Trebus v. Davis In and For County of Pima

• Decision Date: 19 August 1997
• Docket Number: No. CV-96-0563-PR,CV-96-0563-PR
• Citation: 189 Ariz. 621,944 P.2d 1235
• Parties: , 250 Ariz. Adv. Rep. 14 John TREBUS, Petitioner. v. Hon. John E. DAVIS, Judge of the Superior Court for the State of Arizona, in and for the COUNTY OF PIMA, Respondent, and STATE of Arizona, Real Party In Interest.
• Court: Arizona Supreme Court

Page 1235

944 P.2d 1235

189 Ariz. 621, 250 Ariz. Adv. Rep. 14

John TREBUS, Petitioner. v. Hon. John E. DAVIS, Judge of the Superior Court for the State of Arizona, in and for the COUNTY OF PIMA, Respondent and STATE of Arizona, Real Party In Interest.

No. CV-96-0563-PR.

Supreme Court of Arizona En Banc.

Aug. 19, 1997.

[189 Ariz. 622] James W. Cochran, Tucson, for John Trebus.

Barbara E. LaWall, Pima County Attorney by Lynnette C. Kimmins, Christina M. Cabanillas, Tucson, for State.

OPINION

FELDMAN, Justice.

John Trebus moved to remand a grand jury's indictment for a new determination of probable cause. See Rule 12.9, Ariz.R.Crim.P. Trebus contends the trial judge abused his discretion by refusing to remand this case because the prosecutor had deprived him of the right to make a written request to present explanatory evidence to the grand jury pursuant to A.R.S. § 21-412. We granted review to examine the responsibility of a prosecutor who learns that a defendant wishes to present exculpatory evidence or testify before a grand jury. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 23, Ariz.R.Civ.App.P.

FACTS AND PROCEDURAL HISTORY

In February 1994, Trebus' stepdaughter told Salinas, California police that Trebus had sexually molested her in early 1991 while the family lived in Tucson. The Salinas police gave this information to the Pima County Sheriff's Department, which conducted a limited follow-up investigation and interviewed Trebus. After the interview, Trebus retained a lawyer who wrote a letter to the deputy county attorney in charge of the Sex Crimes Unit of the Pima County Attorney's Office. This letter was hand-delivered to the Office where it was stamped as received. In the letter, Trebus' lawyer asked to meet with the county attorney to discuss the case before a criminal prosecution was authorized. The lawyer further indicated that Trebus had exculpatory evidence he wanted to present and stated that the letter was to serve as a formal request under A.R.S. § 21-412 to make the exculpatory evidence available to the grand jury. The lawyer also asked that, if the county attorney decided not to meet with him, she give him advance notice of the date and time the case would be presented to the grand jury so that Trebus could exercise his rights under A.R.S. § 21-412. No one from the Pima County Attorney's Office responded to the letter.

Without notice to Trebus or his lawyer, the case was presented to the grand jury and an indictment was issued on February 20, 1996, accusing Trebus of twelve assorted dangerous crimes against children. Trebus filed a motion to dismiss or, alternatively, to remand to the grand jury for a new determination of probable cause. He claimed his due process rights were violated because the county attorney ignored his request to present information to the grand jury and because the state presented false and misleading information to the grand jury. In response, the county attorney claimed that she never received the letter.

The trial judge denied the motion, and Trebus filed a petition for special action seeking review of that decision. See Rule 7, Ariz.R.Sp.Act. The court of appeals, without explanation, declined to accept jurisdiction of the special action. This court granted Trebus' petition for review.

DISCUSSION

A. Responsibility of the prosecutor

Pursuant to A.R.S. § 21-412, a person under investigation by a grand jury may present evidence to that grand jury. In relevant part, A.R.S. § 21-412 states:

The grand jurors are under no duty to hear evidence at the request of the person under investigation, but may do so. ... The grand jurors shall weigh all the evidence received by them and when they have reasonable ground to believe that other evidence, which is available, will explain away the contemplated charge, they may require the evidence to be produced.

(Emphasis added.) A defendant's right to request the grand jury to consider his evidence is implicit in the statute. It is even more clearly implicit in Rule 12.6, Ariz.R.Crim.P. ¹ While the statute and rule make clear that the grand jury may but need not consider any evidence proffered by the defendant, they leave open the question of how the grand jury is to be informed that the defendant has evidence available or has requested to appear. Although the county attorney is not explicitly assigned the task of informing the grand jury that the defendant wishes to appear or submit exculpatory evidence, we have recognized that due process may require the county attorney to do so, especially when requested. Crimmins v. Superior Court, 137 Ariz. 39, 43-44, 668 P.2d 882, 886-87 (1983) (Feldman, J., specially concurring); see generally 38A C.J.S. Grand Juries §§ 168 & 169 (1996) (citing Crimmins and other cases for proposition that prosecutor's presentation must be fair and impartial; although prosecutor need not actually present exculpatory evidence, he must inform grand jury of its existence and give grand jury opportunity to order its production).

