Gilland v. Hon. Pineda/State

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) Petitioner, ) ) v. ) ) THE HONORABLE SUSANNA C. PINEDA, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) STATE OF ARIZONA, ) ) Real Party in Interest. ) ) DIVISION ONE FILED: 08/04/2011 RUTH A. WILLINGHAM, CLERK BY: GH MICHAEL GILLILAND, No. 1 CA-SA 11-0173 DEPARTMENT A Maricopa County Superior Court No. CR2011-107426-001 DT DECISION ORDER The court, Judge Lawrence F. Winthrop, Presiding Judge Margaret H. Downie, and Judge Patrick Irvine participating, have considered the special Gilliland ( Petitioner ). action petition of Michael For the reasons stated below, we accept jurisdiction and deny relief. As part of an undercover operation run by the Phoenix Police Department, Petitioner was arrested on February 10, 2011, after officer indicted who by he solicited had the portrayed grand sex from herself jury on an as one undercover a minor. count police He of was child prostitution in violation of Arizona Revised Statutes section 13-3212(B)(2) (Supp. 2010). At the grand jury proceeding, the State did not provide the grand jury with a picture or the actual age (31) of the undercover officer who had been posing as an underage grand prostitute, jury was nor told did that the the officer testify. The officer both undercover expressly and impliedly indicated to Petitioner that she was no older than 17 years of age, both on the website where Petitioner first contacted her and in person. State did inform the grand jury that the website The where Petitioner made first contact with the undercover officer required all posters to be age 18 or older, and admitted that the post itself listed her age as 18. On April 20, 2011, Petitioner filed a motion for remand to the grand jury. After motion for petition a hearing, remand. for special the court Accordingly, action with denied Petitioner s Petitioner this court on filed a July 7, 2011. We have jurisdiction to consider the petition under Article 6, Sections 5 and 9, of the Arizona Constitution and Rule 4 of the Arizona Rules of Special Action. exercise of discretionary, special but we action will jurisdiction generally 2 accept is Our highly jurisdiction when relief is available only through special action, the issue is likely to rise again, and/or we are addressing a purely legal issue of first impression. Haas v. Colosi, 202 Ariz. 56, 57, ¶ 2, 40 P.3d 1249, 1250 (App. 2002) (citation omitted). To obtain relief from a denial of a motion to remand to a grand jury for redetermination of probable cause, a defendant must seek relief before trial by special action. State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995) (citation omitted). Accordingly, we accept jurisdiction in this matter. Petitioner argues that remand is appropriate because the undercover officer s actual age and physical appearance is central to the mens rea element of the charged crime, and is clearly exculpatory information that the State was obligated to present to the grand jury. We agree that, under certain scenarios, knowledge of an undercover officer s actual age or physical appearance could constitute clearly exculpatory evidence on a central element of the crime, thus requiring its presentation to the grand jury. See United States v. Cote, 504 F.3d 682, 686 (7th Cir. 2007) (noting that both the United States Supreme Court and the 9th Circuit Court of Appeals also had recognized that the age of a victim is a crucial element separating legal innocence from 3 wrongful conduct and federal mens statutes rea requirement (citations nothing involving for omitted)). in child the In prostitution age this element case, record to suggest actual officer s the age or physical Petitioner s understanding that he contain of the however, that the crime there is undercover appearance was a negated meeting, and had met, a minor or that the actual age and physical appearance of the undercover officer were clearly exculpatory on their own. See Bashir v. Pineda, 226 Ariz. 351, 355, ¶ 15, 248 P.3d 199, 203 (App. 2011) (finding that [w]hat constitutes a fair and impartial presentation will vary, so the degree of detail of information that the prosecutor must present to the grand (citations actual jury will omitted)). age and also vary Although physical from the appearance case to undercover may be case officer s relevant to Petitioner s defense at trial, the State was not required to anticipate evidence such related to a defense, such a let alone defense. See present Francis the v. Sanders, 222 Ariz. 423, 427, ¶¶ 12, 16, 215 P.3d 397, 401 (App. 2009) (holding that the State has no obligation to anticipate every defense, or to present facts and law pertaining to defenses in every case, but noting that the State is obliged to present clearly exculpatory evidence and answer any legal questions 4 asked by the grand jury concerning defenses). 1 claimed that the physical appearance Since Petitioner has never actually undercover affected officer s his actual understanding or age or belief concerning her age, it remains unclear how the failure of the State to provide these facts to the grand jury prejudiced Petitioner or denied him his right to a fair presentation. Similarly, without further information in the record, we cannot conclude that the age or physical appearance of the undercover officer constitutes clearly exculpatory evidence such that it needed to be presented to the grand jury. Accordingly, IT IS ORDERED accepting jurisdiction of Petitioner s petition for special action. IT IS FURTHER ORDERED denying Petitioner s request for an order remanding this case to the grand jury for a redetermination of probable cause. IT IS FURTHER ORDERED that the clerk of this court provide a copy of this Decision Order to Petitioner s counsel, Larry A. Hammond, Jean-Jacques Cabou, and Kathleen Brody O Meara of the firm Osborn Maledon, P.A., and William Foreman of the firm William Foreman, P.C.; and to the Real Party 1 in Interest s In the about the appearance. counsel, Adam Susser, Deputy County instant case, none of the grand jurors undercover officer s actual age or 5 inquired physical Attorney; and to the Honorable Susanna C. Pineda, a Judge of the Maricopa County Superior Court. /s/ LAWRENCE F. WINTHROP, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.