an
award of restitution under the VBR. T h e court stated: “A crime victim retains victims‟ rights even if the facts suggest that the victim might be culpable herself.” Id. In reaching
i t s conclusion, t he court relied on Knapp , 170 Ariz. at 239, 823 P.2d at 687 , in which our supreme court found the protections of the VBR extended to the mother of two murdered children, even though she was suspect ed in their deaths, because s he had not been charged or named in a charg ing d ocument as a coconspirator and was “therefore not an accused” under the VBR. ¶19 Equally clearly, there are administrative considerations and logistical challenges that attend the exercise of a victim ‟ s rights if th e victim is in custody

. Rule 39 , Ariz. R. Crim. P ., illustrates our supreme court‟s accommodati on of those constraints. Thus, Rule 39 (a)(1) provides :

If a victim is in custody for an offense, the victim‟s right to be heard pursuant to this rule is s atisfied through affording the victim t he opportunity to submit a written statement, where legally permissible and in the discretion of the court. A victim not in custody may exercise his or her right to be heard pursuant to this rule by appearing persona lly, or where legally permissible and in the discretion of the court, by submitting a written statement, an audiotape or videotape. Ultimately, of course, the procedure specified in Rule 39 is not dispositive of the issue
before us. But , by recognizing that a victim who “is in custody for an offense” retains a13

“right to be heard” in keeping with the rights conferred by the VBR , the rule‟s language nonetheless supports the conclusion we reach here

. ¶20 We recognize that accepting Ergonis‟s interpretation of the phrase “in custody” as meaning “in custody at any time for any reason” eliminate s the administrative challenges inherent in allowing incarcerated victims to exercise their rights
under the VBR. But we can discern no other rationale

— and certainly none consistent with the VBR‟s goals of respecting and protecting victims and facilitating their participation in the criminal prosecutions of their assailants

— for interpreting the phrase “in custody” so broadly. The implications of such an interpretation would invite arbitrary , potentially unjust, and even absurd results. ¶21 A s the record reflects , J.C. was released on bond shortly after his arrest i n Massachusetts in December 2007

. Under Ergonis‟s interpretation of the VBR, J.C.
would have b een divested of his victim‟s rights for the duration of his initial , brief
incarceration but would have reacquired them promptly upon his release ; the same
theoretical divestiture and reattachment would have occurred again when he later served
and then completed his sentence

. If , hypothetically, a victim wer e in and out of custody repeatedly while awaiting trial, what logical or principled argument suggests his or her rights under the VBR should be suspended and re stor ed in successi ve , random cycles ?
W hat of victim s who later are placed in custody and c annot afford to post bond? Or one
who is arrested briefly but not formally charged, or unlawfully or wrongly detained? Or those who might violate conditions of probation or parole? N othing in the purpo se or the language of the VBR leads us to believe that Arizona voters in November 1990 imagined,14

much less intended, that the constitutional rights they intended to create by passing the
VBR could be so mechani sti cally lost and rea cquired , perhaps multiple times in succession, depending on the endless vari ety of circumstances that may atte nd a person ‟s being “ in custody ” a t some point a fter having been the victim of a crime

. ¶22 The clearest, simplest, and most logical interpretation of the phrase “in custody for an offense , ” therefore, is the one reflected in Staple ford 11 and Carlos 12 and
the one we endorse here : the VBR denies victim status and rights only to persons who are themselves “the accused” or who are already in custody when the criminal offen se is
committed against the m
. Having consider ed the consequences of the interpretation urged by Ergonis, we conclude that a crime victim‟s rights , which “ are specific to a crime committed upon that victim ,” Stauffer , 203 Ariz. 551, ¶ 9, 58 P.3d at 36 , are not thereafter lost i f the victim subsequently should be “ in custody for an [unrelated]
offense. ” See also Knapp , 170 Ariz. at 239, 823 P.2d at 687 (“The only victims exclud ed from the protection of the [VBR] are those „in custody for an offense‟ or t hose who are „the accused.‟”), quoting Ariz. Const. art. II, § 2.1(C)

. ¶23 Despite the state ‟ s failure to assist the respondent judge below with an appropriate legal argument, we nonetheless conclude the respondent ‟s ruling rests on an erroneous interpretation of article II, § 2.1 (C) of the Arizona Constitution

. And, b ecause an error of law amounts to an abuse of discretion, see Ariz. R. P. Spec. Actions 3(c) ;

11 185 Ariz. at 5 63, 917 P.2d at 706

. 12 199 Ariz. 273, ¶ 20, 17 P.3d at 124

.15

Althaus v. Cornelio , 203 Ariz. 597, ¶ 4, 58 P.3d 973, 975 (App. 2002) (court abuses discretion by committing error of law) , w e accept jurisdiction of the special action, grant
the relief requested , and vacate the respondent judge‟s order compelling J.C. to submit to a pretrial interview by the defense.

/s/ 

# J. William Bra mmer, Jr

. J. WILLIAM BRAMMER, JR., Judge
CONCURRING:

/s/ 

# Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge

/s/ 

# Garye L. Vásquez GARYE L. VÁSQUEZ, Judge