(Cite as: 184 Ariz. 196, 908 P.2d 10)
STATE of Arizona, Petitioner,
Robert David BLACKMON, Respondent.
No. 1 CA-CR 94-0748-PR.
Court of Appeals of Arizona,
Division 1, Department E.
Aug. 17, 1995.
Review Denied Dec. 19, 1995.
KLEINSCHMIDT, Presiding Judge.
The State filed this petition seeking review of the trial court's decision
to grant the Defendant's petition for post-conviction relief. **11 *197 The
substantive issue is whether the Defendant had the right to cross-examine
the victim at his sentencing hearing. The victim made an unsworn statement
at the hearing as she had a right to do under the Victim's Bill of Rights,
Article 2, section 2.1 of the Arizona Constitution. The trial judge refused
to let the Defendant cross-examine the victim. Later, when the Defendant
reargued his position in a petition for post-conviction relief, the same
judge became convinced that the Defendant should have been given the
opportunity to cross-examine the victim. He accordingly, and correctly,
granted the petition for post-conviction relief.
The Defendant pled guilty to two counts of attempted sexual assault in
September 1993. The charges arose out of the Defendant's having forced his
wife, from whom he was separated, to have sex with him. Prior to his
sentencing hearing, the Defendant moved to excise portions of the
presentence report and requested the opportunity to cross-examine his wife
as to statements she made that were included in the presentence report.
During the hearing on this motion, the issue of whether the victim was going
to testify at the sentencing hearing arose. The Defendant wanted to
cross-examine the victim if she testified at the sentencing hearing. The
court ruled that if the State called the victim to testify and she was
sworn, the Defendant could cross- examine her, but if the victim chose to
make a statement on her own pursuant to the Victim's Bill of Rights without
being sworn, the Defendant could not cross- examine her. At the sentencing
hearing, the victim made an unsworn statement, and the Defendant was not
permitted to cross-examine her.
After the Defendant was sentenced to five years in prison and five years
probation, he filed a petition for post-conviction relief. He argued that
the trial court violated his right to due process of law in refusing to
allow him to cross-examine the victim. He asserted that the Victim's Bill
of Rights does not prohibit a defendant from calling the victim of the crime
to testify at a presentence hearing, or that even if it does, it could not
override his right to due process.
The trial judge issued a comprehensive minute entry in which he noted that
prior to the adoption of the Victim's Bill of Rights, the law was that a
defendant had a due process right to question victims who testified at
presentence hearings. He cited State v. Asbury, 145 Ariz. 381, 701 P.2d
1189 (App.1984), for this proposition. The judge noted that nothing in the
Victim's Bill of Rights seemed to abolish this right, and in at least one
case that was decided after the passage of the Victim's Bill of Rights, the
court had required a victim to testify at a preliminary hearing. See State
ex rel. Dean v. City Court of City of Tucson, 173 Ariz. 515, 516, 844 P.2d
1165, 1166 (App.1992). The judge concluded that the Victim's Bill of Rights
did not preclude the Defendant from calling the victim to testify at the
hearing, and thus, the rule in Asbury still applied. The judge also noted
that a defendant's due process right would be paramount to any rights of a
victim not to testify, citing State ex rel. Romley v. Superior Court, 172
Ariz. 232, 236, 836 P.2d 445, 449 (App.1992).