*1 256 good Amator,
“obtained a title the property, appeal. free v. Whittemore 148 Ariz. any equities (1986). from of [the favor Lavidas- Assuming 713 P.2d arguen- 1231 Similarly, brief, 12-1103(B) es].” opening § his Smith permits attorney’s do that an urges entry summary this court to direct quiet award to fee the defendant in title judgment action, in his favor. the record does indicate not statutory Smith prerequisites.” “followed the In evaluating 23 enti- whether Smith is Lotzer, 260, 262, Lange v. Ariz. 727 P.2d summary tled to judgment, we must of Therefore, (App.1986). in our discre- course view facts and infer- reasonable deny parties’ requests tion we both for attor- light ences therefrom in the most favorable fees, ney’s prejudice without their seeking to the Lavidases. Ramirez. As noted an upon award fees from the trial court above, Smith attested in his he affidavit that completion proceedings there. and Mr. spoken Lavidas had several times about delinquencies the 1989 and 1990 pay had him Lavidas assured he would DISPOSITION affidavit, however, the taxes. In his Lavidas summary judgment 26 The trial court’s knowing any unpaid denied that “there were attorney’s and award of in favor of fees property real taxes due in with connection Lavidases vacated. The case is remanded either primary parcel or the Lavidas proceedings for further consistent with this
parcel.” Lavidas also stated: decision. voluntary time of partition [A]t the [the] 1989], unpaid [in there property were real DRUKE, E. CONCURRING: WILLIAM County
taxes due to the Pinal Treasurer Judge, FLÓREZ, Judge. and M. JAN primary parcel. connection It understanding orally was the reached be- parties
tween the [the Lavidases] pay preparation
would costs of accomplish par- the voluntary deeds
tition, pay and that would real [Smith]
property taxes then on primary
parcel.
Stoddard,
(App.
1985). The Lavidases are entitled to prevail did they
award of fees because *2 Romley, County Maricopa At- M.
Richard Drexler, County torney by Deputy David J. Phoenix, Attorneys Attorney, for Petitioner. Trebesch, Maricopa County Dean registration transferring W. Pub- documents owner- Ochs, by Allyson lic Deputy ship Defender D. of the Camaro to himself. Treen and Roth, Jeffrey Public Defender and Deputy T. defendant were theft of the Defender, Phoenix, Attorneys Camaro, felony.2 Public for Real class The indictment Party counts, in Interest Robin Treen. also contained eleven other none
which involved this victim. OPINION ¶4 Hickey. Defendant asked to interview Hickey declined. filed mo- Defendant then a THOMPSON, Judge. pretrial hearing tion for a to determine 1 This action arises out of a re- Hickey whether refused interview based quest by Party Real Robin Interest Treen bias, interest, hostility. on The trial court (defendant) Hickey to interview victim James Hickey impeached at indicated that could be (Hickey). The trial the court ordered inter- interviewed, trial with his declination to be view, challenges the order as Hickey and also ordered submit to the Rights. of Bill violative the Victims’ of We already had interview he refused. The rec- jurisdiction pursuant have to Ariz.Rev.Stat. following hearing ord contains the (A.R.S.) 12~120.21(A)(4). Ann. For the fol- exchange: reasons, lowing accept jurisdiction we prejudice [THE Bias and COURT:] are grant relief. fully raised defense[s] which cannot ex- plored by ability the defendant without the AND FACTUAL PROCEDURAL go these with into areas the witness. HISTORY . go Failure to into allow the defendant ¶2 Hickey, T. these cut James a member of areas this case would to the Arizona, deny Bar attorney heart the defense and defen- served as for (Treen) Larry guarantees until dant the constitutional of due Treen1 December Hickey attorney- process. 1997 when terminated the relationship. Apparently, Hickey client had rights Where two are conflict the car, allowed Treen to use his a Camaro. must be addition, Hickey paid had in advance Treen paramount and I’m therefore inclined car, repair his wife’s a Célica. Treen grant the defense motion. Hickey paid cashed the checks him for the Honor, Your [PROSECUTOR:] notwith- repairs but failed to do work. Because standing I the Court’s decision would be repairs Treen never did the on Célica asking stay. for a The State wishes to file complete failed other work he was to Appeals action with the Court of Hickey, Hickey do for their terminated vari- ruling. on Court’s attorney- dealings, including ous business right. THE All And let’s be COURT: Hickey relationship. client demanded that if going real clear since we’re take this property, Treen return certain in- items talking ruling. I’m up as to what We’re cluding the Camaro. On December ability defendant ask about the writing informed Treen that he they the witness at trial whether refused p.m. day until arrange-
