william p. ring coconino county attorney daniel noble, …
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WILLIAM P. RING
COCONINO COUNTY ATTORNEY
Stacy L. Krueger, Bar #027020
Daniel Noble, Bar #028632
Deputy County Attorney
110 E. Cherry Avenue
Flagstaff, Arizona 86001
PHONE: (928) 679-8200
FAX: (928) 679-8201
Attorneys for the State
IN THE SUPERIOR COURT, THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF COCONINO
STATE OF ARIZONA,
Plaintiff,
vs.
ANN MARIE MARTINEZ,
Defendant.
Superior Court No. CR2020-00632
RESPONSE TO MOTION TO REMAND
[Honorable Ted Reed, Div. 1]
The State of Arizona, by and through the undersigned Deputy County Attorney,
hereby respectfully requests this court deny Defendant’s Motion to Remand pursuant to
Rule 12.9 and accompanying case law. The State’s position is supported by the attached
Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED this 9th day of December, 2020.
WILLIAM P. RING
COCONINO COUNTY ATTORNEY
/s/ Stacy Krueger
_______________________________
Stacy L. Krueger
Deputy County Attorney
E-FILEDDATE AND TIME:12/9/2020 1:43 PMVALERIE WYANT, CLERKBY: KD, Deputy
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MEMORANDUM OF POINTS AND AUTHORITIES
I. Facts
A fair and impartial presentation of the facts of this case are detailed in the grand
jury transcript. A brief summary of the case is as follows:
D.M. was six years old when he died of starvation, weighing just 18 pounds. D.M.
took his final breath while confined to a small space inside a bedroom closet
(approximately 21” by 25”) in Defendant’s residence. D.M. was confined to that small
space for at least a month leading up to his death, along with his brother, seven-year-old,
A.M., from 8pm each evening until about noon the following day. A.M. was also in a life-
threatening condition, due to starvation, at the time of D.M.’s death, and was flown to
Phoenix Children’s Hospital for further care. A.M. remained hospitalized for some time
dealing with the impact of refeeding syndrome, a consequence of starvation and severe
malnutrition.
The boys’ confinement inside that closet, for approximately sixteen hours each
day, was done as punishment by the parents (in addition to spanking or hitting) for trying
to sneak food (such as peanut butter, bread, or soup), as they slowly starved to death.
Defendant admitted to participating in the punishment of A.M. and D.M., including for
sneaking or trying to sneak food, by spanking them on the buttocks with a hanger (even
the day before D.M.’s death, when D.M.’s life-threatening condition was blatantly
obvious). Defendant did not place the boys in the closet. At autopsy, an injury was located
on D.M.’s back that was consistent with being struck with a hanger.
The boys lived in Defendant’s small two-bedroom, one-bathroom apartment with
their parents (the co-defendants), their two younger female siblings, G.M. and N.M., and
Defendant (their 50-year-old paternal grandmother). None of the three adults in the home
worked, and the family received monthly food stamps, which they used to purchase food
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for the home. G.M. and N.M. were not confined to a closet and were of proper weight and
nourishment for their ages (four and two years old).
The parents of the children played video games most of the day (and night). The
parents would wake up around noon on school days to walk the boys’ younger sister, 4-
year-old, G.M., to school. The boys were not enrolled in school. For unknown reasons,
the boys were treated differently than the girls, and the girls were allowed to eat whatever
they wanted without punishment.
It is unknown what Defendant did with her time, except that on each school day
Defendant exclusively cared for the two boys while the parents walked G.M. to and from
school. During that time, according to A.M., Defendant fed them oatmeal and then placed
them in a timeout before going to her bedroom. Defendant blamed others in the home for
the boys not being fed properly, and also blamed their condition on sleeping pills, and an
illness D.M. had as a newborn.
Though the family stated they did not have enough money to adequately feed the
boys, police located ample options in the residence at the time of D.M.’s death, including
bread, oatmeal, chocolate, rice, noodles, powdered protein, canned foods, powdered drink
mix, frozen fruit, frozen steaks, roasts, soda, eggs, cheese, sauces, cookies, rice crispy
treats, pop-tarts, ice cream, candy, cake mix, and numerous boxes of cereal.
