as: 184 Ariz. 627, 911 P.2d 633)
a dependant victim, by Richard WEISS, her attorney-guardian ad litem,
COURT of the State of Arizona, IN AND FOR the COUNTY OF MOHAVE, the
Robert R. Moon, a judge thereof, Respondent Judge,
STATE of Arizona, Plaintiff; and Kenneth Ray Inman, Defendant, Real
1 CA-SA 95-0332.
of Appeals of Arizona,
1, Department D.
Inman, the Real Party in Interest, is the Defendant in a criminal case in
which he pled guilty to attempted sexual conduct with a minor. The
Defendant, although conceding his guilt, insists that his conduct was not as
serious as the State suggests, and he subpoenaed the Victim to testify at a
mitigation hearing. The Victim, through her guardian ad litem, seeks
review of the trial judge's order requiring her to give videotaped testimony
to be used at the **635 *629 mitigation hearing. We accept jurisdiction
but deny relief. We hold that the trial court may, in the sound exercise
of its discretion, compel a victim to give testimony at a presentence hearing.
sentence which can be imposed on the Defendant in this case ranges from
probation to fifteen years in prison and has been left to the discretion of
the trial judge. When the Defendant subpoenaed the Victim, her
attorney-guardian ad litem sought to quash the subpoena, arguing that the
Victims' Bill of Rights, Ariz. Const. art. II, § 2.1, allowed the Victim to
refuse to appear and testify. At the hearing on the motion to quash,
defense counsel argued that "exactly what occurred sexually is in
dispute." The trial judge agreed that the Victim's testimony would
be helpful and relevant. He therefore ordered a videotaped
interview/deposition of the Victim and instructed counsel that questions were
to be limited to the issue of what happened physically between the Defendant
and the Victim. He further ordered that, unless the Victim desired
otherwise, the Defendant was to be excluded from the interview. The Victim's
attorney then filed this special action, again relying on the alleged
protection of the Victims' Bill of Rights.
VICTIMS' BILL OF RIGHTS DOES NOT ALLOW A VICTIM TO REFUSE TO TESTIFY AT A
Although a defendant does not have a constitutional right to confront and
cross-examine his accusers at the sentencing stage, State v. Ortiz, 131 Ariz.
195, 209, 639 P.2d 1020, 1034 (1981), cert. denied, 456 U.S. 984, 102 S.Ct.
2259, 72 L.Ed.2d 863 (1982), a defendant does have the right to compel the
attendance of witnesses in his defense. State v. Ramirez, 178 Ariz. 116,
128, 871 P.2d 237, 249, cert. denied, --- U.S. ----, 115 S.Ct. 435, 130
L.Ed.2d 347 (1994). This right extends to a defendant's sentencing
hearing. Id. The Victim argues, however, that the Victims' Bill of
Rights, specifically section 2.1, gives her the right to refuse to appear and
testify at a presentence hearing. Section 2.1 provides:
To preserve and protect victims' rights to justice and due process, a victim
of crime has a 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
Two of this court addressed the protection afforded by the Victims' Bill of
Rights and, more specifically, section 2.1(A)(5) in State ex rel. Dean v. City
of Tucson, 173 Ariz. 515, 844 P.2d 1165 (App.1992). There, the defendant
subpoenaed the victim to testify at a pretrial hearing. The state filed
a special action in the superior court seeking to quash the subpoena. The
superior court denied relief and the state appealed, arguing that the Victims'
Bill of Rights gave the victim the right to refuse to appear and testify at
the hearing. Division Two acknowledged that courts are required to
follow and apply the plain language of the amendment. See Knapp v.
Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992). However, it found
"nothing in the [amendment] which permits an alleged victim to refuse to
appear or testify at pretrial hearings." Dean, 173 Ariz. at 516,
844 P.2d at 1166. The court noted that, "[w]hile the [Victims' Bill
of Rights] provides certain safeguards to protect the alleged victim's privacy
and to minimize the victim's contacts with the defendant, [it] impliedly
recognizes that a victim may appear and testify at a proceeding other than a
trial." Id. The court reasoned that, because the statute
allows a victim to refuse to testify regarding information which could be used
to locate the victim, see Ariz.Rev.Stat.Ann. section 13- 4434, [FN1] the
legislature understood that a victim might still be called to court
proceedings and compelled to testify on other matters. Id. at 516-17,
844 P.2d at 1166-67. The Dean court then focused on section 2.1(A)(5)
and concluded that,
A.R.S. §§ 13-4401 through 13-4439 define crime victims' rights and
incorporate the Victims' Bill of Rights.
*630 [w]hile subsection (5) has been interpreted to preclude trial courts from
ordering the deposition of an alleged victim who has indicated an
unwillingness to be interviewed by the defendant, it has not been interpreted
to permit victims to refuse to testify at court proceedings.
at 517, 844 P.2d at 1167.
the holding in Dean deals with pretrial hearings, its reasoning applies to all
court proceedings. First, the Victims' Bill of Rights impliedly
recognizes that a victim may appear and testify at a proceeding other than
trial, e.g., a presentence hearing. Second, the legislature understood
that a victim may be called to court proceedings and testify on certain
matters. The testimony sought from the Victim in this case is not of the
type which could be used to locate her and is not prohibited by the statutes.
Finally, section 2.1(A)(5) was not intended to permit victims to refuse to
testify in court proceedings, including presentence hearings. Therefore,
we hold that a victim does not have a categorical right to refuse to appear
and testify at presentence proceedings.
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THE VICTIM'S PROSPECTIVE
The Victim argues that the Defendant failed to show that the Victim will
provide relevant, mitigating evidence and, therefore, she should not be
compelled to testify. We disagree. The trial judge has wide
discretion to review a variety of sources and types of information in
determining the extent of punishment. State v. Ross, 144 Ariz. 154, 157,
696 P.2d 706, 709 (App.1984). We will not overturn the court's finding
of relevancy absent an abuse of discretion. State v. Amaya-Ruiz, 166
Ariz. 152, 167, 800 P.2d 1260, 1275 (1990), cert. denied, 500 U.S. 929, 111
S.Ct. 2044, 114 L.Ed.2d 129 (1991). The purpose of a presentence hearing
is to insure that the sentencing judge is fully informed as to the character
of the individual to be sentenced and the circumstances of the crime.
State v. Ohta, 114 Ariz. 489, 562 P.2d 369 (1977). This is especially
true when the sentence to be imposed is completely within the discretion of
the trial judge. State v. Fenton, 86 Ariz. 111, 341 P.2d 237, cert.
denied, 361 U.S. 877, 80 S.Ct. 142, 4 L.Ed.2d 115 (1959).
Defendant maintains that the facts surrounding the offense are disputed.
If the statement of one witness is accepted, the Defendant may have engaged in
forcible intercourse with the Victim. The Defendant concedes only that
he and the Victim "loved each other and played around and rubbed each
other and that was the extent of it." Nothing in the record before
us indicates that the Victim's version of the facts is included in the
presentence report. In ruling on the motion to quash, the judge
speculated that the Victim's testimony could encompass anything from
"forcible rape on a regular basis" to mutual "teas[ing] and
rubb[ing] each other on an occasional basis." He concluded that
"the victim's testimony would be relevant on the issue of what physically
has happened between these two." He further found that the Victim's
testimony might establish mitigating circumstances. Since it is possible
that the Defendant is telling the truth, this was not an abuse of discretion.
realize that, by not acquainting the judge with the Victim's version of
events, the State and/or the Victim may consciously wish to run the risk that
the judge will accept the Defendant's version of what happened. Whether
or not to do so would be discretionary with the trial judge, and we believe
that the best policy requires the court to be fully informed. Because
the Defendant's possible sentence ranges from probation to fifteen years in
prison, the complete picture of what physically happened is critically
do not hold that a defendant in every case can compel a victim to testify at a
mitigation hearing. When such testimony is clearly relevant and may be
important to the sentencing outcome, the trial judge does have discretion to
compel such testimony.
relief sought is denied.
P.J., and GARBARINO, J., concur.