Criminal Defense

Published on: July 30, 2021

Arizona Court Addressed Defendant’s Challenge to the Jury Selection Process

Recently, an Arizona court issued an opinion in an aggravated assault case following the defendant’s challenge of the jury selection. The defendant raised a challenge alleging that the opposing party excluded certain individuals because of their race. The appellate court affirmed the lower court’s decision in denying the defendant’s challenge.

The Facts of the Case

According to the court’s opinion, parties of an upcoming trial were selecting individuals to serve on the jury. The defendant challenged the jury selection, requesting that the prosecutor explain why they chose to remove the only two Black individuals from serving on the jury. The prosecutor explained that they struck one individual from serving on the jury because that individual’s brother was convicted of a crime, which they worried could impact the individual’s ability to judge fairly. The second person was removed from the jury selection pool because that individual was previously involved in a criminal case. The trial court found that these were reasonable and race-neutral justifications and thus that the challenge raised by the defendant should be denied.

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Published on: July 21, 2020

Can Arizona Criminal Cases Proceed with Witnesses Testifying Through Two-Way Video?

By James E. Novak, P.L.L.C.

In the wake of the COVID-19 pandemic, courts are dealing with many novel legal issues. One of those issues is how to conduct Arizona criminal trials in a time of social distancing. Thus far, there is no consensus on how to effectively hold a trial while protecting a defendant’s constitutional rights, however, some courts are considering allowing witnesses to testify through the use of two-way video calls.

The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This is referred to as the Confrontation Clause. Over the years, the United States Supreme Court has issued several important opinions discussing a defendant’s right to confront their accusers. However, this issue seems more salient than ever, and will likely come before the Court again.

Recently, a state appellate court issued a written opinion in a case that, while not dealing specifically with the complications presented by the COVID-19 pandemic, illustrates the issue quite clearly. In that case, a defendant faced sexual assault charges stemming from an incident in 1996. At the time, a rape kit was performed, however, it was not analyzed until 2015. The results of the testing tied the defendant to the crime.

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Published on: November 5, 2019

Motions to Suppress in Arizona Criminal Cases

By James E. Novak, P.L.L.C.

When someone is charged with an Arizona crime, they have the ability to file a motion to suppress, challenging the admission of evidence that the prosecution plans to introduce at trial. In essence, a motion to suppress argues that certain evidence obtained by police was done so in violation of the defendant’s constitutional rights. Most often, motions to suppress are litigated in Arizona drug cases or cases in which there was a weapon recovered. However, a motion to suppress can be argued any time that evidence is illegally seized or when a statement is illegal taken.

One important aspect of a motion to suppress is the concept of standing. Standing refers to the defendant’s ability to argue a motion to suppress. In order to bring a motion to suppress, the defendant must have standing. Standing is a complex legal concept, but at its most basic it requires a defendant to have a subjective expectation of privacy in the place searched. In addition, that sincerely held expectation of privacy must be one that is recognized by society as reasonable. For example, a defendant who tosses a gun into a trash can as police drive by may not have standing to bring a motion to suppress. This is because the defendant abandoned the gun, eliminating any expectation of privacy that he may have otherwise had.

If the court grants a motion to suppress, the challenged evidence cannot be admitted at trial. In many cases, this results in the prosecution withdrawing the case because there is no longer sufficient evidence to prove the case. However, there are cases in which a successful motion does not end the case. For example, a motion to suppress may preclude only some of the evidence from admission.

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Published on: October 10, 2018

The Crimes of Assault and Aggravated Assault in Arizona

By James E. Novak, P.L.L.C.

Of the thousands of cases filed by Arizona prosecutors each year, many involve allegations of assault. Depending on the circumstances of the allegations, an Arizona assault charge can be either a misdemeanor or a felony offense.

In Arizona, there are two types of assault that do not involve a sexual element: assault and aggravated assault. To prove either of these crimes, the prosecution must establish that the defendant, 1.) performed an act, 2.) while exhibiting the necessary mindset. In Latin, these terms are known as the “actus reus” and “mens rea.”

The actus reus is the physical action that constitutes an element of a crime. For example, in an assault case, the actus reus may be a punch, a stabbing motion, or the pulling of a gun’s trigger. However, to find a defendant guilty of a crime, the prosecution must establish that the defendant performed the act with the necessary “guilty mind.”

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Published on: June 26, 2018

Plea Bargains in Arizona Criminal Cases

By James E. Novak, P.L.L.C.

A defense attorney’s job is to vigorously fight for the rights of his client, and, ultimately to do what is in his client’s best interest. At the same time, any seasoned Arizona criminal defense attorney knows that not every case can result in a “Not Guilty” verdict.In some cases where there is a concern about an unfavorable verdict, pre-trial motions can be litigated in hopes of creating a more favorable scenario. For example, a pre-trial motion to suppress physical evidence or a motion in limine to preclude certain harmful testimony may make a defendant’s case much stronger. However, in situations where these pre-trial motions are denied or where the prosecution’s case against the accused is exceptionally strong, an experienced Arizona criminal defense attorney should discuss the idea of a negotiated guilty plea, or a plea bargain.

Plea bargains get a bad rap. However, tens of thousands of Arizona criminal defendants accept plea bargains to resolve their cases each year. This is because Arizona plea deals are the product of significant negotiation and take into account several factors. Most notably, when a defendant accepts responsibility for a crime, the prosecutor is able to divert scarce resources elsewhere. Thus, a prosecutor is motivated to resolve cases through negotiated plea bargains in order to focus on other, potentially more serious, cases.

