How to Avoid Self- Incrimination while in Custody for Aggravated Assault Charges

3 self-incrimination traps to avoid; How to invoke your rights; Aggravated assault penalties in Arizona; How to resolve your criminal charges

Arizona jails and prisons have measures in place to assure no criminal activity is in progress related to the defendant’s communications.

Authorized jail and prison officials screen mail, and record suspects’ phone calls.

The information they obtain may be used to prosecute pending or future criminal charges. The exception to this would be privileged  communications between a defendant and their criminal attorney.

Here are three things to keep in mind to help you avoid self-incrimination:

  1. Inmate phone calls are all recorded. Any information in those calls can be used against you, with few exceptions. Persons with whom you speak with could potentially be called upon to testify.
  2.  Formal or informal conversations with police, jail, prison officials, guards, fellow inmates, or others can be used against you.
  3.  While incarcerated, authorized persons are permitted to use legal methods to open, read, and monitor mail.

Seemingly innocent statements can be used against you to prosecute pending or future charges.  There are a number of reasons for this.  Police and prosecution are not just looking for statements that implicate a suspect in a crime.  They can also use it to challenge the credibility of a witness.

Refraining from discussing your case with others not only protects your rights, but it helps others to avoid being subpoenaed for questioning about statements you made to them.  Therefore, you should only discuss details of your case with your criminal defense attorney, or while they are present. Failing to do so, will strengthen the prosecution’s case against you, which could result in a swift and harsh conviction.

  How do I invoke my right to remain silent? 

To invoke your right to remain silent you must communicate your intentions.   This can be done verbally, in writing, electronically or in any way that clearly indicates that you wish to invoke your right to remain silent. Simple remaining silent is not enough, and can result in the perception that you are being uncooperative.

 What are the penalties if I’m convicted for aggravated assault? 

If you face Aggravated Assault Charges, it is important that you consult an experienced criminal defense attorney as soon as possible, preferably before your first court appearance.  Felony assault charges can range from Class 6 to a Class 2 felony.   Sentencing guidelines fall within one of two categories 1) Dangerous or 2) Non-dangerous. Below are the sentencing ranges for both dangerous and non-dangerous aggravated assault categories:

Non-Dangerous Felony Assault

Class 6  felony – Minimum 6 month;  Maximum 18 months in prison;

Class 5 felony – Minimum 9 months: Maximum 2 years in prison;

Class 4 felony – Minimum 18 months;  Maximum 2 years in prison;

Class 3 felony – Minimum; 2.5 years;    Maximum 7 years in prison;

Class 2 felony – Minimum 4 years; Maximum 10 years in prison;

Dangerous Felony Assault

Class 6 felony – Minimum 18 months; Maximum 3 years in prison;

Class 5 felony – Minimum 2 years; Maximum 4 years in prison;

Class 4 felony –  Minimum 4 years; Maximum 8 years in prison;

Class 3 felony –  Minimum 5 years; Maximum 10 years in prison;

Class 2 felony – Minimum 7 years; Maximum 21 years in prison;

The ranges above do not include mitigated factors, aggravated factors, presumptive sentencing, or repeat offense sentencing.

Fines can range up to $150,000.00 per defendant. The court may also order restitution, other statutory penalties, and those deemed necessary under other sentencing provisions.

What determines the classifications for Aggravated Assault Charges?

The classification of charges, and severity of the penalties will be based a number of factors including:

  • The nature and severity of the victim’s bodily injury;
  • If a fatality resulted from the assault;
  • Whether or not the assault involved use of a deadly weapon;
  • The age of the victim and whether or not they were a minor;
  • Whether or not the victim was restrained and unable to get free during the assault;
  • First time or repeat felony assault offense;
  • If the defendant knows or has reason to know occupation for which the victim is engaged falls A.R.S. 13-1204, and was performing their official duties (police, peace officer, firefighter, teacher, medical care practitioner, public defender, or other judicial officers);
  • Whether or not the defendant committed the assault while in or out of law enforcement custody.

Case Review

The case began after the victim and the defendant, as well as their girlfriends, drank alcohol and gathered for two days in an empty lot.  Early on the second morning, the defendant stabbed the victim in the back repeatedly.  The victim was able to take the knife away from his assailant, and the defendant fled the scene.  The victim survived after undergoing surgery followed by an 8 day hospitalization.

