                                    IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


       STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY,
                Maricopa County Attorney, Petitioner,

                                       v.

THE HONORABLE JOSE PADILLA, Judge of the SUPERIOR COURT OF
    THE STATE OF ARIZONA, in and for the County of Maricopa,
                      Respondent Judge,

         CHRIS SIMCOX, a.k.a. CHRISTOPHER ALLEN SIMCOX,
                        Real Party in Interest.


                             No. 1 CA-SA 15-0087
                                 FILED 5-8-2015


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2013-428563-001
                   The Honorable Jose S. Padilla, Judge

              JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Keli B. Luther
Counsel for Petitioner

Chris Simcox, Phoenix
Pro Per Real Party in Interest
Office of the Legal Defender, Phoenix
By Robert Shipman, Sheena Chawla
Advisory Counsel for Real Party in Interest Simcox

Wilenchik & Bartness P.C., Phoenix
By John D. Wilenchik
Counsel for Amicus Curiae M.A. on behalf of J.D.

Arizona Voice for Crime Victims, Tempe
By Colleen Clase
Counsel for Amicus Curiae A.S. on behalf of Z.S.

Arizona Prosecuting Attorneys’ Advisory Counsel, Phoenix
By Elizabeth B. Ortiz
Counsel for Amicus Curiae Arizona Prosecuting Attorney’s Advisory Counsel

Pima County Public Defender’s Office, Tucson
By David J. Euchner

Maricopa County Public Defender’s Office, Phoenix
By Mikel P. Steinfeld, Amy Kalman

Osborn Maledon, P.A., Phoenix
By Kathleen E. Brody
Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice



                                   OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


H O W E, Judge:

¶1             The State of Arizona seeks special action relief from the trial
court’s refusal to restrict Defendant Chris Simcox from personally cross-
examining the child victims and witness in his trial on several sex charges.
We accept jurisdiction because the State has no adequate remedy by appeal
and the issue is one of first impression and statewide importance. Ariz. R.P.
Spec. Act. 1(a); Ariz. Dep’t of Econ. Sec. v. Superior Court (Angie P.), 232 Ariz.
576, 579 ¶ 4, 307 P.3d 1003, 1006 (App. 2013).



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                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

¶2              We deny relief, however. A trial court may exercise its
discretion to restrict a self-represented defendant from personally cross-
examining a child witness without violating a defendant’s constitutional
rights to confrontation and self-representation. It can do so, however, only
after considering evidence and making individualized findings that such a
restriction is necessary to protect the witness from trauma. Because the State
did not present such evidence—and in fact eschewed the opportunity to
present evidence when invited—the trial court had no basis to restrict
Simcox from cross-examining the child witnesses.

                 FACTS AND PROCEDURAL HISTORY

¶3             The State has charged Simcox with three counts of sexual
conduct with a minor, two counts of child molestation, and one count of
furnishing harmful items to minors. The alleged victims are Simcox’s 8-
year-old daughter Z.S. and Z.S.’s 8-year-old friend, J.D. The State plans to
call Z.S. and J.D. to testify about the incidents that form the bases of the
charges. The State also plans to call as a witness Z.S.’s 7-year-old friend E.M.
to testify about an alleged incident she had with Simcox. The State will seek
to admit E.M.’s testimony under Arizona Rule of Evidence 404(c) to show
that Simcox has an aberrant sexual propensity to commit the charged
offenses.

¶4            Simcox requested that he be allowed to represent himself in
the criminal proceedings pursuant to the Sixth Amendment to the United
States Constitution and Faretta v. California, 422 U.S. 806 (1975). The trial
court granted the request but nevertheless appointed advisory counsel to
assist him.

