Arizona DUI & Criminal Defense Attorney Blog
In a recent Arizona appellate case, the defendant was convicted of aggravated assault resulting in temporary but substantial disfigurement and assault. The lower court suspended the imposition of a sentence and put him on probation. The defendant appealed, claiming that there was prosecutorial misconduct in charging him with aggravated assault causing serious physical injury, and the court had made a mistake in denying his motion for a judgment of acquittal on that charge because the evidence showed minor injuries.
The case arose in 2012, when a trooper responded to a pickup truck accident. The trooper found that a pickup truck had left the road, and crashed into a sign. There was blood on the driver’s side of the pickup, and none on the passenger side. Emergency medical personnel treated the defendant and his mother. He had a bleeding cut above his left eye and on his hands. The mother didn’t have any blood on her, but complained about experiencing pain. The trooper observed that the defendant had red watery eyes and other signs of inebriation. The defendant admitted that he’d had a few drinks.
The defendant and his mother were taken to the hospital. The trooper followed. At the hospital, a nurse told the trooper they’d be drawing the defendant’s blood for medical purposes and the trooper asked for a sample. The trooper waited in a common area, and overheard the defendant talking on the phone and saying that he’d gotten into the accident after consuming alcohol at a restaurant. He also overheard the defendant confirm to his health care providers that he’d been drinking alcohol.
The test of the defendant’s blood sample showed a BAC of .142. Officers found out the truck was registered to the defendant and his mother’s license had been suspended. Her injuries included a lacerated spleen, fractured eye socket, and fractured spine. The jury indicted the defendant for aggravated assault causing serious physical injury to the mother and aggravated assault using a deadly weapon or instrument against the mother. He was convicted of lesser-included offenses for both charges.
The defendant appealed, arguing prosecutorial misconduct. He claimed it was misconduct for the prosecutor to charge him with aggravated assault with serious physical injury when he didn’t have a reasonable belief that the injuries were serious. He also argued that the prosecutor had failed to investigate the status of his driving record or to show the jury exculpatory evidence that showed he left his house with the mother driving. The appellate court found that he’d waived review of this issue because he hadn’t claimed the error was fundamental, and even if he hadn’t waived the argument, he couldn’t establish fundamental error. The appellate court explained that a prosecutor has broad discretion in deciding what charges to bring against a defendant, and this discretion isn’t interfered with by the judicial branch except when the prosecutor acts in excess of his power or illegally.
In this case, the grand jury had decided there was probable cause to indict the defendant for aggravated assault involving serious physical injuries. The defendant also argued that it was improper for the lower court to deny his motion for a judgment of acquittal on the basis that the state had shown insufficient evidence of his mother sustaining serious injuries. The appellate court explained that he wasn’t convicted of this offense, so the issue was moot. It also explained that the mother had suffered serious physical injury since the mother was 83 and at greater risk of complications. After suffering those particular injuries, she was less likely to function at the same level of independence and she’d been put in a skilled nursing facility after being released from the hospital.
The defendant also argued it was improper to admit lay witness testimony from the trooper about who was driving based on blood spatter. The state had argued that the trooper wasn’t going to testify as to blood spatter, but simply his observations of the blood based on training and the fact that he was human. During cross-examination, the defense attorney asked if the trooper knew how the blood got there, and the trooper answered that he didn’t see the blood get on the vehicle. The state believed that the defense attorney had opened the door to blood spatter testimony, and the court allowed questions about who the trooper thought was driving.
The appellate court found the trooper’s testimony was proper as a layperson. Under Arizona Rule of Evidence 701, when a witness isn’t testifying as an expert, he can offer opinion testimony that’s rationally based on his perception, that’s helpful to determine a fact, and that’s not based on specialized knowledge. In this case, the trooper’s opinion that the defendant was driving was based on his perception, not specialized knowledge. He saw the defendant bleeding, and that blood was on the driver’s side, but not on the passenger side of the car. For these and other reasons, the convictions were affirmed.
If you are facing an aggravated assault charge involving a car or DUI 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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