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


/s/ Stacy Krueger

_______________________________

Stacy L. Krueger


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


/s/ Stacy Krueger

_______________________________

Stacy L. Krueger


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

WILLIAM P. RING COCONINO COUNTY ATTORNEY Daniel Noble, …

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