had 5:00 to make pretrial interview. police ments to return the or Phoenix items that, I understand [PROSECUTOR:] would be called and Treen arrested. Honor, but se per Your the motion was ¶ 3 Treen never returned the Camaro. pretrial interview. eventually Police detectives Treen located THE two COURT: Correct. There’s defendant, and the Camaro. Defendant parts. allowed the to search the car. detectives police investigation Let me hold back on [PROSECUTOR:] revealed Treen fraudulently mine. had obtained Arizona title and Larry charging record docu- Treen defendant’s husband. Both are 2. The does contain report. underlying police in the ment or co-defendants case. jurisdic- Therefore, accept special action if I to make sure
THE want COURT: in this matter. special action I want tion you’re going take a get real that when we some- to make sure amended people of Arizona 6 In Appeals we thing from Court back Bill of to include Victims’ their constitution think it’s do it. I know what Rights, which states: very specific as upon me to be [i]neumbent (A) protect victims’ preserve and To ruling[.] I’m to what justice process, a victim and due ability part the defen- first is the right: has a crime the witness at trial cross-examine dant to of the out of court with the refusal (5) interview, deposition, or To refuse an bias and impeachment interview by discovery request other *4 this prejudice. The Court considers person attorney, or other the defendant’s as- allegation case the —the of defendant. acting on behalf the bias, an of of breach of defense serted Const, 2.1(A)(5). 2, provi- § This Ariz. art. permission agreement, all these or 13-4433, implemented in sion A.R.S. aspects go to the heart of the offense part: provides, which mat- to this are tantamount the defense consents, vic- the victim the A. Unless ter. compelled to submit to tim shall not be impeach And not allow the defense matter, any including a interview on on these areas at trial would the victim by criminal the offense witnessed effectively deny the defendant her defense. victim that on the same occasion occurred as to the trial examination the motion So victim, against the that as the offense granted objection by the defense is over defendant, the defen- by the conducted State. agent attorney or an of the defen- dant’s get to issue which is Then we the second dant. fur- pretrial And the Court the interview. at- The the defendant’s B. regard pretrial ther to the inter- finds with acting torney person on behalf or another view that facts of case are so the this only initiate contact of the defendant shall entwined the with the entwined —so victim through prosecutor’s with the victim the agreement terms the defendant prosecutor’s office shall office. The any agreement that that be- breach of victim the defen- promptly inform the of the offense that comes essence request for an interview and shall dant’s pretrial not conduct a interview of right of his to refuse the advise victim effectively witness denies the defendant interview. ability to prepare for trial and thus effectively prepare a defense at trial. or If the defendant the defendant’s F. petition special then filed for
The state
attorney
at trial on
victim’s
comments
action.
interviewed, the court shall
refusal to be
jury
has
instruct
victim
DISCUSSION
Ari-
under the
right to refuse an interview
acceptance
jurisdiction in
5
The
zona constitution.
discretionary.
King v.
action is
See
Court,
147, 149,
appellate
P.2d
7 Arizona’s
courts have
Superior
138 Ariz.
673
(1983).
right
787,
to decline a
may accept
ac
considered the victim’s
We
See State v.
jurisdiction when there is no other
defense interview “absolute.”
tion
68,
1297,
Roscoe,
74, 912 P.2d
obtaining justice
issue
means of
on the
(1996). However, in
vic
Superior
v.
some cases some
(citing
raised. See id.
Nataros
required
give way to a
County,
rights may
Ariz.
557 tims’
Maricopa
Court of
(1976)).
rights.
case,
See
defendant’s federal constitutional
P.2d 1055
Court,
Romley
Superior
appeal
until
ex rel.
v.
could not wait
after trial
State
240-41,
(App.
P.2d
453-54
Judge
defense in Ariz.
Hutt’s
because the
1992) (disclosure
records
already
place.
have taken
of victim’s medical
terview
would
ordered).
argues
Defendant
compulsory process
probable
she should
involved
at a
to inquire
be allowed
toas
hearing,
support
cause
does not
the trial
interviewed,
for
reasons
his refusal
to be
pretrial discovery
order
court’s
for
inter-
asserting that
grant
witness’s refusal
“[a]
view.
id.
