IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
JOHN CHRISTIAN HANSEN II,
Petitioner,
v.
HON. JAVIER CHON-LOPEZ,
JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
THE STATE OF ARIZONA,
Real Party in Interest.
No. 2 CA-SA 2021-0015
Filed November 9, 2021
Special Action Proceeding
Pima County Cause No. CR20202717001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Law Office of Hernandez & Hamilton PC, Tucson
By Joshua F. Hamilton and Carol L. Lamoureux
Counsel for Petitioner
Laura Conover, Pima County Attorney
By Amy S. Ruskin, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
HANSEN v. CHON-LOPEZ
Opinion of the Court
OPINION
Judge Eckerstrom authored the opinion of the Court, in which Presiding
Judge Espinosa and Vice Chief Judge Staring concurred.
E C K E R S T R O M, Judge:
¶1 In this special action, petitioner John Hansen challenges the
respondent judge’s denial of his motion to remand the underlying charge
of child molestation to the grand jury for a new finding of probable cause,
pursuant to Rule 12.9, Ariz. R. Crim. P. We are asked to decide whether
polygraph evidence, which is inadmissible at trial under Arizona law, may
be introduced to a grand jury, particularly when it is favorable to the
defense and has been offered as clearly exculpatory evidence. We conclude
the respondent judge correctly found such evidence per se inadmissible.
Nevertheless, based on the state’s violation of its obligation under Trebus v.
Davis, 189 Ariz. 621 (1997), coupled with the unfair presentation of its case,
the respondent abused his discretion in denying Hansen’s Rule 12.9 motion.
We therefore grant special-action relief and reverse the order.
Factual and Procedural Background
¶2 Hansen married Heather in April 2010. Heather had two
children, Z.A. and T.A., from her August 2003 marriage to Greg, which
ended in January 2010. Heather and Hansen, who have two children in
common, twins J.H. and G.H., were divorced in August 2018. In June 2020,
when Z.A. was fourteen years old, she told a friend, and then Heather, that
Hansen had molested her about five years earlier. Heather reported the
allegation to law enforcement. Z.A. was forensically interviewed at the
Child Advocacy Center (CAC). Z.A. claimed that Hansen had molested her
after a shopping trip to Costco with her older brother T.A., and that T.A.
was the only other person in the house when this occurred. In July 2020,
Hansen was charged by indictment with one count of child molestation,
which allegedly was committed between January 1 and July 22, 2014. In
light of certain defects, the case was returned to the grand jury for a new
presentation of the evidence.
¶3 In October 2020, in anticipation of the second grand jury
proceeding, through his counsel Hansen sent a ten-page letter to the
prosecutor assigned to the case, emphatically denying he had committed
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Opinion of the Court
the offense. He requested she either dismiss the charge or, pursuant to
Trebus and its progeny, present to the grand jury the “clearly exculpatory
information” outlined in the letter and supported by nearly 240 pages of
attachments. Hansen pointed to text messages and photographs that
reflected Z.A. had a warm, positive relationship with him—arguably
inconsistent with her having been victimized—even after Hansen and
Heather separated. Hansen asserted in the letter that the offense could not
have been committed in 2014, as alleged in the initial indictment, given
documentation that showed Z.A. could not have gone to Costco with
Hansen and T.A. during that period. Hansen also asserted the evidence
refuted Z.A.’s claim that the offense was committed shortly before her tenth
birthday, which was at the end of July 2015. He provided Costco records
and emails showing Z.A. had not gone to Costco with only Hansen and T.A.
during that period. It appears she had gone with Hansen, T.A., and the
twins on one occasion and only with Hansen on another occasion. In
addition, the letter stated Hansen had taken and passed a polygraph test in
October 2020. The polygraph report, which was also provided, stated
Hansen had shown no deception when he answered “no” to the questions
whether he had ever made Z.A. touch his bare penis and whether he had
ever touched her bare bottom.
¶4 The Trebus letter also stated that in July 2014, Greg’s
girlfriend’s ten-year-old daughter alleged Greg had molested her. Hansen
characterized the allegations as “strikingly similar” to Z.A.’s accusations
against him. The letter stated that in August 2014, after the allegations
against Greg were reported to the Tucson Police Department (TPD), TPD
investigators and the Department of Child Safety (DCS) interviewed Z.A.,
referring to a DCS Report Summary that previously had been disclosed.
Hansen summarized the interview, stating Z.A. told the interviewers no
one had ever touched her inappropriately. The letter also provided, “while
[Z.A.] felt safe around [Hansen], she indicated he was the disciplinarian in
the family.”
¶5 The letter also documented that a counselor from the Family
Center of the Conciliation Court interviewed Z.A. a second time in October
2016, pursuant to a superior court order entered in the custody litigation
between Greg and Heather. During that interview, Z.A. said she had
known Hansen since she was three. She described Hansen as “more of a
stricter parent,” particularly with her younger sibling, J.H., adding her
“mom told [her] that’s probably just because that’s his son and he kind of
wants him to grow up and be a good man.” She stated, “He’s not mean or
anything like that,” but he wants a “good household.” She said she could
talk to him about “stuff,” he is “funny,” and she does not think of him as a
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Opinion of the Court
stepdad, she thinks of him “as a dad.” Although she said he “yells
sometimes,” she added that her mother had helped him over the years and
it had “gotten better for sure. He doesn’t yell as much anymore.” She said
on a scale of one to ten, with ten being the most comfortable, she would
give her mother’s home, which at that time was also Hansen’s home, a ten.
She said she had no concerns about living with her mother or about her
mother’s home.
