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Dominguez v. Foster

Court of Appeals of Arizona, First Division

January 25, 2018

EDGAR ALONSO DOMINGUEZ, Petitioner,
v.
THE HONORABLE GEORGE FOSTER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Real Party in Interest.

         Appeal from the Superior Court in Maricopa County No. CR2017-120144-001 The Honorable George H. Foster, Jr., Judge

          Maricopa County Attorney's Office, Phoenix By Ellen M. Dahl, Mitchell S. Eisenberg Counsel for Real Party in Interest

          Maricopa County Public Defender's Office, Phoenix By Angela L. Walker, Anna M. Unterberger Counsel for Petitioner

          Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

          OPINION

          JOHNSEN, JUDGE.

         JURISDICTION ACCEPTED; RELIEF GRANTED IN PART; REMANDED

         ¶1A grand jury indicted Edgar Alonzo Dominguez on a charge of first-degree murder. Dominguez asked the superior court to remand the charge for redetermination, arguing the prosecutor violated his due-process rights by failing to properly instruct the grand jury on premeditation. The superior court denied the motion. We accept jurisdiction of Dominguez's petition for special action and grant relief insofar as we hold that when a grand jury is considering a first-degree murder charge, the prosecutor may not instruct the jury on "premeditation" by simply reciting the statutory definition of that term. Instead, due process requires the prosecutor to instruct the jury as the supreme court mandated in State v. Thompson, 204 Ariz. 471, 479-80, ¶¶ 32, 34 (2003). We remand so that the superior court may determine whether the prosecutor so advised the grand jury in this case.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2On May 10, 2017, a grand jury indicted Dominguez on charges of first-degree murder and aggravated assault stemming from incidents in which he allegedly stabbed two men, killing one and seriously injuring the other. At the outset of the grand jury proceeding that day, the prosecutor instructed the grand jury as follows:

This is the investigation of Edgar A. Dominguez. This investigation involves alleged first degree murder and aggravated assault, both of which occurred on or about May 1st of 2017 in Maricopa County, Arizona.
To assist you in determining whether or not probable cause exists in this matter, the following statutes may be appropriate: ARS Section 13-105, 13-1105, 13-1101, 13-1203, and 13-1204.
Each of these statutes has been previously read to the grand jury panel with all members present according to Maricopa County attorney records on February 6th of 2017. Copies of these statutes have been provided to all members of the grand jury.
Are there any grand jurors who would like to have any of these statutes re-read or ...

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