Opinion
No. 1 CA-SA 11-0256
11-15-2011
JOHN RICHARD CHESSER, Petitioner, v. THE HONORABLE SHERRY STEPHENS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, THE STATE OF ARIZONA, ex rel, BILL MONTGOMERY, the Maricopa County Attorney, Real Party in Interest.
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
Maricopa County
Superior Court
No. CR2011-005815-001 DT
DECISION ORDER
The Court, Judge Margaret H. Downie presiding and Judges Peter B. Swann and Donn Kessler participating, has considered the above-captioned petition for special action. For the following reasons, it is ordered accepting jurisdiction and denying relief.
In this special action, petitioner John Chesser ("Chesser") claims that he was deprived of due process in the grand jury proceeding that charged him with abuse of a vulnerable adult and second degree murder. He requests that we order the superior court to remand the case to the grand jury for a redetermination of probable cause. He argues specifically that the testimony of Detective Bentzel distorted the examining doctor's findings about the victim's cause of death. We do not think that the detective's testimony distorted the doctor's findings, and therefore deny his request for a remand.
We deny petitioner's request for oral argument.
FACTS AND PROCEDURAL HISTORY
On July 17, 2010, James Eric Chesser was found dead on the floor of his bedroom. James was 51 years old and had Down syndrome. The bedroom was part of a hacienda built on the property of James's brother, John Chesser. The hacienda was a stand-alone building that touched the main house, but that had no door that opened directly onto it. The hacienda, which had a kitchenette and bathroom as well as the bedroom, had been James's home since 2003, when he and his mother had come from Georgia to live with John and his wife, Tara Chesser. The move from Georgia was prompted by the mother's Alzheimer's disease. When the mother died in 2006, James continued to live in the apartment by himself.
When paramedics entered the apartment, the first thing they noticed was the heat. Besides the outdoor heat from an Arizona July, the hacienda's heating unit was operating at the highest temperature possible. James's body had "mummified" in the heat, and the tip of his nose was shriveled from dehydration.
Most of James's care came from Tara. Tara called 911 after discovering James's body around 7 or 8 PM that night. Tara told the police that she had seen James earlier that day, at around 9 AM, when she told him that she and John were going to run errands. She said that she had reminded James to take his daily shower and to eat his cereal, which she explained were parts of his routine, a routine which helped him live independently. Later, after the autopsy, when the police pointed out that remnants of solid food had not been found in James's system, Tara said that she may have been mistaken about visiting him that morning, and may have visited the morning before or the morning before that. Tara also told police that she had been planning on taking James to the doctor the next day, i.e., the day after James had been found dead, because he had stopped eating regularly. No appointment had been made with James's doctor, Dr. Bickel.
When Dr. Bickel learned how much James weighed at his death -- 85 pounds -- he was "shocked." Bickel had first seen James as a patient in 2003, when James went with his brother John (Bickel was John's primary care physician). At that visit, James, who was 5'3'', weighed 161 pounds. At the next doctor's visit, which was in 2008, James weighed 127 pounds. And at his final doctor's visit, in March 2009, he weighed 107 pounds. At that visit, Bickel recommended that James increase his caloric intake and requested that James have his blood drawn sometime in the next six weeks. Bickel's office has no records of calls or visits after March 2009.
On March 17, 2011, Detective Bentzel of the Maricopa County Sheriff's Office testified before the grand jury about the general condition of James's living quarters, the lack of food in the kitchenette, and the state of James's body. Inside the hacienda, Bentzel noticed rat or mouse droppings "along the floorboards of all the rooms." The couch cushions and the bed were soiled "with what appeared to be either sweat or urine." Inside the refrigerator was an unopened "Boost Milk Shake" and two one-gallon containers of milk: one unopened with a use-by date of June 20, and another with a third of the milk remaining but coagulated. Other than crackers and an unopened can of SpaghettiOs, the police found nothing else edible in the apartment.
Bentzel examined the body in the apartment; he noted dehydration in the hands and nose, and observed that parts of the corpse had begun to turn green. Based on those observations, he concluded that the body had been in the hacienda longer than the "12-hour window" possible from Tara's story about seeing James that same morning.
