Annotations

 

1. Victim’s and defendant’s rights cannot conflict.

 

“It cannot be doubted that victims of crime, and their families, have certain rights [under Arizona’s Victim’s Bill of Rights, but] . . . it is equally clear that these rights do not, and cannot, conflict with a defendant’s right to a fair trial [, as guaranteed by the United States Constitution].” State v. Bible, 858 P.2d 1152, 1205 (1993).

 

The judge, not the jury, balances conflicting rights; the jury must find the facts and apply the judge’s instructions.” State v. Bible, 858 P.2d 1152, 1206 (1993).

 

If medical records have not been made available to the prosecution (or any agent of the state such as law enforcement officers), then victim has the right to refuse defendant's discovery request under the Victim's Bill of Rights.  However, if the trial court determines that due process guarantees require disclosure of exculpatory evidence and, further, if the court determines that the medical records are exculpatory and are essential to presentation of the defendant's theory of the case, or necessary for impeachment of the victim relevant to the defense theory, then the defendant's due process right to a fundamentally fair trial and to present the defense of self-defense overcomes the statutory physician patient privilege, just as the due process right overcomes the Victim's Bill of Rights. See State ex rel. Romley v. Superior Court of Maricopa County, 172 Ariz. 232, 238-39, 836 P.2d 445, 451-52 (App. 1992); see also, Hospital Corp.of America v. Superior Court, 157 Ariz. 210, 755 P.2d 1198 (App.1988).

 

When a defendant's constitutional right to due process under the U.S. Constitution conflicts with state-based Victim's Bill of Rights in a direct manner, then defendant’s right to due process under the U.S. Constitution is the superior right. State ex rel. Romley v. Superior Court of Maricopa County, 172 Ariz. 232, 236, 836 P.2d 445, 449 (App. 1992).

 

2. Jury’s duty with respect to victim’s rights.

 

“Appeals to the jury’s innate sense of fairness between a defendant and the victim may have surface appeal but cannot prevail. A jury in a criminal trial is not expected to strike some sort of balance between the victim’s and the defendant’s rights. The judge, not the jury, balances conflicting rights; the jury must find the facts and apply the judge’s instructions.” State v. Bible, 858 P.2d 1152, 1206 (1993).

 

3. Prosecutor’s improper statements referring to victim’s rights.

Prosecution’s statements that a victim’s rights to life, liberty, and the pursuit of happiness, as enumerated in the Declaration of Independence, were terminated when she was snatched off of her bike, taken away, tied up, and killed by being severely beaten on the head, and that jury’s duty was to protect the defendant’s and the victim’s rights, were improper but did not constitute fundamental error. State v. Bible, 858 P.2d 1152, 1206 (1993).

 

4. Defendant’s right to cross-examine victim.

 

Where victim, pursuant to Victim’s Bill of Rights, elects to make an unsworn statement at defendant’s sentencing hearing, defendant has due process right to cross-examine victim in order to bring out possible mitigating factors. State v. Blackmon, 908 P.2d 10, 12 (App. 1995).

 

 5. Application and interpretation of Victim’s Bill of Rights.

Victim’s Bill of Rights applies to cases pending before its adoption. Knapp v. Martone, 170 Ariz. 237, 238-39, 823 P.2d 685, 686 (1992).

 

Victim’s Bill of Rights applies to proceedings pending on its effective date (November 26, 1990). See State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App. 1990).

 

Victim’s Bill of Rights (VBR), which confers on victims the right to refuse discovery requests from a criminal defendant, applied to criminal cases pending on the date that VBR became effective. See State v. Warner, 168 Ariz. 261, 812 P.2d 1079 (App. 1990).

 

Victim’s Bill of Rights cannot be applied retroactively to impose upon a prosecutor a duty to provide a crime victim with a written notice of the date, time, and place of a change of plea hearing or to confer with the victim regarding a plea bargain and the change of plea proceeding that did not exist at the time prosecutor’s alleged failure to act occurred. See Knutson v. County of Maricopa ex rel. Romley, 175 Ariz. 445, 447, 857 P.2d 1299, 1301 (App. 1993).

 

Appellate court could infer, from language of Victim’s Bill of Rights (VBR) granting victims the right to confer with prosecutors, that such conferences be conducted in an atmosphere that is unconstrained, certainly not intimidating, and one that encourages a victim to speak freely; therefore, trial court order that all such communications be recorded and made available to criminal defendants would substantially infringe upon this right and could not be sustained. See State v. O’Neil, 172 Ariz. 180, 182, 836 P.2d 393, 395 (App. 1991).

