as: 917 P.2d 703)
Margaret HOUGHTON, Judge of the Superior Court for the State of
in and for the County of Pima, Respondent,
STATE of Arizona, Stephen D. Neely, Pima County Attorney, Real Party in
Court of Arizona.
AND PROCEDURAL HISTORY
in prison, defendant and his cellmate, Corso, fought, resulting in aggravated
assault charges against defendant. Defendant's attorneys sought a
pretrial interview of Corso, but the prosecution, perhaps acting at Corso's
request, denied the interview, claiming that Corso was entitled to victim
status under the Victim's Bill of Rights, Ariz. Const. art. II, § 2.1. The
trial court denied defendant's motion to compel an interview, and the court of
appeals declined special action jurisdiction to review that denial. We
treated defendant's petition for review as a special action, accepted
jurisdiction, and entered an order permitting the interview to go forward with
opinion to follow. This is that opinion. We have jurisdiction
pursuant to Ariz. Const. art. VI, § 5(3) and Ariz. R. Sp. Act. 8.
Victim's Bill of Rights (V.B.R.) of the Arizona Constitution, enacted by the
people in 1990, grants certain rights to those who qualify as
"victims." See Ariz. Const. art. II, § 2.1. One such right is the
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." Ariz. Const. art. II, § 2.1(A)(5). The V.B.R.
defines a "victim" as
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
Const. art. II, § 2.1(C) (emphasis added).
state maintains that the underscored term ("the person") refers to
"the person's spouse, parent, child, or other lawful
representative." Thus, according to the state, the subsection
should be interpreted to read:
the victim is killed or incapacitated, then that person's spouse, parent,
child or other lawful representative [is a victim], *705 except if [the
spouse, parent, child or other lawful representative] is in custody for an
offense or is the accused.
state asserts that this interpretation is clearly indicated by the
construction of the constitutional definition. As additional support for
its interpretation, the state points to this court's comment to Rule 39 of the
Arizona Rules of Criminal Procedure, which states that "it appeared
inadvisable to exclude ... inmate/victims from the rights guaranteed by the
believe the state's suggested reading of the constitutional definition of
victim is unsound. Furthermore, we now conclude that our comment to Rule
39, Ariz. R.Crim. P., cannot be squared with the express wording of the
constitution, and acknowledge that the comment may well have misled the trial
court and the court of appeals in this case. We address the language of
the constitution and of the comment in turn.
The state's proposed interpretation of the constitutional language ignores the
construction of the sentence it attempts to interpret. Ariz. Const. art.
II, § 2.1(C) uses the words "the person" three times and in each
instance those words refer to the one "against whom the criminal offense
has been committed," i.e., the victim. If the victim is killed or
incapacitated, then the victim's relative or representative is a victim.
However, a person cannot be a victim if that person is in custody or is the
In our view, relatives and representatives, according to a proper reading of
the sentence, are not "the person." If the people had meant to
adopt the interpretation which the state urges, they would have stated that
"a victim is a person against whom a crime has been committed or, if the
person is killed ... the person's [relative], except if the relative is in
custody for an offense or is the accused." We are bound by the
clear and unambiguous terms of the constitution. State v. Roscoe, 185
Ariz. 68, 71, 912 P.2d 1297, 1300 (1996). The constitution clearly and
unambiguously exempts those "in custody for an offense" from victim
status. See id.
Equally unconvincing is the state's reliance on our own comment to Rule
39, Ariz. R.Crim. P. As we recently held in Roscoe, the constitution
"clearly define[s] two exceptions to victim status in [section 2.1(C)
]...." 185 Ariz. at 71, 912 P.2d at 1300. Those two
exceptions are persons who are "in custody for an offense" or who
are "the accused." In Roscoe, we held that the courts and the
legislature do not possess the power to "diminish clearly-expressed
constitutional rights to correspond to our (or to the legislature's)
perception of the people's intent." 185 Ariz. at 73, 912 P.2d at
state argues that its interpretation would harmonize our comment to Rule 39
with the V.B.R. It would not. If the state's interpretation were
accepted, and the in-custody "spouse, parent, or child" of a
deceased or incapacitated victim were protected under the V.B.R., then a
senseless inconsistency would result: in-custody relatives of dead victims
would not receive victim status under the V.B.R., while in-custody victims
would receive such status.
this case differs from Roscoe. In Roscoe, we held the trial court's
ruling denied victim status to a person who met the constitutional definition
of a victim. Here, the trial court's ruling confers victim status on one
who falls within one of the two "clearly defined exceptions to victim
status" which we recognized in Roscoe.
However, court rules and comments thereto cannot be given effect if they
conflict with valid provisions of the constitution. We recently held in
Roscoe that the V.B.R. "grants to the legislature the authority to define
the rights created therein, not the power to redetermine who is entitled to
them." 185 Ariz. at 73, 912 P.2d at 1302. We specifically
noted in Roscoe that "we analyze our own Rule 39 ... as closely as the
legislative provision." Id. The people chose to adopt the
provisions of the Victim's Bill of Rights. Just as the legislature
cannot circumvent the will of the people, neither can this court.
Because the framers of the constitutional provision chose to deny to prisoners
("those in custody") the panoply of rights afforded to other
victims, the court must adhere to the constitutional language and *706 ignore
conflicting language in statutes, rules, or comments to rules.
Corso is in custody, he is not a "victim" as defined in the Victim's
Bill of Rights. Accordingly, the trial court erred in denying the motion
to compel an interview. This case is remanded to the trial court for
further proceedings consistent with this opinion.
C.J., ZLAKET, V.C.J., and MARTONE, J., concur.
J., did not participate in the determination of this matter.