Petition for Writ of Certiorari — Gerald M. Calmese, Petitioner v. Arizona

Supreme Court briefJul 28, 2021

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Gerald M. Calmese, Petitioner

Vs.

State of Arizona,

Respondent. Appendix Index.

Appendix A: Supreme Court of Arizona Order.

Appendix B: Motion for Special Action

Appendix C: Supreme Court of Arizona Order

Appendix. D: Motion for Special Action

Appendix. E: Grand Jury Transcript.

Appendix

(A)

SUPREME COURT OF ARIZONA

GERALD M. CALMESE,

)

Petitioner, )

)

Arizona Supreme Court

No. M-21-0029

Maricopa County

Superior Court

No. CR2010-008080-001

STATE OF ARIZONA,

)

Respondent. )

FILED: 05/19/2021

ORDER

Gerald Calmese has filed a petition for special action claiming

that "there was insufficient evidence presented in the fraudulent

schemes and artifices count." Mr. Calmese raised that issue in his

appeal. See State v. Calmese, 1 CA-CR 12-0328,

2013 WL 1741713 (Ariz.

App. Apr. 23, 2013). The Court of Appeals affirmed

Mr. Calmese's

conviction and he did not seek review in this Court. Therefore,

IT IS ORDERED that the petition for special action is dismissed.

DATED this 19th day of May, 2021.

/s/

JOHN R. LOPEZ IV

Duty Justice

TO:

Gerald Melvin Calmese, ADOC 074142, Arizona State Prison, Tucson

Winchester Unit

Appendix

GERALD M.CALMESE

ADC074142

THE SUPREME COURT OF

ARIZONA

PO BOX 24401

CASE NO: CR2010-00800-001

TUCSON AZ 85734

STATE OF ARIZONA

RESPONDANT

GERALD M. CALMESE

PETITIONER

ARIZONA SUPREME COURT

PG.l

SPECIAL ACTION RULE 4

Now comes the petitioner pursuant to Arizona Rule of Special Action Procedures

Rule #4. Who herby files this complaint and petition, seeking relief and redress

under A.R.S.§ 8-416. § 12-811, to place the above agents and agencies of the

State of Arizona on notice. And complies with the Constitutional mandate of Ariz,

Const. Art IV/ part 2.

Jurisdiction

Jurisdiction is established with this court, THE Supreme Court of Arizona-by

Arizona Constitution and Arizona Law.

The petitioner/plaintiff holds that Arizona Supreme Court is the only court in

which his claim can be bought because it's a matter of Statewide importance.

Moreover, with the creation of The Special Action, it has replaced the extra

ordinary Writs of A.R.S 13-3961. Subsection C. and Arizona Rules of Criminal

Procedures Rule 32. See Davis v. Winkler, 164 Ariz, 342, 793 P.2d99,51 Ariz,

App, Lexis 5(Ariz.Ct.App.l990). And because the Arizona Supreme Court is

Versed with Original Jurisdiction of all Extra Ordinary Writs by Ariz, Const,

Article 6 section 5 (1). This is the only Court the petitioner has a Constitutional

right to be heard by. The petitioner/plaintiff would invite a deprivation of his

Constitutional Rights, should be pursue any action by means of the Superior

Court. With the court rule 32 or 33 post-conviction relief. Any type of

Application or request for relief-however titled- must be treated as a

Petition for post-conviction relief, which would allow dismissal of the application

Under Ariz. Rules of Crim.Proc.,32.3 or 33.3. And this would be an unnecessary

delay. One invited by the petitioner, in violation of Ariz. Const Art 2 section 11.

Because by Rule, the Court could preclude or dismiss the petition for being

In violation of the 90-daytime limit for filing a notice. The petitioner/Plaintiff

Also contends that a special action before the Appellate Court would not

vindicate his constitutional rights to an unnecessary delayed administrative of

justice. With Arizona Appellate Court's jurisdiction being defined by law. See

Ariz. Const Arti 6 section 9. It would view the conviction, sentence and judgement

under. And not according to judicial legislation, as defined by all ruling of the

Supreme Court of Arizona. And therefore, that jurisdiction would be the wrong

means to seek relief. Moreover, accordingto law, A. R.S. 13-4036 The Supreme

Court is ordered to correct a judgement of conviction or sentence. Or may make

Any order which is consistent with justice and the rights of the state and the

defendant.

Statement of The Case

On December 14, 2010, a Maricopa County Grand Jury Indicted petitioner Gerald

Melvin

Calmese, on eight counts of Fraudulent Schemes and Artifice (count 1), and Theft

of a Credit

Card by Fraudulent means (counts III, IV, VI, VII, VIII) and Aggravated Taking

Identity of

another (countV). R.O.A. at 1, State alleged petitioner committed the offenses

(which involved

six victims) on or between February 1,2009 and September 27,2010 for

pecuniary gain and in

an especially cruel and heinous manner. ID. RT 01-26-2010 pg. 18. After an

unsuccessful

settlement conference, petitioner proceeded to trial on January 18,2012. On

January 26, 2012

, the jury returned guilty verdicts on counts I, lll-VIII and hung on count II. ID., pg.

15,16.

Petitioner stipulated to the State's aggravating factor, peculiarly gain and

admitted he had five

prior convictions. ID., pg. 4,19. On May 9,2012, the judge sentenced the

petitioner to serve a

presumptive sentence of twenty years on count I, the maximum of six years on

counts III, IV,

VI, and VIII and the presumptive term of fifteen years imprisonment on countV.

RT 05-09-2012

pg. 26-28. The judge order counts I and V to run concurrently with each other

and with the

consecutive terms imposed in counts III, IV, VII and VIII. ID,, pg. 28.

ARGUMENT

THE EVIDENCE IS LEGALLY INSUFFICIENT TO ESTABLISH

BEYOND

REASONABLE

DOUBT

FoIwmcHHE1lw“(S

THE

REQUIRED

THEMES

Standard ofReview.

This Court reviews the sufficiency of the evidence de novo. State v. West, 226

Anz. 559, 562, f 15 (2011). The evidence is viewed in the light most favorable to

upholding the verdicts and resolve all conflicts in the evidence against the defendant.

SeeStatev. Girdler, 138 Ariz. 482(1983). This Court does not reweigh the evidence

or determine the credibility of witnesses. State v. Williams, 209 Ariz. 228 (App.

2004).

The convictions will be not reversed unless “there is a complete absence of

probative facts to support the convictionfs] ” State v Scott, 113 Ariz. 423 (1976).

“To set aside a jury verdict for insufficient evidence it must clearly appear that upon

no hypothesis whatever is there sufficient evidence to support the conclusion

reached by the jury.” State v. Arredondo, 155 Ariz. 314 (1987). Sufficient evidence

may be either direct or circumstantial, and may support differing reasonable

inferences. State v. Anaya, 165 Ariz. 535 (App. 1990).

Standard of review:

This Court reviews the sufficiency of the evidence de novo. State v. West, 226

Ariz. 559,562, U15 (2011) The evidence is viewed in the light most favorable to

Upholding the verdicts and resolve all conflicts in the evidence against the

defendant See State v. Girdler, 138 Ariz. 482 (1983). This Courtdoes notreweigh

the evidence or determine the credibility of witnesses. State v. Williams, 209Ariz.

228(App.2004).