¶5             In response to Simcox’s invocation, the State requested that
the trial court accommodate the child witnesses by restricting Simcox from
personally cross-examining them and requiring that his advisory counsel
conduct the cross-examinations. The State supported its request with email
correspondence from (1) Z.S.’s mother, explaining her outrage that Simcox
would cross-examine Z.S., recounting Z.S.’s fear that Simcox would “hurt
her feelings again,” and stating that personal cross-examination would
severely hinder Z.S.’s psychological recovery; (2) J.D.’s mother, explaining
how the incident with Simcox has negatively affected J.D.’s behavior and
stating that she feared that allowing Simcox to address J.D. would set J.D.
“back in her healing and quite possibly exacerbate her symptoms and
anxiety/panic attacks”; and (3) E.M.’s mother, stating that E.M. is as much
a victim as Z.S. and should not “be punished, more than once, by any adult
who used the tenure of age and trust against her.” Simcox objected, arguing


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                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

that restricting him from personally conducting the cross-examinations
would interfere with his right of self-representation.

¶6             At the hearing on the State’s request, the trial court asked the
State to present its evidence, but the State demurred, arguing that evidence
was unnecessary. The trial court disagreed. It noted that the United States
Supreme Court held in Maryland v. Craig, 497 U.S. 836, 855 (1990), that an
order restricting a defendant’s right to confront a child witness had to be
“case-specific” and that the court must hear evidence to determine whether
the restriction is necessary to protect the particular child. The State
responded that Craig was inapplicable because the defendant in that case
was not representing himself. The State relied on Fields v. Murray, 49 F.3d
1024 (4th Cir. 1995), in which the circuit court held that a state trial court
had not violated a defendant’s rights by restricting him from personally
cross-examining his child victim even though it had not considered any
evidence that the victim would be traumatized.

¶7            The trial court denied the State’s request “on the status of this
record.” The court acknowledged the mothers’ letters, but ruled that “there
is simply no showing that conf[ront]ing [Simcox] in and of itself will cause
further trauma.” The State moved to stay the proceedings, which the trial
court denied. The State then petitioned this Court for special action relief
and requested a stay of the trial. This Court denied the stay but affirmed
the briefing schedule to consider the petition. Z.S.’s mother subsequently
sought and obtained an emergency stay from the Arizona Supreme Court
pending this Court’s review of the petition.

                                DISCUSSION

¶8             The State argues that the trial court erred in denying its
request to restrict Simcox from personally cross-examining the children.
The State contends that a defendant charged with sex offenses against
children may be categorically barred from personally cross-examining the
child witnesses. We review purely legal or constitutional issues de novo,
State v. Booker, 212 Ariz. 502, 504 ¶ 10, 135 P.3d 57, 59 (App. 2006), but defer
to the trial court’s factual findings unless they are clearly erroneous, State v.
Forde, 233 Ariz. 543, 556 ¶ 28, 315 P.3d 1200, 1213 (2014).

¶9             On the record before it, the trial court did not err in refusing
to restrict Simcox from personally cross-examining the children. A criminal
defendant has the constitutional right to confront the witnesses against him
face-to-face, and this right is implemented primarily through cross-
examination. Kentucky v. Stincer, 482 U.S. 730, 736 (1987); State v. Vess, 157



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                   STATE v. HON. PADILLA/SIMCOX
                         Opinion of the Court

Ariz. 236, 237–38, 756 P.2d 333, 335–36 (App. 1988). When a defendant
exercises his right to represent himself, he has the right to personally cross-
examine the State’s witnesses. McKaskle v. Wiggins, 465 U.S. 168, 174 (1984)
(“The pro se defendant must be allowed . . . to question witnesses.”); see also
Faretta, 422 U.S. at 818 (providing that the Sixth Amendment “grants to the
accused personally the right to make his defense”).

¶10            Of course, this does not mean that the right of a self-
represented defendant to personally conduct cross-examination is absolute.
Although the face-to-face component of cross-examination is not “easily
dispensed with,” Craig, 497 U.S. at 850, denying a face-to-face confrontation
will not violate the Confrontation Clause when it is “necessary to further
an important public policy” and the reliability of the testimony is otherwise
assured, id. The United States Supreme Court recognized in Craig that a
state’s interest in protecting the physical and psychological well-being of
child abuse victims is sufficiently important to justify restrictions on cross-
examination if the State makes an adequate showing of necessity. Id. at 853–
55. Such a finding of necessity “must of course be a case-specific one,” id. at
855, and the trial court must hear evidence to determine whether the
restriction is necessary to protect the child’s welfare, see id. at 855–56
(considering cross-examination by closed-circuit television). Necessity
cannot be presumed without evidence. See Coy v. Iowa, 487 U.S. 1012, 1021
(1988) (rejecting “legislatively imposed presumption of trauma” when
considering statutory limitations on cross-examination of child abuse
victims; “something more than the type of a generalized finding underlying
such a statute is needed”).

