IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Petitioner,
v.
HON. MICHAEL BUTLER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
VALENTIN VALENZUELA,
Real Party in Interest.
No. 2 CA-SA 2021-0043
Filed December 30, 2021
Special Action Proceeding
Pima County Cause No. CR20191854001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Laura Conover, Pima County Attorney
By Tai Summers and Myles A. Braccio, Deputy County Attorneys, Tucson
Counsel for Petitioner
Kevin Burke, Pima County Legal Advocate
By John Repovsch and Walter L. Palser, Assistant Legal Advocates, Tucson
Counsel for Real Party in Interest
STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
OPINION
Presiding Judge Espinosa authored the opinion of the Court, in which
Vice Chief Judge Staring and Judge Eckerstrom concurred.
E S P I N O S A, Presiding Judge:
¶1 This special action presents a novel question in Arizona law—
whether Arizona’s Victims’ Bill of Rights (VBR) provision allowing a victim
to refuse an interview by the defendant applies to a victim-witness called
to testify in a case involving a different victim and the prosecution of the
same defendant whose crime against the victim-witness took place in
another state. For the reasons that follow, we accept special action
jurisdiction, conclude the VBR provision applies to a non-Arizona victim,
and therefore grant relief.
¶2 Our special action jurisdiction is discretionary, but its exercise
is appropriate “‘when there is no plain, speedy and adequate remedy by
way of appeal’ [and] ‘in cases involving a matter of first impression,
statewide significance, or pure questions of law.’” Phx. Newspapers, Inc. v.
Ellis, 215 Ariz. 268, ¶ 9 (App. 2007) (quoting Roman Cath. Diocese v. Superior
Court, 204 Ariz. 225, ¶ 2 (App. 2003)); see Ariz. R. P. Spec. Act. 1(a). Such is
the case when addressing whether a victim called to testify to present
evidence under Rule 404, Ariz. R. Evid., may be compelled to be
interviewed by the defendant. See State v. Stauffer, 203 Ariz. 551, ¶¶ 1, 5
(App. 2002); State v. Leonardo, 226 Ariz. 593, ¶¶ 3-4 (App. 2011); State ex rel.
Romley v. Hutt, 195 Ariz. 256, ¶ 5 (App. 1999). Thus, the exercise of our
jurisdiction is appropriate in this case.
Factual and Procedural Background
¶3 Valentin Valenzuela was indicted in May 2019 on one charge
of sexual conduct with a minor under fifteen, for his alleged sexual abuse
of his daughter, V.B., from September 1997 to September 1999. Another
daughter, A.V., had reported in 2018 that Valenzuela abused her as well
when she was living with him in North Dakota. Valenzuela pled guilty in
North Dakota to continuous sexual abuse of A.V. and was sentenced to
twelve years’ imprisonment in January 2020.
¶4 In the current proceeding as to the abuse of V.B., the state filed
a motion to introduce evidence of Valenzuela’s abuse of A.V. pursuant to
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
Rules 404(b) and 404(c). Valenzuela sought to interview A.V. before trial,
but the state filed a notice stating that A.V. was asserting rights as a victim
under Arizona’s VBR and declined to be interviewed. In response
Valenzuela filed a motion to compel an interview, and the respondent judge
concluded he could not “institute victims[’] rights from Arizona onto a
North Dakota resident,” and granted the motion to compel. The state filed
this petition for special action.
Application of Arizona VBR to Out-of-State Victim-Witness
¶5 In its petition, the state urges us to conclude that a “victim
should not be deprived of her right to decline a pretrial interview—a right
that has been deemed ‘absolute’ in Arizona—simply because she is now a
witness about those crimes in another state.” Arizona’s constitution
provides various rights to crime victims in its Victims’ Bill of Rights. See
Ariz. Const. art. II, § 2.1. Among these is the right “[t]o 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); see also A.R.S. § 13-4433(A). Although the totality of
victim’s rights do not apply to those called as witnesses pursuant to Rule
404, Stauffer, 203 Ariz. 551, ¶¶ 10, 12, “[a] victim’s right to refuse to be
interviewed extends to a separate prosecution involving another charge
against the same defendant when that interview will require the victim to
recount the particulars of the offense the defendant committed against the
victim,” State v. Hamilton, 249 Ariz. 303, ¶ 8 (App. 2020) (citing Stauffer,
203 Ariz. 551, ¶ 7); see also Leonardo, 226 Ariz. 593, ¶ 11. Thus, had
Valenzuela victimized A.V. in Arizona, there is no question that she would
be constitutionally entitled to refuse an interview.
