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Livia Thevenard Cook
4283 N River Grove Cir. #210 – Tucson, AZ – 85719 – thevenard@email.arizona.edu
Writing Sample
Submitted for: Professor Simon
Assignment: Open-research Memo
Course: Legal Writing, Spring 2014
University of Arizona – James E. Rogers College of Law

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Tori A. McGill
TUCSON LAW EAGLES, LLP
100 N. Stone Ave.
Tucson, Arizona 85701
TEL: (520) 555-1234
FAX: (520) 555-2329
EMAIL: tmcgill@laweagles.net
Attorney for Courtney Ellen Daughtry
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
THE STATE OF ARIZONA,
Plaintiff,
vs.
COURTNEY ELLEN DAUGHTRY,
Defendant.
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Case No.: CR-20126655-001
MOTION TO REMAND FOR A
REDETERMINATION OF PROBABLE
CAUSE
Honorable Howard Harbaw
Division 25
Defendant Courtney Daughtry moves this Court for an order under Arizona Rule of Civil
Procedure 12.9 remanding this case to the grand jury for a redetermination of probable cause.
The grand jury proceeding violated Courtney’s due process right to a fair and impartial
presentation of the evidence because (1) the indictment was based on false and misleading
evidence, (2) the State failed to present clearly exculpatory evidence to the grand jury, and (3)
the State deprived the grand jury of the ability to make an informed decision about whether it
wished to hear testimony from Courtney.
RESPECTFULLY SUBMITTED this 31st day of March, 2014.
Law Offices
TUCSON LAW EAGLES, LLP
By__Livia T. Cook______
Tori A. McGill
Attorneys for Courtney Ellen Daughtry

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MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
Approximately nine years ago, Helen Daughtry decided to start a
family tradition with her granddaughter Courtney Daughtry: she would be
passing on her jewelry to Courtney on her 16th, 18th, 21st, and 25th birthdays.
Ex. A, at 4 (Oct. 1, 2013). Because they were both May babies, sharing the
same birthstone, Helen especially wanted to give Courtney her emerald
jewelry. Id. Thus, for each of Courtney’s important birthdays until 2013,
Helen hosted the family celebration for Courtney and, just before the cake,
she would go into her bedroom and bring out a card with the jewelry pieces
gift wrapped. Id. at 9.
However, Courtney’s 25th birthday celebration was different: since
2010, Helen was diagnosed with moderate Alzheimer’s, which lead her son
Sam Daughtry to move in with her and to became her sole caretaker, with
power of attorney over her medical and financial decisions. Id. at 5, 7.
Moreover, Sam was responsible for all her needs, from paying bills to
cleaning the house and cooking meals. Id. at 7. Nonetheless, Courtney asked
her mother, Ms. Gonzalez, to join the party at Helen’s house like old times,
and the four of them were having lunch outside because of the nice weather.
Id. at 6-7.
After lunch, Courtney went into the house looking for her promised

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birthday gift: her grandmother’s tennis bracelet, and emerald ring and
necklace, believing they would be just sitting on the bed. Id. at 4, 8-9. When
she realized her grandmother had forgotten their tradition, Courtney was
heartbroken. Id. at 9. However, she decided not to spoil the celebration by
upsetting her grandmother, who would get agitated and distressed when she
realized she had forgotten something, and took the jewelry, telling only her
mother about it. Id.
A week and a half later, Helen’s daughter, Ms. Meija, called the police
to report the stolen jewelry from her mother’s house. Grand Jury Transcr.
1:32 (Oct. 2, 2013). Although all the items described were the ones listed in
Helen’s birthday card as gifts to Courtney, Helen could not remember what
she had done with them. Ex. A, at 4. Det. Marshall interviewed Sam, Helen,
Ms. Gonzalez and Ms. Meija, taking statements from them. Grand Jury
Transcr. at 2:5-26. Then, the detective went to Courtney’s apartment to
interview her. Courtney turned over the bracelet, ring, and necklace, and she
was charged with one count of theft from a vulnerable adult under A.R.S. §
13-1802(B). Id. at 3:7-10.
Before the grand jury proceedings, Courtney’s attorney sent the
prosecutor a letter requesting the presentation of exculpatory evidence:
Courtney’s 16th birthday card, Helen’s medical records showing
her
Alzheimer’s
diagnosis, Ms. Gonzalez’s interview transcript, and an affidavit from Helen’s

