                                                                   FILED BY CLERK
                                                                      JUN 14 2010
                                                                       COURT OF APPEALS
                             IN THE COURT OF APPEALS                     DIVISION TWO
                                 STATE OF ARIZONA
                                   DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )   2 CA-SA 2010-0021
                              Petitioner,   )   DEPARTMENT B
                                            )
                   v.                       )   OPINION
                                            )
HON. RICHARD D. NICHOLS, Judge              )
of the Superior Court of the State of       )
Arizona, in and for the County of Pima,     )
                                            )
                           Respondent,      )
                                            )
                  and                       )
                                            )
ROBERT ARTHUR ERGONIS,                      )
                                            )
                  Real Party in Interest.   )
                                            )

                          SPECIAL ACTION PROCEEDING

                          Pima County Cause No. CR20074823

                   JURISDICTION ACCEPTED; RELIEF GRANTED


Terry Goddard, Arizona Attorney General
 By Kimberly H. Ortiz                                                         Tucson
                                                              Attorneys for Petitioner

Payson & Gattone
 By Paul Gattone                                                               Tucson
                                                   Attorneys for Real Party in Interest
B R A M M E R, Judge.


¶1            In this special action, the State of Arizona seeks relief from the respondent

judge‟s order compelling a crime victim, J.C., to submit to a pretrial interview by defense

counsel. At issue is an ambiguity in the definition of a “victim” in Arizona‟s Victims‟

Bill of Rights (“VBR”), article II, § 2.1 of the Arizona Constitution.1 The question we

must answer is whether, by excluding from the VBR‟s definition of a “victim” any

person “in custody for an offense,” Arizona voters intended to deny victims‟ rights not

only to inmates against whom a criminal offense has been committed while they are

incarcerated but also, more broadly, to exclude those who, after having been victimized,

subsequently are taken into custody and remain incarcerated for any reason when they

otherwise could exercise a right or rights conferred on victims by the VBR.

¶2            We accept jurisdiction of this special action for several reasons. First,

A.R.S. § 13-4437(A) and Rule 2(a)(2), Ariz. R. P. Spec. Actions, expressly authorize

victims to enforce their rights under the VBR in special action proceedings.

Additionally, the challenged order is interlocutory in nature, and the state has no equally

plain, speedy, or adequate remedy by appeal. See Ariz. R. P. Spec. Actions 1(a). And,

the issue presented “is one of first impression, involves only questions of law[,] and is of


       1
         The VBR was added to the Arizona Constitution after voters in the
November 1990 general election approved Proposition 104, which was based on a voter-
initiative measure. See Ariz. Const. art. II, § 2.1, hist. note. “[T]he constitutional
amendment contained in Proposition 104 became effective upon the November 27[,
1990,] proclamation by the governor.” State v. Warner, 168 Ariz. 261, 263, 812 P.2d
1079, 1081 (App. 1990).

                                             2
statewide importance to the criminal justice system . . . .” State v. Warner, 168 Ariz. 261,

262, 812 P.2d 1079, 1080 (1983). We conclude that J.C. retained his constitutional right

to refuse to be interviewed by the defense, see art. II. § 2.1(A)(5), and that the respondent

judge erred in compelling him to submit to an interview, see Ariz. R. P. Spec. Actions

3(c).

                               FACTS AND PROCEDURE

¶3            Real party in interest Robert Ergonis is one of four codefendants indicted

together in March 2008 in Pima County cause number CR20074823. The indictment

charges Ergonis with five dangerous-nature felonies committed against J.C., who was

kidnapped, robbed, and assaulted in Tucson on December 8, 2007. Shortly thereafter J.C.

moved from Arizona to Massachusetts. There, he was arrested and later convicted of an

unrelated weapons offense, for which he was incarcerated from October 30, 2008, until

March 10, 2009.

¶4            In December 2008, while J.C. was in custody in Massachusetts, counsel for

Kumari Fulbright, one of Ergonis‟s codefendants, requested a pretrial interview of J.C.

