dissenting:
I dissent. I voted against taking special action jurisdiction in this matter because the record supports the Grand Jury’s indictment, which is valid on its face.
A.R.S. § 21-413 provides:
The grand jury shall return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence taken together, it is convinced that there is probable cause to believe the person under investigation is guilty of such public offense,
In State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980), our Supreme Court stated:
The duty of a grand jury is to decide whether probable cause exists and that probable cause determination may only be challenged by a motion alleging the defendant was denied a substantial procedural right or that an insufficient number of grand jurors concurred in the indictment, 17 A.R.S. Rules of Criminal Procedure, Rule 12.9. ... Absent a showing of prejudice in these grand jury proceedings, there can be no reversal of error. (Citations omitted).
Id. at 409, 610 P.2d at 43.
The only attack raised here is the sufficiency of the evidence presented to the Grand Jury. Our Supreme Court has wisely said that such inquiry is up to the Grand Jury alone.
In State v. Rosenblatt, 112 Ariz. 461, 543 P.2d 773 (1975), the Supreme Court said:
There was no intention in the adoption of Rule 16.7 to change the long established rule that an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Cos*307tello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). A trial court has no power to inquire into or weigh the legal sufficiency of the evidence presented to the grand jury from which an indictment resulted.
Id. at 462, 543 P.2d at 774; State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974). The majority opinion violates this rule.
Further, our Supreme Court has held that the state is not obligated to present exculpatory evidence to a grand jury, absent a request from the grand jury, unless the evidence is clearly exculpatory. Clearly exculpatory evidence is defined as evidence of such weight that it would deter the grand jury from finding the existence of probable cause. State v. Coconino County Superior Court, 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984). Thus, in Coconino, the fact that the state did not produce evidence of Mauro’s mental health history, which was bad, did not defeat the probable cause indictment returned by the grand jury. The court pointed out that while such evidence may be relevant for the trial, it is not required for grand jury consideration. The same is true here. The issue of justification (self-defense) is a defense matter to be established at trial. A.R.S. § 13-401 et seq. See also, State v. Johnson, 108 Ariz. 42, 43, 492 P.2d 703, 704 (1972).
In addition, perjured testimony before a grand jury will not serve as a basis for setting an indictment aside, unless it is established “that the jurors were unable to base their decisions to indict on the evidence.” Franzi v. Superior Court, 139 Ariz. 556, 565, 676 P.2d 1043, 1052 (1984). The testimony of Officer Rodgers would certainly not be characterized as perjury. But, if it were, by analogy, it would not require what the majority is doing by its remand.
Finally, petitioner was not denied a substantial “procedural right” as required by Rule 12.9, Arizona Rules of Criminal Procedure, because none of the procedural rules, Rule 12.1 through 12.8, have been violated.
Thus, the trial judge was, in my opinion, justified in denying a redetermination of probable cause, and he did not abuse his discretion in denying the motion.