(Cite as: 171 Ariz. 529, 831 P.2d 1297)
SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA,
Honorable Rufus C. Coulter, a judge thereof, Richard M. Romley, Maricopa
Attorney, and Laura Reckart, Deputy Maricopa County Attorney, Respondents,
Atwell BEATTY, Real Party in Interest.
No. 1 CA-SA 91-265.
Court of Appeals of Arizona,
Division 1, Department A.
June 2, 1992.
EHRLICH, Presiding Judge.
S.A. ("petitioner") [FN1] was arrested following her refusal to honor a
subpoena requiring her to testify at a criminal proceeding against Atwell
Beatty. Her refusal was based upon her understanding of the Victims' Bill
of Rights. The trial court ordered her to testify and she filed a petition
for special action. We accepted jurisdiction and denied relief with this
opinion to follow.
FN1. In the interests of the victim's privacy, the petitioner's name has
FACTS AND PROCEDURAL HISTORY
The petitioner is alleged to be a victim of criminal offenses perpetrated
by Beatty. At the direction of the prosecution, she was served a subpoena
directing her to testify at Beatty's criminal trial. [FN2] On the day she
**1298 *530 was to appear, the petitioner telephoned the prosecutor and
informed counsel that she would not attend. When the petitioner in fact did
not appear, the trial court issued a warrant for her arrest. The following
day, the petitioner was arrested and brought before the court. She argued
that, as a victim entitled to protection under the Victims' Bill of Rights,
she could not be compelled to testify at Beatty's trial. The court ruled to
FN2. The criminal trial was originally scheduled for September 16, 1991, and
was continued three times to November 20, 1991. A subpoena was issued which
required the petitioner's attendance at trial on September 16, 1991, but was
not served. A second subpoena, the subject of this special action, was
served on September 23, 1991.
The petitioner originally asserted that the respondents violated her rights
under the Victims' Bill of Rights by issuing and executing a warrant for her
arrest and by commanding her appearance at a criminal trial against her
wishes. However, the issue was refined to be whether the Victims' Bill of
Rights permits a victim to refuse to testify at an accused's criminal trial.
A. Special Action Jurisdiction
 We accepted special action jurisdiction because the issue requires us
to interpret a portion of a constitutional amendment, see Escalanti v.
Superior Court, 165 Ariz. 385, 386, 799 P.2d 5, 6 (App.1990), and is of
statewide significance, Duquette v. Superior Court, 161 Ariz. 269, 271, 778
P.2d 634, 636 (App.1989); City of Phoenix v. Superior Court, 158 Ariz. 214,
216, 762 P.2d 128, 130 (App.1988), appropriately framed and turning on legal
principles rather than factual determinations. University of Arizona Health
Sciences Center v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296
(1983); see also State v. Warner, 168 Ariz. 261, 262, 812 P.2d 1079, 1080
(App.1990). Further, as the respondents concede, the petitioner lacks an
appellate remedy. See Bechtel v. Rose, 150 Ariz. 68, 71, 722 P.2d 236, 239
(1986); Ariz.R.P. Special Actions 1(a).
B. Victim's Refusal to Testify at Trial
 Article 2 of the Arizona Constitution was amended in 1990 by the
addition of section 2.1. [FN3] The amendment is commonly referred to as the
Victims' Bill of Rights and provides in relevant part:
FN3. The amendment, Proposition 104, was approved by a majority of Arizona
voters at a special election on November 6, 1990, and proclaimed by the
governor on November 27, 1990. See Ariz. Const. art IV, pt. 1, § 1(5).
(A) To preserve and protect victims' rights to justice and due process, a
victim of crime has a right:
5. To refuse an interview, deposition, or other discovery request by the
defendant, the defendant's attorney, or other person acting on behalf of the
The amendment defines "victim" as "a person against whom the criminal
offense has been committed." Ariz. Const. art. II, § 2.1(C).
An established rule of constitutional construction instructs us to follow
the constitution's text and the framers' intent, if it can be determined.
E.g., Fain Land & Cattle Company v. Hassell, 163 Ariz. 587, 595, 790 P.2d
242, 250 (1990). Specifically, we are directed to "follow and apply the
plain language of" the Victims' Bill of Rights. Knapp v. Martone, 170 Ariz.
237, 239, 823 P.2d 685, 687 (1992).