In a motion to compel the interview filed on March 2, 2009, Fulbright‟s counsel argued

that, because J.C. was in custody on criminal charges, he “no longer ha[d] the status of a

victim” under the VBR and therefore could not refuse to be interviewed. Although

tacitly agreeing with that position, the state argued the issue was moot because J.C. had

been released on March 10, 2009. By implication, the state suggested J.C. had regained

his status and rights as a victim under the VBR when released.



                                             3
¶5               At a hearing on November 9, 2009, Fulbright‟s counsel reargued his

previously filed motion to compel an interview with J.C. Counsel reiterated Fulbright‟s

position that, “if a named victim is incarcerated, he gives up his victim‟s right to the

extent he cannot decline to be interviewed.” Again the state did not dispute Fulbright‟s

interpretation of article II, § 2.1. Asked by the respondent judge if she “agree[d] that

once a victim is in custody even on other charges, that they lose their constitutional right

to refuse to be interviewed,” the prosecutor responded, “That‟s what [Stapleford v.

Houghton, 185 Ariz. 560, 562, 917 P.2d 703, 705 (1996)] says, yes. That‟s what the

statute says.”

¶6               The state opposed Fulbright‟s interview requests below based not on the

meaning of the phrase “in custody,” but rather on the timing of Fulbright‟s requests in

relation to the dates of Joshua‟s incarceration and release from custody in Massachusetts.

With respect to Ergonis, the state additionally argued he never had made a sufficient

request to interview J.C. because his counsel had not filed a separate, written motion but,

instead, merely had replied in the affirmative when asked orally if he wished to join in

Fulbright‟s motion.2 After the prosecutor agreed when the respondent judge asked if it

was “purely as a practical matter that [counsel for Fulbright] wasn‟t able to interview


       2
        According to the state, Ergonis did not join in Fulbright‟s motion to interview
J.C. until November 9, 2009, months after his release from custody. This assertion
appears at least debatable, as Fulbright‟s counsel stated in the written “motion for
sanctions to compel the interview of [J.C.]” he filed on March 2, 2009, that he had
spoken to Ergonis‟s counsel “who indicates that not only does she join in the motion
[but] requested that [Fulbright‟s counsel] advise the Court that she will be prepared for
the interview, so that the timing of the interview is not an issue.”

                                             4
[J.C.] because he was detained and then released too quickly,” the respondent granted the

motion to compel the interview. The respondent found “the defense [had] file[d] a

request to interview the victim at a time when the victim did not have the right to refuse

to be interviewed because of his incarceration.” At the state‟s request, we have stayed

the respondent‟s order compelling J.C. to submit to the interview and Ergonis‟s criminal

trial pending our ruling in this matter.

                                       DISCUSSION

¶7            Crime victims‟ rights in Arizona are protected by our constitution, by

statute, and by court rule. Even before the constitutional amendment that added the

VBR, our supreme court had adopted Rule 39, Ariz. R. Crim. P., “to preserve and protect

a victim‟s rights to justice and due process.” Ariz. R. Crim. P. 39(b), effective Aug. 1,

1989. Then, in the November 1990 general election, voters approved Proposition 104,

the VBR, which was based on a voter-initiative measure.3 See Ariz. Const. art. II, § 2.1,

hist. note. The year following the adoption of the VBR, under the authority granted by

§ 2.1(D) of article II,4 our legislature enacted the Victims‟ Rights Implementation Act,

see 1991 Ariz. Sess. Laws, ch. 229, §§ 1-17, now codified as A.R.S. §§ 13-4401 through




       3
       “[T]he constitutional amendment contained in Proposition 104 became effective
upon the November 27[, 1990,] proclamation by the governor.” Warner, 168 Ariz. at
263, 812 P.2d at 1081.
       4
        Subsection 2.1(D) of article II provides in pertinent part: “The legislature, or the
people by initiative or referendum, have the authority to enact substantive and procedural
laws to define, implement, preserve and protect the rights guaranteed to victims by this
section . . . .”