¶6 As the parties agree, Arizona courts have not yet addressed a
victim’s rights when the defendant’s criminal acts against them took place
in another state. In this instance, Valenzuela committed continuous sexual
abuse of a child against A.V. in North Dakota. The Arizona and North
Dakota constitutions do not conflict as to the right of a victim to refuse an
interview by the defendant in the criminal matter involving the crime
committed against that victim. See Ariz. Const. art. II, § 2.1(A)(5); N. D.
Const. art. I, § 25(1)(f). Valenzuela argues, however, that Arizona law does
not have “any bearing on rights that arose in North Dakota” and that North
Dakota’s constitution should not “impose[] obligations on the procedure in
an Arizona criminal court.” Additionally, while all states have some form
of victim protection, many do not have similar provisions relating to
defense interviews. Our decision as to the application of Arizona’s VBR to
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
victim-witnesses must therefore encompass circumstances in which the
victim does not happen to live in a state with a similar constitutional
provision. We therefore view the question as one of choice of law.
¶7 Relying on a South Dakota case interpreting its constitution,
Valenzuela contends Arizona’s VBR “only makes sense in the context of a
criminal offense that occurs in Arizona in which the authorities are aware
of a victim.” In that case, the South Dakota Supreme Court addressed
whether a provision of its state VBR, which provides that a victim is entitled
to be advised that they may consult an attorney about their rights, was
applicable in a criminal case in Minnesota. In re Issuance of Summons
Compelling Essential Witness To Appear & Testify in State of Minn., 908 N.W.2d
160, ¶¶ 1, 13-19 (S.D. 2018). There, the defendant was accused of assaulting
the victim in Minnesota, after which the victim moved to South Dakota and
was summoned by Minnesota as a witness in the criminal action against the
defendant. Id. ¶ 2. The South Dakota court determined that because its
VBR included language stating it applied “in any trial or appellate court, or
before any other authority with jurisdiction over the case,” id. ¶ 15 (quoting
S. D. Const. art. VI, § 29), and because South Dakota’s courts only had
jurisdiction over crimes committed within the state, it was “inapplicable to
crimes committed wholly outside the State of South Dakota,” id. ¶¶ 15, 18.
¶8 Arizona’s VBR does not include the jurisdictional language
on which the South Dakota court relied. Ariz. Const. art. II, § 2.1. And
although North Dakota’s VBR includes the same jurisdictional language,
N. D. Const. art. I, § 25(2), its courts have not addressed the application of
its VBR outside of state bounds. Nor have the courts of this state addressed
the question presented here—not whether our VBR applies when a crime is
committed in another state and prosecuted there, but whether it applies
when a crime has been committed elsewhere and testimony about it is
sought in an Arizona prosecution against that perpetrator pursuant to Rule
404.
¶9 Generally, Arizona courts follow the Restatement (Second) of
Conflict of Laws (1971) in addressing choice-of-law questions. See Swanson
v. Image Bank, Inc., 206 Ariz. 264, ¶ 6 (2003) (“Arizona courts apply the
Restatement to determine the applicable law in a contract action.”); Cook v.
Cook, 209 Ariz. 487, ¶ 11 (App. 2005) (“Arizona invokes some principles
from the Restatement,” though not all in regard to out-of-state marriages);
Moore v. Montes, 22 Ariz. App. 562, 565 (1974) (applying Restatement in tort
action). The Restatement broadly provides, “A court, subject to
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
constitutional restrictions, will follow a statutory directive of its own state
on choice of law.” Restatement § 6.
When there is no such directive, the factors
relevant to the choice of the applicable rule of
law include
(a) the needs of the interstate and international
systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those states in
the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular
field of law,
(f) certainty, predictability and uniformity of
result, and
(g) ease in the determination and application of
the law to be applied.
Id.
