State ex rel. Thomas v. Foreman, 211 Ariz. 153 (Ariz. Ct. App. 2005)

OPINION

PORTLEY, Judge.

¶ 1 The State challenges the trial court’s ruling declaring that Arizona Revised Statutes (“A.R.S.”) section 13-4426.011 is unconstitutional under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Because we conclude

that it is premature to determine whether the statute violates the constitutional rights of Kenneth Phillips (“Defendant”), we accept special action jurisdiction and grant relief.

PROCEDURAL BACKGROUND

¶ 2 Defendant was indicted for first-degree murder and sexual assault. The State filed notice that it will request the death penalty, and indicated that it may offer testimony of the victim’s representative2 during any sentencing aggravation and penalty phases.

¶ 3 Defendant unsuccessfully moved to preclude introduction of victim impact evidence at any sentencing hearing. He then requested the court to declare A.R.S. § 13-4426.01 unconstitutional. After oral argument, the trial court agreed and found that the statute conflicted with the Sixth, Eighth, and Fourteenth Amendments.

SPECIAL ACTION JURISDICTION

¶4 Special action jurisdiction is appropriate for a case of first impression, see Jackson v. Schneider, 207 Ariz. 325, 327, ¶ 5, 86 P.3d 381, 383 (App.2004), or when the party has no plain, adequate, or speedy remedy by appeal. Ariz. R.P. Spec. Act. 1(a); Luis A. v. Bayham-Lesselyong, 197 Ariz. 451, 453, ¶2, 4 P.3d 994, 996 (App.2000). Because the trial court’s ruling is one of first impression, and the State does not have an equally plain, speedy, or adequate remedy by appeal, we accept jurisdiction. See State v. Rayes (Flath), 206 Ariz. 58, 60, ¶ 5, 75 P.3d 148, 150 (App.2003).

DISCUSSION

¶ 5 We independently review the trial court’s determination that A.R.S. § 13-4426.01 is unconstitutional. See State v. Hensley, 201 Ariz. 74, 76, ¶ 6, 31 P.3d 848, 850 (App.2001).

I.

¶ 6 The plain language of the statute gives victims3 the right to be heard at a sentencing hearing without being cross-examined by the State or the defendant. See A.R.S. § 13-4426.01. It was enacted to implement Article 2, Section 2.1, of the Arizona Constitution, which, in pertinent part, provides that a crime victim has a right “[t]o be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.”4 Ariz. Const. art. 2, § 2.1(A)(4).

¶ 7 The text of the statute does not clearly define whether the right is limited to a sentencing aggravation hearing5 or sentencing penalty hearing.6 However, when the statute is read with other statutes and rules, it becomes clear that A.R.S. § 13-4426.01 only applies to a trial’s sentencing penalty phase. For example, pursuant to the first provision of A.R.S. § 13-703.01(R),7 a victim’s repre

sentative in a capital case may attend and present evidence at the sentencing aggravation phase, subject to the limitations of A.R.S. § 13-703(B);8 namely, the rules of evidence apply and the victim’s representative can be cross-examined by the defense. State v. Asbury, 145 Ariz. 381, 386, 701 P.2d 1189, 1194 (App.1984) (“[Bjasie concepts of fairness, justice and impartiality mandate that the defendant be allowed, at an aggravation and mitigation hearing, to cross-examine the victims in order to bring out mitigating circumstances.”).

¶ 8 In contrast, during the sentencing penalty phases, the other provisions of A.R.S. § 13-703.01(R) authorize the representative to attend and “present information about the murdered person and the impact of the murder on the [representative] and other family members and may submit a victim impact statement in any format to the trier of fact.”

¶ 9 In addition, Arizona Rule of Criminal Procedure 19.1(d) similarly limits the victim’s right to present an impact statement at the penalty phase of sentencing after the aggravation/mitigation phase is complete. The rule states, in pertinent part:

Ariz. R.Crim. P. 19.1(d).

¶ 10 Taken together, A.R.S. §§ 13-703,13-703.01, 13-4426.01, and Rule 19.1 currently provide that a victim’s representative may present an impact statement during the sentencing penalty phase to rebut a defendant’s mitigation evidence. See State v. Glassel, 211 Ariz. 33, 116 P.3d 1193, 1214, ¶ 82 (2005).

¶ 11 Having determined that A.R.S. § 13-4426.01 affords the victim’s representative a right to present an impact statement to rebut any mitigation evidence at any sentencing penalty phase without disclosing that statement, we address whether the statute violates Defendant’s constitutional rights.

II.

¶ 12 We presume statutes are constitutional and “will not declare an act of the legislature unconstitutional unless we are satisfied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions.” State v. Book-Cellar, Inc., 139 Ariz. 525, 528, 679 P.2d 548, 551 (App. 1984). We will uphold the constitutionality of a statute if it is capable of a constitutional interpretation. State v. Getz, 189 Ariz. 561, 565, 944 P.2d 503, 507 (1997).