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lawyer. Ex. A, at 2. The letter explained the gifting tradition set forth in the
birthday card, by which Helen would pass her jewelry pieces to Courtney on
important birthdays, and justified Helen’s memory loss as a symptom of
Alzheimer’s. Id. at 4-5. Further, it explained that because Courtney did not serve
as Helen’s primary caregiver as required under the charges, she could not be guilty
of the crime: she was only an occasional visitor, while Sam was Helen’s
primary caregiver, living with her and having power of attorney over her
financial and medical decisions. Id.
However, during the grand jury proceedings, Det. Marshall did not
testify regarding the content of Courtney’s or Ms. Gonzalez’s interviews,
giving the jury no explanation for why Courtney took the jewelry. Grand Jury
Transcr. at 1-4. Moreover, she testified that Courtney was Helen’s primary
caregiver, and the prosecutor, who knew otherwise, did not correct the record.
Id. at 3:37. Although the affirmative defense statute was read to the grand
jury, it was not supported by the relevant facts.
In addition, the prosecutor interfered with a grand juror’s questioning,
incorrectly stating that Helen and Courtney’s relationship was not relevant
for the issue of assumption of duty, and he intimidated the juror into an
apology. Id. at 4:3-8. The following transpired:
“GRAND JUROR TEAGUE: Yes. I would like to know more
about Courtney’s relationship with her grandmother.
MR. MIRREN: Mr. Teague, your job is to consider the elements of

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the crime. Your current question is not relevant to this offense.
GRAND JUROR TEAGUE: I’m interested in this question
because it could allow us to decide whether Courtney had assumed a
duty to provide care for her grandmother.
MR. MIRREN: Alright. You can ask about the elements of the
offense.
GRAND JUROR TEAGUE: Det. Marshall, was Courtney a
primary caregiver for Helen at the time of the theft?
DET. MARSHALL: Yes. She was the only person in the house.
GRAND JUROR TEAGUE: Did Courtney routinely serve as a
caregiver for Helen?
DET. MARSHALL: Yes. She often visited her grandmother.
GRAND JUROR TEAGUE: Did Courtney have any power of---
MR. MIRREN: She has already answered the question about
whether Courtney served as a caregiver for Helen.
GRAND JUROR TEAGUE: Ok. I’m sorry. I guess we covered
that.”
Grand Jury Transcr. at 1:19-38
Also, the prosecutor omitted the birthday card and Ms. Gonzalez’s
testimony, which would have supported Courtney’s allegations that the
jewelry was gifted to her. Finally, despite having received a detailed letter
from her lawyer, he did not provide the jury with an outline and subject
matter of Courtney’s proposed testimony and only asked generically whether
the grand jury wished to her from her. Ex. A, at 1-11.
On October 2, 2014, without reason to believe she was not the primary
caregiver or that she had been gifted the jewelry, the grand jury indicted
Courtney for theft from a vulnerable adult. Grand Jury Transcr. at 4:23.

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I. Courtney’s Due Process Right Was Violated Because She Was
Denied a Fair And Impartial Presentation of Evidence When the
Prosecutor Based the Indictment on False Information, Failed to
Present Clearly Exculpatory Evidence, And Failed to Provide an
Outline of the Defendant’s Proposed Testimony to the Grand Jury.
The grand jury serves as “a primary security to the innocent against
hasty, malicious and oppressive prosecution (...)” Maretick v. Jarrett, 204
Ariz. 194, 197, 62 P.3d 120, 123 (2003) (citing Wood v. Georgia, 370 U.S. 375,
390 (1962)). In order to do its job effectively, the grand jury must receive “a
fair and impartial presentation of the evidence.” Crimmins v. Super. Ct., 137
Ariz. 39, 41, 668 P.2d 882, 884 (1983). Thus, when the prosecutor unduly
influences the grand jury, the defendant is denied a substantial procedural
right, and the case must be remanded for a new finding of probable cause.
Maretick, 204 Ariz. at 196, 62 P.3d at 122.
Interpreting Rule 12.9(a) of the Arizona Rules of Criminal Procedure,
courts have found violations of the defendant’s due process rights in several
instances: (1) when the state based its indictment on false or misleading
information. Nelson v. Roylston, 137 Ariz. 272, 277, 669 P.2d 1350, 1353
(App. 1983); (2) when the state failed to present the grand jury with clearly
exculpatory evidence. Herrell v. Sargeant, 189 Ariz. 627, 629, 944 P.2d 1241,
1243 (1997); or (3) when the state failed to present the grand jury with an
outline of the defendant’s proposed testimony when the defendant asked to
testify. Bashir v. Pineda, 226 Ariz. 351, 354, 248 P.3d 199, 202 (App. 2011).

