Articles Posted in Violent Crime

Published on:

By

Recently, the Arizona Supreme Court issued a written opinion in an Arizona homicide case discussing whether the defendant’s conviction for murder was invalid based on a double-jeopardy violation. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” While the language used in the clause is somewhat archaic, this case illustrates that the principles behind the clause are as essential today as they ever were.

According to the court’s opinion, the defendant was tried for murder in 2013, after he shot his neighbor. Evidently, the neighbor approached the defendant after the defendant asked him to leave. The defendant testified that he believed the neighbor was armed.

After the parties presented their cases, the jury could not agree on whether the defendant was guilty of first-degree murder, marking the box “unable to agree” next to the first-degree murder charge. The jury found the defendant guilty of second-degree murder, and the court sentenced him to 16 years incarceration. An appellate court later reversed the conviction based on procedural grounds, remanding the case for a new trial.

Continue reading →
Published on:

By

Last month, a state appellate court issued an opinion in an Arizona homicide case discussing whether the lower court properly excluded evidence of the defendant’s brain damage. The court acknowledged that a defendant is permitted to introduce evidence showing he had a character trait for acting impulsively. However, ultimately, the court concluded that he could not present evidence of brain damage to corroborate that trait. As a result, the court affirmed the defendant’s conviction for murder.

According to the court’s opinion, the defendant was charged with murder after he shot his then-girlfriend. Evidently, the defendant’s girlfriend ended their relationship. Two days later, she went to his home to return a gift. The defendant begged her to stay, and she refused, taking the couple’s children with her. The defendant allegedly followed his ex-girlfriend, blocked her car, and then shot her.

The state charged the defendant with first-degree premeditated murder. In support of his defense, the defendant sought to admit testimony from a medical doctor. The doctor planned to testify that the neuropsychological tests he performed were “consistent with significant and permanent diffuse brain damage.” According to the doctor, this meant the defendant was “more likely to have a character trait for impulsivity.” The prosecution objected, and the court precluded the admission of the doctor’s testimony. The defendant was convicted, and appealed the court’s decision to exclude his expert’s testimony.

Continue reading →
Published on:

By

Any experienced Arizona criminal defense attorney knows that not every case can be won. Or, better put, “winning” a case does not always mean that a client was found not guilty. In some cases, the evidence of guilt is overwhelming, perhaps due to a post-arrest admission given by the defendant. In other situations, a defendant does not want to put themselves and their loved ones through the stress of a criminal trial. Because of these realities, plea bargains are not uncommon in Arizona criminal cases.

A plea bargain is an agreement between the prosecution and the defense under which the defendant will plead guilty, usually for a negotiated sentence. In some cases, a defendant may choose to “open plea,” in which case there are no negotiations, and the defendant places complete discretion in the judge’s hands. Typically, an open guilty plea would be appropriate when the offer made by the prosecution was unreasonable, or there are significant mitigating circumstances warranting a lesser sentence.

Pleading guilty, however, is an important decision that should only be made after careful discussion with an Arizona criminal defense attorney. By entering a guilty plea, a defendant gives up almost all of their pre and post trial rights. And after the sentence is imposed, there is very rarely an opportunity to have the finding of guilt or sentence reviewed by a higher court.

Continue reading →
Published on:

By

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.

Continue reading →

Published on:

By

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.”

Continue reading →

Published on:

By

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.

Continue reading →

Published on:

By

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.

Continue reading →

Published on:

By

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.

Continue reading →

Published on:

By

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.

Continue reading →

Published on:

By

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.

Continue reading →

Contact Information
Law Office of James Novak, PLLC
4500 S Lakeshore Dr #352
Tempe, AZ 85282
Phone: (480) 413-1499Text: (602) 908-8123

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2017 – 2024, The Law Office of James E. Novak
JUSTIA Law Firm Blog Design