                                             5
13-4440.5 See generally State v. Roscoe, 185 Ariz. 68, 70, 912 P.2d 1297, 1299 (1996)

(providing historical overview).

¶8              Article II, § 2.1(C) of the Arizona Constitution defines “[v]ictim” for

purposes of the VBR as

                a 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
                accused.

Section 13-4401(19) of the Victims‟ Rights Implementation Act provides a definition of

“[v]ictim” containing additional language not included in the VBR.6 However, it is the

constitutional definition that ultimately controls. See Roscoe, 185 Ariz. at 72, 912 P.2d at

1301 (neither implementing statutes nor court rules “„eliminate or narrow rights


       5
       As originally enacted, chapter 40 of title 13, A.R.S., consisted of A.R.S.
§§ 13-4401 through 13-4437. See 1991 Ariz. Sess. Laws, ch. 229, § 7. Sections
13-4438, 13-4439, and 13-4440, A.R.S., were added sequentially later. See 1993 Ariz.
Sess. Laws, ch. 235, § 1 (adding former § 13-3328, which later was amended and
renumbered as A.R.S. § 13-610, see 2002 Ariz. Sess. Laws, ch. 226, § 2); 2004 Ariz.
Sess. Laws, ch. 131, § 1 (adding current § 13-4438); 2001 Ariz. Sess. Laws, ch. 334, § 24
(adding § 13-4439); 2008 Ariz. Sess. Laws, ch. 237, § 2 (adding § 13-4440).
       6
           Section 13-4401(19) provides:
                        “Victim” means a person against whom the criminal
                offense has been committed, including a minor, or if the
                person is killed or incapacitated, the person‟s spouse, parent,
                child, grandparent or sibling, any other person related to the
                person by consanguinity or affinity to the second degree or
                any other lawful representative of the person, except if the
                person or the person‟s spouse, parent, child, grandparent,
                sibling, other person related to the person by consanguinity or
                affinity to the second degree or other lawful representative is
                in custody for an offense or is the accused.

                                              6
guaranteed by the state constitution‟”), quoting State v. Lamberton, 183 Ariz. 47, 50, 899

P.2d 939, 942 (1995); Knapp v. Martone, 170 Ariz. 237, 240 n.5, 823 P.2d 685, 688 n.5

(1992) (legislature has power to “„define, implement, preserve and protect‟” victims‟

rights but not “to redefine the scope of those rights”), quoting Ariz. Const., art. II,

§ 2.1(D); Turley v. Bolin, 27 Ariz. App. 345, 348, 554 P.2d 1288, 1291 (1976) (rights

created by initiative or referendum not subject to derogation by legislature; “„legislative

authority, acting in a representative capacity only, [i]s in all respects intended to be

subordinate to direct action by the people‟”), quoting Whitman v. Moore, 59 Ariz. 211,

220, 125 P.2d 445, 451 (1942).

¶9            In a reversal of the position it presented the respondent judge, the state now

contends the phrase “in custody for an offense” refers only to the time when “the criminal

offense [w]as . . . committed” against the “person,” who, if neither then “in custody” nor

“the accused,” thereby became a victim for purposes of the VBR. Ergonis, on the other

hand, maintains the phrase “in custody” connotes no such temporal restriction. Under his

interpretation, a person against whom a crime was committed subsequently loses the

rights conferred by the VBR if later taken into custody for any reason.

¶10           In all proceedings before the respondent judge, the state agreed—either

implicitly or expressly—with the defense argument that J.C. had lost his rights under the

VBR during the time he was in custody in Massachusetts.7 That the state now has

abandoned that interpretation in favor of its present position—presumably having

       7
        Both parties appeared to assume implicitly that J.C. regained his status and rights
as a victim under the VBR automatically upon his release.

                                             7
advanced both views in good faith and thus having by turns deemed either construction

plausible—well illustrates and aptly underscores the temporal ambiguity permitted by the

phrase “in custody for an offense” as used in the definition of a “victim” in § 2.1(C) of

the VBR.