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Here, Courtney’s indictment shall be remanded to the grand jury for a
redetermination of probable cause because her substantial procedural rights
were violated in all three independently sufficient ways.
A. The case should be remanded because the indictment was based
on false and misleading testimony: that Courtney was Helen’s
primary caregiver.
When the prosecutor does not correct a witness’s misleading testimony
before the grand jury and such misinformation is material, the defendant’s
due process right is violated, and the case must be remanded. Nelson, 137
Ariz. at 277, 669 P.2d at 1354.
For example, the prosecutor in Escobar failed to correct ambiguous
testimony regarding the severity and extent of the burns on the victim when
they were material for determining of the class of felony for the indictment.
Escobar v. Sup. Ct., 155 Ariz. 298, 300, 746 P.2d 39, 41 (1987). Because
probable cause depended on whether there was physical injury or severe
physical injury, the court held that the defendant’s procedural right was
violated and ordered remand. Id.
Further, the prosecutor must not interfere with the grand jury’s
questioning of a witness. For example, the Court ordered a remand in
Maretick because the prosecutor not only failed to correct a witness’s
misstatement, but also interposed himself between the juror and the witness
in such an intimidating manner that the juror felt compelled to apologize.

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There, the defendant could not recall the events leading up to his car accident
due to memory loss from his injuries, but the prosecutor did not correct a
witness’s statement claiming the defendant’s full recovery and barred further
inquiry relating to his health. Because the jury was unable to investigate the
health status of the defendant, leaving the impression that the refusal to
testify was based on fear of self-incrimination, the Court ordered the case to
be remanded. Maretick, 204 Ariz. at 198, 62 P.3d 120 at 124.
Similarly, in Nelson, the court held that the prosecutor violated her
duty of good faith when she interfered with the jury’s questioning on a
relevant matter and ordered the case to be remanded. The defendant was
observed grabbing a woman around the neck and waist, apparently forcing
her to walk with him. He was charged with kidnapping under A.R.S. § 13-
1304, which requires intent to restrain. During the grand jury proceedings,
two jurors asked the state witness whether there was any issue affecting the
defendant’s ability to form the necessary mental state for the indictment. The
witness responded “no” and the prosecutor, who knew otherwise, not only
failed to correct the statement, but interfered with the questioning leading
the jurors to believe their questions were irrelevant. The court remanded the
case for a new determination of probable cause, holding that, by not
correcting the record and interfering with the grand jury’s inquiry, the
prosecutor breached a duty of good faith “with respect to the court, the grand

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jury and the defendant.” Nelson, 137 Ariz. at 276, 669 P.2d at 1354.
Here, Courtney’s due process right was violated because her indictment
was based on false or misleading information regarding her relationship with
her grandmother. First, the prosecutor misled the grand jury by failing to
correct the witness’s statement that Courtney was Helen’s primary caregiver;
then, he unduly interfered with the grand jury’s inquiry on whether Courtney
assumed a duty of care when he interposed himself between the witness and
the juror.
Like in Escobar, these errors were material because they pertained to
elements of the indictment. A.R.S. §§ 13-1802(B), 46-456(J)(5)(a). Because the
statute requires the defendant to commit theft “while acting in a position of
trust and confidence” to the vulnerable adult, defined as an assumption of
duty to provide care, the jury was influenced by the false or misleading
information. Id.
Like in Maretick, the detective assigned to the case was the State’s only
witness and incorrectly answered a grand juror’s question. When asked
whether Courtney was Helen’s primary caregiver, the detective answered,
“Yes. She was the only person in the house,” despite uncontradicted evidence
that her parents were also at the house and that she was only an occasional
visitor. As Ms. Gonzalez’s interview indicates, Courtney was at her
grandmother’s house because of her birthday celebration, but she did not visit

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often and the two were never alone. In fact, her father Sam was Helen’s
primary caregiver and lived there. This testimony is supported by the
affidavit of Helen’s attorney and the neighbor’s interview.
In addition, like in Nelson, the prosecutor interfered with the grand
jury’s inquiry regarding Courtney and Helen’s relationship, intimidating the
juror into apologizing for even asking the question. In exercising its broad
investigative powers, the grand jury could have found that Courtney did not
meet the requirements of theft from a vulnerable adult, but it was barred
from such inquiry. A.R.S. §§ 13-1802(B). Thus, Courtney’s due process right
was violated, and the case should be remanded.
B. The case should be remanded because the prosecutor failed to
present the grand jury with clearly exculpatory evidence indicating
that the jewelry was not stolen but gifted to Courtney.
The due process requirement of a fair and impartial representation of
the evidence imposes on the prosecutor the duty to inform the grand jury of
“clearly exculpatory evidence.” Herrell, 189 Ariz. at 630, 944 P.2d at 1243.
Although the jury may choose not to hear from the defendant, the prosecution
must present clearly exculpatory evidence in order for the jury to “base its
decision upon an accurate set of facts and the applicable law.” Id. Further,
“clearly exculpatory evidence is evidence of such weight that it would deter
the grand jury from finding the existence of probable cause.” State v.
Coconino Co. Super. Ct., 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984).