See
at
breached his permission use the Treens lacked that reasons, accept foregoing 10 For the short, a vic- ordered the trial court ear. grant jurisdiction and relief. action case, and explore the state’s tim interview pre- order for the trial court’s We vacate purport limit the interview to did even victim interview. trial bias, hostility.7 questions of interest NOYES, JR., Chief E.G. CONCURRING: court’s determination 9 The trial Judge. key charge, elements likely involve in charge, will defense to the LANKFORD, dissenting. Judge, justi provided by does not formation I respectfully While 11 I dissent. must right Hickey’s fy constitutional breach juris- special action agree that the exercise of Certainly, Hickey be interviewed. decline to of the inade- appropriate because diction is witness, key be useful to and would remedy, disagree I any other quacy of trial, to him but our defendant to talk before relief is warranted. this, superior no precludes constitution brought special action. 12 The State compels it. constitutional effectively challenged only one half of itYet Indeed, regard trial court’s conclusions key findings.8 court’s two While the trial broadly ing the facts of this case would pretrial interview estab- contended a great many in a criminal cases applicable unjustified,9 it attack failed to lish bias was impor are often involving victims. Victims finding court’s the interview the trial crucial, tant, It even critical witnesses. her- necessary for defendant to defend was lawyers to practice no doubt sound *6 The charge. on the substance of the self com trial. But to interview witnesses before only argument encompassed State’s the kind of pel victim interviews based on of to obtain the substance pretrial interview generic presented here would considerations right to testimony was that the victim’s protection nullify significant constitutional proposi- refuse an interview is unfettered —a right to crime victims. The victim’s afforded reject supremacy of the tion all of us because protects the vic refuse a defense interview rights. of federal constitutional privacy and him to minimize tim’s allows view, my if 13 In this is fatal the State’s he so chooses. contact with the is, all, after petition. Special of the action relief uphold In order to the determination Indeed, procedure is extraordinary. sim- be people protections this state that such victims, the traditional “extraordi- ply must reverse a substitute for available to crime profes- business and says that Treen and had 7. The the state is not entitled dissent relationships might because it has not attacked the substance that defendant want relief sional support "findings” judge offered in trial explore victims’ to override the insufficient compulsion As we interviewed, her of a victim interview. right decline be and that noted, conversely, at- defendant has never have findings regard, judge's in this if allowed trial stand, findings, tempted justify never those and right permit the to decline would victims’ proceedings, sought, even what trial in these ignored every in case to be to be interviewed ordered, judge victim as to interview the had some "rela- where a victim and defendant Presumably, defendant the merits of the case. predated tionship” We offense. seek, what the a tactical decision to has made agree with these contentions. forbids, expressly but some middle constitution hearing explore ground by way part challenged 8. The State also has not why refused an interview. Under the victim allowing defendant the trial court’s order circumstances, it would not seem unreason- such his of a the witness about refusal cross-examine only to address if the state had decided able pretrial interview. express rely arguments on the and defendant's language opposing in a victim of our constitution sought. majority’s of the State’s The characterization which defendant never interview n.7, supra. position argument. event, relates any the trial the state has attacked urges findings. judge's that the fact The nary See, 1 Appellate writs.” Arizona majority 15 Yet grants relief on the (Hon. 7.1.2, § Handbook at 7-2 ground H. Sheldon that the trial court had an insufficient eds., ed.1998). Weisberg Paul& G. Ulrich 3d ordering basis for the interview. It charac- It is only ruling available this case if her relying “generic the trial terizes as on con- “a court made determination interviewing [that] was arbi- siderations” that a victim wit- trary capricious always or an helpful abuse discre- ness is to a defendant. Not 3(c). Spec. tion.” Ariz. R.P. only granting Actions ground relief on that a mis- take argued petition, because is not in the State, petitioner, bears the but it is an unfair characterization of the trial heavy persuading burden of us that the trial court’s decision. egregious court made such an error as to require our intervention. 16 It is unfair first the trial because judge spe- made an order that set forth two special petitioner’s action success argu- cific bases her hearing order after mainly depend upon will ap- whether the reading pleadings ment and regarding the pellate persuaded, court is balancing all particulars words, of this case. In other involved, factors exception that an should “generic” did ruling. not enter Her be made limiting to the usual rule appel- any decision is based notion that judgments. late review to final This re- are routinely defendants entitled to interview quires an understanding appellate Instead, victims. she amade determination courts’ ongoing reluctance interfere with concedes, majority that the princi- least superior proceedings, court as well as their ple, may she make: The federal to a ability limited to make signifi- decisions on may require particular fair trial in a case fully-developed cant issues without a factu- permitted that a victim interview despite al undoubtedly record. Since these factors the state constitutional ban. That should appellate influence courts their determi- be—and special based on the lack of other special actions, they nation of should also point, apparently actions on the is—a rare primary be of petitioner concern to the legal case. But such a is not without making any initial decision to seek authority. relief, action thereafter preparation
action’s
presentation.
