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Witness Tampering in Arizona Aggravated Assault Case

In a recent unpublished Arizona appellate opinion, the defendant appealed a conviction for aggravated assault, for which he was sentenced to a term of 8 1/2 years imprisonment. The case arose when the defendant’s brother rode a bike to their mom’s house, where his brother lived with the mom. The brother had previously had fights with the defendant. When he came up to the gate, he found it was locked. He realized his mother wasn’t going to come out, so he started to ride off on his bike. His brother fired a gun at him twice, hitting him in the right leg.

The weapon wasn’t located, but police found a bullet in the defendant’s pocket and a bullet in a bag he was carrying right after the shooting. A detective met with the victim in his hospital room and saw a circular wound that looked like a gunshot wound on the victim’s leg. He also observed an x-ray that showed a bullet inside his leg. The victim told the detective that “Cotton” shot him—Cotton was the defendant’s nickname. The defendant was charged with aggravated assault with a deadly weapon, which is considered a dangerous offense.

In jail, the defendant called six family members, asking to make sure his brother wouldn’t come to trial to testify against him. He told his mother, sister, niece, and brother the date of the trial and said that if his brother didn’t show up, he wouldn’t be convicted. He also asked his mother to schedule a family meeting with the brother so that she could remind him that if he testified, the defendant would miss family Christmases. He also asked his niece to tell his brother that he would be disowned if he testified. His sister told the defendant that she talked to the victim, and the victim wasn’t going to be a problem. The defendant made many other efforts to get the victim not to show up at trial.

The prosecution made a motion before trial to admit the victim’s pretrial statements identifying the defendant as the shooter in case he didn’t come to trial. The prosecution argued that the defendant’s wrongful actions to keep the victim unavailable were basically an equitable forfeiture of his rights under the Confrontation Clause. The defendant didn’t file a written response. The victim also didn’t show up at trial. The court held a hearing at which the defendant’s mother, sister, and niece testified and denied that they’d helped the defendant keep the victim from testifying.

When the hearing was over, the trial court determined that this testimony was totally lacking in credibility. It found there was convincing circumstantial evidence that the defendant had gotten the victim to be unavailable. The court granted the prosecution’s motion in limine and let the victim’s pretrial statement to the detective into the record. The defendant was convicted and appealed.

The defendant argued that his Confrontation Clause rights were violated because the court had used the forfeiture by wrongdoing doctrine to allow the detective to testify as to what the victim said. Under the Confrontation Clause of the Sixth Amendment, the accused has the right to confront witnesses. However, the defendant can give up this right by committing acts of wrongdoing. Usually, there is a rule against hearsay—out of court statements used to prove the truth of what is being asserted. However, an exception to this general rule is for out of court statements offered against a party who intentionally and wrongfully causes the speaker’s unavailability as a witness. This is called the forfeiture by wrongdoing doctrine.

Four factors are used to decide whether this doctrine applies:  (1) the witness is unavailable, (2) the defendant’s actions are considered wrongdoing (an example is witness tampering), (3) the defendant engaged in witness tampering, and (4) the witness tampering was done intentionally and successfully to get the victim to be unavailable. When these factors are proved to be more likely than not true, the defendant’s objections based on the Confrontation Clause and hearsay can be overruled.

The defendant argued the state hadn’t made a goodfaith effort to get the victim to attend trial. The appellate court disagreed. The detective had offered to give the victim a ride to court and given the victim a cell phone and his phone number in case of any issues. The defendant had tried to get help from six relatives to stop the victim from testifying. The witnesses who testified at the hearing weren’t credible.

Furthermore, the appellate court explained that an offense is considered dangerous under A.R.S. § 13-105(13) if it involves discharging a deadly weapon, including a firearm. In this case, it would be reasonable to decide that the aggravated assault involved the discharge of a firearm. The victim had felt a sharp leg pain and told the detective he’d been shot by the defendant, and bullets were found on the defendant. The conviction was affirmed.

If you face aggravated assault charges in Tempe, Chandler, Gilbert, or Scottsdale, consult attorney James E. Novak. He is an aggressive former Maricopa County Prosecutor who will use insights obtained as a prosecutor to determine a strong strategy. He offers a free initial consultation for those facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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