Vo v. Superior Court In and For County of Maricopa
| Decision Date | 30 January 1992 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 836 P.2d 408,172 Ariz. 195 |
| Parties | Nghia Hugh VO and Richard Paredez, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable David R. Cole, a judge thereof, Respondent Judge, The STATE of Arizona, ex rel., Richard ROMLEY, Maricopa County Attorney, Real Party in Interest. 91-327. |
| Court | Arizona Court of Appeals |
In this special action from the trial court's denial of defendants' motion to dismiss, or in the alternative, to remand to the grand jury for a redetermination of probable cause, we must decide whether the killing of a fetus can constitute first degree murder under A.R.S. § 13-1105.
Nghia Hugh Vo and Richard Paredez (petitioners) are co-defendants in superior court, charged by indictment with, among other things, two counts of first degree murder in violation of A.R.S. § 13-1105, for the deaths of an adult victim, a pregnant female, and her unborn fetus. Both died as a result of a gunshot wound to the mother's head, allegedly fired by Vo during a freeway shooting on May 14, 1991.
The evidence presented to the grand jury was that Vo, Paredez, and a third defendant allegedly were riding in a stolen car on May 14, 1991. Paredez was driving and Vo was in the front passenger seat. They entered Interstate 17 at the Peoria entrance, headed south, and accelerated into the fast lane, behind a pickup truck in which the victim and her husband were driving. Following an alleged exchange of gestures between the occupants of the two vehicles, Vo allegedly rolled down the window and fired two shots at the pickup truck. One of the shots struck the victim, who was the passenger in the pickup truck, killing her and her fetus. The investigating police officer testified as follows about the fetus:
Q. There was also a discussion [with the medical examiner who performed the autopsy] about the baby. What was the cause of death of the baby?
A. He said the baby died as a direct result of the shooting death of its mother.
The first degree murder statute, A.R.S. § 13-1105(A)(1), was read to the grand jury, along with the definition of "person" as "a human being," which is contained in A.R.S. § 13-1101(3). A grand juror later questioned the prosecutor:
The parties agree that the civil case referred to is Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985).
On June 4, 1991, the grand jury returned indictments against petitioners for, among other things, two counts of first degree murder in violation of A.R.S. § 13-1103. On July 17, 1991, Vo moved to dismiss, or, in the alternative, to remand for a new finding of probable cause on Count II of the indictment, which alleged first degree murder of the fetus. The motion to dismiss was based on the contention that a fetus is not a "cognizable 'victim' " under Arizona's first degree murder statute. Alternatively Vo argued that the prosecutor engaged in prosecutorial misconduct by misinforming the jury about that law (1) by not instructing the jury about the manslaughter statute, A.R.S. § 13-1103(A)(5), which includes the death of an unborn child; (2) by giving the jury a definition of "person" from a civil case; and (3) by eliciting misleading testimony about the status of the development of the fetus.
The state responded that the prosecutor's instructions to the grand jury were proper under Arizona law because the Arizona Supreme Court has defined a stillborn, viable fetus as a "person" within the civil context of the wrongful death statute, based on Summerfield. The state pointed out that two other jurisdictions have applied the definition of "person" within their wrongful death statutes to a criminal charge involving the death of a fetus. See Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), and State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984). The state also reasoned that the manslaughter statute was inapplicable to Vo in the absence of evidence that he knew the victim was pregnant or that he intended harm to the fetus. See State v. Amaya-Ruiz, 166 Ariz. 152, 172-73, 800 P.2d 1260, 1280-81 (1990). In a supplemental response, the state also argued that the manslaughter statute applied only to "non-viable fetuses, while the other homicide statutes may be applied to viable fetuses." 1
Subsequently, petitioner Paredez joined in both the motion to dismiss and the alternative motion for redetermination of probable cause.
After a hearing on the consolidated motions, the trial court issued its minute entry ruling on November 7, 1991. With regard to the issue of the prosecutor's conduct before the grand jury, the court found "that there was no misconduct that would warrant an order remanding this matter to the grand jury, much less dismissing the charges against defendant [Vo]." The court found that the prosecutor's decision not to read the manslaughter statute to the grand jury was justified by its inability to show defendant's mental state toward the fetus, and that the reference to Summerfield "was neither inaccurate nor misleading." Regarding Vo's motion to dismiss, the court ruled:
Intertwined throughout Defendant's Motion is the argument that he cannot be held criminally responsible for the death of a fetus. Pursuant to A.R.S. §§ 13-1105(A)(1) and 13-1101(3), the State must establish that an unborn child is a "person" before first degree murder liability can attach. The Court concludes that the unborn ... child was a human being, and thus a "person," for purposes of A.R.S. § 13-1105. See Com. v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984); Mone v. Greyhound Lines, Inc. , 331 N.E.2d 916 (Mass.1975). Having reviewed a number of opinions dealing with this question, it is clear to this Court that the law has evolved to the point that one who causes the death of an unborn child can be held criminally liable. To the extent that one can divine legislative intent in Arizona, the Court concludes that, for the reasons stated in Summerfield, supra, as well as reasons that are apparent from a review of Chapter 11 of the Arizona Criminal Code, the Arizona Legislature intended that criminal liability attach in cases like the present.
The court also concluded that "prospective-only application is not warranted here," and denied Vo's motions.
On December 20, 1991, Vo and Paredez moved the trial court to stay further proceedings so that they could file this special action, and the court granted a sixty-day stay. Vo filed his petition for special action in this court on December 27, 1991, and Paredez requested permission to join the action on January 2, 1991, which this court granted by order dated January 3, 1991.
Petitioners procedurally framed their arguments in the trial court as a motion to dismiss or an alternative motion to remand for redetermination of probable cause. The nature of the relief they were seeking, however, was a determination that a fetus is not a "person" within the meaning of the first degree murder statute, and that they therefore could not be charged with murder under existing Arizona statutory criminal law. This argument, if successful, would require an order of dismissal, based on a finding that the indictments were insufficient as a matter of law, rather than a remand for a new determination of probable cause for denial of a substantial procedural right. Compare Rule 16.5 with Rule 12.9, Arizona Rules of Criminal Procedure. We therefore consider their special action petition to seek relief primarily from the denial of a motion to dismiss, regardless of how their arguments were procedurally labeled in the trial court.
As a general rule, special action is not an appropriate vehicle for review of a denial of a motion to dismiss. See State v. Superior Court, 123 Ariz. 324, 329-30, 599 P.2d 777, 782-83 (1979). However, where an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again, special action jurisdiction may be warranted. Id. We also note that this case raises an issue analogous to the one addressed by special action review in Summerfield, where the court accepted special action jurisdiction for the following reasons:
In the situation at bench, there are several pending cases in the superior courts which present the same issue. Normal appellate procedures will result in unnecessary cost and delay to all litigants.... The question presented is a clear issue of law with obvious statewide significance. The congruence of these factors militates in favor of our accepting jurisdiction.
144 Ariz. at 469, 698 P.2d at 714 (citations omitted). Moreover, our special action jurisdiction has been properly invoked to consider the legal issue whether the grand jury was properly instructed on the definition of "person." In deciding this issue we, of necessity, must decide the issue underlying the motion to dismiss. Because of these factors, in the exercise of our discretion, we accepted special action jurisdiction, and issued an order granting relief with an opinion to follow. This is that opinion.
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