¶6 The second grand jury proceeding was held in November
2020. Neither the prosecutor nor the testifying detective mentioned the
Trebus letter. The detective did, however, summarize portions of it. He
testified about Z.A.’s forensic interview at the CAC in June 2020. He
relayed that, according to Z.A.’s statement during that interview, she,
Hansen, and T.A. had returned home from a shopping trip to Costco just
before her tenth birthday. Hansen had asked her to come into his bedroom,
said it was hot, and told her to take off her clothes. He then grabbed her
hand and put it on his penis, “moving her hand and his penis for
approximately 15 minutes.” Hansen then told her not to tell her mother.
T.A. had been the only other person in the house when this occurred.
Afterward, Z.A. struggled to enjoy her tenth birthday party because of the
incident. The detective also testified that, during the interview, Z.A. had
estimated Hansen touched her twenty-five times on the bare back and the
buttocks over the next year and a half.
¶7 The prosecutor asked the detective if he had information
about when Hansen had gone to Costco in 2015. The detective said he did
and that the information showed Hansen had gone to Costco six times
between January 1 and July 22, 2015. He explained that there were
corresponding emails between Hansen and Heather about trips to Costco
and that Hansen had taken Z.A. with him on June 1 and June 15. The
detective informed the grand jury that Heather and Hansen separated in
June 2017 and were divorced in August 2018 but that Z.A. and Hansen
continued to have contact until June 2020, when she alleged he had
molested her five years earlier. The detective stated they continued to
attend family celebrations together, including the twins’ birthday, a
celebration of Heather’s “work achievements,” and other events.
¶8 The detective testified further that he had evidence regarding
text messages between Hansen and Z.A. that began in October 2016 and
ended on June 4, 2020, which was less than two weeks before Heather
reported the alleged molestation to the police. The detective read and
summarized messages from June 2019 to June 4, 2020, establishing Hansen
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and Z.A. had a continuing relationship.1 He also told the grand jury about
the custody litigation between Heather and Greg involving Z.A. and T.A.
He explained that on October 4, 2016, Z.A. had been interviewed at the
Family Center, “which is similar to DCS.” He did not tell the grand jury
that the interview had been conducted because Greg’s girlfriend’s daughter
accused Greg of having molested her a year earlier, or that Hansen viewed
the allegations as similar to those that Z.A. made against Hansen years later.
The detective summarized the interview, noting Z.A.’s positive comments
about Hansen, including that he was more like a father than a stepfather,
and stated that Z.A. had not disclosed any type of abuse and had not been
asked about sexual abuse.
¶9 The prosecutor then asked the detective, “[B]ased on your
training and experience, is it uncommon for children to not disclose sexual
abuse?” The detective answered, “It’s not uncommon.” He also agreed it
is not uncommon for children not to disclose sexual abuse even when they
are specifically asked about it. The prosecutor asked the detective if there
is “a difference between a forensic interview at the CAC, as opposed to an
interview conducted by say someone with DCS or at the Family Center.”
Responding that there is, the detective stated that a forensic interview
creates “a safe place for children” and that the individuals who conduct the
interviews “are trained to do interviews on children.” He further testified
that they are “certified professionals,” who ask open-ended questions in a
“controlled environment that makes the children feel safe when they are
talking to an adult.” The prosecutor emphasized the CAC interviewers are
specially trained in interviewing children for forensic purposes. She then
asked whether it was correct that “DCS, OCWI, or Family Center people
typically are not trained in that way.”2 The detective responded, “That is
correct,” also agreeing they do not employ the same standards and
techniques as forensic interviewers. The prosecutor asked the detective
1The messages the detective read or summarized included the
following: Z.A. wished Hansen a happy Father’s Day and each said they
loved the other; she asked him for a ride to a party the family was attending;
she wished him a happy birthday, told him she loved him, and said she
hoped his birthday was special; he texted, “we are hoping to hang out” with
her during spring break, suggesting they could go to lunch or for a hike;
and, on June 4, 2020, she asked if the family, including the twins, could go
to dinner that night, and they exchanged messages about where they would
go.
2OCWI is the Office of Child Welfare Investigations.
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whether, based on his training and experience, it is uncommon for children
to genuinely still care about and love their abusers. He responded that it is
not uncommon.
¶10 One of the grand jurors asked whether Hansen had “ever
apologized, or explained himself, or has he been questioned to determine if
this was true, or has he been in any way approached?” The prosecutor
interjected that “for legal reasons” she could not specify, she was
instructing the detective not to answer. She commented that “[i]t’s a good
question” with “a lot of different parts,” adding, “You can still ask maybe
in that area, but the way you worded it just now, I’m not comfortable
having him answer for legal reasons.” A little later, the same grand juror
said he was making “another attempt at [his] question” and asked, “Was
the defendant questioned or interviewed?” The detective answered, “No.”
¶11 Another grand juror asked about the significance of the
information regarding the Costco trips, saying he was confused by it. The
prosecutor told the grand jurors they must determine what evidence is
relevant and assess credibility, and they should discuss this amongst
themselves. After deliberating, the grand jury returned a true bill on an
amended indictment that again charged Hansen with molestation of Z.A.
but changed the time frame from 2014 to 2015.