The convictions will not be reversed unless "there is a complete absence of

probative facts to support the conviction^]. "State v. Scott, 1 IS Ariz. 423 (1976).

"To set aside a jury verdict for insufficient evidence it must clearly appear that

upon no hypothesis whatever is there sufficient evidence to support the

conclusion reached by the jury."State v. Arredondo, 155, Ariz. 314(1987).

Sufficient evidence may be either direct or circumstantial and may support

differing reasonable inferences. State v. Anaya, 165 Ariz 535 (App.1990).

The trial court is required to enter a judgment of acquittal before the verdict

if there is no substantial evidence to warrant a conviction if there is no

substantial

evidence to warrant a conviction. State v. Davolt, 207Aruz.191 (App. 2000).

And if the conviction is based upon a record lacking any relevant evidence

of a crucial element of the offense charged, it is constitutionally invalid. Jackson

v. Virginia, 443 U.S. 307 (1979). And State v. Watson, Ariz (2020),

Discussion:

This Court should find that there was insufficient evidence presented in

the fraudulent and schemes and artifices count pursuant to the Ariona Sup reme

Court's holding in State v. Johnson, 179Ariz.375 (1994), because Calmese made

no false representations or pretense to acquire the money from any of the six

alleged victims.

A.R.S. § 13-2310 provides that a person violates that statute if the person,

"pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by

means of false or fraudulent pretenses, representations, promises, or material

omissions. To establish a violation of § 13-2310, the State must first prove the

existence of a scheme to defraud, for example, "some plan, device, or trick to

perpetrate a fraud".

State v. Hass, 138 Ariz. 413,423 (1983), quoting State v. Stewart, 118 Ariz. 281,283

(App. 1978). It must then prove that the defendant, knowing the purpose of the

scheme, obtained a benefit pursuant to the scheme by means of false or

fraudulent pretenses. State v. Bridgeforth, 156 Ariz. 60,64 (1988). The criminal

conduct punishable under § 13-2310 is the scheme to defraud, not solely an act

committed in furtherance of the scheme. See State v. Suarez, 137Ariz. 368,373

(App. 1983).

Employee theft does not always constitute fraud, even if committed

pursuant to a plan and even if a benefit is obtained." State v. Johnson, 179 Ariz.

At 381. In State v. Johnson, the Arizona Supreme Court reversed a defendant's

Conviction for fraudulent schemes and artifices artifacts obtained upon evidence

obtained upon evidence that the defendant had used a company gas card for

personal gain entrusted to him for company use only. The Court explained

The difference between theft by embezzlement and fraudulent schemes and

Artifices:

Thus, we contrast the fraud statute with the theft statute, A.R.S.§13-1802.

Particularly relevant is §13-1802(A)(2). Which codifies common-law

embezzlement. Theft by embezzlement occurs when a person "converts for an

Unauthorized...use." Id. This, of course, is the essence of employee theft.

The State relies on the classic element of embezzlement -trust arising form

The employment relationship—to argue that whenever employer Trust is

Violated, the misrepresentation element of fraud is satisfied. We disagree.

There is a difference between fraud and theft. Although breaching a trust

Relationship may lead to fraud; it does not do so unless the distinguishing

Element of fraud is present. See Parrv. United States, 364 U.S. 370.393-94,

80S.Ct. 1171,1185,4LEd.2d 1277(1960)(holdingthatcommission of

Embezzlement did not establish mail fraud conviction). Johnson, 179Ariz.

378-79

In establishing the difference between theft by embezzlement and

Fraudulent schemes and artifices, the Court clarified that the betrayal of

Implicit trust is insufficient to elevate a theft by embezzlement charge into

a fraudulent schemes and artifices charge; rather, the State "must prove specific

facts showing that defendant obtained some benefit 'by means of pretense.

"Johnson, 179 Ariz. At 379(quoting Hass,138Ariz.At423).

Here, the petitioner arguably received two different benefits:

The first, the credit card and/or credit card numbers that permitted him to

obtain various purchases without the owner's consent, the second the items

themselves. The question for this courts consideration is whether petitioners

Actions misled his victims in sone way to induce them to give him the cards and/

Orthe items purchased. The State produced no such evidence. In fact, in several

Instances, the victims testified that the petitioner fostered a relationship with

Them through online 'chatting' sometimes for months before actually meeting

in person. RT 03-07-2012 pg.10. Further, that petitioner used various aliases

With his victims had nothing to do with their willingness to give him their credit

cards. In fact, some of the victims loaned him cash based on his representations

that he suffered a temporary financial hardship that had nothing to do with his

false identity. Further, the state offered no evidence that petitioner lacked

conviction in his relationships with the women, or that he was insincere in

His communications with each online. In short his romantic interests had nothing

to do with his later thefts of victim's credit cards. The State failed to prove

A fraudulent scheme and therefore the court erred within its findings of guilt.

II. This Court Should Grant Review Because the Court Incorrectly Decided an

Important Issue of Law

(B). The Superior Court Imposed an Unlawful Double Punishment by Sentencing

Petitioner to a Consecutive Term on the Theft of a Credit Card by Fraudulent

means (counts III, IV, VI, VII, VIII)

(1) The Theft of a Credit Card by Fraudulent means offenses Constituted a Single

Act for sentencing Purposes.

(2) Imposing a Term of Consecutive Constitutes a Sentence Under A.R.S. § 13-116.

The petitioner was sentenced to the maximum of six years on counts III, IV,

VI, VIII theft of a credit card by fraudulent means. The judge ordered counts I and

V to run concurrently with each other and with the consecutive terms imposed in

counts III, IV, VII and VIII. ID., pg. 28. The double jeopardy clause of the United

States and Arizona constitutions protects criminal defendants from multiple

prosecutions and punishments for the same offense. U.S Const, amend. VAriz.

Const, art. 2,§ 10 see State v. Eagle, 196 Ariz. 188,190,5,994P.2d 395,397

(2000) (federal and Arizona double jeopardy clauses generally provide the same

protection). Because greater and lesser-included offenses are considered the

"same offense," he double jeopardy clauses forbid the imposition of a separate

punishment for a lesser crime when a defendant has been convicted and

sentenced for the greater offense, see Illinois v. Vitale, 447 U.S. 410,421,100

S.Ct 2260 65 L.Ed 2d (1980) State v. Garcia, 235 Ariz 627, 629, 5, 334, P.3d 1286,

1288 (App 2014) State v. Chabolla-Hinojosa, 192 Ariz 360,362-63,10-13,965 P.2d

94,96-97 (App 1998).

Statutorily, as in the case at hand, the prohibition of multiple punishments

for the same act is codified in A.R.S § 13-116, which provides:" An act or

admission which is made punishable in different ways by different sections of the

laws may be punished under both, but in no event may sentences be other than

concurrent." Arizona uses the identical elements test to determine whether a "

constellation of facts" constitute a single act which require concurrent sentences.