On March 2, 2020, after D.M. was found not breathing inside the bedroom closet,
Defendant, instead of immediately calling 911, called her daughter. After speaking to her
daughter, Defendant then called 911. Police responded to the residence around 12:40pm
that day and found D.M. lying on the floor in the living room, cold to the touch, with rigor
mortis already set in, his bones clearly protruding under a paper-thin layer of skin. While
police attempted CPR on D.M., Defendant began preparing food for A.M. nearby, and
stated that she needed to feed him.
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II. Procedural History
Defendant, Ann Marie Martinez, was indicted by the grand jury on August 6, 2020 on
the following five counts:
• First Degree Murder-DV-DCAC, Class 1 Felony (victim: D.M.)
• Child Abuse-DV-DCAC, Class 2 Felony (victim: D.M.)
• Child Abuse-DV-DCAC, Class 2 Felony (victim: A.M.)
• Kidnapping-DV-DCAC, Class 2 Felony (victim: D.M.)
• Kidnapping-DV-DCAC, Class 2 Felony (victim: A.M.)
The Court allowed an extension for filing a motion to remand to November 30, 2020.
Defendant timely filed her Motion to Remand on November 30, 2020.
III. Law and Argument
Rule 12.9 of the Arizona Rules of Criminal Procedure states that “grand jury
proceedings may be challenged only by motion for a new finding of probable cause
alleging that the defendant was denied a substantial procedural right, or that an
insufficient number of qualified grand jurors concurred in the finding of the indictment.”
Due process in the context of grand jury proceedings “requires the use of an
unbiased grand jury and a fair and impartial presentation of the evidence.” Crimmins v.
Superior Court (Maricopa), 137 Ariz. 39, 41 (1983) (internal citation omitted). Defendant
does not raise any concern with the presentation of the facts, and it is apparent that
Detective Rucker fairly and impartially presented the evidence.
In Defendant’s motion, she claims that she was denied a substantial procedural
right and due process on two grounds: (1) the State did not read the causation statute to
the grand jurors, and (2) the statute is confusing and the State did not explain the
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causation required for Defendant’s specific actions or inactions. These claims do not
support a basis for remand, and Defendant has failed to identify any case law that supports
her argument.
Defendant’s argument that the grand jurors should have been read the general
causation statute, A.R.S. §13-203(A), fails for multiple reasons. First, there is no law
requiring the State to read A.R.S. § 13-203(A) to the grand jury (even though causation
has been a required element in most criminal charges for decades). Next, the grand jurors
were instructed on causation within the reading of the plain language of the child abuse
and felony murder statutes. That alone is sufficient. “[I]nstruction on all relevant statutes
satisfies due process.” Crimmins v. Superior Court (Maricopa), 137 Ariz. 39, 43 (1983),
citing State v. Horner, 112 Ariz. 432, 433 (1975).
However, although not required, the State did instruct the grand jurors related to
criminal liability and causation prior to the deliberations in this case. At empanelment (on
July 2, 2020), the grand jurors were instructed on A.R.S. §§13-201, 13-202, and 13-203.
This included instruction on the requirements for criminal liability (acts and omissions),
the construction of statutes regarding culpability, as well as the causal relationship
between conduct and result (but-for causation). See Exhibit A, excerpt of grand jury
empanelment (filed under seal).
The grand jurors were properly instructed in this case on all relevant statutes. Once
all relevant statutes are read, there is no additional obligation to further instruct, unless
requested. In addition, every grand juror had a statute book containing all relevant statutes
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for their reference, if needed. “Due process requires only that the prosecutor read all
relevant statutes to the grand jury, provide them with a copy of those statutes to refer to
during deliberations, and ask if they want any statutes reread or clarified.” O’Meara v.
Gottsfield, 174 Ariz. 576, 578 (1993).
