as: 186 Ariz. 569, 925 P.2d 710)
FLAG -- see State v. Riggs, 189 Ariz. 327, 942 P.2d 1159 (1997)>
of Arizona, Appellee,
Allen TAGGART, Appellant.
1 CA-CR 94-0926.
of Appeals of Arizona,
1, Department D.
Granted Oct. 21, 1996.
Taggart appeals from his conviction on two counts of aggravated assault.
He claims that he should have been allowed to cross-examine the victims about
their refusal to be interviewed by his attorney before trial. We find
that although the restriction on cross-examination violated the Defendant's
right to confrontation, the error, under the particular facts of this case,
was harmless beyond a reasonable doubt.
on a night in March of 1994, the victims, R and P, were riding home on their
bicycles from their jobs as restaurant workers when the Defendant rode up to
them on another bicycle, skidded to a stop, shined a flashlight on P's face,
pulled a knife, and demanded, "all you got." The victims
became frightened and P rode off on his bike. The Defendant chased P,
and R followed them both. After a short chase, the Defendant stopped and
stated, "I'm sorry, I got the wrong guys."
and P immediately reported the incident to the police. They described
their assailant as a white male, 25 to 27 years old, with short blond hair
parted in the middle. They said he was wearing a white sweatshirt, faded
jeans, and black and brown gloves. They also said he had a light colored
backpack, a black and yellow flashlight, and was riding a blue mountain bike
with curved handlebars.
after the incident was reported, a police officer spotted the Defendant who
fit the assailant's description and was riding a blue mountain bike.
When the officer made a U-turn, the Defendant turned into an apartment
complex. As the Defendant attempted to leave the complex through a gate,
an officer arrested him. The Defendant was wearing blue jeans, a
sweatshirt, gloves, and otherwise fit the physical descriptions given by the
victims. Two knives and a black and yellow flashlight were found in the
Defendant's possession. Both victims individually identified the
Defendant. Victim P also identified the Defendant's bicycle.
Defendant was charged with two counts of aggravated assault. Prior to
trial, both R and P declined the request of the Defendant's counsel for an
interview. When R testified at trial, the defense attorney asked him if
he had refused to grant a pretrial interview. The court sustained the
prosecutor's objection to the question.
the Defendant testified, he admitted that he had ridden up to the victims
thinking they were friends but then realized they were two teenagers and
stated, "Sorry, I got the wrong guys." He testified that he
then made a U-turn, got off his bike, took his knife out of his right rear
pocket and placed it in his left rear pocket and put some pipe cleaners in his
right rear pocket. He testified that at that point, one of the victims
rode off, circled around, and then both victims rode away. The Defendant
asserted he never threatened the victims or attempted to rob them. The
Defendant was found guilty on both counts.
Defendant argues that the restriction on his cross-examination of the victims
violated *571 **712 his federal and state constitutional rights to
confrontation. The trial judge sustained the objection because he
believed: (1) that a victim's refusal to be interviewed does not show bias or
prejudice and is not useful to impeach the witness; (2) that the
Victims' Bill of Rights suggests that it is improper for the defense to
comment at trial on the victim's refusal to grant an interview; and (3) that
it is as improper to comment on the exercise of a victim's right not to give
an interview as it is to comment on a defendant's invocation of his right to
remain silent. We disagree and find that limiting cross-examination on
this subject was a denial of the right to confront witnesses.
The right to cross-examine a witness is a vital part of confrontation.
Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109- 10, 39 L.Ed.2d 347
(1974). However, cross-examination may be restricted based on concerns
for harassment, prejudice, or marginal relevance. Michigan v. Lucas, 500
U.S. 145, 149, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991); State v. Fleming,
117 Ariz. 122, 125, 571 P.2d 268, 271 (1977). The balance between these
competing interests hinges on whether the defendant was denied the opportunity
to present information bearing on the issues in the case or on the credibility
of a witness. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct.
1431, 1435-36, 89 L.Ed.2d 674 (1986); Fleming, 117 Ariz. at 125, 571
P.2d at 271.
A witness's refusal to grant a pretrial interview is relevant. An
Illinois court, in State v. Van Zile, 48 Ill.App.3d 972, 6 Ill.Dec. 747, 363
N.E.2d 429 (1977), reasoned that:
credibility of a witness is always an issue--more correctly, in issue. A
refusal to talk in advance of trial to the other side reasonably could
indicate hostility by the witness to the inquiring side, or at least a bias
for, or an interest in, a favorable outcome for the side calling him. We
say 'could' because triers of the fact need not invariably so conclude, but
they reasonably can do so.
our present system of liberal discovery, both sides at a minimum know the
witnesses who will oppose them. Admittedly, both sides have the right to
attempt to interview the other's witnesses. Admittedly too, witnesses
have a corollary right not to be interviewed if they so choose. But this
refusal, in our opinion, can be used against them to argue bias, hostility,
interest in outcome, all of which look to credibility. It is a risk the
witness or his side takes. That there are reasonable inferences from
such conduct cannot be gainsaid. Although they are not inexorable, they
are reasonable. It is up to the trier of the fact to accept or reject
at 751, 363 N.E.2d at 433; see also People v. McCollum, 239 Ill.App.3d
593, 180 Ill.Dec. 346, 349, 607 N.E.2d 240, 243 (1992) (state witness's right
to refuse defense interview is relevant to demonstrate bias, hostility,
prejudice, or interest in outcome); People v. Allison, 236 Ill.App.3d
175, 177 Ill.Dec. 116, 124, 602 N.E.2d 1288, 1296 (1992) (same); People v.
