James E. Novak
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Earlier this year, a state appellate court issued a written opinion in an Arizona sex offense case discussing whether the defendant was properly ordered to register as a sex offender after he was convicted by a jury. The case involves the guarantees of the Sixth Amendment right to a jury trial in criminal cases.

A Little Background into the Sixth Amendment

The Sixth Amendment of the United States Constitution provides, among other rights, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This right to a trial by jury has been expanded over the years. For example, in the case, Apprendi v. New Jersey, the U.S. Supreme Court held that any fact that increases the punishment a defendant may face must be found beyond a reasonable doubt by the jury.

The Facts of the Case

In the recent opinion issued by the Arizona Supreme Court, the defendant was convicted of a sexual offense. At trial, the jury determined that the victim was “fifteen or more years of age.” However, the jury did not formally make a specific finding as to the victim’s exact age.

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Earlier this year, the United States Supreme Court issued an opinion in a case that addressed an important issue that arises in many cases that begin with an Arizona traffic stop. The case, Kansas v. Glover, presented the Court with the question of whether a law enforcement officer is able to reasonably assume that the person driving a vehicle is that vehicle’s registered owner.

The import of the Court’s decision is in how courts evaluate the legality of a traffic stop. Under longstanding Supreme Court case law, a police officer must have “a particularized and objective basis to suspect legal wrongdoing” to stop a vehicle based on a traffic violation. This has come to be known as the “reasonable suspicion” standard. Notably, reasonable suspicion requires less than a finding of probable cause. The question in this case was whether a state frooper’s assumption that the driver of a pick-up truck was the truck’s registered owner was a “reasonable” assumption.

The Facts of the Case

According to the Court’s opinion, a state trooper was on routine patrol when he ran the tags of a pick-up truck being operated by the defendant. The tags indicated that the vehicle’s owner had a revoked license. The trooper, assuming that the driver of the pick-up truck was the registered owner, pulled the truck over.

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Earlier this year, a state appellate court issued a written opinion in an Arizona child sex sting operation, discussing the defendant’s motion to suppress. Specifically, the defendant claimed that the officers lacked probable cause or reasonable suspicion to stop his vehicle because he had not committed a crime or a traffic offense. The court, however, disagreed, finding that the stop was valid because there was probable cause to believe the defendant committed “luring a minor for sexual exploitation.”

The Facts of the Case

According to the court’s opinion, police set up a fake account in the name of “Sandi” in a teen chat room. The defendant began chatting with Sandi, and eventually, the nature of the conversation turned sexual, when the defendant asked Sandi if she would perform oral sex on him. The two arranged a time to meet at a location which was about 30 miles from the defendant’s home.

Police arrived at the area beforehand and waited for the defendant to arrive. However, when the defendant neared the park, he just drove around. Police officers claim that they eventually became concerned that the defendant would try to contact a real minor, and they pulled over his vehicle. No evidence was found linking the defendant to the crime, but he was arrested based on the chat conversations.

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Earlier this year, a state appellate court issued a written opinion in an Arizona drug case discussing whether the defendant was eligible for probation under Arizona Revised Statute section 13-901.01. Section 13-901.01 is titled “Probation for persons convicted of possession or use of controlled substances or drug paraphernalia,” and states that “any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation.”

While section 13-901.01 provides a general rule that a person convicted of a possessory drug offense is eligible for probation, the statute outlines several exceptions. The question in this case was whether the defendant was eligible for probation despite his prior convictions. Under section 13-901.01, a person is not eligible for probation if they have three prior convictions for personal possession of a controlled substance or drug paraphernalia.

According to the court’s opinion, the defendant was convicted of possession of drug paraphernalia in 1996, and solicitation to sell a narcotic drug in 2006. In 2017, the defendant was arrested and convicted for several drug offenses.

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Earlier this month, a state appellate court issued an opinion in an Arizona drug possession case discussing the defendant’s request for specific discovery related to a border checkpoint. Ultimately, the court rejected the defendant’s request for additional discovery, finding that he could not establish that there was a “substantial need” for the material or that he was unable to obtain the requested discovery on his own. The case illustrates the importance of understanding the legal framework that governs discovery requests and how to effectively request desired discovery.

According to the court’s opinion, the defendant was driving through a border checkpoint when he was stopped by border patrol agents. A drug-sniffing dog alerted to the defendant’s car, and an agent directed the defendant to pull into an area for secondary screening. Upon searching the vehicle, agents found marijuana and methamphetamine. The defendant was eventually charged with possession of marijuana and two counts of possession of drug paraphernalia.

Before trial, the defendant requested “all search and seizure raw data” from the border checkpoint where he was stopped. The defendant argued that the information was relevant to determine whether the primary purpose of the checkpoint was for immigration enforcement or drug detection and enforcement. The court denied his request, and the defendant was ultimately convicted.

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Earlier this month, a state appellate court issued a written opinion in an Arizona homicide case discussing the state’s challenge to the defendant’s sentence. The state claimed that the trial court failed to follow the law when it sentenced the defendant to “life without possibility of parole for twenty-five years.” However, the court held that because the state failed to raise the issue in a timely manner, it was precluded from raising it after the defendant sought parole after having served 24 years. As a result, although the defendant’s sentence was illegally lenient, he was entitled to parole after serving 25 years in custody.

The defendant was found guilty of first-degree murder for a killing that took place in 1995. At sentencing, the trial court sentenced the defendant to “life without possibility of parole for twenty-five years,” to be followed by a period of “community supervision.” However, at the time, there was a law on the books that prohibited defendants who were convicted of first-degree murder from being eligible for parole. At the time of the defendant’s sentencing, the prosecution did not object, nor did it appeal the sentence.

