James E. Novak
Published on:

By

Restitution is when a court orders a defendant to pay a crime victim for their financial losses related to the crime. Unlike civil law, restitution is typically limited to the costs that the victim actually incurred. In a recent Arizona murder case, the state’s high court discussed the constitutional limits on the court’s ability to place a cap on the amount of restitution in a criminal case absent the victim’s consent. However, unlike the vast majority of criminal cases, this case discussed the crime victim’s constitutional rights, rather than the defendant. Of course, the court’s decision impacts criminal defendants in that it increases the amount of potential restitution they could be forced to pay.

The Facts of the Case

A detailed recitation of the fact is not necessary to fully understand the import of the court’s opinion. However, in summary, three defendants were charged with abusing and killing a younger family member. All three defendants plead guilty to a lesser offense. As a part of the plea agreement, the defendant would pay the victim’s family restitution. However, under the terms of the plea agreement, the maximum amount of restitution is limited to $500,000. The victim’s family objected to the cap on restitution, but the court upheld the cap and proceeded with the pleas. The victim’s family appealed the lower court’s decision.

On appeal, the court first addressed the state’s argument that the court should wait to see if the cap on restitution actually limited the recovery amount. However, the court rejected this argument, noting that there is no requirement for caps on restitution.

Continue reading →

Published on:

By

Earlier this year, a state appellate court issued an opinion in an Arizona child molestation case. In its opinion, the court affirmed the lower court’s decision to deny the defendant’s motion to suppress two identifications made by the complaining witness.

The Facts of the Case

According to the court’s opinion, the eleven-year-old victim was sleeping on an Amtrak train on the way back from a volleyball tournament. At some point, she awoke to someone touching her vagina over her jeans. The man asked the girl to come with him to the back of the train, but the girl refused. Instead, she woke up her coach ad pointed out the man who touched her.

The girl’s coach notified the train conductor. The conductor found the defendant, who matched the description provided by the girl. The conductor brought the defendant to the girl, and she positively identified him. When the train arrived in Flagstaff, the police were waiting. Police officers removed the defendant from the train, and then asked the girl if he was the man who had touched her. Again, she indicated that he was.

Continue reading →

Published on:

By

Recently, a state appellate court issued an opinion dealing with the admissibility of a defendant’s prior record. Not surprisingly, whether the prosecution will use the defendant’s past convictions against them at trial is a common question for defendants facing Arizona criminal charges. In any criminal case, the rules of evidence govern what evidence is admissible. Under Arizona Rule of Evidence 609, a party’s past conviction is only relevant – and only admissible – in limited situations. It is important that those facing serious charges understand how Rule 609 works.

First, it is important to understand that, generally speaking, a defendant’s prior record is not relevant to a current case. However, if the defendant decides to testify, they then become a witness. Rule 609 governs when any witness can be impeached by their past criminal convictions. Thus, while Rule 609, as discussed in this context, applies to criminal defendants, the rule applies equally to non-defendant witnesses.

For a prior conviction to be admissible, it must meet several criteria. In part, admissibility depends on the type of crime that was the subject of the prior conviction. For crimes punishable by “death or by imprisonment for more than one year,” the conviction must be admitted if the conviction’s probative value outweighs its prejudicial effect to the defendant.

Continue reading →
Published on:

By

Earlier this month, a state appellate court issued an opinion requiring the court to determine whether the defendant’s Miranda rights were violated when the police took a statement from the defendant while he was not in custody. Ultimately, the court concluded that Arizona criminal law permitted the officers’ actions, and that the statement was properly admitted into evidence at trial.

The Facts of the Case

According to the court’s opinion, the defendant was a handyman who was working for a landlord. One day, the defendant and the landlord’s property manager were scheduled to meet up so that the defendant could give the property manager rent he had collected from tenants. During the meeting, which took place in a home, the defendant shot the property manager with a shotgun, killing him instantly.

Later that day, the defendant’s friend came over to the home, and the defendant showed his friend the body. The friend helped the defendant bury the body in the backyard. The defendant later sold two of the property manager’s rings to a jewelry store. The jewelry store owner later saw a picture of the victim wearing the rings, and provided them to detectives.

Continue reading →

Published on:

By

Last month, a state appellate court issued a written opinion in an Arizona manslaughter case discussing the government’s contention that the lower court improperly admitted certain evidence regarding the victim’s conduct in the moments leading up to a fatal traffic accident. Ultimately, the court concluded that the victim’s actions were not a superseding cause of the accident, and thus the evidence at issue was not admissible.

