Escobar v. Superior Court of State of Ariz. In and For Maricopa County, 1
| Decision Date | 24 November 1987 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 746 P.2d 39,155 Ariz. 298 |
| Parties | Bobby R. ESCOBAR, Petitioner, v. SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF MARICOPA, Honorable Philip W. Marquardt, a judge thereof, Respondent Judge, STATE of Arizona, Real Party in Interest. 264. |
| Court | Arizona Court of Appeals |
On February 10, 1987, Bobby R. Escobar (petitioner) was indicted by grand jury on one count of child abuse, a dangerous crime against children, a class 2 felony in violation of A.R.S. § 13-3623(A) and (B). Petitioner filed a motion to dismiss or, in the alternative, a motion for a new finding of probable cause pursuant to Rule 12.9, Arizona Rules of Criminal Procedure. On September 3, 1987, the trial judge denied the motion. Thereupon, petitioner filed a petition for special action with this court.
Petitioner, Beatrice Flores, and her child, Danny, lived together in an apartment in Phoenix. Danny suffered second degree burns to his buttocks, feet, and right hand in the bathtub of the family apartment. These injuries were the focus of the grand jury inquiry into petitioner's conduct. Detective Jaramillo was the only witness to testify before the grand jury. Thereafter, petitioner filed his initial motion for a new finding of probable cause, alleging among other things that Jaramillo falsely testified that Danny received third degree burns. Petitioner further alleged that he was denied due process in that the state adduced testimony with regard to a statement given by a witness which in effect was misleading because the entire statement was necessary to truly present to the jury the material portion of the statement. The trial court remanded the case to the grand jury for a new finding of probable cause based solely upon the failure to give the entire statement of the witness to the grand jury. No ruling whatsoever was made with respect to the claim that Detective Jaramillo gave false and misleading testimony. Petitioner was again indicted for one count of child abuse, a dangerous crime against children, a class 2 felony. Petitioner filed a motion to dismiss or in the alternative, a motion for a new finding of probable cause with respect to this second indictment.
The crime of child abuse, a class 2 felony, requires that the child must receive serious physical injury, which means "physical injury which creates a reasonable risk of death or which causes serious or permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." Arizona Revised Statutes § 13-3623(A)(3). If committed intentionally and knowingly, it is a class 2 felony. If done recklessly, it is a class 3 felony. If done with criminal negligence, it is a class 4 felony. Section 13-3623(A)(2) reads as follows:
'Physical injury' means the impairment of physical condition and includes but shall not be limited to any skin bruising, bleeding, failure to thrive, malnutrition, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition which imperils a child's health or welfare.
If physical injury rather than serious physical injury is inflicted on the child, then if it is intentionally or knowingly done, it is a class 4 felony. If done recklessly, it is a class 5 felony, and if done with criminal negligence, it is a class 6 felony.
Thus, the nature and extent of the injury to Danny, a child almost three years old at the time of the May 26th grand jury hearing, was material in determining the type and class of felony for which the defendant should be indicted. Petitioner posits that Detective Jaramillo gave false or misleading testimony in three basic areas:
1. That the victim suffered only second degree burns instead of third degree burns as testified to by Jaramillo;
2. That there was no basis for his testimony that the injuries to the victim were life-threatening; and
3. That the extent and the degree of the burns to the victim's hands were unsupported.
The state concedes that there were no third degree burns and that the burns were second degree burns which covered 15.25% of the child's total body surface. The following question was presented to Jaramillo: "Did the treating physician indicate that the burns to Danny Flores were life threatening?" The answer was: Jaramillo's response to the question as to whether the doctor felt the injuries were life-threatening was ambiguous. However, from his testimony it could easily be inferred that the doctor felt that the injuries were life-threatening. Jaramillo testified as follows with respect to the burns on the victim's hand:
MR. MARTINEZ: Did you say his right hand was burned, too?
A. Yes, sir.
Q. Did it appear like it was submerged, or to what extent?
A. Second degree.
Q. But was it, the hand completely burned?
A. No, sir.
Q. From the wrist down, or a portion?
A. Just from the wrist down.
Q. So the whole hand?
A. It was red. It appeared that the whole hand had been submerged.
Q. Similar to the feet.
A. Not quite that bad. Those are third, third degree. But they were blistering.
Jaramillo's statement with regard to the injured hand was ambiguous and probably incorrect.
The state asserts, however, that petitioner was not denied a substantial procedural right by the grand jury proceeding as required by Rule 12.9(a), Arizona Rules of Criminal Procedure in order to merit a remand for a new probable cause finding. It cites State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974), to the effect that the sufficiency of the evidence may not be attacked in a motion for a new determination of probable cause.
Petitioner cites the case of Crimmins v. Superior Court, 137 Ariz. 39, 668 P.2d 882 (1983), and states that he is not basing his claim on the sufficiency of the evidence but on the grounds that the proceedings denied him his substantial and procedural right to a fair and impartial presentation of evidence. In Crimmins the court, after citing other cases, stated:
Those cases clearly prohibit a trial court from considering an attack on an indictment based on the nature, weight or sufficiency of the evidence presented to the grand jury. See State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974). In this court, and in the trial court, Crimmins has made a different contention. He urges that the proceedings denied him his substantial procedural right to a fair and impartial presentation of evidence. We have reviewed the record and the transcript with that issue as our frame of reference rather than considering sufficiency. (Emphasis added)
We have reviewed the record to determine if the proceedings denied the petitioner his substantial procedural right to a fair and impartial presentation of the evidence.
Petitioner asserts that the prosecution knew or should have known that the testimony was false or misleading because Jaramillo testified at the first grand jury hearing that there were third degree burns. There is, however, nothing in the record to indicate that the prosecution had any idea that Jaramillo would again testify that the burns were third degree, nor that he would testify to additional erroneous or misleading evidence. The record is clear that the first grand jury indictment was not quashed and remanded for a new finding based upon Jaramillo's testimony.
The case of United States v. Basurto, 497 F.2d 781 (9th Cir.1974), holds that if a prosecutor permits a defendant to stand trial upon an indictment which he knows is based on perjured testimony, a conviction thereon must be reversed because the prosecuting attorney has a duty, if he learns of perjury committed before a grand jury, to immediately inform the court and opposing counsel, and if the perjured testimony is material, to also inform the grand jury.
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