The text of the amendment clearly grants a victim the right to refuse
certain discovery requests by the defense, such as interviews and
depositions. Ariz. Const. art. II, § 2.1(A)(5); see Ariz.R.Crim.P. 39
(includes victim's right to refuse to be interviewed or deposed under
certain situations); Day v. Superior Court, 170 Ariz. 215, 217, 823 P.2d
82, 84 (App.1991) (same); Warner, 168 Ariz. at 264, 812 P.2d at 1082
(same); see also State v. Superior Court (Roper), no. 1 CA-SA 92-0004, (Ariz.Ct.App.,
May 18, 1992), slip op. at 10 (victim may refuse to make available victim's
medical records in certain circumstances); State v. O'Neil, 101
Ariz.Adv.Rep. 104, 105 (App., **1299 *531 Dec. 10, 1991) (state not required
to record communications with witnesses and make them available to
defense). However, neither the text of subsection (A)(5) nor of any other
subsection of the amendment declares or even implies that a victim has a
constitutional right to refuse to obey a court order to appear and testify
at an accused's criminal trial. See Warner, 168 Ariz. at 264, 812 P.2d at
1082; Thomas B. Dixon, Comment, Arizona Criminal Procedure After the
Victims' Bill of Rights Amendment: Implications of a Victim's Absolute
Right to Refuse a Defendant's Discovery Request, 23 Ariz.St.L.J. 831, 842-43
Examination of the publicity pamphlet to which Arizona courts repeatedly
have referred in analyzing the drafters' intent and interpreting provisions
of the Arizona Constitution, e.g., Laos v. Arnold, 141 Ariz. 46, 48, 685
P.2d 111, 113 (1984); McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290,
645 P.2d 801, 805 (1982); County of Apache v. Southwest Lumber Mills, Inc.,
92 Ariz. 323, 325, 376 P.2d 854, 855 (1962); Bussanich v. Douglas, 152
Ariz. 447, 450, 733 P.2d 644, 647 (App.1986), yields nothing to cloud the
apparent meaning. The publicity pamphlet distributed to voters for the
election included an analysis of the proposed amendment by the legislative
council in compliance with Ariz.Rev.Stat.Ann. section ("A.R.S. §") 19-124,
but it only reiterated the specific rights to which a victim would be
entitled. Nothing in the pamphlet, including the letters in its favor from
members of the Victims' Bill of Rights Task Force, indicates that the
amendment, if approved, would permit a victim to refuse to testify at an
accused's criminal trial. We cannot glean any intent of the drafters that
such resistance was envisioned.
 Indeed, given that the victim also may be a complaining witness who has
made accusatory statements, were such a refusal allowed by the Victims' Bill
of Rights, a defendant's rights under the United States and Arizona
Constitutions would be jeopardized. The Confrontation Clause of the Sixth
Amendment to the United States Constitution, extended to state prosecutions
through the Due Process Clause of the Fourteenth Amendment, Pointer v. Texas,
380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965); State ex
rel. Collins v. Superior Court, 132 Ariz. 180, 187, 644 P.2d 1266, 1273
(1982), guarantees a defendant the right to confront the witnesses against
him. The Arizona Constitution is to a similar effect: "In criminal
prosecutions, the accused shall have the right ... to meet the witnesses
against him face to face, ..." Ariz. Const. art. II, § 24; see State v.
Edwards, 136 Ariz. 177, 180, 665 P.2d 59, 62 (1983); see also A.R.S. §
13-114(3) (defendant's right to confront adverse witnesses at trial). The
protection afforded a defendant by the Confrontation Clause is a trial right
which usually is satisfied if the defendant is permitted sufficient latitude
in the cross-examination of witnesses at trial. Pennsylvania v. Ritchie, 480
U.S. 39, 52-53, 107 S.Ct. 989, 998-99, 94 L.Ed.2d 40 (1987). See Delaware v.
Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)
(quoting Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109-10, 39
L.Ed.2d 347 (1974)); Roper, slip op. at 15-18. In Warner, Division Two of
this court recognized that "the substantive right involved [in subsection
(A)(5) of the Victims' Bill of Rights] is the right to confront and
cross-examine the witnesses against the [defendants], that is, the victims.
The amendment does not affect that right, which can be fully exercised at
trial...." 168 Ariz. at 263, 812 P.2d at 1082. Thus, if the petitioner were
permitted under the Victims' Bill of Rights to refuse to testify at Beatty's
trial, Beatty's constitutional rights would be compromised.
Additionally, society's interest in justice would be jeopardized if we were
to uphold the petitioner's position. Just as in Roper, in which case it was
said that the Victims' **1300 *532 Bill of Rights "should not be a sword in
the hands of victims to thwart a defendant's ability to effectively present a
legitimate defense," slip op. at 18, the Victims' Bill of Rights should not be
a "sword in the hands of victims" to thwart the prosecution of a wrongdoer.
In this case, the petitioner is the critical, and perhaps only, witness. By
refusing to testify, perhaps by having succumbed to pressure from the
accused's family, she has attempted to usurp the discretion given to the
prosecution and to the grand jury in their charging decisions. This is beyond
the appropriate protection given to victims of crimes by the constitutional
For the foregoing reasons, we accept special action jurisdiction and deny the
relief requested by the petitioner.
CONTRERAS and VOSS, JJ., concur.
END OF DOCUMENT