Under the facts of this case, the fraudulent schemes and artifices offense

was the ultimate charge concerning each victim the underlying theft of a credit

card charges stem directly from the petitioner's scheme to obtain the pecuniary

gain from the victims’ by creating the false pretense. The State, in the exercise of

its broad charging discretion, chose to charge the petitioner with a single count

of fraudulent schemes that encompassed every theft of a credit card he

committed. State v. Peltz, 242 Ariz. 23, 27 8, P.3d 1215,1219 (2017) State v. Via,

146 Ariz, 108,116,704,P.2d 238,246 (1985). ("[WJhere numerous transactions

are merely

part of a larger scheme, a single count encompassing the entire scheme is

proper"). The court must now subtract the evidence necessary to satisfy the

elements of the ultimate charge and determine whether the remaining evidence

can meet the statutory elements of theft of a credit card, which proof that (1)

Petitioner knowingly (2) controlled property of another (3) with the intent to

deprive the other person of such property, A.R.S. § 13-1802 (A) (1). Considering

the elements of each offense and the facts surrounding both the theft of a credit

card and fraudulent schemes and artifices crimes, there is insufficient evidence to

convict the petitioner of theft of a credit card once the evidence necessary to

convict him of fraudulent schemes and artifices charge is subtracted. Under the

facts of this case, the petitioner obtained control of the Victims' credit cards at

the same moment he received a pecuniary gain through his false pretense and

misrepresentation. Thus, because the state would be unable to prove theft of a

credit card without the evidence required for fraudulent schemes and artifices,

the first prong of Gordon test. See State v. Watson 459, Ariz P.3d 120 (2020). In

this case, the second and third prongs of the Gordon test did not satisfy. Watson

could not have obtained the funds from the victims accounts using fraudulent

schemes and artifices without simultaneously committing theft. Gordon, 161,

ariz,. at 315,778, P.2d at 1211. as for the third prong, the harm to the victims

caused by the thefts-that they were deprived of thier property-is the same

harm they suffered as a result of the fraudulent schemes and artifices.

Based on how the State charged the offense in this case, the petitioner

committed a single crime resulting in the commission of a series of crimes. The

consecutive term for the theft of a Credit Card charge was, therefore

, unlawful

double punishment. Under Watson, the review of the sentencing proceedings

left

them unable " to determine... that the trial court would h

ave imposed the same

sentence if it had been aware that consecutive sentenc

es were not available,"

with that said the appeals court vacated all of Watson's felony sentence and

remanded for resentencing. State v. Viramontes, 163 Ari

nz, 334,340 778, P.2d67

,73(1990).

III. The Use of Prior Convictions

The Arizona Supreme Court of Arizona held "

a rebuttable presumption" of

regularity attaches to prior convictions used to enhance senten

ce or as an

element of a crime. 200 Ariz, 27, l,

21 P.3d at 846. in holding, the court explained

the new procedures be followed When the State seeks to use a prior conviction

as a sentence enhancer or as an element of a crime, the State

the existence of the prior conviction.

must first prove

At that time, presumption of regularity

attaches to the final judgement. If the defendant p

resents some credible

Qvidence to overcome the

presumption, the State must full fill its duty to

establish that the prior was constitutional obtained.

See State v. McCann, 200

Ariz27,21, P.3d84 (2001)

The petitioner was denied the substantive Due Process right created by Gideon to

challenge the sentencing guidelines in which the

court used to impose the maximum sentence.

The process of A.R.S. § 13-703 (p) unconstitutional.

A.R.S.§ 13-703((p) mandates that the court informs the parties of its intentions to

sentence the defendant to an

aggravated or mitigated sentence under H,l,or J of the sentence

guidelines. However, the wording goes to negate its previously expressed wording by claimi

If the court fails to inform the parties, a party waives its right to be informed

unless the party

timely objects at the time of sentencing.

When a legislated law creates a right, accompanied by procedural provisions for

implementing it, such as the right to be informed of the

court's intentions upon aggravating,

mitigating or qualifying the accused for an elevated sentencing guideline.

The Statutory

procedure must be regarded as Rules of The Supreme Cort of Ari

zona, until promulgated by

the court. And when so promulgated, The Supreme Court Rule takes precedence over the

previously prescribed statutory procedures.

When we look into the origins of the Ariz. Rev.Statute 13-703, The Supreme Court of the

United States has a long since held the statute unconstitutional

. In as far as it permits the court

to find aggravating factors that permit imposing a sentence above the

maximum provided by

law. which in this case would be the presumptive

sentence of the substantive crime. In looking

to sentence the petitioner to any time beyond the presumpti

ve sentence of category H, Gideon

rights apply. And the court is required to provide the petitioner the

procedural safeguards of

Gideon v. Walnwrlght, 372, U.S, 335, 83 S.ct. 792, 9 l.Ed. 2d 799(1963).

The procedural safeguards of Gideon are held to be constitutional rights. In State v.

smith, 203 Ariz, 75,50 p.3d 825,379 ariz. Adv. Rep 19T 38-39 (2002)

. This court held that

section 13-703 provides on Objective standards to guide the sentencing judge in weighing the

aggravated and mitigating circumstances and therefore violates the Eighth and Fourteenth

Amendments of The United States Constitution and Article II, sectionl5 of the Arizona

Constitution. What's more, the fact that an allegation of a prior conviction enhances a

defendant s punishment, means it considered to be

an aggravated offense because it is

repetitive offense. State v. Pendergroft, 124 Ariz, 449, 604, P.2d 1160,1979 Ariz. LEXIS 641

(Ariz. Ct. App. 1979). The aggravated nature of the prior conviction is an integral part of the

enhancing statute, and the failure to have the State p rove

that the enhancement may not be

waived by failure to object. State v. Brydges, 134 Ariz, 59, 653, P.2d 707,

1982 Ariz. App LEXIS

552( Ariz.Ct. App 1982)).

With review of the allegations set forth in the record. The trial court failed to inform the

defendant of its intentions to sentence the defendant under H, I or J of the sentencing statute.

In doing so, the defendant was denied the right to timely object to sentencing guideline

enhancement This violates the requirements of Gideon v. Wainwright. Which demands that a

defendant be given a right to challenge the Constitutionality of the alleged prior

conviction.

Neither does it allege that the priors used for enhancement, qualify in accordance with Burgett

V. Texas or United States v. Tucker, 404 U.S. 443, 92 S.ct 589,

30 L.Ed. 2d 592 (1972) Or even

Strickland v. Washington, 446 U.S. 668,104, S.ct 2052,80 LEd, 2d 674 (1984)

. Because those

requirements were not said to be met, The court abused its discretion to find that they

are

met. Especially When evidence of constitutional firmness of those priors has not been

presented before it.

The court cannot use an unconstitutional

court rule to circumvent this judicially legislated

procedure under Ariz, Rules of Crim. Proc, 17.2. The court was required to advise the petitioner

of his rights upon the finding of guilt, and how he would be open to a stiffer and harsher

punishment by admission to those prior convictions. Because the colloquy did not comply with

this rule; the stipulation of the prior offense was defective. State v. Osborn, 220 Ariz, 174,550

Ariz. adv. Rep, 3, 204 P.3d 432, 2009 Ariz, App. LEXIS 22(Ct. App 2009.

The trail court’s failure to engage in a colloquy with the petitioner was fundamental error,

for which relief is appropriate, and because this prejudiced the petitioner because he knew

nothing of the prior alleged. Nor could he create a defense to the allegation set forth

. This

caused the petitioner to be sentenced to a maximum instead of the presumptive. Which in all

the substantive crime, Fraudulent schemes and Theft of a credit card carries without being

aggravated. See State v. Carter, 216 Ariz, 286,511, Ariz, Adv. Rep. 3,165 P.3d 687,2007 Ariz

, App lexis I63(ct. App, 2009). The petitioner's sentence is illegal.