¶11           In denying the State’s request, the trial court recognized and
followed the requirements of the Confrontation Clause and the Supreme
Court precedent interpreting it. The court understood that it could not
restrict Simcox from personally cross-examining the child witnesses
without hearing evidence and making case-specific findings that restricting
his ability to personally cross-examine the witnesses was necessary to
protect each child from trauma. With that understanding, the court asked
the State to present its evidence, but the State declined to do so. Without
evidence, the court was constrained to deny the State’s request. Although
the State did present the correspondence from the children’s mothers, the
court interpreted the correspondence to explain the general trauma the
children were suffering from Simcox’s alleged actions and the trial. But
general trauma is not sufficient to restrict cross-examination; the trauma
must be caused specifically by the personal cross-examination. See Craig,
497 U.S. at 856 (“The trial court must also find that the child witness would
be traumatized, not by the courtroom generally, but by the presence of the


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                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

defendant.”). Upon our review, we cannot say that the trial court clearly
erred in its interpretation of the correspondence. See Forde, 233 Ariz. at 556
¶ 28, 315 P.3d at 1213 (factual findings reviewed for clear error).

¶12           This procedure—restricting cross-examination of child
witnesses only upon a case-specific showing that such a restriction is
necessary—is nothing new. Arizona allows a child to testify in a criminal
proceeding via closed-circuit television or by prior recording, A.R.S. § 13–
4253, but only after the trial court makes “an individualized showing of
necessity,” State v. Vincent, 159 Ariz. 418, 429, 768 P.2d 150, 161 (1989)
(relying on Coy, 487 U.S. at 1021, and Vess, 157 Ariz. at 238, 756 P.2d at 335).
A generalized conclusion that any child would be traumatized by testifying
in the presence of the defendant-parent is not sufficient to invoke the
statute. Vincent, 159 Ariz. at 428, 768 P.2d at 160.

¶13           Vincent is instructive about the need for case-specific findings.
There, two young children were witnesses in their father’s trial for
murdering their mother. Id. at 420, 768 P.2d at 152. Pursuant to § 13–4253,
the State moved to record the children’s testimony and to present it at trial.
Id. at 426, 768 P.2d at 158. Without considering any evidence that the
children would suffer trauma if required to testify at trial, the trial court
permitted the recording, ruling that “children . . . of such tender age . . .
could be traumatized due to the severe nature, [and] severity of the crime
charged,” and that it was in their best interests “not to look upon the face
of their father” during their testimony. Id. The children’s testimony was
then recorded, with the prosecutor, defense counsel, the children’s foster
mother, and the trial judge present; the defendant was in another room
observing the testimony and had telephonic access to his counsel. Id. at 157,
768 P.2d at 425.

¶14          The Arizona Supreme Court ruled this procedure violated the
defendant’s confrontation rights because the trial court had made no
individualized finding that recording the children’s testimony was
necessary:

              Coy and Vess both tell us at a minimum that such
       generalized conclusions do not suffice to justify a substitute
       for face-to-face confrontational testimony. Because there were
       no particularized findings concerning the comparative ability
       of the Vincent children to withstand the trauma of face-to-face
       testimony, as contrasted with the trauma of a videotaped
       procedure with their father shielded from their view, we hold




                                       6
                   STATE v. HON. PADILLA/SIMCOX
                         Opinion of the Court

       that A.R.S. § 13–4253 was applied in such a way as to violate
       the defendant’s constitutional right to confrontation.

