*1 P.2d Petitioner, KORZEP, Roberta OF the STATE OF COURT

SUPERIOR ARIZONA, For In and the COUNTY Keddie, YUMA, Douglas Honorable

OF thereof, Respondent Judge, judge Arizona, David S. of ex rel. STATE ELLSWORTH, County Yuma Attorney, Party Real in Interest. J. Suciu, & Michael Donovan Schmitt Yuma, Donovan, petitioner.

1No. CA-SA 223. Ellsworth, Atty. by Yuma Co. David S. Arizona, Appeals of Court Hall, Atty., Philip Deputy Co. L. Chief 1, Department B. Division Corbin, Yuma, Atty. Gen. and Robert K. Nov. 1987. Counsel, III, Crim- Chief William J. Schafer Phoenix, Div., respondent. inal OPINION

JACOBSON, Judge. special action seeks remand for a prosecution criminal The cause. redetermination pathol- is whether presented central issue ogist’s mischaracterized opinions were if hearsay testimony so, requires a remand to whether presentation grand jury for testimony. by the own doctor’s petitioner, are that the Roberta facts Korzep, for the second has been indicted husband, Kor- degree of her David murder by the zep. indictment was returned testimony solely on the based officer, Rodgers. police Brian investigating Rodgers related to of the occurrence version her she had up to admission that peti- According to stabbed her husband. tioner, in the had her husband she stabbed her; physically kitchen after he had abused readily the knife used kitchen; had and she accessible in a and stabbed him reached for the knife ag- to the victim’s spontaneous reaction quoted Rodgers further gression. Officer then stating that the victim petitioner as (some 20 her the bedroom followed kitchen), again where feet from her, fell bed- lunged at the before *2 room’s doorway, whereupon petitioner the “facts” were contrary petitioner’s ver- fled. sion aggressive the continued conduct by the victim to his death.

Physical which, facts existed depending upon their interpretation, hearing medical At the on petitioner’s could motion for upon cast petitioner’s doubt the remand version of of probable redetermination cause, hence, the although occurrence and Dr. Mallon testified whether she in that originally was opinion rup- fact acted in of the stabbing self defense in that the her spleen tured stabbing, followed the husband. The first was physical of these facts opinion now of the was the that it was the direct body location of the victim’s in the consequence stabbing of the blow. Dr. doorway the bedroom some 20 feet from Mallon also testified a that in shock the kitchen. The second was a bruise on presence could walk and that the of the the victim’s chest. Third autopsy was an body 20 feet the not kitchen was revealing the rup- that victim suffered a medically stabbing inconsistent with a oc- spleen. physical tured The fourth fact was curring short, in the In kitchen. in Dr. home, the lack of anywhere blood opinion, Mallon’s medical the point other at the body than where the was version of stabbing the was consistent with Finally, found. there was no evidence of physical the readily facts. The doctor ad- physical on petitioner. abuse the Rodger’s mitted that Officer version of his Mallon, Dr. Robert Medical Examiner for opinions expressed grand jury to the were County, performed Yuma autopsy on complete not a opinions distortion of he had Rodgers the victim. was however, tentatively emphasized, held. He autopsy the and discussed with Dr. Mallon that the definiteness with which Officer physical findings certain and the medical Rodger’s expressed those was not which conclusions could be drawn that, warranted and at least rup- as to the Rodgers them. Officer was allowed spleen, tured the version heard through hearsay to relate these medical grand jury was incorrect. conclusions to the jury. Officer inconsistencies,1 upon Based these Rodgers attributed to Dr. the opin- Mallon petitioner contends that the was spleen ion that ruptured was