Conclusion

The u.s. Constitution Article 4 holds that full faith and credit shall be ei

given

in each state to the public acts, records, and judicial proceedings

of every other

state. And Congress may by general laws prescribe the Manner in which such Acts

Records, and Proceedings shall be proved and the effects thereof.

When looking into this Constitutional mandate. It is clear that any judicial

proceedings commenced out-side of those prescribed by The State can't be given

full faith. Nor can a mistake of law, or error of fundamental magnitude be waived

or the doctrine of laches be attached to glean over the error. This is because a

court lacks discretion to make a legal error, Long v. Carvo, 131 Ariz, 216,217,

639P.2d 1041,1042(App 1981)

There is an amalgam of issues that require relief in a multiple suggestion of

forms by procedure. Relief from resentencing to possible vacating of sentence.

But because this courtis required to correct the illegality of the defendant's

sentence by A.R.S § 13-4037. Well petitioner submits this petition before this

court without any claims as to what relief is suitable, however, the petitioner

invokes his right to be present at any hearing held by this court...

For the reasons stated, Calmese asks that based upon the record before that

Calmese's fraudulent schemes and artifices conviction should be reversed and a

judgment of acquittal entered.

RESPECTFULLY SUBMITTED this ^ day of

By GERALD M. CALMESE

2021

Certificate of Service

Special

bu.ldmg. 1S01 West Washington Phoenix, Arit

2021.

' By__

OS' lu^M. Calmese

ona State Court

ona 85007 on this day/£ of ^ Jb

Appendix

(C)

■~v

SUPREME COURT OF ARIZONA

GERALD M. CALMESE,

)

Petitioner, )

)

Arizona Supreme Court

No. M-21-0041

Maricopa County Superior Court

No. CR2010-008080-001

STATE OF ARIZONA,

)

Respondent. )

FILED: 06/28/2021

ORDER

Gerald Calmese has filed a petition for special action

claiming

that the "indictment is insufficient as

a matter of law" and has

defects of "duplicity and multiplicity."

Mr. Calmese raised these

issues in a Rule 32 petition for

post-conviction relief, which the

superior court dismissed on May 13,

2016, and a special action to the

Court of Appeals, case number 1 CA-SA 17-0149.

The Court of Appeals

declined jurisdiction and this Court denied

review, case number CR17-0257-PR. Therefore,

IT IS ORDERED that the petition for special action

is dismissed.

DATED this 28th day of June, 2021.

/s/

JAMES P. BEENE

Duty Justice

TO:

Gerald Melvin Calmese, ADOC 074142,

Arizona State Prison, Tucson

Winchester Unit

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fflSS802) 506-7259

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\V 4

Attorney for p,aj ntiff

w the SUP ER'°n court OF THE

STATE of

COUNTY OF

ARIZONA,

Plaintiff,

state of

Maricopa

ARIZONA

/ N°' CR291*.®Wggg

Gerald Melvin Calm

'':’m,CTMENT

ese

for

Defendant.

■i

Assigned to th

e Maste

r calendar

The State

°f Arizona, pUrs

Uant to Rule 13 Si

to ame nd the Indict,

Anzona Ru/es

ment to the following;

of Criminal p

r°cedure, moves

(0 Count

1 should state*.

belaud00! and the27^day ofoVlN CaLMESE

DESTefino jTyy obtained

apt^mber, 20 7 o’ p^!-0r betWeen fhe i« w

“S£ «s s&ifess

’ 73'707’ 13-7Q2, 73-

m!iSBm>miPF

The indictment is a

?QintsaN

barging docu

a9einst him.

ment that

An indictment is

not evidence.

Rule 73.5,

Arizona Ruje

of Criminal pro

oedure;

The Preliminary h

Qj^miTlES

Sfanaaw Crtn)(

ndant of th

Also,

sSa?”^”as?».»»„

Pursuant to

=-*5sS£^Ss^^

0 th® evidence

£-5ffPRS=»:

e charges

Arizona courts are generally quite ,iberal

a/lowlng amendmen(s

provided that the amendment

does not lead to a Charge of a different crime. State u William,

108 Ariz. 382, 387,499 P.2d

97. 102 (1972) (citing Slate v. Suara? 106 Ariz, 62.

470 P.2d 675 (1970)). "A technical or

formal defect in a charging document may be remedied

State v. Brim* 125 Ariz. 421,

whenever such defect is presented."

423, 610 p.2d 55, 57 (1980). In determining th

amending an indictment to conform to the e

e propriety of

vidence, the court must consider whether allowing

the amendment would violate two iimportant rights of Defendant:

ample opportunity to prepare to defend

them; and (2) acquittal of the

(1) Defendant must have been

put on notice of the charges against him with

subsequent prosecution on

against

amended charge must provide

a double jeopardy defense to a

thS 0n9lnal Char9e- ^tatg y. Barber, 133 Ariz. 572

. 577, 653 P.2d

29. 34 (App. 1982). Both prongs are satisfied here as

these requested amendment is

a very

minor change to the Indict

ment that the Indictment, police reports,

and accompanying evidence

clearly explain. Further,, amending the indictment will i

noculate defendant from being indict

ed for

fraudulent schemes and artifices

against the listed victims in the future, as

he will have a double

jeopardy defense to raise.

It appears that the indictment in this

case simply contains a t

typographical error. Count 1

currently states that victims of the fraud

scheme are Victor Rzepecki “

-and others". The “and

others" was handwritten into the

indictment before the grand jury

returned a true bill. The

indictment should have

contained the names of the “

others", which are listed in the other counts of

the indictment as victims of theft of c

redit card. Undersigned counsel charged th

e case, and has

reviewed his charging submittal form,

It contains the names listed in the

proposed amendment

above; the legal assistant who

actually typed up the indictment si

mply made mistake and forgot

to include everyone.'Defendant has b

een on notice that his fraud

was against these victims from

the grand jury transcript and the

police report, which makes it

exceptionally clear that he is

with conducting a fraudulent sche

charged

me against each of these victims.

Significantly, every victim of the fraudul

ent scheme is also a listed victim in th

charged counts of the indict

ment. Defendant ni

actions involving these victims.

e other

early-has notice that he bas'to defe

The evidence of the fraudulent

nd against his

scheme is the same as the

» '

evidence of the theft of credit card counts.

That evidence includes videos and receipts of

fraudulent transactions that defendant made with the victims'

£S

SfS

credit cards. Therefore, defendant

would suffer no prejudice from this technical

amendment as he has been preparing to defendant

against the charges that he used these victims

credit cards without their consent fo

r several

months.

Amending the indict ment would also present defendant with

future indictments from fraudulent schem

•i

an absolute defense to

©s and edifices a gainst these victims, as required by

Barbee. If the amendment is not granted, the State

could easily indict defendant for that crime

against each of the victims. Allowing the

amendment is actually to his benefit

as it precludes

the State from indicting him for that

crime again after being tried in the

case at bar.

Defendant has more than adequate notice of what his

charges are and the elements that

the State must prove from the police report and the grand jury transcript.

The indictment, as it

stands now, does not correctly reflect the proper na

mes of the victims, but that is simply a

typographical error, A defect may be considered formal

or technical when

an amendment of the

indictment does

not change the nature of the offense or

prejudice the defendant in

anyway. Id.