Victims of crimes committed before the effective date of the Victim’s Bill of Rights are “victims” for the purposes of that Act. Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 686 (1992).

 

Since inmates are “in custody for an offense,” inmates are not “victims” as defined in the Victim’s Bill of Rights, therefore, defendant’s cellmate could not rely on Victim’s Bill of Rights to allow him to refuse to participate in the pretrial interview requested by defendant’s attorneys during defendant’s prosecution for aggravated assault arising from defendant’s fight with cellmate. See generally Stapleford v. Houghton, 185 Ariz. 560, 917 P.2d 703 (1996).

 

“The only victims excluded from the protection of the Victim’s Bill of Rights are those ‘in custody for an offense’ or those who are ‘the accused.’” Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992).

 

Neither the Victim’s Bill of Rights (VBR), nor the Victim’s Rights Implementation Act (VRIA), gives victims a right to control proceedings, to plead defenses, or to examine or cross-examine witnesses, and while the VBR and VRIA give victims the right to participate and be notified of certain criminal proceedings, this is not the same as making the victims “parties.” See State v. Lamberton, 183 Ariz. 47, 49, 899 P.2d 939, 941 (1995).

 

Victim’s Bill of Rights does not give victim standing as a “party aggrieved,” within the legal meaning of the term, where complained-of judgment does not operate to deny her some personal or property right or impose a substantial burden upon her, and thus victims do not have the right to file their own petitions for review of a trial court’s final decision regarding a criminal defendant’s petition for post-conviction relief. The prosecutor, on behalf of the State, is an “aggrieved party” and is the proper party to file a petition for review. See State v. Lamberton, 183 Ariz. 47, 49-50, 899 P.2d 939, 941-42 (1995).

“The statutory and constitutional provisions of the Victims' Bill of Rights do not require that a victim suffer personal injury to fall within the definition of a crime victim.” State ex rel. Romley v. Superior Court of Maricopa County, 184 Ariz. 409, 909 P.2d 476 (App. 1995).

 

Where defendant only damaged an individual’s car, rather than the individual personally, the crime of DUI was nonetheless committed against that individual, and, the definition of "criminal offense" as conduct giving rise to a felony or misdemeanor involving "the threat of physical injury" required court to conclude that defendant’s actions constituted a criminal offense threatening individual with physical injury; thus, individual fell within the plain language defining "victim" as "a person against whom the criminal offense [was] committed," because he was the “victim” of threatened physical injury as well as property damage.  See State ex rel. Romley v. Superior Court of Maricopa County, 184 Ariz. 409, 909 P.2d 476 (App. 1995).

 

Notwithstanding fact that individual did not suffer physical injury as a result of defendant’s criminal act, individual was “victim” under plain-language definition of Victims Bill of Rights; thus, individual could refuse defendant’s request for pretrial interview. See State ex rel. Romley v. Superior Court of Maricopa County, 184 Ariz. 409, 909 P.2d 476 (App. 1995).

 

Trial court erred by denying victim status to an unindicted principal “who was, is, or could be a suspect in a case.” Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685,687 (1992).

 

Statute and rule of criminal procedure which operated to deny peace officers “victim” status under the Victim’s Bill of Rights held impermissible and unconstitutional because of a direct conflict with the definition of “victim” contained in the Victim’s Bill of Rights. See generally, State v. Roscoe, 185 Ariz. 68, 912 P.2d 1297 (1996).

Under the Victim’s Rights Implementation Act (VRIA), a victim has standing only to "seek an order or to bring a special action" to assert the enumerated rights guaranteed by the Victim’s Bill of Rights (VBR).  For example, under the VRIA, if the trial court had refused to hear from the victim at the post-conviction relief proceeding, then the victim could have filed a special action with the court of appeals to assert her right to be heard pursuant to the VBR. The VRIA, however, does not give a victim standing to argue before an appellate court that the trial court's ruling in a criminal proceeding was error or to bring the types of action against the defendant that the State can bring. See State v. Lamberton, 183 Ariz. 47, 50, 899 P.2d 939, 942 (1995).

 

Victim’s Bill of Rights does not give victim standing as a “party aggrieved,” within the legal meaning of the term, where complained-of judgment does not operate to deny her some personal or property right or impose a substantial burden upon her, and thus victims do not have the right to file their own petitions for review of a trial court’s final decision regarding a criminal defendant’s petition for post-conviction relief. The prosecutor, on behalf of the State, is an “aggrieved party” and is the proper party to file a petition for review. See State v. Lamberton, 183 Ariz. 47, 49-50, 899 P.2d 939, 941-42 (1995).