after the sufficiently misled so as to justify rede stabbing took place possibly was the termination of peti cause. The kicked; result of the victim being that misleading tioner also contends that upon blood, based the lack visible impression was the direct result use victim would not have walked around after conceding of hearsay in this matter. While stabbed; being upon and that based testimony support that hearsay can an in wound”, “body goes “extreme either Baumann, dictment, State 125 Ariz. you you collapse, shock and or flee (1980), petitioner urges 610 P.2d 38 injury____” cause adopt viewpoint us embraced Thus presented, was Appeals Court of for the Second Circuit through hearsay, opinion with the medical hearsay before should be probably occur in occasions limited those “when direct tes readily the kitchen where the knife was timony is unavailable or when it is demon accessible; being that after stabbed strably inconvenient to summon witnesses kicked, possibly resulting victim was ain testify personal able facts from Umans, ruptured spleen; contrary and that knowledge.” United States v. aggressive (2d Cir.1966). continued conduct attributed to F.2d Dr. 730-31 Since petitioner, “available”, obviously the victim would either petition have Mallon was collapsed sought urges immediately or to flee er the use of under improper. from the attacker. All of medical these circumstances is these petitioner prosecu- jury. 1. The also withheld from the We contends that the conclude improper jury; tor made the comments that no error was committed in these areas and improperly on self instructed therefore do discuss them further. defense; exculpatory and that information fact, bruise, Q. you say, in Petitioner overstates the Umans case. Would regard- sir, you say there articulated what it that the The Court now would bruise limitation on the use of ed as desirable left hand chest was in fact a upper *3 grand go did hearsay jury. before a It not any person kick now? by result of a far, however, to that all in- require so as A. No. remanded where such limita- dictments be Q. And, suggested the if it was to go Nor tions were exceeded. need we so grand presume I inaccu- jury, it would be agree, however, far. We that the unbri- rate? grand hearsay jury dled use of before a thing you Certainly. only A. that potential abuse, especially has the when trau- suggests can blunt say, the bruise impressions and of the the intonations wit- possibilities. ma consider the and position ness are those of a whose Q. bruise you consider now the Would proceedings is not neutral. More- slightest degree the shattered in to over, potential is abuse exacerbated spleen? where, here, lay attempts by as witness thing A. think it has a do with I don’t to opinions explain to and it ... expert. anof Q. you have told this ... Would placed Rodgers was in the dilem- Officer rup- jury definitely spleen that was attempting not summarize only ma of to stabbing and before tured after explain to opinion also Dr. Mallon’s but death? grand jury. While we are sure that was say A. I wouldn’t that. No. attempting truthfully relate what he that, Q. Rodgers If Brian said he was thought opinions were Dr. Mallon’s as to wrong? evidence, key it is clear elements that, using the A. If said word defi- points response ques- in juror’s that at I did nitely, particular, wrong. in he was he, essence, in as speculating tions say say and would not that. emphasis expert what the medical would placed upon shock, certain medical Q. have facts. tell respect you would With Dr. Mallon’s recounted this all of this information less trial court were far certain and often suggests us shock you given about have him differed from those attributed to Korzep’s Roberta medical evidence that Rodgers: in statements this occurred the kitchen that, Q. bleeding, in factor of is not true?