The State appropriately instructed the grand jurors on the applicable law related to
First Degree Felony Murder and Child Abuse, as well as any associated definitions. The
instruction was accurate, and there is zero evidence to support Defendant’s argument that
the jurors were confused or unsure how to apply the law to the facts presented. In fact, the
grand jurors were specifically asked after each statute was read whether they had any
questions. The jurors indicated they did not. (GJ Transcript, pg.7:12-15; 8:25-9:3). The
jurors were also asked, after the completion of Detective Rucker’s presentation of the
evidence, if they had any legal questions. Again, they did not. (GJ Transcript, pg. 40:11-
14). The jurors were asked one final time whether they had any questions prior to
deliberations. Not one indicated they had any questions. (GJ Transcript, pg. 40:25-41:7).
The “complexity” of the statute noted by defense is not related to any difficulty in
understanding the statute, but simply that there are different possible methods (or alternate
means) of committing the offense. The different methods contained in the statute are not
difficult to understand and are clearly delineated in the plain language of A.R.S. 13-
3623(A).
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The child abuse statute does not require any additional instruction or explanation,
unless requested by a grand juror.1 Again, there were zero questions asked in relation to
the statutes, and zero indication of any confusion.
Defendant also claims, without any support in the record, that the appropriate and
accurate reading of the felony murder statute (specifically A.R.S. 13-1105(B)) must have
confused the jury. There is also no support in the record for this claim. The State has an
obligation to read all applicable laws and A.R.S. 13-1105(B) was necessary and required
to be read. Had the State failed to read that section of the felony murder statute, surely the
State would be responding to a Motion to Remand because of that failure.
Finally, Defendant’s belief that the State should have further instructed the jurors
regarding how Defendant’s actions or inactions apply to the law would unnecessarily
invade the province of the grand jurors as the factfinder in grand jury proceedings. It is
the responsibility of the grand jurors to apply the law to the facts presented.
“A grand jury must return an indictment if it finds that there is probable cause to
believe that the person under investigation is guilty of the offense charged.” State v.
Horner, 112 Ariz. 432, 433 (1975). The jury received a fair and impartial presentation of
the facts in this case, as well as an accurate reading of all applicable law, thus protecting
Defendant’s rights. There is no basis for remand.
1 Unless case law broadens the type of instruction necessary to adequately
instruct the jury on an applicable statute, no further instruction is
necessary. See Dominguez v. Foster, 243 Ariz. 499 (App. 2018).
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IV. Conclusion
For the foregoing reasons, the State respectfully requests Defendant’s Motion to
Remand be denied.
RESPECTFULLY SUBMITTED this 9th day of December, 2020.
WILLIAM P. RING
COCONINO COUNTY ATTORNEY
/s/ Stacy Krueger
_______________________________
Stacy L. Krueger
Deputy County Attorney
COPY of the foregoing mailed/delivered
This __9___ day of December, 2020, to:
The Honorable Ted Reed
Judge of the Superior Court, Division 5
Greg Parzych & Ryan Stevens
Attorneys for Defendant
By ___/s/M.K.___________________________
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EXHIBIT A
(FILED UNDER SEAL)
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF COCONINO
))))))))))))
Flagstaff, ArizonaJuly 2, 2020 11:34 a.m.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
EXCERPT - GRAND JURY EMPANELMENT
ORIGINAL
REPORTED BY:DALIA AMBRIZ, CR, RPRCertified Court Reporter #50899
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P R O C E E D I N G S
(Whereupon, the following proceedings
commenced at Ft. Tuthill pursuant to COVID guidelines:)
* * * *
MR. SHEA: So here we go. ARS 13-201,
General Principles of Criminal Liability requires -- so
this is ARS 13-201 requirements for criminal liability.
The minimum requirement for criminal
liability is the performance by a person of conduct
which includes a voluntary act or the omission to
perform a duty imposed by law which the person is
physically capable of performing.
ARS 13-202, Construction of statutes with
respect to culpability. If a statute defining an
offense prescribes a culpable mental state that is
sufficient for commission of the offense without
distinguishing amongst the elements of such offense, the
prescribed mental state shall apply to each such element
unless a contrary legislative purpose plainly appears.
So what that kind of refers to is if the
statute says a person commits X offense, if they
knowingly, and then lists the elements. The word
knowingly would apply to each element unless the statute
makes it clear otherwise. Okay?
Continuing in 202 subsection B. If a
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statute defining an offense does not expressly prescribe
a culpable mental state that is sufficient for
commission of the offense, no culpable mental state is
required for the commission of such offense, and the
offense is one of strict liability unless the proscribed
conduct necessarily involves a culpable mental state.