The Facts of the Case

According to the court’s opinion, the defendant was driving well over the speed limit when he struck the rear-end of another vehicle that was making a left turn. Neither the driver of the other vehicle, nor his seven-month-old son, were properly restrained, and both were ejected from the car. The driver was seriously injured, and his son died. Officers found a marijuana pipe in the car, and the driver later tested positive for THC.

In a pre-trial motion, the prosecution asked the court to prevent the defendant from pursuing a superseding-cause theory and admitting evidence of the victim’s possible impairment. The prosecution also argued that evidence suggesting the victim failed to yield when making the left-turn was admissible, but that, as a matter of law, it was not a superseding cause of the accident.

Continue reading →

Published on:

By

Earlier this month, a state appellate court issued an opinion in an Arizona sexual assault case involving the defendant’s claim that evidence of the alleged victim’s mental state was improperly and prejudicially admitted. Ultimately, the court determined that the victim’s mental state was relevant, as it went to her ability to consent to sex.

The Facts of the Case

According to the court’s opinion, the defendant was a friend of the alleged victim’s family. The alleged victim was a 66-year-old woman with schizoaffective disorder. Evidently, the defendant took the woman on a walk to a nearby home where he had sex with her despite her telling him not to.

Later that day, the woman told a family member that the defendant had raped her. She went to the hospital, where medical professionals performed a rape kit. While there, she told the police what happened.

Continue reading →

Published on:

By

Earlier this year, a state appellate court issued an opinion in an Arizona homicide case discussing the propriety of the prosecution’s use of cell location site information (CLSI) taken from the defendant’s cell phone. Ultimately, the court reviewed recent Supreme Court case law, concluding that the prosecution’s use of the CLSI data did not violate the defendant’s constitutional rights, affirming his conviction.

The Facts of the Case

According to the court’s opinion, a man was shot and killed outside a club as he sat in his car. Evidently, he was talking to a woman, CK, when two men walked up and shot the man. Police retrieved the cell phones of several witnesses, including CK. During their investigation, detectives discovered that one of the witnesses was in contact with a phone number that belonged to the defendant.

Police officers presented a judge with an ex parte order, seeking to obtain the defendant’s cell phone records. The court signed the order, noting that there was probable cause to believe that the information requested would be relevant to the crimes. Detectives used the information provided by the defendant’s cell carrier to link him to the crime. The defendant filed a motion to suppress, arguing that the CLSI information was illegally obtained without a warrant. The trial court denied the defendant’s motion, finding that the request was supported by probable cause. The jury convicted the defendant of murder, and the defendant appealed.

Continue reading →

Published on:

By

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.

Continue reading →
Published on:

By

Recently, a state appellate court issued an opinion in an Arizona murder case discussing whether the defendant’s statements to police were taken in violation of his Fifth Amendment right to be free from self-incrimination. Ultimately, the court determined that the admission of the defendant’s statements was proper because the police officers taking the statements did not violate the defendant’s rights in the process.

The Facts of the Case

According to the court’s opinion, in October 2015, police found a 75-year-old man stabbed to death in his home. The investigation led to the arrest of the defendant. After his arrest, detectives claim they read the defendant his Miranda warnings, however, the defendant alleged that the warnings were not read to him. While parts of the interview were recorded, the reading of the Miranda warnings were not.

Initially, the defendant denied all involvement, however, he later admitted to killing the victim because he thought the victim “was a child molester.” The defendant also admitted to stealing the victim’s truck and throwing the murder weapon in the Colorado River. The defendant was arrested, charged, and ultimately convicted of murder.

Continue reading →

Published on:

By

Recently, a state appellate court issued an opinion in an Arizona sex offense case involving the defendant’s motion to suppress statements that he made to police after his arrest. The defendant claimed that his statements must be suppressed because they were taken without police having provided him with his Miranda warnings, as required by the United States and Arizona constitutions. Ultimately, the court concluded that police did not violate the defendant’s constitutional rights in taking the statement, and affirmed the defendant’s conviction.

The Facts of the Case

According to the court’s opinion, the defendant lived with his girlfriend, as well as her daughter, the complaining witness, between 2004 and 2007. During this time, the defendant’s girlfriend’s daughter was between the ages of three and six. In 2014, the young girl disclosed to her grandmother that the defendant had sexual contact with her several times back when they lived in the same home.

After the grandmother contacted the police, two officers went to the defendant’s workplace to talk with him. The officers asked to speak with the defendant, who did not verbally respond, but followed the officers to a room where they interviewed him. One of the officers told the defendant he was not under arrest, and began to question him.

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 – 2021, The Law Office of James E. Novak
JUSTIA Law Firm Blog Design