James's body was taken to the Medical Examiner's Office for an autopsy, which Detective Bentzel attended. Dr. Angellee Chen performed the autopsy. Bentzel referred to her findings at three points during the Grand Jury Proceedings.
The first was when the prosecutor asked Bentzel about Dr. Chen's findings. The exchange went as follows:
Q: And what were Dr. Ch[e]n's findings?
A: She ruled the death a natural death, with the cause being complications from Down's syndrome -- I'm sorry. It was malnutrition and dehydration with the -- due to complications from Down's syndrome and the early onset of Alzheimer's disease.
Q: And what was the -- what was the origin of her belief that James was already suffering from some form of Alzheimer's?
A: James had never been diagnosed by either primary care physician or any other doctor as to having Alzheimer's disease. The only time that statement came from their observations of the mother's behavior [sic], who had been diagnosed. They believed some of the same traits were seen in James after her death, but they had never received or sought out any medical diagnosis of that.
Q: So, natural cause of death, complications, Down's syndrome; two parts of that being Alzheimer's, possible Alzheimer's, then dehydration and malnutrition?
A: The cause of death was dehydration and malnutrition. They believed that the reason was the early onset of Alzheimer's or his Down's syndrome.
Q: How much did James weigh at the time of his autopsy?
A: 85 pounds.
The second reference to Dr. Chen's findings followed from a Grand Juror's question about whether Tara had made an appointment for James to see Dr. Bickel. Bentzel said she had not. The prosecutor then asked whether Bentzel had told Bickel about James's condition:
A: Yes, I did.
Q: About how much he weighed?
A: Yes.
Q: What was Dr. Bickel's reaction to that?
A: He was shocked. My question to Dr. Bickel was, had the deputies requested you to basically certify the death of James -- which happens a lot in natural death investigations, we call their primary care physician and explain they were found deceased. The primary care physician, if they had expectation of him dying, for example you had cancer, couldn't be treated any longer, that doctor would then agree to sign the death certificate. In this particular situation, when I asked Dr. Bickel if he would have been willing, he said no. There was no -- there were no medical indications in his medical records or in any of his visits with the doctor, that indicated that he had any kind of terminal illness.
Q: Dr. Ch[e]n found none?
A: There was none found at autopsy, that's correct.
Bentzel's third reference to Dr. Chen's findings came almost immediately after the second. The transcript attributes to one of the Grand Jurors this remark: "On the death certificate itself, the cause of death reads natural causes or dehydration and malnutrition." To which Bentzel replied:
There is two aspects to that. The first being the cause of death and the second being the manner of death. In the manner of death, that is if you die naturally; you suffer a -- you take your own life in suicide; if someone kills you, it's a homicide or it's undetermined. Those are usually the classifications for the manner of death. The cause of the death is if you suffer a heart attack or a stroke or whatever the case may be. In this particular case, they ruled it a natural death. His body naturally shut down. And the reason was from malnutrition, dehydration brought on by the problems with his Down's syndrome and early onset of Alzheimer's. Does that make sense?
Dr. Chen performed the autopsy on July 21, 2010 and signed the Report of Autopsy on August 8, 2010. The first page of the Report presented the following information:
PATHOLOGICAL DIAGNOSES
I. History of Down syndrome
A. Reported history of possible early Alzheimer diseaseII. Contusion of the inferolateral right orbital margin
B. Inanition
1. Emaciation (body mass index 14.8 kg/m2)
2. Evidence of renal failure
a. Elevated postmortem vitreous creatinine and urea nitrogen
III. Small Laceration of the Right Cheek
IV. Abrasions of the knees
V. Early postmortem decomposition
The bottom of the first page of Dr. Chen's report also contained these two entries:
CAUSE OF DEATH: Complications of Down syndrome MANNER OF DEATH: Natural
And the final page of Dr. Chen's report contained this summary:
CONCLUSION: After considering the known circumstances surrounding the death, the available medical history,
and the findings on postmortem examination of the body, it is my opinion that James E. Chesser, a 51-year-old white male, died from complications of Down syndrome. The manner of death is natural.
