Violent Crime

Published on: February 19, 2019

Arizona’s Self Defense and Stand Your Ground Laws

As a general matter, Arizona criminal law prohibits assaulting another person. An assault can occur in several different ways. Under Arizona’s assault statute, it is against the law to intentionally, knowingly or recklessly cause physical injury to another person; to intentionally place someone else in reasonable apprehension of imminent physical injury; or to knowingly touch another with the intent to injure, insult, or provoke them. However, there are exceptions when using force against another person is justified.

A justification defense is considered an affirmative defense. An affirmative defense is one that, if proven by the defendant, defeats the legal consequences of what would otherwise have been an illegal act. In other words, when claiming a justification offense, the defendant is not contesting any of the elements of the offense. Instead, the defendant is saying “yes, I did what you say I did, but I did it for a good reason.”

As noted above, there are several different situations in which physical force can be used against another person. These include self-defense, defense of others, and defense of property. While each of these defenses is outlined in separate statutes, a defendant must establish that they reasonably believed the force was necessary. However, physical force is never justified based on verbal provocation. Courts consider both whether the person using force was justified in the use of force, as well as whether the extent of the force used was proportionate to threat posed.

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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: April 11, 2018

Arizona Court Precludes Evidence of Defendant’s PTSD Diagnosis in Recent Homicide Case

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

Earlier this month, a state appellate court issued a written opinion in an Arizona homicide case discussing the admissibility of the defendant’s diagnosis for Post-Traumatic Stress Disorder (PTSD). Being an issue of first impression, the court was required to fashion a rule to determine the admissibility of such diagnoses, ultimately concluding that the evidence should not be admissible.

The Facts of the Case

The defendant was nine months pregnant when she shot her boyfriend, the father of her child, in the head, killing him. When asked by detectives, the defendant explained that her boyfriend was abusive and had woken her up by kicking her in the stomach. He also told her that he did not want the baby.

The state charged the defendant with first-degree murder. A few days later, she gave birth, and the state sought to terminate her parental rights. In that proceeding, several experts testified that the defendant suffered from PTSD; however, they noted that the defendant did not answer any questions about the shooting.

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Published on: March 11, 2018

State’s Supreme Court Permits Defendant to Claim Misidentification and Self-Defense

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

Earlier this month, the Supreme Court of Arizona issued an opinion in an Arizona assault case requiring the court to review its longstanding decision not to allow a defendant to claim both self-defense and misidentification under the theory that the two are mutually exclusive. Ultimately, the court determined that a defendant should be able to claim self-defense, even if he is also claiming that he was not the one involved in the alleged criminal activity.

The Facts of the Case

The defendant was arrested on murder and aggravated assault charges after a fight at a house party resulted in two men being shot to death and another being seriously injured. It was undisputed that there were many other people at the party. While police were unable to locate the gun used in the shootings, they did located two bloodied knives on the victims. The knives were not tested for fingerprints or DNA.

The defendant did not testify at trial. His primary defense was that he was not the shooter. However, he also requested the judge to instruct the jury that, if he was determined to be the shooter, he was acting in self-defense. The court refused to give the self-defense instruction, explaining that since he claimed he was not the shooter, the defendant cannot also claim he acted in self-defense. The case was submitted to the jury, which returned a guilty verdict. The defendant appealed.

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Published on: October 9, 2017

Aggravated Assault and False Reporting in Arizona

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

In a recent Arizona aggravated assault case, the plaintiff appealed convictions and sentences for aggravated assault and false reporting. For two days in 2015, the victim and the defendant, as well as their girlfriends, drank alcohol in an empty lot. Early on the second morning, the defendant stabbed the victim in the back three times. The victim got the knife away, and the defendant fled. The victim had to undergo an operation for a punctured lung and was hospitalized for eight days.

The police found the defendant walking down the road after learning of the stabbing. When they asked him for an ID, he gave them false names and birthdates. He later told them he’d been knocked out by a black man in a hoodie and denied that he’d stabbed anybody. The victim advised the police that he was stabbed by “J.J.,” which was a nickname the defendant gave them. The defendant was arrested for the stabbing.