(where an amendment to the indict

ment that corrected th e name of the

corporation involved in

the se curities transaction did not change the

nature of the offense involved,

there was no

prejudice to the defendant in granting the motion)

• Here, the proposed amendment d

oes not

change the nature of the offens

e or prejudice the defendant

and accordingly, is a technical

and/or formal amendment.

Defendant certainly

cannot point to any prejudice suffered.

For these reasons, the State

respectfully requests that this C

the Indictment.

curt grant its Motion to Amend

.4:

Submitted October 18, 2011

WILLIAM G. MONTGOMERY

MARICOPA COUNTY ATTORNEY

■}

BY/s/

/s/Thomas Marquoit,

Deputy County Attorney

Copy of Motion mailed/hand-deli

vered

th day of October, 2011

To:

Master Calendar

Motions Judge

Stephen Mercer, Attorney at Law

Defense counsel

P.O. Box 20672

Mesa, AZ 85277-0672

BY/s/

/s/Thomas Marquoit

Deputy County Attorney

WILLIAM G. MONTGOMERY

MARICOPA COUNTY ATTORNEY

Thomas Marquoit

Deputy County Attorney

Bar ID#: 024876

301 West Jefferson, 7th Floor

Phoenix, AZ 85003

Telephone: (602)506-7259

MJC2-FITE@mcao.maricopa.gov

MCAO Firm # 000320000

Attorney for Plaintiff

DR 0914639-Scottsdale Police Department

DR 200991368966-Phoenix Police Department

DR 200991431279-Phoenix Police Department

DR 201001273255-Phoenix Police Department

DR 201001660305-Phoenix Police Department

DR 20103230427-Mesa Police Department

CA2010039865

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

THE STATE OF ARIZONA

)

Plaintiff,

vs.

CALMESEMELV,N CALMESE aka JERRYISAHA

Defendant.

)

CR 2010 -008 08 0 - 0 0 1 DT

518 GJ 182

indictment

)

JAN l i 2ov

•"s

)

COUNT 3^fHEF. JF CREDIT CARD OR

OBTAINING A CREDIT CARD BY FRAUDULENT

MEANS, A CLASS 5 FELONY

)

COUNT 4YTHEFT OF CREDIT CARD OR

OBTAINING A CREDIT CARD BY FRAUDULENT

MEANS, A CLASS 5 FELONY

COUNT 5: AGGRAVATED TAKING IDENTITY OF

ANOTHER, A CLASS 3 FELONY

COUNT eCTHEFT OF CREDIT CARD OR

OBTAINING A CREDIT CARD BY FRAUDULENT

MEANS, A CLASS 5 FELONY

COUNT 7iJFfEFT OF CREDIT CARD OR

OBTAINING A CREDIT CARD BY FRAUDULENT

MEANS, AmHASS 5FELONY

)

COUNT 8: 'mEFT OF CREDIT CARD OR

OBTAINING A CREDIT CARD BY FRAUDULENT

MEANS, A CLASS 5 FELONY

The Grand Jurors cjf Maricopa County, Arizona, accuse GERALD MELVIN CALMESE aka JERRY

ISAHA CALMESE, on this 1 jth day of December, 2010, charging that in Maricopa County

, Arizona:

COUNT 1:

GERALD MELVIN CALMESE , on or between the 1st day of February, 2009 and the 27th day of

September, Wfjygp 'gg™" artifice to defraud, knowingly obtained a benefit ft

VICTOR RZEPECKI,^ y mea

ns of fraudulent pretenses, representation, promises, or material omissions

in violation of A.R.S. §§ 13-2310, 13-701, 13-702, and 13-801.

COUNT 2:

GERALD MELVIN CALMESE, on or between the 1st day of February, 2009

and the 29th day of

April, 2010, without the consent of LYNN F

DESTEFINO, knowingly controlled the credit

R DESTEFINO, in violation of A.R.S. §§ 13-2102,13-2101,

card of LYNN

13-1802, 13-1804,13-701, 13-702, and

13-801.

COUNT 3:

GERALD MELVIN CALMESE, on or tjetween the 26th day of August, 2009 and the 27th day of

Auguit, 2009, without.the consent of-JOE tORODOVArknowingly

controlled the credit card of JOE

CORDOVA, in violation of A.R.S. §§ 13-2102,13-2101,

13-1802,13-1804,13-701,13-702, and 13-801.

COUNT 8:

GERALD MELVIN CALMESE, on or about the 16th day of November, 2010, without the consent

of ROBIN FLETCHER, knowingly controlled the credit card of ROBIN FLETCHER

, in violation of A.R.S. §§

13-2102, 13-2101, 13-1802,13-1804,13-701,13-702,and 13-801.

Pi / Bftf

("A True Bill")

WILLIAM G,

MARirQpfil ©UNIXATTORNEY

Date: December 14,2010

tti

VfHOM

DEPI

:OUNTY ATTORNEY

FOREPERSON OF THE GRAND JURY

TM:sc/OK

(E)

No.

IN THE

SUPREME COURT OF THE UNITED STATES

v-*\» -a \/m

r- PETITIONER

(Your Name)

VS.

A.7 t\S\ \A

- RESPONDENT(S)

PROOF OF SERVICE

I. Ot3 d a

vPs 0y\^ri Vf/

»do swear or declare that on this date,

, ,

» 20<=^> as required by Supreme Court Rule 29 I have

served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERS

and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding

or that party s counsel, and on every other person required to be served, by depositing

an envelope containing the above documents in the United States mail properly addressed

to each of them and with first-class postage prepaid, or by delivery to a third-party

commercial earner for delivery within 3 calendar days.

P 7

■CLl

The names and addresses of those served are as follows:

V_---r\Ju

,______________ _

\~P r^/^AA

.y\q>/ Cn\r\([ O i/\t

I declare under penalty of perjury that the foregoing is true and

Executed on

\i >/

JQX

correct.

, 20^2. V

(Signature)

so*'

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

PROCEEDINGS BEFORE THE 518TH GRAND JURY

In re the Investigation of:

518 GJ 182

CRP2E0RMoU8RJ-^ER:

GERALD CALMESE.

REPORTER'S TRANSCRIPT OF GRAND JURY PROCEEDINGS

December 14th, 2010

Phoemx, Arizona

OCX

-:o

irn

5 7Q mar.

S’

•c-

PREPARED BY:

PREPARED FOR:

M. LISA EDGAR, R.P.R., C.P.,

CERTIFIED COURT REPORTER

ARIZONA C.S.R. NUMBER 50273

IWIC0PA COUNTY SUPERIOR

.ORIGINAL

M. Lisa Edgar, R.P.R., C.P.

Arizona Certified Reporter - Number 50273

COURT

APpEARAN

C E S

DEPl/ry COUNTY ATTORNEY;

Jon Wendell

518TH GRAND JURY:

Yolanda Fritsch

Elena Lily Gresham

~ absent

Grand Jury Foreperson

Mary Landa

Grand JU0, clerk Richard Toleu

Jameika Manradge - absent

Grand

Rosemarie Arndt

William Jen Creplaced M. cousins)

rene

Johnston

Jessica Robles ^placed K. schuken) - absent

William Sayers,

absent

J«mor (replaced s. Flores) -

Katrina Ross

Catherine Bernales

«aren Rocha (replaced s.

