Michael K.

Jeanes, Clerk of Court

*** Electronically Filed ***
08/08/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CR2007-134343-001 DT 08/05/2008

CLERK OF THE COURT

HONORABLE PAUL J. MCMURDIE S. LaMarsh
Deputy

STATE OF ARIZONA STEPHANIE DANICA LOW

v.

GLEN REED SCOTTI (001) HUMBERTO B ROSALES

VICTIM SERVICES DIV-CA-CCC

RULING

The Court has read and reviewed the Motion to Dismiss or Remand, response, and reply;
and all attachments thereto. Both Defendants have joined in the motion. This is the court's ruling
minute entry.
A grand jury's finding of probable cause may be challenged only on two grounds: “that
an insufficient number of grand jurors concurred in the indictment, or that the defendant was
denied a substantial procedural right.” Maretick v. Jarrett, 204 Ariz. 194, ¶ 11 (2003); State ex
rel. Collins v. Kamin, 151 Ariz. 70, 72 (1986) (citing Ariz.R.Crim.P. 12.9.a); Crimmins v.
Superior Court, In and For Maricopa County, 137 Ariz. 39 (1983). Courts have long held 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." Collins, 151 Ariz. at 72. "The insufficiency
of the evidence is not a valid ground for challenge to the finding of the grand jury." Id.
The two seminal cases addressing inadequate, incomplete, or misleading evidence—
Maretick and Crimmins—both found the misleading evidence alone was not the basis upon
which to remand. Maretick, Id. at ¶ 14; Crimmins, Id. at 42. The Court held that remand was
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appropriate only after determining that other factors, coupled with the misleading testimony
resulted in violation of a substantial procedural right.
The one exception to the rule against reviewing grand jury proceedings for inadequate or
incompetent evidence is if the evidence presented was perjured. See State v. Moody, 208 Ariz.
424, ¶ 31 (2004). It is a violation of due process “when a defendant has had to stand trial on an
indictment which the government knew was based partially on perjured, material testimony.”
State v. Gortarez, 141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984) (citing United States v.
Basurto, 497 F.2d 781 (9th Cir.1974)). See United States v. Mudarris, 695 F.2d 1182 (9th Cir.,
1983) (holding that a defendant must prove “flagrant misconduct” to prevail on a challenge to an
indictment). Perjury in this context is a “false sworn statement a witness makes regarding a
material issue, believing the statement to be false.” State v. Moody, 208 Ariz. 424, ¶ 32.
In Korzep v. Superior Court of State of Ariz. In and For Yuma County, 155 Ariz. 303, 306
(App., 1987), the court of appeals further clarified that when the prosecution uses investigative
police officers to transmit hearsay opinions that are material both to the issue of whether an
indictment is to be returned and if so, the degree of the crime to be indicted, the following rule
applies when the officer misconstrues the opinions. "If there exists a high probability that the
grand jury would not have indicted had they heard the testimony of the expert declarant rather
than a hearsay version, then the matter must be remanded to allow the grand jury to make that
determination." Korzep v. Superior Court; United States v. Estepa, 471 F.2d 1132 (2d Cir.,
1972).
The parties agree regarding that some of the evidence presented to the grand jury was
false. Specifically, the grand jurors were told that Sandra Gray was a psychologist who had been
appointed to conduct a psychosexual evaluation of Defendant Rehkow. That information is
incorrect in many regards. Sandra Gray was not a psychologist and therefore had never been
appointed to make such an evaluation. To compound the error, the grand jurors were told that Dr.
Gray had contacted the victim to advise her that it was Dr. Gray's professional opinion that

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 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CR2007-134343-001 DT 08/05/2008

Defendant Rehkow was psychotic, delusional, on the edge, and very likely to kill her. (R.T. at
22.) The opinion subscribed to Dr. Gray appears to be false as well.
The parties likewise to not dispute that the grand jurors were informed that there was a
specific order prohibiting Defendant Rehkow from hiring a private investigator to monitor the
victim in the family court proceeding. This is not correct; there is no record of such an order. The
grand jurors were understandably perplexed regarding why Defendant Rehkow would violate
such an order in hiring Defendant Scotti. (See R.T. p.30.)
The parities dispute the accuracy of other evidence presented to the grand jury. The court
need not parcel out and resolve those claims. The admitted false information presented is more
than sufficient to call into question how the grand jurors viewed the evidence presented. To the
grand jurors, the State had evidence of a trained psychologist that had examined Defendant and
determined that he was psychotic, delusional and very likely to kill the victim. This was not
correct. It is hard to fathom how such evidence did not color how the grand jurors viewed all of
the other evidence presented to it.
Likewise, the grand jury heard that the Defendants actions directly violated a previous
court order. Again, this information was not correct and severely undermines the fairness of the
proceedings.
The Court must review any claimed error in the grand jury proceeding and
determine if it was harmless. Maretick. The Court is convinced the admitted errors in this case
were not harmless.
IT IS ORDERED denying Defendants' Motion to Dismiss.
IT IS ORDERED granting Defendants' Motion to Remand.

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