¶11           We appreciate that the legal basis for our decision was not argued to the

respondent judge below. We do not apply the customary rules of waiver in this instance,

however, because it is not the state‟s rights but J.C.‟s that the VBR protects.         See

generally A.R.S. § 13-4437(C) (“At the request of the victim, the prosecutor may assert

any right to which the victim is entitled.”). And we decline to penalize him for the state‟s

having urged a legal position below that it since has reconsidered and abandoned in its

special action petition.

¶12           The proper interpretation of constitutional language presents a question of

law this court reviews de novo. See Massey v. Bayless, 187 Ariz. 72, 73, 927 P.2d 338,

339 (1996). When the wording of a constitutional provision is clear and unambiguous,

we apply it according to its plain meaning, without resort to other means of construction.

Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). Ambiguity exists

when, as here, the meaning or interpretation of a provision is uncertain. Heath v. Kiger,

217 Ariz. 492, ¶ 6, 176 P.3d 690, 692 (2008). When a constitutional provision is

ambiguous, “„we may consider the history behind the provision, the purpose sought to be

accomplished, and the evil sought to be remedied.‟” Id. ¶ 9, quoting Jett, 180 Ariz. at

119, 882 P.2d at 430.



                                             8
¶13           Here, that purpose is stated clearly and succinctly in the opening language

of the VBR: “To preserve and protect victims‟ rights to justice and due process.” As our

supreme court elaborated in Champlin v. Sargeant, 192 Ariz. 371, ¶ 20, 965 P.2d 763,

767 (1998), the VBR and its implementing legislation were enacted “to provide crime

victims with „basic rights of respect, protection, participation and healing of their

ordeals.‟” Id., quoting 1991 Ariz. Sess. Laws, ch. 229, § 2.8 Since the adoption of the

VBR, “the victim‟s right to decline an interview has been considered absolute.” Roscoe,

185 Ariz. at 74, 912 P.2d at 1303; accord State v. O‟Neil, 172 Ariz. 180, 182, 836 P.2d

393, 395 (App. 1991) (“[T]he [VBR] abrogated a defendant‟s right under Rule 15[, Ariz.

R. Crim. P.,] to interview or otherwise seek discovery from an unwilling victim.”); Day v.

Superior Court, 170 Ariz. 215, 217, 823 P.2d 82, 84 (App. 1991) (“The [VBR] precludes

the trial court from ordering the deposition of a victim who has indicated an

unwillingness to be interviewed.”).

¶14           Despite both Ergonis‟s argument in his response to the petition for special

action and the state‟s previous concurrence in that interpretation below, no Arizona case

has held, even implicitly, that a victim loses his or her status and rights under the VBR if

later taken into custody for an unrelated reason. Indeed, the principal case on which the

parties have relied, Stapleford, stands only for the narrower interpretation of the phrase



       8
        In an earlier comment to Rule 39 following the enactment of the Victims‟ Rights
Implementation Act in 1991, our supreme court observed, “„In general, it appeared that
the definition of a victim should be a generous one.‟” Roscoe, 185 Ariz. at 70, 912 P.2d
at 1299, quoting Ariz. R. Crim. P. 39 1991 cmt. (emphasis in Roscoe).

                                             9
“in custody” as meaning the victim was in custody when the criminal offense was

committed.

¶15           The victim in Stapleford was a prisoner named Corso who had been

assaulted by his cellmate. 185 Ariz. at 561, 917 P.2d at 704. Reversing the trial court‟s

ruling, and requiring Corso to submit to a pretrial interview, our supreme court concluded

Corso was not a “victim” as defined in the VBR because he was in custody. 185 Ariz. at

563, 917 P.2d at 706. Although nowhere in its discussion did the court expressly state

that the words “in custody” meant “in custody when the offense was committed against

him,” that is the only specific holding the facts of the case permit. It is also the only

holding the case requires. Interpreting the words “in custody” to mean “subsequently in

custody” or “in custody at any time” would broaden the holding of Stapleford beyond its

facts, and nothing in the court‟s language expressly supports, much less compels, such an

expansive interpretation of the phrase.