Id. at 428–29, 768 P.2d at 160–61. The principle is clear: restrictions on a
defendant’s confrontation rights cannot be justified without individualized
findings.

¶15             Apparently to avoid this analysis, the State repeatedly notes
that it is not seeking any accommodation under § 13–4253. But the issue is
not whether the statute is invoked; it is whether the Confrontation Clause
permits a trial court to restrict a self-represented defendant from personally
cross-examining the witnesses against him. The United States Supreme
Court in Craig, our supreme court in Vincent, and our own court in Vess
hold that a defendant’s right to cross-examine child witnesses may not be
restricted unless the trial court makes case-specific findings that the
restriction is necessary to protect them from the trauma caused by the cross-
examination. Craig, 497 U.S. at 855; Vincent, 159 Ariz. at 428–29, 768 P.2d at
160–61; Vess, 157 Ariz. at 238, 756 P.2d at 335. Because the State did not
present evidence from which the trial court could have made
individualized, case-specific findings that the children here required
protection from being personally cross-examined by Simcox, the trial court
did not err by denying the State’s request for a restriction.

¶16             The State’s contention that no such case-specific findings are
necessary misapprehends the nature of a criminal defendant’s rights. First,
the State argues that restricting Simcox from personally cross-examining
the children does not affect his Sixth Amendment right to represent himself
because that right does not include a right to personally conduct cross-
examination. The State claims this is so because the trial court has the
authority under Arizona Rule of Evidence 611 to require advisory counsel
to conduct witness examination without infringing on a defendant’s right
of self-representation. The State cites State v. Wassenaar, in which we held
that the trial court did not violate a defendant’s right to self-representation
by requiring that advisory counsel conduct the direct examination of the
defendant. 215 Ariz. 565, 573 ¶ 29, 161 P.3d 608, 616 (App. 2007).

¶17           But Wassenaar does not affect the self-represented defendant’s
right to conduct the examination of other witnesses. Advisory counsel’s
participation in that case was necessary because of the question-and-
answer format of direct examination; the defendant could hardly be
expected to question himself on the stand. Id. at ¶ 29, 161 P.3d at 616. But
no such necessity existed with witnesses other than the defendant; the
defendant personally examined the other witnesses. Id. Here, except when


                                      7
                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

Simcox testifies himself, his right to self-representation presumptively
allows him to personally examine—and cross-examine—the witnesses.
McKaskle, 465 U.S. at 174 (“The pro se defendant must be allowed . . . to
question witnesses.”).

¶18           Second, the State argues that the restriction does not affect
Simcox’s right to confront witnesses because while he would be barred
from conducting the cross-examination personally, he would remain in the
courtroom and have a face-to-face confrontation with the children, which is
all the Confrontation Clause guarantees him. This argument, however, fails
to account for the effect that the right to self-representation has on the right
to confront witnesses.

¶19            The State is correct that when a defendant is represented by
counsel, his confrontation rights are satisfied if he is in the courtroom and
can face the witness while his counsel conducts cross-examination. See
Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (“The Confrontation Clause
provides two types of protections for a criminal defendant: the right
physically to face those who testify against him, and the right to conduct
cross-examination.”). But because a self-represented defendant has the
right to personally cross-examine the witnesses, McKaskle, 465 U.S. at 174,
restricting a defendant from doing so is a restriction on his right to
confrontation—and a significant one at that. State v. Folk, 256 P.3d 735, 745
(Idaho 2011) (“Cross-examination is often a fluid process, and the person
forming the questions must be able to concentrate on the answers and what
further questions are necessary to elicit the desired information.”).
Moreover, imposing an unusual arrangement such as requiring advisory
counsel to cross-examine critical witnesses in place of the defendant could
affect the jurors’ perception of the defendant. Cf. Estelle v. Williams, 425 U.S.
501, 504–05 (1976) (fearing the jurors’ judgment may be affected by viewing
defendant in jail clothing). Because a self-represented defendant’s right to
personally cross-examine witnesses is so important in the trial process, any
restriction on that right can occur only upon a showing that the restriction
is necessary to achieve an important public policy—here, to protect child
witnesses from the trauma of being personally cross-examined by the
defendant.

