In a recent Arizona assault case, a man appealed after being convicted of aggravated assault, resisting arrest, shoplifting, and not giving the police a truthful name when he was lawfully detained. The case arose when two cops responded to a department store’s call about a shoplifting suspect who refused to cooperate. When asked why he was causing trouble, the defendant told the cops he was “trouble” and wouldn’t give them his name. He called himself a chief, clenched his fists, and held his hands up in a gesture of wanting to fight. The cops told him he had to give his name under the law, but he refused.
He also wouldn’t comply with his arrest and wouldn’t put his hands behind his back. When the cops took his wrists, he jerked away and fled for the door. He threw a punch. Eventually a cop had to taser him, and then the other cop could cuff him. The surveillance cameras recorded their fight.
Before the trial began, the defendant made a motion to compel disclosure of several contacts with two police officers whom the prosecutor had identified would testify about their opinions. One expert didn’t testify at trial, but the other did. The defendant asked for an email from the prosecutor that asked the expert who didn’t testify to produce a supplemental report on the use of force. With regard to the expert who would testify at trial, the defendant asked for an email from the police to the expert that would ask him to create a supplemental report. The court denied the defendant’s motion for these documents and other emails between the prosecutor and expert witness on the ground that they were work product.
At trial, the defendant’s attorney argued he was acting in self-defense due to the cops’ unreasonable, excessive use of force. The jury convicted him of aggravated assault based on reasonable apprehension, shoplifting, resisting arrest, and refusing to provide his name. However, they acquitted him of aggravated assault based on touching and found that the prosecution didn’t prove aggravating circumstances of either causing or threatening to cause a serious physical injury or causing the victims’ harm. Based on his three prior felony convictions, he was sentenced to concurrent presumptive prison terms as a repeat offender.
He appealed. On appeal, he didn’t argue that the prosecutor had failed to produce the expert reports, but instead it was an abuse of discretion for the court not to order the State to produce expert recordings or statements. He argued that if the prosecutor chose to call an expert as a witness, the material related to his testimony wasn’t protected under the work product doctrine, and, at least, it should have been produced with redactions.
Under Arizona Criminal Procedure Rule 15.1, the State is supposed to disclose the relevant statements of witnesses as well as written reports and statements of expert witnesses. In this case, the prosecution argued the materials were covered by the work product doctrine, which prohibits the court from requiring the disclosure of legal research or records, to the extent that they include opinions, conclusions, or theories of the prosecutor and members of their staff. This doctrine isn’t absolute, however, and the protection is waived once an expert is presented as a witness.
The appellate court explained that the record didn’t reflect writings that memorialized the State’s meetings with its experts. Moreover, the court had prevented testimony from experts about the use of force, so there was no longer relevance to the materials about the use of force.
For these and other reasons, the convictions were affirmed.
If you face assault or resisting arrest charges in Tempe, Chandler, Gilbert, or Scottsdale, consult attorney James E. Novak. He is an aggressive former Maricopa County Prosecutor who can use insights obtained as a prosecutor to determine a strong strategy. 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.
- A.R.S. § 13-1204 (Aggravated assault)
- ARS § 13-2508 (Resisting arrest)
- Maricopa County Sheriff’s Office | Jail Information for Families
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