¶16           We evinced the same view, albeit in dicta, in State v. Carlos, 199 Ariz. 273,

¶ 20, 17 P.3d 118, 124 (App. 2001). There, too, the underlying criminal charges had

arisen from the alleged assault of one prison inmate by another. The defendant

successfully argued on appeal that the trial court had abused its discretion in preventing

him from calling the victim, F., to testify. In concluding the court had “denied Carlos his

Sixth Amendment right to compulsory process by precluding him from calling F. as a

witness,” id. ¶ 22, we observed: “Because F. was incarcerated at the time of the assault,

he was not entitled to the protections of the Victims‟ Bill of Rights, and thus had no



                                            10
constitutional right to refuse an interview with Carlos under article II, § 2.1 of the

Arizona Constitution.” Id. ¶ 20.

¶17           Ergonis has cited no legal authority directly supporting his broad

interpretation of the phrase “in custody.” Nor has he persuaded us that a victim‟s later

incarceration on unrelated charges should divest that victim of constitutional rights

previously acquired.9 As we observed in State v. Stauffer, 203 Ariz. 551, ¶ 9, 58 P.3d 33,

36 (App. 2002), “a crime victim‟s rights are specific to a crime committed upon that

victim and arise . . . upon an arrest for or formal charging of that crime.” Ergonis has not

urged, and we cannot conceive, a compelling reason why, in the absence of clear

language in the VBR expressly so providing, accrued constitutional rights that are

“specific to a crime committed upon” a victim should later be suspended or forfeited if

the victim is taken into custody for an entirely unrelated reason.10




       9
        A subsequent arrest on “related” charges, on the other hand, could in some cases
make the victim “the accused”—or, at least, “[an] accused”—who then presumably
would no longer meet the definition of a “victim” for purposes of the VBR—a question
neither presented nor addressed here.
       10
         Section 13-4402(A) of the Victims‟ Rights Implementation Act provides that the
constitutional rights conferred by the VBR “arise on the arrest or formal charging of the
person or persons who are alleged to be responsible for a criminal offense against a
victim.” They remain enforceable until the “final disposition of the charges, including
acquittal or dismissal of the charges, all post-conviction release and relief proceedings
and the discharge of all criminal proceedings relating to restitution.” § 13-4402(A).
Such rights cease to exist only “[a]fter the final termination of a criminal prosecution by
dismissal with prejudice or acquittal.” § 13-4402(C); see also State ex rel. Romley v.
Dairman, 208 Ariz. 484, ¶ 20, 95 P.3d 548, 554 (App. 2004). Neither § 13-4402, nor the
VBR itself, provides for the interruption, suspension, or divestiture of a victim‟s rights
should the victim subsequently be taken into custody.

                                             11
¶18           Clearly, the mere possibility that a victim later might be in custody for

some suspected or actual wrongdoing is not alone disqualifying. In State v. Clinton, 181

Ariz. 299, 300, 890 P.2d 74, 75 (App. 1995), for example, Division One of this court held

that an assault victim, partially at fault for her injuries, nonetheless was entitled to an

award of restitution under the VBR. The court stated: “A crime victim retains victims‟

rights even if the facts suggest that the victim might be culpable herself.” Id. In reaching

its conclusion, the court relied on Knapp, 170 Ariz. at 239, 823 P.2d at 687, in which our

supreme court found the protections of the VBR extended to the mother of two murdered

children, even though she was suspected in their deaths, because she had not been

charged or named in a charging document as a coconspirator and was “therefore not an

accused” under the VBR.

¶19           Equally clearly, there are administrative considerations and logistical

challenges that attend the exercise of a victim‟s rights if the victim is in custody.

Rule 39, Ariz. R. Crim. P., illustrates our supreme court‟s accommodation of those

constraints. Thus, Rule 39(a)(1) provides:

              If a victim is in custody for an offense, the victim‟s right to be
              heard pursuant to this rule is satisfied through affording the
              victim the opportunity to submit a written statement, where
              legally permissible and in the discretion of the court. A
              victim not in custody may exercise his or her right to be heard
              pursuant to this rule by appearing personally, or where legally
              permissible and in the discretion of the court, by submitting a
              written statement, an audiotape or videotape.