The police found the defendant walking down the road after learning of the stabbing. When they asked him for ID, he gave them false names and birthdates. He later told them he’d been knocked out by a man in a hoodie and denied that he’d stabbed anybody. The victim advised the police that he was stabbed by a person with a nickname the defendant gave them. The defendant was arrested for the stabbing.

Before trial, the defendant spoke with a woman from jail, at which time he inquired as to whether or not the victim planned to testify.  The defendant told the woman in several different phone conversations that the victim would be subject to retaliation if he testified.  After the woman communicated this to the victim, he decided not to pursue charges, though he initially was going to pursue them. The defendant then advised what steps the victim needed to take to get the charges dismissed.

At trial, however, a fellow inmate testified that the defendant confided in him about the stabbing and thought the victim should have died because he tried to kill him. The witness also advised that the defendant advised him that if the victim testified, others would seek revenge and harm the victim. Finally, the witness testified that the defendant told him that he buried the knife following the stabbing.

Though the police were unable to find the knife, the defendant was convicted of aggravated assault and false reporting.  The jury found the defendant guilty of aggravated assault.  The jury also decided that the crime classified as a “dangerous offense” because it  produced emotional, financial, and physical harm in the victim. It also found he’d been convicted of two prior felonies, and therefore sentenced him to an aggravated sentence of 12 years in prison for aggravated assault along with a 60-day concurrent sentence for false reporting.

The defendant appealed his convictions arguing that it was a  mistake to permit the prosecutor to ask the fellow inmate about the nature of his prior convictions. However, because the defendant hadn’t objected to this during trial, the court found that a fundamental error did not occur. The inmate had testified he came to know the defendant during incarceration through his role as jailhouse lawyer.  The fellow inmate had a history of performing this work in the prison for over 30 years. The testimony was not elicited to impeach credibility by the state.  The amount of time he’d been in prison and why, was offered by the prosecutor to show that other inmates trusted him for legal advice. It showed why the defendant had trusted him, and why he had different details which contradicted the defendant’s defenses.

The defendant also argued it was a mistake for the judge to instruct the jury it could consider facts suggesting he concealed evidence to decide his guilt. He argued that concealing evidence after a crime didn’t prove guilt on its own. The appellate court explained that a concealment instruction was appropriate if the defendant’s actions manifested his consciousness of guilt. In this case, the prosecution presented testimony he concealed the knife when he heard sirens coming, which showed a consciousness of guilt.

The defendant also argued it was inappropriate for a jury instruction to be given about his threats to the victim. The appellate court explained evidence of a threat against a witness was relevant in a criminal case to show the defendant tried to suppress evidence that would adversely affect him, and it was admissible to show conduct that indicated he was conscious of his guilt. For these and other reasons the defendant’s conviction and sentences were affirmed.

How a criminal defense attorney can help resolve your case in Mesa AZ 

The most important way to protect your rights in aggravated assault charges is to retain an experienced and skilled Criminal Defense Attorney, like James Novak of The Law Office of James Novak, PLLC Tempe AZ, to represent you in the Aggravated Assault Charges.

The State of Arizona egregiously prosecutes felony assault crimes because they involve serious offenses against victims.  A conviction is life altering and will jeopardize your future and freedom for years.

No matter how serious the aggravated assault charges are, you still have the right to plead not-guilty, and to retain legal representation to defend your charges.  Once retained, you should follow your defense attorney’s guidance and instructions particularly when they relate to communications in or out of custody.

There are two sides to every story, particularly when it comes to assault cases.  If retained, James Novak will present your side of the story, and be your voice in the criminal justice system.  He will gather evidence available, and look for evidence that could help then outcome of your case.

James Novak of The Law Office of James Novak PLLC Tempe AZ is an experienced criminal defense attorney and former Maricopa County Prosecutor.  He practices solely in criminal defense, and is highly skilled in defending felony assault charges.  If retained James Novak will protect your rights, provide a strong defense, and work to get the most favorable outcome on your behalf.

Attorney James Novak offers a free initial consultation for active charges in  Mesa, and Phoenix east valley cities.  Call (480) 413-1499 or complete our contact form to discuss your criminal charges, and find out how James Novak can help you resolve your case.


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