¶10 As noted above, Arizona and North Dakota’s VBRs generally
do not conflict on the question of victim interviews. But while all fifty states
have adopted some form of VBR, see Michael E. Solimine & Kathryn Elvey,
Federalism, Federal Courts, and Victims’ Rights, 64 Cath. U. L. Rev. 909, 909-10
(2015), express provisions relating to victim interviews are less common,
see, e.g., David S. Caudill, Professional Deregulation of Prosecutors: Defense
Contact with Victims, Survivors, and Witnesses in the Era of Victims’ Rights,
17 Geo. J. of Legal Ethics 103, 114-15 (2003) (“While some states do not
provide victims a specific constitutional right to refuse a pre-trial interview,
the ‘right’ of a victim or witness to refuse an interview (and the
corresponding law of any ‘right’ of the defendant to compel an interview)
is well-settled, and some states do specify the constitutional right of a victim
to refuse a pre-trial interview.”). Considering the Restatement factors in
this light, we conclude they weigh in favor of applying Arizona’s VBR.
¶11 Regarding the needs of the interstate system, it is important
to consider, as noted, that all fifty states have adopted some type of victims’
rights protections. Although these provisions vary in their scope, their
existence suggests that the system as a whole seeks to protect victims’
rights. Thus, creating a rule that would ensure victim protections across
state lines advances the needs of the interstate system and the policies of
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
other states that have adopted victims’ rights provisions. Were we to
conclude that Arizona’s VBR did not apply in this instance, not only would
this state be deprived of the application of its laws, but we would also
deprive the victim of protections she would be entitled to under North
Dakota law. See State ex rel. Montgomery v. Harris, 237 Ariz. 98, ¶ 13 (2014)
(courts avoid construing statutes to produce untenable result); Adams v.
Bolin, 74 Ariz. 269, 273-74 (1952) (same as to constitutional provisions).
Concluding that neither state’s VBR would provide a victim with
protections that would apply had the situs and forum states in this matter
been the same does not meet the needs of our interstate system of laws.
¶12 Further, Arizona’s policy clearly supports application of its
VBR to all victims involved in Arizona proceedings. Arizona’s VBR
“preserve[s] and protect[s] victims’ rights to justice and due process.”
Ariz. Const. art. II, § 2.1(A). And our supreme court has stated that it was
enacted “to provide crime victims with ‘basic rights of respect, protection,
participation and healing of their ordeals.’” Champlin v. Sargeant, 192 Ariz.
371, ¶ 20 (1998) (quoting 1991 Ariz. Sess. Laws, ch. 229, § 2). It would be
inconsistent with this purpose to place at risk victims called to appear in
our courts merely because they were victimized elsewhere.
¶13 Applying Arizona’s VBR to all Arizona proceedings also
protects the “justified expectations” of victims who rely on victims’ rights
protections of this or other states and creates predictability and uniformity
regarding rights guaranteed to victims who appear in the courts of this
state. Likewise, allowing all victims called to testify pursuant to Rule 404
to refuse an interview creates a clear and straightforward rule for our trial
courts to apply. Requiring that they consider the victims’ rights statutes or
constitutions of other states in each instance would be unwieldy and would
generate inconsistency in application.
¶14 The Restatement also more specifically addresses choice of
law in the context of procedural rules, witnesses, and evidence. As to
procedure it provides, “A court usually applies its own local law rules
prescribing how litigation shall be conducted even when it applies the local
law rules of another state to resolve other issues in the case.” Restatement
§ 122. And pursuant to Restatement § 137, “The local law of the forum
determines what witnesses are competent to testify and the considerations
that may affect their credibility.” Likewise, under Restatement § 138, “The
local law of the forum determines the admissibility of evidence . . . .” All of
these provisions weigh in favor of applying the Arizona VBR to procedural
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
and evidentiary issues in Arizona trials, even when a Rule 404 witness may
have been victimized in another state.
¶15 Notably, this court has previously declined to apply this
Restatement test to a choice-of-law question in a criminal case involving the
exclusionary rule, instead favoring a purpose-based approach. In State v.
Havatone, 246 Ariz. 573, ¶¶ 20-27 (App. 2019), we adopted an “exclusionary
rule analysis” in determining which law to apply when an allegedly
unlawful search took place in another state (situs) and the case was tried in
Arizona (forum). Id. That test “focuse[d] on the underlying principles of
the exclusionary rule in deciding which law to apply.” Id. ¶ 22. Noting that
the purpose of the exclusionary rule “is to deter future police misconduct,”
this court determined applying the law of the situs would best promote that
purpose. Id. ¶¶ 24-25, 27.