Madrid)

Stephen Locklin,

Senior (replaced «„

Haman)

Todd Daniels (replaced

T- Allen)

M. Lisa Edgar, r.

P-R-/ C.p.

Arizona Certified court

Reporter Number 5027s

~ absent

MR. WENDELL: This is 518 Grand

Jury Number 182.

This is the i

investigation of Gerald,

Calmese Cal m-e-s-e, also known G-e-r-a-l-d, Melvin

i-s-a-h-a, Calmese C-a-l-m-e-s-e, as Jerry, J-e-r-r-y, Isaha>

for the alleged offenses of

fraudulent schemes and artifices —

grand juror FRITSCH:

Say again.

li.MR. WENDELL:

- fraudulent schemes and artifices

is alleged to have

occurred on or

between February 1st and

September 27th ~ I m sorry — on or

between February 1st, 2009

and September 27th of the

year 2010,

11 | Victor — sep

involving alleged victim

see’ thls one would even blow you

away i'm sure —

R-z-e-p-h-e-c-k-i - - Rzephecki - Rzephecki - ~ yeah, whatever.

I That's not a

good German name; is it?

have occurred on or^en'pebma^TtT^

°f *0. the alleged victim betg 1

D-e-s-t-e-f-i-n-o, and theft

Corodova, c-o-r-o-d-o-v a a n u

29th

*■ Destefino,

^ ^

19 rr °"or betwen *•« ^ of

6th of 2009 and 27th of 2009

3116966 t0

aiird to ^

rather, August

^ ^Ctl'm bei"9 »»

on or about

°f

„ ,

credit card, alleged to

September 6th of the

9 ™

alleged victim being toica>

year 2009, the

M-o-n-i-c-a, Stnplin,

S't-r-i-p-l-i-nj

aggravated talcing an

identity of another

alleged to have

occurred on or between

August 17th and

September 27th of the

year 2010, theft of

a_credit_card-al-leged

M. Lisa Edgar, R.p.r.,

c.p.

Arizona Certified

c°urt Reporter Number 50273

to have occurred on or between August 17th

the year 2010, again involving alleged vi and August 22nd of

victim, victor

Rzephecfd.

1 don't have to spell i"it again, do i?

COURT REPORTER:

MR. WENDELL:

No.

okay.

Theft of a credit card

alleged to have occurred on or

about August 20th of the year

2010 involving alleged victim,

Britt, B-r-i

r-i-t-t, Mortensen,

9 j M-o-r-t-e- n-s-e-n,

and

theft

credit

card alleged to have

occurred on or

about November 16th

of the year 2010 involving

alleged vi

victim Robin Fletcher,

F-l-e-t-e-c-h-e-r.

allegations

do any of the Grand lurors

need me to go over the

are fairly lengthy?

the grand JURY: (No oral

response.)

GRAND JUROR ARNDT:

again since they

You said theft of a credit

something 1 i|<e that

and then after that

you said identity of another.

who does that refer to.

MR. WENDELL:

involve a variety of victims W. ^ ldentlty of another

card, Monica Stripl-jn,

may

21 j X indictment, those actual

^ in *■

V1Ct1ms are' Krause it can be

numerous.

GRAND JUROR ARNDT: Oh.

MR. WENDELL:

Tt also can be 25

it can be real

- under the statute

People or fraudulent people,

counterfeit-people.

M. Lisa Edgar, R.p.rw

C.P.

Arizona Certified Court

Reporter

Number 50273

GRAND JUROR ARNDT: okay.

MR. WENDELL: So we —

so we tend not to list —

GRAND JUROR ARNDT: okay. Not one person?

MR. WENDELL: Right.

GRAND JUROR ARNDT: Okay.

MR. WENDELL: Addi ti onal questions

regarding the

allegations?

the grand jury: (No oral

response.)

MR. WENDELL: okay

■ Let the record reflect that

all of the Grand Jurors are

11 I Jurors savers RnM

•

^ the excePtion of Grand

12 I

SayerS’ Rob1es’ Damels- Man radge and Gresham.

to assist you in determining whether

or not

probable cause - probable cause exi

exists in this matter, it may

benefit you to take a look at A.

R.S. Sections 13-105, 13-2310

covers fraudulent schemes and artifices, 13-2101,

2102, 1801,

1802 and 1804 cover theft of credit card,

and the other

statutes would be 13-2001 and 2009 reference

aggravated taking

the identity of another.

Now, all of these were

previously read to the

present on October 22nd of the

year 2010, and copies of these statutes

are available for the

Grand Jury to use

in their deliberations.

Are there any Grand Jurors who would like

to have

any of these statutes

re-read or clarified at this time?

THE GRAND JURY: (No oral

response.)______

Grand Jury with all Grand Jurors

M. Lisa Edgar, R.P.R. C.P.

Arizona Certified Court Reporter Number 50273

MR. WENDELL:

not the case.

I take it by your silence that is

: | r~r

Those admonitions read to you earlier

regarding

7 | persons disqualified from

serving as Grand Jurors are

applicable.

Are there any Grand Jurors to whom those

admonitions apply?

case.

THE grand JURY; (No oral response.)

MR. WENDELL:

I take it by silence that is not the

grand jury foreperson unda:

we are about m

thn matter f 518 ctand ^ a* !82

investigation mol,,,,

Wvldla,

named.

The usual admonition applies.

MR. WENDELL: Come, young lady; come.

(Carrie miaso entered the

DETECTIVE MIASO:

1 Mn'll Stop here this time.

proceedings.)

1 just saw you guys; didn't I?

(CARRIE MIASO was duly sworn

Foreperson.)

Carrie

It is time.

by the Grand Jury

miaso,

M. Lisa Edgar, R,P.r,, C.P.

Arizona Certified Reporter

- Number 50273

called as

examined

herei’n’ ^ been

examined and testified as follows;

BY MR. WENDELL:

duly

sworn, was

EXAMINATION

Q- Would you state your

name for the record, please?

A. My name is Carrie Miaso, last

name is M-i- a~s-o, serial

number 7169.

Q. And with

regard to your duties,

were you involved in

investigation of - ~ I guess for lack of

a better term —

the activities of an individual by the

name of Gerald Melvin

Calmese (dating back iinto 2009?

A. Yes. Yes, i was.

Q- N6w, through your investigation did

you find evidence

to indicate that Mr.

Calmese has been known by

other names?

Many other names, yes.

Is one

Of those jerry isaha calmese?

Yes.

Q- And is another Quinton,

Q-u-i-n-t- °-n, Lewis,

L-e-w-i-s?

Yes.

Through this i

investigation did

you in fact speak with

an individual by the

name of the Rhonda

i — I Personally did not speak Destefino?

Q- Dld "embers of your departent do — to Rhonda.

so?

M- Lisa Edgar, R.P.R., C.P.

Arizona Certified Reporter

- Number 50273

A. Yes, Rhonda was spoken — spoken to.

Q- And did she advise that she knows

an individual by the

name of Quinton Lewis?

A. Yes.

Lewi s?

Q-

HOW is it that she became

aware of or met Quinton

I'm not sure now she actually met him.

roet him early in the year of 2009, like

She said she

February of 2009.

Q. okay. At some point in time in the

spring of 2009, in

particular i guess calling

your attention go to April of 2009,

did Ms. Destefino believe that

Mr. Lewis was involved in the

use of her credit card without her

permission?

