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

2

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 
STATE v. LEE

Opinion of the Court

3

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 
STATE v. LEE

Opinion of the Court

4

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.”
STATE v. LEE

Opinion of the Court

5

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).
STATE v. LEE

Opinion of the Court

6

¶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 selfdefense. 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.