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For example, in Herrell the Court held that the prosecutor had a duty
to inform the grand jury of “any exculpatory matters” and that without the
defendant’s version of the facts, merely reciting the affirmative defense
statute was meaningless. Herrell, 189 Ariz. at 630, 944 P.2d at 1243. There,
the defendant was charged with aggravated assault after chasing his
neighbor’s car and confronting the passengers with a pistol when he
mistakenly believed they had kidnapped his daughter. During the
presentation to the grand jury, although the prosecutor mentioned the
relevant statute addressing justification in the use of force for crime
prevention, he omitted evidence that the defendant’s daughter was a frequent
runaway who associated with gangs and had been sexually assaulted on at
least two occasions. Because the prosecutor knew of these exculpatory facts
and because the statute providing for the defendant’s affirmative defense was
meaningless without relevant supporting facts, the Court ordered a remand,
holding that the grand jury was unable to base its decision upon an accurate
set of facts and the applicable law, and thus denying the defendant a
substantive procedural right.
Here, the prosecutor denied Courtney’s substantive procedural right by
omitting uncontradicted and clearly exculpatory evidence supporting her
affirmative defense that the jewelry was gifted to her. Specifically, it was the
prosecutor’s duty to convey clearly exculpatory evidence such as the birthday

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card, which described Helen’s gifting tradition to Courtney, and the content
of Ms. Gonzalez’s interview, which explained why Courtney took the jewelry
without saying anything to her grandmother – she did not want to upset
anyone on her birthday.
When the prosecutor breached his duty, the grand jury was unable to
make a decision based on an accurate set of facts and applicable law. Like in
Herrell, the prosecutor instructed the jury on the affirmative defense statute,
but failed to present clearly exculpatory evidence supporting it. Although
such evidence was available before the grand jury proceeding and explained
in a two-page summary by Courtney’s lawyer, the prosecutor omitted it.
Because the law meant nothing without the supporting facts – there was no
reason to suspect that the jewelry was a gift – and the grand jury was unable
to fairly decide probable cause, the case should be remanded.
C. The case should be remanded because the prosecutor failed to
present the grand jury with an outline and subject matter of
Courtney’s proposed testimony.
When there is an unequivocal request to testify, the prosecutor must
inform the jury. In addition, if the defendant provides “some degree of detail”
with respect to evidence for the grand jury, the prosecutor has a duty to
present at least an outline and a subject matter of the information. Bashir,
226 Ariz. at 354, 248 P.3d at 202.
In Bashir, the court held that the prosecutor had the duty to provide

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the grand jury an outline and subject matter of the defendant’s proposed
testimony because she had submitted sufficiently detailed information about
it. There, the defendant was charged with negligent homicide and child abuse
when her special needs son drowned in the family pool. Despite having
received a ten-page letter detailing the degree of care provided to the boy, the
prosecutor merely informed the grand jury that the defendant had offered to
testify. Because the decision to hear from the defendant belonged to the
jurors and was compromised, the court ordered a new determination of
probable cause.
Here, the prosecutor failed to provide an outline or the subject matter
of the Courtney’s proposed testimony when she submitted evidence with
specificity as to create a duty on the prosecutor to convey the information to
the grand jury. Courtney’s counsel sent an eleven-page letter indicating that
Courtney never assumed a duty of care towards her grandmother and had
been gifted the jewelry as part of a tradition that began when she was sixteen
years old.
Like in Bashir, the prosecutor compromised the grand jury’s ability to
decide whether to hear from Courtney by failing to provide an outline of her
proposed testimony. He had a duty to convey to the grand jury Courtney’s
version of the facts, supported by the evidence on the record: first, she took
the jewelry pieces and told only her mother because she knew they were

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meant for her as a birthday gift and did not want to upset anyone by
reminding them of Helen’s Alzheimer’s condition; and second, she only
occasionally visited her grandmother, whose caretaker was almost solely
Sam.
Nevertheless, like in Bashir, the prosecutor merely asked if the grand
jury would like to hear the defendant testify. Thus, the prosecutor failed in
his duty to convey the detailed information available and to allow the jurors
to make an informed decision on whether to hear Courtney. Because the
choice of hearing from the defendant belongs only to the grand jury, the
prosecutor erred in not providing an outline of Courtney’s proposed
testimony. He therefore violated her due process right, so the case must be
remanded for a redetermination of probable cause.
CONCLUSION
This case should be remanded for a redetermination of probable cause
under Arizona Rule of Civil Procedure 12.9(a) because Courtney’s due process
right was violated in three sufficient and independent ways: (1) the grand
jury received false or misleading testimony pertaining to a material fact, that
is, whether Courtney assumed a duty towards her grandmother; (2) the
prosecutor failed to convey clearly exculpatory evidence, which would have
given meaning to the affirmative defense of being gifted the jewelry; and (3)
the prosecutor failed to provide an outline and subject matter of Courtney’s

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proposed testimony so that the jury could decide whether to hear from her.
The finding of any of these violations requires a remand and, given that given
that the prosecutor violated all three, the case should be remanded.