¶12 Hansen filed a motion to remand for redetermination of
probable cause pursuant to Rule 12.9(a), Ariz. R. Crim. P., citing the
constitutions of the United States and Arizona. U.S. Const. amends. V, VI,
XIV; Ariz. Const. art. II, §§ 4, 10, 24. He argued the grand jury proceeding
was defective in numerous respects, including that the state: (1) had failed
to accurately relay all of what Hansen characterized as “clearly exculpatory
information contained in the Trebus letter”; (2) had failed to explain the
significance of the Costco records, including the fact that they established
Z.A. did not go to Costco during this period only with Hansen and T.A.,
and had mischaracterized the records to create the impression that they
bolstered rather than undercut Z.A.’s statements; (3) had not told the grand
jury that Greg’s girlfriend’s daughter had accused Greg, Z.A.’s biological
father, of molesting her under circumstances similar to those Z.A. had
described during the forensic interview; (4) had not told the grand jury
Hansen voluntarily took a polygraph test and denied the allegations, the
results of which were favorable, and even apart from the polygraph test,
had not told the grand jury he had ever made statements denying the
accusations; (5) had “undermined the Trebus letter” by editorializing
improperly, failing to inform the grand jury of the evidence that Hansen
and Z.A. had a normal and loving relationship until she accused him of
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molesting her, and by stating that DCS and Family Center interviewers lack
specialized training to interview children about abuse; and (6) had misled
the grand jury by permitting the detective to testify as an expert that
children frequently love their abusers without being qualified to render that
opinion. Relying primarily on Maretick v. Jarrett, 204 Ariz. 194 (2003), Herrell
v. Sargeant, 189 Ariz. 627 (1997), and Crimmins v. Superior Court, 137 Ariz. 39
(1983), Hansen argued the state had not presented the evidence in a fair and
impartial manner and had prevented the grand jury from acting
independently.
¶13 After a hearing in February 2021, the respondent judge denied
the motion. He found “there [were] no substantive procedural rights that
were denied” and “no misleading or false information that was presented.”
He concluded that, given case law establishing polygraph evidence is
unreliable for trial, it does not “rise to the level of clearly exculpatory”
evidence and is not admissible before the grand jury. Although the
respondent judge found some of the other evidence in the Trebus letter
“very strong impeachment evidence for trial,” he concluded it is not clearly
exculpatory. This special action followed.
Special-Action Jurisdiction
¶14 A challenge to a trial court’s ruling on a Rule 12.9 motion must
be sought by special action. Francis v. Sanders, 222 Ariz. 423, ¶ 9 (App.
2009); see also State v. Murray, 184 Ariz. 9, 32 (1995). Hansen does not have
an equally plain, speedy, and adequate remedy by appeal. Ariz. R. P. Spec.
Act. 1(a); State ex rel. Romley v. Superior Court, 172 Ariz. 109, 111 (App. 1992).
Moreover, the admissibility of polygraph evidence at a grand jury
proceeding is a matter of first impression, involves a question of law, and
is likely to arise again. See Francis, 222 Ariz. 423, ¶ 9; Luis A. v.
Bayham-Lesselyong, 197 Ariz. 451, ¶ 2 (App. 2000). For these reasons we
accept jurisdiction of this special action.
Polygraph Evidence
¶15 A grand jury’s finding of probable cause can be challenged if
the defendant was denied a substantial procedural right. Maretick, 204 Ariz.
194, ¶ 11; see also Ariz. R. Crim. P. 12.9(a) (defendant may challenge grand
jury proceeding by filing motion alleging defendant “was denied a
substantial procedural right”). These rights include the right to a fair and
impartial presentation of the evidence. Crimmins, 137 Ariz. at 41. In
addition, due process requires the state to inform the grand jury of the
existence of clearly exculpatory evidence, Trebus, 189 Ariz. at 625, which is
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evidence that “would deter the grand jury from finding the existence of
probable cause,” Herrell, 189 Ariz. at 631 (quoting State v. Superior Court
(Mauro), 139 Ariz. 422, 425 (1984)).
¶16 This court reviews a trial court’s denial of a motion to remand
an indictment to the grand jury for an abuse of discretion. Francis, 222 Ariz.
423, ¶ 10. When the trial court commits an error of law in making a
discretionary decision, however, the court “may be regarded as having
abused [its] discretion.” Id.
¶17 Hansen summarized the results of the October 2020
polygraph test in the Trebus letter and included the report among the
documents supporting the letter. Neither the prosecutor nor the detective
mentioned it during the grand jury hearing in November. Hansen contends
the respondent judge erred by finding that, because polygraph evidence is
inadmissible at trial, it is also per se inadmissible in a grand jury
proceeding. He also challenges the respondent’s related determination that
such evidence is not clearly exculpatory and, therefore, the state did not
have a duty to present it.
¶18 It is well settled in Arizona that polygraph evidence is
unreliable and, absent a stipulation by the parties, categorically
inadmissible at trial “for any purpose.” State v. Hoskins, 199 Ariz. 127, ¶ 69
(2000); see also State v. Ikirt, 160 Ariz. 113, 115 (1987) (explaining polygraph
evidence inadmissible “because it is unreliable and the trier of fact has a
tendency to treat such evidence as conclusive on the issue of guilt”); State
v. Bowen, 104 Ariz. 138, 141 (1969) (finding evidence of or reference to
polygraph test inadmissible). In State v. Perez, 233 Ariz. 38, ¶¶ 16-18 (App.
2013), this court addressed whether polygraph evidence remained per se
inadmissible at trial as provided by these authorities after our supreme
court amended Rule 702, Ariz. R. Evid., effective January 1, 2012, and
adopted the Daubert standard3 for determining the admissibility of expert
testimony. See Ariz. R. Evid. 702 cmt. There, we observed that the
defendant had neither argued nor presented any evidence establishing
there had been a change in “polygraph technology or circumstance between
Hoskins and this case that would justify a change in Arizona’s rule.” Perez,
233 Ariz. 38, ¶ 18. We concluded that polygraph tests continue to be
“unreliable and admission of their results risks usurping the role of the
jury,” deficiencies that make such evidence inadmissible under Daubert. Id.
3Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); see also Fed.
R. Evid. 702.
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Consequently, we stated we would “continue to apply the longstanding
Arizona rule that the results of polygraph tests are per se inadmissible.” Id.
¶19 Hansen concedes polygraph evidence is inadmissible at trial,
but he argues that this does not automatically preclude the introduction of
such evidence in a grand jury proceeding. Citing Maretick, 204 Ariz. 194,
¶ 9, and State v. Fulminante, 193 Ariz. 485, ¶ 11 (1999), he maintains that
grand jury proceedings are different. He asserts the rules of evidence do
not apply and evidence that may be inadmissible at trial may nevertheless
be admissible before the grand jury. Hansen contends the respondent judge
erred therefore by finding the evidence per se inadmissible. And, he
argues, the respondent also erred when he made the related finding that
polygraph evidence does not “rise to the level of clearly exculpatory
evidence,” which the state must present to a grand jury.
¶20 Hansen is correct that generally, “[e]vidence . . . need not be
admissible in trial” to be admissible in a grand jury proceeding. Fulminante,
193 Ariz. 485, ¶ 11 (finding no error in use in grand jury hearing of
confession found involuntary and inadmissible on appeal from initial
conviction); see also Franzi v. Superior Court, 139 Ariz. 556, 566 (1984)
(“hearsay evidence in a grand jury proceeding is not objectionable”). As he
also correctly points out, the rules of evidence, other than rules pertaining
to privilege, do not apply to grand jury proceedings and the grand jury is
entitled to hear all relevant, non-protected evidence that has a bearing on a
given case. See Ariz. R. Evid. 1101(d); see also Maretick, 204 Ariz. 194, ¶ 9.
But as our jurisprudence has emphasized, jurors might mistakenly give
polygraph evidence the deference and weight afforded to scientific or
expert-based fact. As our supreme court observed in Ikirt, 160 Ariz. at 115,
such evidence is unreliable yet the “trier of fact has a tendency to treat such
evidence as conclusive on the issue of guilt.” Reiterating that concern in
Perez, 233 Ariz. 38, ¶ 18, this court stated the admission of polygraph
evidence risks “usurping the role of the jury” to consider the totality of
evidence bearing on veracity. Those same concerns apply to a grand jury
proceeding.
¶21 Moreover, we disagree with Hansen that such evidence is
clearly exculpatory when favorable to the defendant, obligating the state to
present it to the grand jury. See Francis, 222 Ariz. 423, ¶ 12 (prosecutor must
present all “clearly exculpatory” evidence to grand jury). As we previously
stated, evidence is clearly exculpatory if it “would deter the grand jury from
finding the existence of probable cause.” Herrell, 189 Ariz. at 631 (quoting
Mauro, 139 Ariz. at 425). We hold that a species of evidence our courts have
deemed both unreliable and persuasive cannot be sufficient to deter a grand
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Opinion of the Court
jury from finding probable cause, just as the state should not be permitted
to use such evidence to establish it. We are not alone in so holding. The
majority of states do not permit polygraph evidence to be introduced to
grand juries.4 Nor do we find the few contrary cases persuasive.
¶22 Hansen cites cases from New Mexico and Michigan, as well
as four older federal district court cases, for the proposition that polygraph
evidence should be admissible at grand jury proceedings. See State v. Blue,
965 P.2d 945, ¶ 7 (N.M. Ct. App. 1998); People v. Hoffman, 518 N.W.2d 817,
828 (Mich. Ct. App. 1994); In re Grand Jury Investigation, 791 F. Supp. 192,
194 (S.D. Ohio 1992); United States v. Roberts, 481 F. Supp. 1385, 1389-90 (C.D.
Cal. 1980); United States v. Callahan, 442 F. Supp. 1213, 1218 (D. Minn. 1978);
United States v. Narciso, 446 F. Supp. 252, 297-98 (E.D. Mich. 1977). But we
cannot credit the reasoning of these cases given Arizona’s own
jurisprudence finding such evidence both unreliable and unduly
persuasive. See supra ¶ 18. Furthermore, the extra-jurisdictional cases cited
by Hansen are readily distinguishable by procedural posture or by
markedly different attitudes regarding the reliability of polygraph
evidence.5
4See, e.g., Coleman v. State, 553 P.2d 40, 49 (Alaska 1976) (disapproving
of state’s reference at grand jury proceeding to evidence that would have
been inadmissible at trial, including polygraph examination results); State
v. Hansen, 215 N.W.2d 249, 250-53 (Iowa 1974) (holding it was improper for
state to bolster witness’s credibility by informing grand jury he had passed
polygraph test); State v. Martin, 823 N.W.2d 913, 925 (Minn. 2012) (holding
polygraph evidence generally inadmissible at grand jury proceedings);
People v. Ricigliano, 526 N.Y.S.2d 565, 566 (N.Y. App. Div. 1988) (finding no
error in failure to submit polygraph evidence to grand jury because it is not
competent evidence); State v. Spencer, 783 A.2d 413, 418 (R.I. 2001) (finding
it was “inappropriate and prejudicial” to inform grand jury that defendant
failed voice stress analyzer test, which is “akin to polygraph tests,” because
such tests purport to determine truth of a statement and are inadmissible at
trial, but finding error insufficient to warrant dismissal of indictment
because “otherwise competent evidence” established probable cause); State
v. Thrift, 440 S.E.2d 341, 352 (S.C. 1994) (holding polygraph evidence,
including evidence that individual refused to take test, inadmissible before
grand jury).