¶20           Third, the State argues that the restriction is appropriate
because no case-specific or individualized findings are necessary in cases
involving child abuse or sex offenses against children. Although not so
stated, the State essentially argues that a court should presume trauma
when child witnesses are involved. This argument directly counters the
holdings of Coy, Vincent, and Vess that trauma will not be presumed and


                                       8
                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

that restrictions on cross-examination must be based on individualized
findings of necessity. Coy, 487 U.S. at 1021; Vincent, 159 Ariz. at 428–29, 768
P.2d at 160–61; Vess, 157 Ariz. at 238, 756 P.2d at 335.

¶21            The authority that the State cites to support its position, Fields
v. Murray, has dubious value. In Fields, the Fourth Circuit Court of Appeals
considered a state defendant’s claim on habeas corpus review that the state
court had denied him his right to personally cross-examine the child victims
who had alleged that he had sexually abused them. 49 F.3d at 1028. The
state court had precluded him from doing so without hearing evidence and
based its ruling on the nature of the crimes and the defendant’s relationship
with the victims. Id. at 1036.

¶22            The circuit court ruled that the state court’s decision did not
violate the right to confrontation. Id. The circuit court recognized that the
state court should have made a “more elaborate finding” as Craig requires,
but noted that “[i]t is far less difficult to conclude that a child sexual abuse
victim will be emotionally harmed by being personally cross-examined by
her alleged abuser than by being required merely to testify in his presence.”
Id. This conclusion, however, rests merely on a general presumption of
trauma, which is directly contrary to Coy, Vincent, and Vess. Thus, it is not
good law in Arizona and we are not bound to follow it. See State v. Montano,
206 Ariz. 296, 297 n.1, 77 P.3d 1246, 1247 n.1 (2003) (holding that the Arizona
Supreme Court is not bound by federal circuit court’s interpretation of the
federal constitution).

¶23           The State also justifies its argument on the Victim’s Bill of
Rights, highlighting a victim’s right to be free from intimidation,
harassment, and abuse. Self-representation and confrontation of witnesses,
however, are bedrock constitutional rights of our criminal justice system
and are not lightly restricted. If victims’ rights conflict with a defendant’s
constitutional rights, the defendant’s rights must prevail. State v. Riggs, 189
Ariz. 327, 330–31, 942 P.2d 1159, 1162–63 (1997) (“[I]f, in a given case, the
victim’s state constitutional rights conflict with a defendant’s federal
constitutional rights to due process and effective cross-examination, the
victim’s rights must yield. The Supremacy Clause requires that the Due
Process Clause of the U.S. Constitution prevail over state constitutional
provisions.”).

¶24           This does not mean that victims cannot be protected. If the
State believes that a defendant’s personal cross-examination of a witness is
intimidating or harassing the witness, it may always ask the court to control
the examination. See Ariz. R. Evid. 611(a)(3) (providing that the court


                                       9
                   STATE v. HON. PADILLA/SIMCOX
                         Opinion of the Court

should “exercise reasonable control” over the mode of examining witnesses
to “protect witnesses from harassment or undue embarrassment”). If the
State believes that a defendant’s personal cross-examination of a witness
would cause particular trauma to the witness, it can—consistent with the
United States Constitution—present evidence that the trauma will occur
and ask the trial court to make case-specific findings that will justify
restricting the defendant from personally cross-examining the witness.

¶25           The trial court invited the State to present evidence of trauma,
but the State declined the opportunity. Without evidence showing that the
child witnesses would suffer particular trauma from being personally
cross-examined by Simcox, the trial court had no constitutional basis to
restrict Simcox from doing so. Thus, on this record, the trial court properly
denied the State’s request.1

                              CONCLUSION

¶26           For these reasons, we accept jurisdiction but deny relief.




                                  :ama




1      If the State subsequently discovers evidence that it believes would
justify restricting Simcox’s right to personally cross-examine the child
witnesses, however, nothing in this opinion would preclude the State from
making a new request to the trial court.


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