¶16 In an earlier case, our supreme court rejected a claim that
Arizona’s initial appearance rule should have applied to a defendant
arrested in Illinois. State v. Anderson, 197 Ariz. 314, ¶ 34 (2000). The court
stated, “The purpose of the initial appearance is to advise the defendant of
the charges against him and to inform him of his right to counsel and to
remain silent.” Id. It concluded that because the defendant had not shown
that Illinois’s initial appearance rule had been violated and “the Arizona
Rules of Criminal Procedure do not apply to Illinois,” the defendant’s right
to counsel had not been violated. Id. Despite the Anderson court’s summary
analysis, its reasoning was similar to that in Havatone—the purpose of the
rule was the focus of the court’s rationale.
¶17 As discussed above, Arizona’s VBR “preserve[s] and
protect[s] victims’ rights to justice and due process.” Ariz. Const. art. II,
§ 2.1(A). And it was adopted “to provide crime victims with ‘basic rights
of respect, protection, participation and healing of their ordeals.’”
Champlin, 192 Ariz. 371, ¶ 20 (quoting 1991 Ariz. Sess. Laws, ch. 229, § 2).
In view of that purpose, the VBR’s protection against a forced interrogation
by a past victimizer should extend to all victims who participate in Arizona
court proceedings, not only those who have been victimized here.
Allowing a defendant charged with offenses in two states to avoid the effect
of the VBR merely by having committed offenses in two jurisdictions makes
little sense. Cf. Herbert F. Goodrich & Eugene F. Scoles, Handbook of the
Conflict of Laws 126 (4th ed. 1964) (prevailing policy disfavors permitting
defendant to avoid forum when his act caused suit); Jackson v. Chandler,
204 Ariz. 135, ¶ 19 (2003) (that incident occurred in other state does not
lessen Arizona’s interest in applying its substantive laws). Rather, applying
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STATE v. HON. BUTLER/VALENZUELA
Opinion of the Court
our VBR best ensures that victims, regardless of where victimized, are
afforded the protections of our law and allowed to heal by avoiding the
trauma of a compelled interview by their past assailant.
¶18 Finally, Valenzuela and the respondent judge have expressed
concerns about whether it is practical to apply the VBR to an out-of-state
victim. But, we have already determined that not all rights provided by the
VBR apply to a victim-witness being called pursuant to Rule 404. See
Hamilton, 249 Ariz. 303, ¶¶ 17-19. Indeed, our statutes treat the right to
refuse an interview differently from other rights available to victims,
extending that right beyond the termination of the criminal proceeding. See
§ 13-4433(H). The right in question here—the right to refuse an interview—
requires no action by North Dakota and no action by Arizona actors in
North Dakota. Rather, the victim simply will not be compelled to submit
to an interview. In some circumstances this may present a due process
concern, cf. State v. Quijada, 246 Ariz. 356, ¶ 27 (App. 2019) (due process
violation when defendant not allowed opportunity to question victim as to
restitution at restitution hearing), particularly if a defendant is not
otherwise able to investigate the out-of-state charges. But no such concern
has been raised or is apparent in this special action.1 See Tucson Unified Sch.
Dist. v. Borek, 234 Ariz. 364, ¶ 14 (App. 2014) (failure to provide analysis of
issue on special action waives argument).
Conclusion
¶19 For all the foregoing reasons, we conclude that Arizona’s VBR
provision allowing a victim-witness to decline a defense interview applies
to victims called to testify pursuant to Rule 404(b) and 404(c), even if the
crime against them took place outside of Arizona. We therefore accept
special action jurisdiction and grant relief.
1At oral argument before this court Valenzuela raised due process
concerns of a different variety, pointing to the “unlevel playing field”
created by the VBR, particularly in the context of calling witnesses he
characterized as discretionary. But this court has already determined that
the denial of a pretrial interview or deposition of the victim “does not
impair any substantive or vested rights” of a defendant because there is “no
federal constitutional right to discovery.” State v. Warner, 168 Ariz. 261, 264-
65 (App. 1990) (citing Weatherford v. Bursey, 429 U.S. 545 (1977)).
8