5See, e.g., Narciso, 446 F. Supp. at 298 & n.3 (where grand jurors “had
the benefit of live testimony by two polygraph experts” who bolstered other
witnesses’ testimony and one grand juror stated polygraph evidence was
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Violation of Trebus and Unfair Presentation of the Case
¶23 During a grand jury’s investigation, criminal defendants are
afforded substantial procedural rights and the right to due process, which
includes the right to a fair and impartial presentation of the evidence.
Crimmins, 137 Ariz. at 41; see also Ariz. R. Crim. P. 12.9(a). “The duties of
fair play and impartiality imposed on those who attend and serve the grand
jury are meant to ensure that the determinations made by that body are
informed, objective and just.” Crimmins, 137 Ariz. at 41. Consequently, the
state has a duty to properly instruct the grand jury on the law, Cespedes v.
Lee, 243 Ariz. 46, ¶ 9 (2017), to present the evidence in a manner that is fair
and impartial, and to introduce clearly exculpatory evidence, Bashir v.
Pineda, 226 Ariz. 351, ¶¶ 10-13 (App. 2011). See also Trebus, 189 Ariz. at 625
(due process requires state to inform grand jury of clearly exculpatory
evidence). What constitutes a fair presentation of the evidence will “vary
from case to case.” Trebus, 189 Ariz. at 626 (quoting Mauro, 139 Ariz. at 424).
¶24 Section 21-412, A.R.S., provides, in relevant part, that the
grand jury is not required to hear evidence “at the request of the person
not dispositive of finding probable cause, court avoided ultimate
determination of whether admission of polygraph evidence to grand jury
is proper but found in any event defendants were neither prejudiced nor
deprived of rights requiring dismissal of indictments); Callahan, 442 F.
Supp. at 1218-19 (concluding, on appeal after conviction, that prosecutor’s
statement to grand jury that defendant had failed polygraph test did not
taint indictment warranting dismissal, given heavy burden to overcome
presumption that “indictment regular on its face . . . is presumed to be
founded on competent evidence” and existence of independent, competent
evidence to support finding of probable cause); Blue, 965 P.2d 945, ¶¶ 3-4,
15-17 (noting polygraph evidence may “directly negate” guilt and
constitute exculpatory evidence for purposes of grand jury presentation
and motion to quash indictment under test prescribed by State v. Hewitt, 769
P.2d 92 (N.M. Ct. App. 1988), but only if evidence would be admissible at
trial, which is conditioned upon compliance with Rule 11-707, N.M. R.
Evid., which provides minimum qualifications for polygraph examiners
and requirements for admissibility of polygraph evidence at trial); see also
Lee v. Martinez, 96 P.3d 291, ¶ 4 (N.M. 2004) (rejecting state’s request to
repeal Rule 11-707, N.M. R. Evid., finding polygraph evidence sufficiently
reliable to be per se admissible scientific evidence, without Daubert hearing
in all cases, provided expert is qualified under and examination was
conducted in accordance with Rule 11-707).
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under investigation, but may do so.” The statute obligates grand jurors to
“weigh all the evidence” they receive, “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.”
Id. Relying in part on Crimmins, 137 Ariz. at 43-44, our supreme court stated
in Trebus that this statute, combined with Rule 12.6, Ariz. R. Crim. P., and a
defendant’s right to due process, not only require the state to present clearly
exculpatory evidence, they also require the state to inform the grand jury
that a defendant has asked to appear or has submitted “possible
exculpatory evidence.” 189 Ariz. at 623-24. It is for the grand jury, not the
state, to decide whether to grant or deny the defendant’s request. Id. at 625
(citing State v. Just, 138 Ariz. 534, 540 (App. 1983)). The court specifically
held:
Given the power of the prosecutor in the grand
jury system, the statutory right of the grand jury
to decide whether to hear evidence from the
defendant, and the defendant’s right to request
appearance before the grand jury . . . [the
prosecutor] must inform the grand jury that the
defendant has requested to appear or has
submitted exculpatory evidence. Without such
a responsibility, A.R.S. § 21-412 and Rule 12.6
are rendered meaningless.
Id. at 625. Thus, when a defendant has asked to present evidence, the grand
jury may either grant or deny the request. Id. “The statute does not
authorize the [state] to present a third option of summarizing the defense
evidence from [its] point of view.” Just, 138 Ariz. at 540; see also Reyes v.
Cohen, No. 1 CA-SA 20-0109, ¶ 10, 2021 WL 3732578 (Ariz. Ct. App. Aug.
24, 2021) (state has duty to provide grand jury fair and impartial
presentation of evidence, instructions on applicable law, and information
on existence and content of Trebus letter).
¶25 In order to trigger the state’s obligations, the letter to the
prosecutor must be sufficiently specific and must identify the evidence that
might deter the grand jury from finding probable cause to believe an
offense was committed and the accused committed it. Trebus, 189 Ariz. at
625-26 (citing Mauro, 139 Ariz. at 425). Because the defendant’s letter in
Trebus was vague and related to the alleged victim’s “veracity and
credibility,” highlighting inconsistencies in her various allegations, the
court affirmed the trial court’s denial of the defendant’s Rule 12.9 motion.
Id. The court emphasized that the grand jury is only required to determine
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whether probable cause exists to believe the person being investigated
committed a crime; it “is not the place to try a case.” Id. at 625.