Arizona courts must follow and apply the plain language of the Victim’s Bill of Rights. Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 686 (1992).

 

Arizona’s courts are required to follow and apply the plain language of the Victims' Bill of Rights in interpreting its scope.  State ex rel. Dean v. City of Tucson, 173 Ariz. 515, 516, 844 P.2d 1165, 1166 (App.1992).

 

Trial courts do not have authority to make ad hoc exceptions to the Victims' Bill of Rights.  Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992).

 

Appellate court could infer, from language of Victim’s Bill of Rights (VBR) granting victims the right to confer with prosecutors, that such conferences be conducted in an atmosphere that is unconstrained, certainly not intimidating, and one that encourages a victim to speak freely; therefore, trial court order that all such communications be recorded and made available to criminal defendants would substantially infringe upon this right and could not be sustained. See State v. O’Neil, 172 Ariz. 180, 182, 836 P.2d 393, 395 (App. 1991).

 

5.5 –Scope of rulemaking authority pursuant to Victim’s Bill of Rights.

 

Rulemaking power of the legislature granted by the Victim’s Bill of Rights extends only to those "procedural rules pertaining to victims and not with the substantive general subject of the rulemaking power." Slayton v. Shumway, 166 Ariz. 87, 92, 800 P.2d 590, 595 (1990).

 

The scope of legislative rulemaking power under the Victim’s Bill of Rights (VBR) extends to those rules that define, implement, preserve, and protect the specific rights unique and peculiar to crime victims, as guaranteed and created by the VBR. State ex rel. Napolitano v. Brown, – P.2d –, 297 Ariz. Adv. Rep. 5, 1999 WL 356436 (Ariz.) at *3.

 

6. Duty of court to impose restitution for benefit of crime victim.

 

Trial courts are required to impose restitution to reimburse the victims of crime for their full economic loss. See State v. Contreras, 180 Ariz. 450, 453, 885 P.2d 138, 141 (App. 1994); see also, State v. Foy, 176 Ariz. 166, 168, 859 P.2d 789, 791 (App.1993); State v. Holguin, 177 Ariz. 589, 870 P.2d 407 (App.1993); State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App.1992).

 

“Even if a victim declines to request restitution, the trial court's obligation to order it is not excused.” State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994); see also, State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992).

 

“Although the [trial] court did not order restitution in the original disposition, nothing in the record precluded it [from doing so] upon the court's subsequent receipt of a valuation of the victims' economic losses.” State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994).

 

"Restitution is not a claim which belongs to the victim, but a remedial measure that the court is statutorily obligated to employ." State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App.1991).

 

The plain language of Arizona’s constitutional and statutory provisions requires restitution only for losses caused by the criminal conduct for which defendant is convicted.  None of the provisions mandate restitution for noncriminal acts committed by defendant, and statutes specifically exempt traffic offenses from those offenses for which restitution is required. See State ex rel. McDougall v. Superior Court of Maricopa County, 186 Ariz. 218, 220, 920 P.2d 784, 786 (App. 1996).

 

7.     Victims entitled to restitution.

 

In Arizona, victims of crime have a constitutional right "[t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury."  Ariz. Const. art. 2, § 2.1(A)(8). State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994).

 

Where state sent letter to victim in order to inform her of her right to make a statement, including the right to describe the restitution she sought, but she did not receive any calls from probation department and demonstrated no appreciation that by not responding to the letter she would relinquish her right to restitution, letter did not substitute for state’s independent duty to contact the victim to determine the financial consequences of the crime as part of the presentence investigation. See State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994).

 

Where victims did not immediately come forward, but defendant was given notice and allowed to contest the information they presented at two restitution hearings, due process concerns were satisfied and trial court found that, despite a "breakdown in communications" in the victims making the amount of their restitution claims known to the court, they were nonetheless entitled to restitution. See State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994).

 

The plain language of Arizona’s constitutional and statutory provisions requires restitution only for losses caused by the criminal conduct for which defendant is convicted.  None of the provisions mandate restitution for noncriminal acts committed by defendant, and statutes specifically exempt traffic offenses from those offenses for which restitution is required. See State ex rel. McDougall v. Superior Court of Maricopa County, 186 Ariz. 218, 220, 920 P.2d 784, 786 (App. 1996).