¶ 17 Both we
Supreme
and the Arizona
Handbook,
7.2,
Appellate
Arizona
at 7-3.
previously
Court have
said that federal due
The State has not
may
contended that the trial
supersede
trial
*7
erroneously
“[I]f,
court
case,
found that defendant need-
provision.
given
state
in a
the
ed the interview to
rights
be able
defend herself.
victim’s state constitutional
conflict
majority
The
is satisfied that the State at- with a defendant’s federal constitutional
n.7,
position.
tacks
supra.
rights
process
to due
and effective cross-
challenges
examination,
That
petition
rights
overlooks that
the
yield.
the victim’s
must
order,
petition-
the trial court’s
that
Supremacy
requires
and
the
Clause
that the Due
er’s burden is to show that the order
so
pre
was
Process Clause of the
Constitution
U.S.
clearly wrong
extra-ordinary
that
relief is
vail
provisions.”
over state constitutional
result,
required.
a
327, 330-31,
As
I am
find in
Riggs,
unable to
State v.
942
1159,
(1997)
papers
the State’s
(citing
a warrant for
ac- P.2d
1162-63
U.S. Const.
2).10
VI,
tion relief.
art.
cl.
suggests,
Saffle,
majority
the
the
To
extent that
see
See also Coleman v.
912 F.2d
1230-
J.,
supra,
Brady
(10th Cir.1990) (Tacha,
(Rit
concurring)
n.
that the
the
31
standard defines
situation,
process rights
"presents
entirely
question”
defendant’s due
in this
chie
different
);
majority
Brady
Brady
may apply
the
Roper,
errs. While
when
than did
virtue of the Clause....” Larry agree that the car Hickey Treen and (Roper), Romley Superior Court ex rel. loan, peri- for a definite was on indefinite or 232, 236, (App. Ariz. Hickey return of the vehi- demand od? Did wrote, 1992). law,” “is “Due we Hickey’s permis- and, so, if when?11 Did cle indispensable foundation primary Did include Robin? to use the vehicle sion legal system.” Id. individual freedom our Larry? Hickey Robin’s use with discuss is un- majority’s characterization 19 The potentially pivotal questions are These fair, secondly, we lack the trial court because found, “any breach trial court case. As the action, in which we This is a record. ... [Hickey agreement Treen’s] of that by provided to us only the documents receive of the offense----” becomes essence represents That some- parties. record questions cannot be answered These totality considerably than the thing less by asking Hickey. The trial except yet And it is the context of the the case. that, effectively defend her- determined meaning judge’s find- gives case self, the an- Treen needed know Robin is, an inter- ing. That she determined questions she swers before asked the necessary in circumstances of view was judge also at trial. The cross-examination knew what those circum- this case. She rocky relationship between had evidence of know, may may stances were. We suggest- Larry Treen that James judge’s depending much of the knowl- on how Hickey’s testimony. possible bias ed edge conveyed by is the limited of this case record, the court’s decision Based on the before us. record unreasonable, peti- and the appear does not ¶20 Finally, majority’s characteriza- that it is. has not even contended tioner State tion of the order is unfair because is inac- majority appears question to decide this portions of the record curate. Based on the novo, judge is I believe that the trial de but received, generic we have is not her di- entitled to some deference based on wholly logical and does not lack a or factual familiarity recog- As with the case. rect basis. decision, prior balancing nized in a the state Rop- and federal “is difficult task.” ¶ 21 Let us consider what we do know of er, P.2d at 449. Given Treen, this case. The Robin variety of factual circumstances the unlimited Larry charged Treen. He wife of knowledge of judges’ superior and trial their as is connection with same incident Rob- cases, upset their un- I would not decisions in. of a Both are theft Chevro- “arbitrary capricious or an they less are being let automobile. The two are Camaro Spec. Ariz. R.P. Ac- abuse of discretion.” *8 prosecuted separate to his actions. Due 3(c). tions self-incrimination, right against Larry is not necessarily available as a for his wife. witness ¶ Accordingly, I dissent. Larry and not Robin Treen obtained Hickey, Larry then
the vehicle. James lawyer, gave Larry. the vehicle to
Treen’s
Hickey Larry provided either as favor to permit Larry perform work on the
or to partial legal payment
vehicle fees. appears be that she
Robin’s involvement whether the letter is mistaken includes a letter from know Our record Larry to a 1978 model Treen. The letter refers vehicle or is accurate intends to refer the 1979 Camaro, Camaro and to a 1969 Camaro, but not simply it. does not refer to We do the vehicle involved this case.