On August 6, 2010, the Maricopa County Office of the Medical Examiner mailed a letter to Chesser. The letter was signed by Dr. Chen, and the subject line referred to James Eric Chesser. The letter opened:
This letter is to advise you that a cause of death has been determined on the above-mentioned decedent as of August 6, 2010. It is my opinion the cause of death is COMPLICATIONS OF DOWN SYNDROME. Further, it is my opinion that the manner of death is NATURAL.
On James's death certificate, Dr. Chen was named in the section titled "NAME OF PERSON COMPLETING CAUSE OF DEATH." The section reserved for the "IMMEDIATE CAUSE OF DEATH" was filled in with the words "COMPLICATIONS OF DOWN SYNDROME."
On July 21, 2010, Detective Bentzel prepared a Supplemental Report after attending the autopsy. His Report summarized Dr. Chen's observations and opinions. For instance, Bentzel wrote about the open sores found on James's body that "[t]he doctor felt these were a result of bumping into objects." Bentzel concluded his Report by summarizing Dr. Chen's findings about the cause and manner of death:
Upon completion of the autopsy Dr. Chen stated that the Cause of Death: was from Malnutrition and Dehydration resulting from Complications from his Down syndrome and the early onset of Altshymers [sic], and the Manner of Death: was Natural. [Bold in original.]
On March 17, 2011, the Grand Jurors charged John and Tara Chesser with one count of Second Degree Murder and two counts of Vulnerable Adult Abuse. On July 8, 2011, Tara filed a Motion to Challenge Grand Jury Proceedings, and John joined that motion.
The factual basis for that motion was Bentzel's testimony about James's cause of death. According to the motion:
Deputy Bentzel twice stated to the Grand Jury that the cause of death involved "dehydration" and "malnutrition." This information does not appear on the death certificate and is not an accurate representation of Dr. Ch[e]n's findings. The officer stated three times that the terms "malnutrition" and "dehydration" were causes of death. That is not supported by the original autopsy reports and not the cause of death listed on the official death certificate.
The Chessers argued that because Bentzel gave "false testimony" that was "in no way fair and impartial," the court should have remanded the case to the grand jury for a new determination of probable cause.
The state conceded that neither Dr. Chen's Autopsy Report nor the death certificate use the words "malnutrition" or "dehydration." But it pointed out that Dr. Chen's Report uses the term "inanition." The state cited a medical dictionary that traced the term to the Latin inanis -- meaning empty -- and that gave as a definition: "An exhausted condition resulting from lack of food and water or a defect in assimilation; starvation." A website cited by the state gave this definition of inanition: "Exhaustion from lack of nourishment, starvation." So in using the words "malnutrition" and "dehydration," Bentzel had not "unfairly" stated the cause of James's death, the state argued. He had only defined a term -- i.e., inanition -- that might not have been understood by all the jurors.
The court agreed with the state's characterization of Bentzel's testimony. In a ruling filed August 29, 2011, the court found that the Chessers had failed to establish that Bentzel's presentation had denied them due process of law by distorting the Grand Jurors' determination of probable cause. The fact that Bentzel "did not use the precise terms utilized in the autopsy report or on the death certificate did not make his testimony misleading or inaccurate." Bentzel's testimony "fairly and accurately summarized the findings of the medical examiner, using plain language and words the jury would understand."
On September 6, 2011, Chesser petitioned for special action (1 CA-SA 11-0219). On September 28, 2011, we accepted jurisdiction and denied relief, finding that the trial court had not abused its discretion.
However, on September 27, 2011, Chesser had filed a Request to Withdraw and Dismiss Special Action without Prejudice. The reason he sought to withdraw was that he had interviewed Dr. Chen on September 9, 2011. He claimed that "over the course of that interview[,] Dr. Chen provided new facts which both change and possibly invalidate many of the arguments and issues presented in both the Special Action and the State's Response."
On September 29, 2011, Chesser filed a Motion For Reconsideration of Denial of Motion to Challenge Grand Jury Proceedings. The court denied that motion on October 6, 2011.
On October 17, 2011, Chesser filed this second petition for special action. He asks us to review the identical issues he raised on September 6, 2011. In this petition, however, Chesser incorporates references to the September 9 interview with Dr. Chen. That interview, Chesser claims, yielded "a number of details that contradicted or added to the account of Detective Bentzel."
