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Exculpatory Evidence in Arizona Grand Jury Proceedings

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.

The appellate court explained that a grand jury’s probable cause finding may be challenged only for denial of a substantial procedural right. One such right is the fair, impartial presentation of evidence. When a prosecutor doesn’t correct misleading statements, the defendant should be able to get a remand for another probable cause determination.

In this case, the defendant argued that the prosecutor had corrected a misleading remark made by a detective. The detective had answered in the negative when asked whether the friends he interviewed had said the cab driver was doing things to precipitate a self-defense situation. The defendant argued this was misleading because his friends indicated he drove his cab aggressively before getting out and coming up to him. Use of deadly force for self-defense must be immediately necessary to guard against another person’s use or attempted use of illegal deadly physical force under Ariz. Rev. Stat. (“A.R.S.”) § 13-405.

The appellate court explained that the defendant’s friends never said that the defendant had acted in self-defense or that the cab driver tried to employ deadly force. Instead, one said he didn’t know why the defendant decided to pull out a gun and shoot the cab driver. His statement was that the defendant had taken out the gun before the aggressive driving, called the cabbie something offensive, and told him to “look over here.”

The appellate court noted that the driving might have surprised the defendant, but he’d brandished a gun before the aggressive operation of the cab, and by the time he fired a shot, the cabbie wasn’t in the cab, and there wasn’t an imminent threat. The appellate court determined that it wasn’t misleading to say that nothing triggered the self-defense situation.

The defendant also argued that the detective’s testimony that the cabbie was worried about being shot was misleading because the detective answered affirmatively when asked whether the cabbie indicated he was worried about getting shot.

Among other things, the defendant argued that the prosecutor should have presented some exculpatory evidence that two of his friends had said that the cabbie screeched the tires of the cab and that the cabbie flipped them off, was much heavier than the defendant, and approached him while calling him something offensive. Using deadly physical force is only justified to the extent a reasonable person would think it’s immediately necessary to guard against another person’s use of illegal deadly physical force under A.R.S. § 13-405. The evidence the defendant believed was exculpatory didn’t show the cabbie was using or trying to use deadly force against him. Therefore, it wasn’t a mistake to determine the evidence wasn’t unambiguously exculpatory.

For these and other reasons, relief was denied.

If you are facing a weapons charge 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 to people facing active criminal charges in his area. If you have been charged with a weapons crime, call or contact The Law Office of James Novak at (480) 413-1499 and talk directly with Mr. Novak.

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