Ultimately, of course, the procedure specified in Rule 39 is not dispositive of the issue

before us. But, by recognizing that a victim who “is in custody for an offense” retains a


                                             12
“right to be heard” in keeping with the rights conferred by the VBR, the rule‟s language

nonetheless supports the conclusion we reach here.

¶20           We recognize that accepting Ergonis‟s interpretation of the phrase “in

custody” as meaning “in custody at any time for any reason” eliminates the

administrative challenges inherent in allowing incarcerated victims to exercise their rights

under the VBR. But we can discern no other rationale—and certainly none consistent

with the VBR‟s goals of respecting and protecting victims and facilitating their

participation in the criminal prosecutions of their assailants—for interpreting the phrase

“in custody” so broadly. The implications of such an interpretation would invite

arbitrary, potentially unjust, and even absurd results.

¶21           As the record reflects, J.C. was released on bond shortly after his arrest in

Massachusetts in December 2007.         Under Ergonis‟s interpretation of the VBR, J.C.

would have been divested of his victim‟s rights for the duration of his initial, brief

incarceration but would have reacquired them promptly upon his release; the same

theoretical divestiture and reattachment would have occurred again when he later served

and then completed his sentence. If, hypothetically, a victim were in and out of custody

repeatedly while awaiting trial, what logical or principled argument suggests his or her

rights under the VBR should be suspended and restored in successive, random cycles?

What of victims who later are placed in custody and cannot afford to post bond? Or one

who is arrested briefly but not formally charged, or unlawfully or wrongly detained? Or

those who might violate conditions of probation or parole? Nothing in the purpose or the

language of the VBR leads us to believe that Arizona voters in November 1990 imagined,
                                             13
much less intended, that the constitutional rights they intended to create by passing the

VBR could be so mechanistically lost and reacquired, perhaps multiple times in

succession, depending on the endless variety of circumstances that may attend a person‟s

being “in custody” at some point after having been the victim of a crime.

¶22              The clearest, simplest, and most logical interpretation of the phrase “in

custody for an offense,” therefore, is the one reflected in Stapleford11 and Carlos12 and

the one we endorse here: the VBR denies victim status and rights only to persons who

are themselves “the accused” or who are already in custody when the criminal offense is

committed against them. Having considered the consequences of the interpretation urged

by Ergonis, we conclude that a crime victim‟s rights, which “are specific to a crime

committed upon that victim,” Stauffer, 203 Ariz. 551, ¶ 9, 58 P.3d at 36, are not

thereafter lost if the victim subsequently should be “in custody for an [unrelated]

offense.” See also Knapp, 170 Ariz. at 239, 823 P.2d at 687 (“The only victims excluded

from the protection of the [VBR] are those „in custody for an offense‟ or those who are

„the accused.‟”), quoting Ariz. Const. art. II, § 2.1(C).

¶23              Despite the state‟s failure to assist the respondent judge below with an

appropriate legal argument, we nonetheless conclude the respondent‟s ruling rests on an

erroneous interpretation of article II, § 2.1(C) of the Arizona Constitution. And, because

an error of law amounts to an abuse of discretion, see Ariz. R. P. Spec. Actions 3(c);



       11
            185 Ariz. at 563, 917 P.2d at 706.
       12
            199 Ariz. 273, ¶ 20, 17 P.3d at 124.

                                                 14
Althaus v. Cornelio, 203 Ariz. 597, ¶ 4, 58 P.3d 973, 975 (App. 2002) (court abuses

discretion by committing error of law), we accept jurisdiction of the special action, grant

the relief requested, and vacate the respondent judge‟s order compelling J.C. to submit to

a pretrial interview by the defense.



                                             /s/ J. William Brammer, Jr.
                                             J. WILLIAM BRAMMER, JR., Judge

CONCURRING:



/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge




/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge




                                            15