A. Yes.

Q-

And why is it that she believed that?

A. she had some

fraudulent charges on her credit card,

The credit card

company associated Quinton, in this

case

Gerald, with those charges by

a phone number and by his own

admissions to the credit card

company and also to Rhonda,

19 h

He admitted that he had

used the — the credit

card.

Q ■ And aside from - aside from the admissions that he

made to Ms.

Destefino, did investigators 23

~ and I'm assuming

it's i

investigators from the bank; i

A. I think — i think that is that correct?

s the fraud iinvestigators from

the bank, yes.

M. Lisa Edgar, R.P.R., C.p.

Arizona Certified Reporter

- Number 50273

Q. Okay. Did they also speak with him on the phone?

A. Yes, they spoke with him on the_

or somebody claiming

to be him was on the phone saying,

yes, he made those charges

4 J and actually wanted to pay the balance on them. ^

Q. Okay, now, with regard

to that situation did they do

6 I an investigation?

Dld that investigator actually do an i

investigation

with regard to the telephone number of the

person that they

were speaking with?

11 I

t' ^ ~

“ ** Ph0t0

the P^e number that

was

Gerald^ T ^ C3ller

** ^ Was Quint°n s or

Gerald s phone number.

Q- Did it actually come back to Quinton

Lewis or did it

come back to Gerald calmese?

A. I would not be able to

offer testimony on that part.

Q- Okay. And did Ms. Destefino

eventually identify Gerald

Calmese as being the individual

that she knows 3S Quinton Lewis

out of a Photographic lineup?

A. Yes, she did.

Q• And i'm

assuming that the photographic lineup, the

known photograph was

that of Gerald Calmese, Gerald Melvin

Calmese?

A. Ves.

Q- Additionally, does - or did your department

receive

information from

an individual by the

name ,9f Joe Corodova?

M. Lisa Edgar, R. P.R.,

C.P.

Arizona Certified Reporter

- Number 50273

testimony on that.

Q- okay. But either the credit

card or credit card number

was being used?

Correct. Yes.

“*“* °f "/ ““*■

««ny IT"’

And had Joe, durina thi«; intonn

, uui my uns interview, reported that ho

Q”

» W <*.7 « ». aW

'k“- l'- ** »

I do - I d° know that his card was used i

believe, at the c.v.s. Pharmacy.

it was being rised at

the c.v.s. Pharmacy the pharmacy ~ the employee

at the

pharmacy grew suspicious of the

transaction and was actually

holding the card so that would tell

possession, in Gerald's possession.

Qokay.

Urn —

me that the card was in his

QDid that staff member of c.v.s.

— were they shown a

photographic lineup including

a photograph of Mr.

Calmese?

Yes, they were.

QDid they identify

Mr. calmese as the individual who

involved in this

was

particular transaction —

Yes.

— on the 26th?

Yes, they did.

Now, in your investigation of

• Corodova's credit

M. Lisa Edgar, R.P.r., C.p.

Arizona Certified Reporter - Number 50273

card or credit card number, did you also determine that there

was either an attempt or a completed use of that particular

credit card at a Safeway on the 27th?

Yes, there was.

Q. Okay. And with regard to that though there was no —

at this point in time there has been no identification of the

individual who actually used it other than Mr. Corodova

indicating that that person did not have permission?

That's correct, yes.

Through your investigation did you determine that an

individual by the name of Monica Striplin knows Gerald Melvin

Calmese?

I believe so, yes.

And with regard to that situation, how are you aware of

how ms. striplin met Mr. Calmese?

Q. Did she indicate at some point in time that they dated

off an on?

A. Yes.

Q. And did she report to your department that on September

6th of 2009 her credit card was used without her consent?

A. Yes.

i would have to refresh my memory on that -That's okay.

— on how they met.

Did she also report that — well, strike that.

M. Lisa Edgar, R.P.R., C.P.

Arizona Certified Reporter — Number 50273

apologize.

Was video of that particular transaction obtained

I guess from both Circle K and also Albertson's?

A. Yes.

Q. And in looking at that video — have — have you

reviewed that video?

A. i have not reviewed it personally, no.

Q. do you know if Ms. Striplin has had a chance to review

that video?

I do not know that.

Q. Did someone who is aware of Mr. Calmese and his

features review that video?

Yes, i believe so.

Q. And did they identify Mr. Calmese as the individual in

the videos using the card at both Circle K and Albertson's?

Yes.

. Q’

Now’ has Ms" striplin ever been shown a photographic

lineup for identifying — identification

purposes in this

particular case?

I — I

Okay.

— if she had or not.

Okay,

I really honestly don't remember —

with regard to — i -

ahead slightly to, I guess

i guess I'm skipping

-- well, strike that.

On September 27th of the year 2010 did officers of

M. Lisa Edgar, R.P.R., C.p.

Arizona Certified Reporter - Number 50273

Q. Okay. And did she know him by the name of Gerald

Calmese or —

I think she knew him as Gerald, yes.

Q- Okay. Did she — was she confronted with the fact that

he had this information regarding her credit card?

A. Yes, i —

And what did she advise with regard to his permission

or her permission actually for his having it?

He had no permission to have her credit card

number

whatsoever.

Now, you indicated also that you obtained actual credit

cards during the search warrant belonging to

a Peggy Smith; is

that correct?

A. Yes, that is correct.

And with regard Ms. smith, I'm assuming that she was

also contacted?

A. Yes, I

i actually spoke to her in person.

Q. Did she also — was she aware that Mr. Calmese had

these credit cards?

A. She was not aware that he had the credit cards and she

does not know who he is nor did she give him permission to have

them.

Does she know how the credit cards came up missing?

She does not.

Additionally, was there identifying information found

M. Lisa Edgar, R.P.R., C. P.

Arizona Certified Reporter - Number 50273

regarding an individual by the

name of Victor Rzephecki?

A. Rzephecki.

Q- Rzephecki?

A. Rzephecki. Yes.

Q- Okay.

A. if i remember the name.

Q- And with regard to Mr. Rzephecki, what exactly

was

found with

respect to his identifying information?

A. Mr. Rzephecki is how i got involved in this

investigation. Ro filed a police record,

number was used at jiffy Lube and

Phoenix and in Maricopa County

His credit card

at a Lens Crafters here in

■

He did not know Mr. Calmese,

did not give him penrrission to use his credit

card number.

I went to Jiffy Lube and

I went to Lens Crafters

where i was able to have Gerald

positively identified by

a photo lineup at both locations as the one who

used the credit card.

employees in

With regard to that si

situation, with regard to Mr.

Rzephecki or his credit card number, did he

report that those

transactions at Lens

crafters and 3iffy Lube took place August

17th and 20th?

Yes.

I'm sorry; 22nd?

Yes.

Now, you indicated that a photographic lineup

Yes.

M* Lisa Edgar, R-P-R., C.p.

Arizona Certified Reporter - Number 50273

was shown

to the staff.

Crafters?

i apologize; did you indicate Jiffy Lube

or Lens

Yeah. I showed it to

an employee at Jiffy Lube that

dealt with Mr. Calmese and I showed it to two different

employees at Lens Crafters, one who was able to positively

identify Mr. Calmese as being the one involved in the

transaction.

Okay. Now, i apologize; did

anyone — you indicated

that one person at Lens - at Lens Crafters was able to

identify him and one was not?