¶26 Hansen contends the state violated his “substantive due
process rights” in three respects: it interfered with the grand jury’s broad
investigative powers under § 21-412; it did not honor his request to present
exculpatory evidence; and it presented misleading testimony through the
detective, which it did not correct. Hansen asserts that although the
prosecutor presented some of the information outlined in his letter, “she
withheld critical details in order to make it appear more favorable to the
State than it actually was” and “undermined through improper
editorialization” those portions she did relay to the grand jury. Although
Hansen primarily argues that the grand jury process was flawed because
the state failed to present the results of the polygraph examination, an
argument we have rejected, he also contends the prosecutor injected error
by failing to inform the grand jury of the Trebus letter and by not telling the
grand jury that he had been asked about the allegations and had denied
them. Relying on Maretick, he contends “the prosecutor interposed herself
in the grand jury’s inquiry and prevented the grand jury from acting
independently,” resulting in a “fundamentally flawed presentment.”
¶27 The letter from Hansen through his counsel to the prosecutor
made clear his defense that he did not commit the offense. The letter
referred to specific evidence he claimed was exculpatory and included
nearly two hundred and forty pages of supporting documentation. This
was sufficiently specific and clear to trigger the state’s duty under Trebus
and § 21-412 to inform the grand jury of the letter and convey the “possible
exculpatory” information summarized in it. Trebus, 189 Ariz. at 624; see also
Bashir, 226 Ariz. 351, ¶ 10 (construing Trebus to require that if letter is
sufficiently detailed regarding proposed evidence, prosecutor has duty to
convey information to grand jury). That presentation would have allowed
the grand jury to exercise its independent judgment and request the
evidence if it so desired. Trebus, 189 Ariz. at 625.
¶28 It is undisputed that neither the prosecutor nor the detective
told the grand jury Hansen had provided the prosecutor with a letter. This
was error under Trebus and its progeny. And, although the prosecutor
summarized portions of the information in the letter, we cannot agree that
this constituted a fair and impartial presentation of the evidence given the
manner in which she characterized the potentially exculpatory information
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Opinion of the Court
and what she chose to withhold.6 We must therefore determine whether
that error was harmless. See Maretick, 204 Ariz. 194, ¶ 15; see also Bashir, 226
Ariz. 351, ¶ 18. The error is harmless only if we are “confident beyond a
reasonable doubt that the error had no influence on the jury’s judgment.”
Maretick, 204 Ariz. 194, ¶ 15.
¶29 At least one grand juror considered it important to the
probable cause determination whether Hansen had made any statements
in response to the allegations, offered an explanation, or apologized.7 And
although the grand jury properly was not informed about the polygraph
test results, it was misleading and, in fact, untrue for the detective to have
responded “no” when the grand juror asked him if Hansen had made any
statements. Hansen asserts that “at a minimum, the State was obligated to
6The state concedes in its response to the special-action petition that,
“[g]iven the state of the law at the time of the presentation and the time of
the denial [of the Rule 12.9 motion], coupled with” this court’s recent
decision in Trinh v. Garcia, 251 Ariz. 147 (App. 2021), “it may well have been
error for the trial court to deny the remand motion, and the prosecutor
should have told the grand jury about the letter,” adding that “neither
requirement was absolutely clear in November of 2020 or February of this
year.” In Trinh, which Hansen relies on in his reply to the state’s response,
this court found the grand jury proceeding flawed because the prosecutor
had failed to inform the grand jury about the defendant’s Trebus letter. Id.
¶¶ 5-6, 19, 27. Although the error, which deprived the grand jury of its
independence under § 21-412, was harmless, it was error nevertheless. Id.
¶¶ 1, 27, 32-36. After the briefing was completed in this special action and
following oral argument before this court, our supreme court denied the
defendant’s petition for review in Trinh but ordered the opinion
depublished. Trinh v. Garcia, No. CR-21-0171-PR (Ariz. Aug. 24, 2021)
(order). Consequently, Trinh is neither precedential nor persuasive
authority. See Ariz. R. Sup. Ct. 111(c)(1)(C) (memorandum decisions “are
not precedential” and may not be cited for persuasive value if “a
depublished opinion”).
7The state suggested during oral argument before this court that the
prosecutor may have been concerned about Hansen’s constitutional rights,
presumably referring to his Fifth Amendment right not to make any
statements. But that right, clearly applicable in grand jury proceedings, see
Maretick, 204 Ariz. 194, ¶¶ 14, 16, was not implicated here. Hansen did not
remain silent. He vigorously denied the allegations both in the context of
the polygraph examination and in the Trebus letter.
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Opinion of the Court
tell the grand jury that Hansen had denied abusing Z.A. without
mentioning the polygraph examination itself.” We agree. In a case
anchored entirely on the credibility of the statements of the alleged victim,
and as the grand juror’s question reflects, Hansen’s denial was crucial. The
detective’s testimony and the prosecutor’s failure to correct it compounded
the error under Trebus.
¶30 In this respect, this case is similar to Maretick. There, the
defendant, who had lost control of his car, resulting in an accident that
killed his wife, was charged with manslaughter. 204 Ariz. 194, ¶¶ 1-2. The
defendant was unconscious at the scene of the accident and sustained
serious brain injuries and permanent cognitive deficits, including
short-term memory loss. Id. ¶ 3. He was never able to provide investigators
with a statement about the accident. Id. The state’s only witness before the
grand jury, a detective, testified erroneously that the defendant had made
a full recovery from his injuries. Id. ¶ 4. In addition, the prosecutor
interfered with a grand juror’s questioning of the detective about whether
the defendant had made any statements regarding what had happened. Id.
