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189 Ariz. 621

944 P.2d 1235

Trebus v. Davis

Arizona Supreme Court

Decided August 19, 1997

Arizona Supreme Court · decided 1997-08-19

Key passage — most relied on by later courts

“The letter from Trebus’ lawyer is vague, does not refer to any specific exculpatory evidence, and is non-committal about Trebus’ desire to testify before the grand jury. No evidence is described, no offer to testify is made. At oral argument in this matter, Trebus’ lawyer still could not tell this court what evidence, other than credibility issues, Trebus wished to have the grand jury consider; nor was he yet sure whether Trebus would testify before the grand jury if given the opportunity. In short, we do not believe that the letter was sufficient to require the county attorney to inform the grand jury that Trebus wished to present evidence or testify. If we were to hold otherwise, we believe county attorneys might well be inundated with meaningless letters seeking to muddy the waters. While we seek to preserve the function of the grand jury process, we do not wish to open the door to game-playing and meaningless posturing from either side. Under AR.S. § 21-412 and Rule 12.6, the grand jury is to decide if it wishes to hear a defendant or his evidence. It can make an informed decision only if, on the one hand, the defendant’s request provides information with some degree of detail, at least as to the subject and outline of the proposed evidence, and, on the other hand, if the prosecutor conveys that information to the grand jury. We believe the statute and rule contemplate both requirements.”

quoted by 1 later decision, including Black v. Coker

“See also id. at 625 , 944 P.2d at 1239 (”

quoted by 1 later decision, including Bashir v. Pineda

Applies AZ 21 § 21-402

Relies on State v. Coconino Cty. Superior Ct., Div. II · Crimmins v. SUPERIOR CT. IN & FOR MARICOPA CY. · State v. Just

Good law ✅— No negative treatment on recordhow we know

Decided 1997-08-19

How this case has been cited

Cited by 16 later decisions — most recently December 2023

16 state decisions

601997200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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TOCI, Chief Judge,

¶1specially concurring.

¶2I concur in the result. In my view, Part B is sufficient to dispose of this case. I agree that the evidence Trebus wished to offer was not clearly exculpatory and that issues of credibility and inconsistencies in witness testimony are best resolved by trial.

¶3I take issue with the remainder of the opinion for two reasons. First, Part A is not necessary to the holding in this case, and therefore has no precedential value. Furthermore, I disagree with it. Although the prosecutor must disclose clearly exculpatory evidence, State v. Coconino Cty. Sup. Ct., 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984), A.R.S. section 21-412 (1990) states the grand jury is “under no duty to hear evidence at the request of the person under investigation.” Thus, Trebus had no absolute right to testify or to have information presented to the grand jury unless that information was “clearly exculpatory.”

¶4The letter on Trebus’ behalf did not state what exculpatory information he had to offer nor that Trebus would testify before the grand jury if given the opportunity. It simply stated that the lawyer wished “the opportunity to present ... exculpatory evidence that may not have been presented to you, or to clarify perhaps misleading interpretations of the facts as seen by the investigating officers.” Therefore, Part A of this opinion is advisory when it states that the prosecutor “must inform the grand jury that the defendant has requested to appear,” which Trebus did not, “or has submitted exculpatory evidence.” See Maj. op. at 625, 944 P.2d at 1239. As to the latter, although Trebus’ lawyer suggested he had exculpatory evidence, what he actually wished to do was to highlight for the grand jury evidence of the victim’s lack of veracity or inconsistency in reporting the events at issue. In this case, that was not “clearly exculpatory evidence.”

MARTONE, Justice,

¶5dissenting from part A of the opinion and concurring in the judgment.

¶6I agree with Judge Toci. I write only to set forth my reasons for disagreeing with part A of the majority opinion. The majority’s advisory holding that the county attorney has an obligation to communicate the defendant’s request to present evidence to the grand jury is unsupported by the relevant statutes and our cases. A.R.S. § 21-412 provides only that the grand jury may hear evidence at the request of the person under investigation. It says nothing about that request being presented to a prosecutor. A.R.S. § 21-408 de*627scribes the duties of the prosecutor as they relate to the grand jury and nowhere is there any suggestion that the prosecutor is the person to whom an investigated person must make a request to appear.

¶7In contrast, A.R.S. § 21-409 imposes on the court the duty to charge the grand jury “concerning the matters that may be considered by it and concerning the duties of the grand jurors.” It is the court that calls the grand jury. A.R.S. § 21-402. It is the court that appoints the foreman. A.R.S. § 21-409(D). Thus, if an investigated person wants to communicate with the grand jury, he or she should do so through the court that convened it. It is odd to put that duty on the investigated person’s adversary, the prosecutor.

¶8So, for example, in State v. Just, 138 Ariz. 534, 539, 675 P.2d 1353, 1358 (App.1983), the defendant submitted his request to present evidence under A.R.S. § 21-412 “to the grand jury.” The prosecutor’s objection was overruled and Judge Broomfield ruled that the matter was to be decided by the grand jury-

¶9In Crimmins v. Superior Ct., 137 Ariz. 39, 668 P.2d 882 (1983), we did not address the question of whether the prosecutor had a duty to communicate the defendant’s request to the grand jury. Only Justice Feldman did by a specially concurring opinion upon which today’s majority relies as though it were the opinion of the court. The majority says that without imposing this burden on the prosecutor, “A.R.S. § 21-412 and Rule 12.6 are rendered meaningless.” Ante, at 625, 944 P.2d at 1239. This is hardly the case. If the defendant here wanted to present evidence to the grand jury under the statute or rule, all he had to do, when he got no answer from the prosecutor, was to send his request directly to the grand jury through the office of the judge who called the grand jury under AR.S. § 21-402 and whose obligation it was to charge it under A.R.S. § 21-409.

¶10I thus concur in the judgment and dissent from part A of the majority’s opinion.

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