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Aggravated Assault with a Gun in Arizona

gunIn a recent Arizona appellate case, a jury convicted a man of two counts of aggravated assault and two counts of murder. He was sentenced to concurrent terms, with the longer one being 13 years. The victims were two men who were shot and killed and one man who was wounded outside a party at a home. The defendant was convicted as the lone shooter involved.

The surviving victim had come to the party to serve as a deejay, and he knew the defendant from a social media website. Shortly after the victim arrived, the defendant told him that he was carrying a 9 mm pistol. Many witnesses saw him with a black gun that night.

Four or five of the men at the house party argued. The parties agreed there was bad blood between the defendant and one of the victims, based on a fight between the defendant and the victim’s brother. The defendant and the men got into a fistfight. Many people saw the defendant show his gun while they were inside the home.

People started to leave, and the fight moved outside. As a victim left through a side door, he saw the defendant on the ground with men hitting and kicking him. The surviving victim pulled one of the men out of the fight and walked him away, saying that they shouldn’t jump the defendant in a group.

The surviving victim saw that the fight stopped, but the screaming kept going. He heard a gun cock, and everybody ran. The victim was across the street when he was looked in the eyes and shot in the abdomen. The man who’d been attacked shot and killed the man he’d pulled away. Eyewitnesses said the shooter changed hands or otherwise moved his hands when he fired.

The police found the bodies of the victims about 1 1/2 blocks apart in opposite directions from the home where the fight began. One victim was shot twice in the back, and the other was shot in the side of his chest. There was no soot around the entrance wounds, which suggested the shot had come from over three feet away. No testimony was presented that the victims were shot with the same gun, and the murder weapon wasn’t found, although a bloody knife, never tested for DNA, was. A detective explained at trial that they hadn’t found anybody used the knife, so testing wasn’t conducted.

The defendant asked for a self-defense justification but didn’t get it. Even though the court refused, both sides did argue self-defense related to the knives found at the victim’s body. The defendant’s primary defense was mistaken identity.

The defendant appealed after being convicted. He argued that he should have been given a self-defense instruction that said physical force against someone else was justified when a reasonable person would believe physical force was needed to defend oneself against somebody else’s use of physical force under A.R.S. § 13-404(A). The justification to use deadly force requires an unlawful use of force by a victim of violence. The reasonable person standard refers to somebody in the same circumstances as the defendant.

The appellate court found that the trial court correctly denied this instruction with regard to the survivor who’d made no hostile demonstration toward the defendant. There was no evidence the survivor was involved in the fight.

However, the appellate court found that with regard to the dead victims, there was evidence from which it could be found that the defendant acted in self-defense against the dead victims. Even though they’d died in opposite directions, there was the slightest evidence of self-defense, so the instruction was required. The state argued that the defendant shouldn’t be able to argue both self-defense and mistaken identity. The appellate court disagreed and found the error wasn’t harmless. The appellate court affirmed the conviction and sentences for aggravated assault against the survivor, but it reversed the murder convictions and sent the case back to the trial court for a trial consistent with the principles it had explained.

If you are facing an aggravated assault charge involving weapons in Tempe, Chandler, Gilbert, or Scottsdale, consult criminal defense attorney James E. Novak. As a former Maricopa County Prosecutor, he’ll use insights obtained as a prosecutor to evaluate whether any of your constitutional rights was violated and develop an approach to your defense. He offers a free initial consultation for people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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