¶31 Our supreme court found the detective had mislead the grand
jury by stating he was fully recovered when the detective knew that was
not the case and that the defendant was never able to recall the accident. Id.
¶ 13. The court stated that, although this misrepresentation alone was not
enough to require a remand, “the prosecutor assisted in misdirecting the
grand jury” by not correcting the misstatement. Id. ¶ 14. It further observed
that the prosecutor had “intercepted and deflected” questions from a grand
juror, preventing the detective from answering whether the defendant had
spoken to the detective and whether he had made any statements. Id. ¶¶ 4,
16. The court concluded it could not find the errors harmless beyond a
reasonable doubt because, together, they resulted in a presentation of the
case that was less than fair and impartial. Id. ¶ 16.
¶32 We also find Crimmins, which our supreme court relied on in
Maretick, 204 Ariz. 194, ¶¶ 12-14, instructive here. There, the defendant
asserted the state had not given him the opportunity to provide his version
of the facts, rebutting charges of kidnapping and assault, despite his having
requested to do so in a letter. Crimmins, 137 Ariz. at 40-41. The defendant
claimed he had detained and questioned a juvenile he believed had entered
his home and had stolen property. Id. at 41. Our supreme court found that,
based on the defendant’s phone call to the police, it was apparent he
believed he had made a citizen’s arrest. Id. at 42. The investigating
detective testified before the grand jury, however, that he had no evidence
suggesting the juvenile had been involved in the burglary, despite that
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Opinion of the Court
juvenile’s presence with the others implicated on the day of the burglary.
Id. Our supreme court found that the detective’s “inaccurate” testimony,
together with the prosecutor’s failure to instruct the grand jury on the
citizen’s arrest statutes, “rendered the presentation of this case less than fair
and impartial,” denied the defendant due process, and required a new
determination of probable cause. Id. at 42-43.
¶33 Similarly, in Herrell, decided at the same time as Trebus, the
defendant challenged the trial court’s denial of his second Rule 12.9 motion
on a charge of aggravated assault based on his having pursued a vehicle
while brandishing a gun. 189 Ariz. at 628-29. Reversing, our supreme court
concluded the state had failed to give the grand jury an “accurate picture of
the substantive facts” because it only presented the facts from the
perspective of the alleged victims. Id. at 629, 631. It did not, as the
defendant had requested, present evidence showing the offense was
justified because he was attempting to prevent harm to his daughter. Id. at
628-31. Finding the case indistinguishable from Crimmins, the court
concluded the grand jury was not given the relevant and “apparently
uncontradicted facts” that would have warranted a justification instruction
under A.R.S. § 13-411. Id. at 630. The court determined that the state’s
failure to provide the grand jury with an accurate picture of the substantive
facts had denied the defendant his right to due process and a fair and
impartial presentation of the evidence. Id. at 631.
¶34 In this case, as in Maretick, Crimmins, and Herrell, the state’s
presentation of the evidence compounded its erroneous failure to alert the
grand jury to Hansen’s Trebus letter. First, as discussed, it incorrectly
suggested that Hansen had never made statements denying the allegations.
Further, the prosecutor mischaracterized evidence regarding the
documentation of trips Hansen had made to Costco. The detective
summarized some of that evidence, but the record shows he did so in a
manner that suggested the information supported rather than refuted
Z.A.’s allegations.
¶35 Notably, at least one grand juror found the Costco evidence
confusing and asked the prosecutor for guidance. He asked why the grand
jury was “hearing about the trips to Costco and corresponding emails and
texts,” and asked whether they related to the alleged molestation. The
prosecutor provided little guidance, telling the grand juror it was a “great
question,” one that would be “good . . . to bring up during . . .
deliberations.” She then correctly explained that the grand jurors are the
judges of credibility and that, as the body that determines the facts, they
must decide what is relevant and what is not. Ultimately, however, when
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HANSEN v. CHON-LOPEZ
Opinion of the Court
the grand juror persisted and asked whether “the trips to Costco [were] to
establish days of contact between the victim and the defendant,” the
prosecutor responded, “Possibly.”
¶36 Notwithstanding her apparent attempt to resist commenting
on the evidence, the prosecutor’s response in the context of this exchange
suggested to the grand jury that, if relevant, the evidence possibly
corroborated the charge. She never stated or suggested the evidence could
possibly refute it. In the Trebus letter, however, Hansen had asked the
prosecutor to present the “clearly exculpatory” evidence to the grand jury,
explaining that it showed the offense could not have been committed in
2014 as alleged in the initial indictment. Indeed, the state conceded the
offense could not have been committed during that period as Z.A. had
originally alleged—and amended the time frame in the second indictment
to 2015.
¶37 The letter also summarized proffered evidence refuting Z.A.’s
claim that she had gone to Costco with Hansen and T.A. only and that T.A.
was the only other person in the house when Hansen allegedly molested
her. Hansen claimed the evidence showed she had gone to Costco during
this time with Hansen, T.A., and the twins. The absence of any reference to
the Trebus letter, together with the prosecutor’s comment that the evidence
“possibly” established Hansen had access to Z.A. during this time,
deflected the grand jury from viewing the evidence as exculpatory.
¶38 In addition, the prosecutor failed to give the grand jury
important context to the 2014 and 2016 interviews of Z.A. The state did not
make clear the interviews were prompted by the allegations against Greg
by his girlfriend’s daughter. Nor did the detective explain that the
allegations against Greg by another child, who Z.A. knew, were remarkably
similar to the allegations Z.A. later made against Hansen.