 

8.    Victim’s presence in courtroom during proceedings.

 

Defendant’s arguments that victim’s presence in the courtroom during jury selection and possible presence during trial after testifying had prejudiced him and denied him the right to a fair trial held to be without merit because victim had a constitutional right, under Arizona Constitution, to attend all criminal proceedings that defendant had a right to attend. See State v. Gonzales, 181 Ariz. 502, 512, 892 P.2d 838, 848 (1995).

 

Where victim attended jury selection on her own initiative by sitting in the back row of the courtroom, such that neither the court nor counsel knew she was there until several days later, and defendant presented no evidence that prospective jurors noticed her or knew who she was during selection, defendant failed to show that victim’s presence during jury selection was prejudicial. See State v. Gonzales, 181 Ariz. 502, 512, 892 P.2d 838, 848 (1995).

 

9. Victim impact statements.

 

Court’s mere receipt and acceptance of victim impact statement at sentencing, where victim recommends that defendant receive the death penalty and investigating detectives recommend that defendant receive the “maximum penalty,” did not improperly influence the sentencing decision even though the defendant was sentenced to death. See State v. Gonzales, 181 Ariz. 502, 516, 892 P.2d 838, 852 (1995).

 

Where, at a sentencing hearing, the victim's father stated:  "I don't think [defendant] should walk the streets again or stay in jail.  He should be executed as promptly as possible," and the victim's daughter stated:  "I don't want today--him to live....  I don't want the State to have to pay for him to live.  I think that's ridiculous to keep a murderer alive," and the presentence report contained (1) a statement by victim’s daughter that she "would like to see him get the death penalty," and (2) a letter written by the victim’s cousin, stating that "Morality demands that he will never be let loose upon society....  Friends and family feel he doesn't deserve to live.  He should suffer as [the victim] did....  Please provide a sentence that assures his antisocial, violent, amoral behavior can never again be directed against others," supreme court refused to overturn sentence because “nothing in the record indicates that the trial judge gave weight to the victim’s [relative’s] statements.” State v. Gulbrandson, 184 Ariz. 46, 65-66, 906 P.2d 579, 598-99 (1995).

 

“In capital cases, the trial court can give aggravating weight only to evidence that tends to establish an aggravating circumstance enumerated in A.R.S. § 13-703(F), and victim impact evidence does not have that tendency.” State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995), see also State v. Bolton,  182 Ariz. 290, 316, 896 P.2d 830, 856 (1995).

 

Victim impact statements did not impermissibly affect sentence, even though statements were made via 35 letters from victim’s immediate family, extended family, and friends, all of which requested imposition of death penalty, and death sentence was upheld. State v. Mann, 188 Ariz. 220, 228, 934 P.2d 784, 792 (1997).

 

The United States Supreme Court has held that a "State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant ... as to whether or not the death penalty should be imposed."  Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991) (overruling in part Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987)).  Arizona has made that choice and thus, under the Arizona Constitution, and to the extent allowed by Payne and our cases, victim impact evidence should be considered by the court to rebut the defendant's mitigation evidence. State v. Bolton, 182 Ariz. 290, 315, 896 P.2d 830, 855 (1995); see also State ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (App.1992) (Ariz. Const. art. II, § 2.1 limited by rights granted by federal constitution).

 

10. State’s duty to inform victim of his or her rights.

 

One linchpin of the Victim’s Bill of Rights is the right of victims to be informed of their constitutional rights, and the state has an affirmative obligation to so inform them. See State v. Arizona Bd. Pardons & Paroles, 178 Ariz. 591, 597, 875 P.2d 824, 830 (App. 1994).

 

Where state sent letter to victim in order to inform her of her right to make a statement, including the right to describe the restitution she sought, but she did not receive any calls from probation department and demonstrated no appreciation that by not responding to the letter she would relinquish her right to restitution, letter did not substitute for state’s independent duty to contact the victim to determine the financial consequences of the crime as part of the presentence investigation. See State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App. 1994).

 

Fact that victim was never informed of her constitutional right to request notice of, and to participate in, post-conviction release proceedings violated her rights and rendered the release proceedings defective. See State v. Arizona Bd. Pardons & Paroles, 178 Ariz. 591, 597, 875 P.2d 824, 830 (App. 1994).

 

Where state agency admitted that, since 1984, it had made no effort to contact victim to notify her of the occurrence of, and her right to participate in, post-conviction release proceedings, agency failed to satisfy victim’s right to due process, which required agency to make an effort reasonably calculated, under all the circumstances, to apprise her of the pendency of such proceedings and afford her an opportunity to present objections. See State v. Arizo