Before the trial, the defendant was recorded calling a woman from jail, asking whether the victim planned to testify. He told her the victim would be a snitch if he testified. The caller told him that she’d talked to the victim and that the victim had decided not to pursue charges, although he initially was going to pursue them. The defendant told the woman that the victim would be known as a rat for testifying. The woman said that the victim had texted her he would drop the case, and the defendant told her the steps the victim needed to take to get the charges dropped.

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Published on: September 11, 2017

Resisting Arrest and Aggravated Assault in Arizona

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

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.

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Published on: July 10, 2017

How Detailed Does Notice of Assault Charges Have to be Under the Sixth Amendment?

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

In a recent, unpublished Arizona appellate case, a woman was convicted of disorderly conduct and misdemeanor criminal damage. She was sentenced to concurrent terms of imprisonment, and the longer term was 2.25 years.

According to the prosecution, the case arose when the defendant met the father of her child in a parking lot to give him their child. When the father drove up with a woman, the defendant smashed in a window of the car and hit the woman in the face. When the woman got out of the car, the defendant hit her again. The prosecution claimed that she’d committed a dangerous offense in that she’d threatened to discharge or shown a deadly weapon or dangerous instrument. A detective testified to the grand jury that the defendant had swung a baseball bat to break the window and then swung the bat at the victim’s arm. The defendant told detectives that the victim had gotten out of the car and threatened her, and this was the reason she got the bat.

At trial, the defendant objected to a jury instruction that stated aggravated assault was based on a reasonable apprehension of assault. Ultimately, the court allowed the prosecution to move forward under theories of assault and reasonable apprehension of assault, but it didn’t give the preliminary jury instruction. It reasoned that if someone were in the car, and somebody broke the window of the car, the person inside the car would be in reasonable apprehension of being hurt.

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Published on: June 21, 2017

Use of 911 Recorded Call in an Arizona Aggravated Assault Case

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

In a recent Arizona appellate case, the defendant appealed his conviction for domestic violence, dangerous offenses, Class 3 felonies, and two counts of aggravated assault. He argued that it was a mistake for the court to admit a 911 call recorded by a victim.

The case arose in 2014 when the defendant got involved in a domestic violence quarrel with his wife. He pointed a gun at her and her mother. The mother called 911, and during the call they discussed what was happening. The mother said her daughter’s husband was threatening them with a gun that he’d just put down during her visit. The mother couldn’t be found to testify at trial.

The defendant tried to preclude evidence of the 911 recording on the grounds that it was made to a law enforcement officer and was used to prove past events that would be relevant to a later criminal prosecution. The lower court denied the defendant’s motion in limine and found that the 911 call could be admitted under the excited utterance exception to the rule against hearsay evidence under Arizona Rules of Evidence 803(2). The court found the mother’s comments weren’t testimonial for the purposes of the Confrontation Clause.

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Published on: May 25, 2017

Aggravated Assault on a Peace Officer in Arizona

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

In a recent unpublished opinion, an Arizona woman appealed convictions for aggravated assault and resisting arrest. The case arose when a deputy sheriff was patrolling and was dispatched to a domestic violence incident. When he got there, he saw two kids outside the defendant’s home, and one was emotional. The kid told the deputy what was happening inside, so he approached the home. He heard a man yelling inside the house and saw the defendant sitting on a couch inside.

He knocked on the door and made eye contact with the defendant. She didn’t open the door, so he knocked some more. She let him into the house but immediately shoved him against the wall. He told her to stop, but she said she wouldn’t stop. He took her to the ground to get control, and she punched him numerous times in the arms and legs. He took out his Taser, and then she stopped resisting. The deputy’s finger was cut.

The woman was arrested for disorderly conduct and aggravated assault in violation of multiple code sections, including A.R.S. section 13-1204 and resisting arrest. The defendant was convicted of aggravated assault and resisting arrest, which are class 6 felonies. Her sentences were suspended, and she was placed on supervised probation for 18 months. The convictions were designated as class 1 misdemeanors, and she had to pay certain assessments.

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