In Crimmins, a kidnaping and assault case, the prosecutor not only failed to instruct the grand jury on applicable statutes and allowed a prosecution witness to testify in a misleading manner, but also ignored the defendant's request to present his side of the incident. We held that due process compels the prosecutor to make a fair and impartial presentation to the grand jury. Crimmins, 137 Ariz. at 41, 668 P.2d at 884. This requires the prosecutor to instruct the grand jury on all the law applicable to the facts of the case, even if the grand jury does not make any specific request for additional legal instruction. Id. at 42, 668 P.2d at 885. This court noted that "[t]he grand jury is neither an arm nor a servant of the prosecution," and "the prosecutor's discretion is to be used 'in assisting the grand jury.' " Id. at 43-44, 668 P.2d at 886-87 (quoting Gershon v. Broomfield, 131 Ariz. 507, 509, 642 P.2d 852, 854 (1982)). See Sigmund G. Popko, Arizona's County Grand Jury: The Empty Promise of Independence, 29 Ariz. L.Rev. 667, 681-83 (1987).

[W]here the defendant has indicated his willingness to waive his right to remain silent and has volunteered to discuss the case with the prosecutor, one might assume there is a reasonable possibility that he would waive the fifth amendment and testify before the grand jury. The prosecution here failed to notify defense counsel that the case was going to the grand jury and also failed to notify the grand jury that the defendant might be willing to appear and testify. The prosecution thereby deprived the defendant of the right to make a written request of the grand jury to allow him to appear (see Ariz.R.Crim.P. 12.6) and deprived the grand jury of its right to determine whether the defendant's testimony might be "other evidence, which is available, [and] will explain away the contemplated charge...." The rule, the statute, and the concept of an independent grand jury give the grand jury, not the prosecution, the right to make these determinations.

Crimmins, 137 Ariz. at 44, 668 P.2d at 887. Thus, by failing to inform the grand jury of the defendant's willingness to come forward, a prosecutor may effectively control the outcome of a given proceeding, thereby usurping the grand jury's role and depriving a defendant of the due process right to an independent grand jury. Popko, supra, 29 Ariz. L.Rev. at 683.

Although we realize there are arguably other means by which the defense can communicate information to the grand jury, such as by notifying the presiding judge, the only pragmatic, realistic conduit is the county attorney--the grand jury's assistant and advisor. See Gershon, 131 Ariz. at 510, 642 P.2d at 855 ("The prosecutor's duty is to assist the grand jury in its investigations; the prosecutor may not exercise dominion over those investigations by evading the grand jury's will."). Nor is it odd, as Justice Martone's dissent describes it, to place this duty on the "investigated person's adversary, the prosecutor." Dissent, infra, at 627, 944 P.2d at 1241. California, for example, has recognized such a duty. In Johnson v. Superior Court, the California Supreme Court found that under section 939.7 of the California Penal Code, which is similar to A.R.S. §§ 21-408 and 21-412, the prosecutor was obliged to inform the grand jury of the nature and existence of evidence reasonably tending to negate a defendant's guilt. The court reasoned that the grand jury cannot be expected to request evidence of which it is ignorant. The court stated:

The People contend the proper construction of section 939.7 is that "the impetus for the presentation of exculpatory evidence must originate in the grand jury, not the district attorney." However, unless so informed by the district attorney, the grand jury ordinarily has no "reason to believe that other evidence within its reach will explain away the charge." ... The defendant's right to bring exculpatory evidence to the attention of the grand jury by letter is illusory unless he knows his case will be under consideration by them. Because the proceedings of the grand jury are held in secret without notice to the defendant, the construction of section 939.7 urged by the People would nullify its protective role.

15 Cal.3d 248, 124 Cal.Rptr. 32, 36, 539 P.2d 792, 796 (1975) (citations omitted). With regard to the prosecutor's adversarial role, the court noted that

the adversary system does not extend to grand jury proceedings. As has been explained, if the district attorney does not bring exculpatory evidence to the attention of the grand jury, the jury is unlikely to learn of it. We hold, therefore, that when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated under section 939.7 to inform the grand jury of its nature and existence, so that the grand jury may exercise its power under the statute to order the...