If the offense is one of strict liability, proof of a
culpable mental state will also suffice to establish
criminal responsibility. Okay, so there are very few
certain offenses that if you engage in certain conduct,
it doesn't matter what you engage in.
And what the second part of that said was
say the statute doesn't require a culpable mental state,
but you did hear that the person who did it knowingly,
it still satisfies that offense. So the fact that the
act of being a culpable mental state may not diminish
their liability for aggravation. Okay?
Subsection C of the statute provides that
criminal negligence suffices to establish an element of
an offense, that element is also established if a person
acts intentionally, knowingly or recklessly. If acting
recklessly suffices to establish an element of the
offense, that element is also established if a person
acts intentionally or knowingly. If acting knowingly
suffices to establish an offense -- or excuse me,
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establish an element, that element is also established
if the person acts intentionally.
In other words, if you had an offense that
said criminal damage -- a person recklessly causes
damage under the following circumstances. But the
evidence is that the person acted intentionally, then
that culpable mental state of recklessly is satisfied.
If the evidence suggests that the person
acted knowingly, then that element of recklessly is
satisfied.
If the evidence establishes the person was
negligent, then reckless isn't satisfied.
Does that make sense? Questions about that?
So it's like a test. If the evidence is stronger, it's
a culpable mental state. If it's weaker, then it's not.
Okay?
ARS 13-203, Causal relationship between
conduct and result.
Subsection A. Conduct is the cause of a
result if both of the following exists:
1. But for the conduct the result in
question would not have occurred.
2. The relationship between the conduct and
the result satisfies any additional causal requirements
imposed by statute defining the offense.
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Subsection B. If intentionally causing a
particular result is an element of an offense, and the
actual result is not within the intention or
contemplation of the person, that element is established
if:
1. The actual result differs from the
intended or contemplated only in the respect that a
different person or different property is injured or
affected or that the injury or harm intended or
contemplated would have been more serious or extensive
than that caused.
So if my intention was to crash into my
ex-girlfriend's car and I miss her car and hit the
neighbor's car, I'm still guilty even though my intent
was to cause damage to my ex-girlfriend's car. Okay.
Or if my intent is to completely destroy my
ex-girlfriend's car, and I only cause a hundred dollars
worth of damage, I'm still guilty. Okay?
If intentionally causing a particular result
is an element of an offense and the actual result is not
within the intention or contemplation of a person, that
element is established if the actual result differs from
the intended or contemplated -- excuse me, wrong
paragraph. Let me move to the next section.
If recklessly or negligently causing a
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particular result is an element of an offense, and the
actual result is not within the risk of which the person
is aware or in the case of criminal negligence, of which
the person should be aware, that element is established
if:
The actual result differs from the probable
result only in the respect that a different person or
different property is injured or affected or that the
injury or harm intended or contemplated would have been
more serious or extensive than that caused.
And subsection 2. The actual result
involves similar injury or harm as the probable result
and occurs in a manner in which the person knows or
should know is rendered substantially more probable by
such person's conduct. Okay?
So, again, it's a lot of words, but it kind
of makes sense. If I engage in certain conduct
recklessly or negligently, and what I knew and
disregarded or what I should have known, it only differs
from the actual result that I caused to this person or
this property or whatever, then I'm still guilty. I'm
not forgiven my conduct simply because the result is
different than what would have been -- should have been
known.
* * * *
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STATE OF ARIZONA ))
COUNTY OF COCONINO )
C E R T I F I C A T E
I, DALIA AMBRIZ, Registered Professional
Reporter and Official Certified Reporter, Certificate
No. 50899, in and for the State of Arizona, do hereby
certify that the foregoing pages constitute an excerpt,
true and accurate transcript of all proceedings had in
the foregoing matter, all done to the best of my skill
and ability.
Dated in Flagstaff, Arizona, this 4th of December, 2020.
______________/s/______________
DALIA AMBRIZ, CR, RPR Certified Reporter No. 50899Official Court ReporterCoconino County Superior CourtFlagstaff, Arizona 86001928-679-7559