Atteberry, 213 Ill.App.3d 851, 157 Ill.Dec. 365, 366, 572 N.E.2d 434, 435
(1991) (same); Lacy v. State, 629 So.2d 591, 593 (Miss.1993) (same);
Tolbert v. State, 511 So.2d 1368, 1378 (Miss.1987) (same), cert. denied, 484
U.S. 1016, 108 S.Ct. 723, 98 L.Ed.2d 672 (1988); State v. Hallman, 137
Ariz. 31, 36, 668 P.2d 874, 879 (1983) (inquiry into defense witness's refusal
to honor state's subpoena is relevant to credibility). While a victim's
refusal to be interviewed may be based on nothing more than a desire to be
left alone, it must remain the jury's prerogative to decide whether such a
refusal reflects on the victim's credibility. Van Zile, 6 Ill.Dec. at
747, 363 N.E.2d at 429. Refusing to allow the cross-examination was
unreasonable and violates the Defendant's right to confrontation.
Allison, supra; Atteberry, supra; contra State v. Riggs, 186 Ariz.
573, 925 P.2d 714 (App.1996).
The Arizona Constitution does provide that a victim may "refuse an
interview, deposition, or other discovery request by the defendant."
Ariz. Const. art. II, § 2.1(A)(5). Arizona Revised Statutes Annotated
("A.R.S.") section 13-4433(E) further provides:
*572 If the defendant or the defendant's attorney comments at trial on the
victim's refusal to be interviewed, the court shall instruct the jury that the
victim has the right to refuse an interview under the Arizona Constitution.
13-4433(E) is a legislative acknowledgement that victims who exercise the
right to refuse interviews can be cross-examined about such refusals. In
Riggs, supra, the majority interprets this statute as merely intending to
cover situations where the victim's refusal to be interviewed was
inadvertently placed before the jury. Interpreting section 13-4433(E) to
bar cross-examination about the refusal would attribute an intent to the
legislature that would violate the doctrine of separation of powers. Barsema
v. Susong, 156 Ariz. 309, 314, 751 P.2d 969, 974 (1988) (statute purporting to
bar evidence of insurance coverage is unconstitutional violation of separation
of powers doctrine). Moreover, a victim's state constitutional right to
refuse an interview must yield when it conflicts with a defendant's right to
confront witnesses protected by the federal constitution. Reynolds v.
Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964) (Supremacy
Clause controls conflicts between state and federal constitutions);
State ex rel. Romley v. Superior Court, 172 Ariz. 232, 236, 836 P.2d 445, 449
(App.1992) (Victims' Rights Act must yield to defendant's right to due process
and effective cross-examination of witnesses).
We also find the trial judge's analogy--of the victim's right not to be
interviewed to a defendant's right to remain silent--unconvincing. A
defendant's right to remain silent springs from the constitutional safeguard
against self-incrimination. Davis v. United States, 512 U.S. 452, ----,
114 S.Ct. 2350, 2354, 129 L.Ed.2d 362 (1994); State v. Anderson, 102
Ariz. 295, 298, 428 P.2d 672, 675 (1967). It is rooted in the
"distrust of self-deprecatory statements" and the desire to avoid
putting a defendant in the "cruel trilemma of self-accusation, perjury or
contempt." Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S.
52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964). On the other hand, a
victim's right to refuse a pretrial interview rests on the desire to protect a
victim's privacy and minimize contact with the defendant. State ex rel.
Dean v. City Court of Tucson, 173 Ariz. 515, 516, 844 P.2d 1165, 1166
(App.1992). A defendant's right against self-incrimination is of more
weight than a victim's right not to be interviewed. Moreover, cross-examination
of a victim about his refusal to grant an interview does not entail any more
of an invasion of privacy or a contact with a defendant than that already
inherent in the requirement that a victim testify at trial. S.A. v.
Superior Court, 171 Ariz. 529, 531, 831 P.2d 1297, 1299 (App.1992) (Victims'
Rights Act does not give crime victim right to refuse to testify at
defendant's criminal trial). In other words, such cross-examination of
the victim, unlike cross-examination concerning a defendant's exercise of his
right to remain silent, does not defeat the purpose for which the right was
Violations of a defendant's confrontation right are susceptible to harmless
error analysis. Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436 (1986);
State v. Medina, 178 Ariz. 570, 577, 875 P.2d 803, 810 (1994). Here, the
restriction on cross-examination precluded an inquiry into the victims'
motives for denying the pretrial interviews. While we are sensitive to
the fact that this kind of self-concealing error is dangerous because motive
and attitude might never be discovered if cross-examination is limited, in
this case there appears to be little chance that the refusal of the witnesses
to be interviewed was particularly significant. The Defendant does not
claim that this is a case of mistaken identity. He asserts that the
victims misunderstood the nature of his actions. The victims were not
acquainted with the Defendant, and the Defendant does not supply any
conceivable motive they would have to make a false report of a crime to the
police. The victims' testimony was plausible, consistent, and partially
corroborated by the Defendant's own admissions. The evidence of the
Defendant's guilt was very strong, and we therefore find that the error was
harmless beyond a reasonable doubt. Van Arsdall, supra; Medina,
*573 The State concedes that another claim of error does have merit. The
trial court's minute entry mistakenly reflects that the Defendant committed
the crimes while on felony release, in violation of A.R.S. section 13-604.02.
That allegation was withdrawn and was given no effect at sentencing. The
reference in the minute entry to section 13-604.02 should be deleted.
have reviewed the record for fundamental error and have found none. The
judgments of conviction and sentences are affirmed. The reference in the
minute entry to the Defendant being on felony release status at the time of
the offense is deleted.
P.J., and GARBARINO, J., concur.