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Published on: February 13, 2018

Exculpatory Evidence in Arizona Grand Jury Proceedings

By James E. Novak, P.L.L.C.

In a recent Arizona gun crime decision, a man was indicted for two misdemeanors and three felonies after discharging a firearm. The victim was a cab driver who stopped the man and his friends to ask if any of them had called for a cab. A friend told the driver they only called Uber. The driver and the defendant spoke to each other. The victim drove away but came back and got out of his cab. The defendant pulled a gun out of his back pocket and fired at the cab before running off.

The defendant was indicted for aggravated assault, illegal discharge of a firearm, discharge of a firearm at a non-residential structure, criminal damage, and weapons misconduct. The defendant argued that the prosecution had presented false testimony and had not properly advised the grand jurors on self-defense. His motion was denied, and he followed up with a special action.

On appeal, he argued the lower court had made a mistake because the prosecution had not presented a fair and impartial case, and he was therefore denied a substantial procedural right.

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Published on: January 2, 2018

The Guilty Except Insane Defense in Arizona

By James E. Novak, P.L.L.C.

In a recent Arizona criminal case, a police officer answered a check vehicle call after police got reports of a white truck that was parked in a lane of traffic. The officer turned on his overhead lights and pulled up behind the truck. He came up to the driver’s window and tried to talk to the truck driver. He saw three young kids in the car, who seemed to be sleeping. The truck driver asked to see his identification twice. He told her he was a police officer and pointed at his badge and at the police car’s emergency lights.

The police officer believed that it was necessary to check on the kids, due to the totality of the circumstances. He asked her to unlock the doors to check the kids’ welfare and tried to open the doors. She drove up about 100 yards, ignoring his requests to stop, and went into a parking lot.

He followed and pulled his police car behind the truck to effectuate another stop. She backed the truck toward his patrol car. He pulled into a bank drive-through and headed in through the exit. The officer followed her and tried to contact her to ask her to stop the truck. Rather than comply, she drove the truck right at the officer. He pointed his gun at her, and she accelerated. He ran out of the way. She hit his car and drove back into traffic for 50-60 feet. He stopped again in a lane of traffic.

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Published on: December 26, 2017

Medical Blood Draw as Evidence in Arizona Negligent Homicide

By James E. Novak, P.L.L.C.

In a recent Arizona homicide case, the defendant appealed a conviction for negligent homicide. He argued that the lower court should have suppressed the blood alcohol content evidence, and he challenged whether the evidence was sufficient for a conviction.

The case arose in 2012 when the police responded to a single-vehicle crash caused by the defendant. The officer found the defendant in the car’s driver’s seat and a woman who was his passenger slumped in the passenger’s seat. The woman was dead. As the officer went with him to a police car for safety, he noticed that the defendant smelled like alcohol. He asked whether the defendant had been drinking alcohol, and he said no. No field sobriety tests were conducted.

He left the defendant and started directing vehicles and spoke to witnesses. The witnesses said that the defendant was going downhill when he seemed to make a lane change to pass a vehicle, but there was no vehicle to pass. He went over the double yellow line and collided with a culvert. There were no skid marks, but the car had damage on it. The officer was knowledgeable about accident reconstruction, and in his opinion, the damage showed an impact speed of less than 35 mph.

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Published on: December 11, 2017

Arson Charges in Arizona

By James E. Novak, P.L.L.C.

In a recent Arizona arson case, the defendant was convicted of arson of an occupied structure and criminal damage. He was sentenced to concurrent prison terms, and the longer term was 10.5 years.

The appellate court explained that in 2013, the victim’s neighbor called 911 due to the house next to his being on fire. The victim was a family trust, and the defendant was staying there while renovating it. The carport was involved in the fire, and a truck was destroyed.

While putting out the fire, the firefighters found other fires had been started in the house. The truck was blocking the door, and the front door was blocked, so the firefighters pushed into the house. It seemed nobody was inside, but in a second search, a firefighter saw that a bathtub full of water had a hose pushing out from the water in a nearby window. This seemed strange, so the firefighter put his hand in the black, smoky water. The defendant jumped out.

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Published on: September 25, 2017

Marijuana Sales and Weapons Misconduct in Arizona

By James E. Novak, P.L.L.C.

In a recent Arizona marijuana case, the defendant appealed after being convicted of selling marijuana and weapons misconduct. The case arose when two detectives had a confidential informant conduct a controlled buy. The detective searched the informant to make sure he didn’t have money, drugs, or paraphernalia. The detectives photographed a set of $20 bills to be used to purchase drugs and set up the informant with a recording device.

They followed the informant in cars to the target’s home. After going in, the informant returned to his car, accompanied by the target and a woman. The three went to the gas station, and the detectives followed. The target got out and went up to a white car that was parked at the gas station. He got inside and then went back to the informant’s car. They returned to the home, followed by the police. The informant dropped off the target and passenger. He met the detectives to be debriefed and searched. The detectives found a plastic baggie containing marijuana.

Meanwhile, a detective asked a patrol officer to follow the white car and stop it if there was any traffic violation. The patrol officer followed the car after it left the gas station and pulled him over for speeding. The patrol officer saw there was a handgun on the seat, and it was in a firing position. He asked the driver for the gun, which the driver gave him. He also smelled marijuana, and the driver admitted she had marijuana in a paper bag. She consented to a search. Inside, there were bags of marijuana and brownies and a set of $20 bills. She had a medical marijuana card, so the officer determined there was no basis to believe she’d broken a drug law. The officer photographed the money and drugs before letting her leave.

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