¶39 In addition, the prosecutor undermined Hansen’s proffered
evidence. For example, with respect to Z.A.’s interview at the Family
Center in October 2016, wherein she made no allegations against Hansen
and described a high level of comfort with him, the prosecutor elicited
testimony from the detective that, based on his “experience,” which was
never established, it is not uncommon for children not to disclose sexual
abuse. She also elicited from the detective testimony that DCS and Family
Center interviewers are not as well trained for interviewing children about
sexual abuse as forensic interviewers at the CAC. He stated the CAC is “a
safe place for children,” suggesting, without any basis, that interviewers for
DCS and the Family Center are not able to create a similarly “safe place.”
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HANSEN v. CHON-LOPEZ
Opinion of the Court
He testified further that forensic interviewers ask “open-ended questions”
in a “controlled environment,” suggesting, without establishing, that the
2016 interview of Z.A. was not conducted in this manner. The prosecutor
also elicited from the detective, again without any apparent basis, the
generalization that “DCS, OCWI, or Family Center people typically are not
trained in that way” and do not “necessarily employ the same standards
and techniques” as the forensic interviewers.
¶40 Although it would have been proper for the detective to have
relied on the hearsay opinion of an expert on these topics as a basis for his
opinions, that is not what occurred here. See Korzep v. Superior Court, 155
Ariz. 303, 305-06 (App. 1987) (finding it generally proper for police officer
to present pathologist’s opinion through hearsay testimony, but finding
remand to grand jury necessary due to officer’s mischaracterization of
pathologist’s opinions and speculations as lay person of additional
opinions pathologist might hold in responding to grand jurors’ questions).
The detective gave the impression that he is specially qualified or has
expertise in the area of child sexual abuse, without any basis for suggesting
such expertise. Nor is it clear on what basis he suggested to the grand jury
that a forensic interview should be given greater weight than interviews by
DCS specialists or family court counselors. Cf. Escobar v. Superior Court, 155
Ariz. 298, 300-02 (App. 1987) (finding reversible error under Crimmins
based on detective’s ambiguous and “probably incorrect” characterization
of severity of child victim’s injuries and prosecutor’s determination, rather
than grand jury’s, of victim’s competency to testify).8
¶41 As this court recognized in Just, the purpose of § 21-412 is to
“give the grand jury the opportunity to hear the evidence it deems
necessary to make its probable cause determination.” 138 Ariz. at 540. It is
8The record also suggests the prosecutor attempted to undermine the
evidence that demonstrated Z.A. and Hansen had a positive, warm
relationship, even after the offense allegedly occurred. The prosecutor
elicited testimony from the detective that, again based on his “experience,”
it is common for victims of sexual abuse to “still care about and love their
abuser.” Coupled with the comments intended to undermine the 2016
Family Center interview, this appears to have been an overall attempt to
sway the grand jury. See Maretick, 204 Ariz. 194, ¶ 10 (prosecutor must not
unduly or unfairly influence grand jury and must allow it to act
independently); see also State v. Good, 10 Ariz. App. 556, 558 (1969)
(prosecutor must not act so as to invade province of grand jury or influence
its action).
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HANSEN v. CHON-LOPEZ
Opinion of the Court
intended to preserve the independence of the grand jury and does not
permit the prosecutor to summarize the defendant’s evidence from the
prosecutor’s “own point of view.” Id.
Conclusion and Disposition
¶42 It does not appear the state has any evidence independent of
Z.A.’s statements to support the charge. It was therefore crucial that the
prosecutor tell the grand jury about the Trebus letter, that Hansen had
denied committing the offense, and that he had proffered evidence
supporting his version of the facts. See Herrell, 189 Ariz. at 630 (finding,
under “unique facts” of that case, “it should have been apparent to the
deputy county attorney presenting the case” fair and impartial presentation
required informing grand jury of defendant’s “version of the relevant,
substantive facts”). Further, the prosecutor persistently diminished and
mischaracterized evidence that challenged the credibility of the alleged
victim’s accusations.
¶43 We emphasize that the state is not required to make the
defendant’s case at a grand jury proceeding and is not required to introduce
all potentially exculpatory evidence. See Bashir, 226 Ariz. 351, ¶ 15. And
we reiterate that the grand jury proceeding is not a “mini trial.” See United
States v. Dionisio, 410 U.S. 1, 17 (1973). “[I]ssues such as witness credibility
and factual inconsistencies are ordinarily for trial.” Trebus, 189 Ariz. at 625;
see also Bashir, 226 Ariz. 351, ¶¶ 13, 15. But when, as here, credibility is
everything and there is no independent evidence to support a finding of
probable cause, the state’s one-sided presentation of evidence relating to
the accuracy of the victim’s statements, despite known, contrary evidence,
undermines our supreme court’s command that grand jury determinations
must be “informed, objective and just.” Crimmins, 137 Ariz. at 41.
¶44 Cumulatively, the state’s presentation of its case here was not
fair and impartial. Hansen has established the violation of a substantial
right, Maretick, 204 Ariz. 194, ¶ 19; Ariz. R. Crim. P. 12.9(a), and we cannot
say beyond a reasonable doubt that the errors did not influence the grand
jury’s determination of probable cause to believe Hansen committed the
offense of child molestation.
¶45 For the reasons stated, we accept jurisdiction of this special
action and, finding the respondent judge abused his discretion, we reverse
his denial of Hansen’s motion to remand this matter to the grand jury.
19