fact, your in opinion, evidence that the say thing I only A. I couldn’t that. stabbing, as reflected to Roberta Kor- discussing standpoint say can is from zep, in did not occur the kitchen? say expect I and what would A. I comment on that. position, considering can’t rather from shock, occur, I area felt it did but say Q. you yes have Would been able any could not make statement as to when grand jury? in front of a definitely had and occurred A. No. I can only how he had dis- far walked. Q. to use an you Would have been able my experience of I cuss what it this, gravi- like example example like shock trauma. know about that; tational flow and existence Doctor, Q. Okay. was the bottom line standpoint, from a medical is it inconsist- your Rodgers interview with Dr. ent the in the kitchen? stab occurred had, essence, in propositions he these any certainty. I say A. can’t that with against Korzep’s? were his word Roberta Q. have in you Would answered that? A. I said grand jury? front of the Q. way in the case is? it fact the Isn’t answer, given A. I would have same degree of cer- say any I could with Basically. A.

tainty. true, Q. in fact all details we Isn’t [sic] medical factors gone

have into about here, none of them would have resulted We previously entered an order in this opinion you any remanding of them matter case to the Korzep’s were inconsistent with Roberta for a redetermination of happened cause. That statement order is stay kitchen? reaffirmed. The previously entered quashed. A. That’s correct. It is clear in case had FIDEL, J., concurs. prosecution called Dr. Mallon testify be EUBANK, Judge, dissenting: fore jury, it would have avoided I I against taking dissent. voted special discrepancy the opinions between actu *4 action jurisdiction in this matter because ally Rodg held Dr. Mallon and Officer supports the record Jury’s in- Grand recounting ers’ of those which dictment, which is on valid its face. directly bear on the of truth not, however, version of need events. We provides: A.R.S. 21-413 § invoke an automatic remand rule where grand jury The shall return an indict- expert opinions are presented through ment charging under investi- testimony. Rather, hearsay where the gation with public the commission aof prosecution investigative police uses offi if, offense from all the evidence taken hearsay cers to transmit expert opinions together, it is convinced there is which are material both to of the issue probable cause to believe the person un- whether an indictment is to be returned investigation der guilty public is of such so, degree if and of the crime to be offense, indicted, following rule is to If apply: In Baumann, 404, v. State 125 Ariz. 610 high there exists probability (1980), P.2d 38 Supreme our Court stated: grand jury would not have indicted had duty grand The jury of a is to decide they testimony expert heard the probable whether cause and that exists version, hearsay declarant rather than a may only cause determination then the matter must be remanded to allow challenged by be alleging a motion grand jury to make that determination. pro- defendant was denied a substantial See, United Estepa, States v. 471 F.2d right cedural or that an insufficient num- (2d Cir.1972). 1132 grand ber jurors of concurred the in- dictment, 17 A.R.S. Rules of Criminal opinion, high In our prob there is a Procedure, Rule 12.9. ... Absent ability grand jury given that had been showing prejudice in these the opportunity to Dr. evaluate Mallon’s proceedings, there can be no reversal of hand, testimony first it would not have (Citations omitted). error. indicted, or, if an indictment was returned 409, Id. at 610 P.2d at 43. it would have not been for murder. only The attack here raised is suffi- The dissent has characterized the mis- ciency presented of the evidence to the nature of the as testimony Jury. Supreme Grand Our Court has wise- sufficiency problem of the evidence which ly inquiry up said that such is Grand is immune attack the rationale under Jury alone. Jacobson, of cases such as 22 State v. In Rosenblatt, 461, v. 112 State Ariz. 128, 543 (1974). Ariz.App. 524 P.2d 962 (1975), Supreme P.2d 773 Court said: argument too is covers much. It not the sufficiency of adoption the evidence which There no intention presented change to the ques- long that is Rule 16.7 to established tioned, inaccuracy but its which rule renders indictment valid on its face decision of the jury subject challenge ground than fair is not less on the impartial. Superior jury Crimmins v. that the on acted the basis incompetent Maricopa County, inadequate Court In and 137 or evidence. 39, (1983). Calandra, 338, Ariz. 668 P.2d 882 is 414 Remand United States v. U.S. 613, necessary (1974); 94 inaccuracy. correct this S.Ct. 38 561 L.Ed.2d Cos-

307 also, v. States, 359, seq. et See State 350 U.S. 76 A.R.S. 13-401 § tello v. United 703, 43, (1956); Johnson, 42, 492 704 406, 100 397 Holt v. Ariz. P.2d L.Ed. 108 S.Ct. States, 245, 2, (1972). 218 U.S. 31 S.Ct. United (1910). A court has trial 54 L.Ed. addition, perjured testimony before a In weigh power inquire or no as a will serve basis legal sufficiency present- the evidence aside, unless is setting an indictment in- ed to the which an jurors were unable “that established resulted. dictment indict the evi- their on base decisions 774; 462, v. 543 P.2d at Jacob

Id. State Court, 139 Superior dence.” Franzi (1974). son, Ariz.App. 524 P.2d 962 (1984). 556, 565, 676 P.2d Ariz. majority opinion violates this rule. Rodgers would testimony of Officer Further, has held Supreme our Court perjury. certainly not be characterized obligated state is not were, analogy, But, if it it would exculpatory grand jury, evidence to a ab- doing by its require majority what the grand jury, unless request sent a remand. *5 clearly exculpatory. the evidence is Clear- Finally, petitioner not denied sub- evi- ly exculpatory evidence defined as “procedural right” required by stantial weight of such that it would deter dence 12.9, of Criminal Proce- Rule Arizona Rules finding existence rules, dure, procedural because none of the probable cause. State v. Coconino 12.8, through 12.1 have been violated. Rule 422, Court, County Superior Ariz. Thus, was, my opinion, in judge trial (1984). Thus, in 678 P.2d justified denying redetermination of Coconino, the fact that the state did cause, his probable and he did not abuse produce evidence of Mauro’s mental health denying the motion. discretion bad, history, which was not defeat cause indictment returned grand jury. pointed out that court may such evidence be relevant for

while trial, required is not here. The consideration. The same is true (self-defense) is justification issue of a de- fense matter to be established trial.