¶ 13 The trial court found that because A.R.S. § 13-4426.01 does not require “any victim statement to the jury ... be under oath, subject to cross-examination and disclosed far enough in advance of trial to allow a reasonable opportunity to the defense to prepare to cross-examine or rebut the testimony” it “conflicts with the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States.” In reaching this conclusion, the trial court relied on Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

¶ 14 In Payne, after the defendant had been convicted of two counts of first-degree murder and one count of assault with intent to commit murder in the first-degree, the grandmother testified during the sentencing penalty phase about the crime’s impact on

the surviving child-victim after the murders of his mother and sister. Id. at 814-16, 111 S.Ct. 2597. The jury sentenced the defendant to death. Id. at 816, 111 S.Ct. 2597.

¶ 15 On review, the United States Supreme Court, in considering the victim impact issue, stated:

Id. at 825, 111 S.Ct. 2597 (quoting Booth v. Maryland, 482 U.S. 496, 517, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (White, J., dissenting)). Consequently, and contrary to the trial court’s analysis, the Supreme Court held that “if the State chooses to permit the admission of victim impact evidence ..., the Eighth Amendment9 erects no per se bar.” Id. at 827, 111 S.Ct. 2597. Similarly, our supreme court has recognized that the Eighth Amendment does not bar “[sjtatements relevant to the harm caused by the defendant’s criminal acts.” Lynn v. Reinstein, 205 Ariz. 186, 191, ¶ 17, 68 P.3d 412, 417 (2003).

¶ 16 The confrontation clause of the Sixth Amendment does not invalidate A.R.S. § 13-4426.01. First, there is no general constitutional right to pretrial discovery in a criminal case “and Brady10 did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (no federal right); State v. O’Neil, 172 Ariz. 180, 182, 836 P.2d 393, 395 (App.1991) (no federal or Arizona right);11 State v. Warner, 168 Ariz. 261, 265, 812 P.2d 1079, 1083 (App.1990) (holding no Arizona constitutional right to pretrial discovery). Even though a victim’s right to refuse to disclose victim impact information “deprives [Defendant] of a method of discovery,” Warner, 168 Ariz. at 264, 812 P.2d at 1082, Arizona “courts have consistently held that a criminal defendant has no vested or substantive right to a [particular discovery method].” See id. “[T]he right to interview or depose a victim under Rule 15 is clearly procedural in nature, and the application of the [victim’s rights] amendment does not impair any substantive or vested rights of [Defendant].”12 Id.

¶ 17 Defendant also argues that allowing victim impact evidence without advance disclosure could lead to grounds for a mistrial. We find the argument premature. A victim is already prohibited from recommending a sentence, Lynn, 205 Ariz. at 191, ¶ 17, 68 P.3d at 417, or presenting inflammatory or unduly prejudicial evidence, Payne, 501 U.S. at 825, 111 S.Ct. 2597. If the victim impact evidence is “ ‘so unduly prejudicial that it renders the trial fundamentally unfair, the

Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’ ” Glassel, 116 P.3d at 1214, ¶ 83 (quoting Payne, 501 U.S. at 825, 111 S.Ct. 2597).

III.

¶ 18 We have found no case that has held that the lack of pretrial discovery of any impact statement for the sentencing penalty phase impacts a defendant’s Fourteenth Amendment right to a fundamentally fair trial.13 Roper, however, provides some guidance to analyze the issue.

¶ 19 In Roper, after the defendant made a showing that she needed her husband’s psychiatric records to attempt to demonstrate that she acted in self defense, the trial court granted the motion. 172 Ariz. at 234-35, 836 P.2d at 447-48. We agreed, but ordered the trial court to first inspect the records in camera to determine which records were essential to the presentation of the defense of self-defense. 172 Ariz. at 235, 836 P.2d at 448. We noted that a defendant’s due process and confrontation rights are protected when a defendant makes a showing that the victim or the victim’s representative has information that “is both essential to the defense and [that] requires pretrial disclosure to have value to the defense,” and the court inspects the information in camera to assess the necessity of its disclosure. See id. at 239-41, 836 P.2d at 452-54 (Lankford, J. concurring). This procedure balances a defendant’s right to present an effective defense against the victim’s right to be protected from unnecessary, out-of-court contact with a defendant. See id.; Champlin v. Sar-geant, 192 Ariz. 371, 375, ¶20, 965 P.2d 763, 767 (1998).

¶20 Here, we need not resolve whether the Defendant’s Fourteenth Amendment rights might be impaired. The Defendant did not demonstrate, aver, offer, or argue to the trial court that the victim’s representative had information that was essential to an effective defense or cross-examination of any witnesses. He did not argue that the victim’s representative had information that might be used at any sentencing aggravation phase. Because Defendant did not make any showing that victim impact information existed, or that it would be necessary during the trial or in any sentencing aggravation phase, the court erred in determining that A.R.S. § 13-4426.01 was unconstitutional.

CONCLUSION

¶21 We find that A.R.S. § 13-4426.01 is facially constitutional, and it is premature to evaluate the application of the statute to the facts. Accordingly, we vacate the trial court’s decision declaring the statute unconstitutional and remand for proceedings consistent with this opinion.

JEFFERSON L. LANKFORD and PHILIP HALL, JJ., concur.