After the defendant served 24 years in custody, he sought parole. The defendant was told he was not eligible for parole, and the defendant sued the Arizona State Department of Corrections. The state then sought a determination as to whether the defendant was eligible for parole.

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Earlier this month, a state appellate court issued a written opinion in an Arizona retail theft case requiring the court to determine if the defendant’s pre- and post-arrest statements to police should have been suppressed at trial. Ultimately, the court concluded that the police officer’s interaction with the defendant before his arrest did not constitute “custodial interrogation,” and thus neither of the defendant’s statements were suppressible.

According to the court’s opinion, police received a call that a man wearing a black and orange backpack walked into a convenience store and took beer on two separate occasions on the same day. Shortly after the second alleged theft, police officers stopped the defendant, who was carrying two 24-packs of beer, one on each shoulder. When asked where he got the beer and how he paid for it, the defendant responded that he got it from a store up the street and that a “higher power” paid for it.

The officer handcuffed the defendant, read him his Miranda rights, and then asked several follow-up questions. The defendant admitted to stealing the beer. The officer then searched the defendant’s backpack, and found additional beer. Finally, the store employees who witnessed the theft were transported to the defendant’s location, and they positively identified him as the person who entered the store and stole the beer.

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In December of last year, a state appellate court issued a written opinion in an Arizona theft case involving a question about the admissibility of the defendant’s confession. Specifically, the court had to determine if the fact that the defendant, who did not speak English, validly waived her constitutional rights before agreeing to make a statement. Ultimately, the court concluded that the defendant was “adequately informed” of her Miranda rights, and affirmed her conviction.

According to the court’s opinion, detectives were investigating a claim that a person was making unauthorized withdrawals from an elderly woman’s account. Through their investigation, the detectives ended up arresting the defendant, a non-native English speaker who was originally from Thailand.

On the way to the police station, the detective spoke with the defendant to assess her fluency in English. She told him that she started to learn English in 1975, when she arrived in the United States, and that she had difficulty understanding the “hard words.” When they got to the station, the detective went over the defendant’s Miranda rights with her, a transcript of which was provided to the court. During the exchange, the defendant repeatedly explained that she did not understand what was going on, expressed an interest in not going to jail, and stated that maybe she should have an attorney present. After this initial exchange, the defendant provided a partial confession that eventually led to her conviction.

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When someone is arrested for a crime, such as robbery, it is up to the prosecution to determine what charges they will face. Unfortunately, it is not uncommon for the prosecution to overcharge a defendant. Typically, when a defendant is overcharged they will have far more charges than necessary, and of a more serious nature. Prosecutors may have several reasons when they overcharge a defendant; however, it is commonly understood that prosecutors overcharge at least in part out of a hope that the serious nature of the charges will persuade the defendant to consider pleading to a lesser offense. Thus, someone who is charged with an Arizona crime must understand the elements of that crime and the prosecution’s chances of proving it at trial.

Robbery is among the most overcharged offenses in Arizona. An Arizona robbery offense is committed when “in the course of taking any property …, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.” Simply stated, a robbery occurs when someone takes or attempts to take an object by force or threat of force. Another way of looking at a robbery offense is that it is an assault that is committed in the course of a theft. Notably, there is no requirement that the person charged with robbery be successful in their attempt to remove an item from another person.

There are several types of defenses to a robbery charge. In some cases, the eyewitness identification may be suspect and susceptible to attack. For example, often, robberies occur in a split second, and an eyewitness’s mental notes about what the alleged doer looked like may not be accurate. However, police will use the eyewitness’ description to stop anyone that matches that description. Once police stop someone they believe matches the description, there may be an issue with the suggestiveness of the identification. For example, if a witness is asked if a suspect was the person that robbed him, and the person is in handcuffs and surrounded by eight police officers, the witness may be subconsciously cued to believe that the suspect was the person who robbed them.

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Recently, the United States Supreme Court agreed to hear a case involving a defendant’s sentence under the Armed Career Criminal Act (ACCA). The ACCA is a federal law that provides for enhanced sentencing for someone who is convicted of a crime involving the use or possession of a gun, if the defendant has prior convictions for “violent felonies.” In recent years, there has been significant litigation over what constitutes a violent felony. The case is important for Arizona defendants because the Court’s decision may significantly affect potential sentences for many defendants charged with Arizona gun crimes.

The case arose out of an appeal from the U.S. Court of Appeals for the Sixth Circuit. According to that court’s opinion, the defendant was charged with possession of ammunition. The defendant was found guilty by a jury. At sentencing, the prosecution moved to sentence the defendant as a repeat offender under the ACCA. The prosecution claimed that the defendant had five prior violent felonies, including a 1982 conviction out of Texas for robbery. Although the defendant would typically only be eligible for a sentence of up to 10 years, because of his prior convictions, the court sentenced the defendant to 15 years.

After the U.S. Supreme Court declared part of the ACCA unconstitutional in 2015, the defendant appealed his sentence. The defendant claimed that under the post-2015 ACCA, several of his convictions no longer qualified as violent felonies. The court agreed, finding that two of the defendant’s convictions were no longer considered violent felonies. However, that still left the defendant with three violent felonies:  two Tennessee robberies and the Texas robbery. The defendant appealed, arguing that his Texas conviction for robbery should not have been considered a violent felony under the ACCA.

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Law Office of James Novak, PLLC
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