JURISDICTION
"A challenge to the denial of a motion for remand generally must be made by special action before trial, and is not reviewable on direct appeal." Francis v. Sanders, 222 Ariz. 423, 426, ¶ 9, 215 P.3d 397, 400 (App. 2009). Because Chesser has no other means of seeking review of the trial court's decision on the motion to remand, we accept jurisdiction.
DISCUSSION
Petitioner argues that during the Grand Jury proceeding the prosecutor failed to present "potentially exculpatory evidence." The prosecutor, however, is not required to present "potentially" exculpatory evidence in a grand jury proceeding. See Trebus v. Davis In & For County of Pima, 189 Ariz. 621, 625, 944 P.2d 1235, 1239 (1997) (citing State v. Coconino County Superior Court (Mauro) , 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984)). Unless the jury asks for it, the prosecutor is "not [even] obligated to present all exculpatory evidence to the grand jury . . . ." Id. The prosecutor is only obliged to present "clearly exculpatory" evidence. Id. And clearly exculpatory evidence is defined as "evidence of such weight that it might deter the grand jury from finding the existence of probable cause." Id. (citation omitted). We find nothing improper about the prosecutor's presentation.
The first detail from the interview that Chesser mentions -- as candor requires him to do -- supports Bentzel's testimony. During the interview, Chesser's lawyer Jesse Turner ("JT") and Dr. Angellee Chen ("AC") had this exchange:
JT: Uh, Detective Ben[tz]el filled out a supplement, I don't know if you've seen it regarding um his observations in attending the autopsy, at the end of the autopsy he says specifically that you stated to him the cause of death was from malnutrition and dehydration resulting from the complications of Down syndrome and the early onset of Alzheimer's. Is that correct?In his Petition, Chesser concedes that this exchange and the surrounding material in the transcript are Dr. Chen's affirmative response to the question of whether it is "an accurate statement" to say that the cause of James Chesser's death was "Down syndrome due to malnutrition and dehydration."
AC: I don't recall specifically saying that but I would agree with the statement.
The phrase "Down syndrome due to malnutrition and dehydration" appears in quotation marks in Chesser's petition. The quoted phrase is apparently an attempt to summarize a passage from a specific page of the interview transcript. The page Chesser cites, however, does not contain any phrase suggesting that the Down syndrome was "due to malnutrition and dehydration." It does, though, contain the phrase "malnutrition and dehydration resulting from the complications of Down syndrome and the early onset of Alzheimer's." It's this latter phrase that Dr. Chen agrees could express "the cause of death."
--------
In another portion of the interview transcript -- one not cited by Chesser -- the state's attorney ("LE") returns to the question of whether Bentzel's testimony was accurate:
LE: And the officer's use of the words malnutrition and dehydration um is that a misstatement of what you feel contributed to this uh getlem[a]n's death?
AC: Um no it's not. Um, that all goes with the, the inanition. Um, looks definitely malnourished, he's under weight, he's emaciated, and, definitely he, he can't, he's not even taking enough calories to sustain his body weight.
Chesser argues that Dr. Chen's remarks at the September 9 interview contained a subtlety that Bentzel's testimony lacked. He writes that Dr. Chen "did not believe inanition was a contributing factor because it was all part of the same 'disease model'." Chesser says that Dr. Chen found it "very difficult to declare whether inanition or renal failure or something else killed the victim, but that the presence of inanition indicated [to] her that Down syndrome was responsible for the death." According to Chesser's summary of Chen's thinking, "inanition was proof that the deceased had Down syndrome."
The text upon which Chesser relies appears in a section of the transcript in which Chesser's lawyer asks Chen about how she and other doctors note contributing factors on autopsy reports:
JT: You did not list anything on the death certificate in this case?
AC: I did not.
JT: Okay, so does that mean that you do, you did not feel that the inanition was important enough to list?
AC: Well okay so the inanition is part of the Down syndrome. It's, it's not a separate thing that happened. Things like, inanition those aren't [a] diagnosis of disease processes. They're, they're more like signs of disease. I, I mean there's some, I mean I would never put something like, I wouldn't say never but something like renal failure that's not a disease that's, that's like, that's like a sign, like of a disease but not specifically a disease in its self. But there some, there's some judgment. I mean some people would put that. I put, I mean I, I wouldn't put it if it was part the underl[ying] disease process that I've already listed in part one.