That's correct. Yes.

Q- was it shown to more than one person at Jiffy Lube?

A. No, just the one.

Q- And they did identify him?

A. Yes.

Q- Did they have any information or through the

transactions that were done with

regard to Mr. Rzephecki 's

credit card or credit card number,

was the name Gerald calmese

used during those transactions?

Those transactions at the Jiffy Lube,

was Quinton Weeks

was the name —

I'm sorry —

— at the Jiffy Lub.

Weeks?

Weeks.

M. Usa Edgar, R.P.R., c.p.

Arizona Certified Reporter - Number 50273

Q-

W-e-e-k-s?

That's correct.

Okay.

The name at Lens Crafters was Quinton Calmese.

Okay.

contacted?

Through your investigation

— I'm sorry.

And I'm assuming that Mr. Rzephecld was also

Yes, i spoke to him.

And is he aware of or does he know Gerald Calmese?

QA. Doesn't know who he is or how he got his credit card

number.

Q. Was he aware — and it was just

a credit card number

itself; is that correct?

A. Yes, that's correct.

Q- Additionally, did you have contact with a Britt

Mortenson?

I did not have contact with

Britt.

Q. Okay. Did other officers ei

either of your department or

another local department contact her?

Yes.

Q- And during that contact did she i

ln fact indicate that

she met Mr. calmese at a local club and

him four or five times?

actually went out with

Yes.

with regard to that si

situation, did she know him as

M. Lisa Edgar, R.P.r, C.p.

Arizona Certified Reporter - Number 50273

Gerald Calmese?

I don't know.

QOkay. And on or about August 20th of the

year 2010 did

she reP°*t to a local police agency that her credit card

used at a circle K, Albertson

permission?

Yes.

A-

Yeah, I believe so.

12 I starQ.

°kay' M d1d SOme°ne Wh0 was aware of Mr. Calmese's

" Ph,Sta,

Yes.

And did they in

s, Fry's and qt without her

was video surveillance obtained wi

with regard to all four

of those transactions?

was

fact identify Mr. calmese as the

individual involved i

in those particular transactions?

A. Yes.

QWith regard to

an individual by the name of Robin

Fletcher, did

you have contact with Robin Fletcher?

I did, yes.

Q- And did she report that she knows

Gerald Melvin

Calmese?

Yes, she did.

QA-

Does she know him by the name

Gerald Melvin Calmese?

I don't recall.

Actually I'm kind of confused.

M- Lisa Edgar, R.p.r., C.P.

Arizona Certified Reporter Number 50273

QA.

do you recall how it was that they met?

Yes.

Yeah, she met — she met Gerald while they were

3 | driving down the road on Union Hills and they pulled

over and

into the Qt and started talking, that's how she met him.

Q. okay. And did she indicate she dated him for a period

of time?

QDid she also report her credit

card number apparently

was used on or about November 16th of 2010

Albertson's?

at Fry's and also at

It was actually used.

It was her actual credit card,

12 I it was used at Fry's and Albertson

rental inside the Albertson's.

s at the Red Box video

ttJ' ■°kay' !*"’ did She alS0 during the ^rview indicate

that pnor to that actual incident in November that she had

her'purse"? ^ " * Cmpr0n,isin9

Yhe - the day the card

was used she saw him going

through — it wasn't her purse,

it was her school bag, her

school bag.

Oh. okay.

So —

And were videos obtained from both

">th regard to

Q-

Albertson's?

J\A. Yes.

Fry's and

M. Lisa Edgar, R.P.R., C.P.

Arizona Certified Reporter - Number 50273

transactions appear to be Mr. calmese?

Calmese?

Yes, she did.

During interview with Mr. Calmese,

did he admit to

using Mr. Rzephecki's card, credit card,

at a Jiffy Lube?

He did admit it.

Q• Did he also indicate Quote, that he always, Quote,

wants to take the easy way out, unquote?

A. Yes. I'm sorry. Yes, he did.

MR. WENDELL: Are there any additional factual

questions for the detective?

Yes.

Additionally, did Ms. Robinson — i'm sorry - did Ms.

Fletcher identify Mr. calmese

as the individual that we're

talking about as the individual she

and dated, et cetera,

from a photographic line-up including a know, photograph of Mr

And does the individual involved in these two

none.

THE GRAND JURY: (No oral response.)

MR. WENDELL: I take it by your silence there

are

Detective, if you'll step

out, i admonish you that

Arizona law prohibits you from discussing

your testimony with

anyone other than prosecution.

the witness :

Thank you.

MR. WENDELL: See you.

M. Lisa Edgar, R-P.R., C.P.

Arizona Certified Reporter - Number 50273

(CARRIE MIASO left the proceedings.)

MR. WENDELL: Are there any legal questions?

THE GRAND JURY: (No oral response.)

MR. WENDELL: I take it by your silence there

none.

are

With such, we will step outside and allow you to

7 I deliberate with regard to your options.

(Whereupon, the Deputy County Attorney and the

9 | court reporter were excused from the Grand Jury room, were

subsequently recalled into the Grand Jury Room, and the

following proceedings were had:)

GRAND JURY FOREPERSON LANDA:

The Grand Jury would

13 | like a Draft Indictment, please.

MR. WENDELL: The County Attorney's office has

presented a Draft indictment for your consideration.

I 11 remind you that the admonitions read

to you

earlier regarding Draft Indictment

are applicable.

(Whereupon, the Deputy County Attorney and the

court reporter mre excused from the Grand Ju^ roan, were

subsequently recalled into the Grand Jury Room, and the

following proceedings were had:)

GRAND JURY FOREPERSON LANDA: The clerk will read

the findings of the Grand Jury.

GRAND JURY CLERK TOLEU: The Grand Jury with 11

members present and only members of the Grand

Jury present

M. Lisa Edgar, r.p.r., C.p.

Arizona Certified Reporter - Number 50273

(A recess was taken. The following Grand

Jurors

are present for returns: GRAND TURY FOREPERSON WRY LANDA,

GRAND JURY CLERK RICHARD TOLEU,

GRAND JURY ALTERNATE FOREPERSON

RAYLENE JOHNSTON, GRAND JUROR ELLEN CHARNEY, GRAND JUROR

ROSEMARIE ARNDT, GRAND JUROR WILLIAM JEN, GRAND JUROR KATRINA

deliberated upon evidence, and with 11 jurors voting, by a vote

of 11 to zero returned a true bill.

ROSS, GRAND JUROR KAREN ROCHA, and GRAND JUROR STEPHEN LOCKLIN.

whereupon, Commissioner Pamela Svoboda,

County Attorney Jon Wendell and the Grand Jury clerk

Deputy

entered

the Grand Jury room and the following proceedings took place:)

RETURN

indictment

GRAND JURY FOREPERSON LANDA:

GJ 182; a true bill.

Your Honor, case 518

My signature appears on the indictment endorsing

it a true bill.

MR. WENDELL: Your Honor, this is a warrant

request, The State is asking the subject be held

non-bondable

in that he committed numerous of these offenses in this

particular Indictment at the

separate offense or separate cases, that being also his

whereabouts presently are unknown, but in

CR 2010-106358-001 dt the subject is charged with theft of

time that he was on release in a

M. Lisa Edgar, R.P.R., c. p.

Arizona Certified Reporter - Number 50273

current

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.