LE: And that's what the significan[ce] of having A[,] B, 1, 2 underneath [R]oman numeral one?
AC: Yes.
LE: Cause that's all part of that?
AC: Yes.
Earlier in the interview, Dr. Chen had explained how Alzheimer's disease (which her Autopsy Report specifically linked to Down syndrome in patients James's age) works as a cause of inanition and renal failure:
AC: But when someone has Alzheimer's disease they don't eat normally. They don't take care of em [sic], sometimes they are unable to take care of themselves and they can get renal failure because they get dehydrated, they don't drink enough fluids and then they'll get renal failure. Or the increasing um nitrogen compounds.
JT: So inanition can cause renal failure?
AC: Yes, and I would say that Alzheimer's contributes to that kind of inanition but there's no direct correlation with having Alzheimer's disease and renal failure per [se].
If it is true, as Chesser alleges, that Dr. Chen's understanding of "inanition" is sometimes more granular than Bentzel's presentation, it is nonetheless true that her use of the term is often identical to his. In another portion of the transcript, Dr. Chen expressed an understanding of "inanition" that seems to fit with Detective Bentzel's description of James's body as "emaciated":
JT: Was there any other um, information you collected during your examination of the body that uh would have shown evidence of inanition?
AC: Well just the way he looked. And he was really thin um, he look uninitiated [sic]. You could see his ribs protruding and, just the, history that he had lost a lot of weight recently.
Finally, in this latest petition, Chesser points us to what he calls "[t]he most damning and important fact" that emerged from the interview with Dr. Chen: "that the victim would have died regardless of whether he received medical treatment."
But this statement does not support an inference that James would have died absent Chesser's conduct. Dr. Chen did not say that the living conditions to which James was subjected had no causal connection to his death. She merely opined that at the time he died, he had deteriorated to the point that medical treatment would have been unable to prevent his death.
Chesser insists that by finding that James's death resulted from "natural causes," Dr. Chen's medical findings prevent the state from asserting that "anyone [i.e., Chesser] was responsible for his death." But Dr. Chen made clear that that kind of assertion would depend on "the person's situation."
Nothing that Chesser points to in the record, especially in that portion of the September 9 interview that is new to us in this special action petition, is "clearly exculpatory." Rather, it appears from portions of the transcript (e.g., when Dr. Chen agrees with Bentzel's use of the words "dehydration" and "malnutrition") that Dr. Chen's interview statements corroborate Bentzel's testimony rather than exculpate Chesser's behavior. Those sections of the interview also undercut Chesser's other claim in this special action: that the state did not accurately present the official findings of the Medical Examiner as to the cause of death of James Chesser.
Chesser analogizes this case to Korzep v. Superior Court, 155 Ariz. 303, 746 P.2d 44 (App. 1987), but we find the comparison misplaced. In Korzep, a police officer testified to the grand jury about a wife's claim that she stabbed her husband in self-defense. 155 Ariz. at 304, 746 P.2d at 45. The officer's testimony was the only testimony the grand jury heard, and it was based in part on his conversation with the examining doctor. Id. The doctor admitted that the officer's version of his medical opinions was "not a complete distortion." Id. But the doctor "emphasized . . . that the definiteness with which [the officer] expressed those opinions was not warranted . . . ." Id. The court found that there was "a high probability that had the grand jury been given the opportunity to evaluate [the doctor's] testimony first hand, it would not have indicted, or, if an indictment was returned it would have not been for murder." Id. at 306, 746 P.2d at 47. The court remanded the case for a redetermination of probable cause. Id.
Here, Dr. Chen voiced no concern that Bentzel distorted her words or misrepresented the substance of her findings. To the contrary, as Chesser admits, when asked directly whether she agreed with Bentzel's formulation of the cause of death, Dr. Chen said yes. As the trial judge noted in her first ruling on Chesser's request for a redetermination of probable cause, Bentzel never shied away from Chen's finding that the death was natural: he told the grand jurors that the medical examiner "ruled it a natural death" and that James's "body naturally shut down." In these circumstances, we find no grounds for relief.
CONCLUSION
For the foregoing reasons, we accept jurisdiction and deny relief.
Peter B. Swann, Judge