Arizona Criminal Defense Attorney Blog

September 20, 2022

Arizona Court Denies Defendant’s Appeal in Arizona Murder Case, Affirming His Conviction and Sentence

In a recent Arizona murder case, the defendant unsuccessfully appealed his conviction and sentencing for second-degree murder. In the appeal, the defendant argued on many counts, challenging the lower court decision through the Arizona separation-of-powers doctrine, disputing evidence introduced at trial, filing motions to suppress evidence, disputing jury instructions, and arguing that his sentencing was also improper. The appeals court denied his appeals and affirmed both his conviction and his sentence.

Facts of the Case

According to the opinion in May of 2015, the defendant, a Lance Corporal in the United States Marine Corps, lived with his wife and twenty-month-old step-daughter at the Marine Corps Air Station in Yuma. On May 18, his wife spent time playing with the daughter, and neither she nor their neighbor observed any injuries on her. Photographs taken by the defendant’s wife that day also do not reveal any evidence of injuries to her daughter. That night when the defendant picked up his wife, she was upset that he did not bring her daughter because she did not like leaving her daughter alone. The defendant told her during the ride home that he had spanked the daughter because she had been misbehaving. When they arrived home, the defendant’s wife went directly to bed, while the defendant checked in on the daughter before going to sleep.

The next morning, when the wife went in to see her daughter after the defendant had left for work, she found her “laying halfway off the bed with her head on the floor.” Her daughter’s body was cold and stiff. She saw marks that resembled burns and called 911. When paramedics arrived on the scene they were unable to resuscitate the daughter, who had no pulse. She was then transported to the hospital where she was pronounced dead. The defendant was subsequently interviewed and investigated by Naval Criminal Investigative Service (NCIS) agents as well as the Yuma Police Department. During his interviews with the NCIS agents, the defendant made several incriminating statements and signed a waiver relieving them of the need to advise him of his constitutional rights.

September 10, 2022

Arizona Defendant Loses Appeal in Case Involving Aggravated Assault Against Police Officer

by James E. Novak, P.L.L.C.

Late last month, an Arizona Court of Appeals ruled on a defendant’s appeal of his conviction for aggravated assault against a police officer. In writing its decision, the court considered the defendant’s argument that his trial result should be overturned due to unfair testimony offered by a police officer on the stand. Ultimately, the court disagreed with the defendant’s contentions, and the original verdict was affirmed.

Facts of the Case

According to the opinion, police were responding to a report of theft in the parking lot of a Family Dollar store when they spotted the defendant in this case. The defendant matched the description of the suspect they were looking for, so they approached him to investigate the situation. As soon as the officers approached, the defendant began running away, at which point one officer took the defendant by the arm and reached for his handcuffs.

Subsequently, the defendant swung his elbow back towards the officer and pushed the officer away. The officer fell to the ground, and the defendant continued to run. The officer was later treated at the hospital and diagnosed with a head injury as a result of the incident.

August 31, 2022

10 Instances Where Breathalyzer Tests Can Be Inaccurate

by James E. Novak, P.L.L.C.

Quantifying the impact of alcohol upon a person has long been a goal of the scientific community, with studies dating back as early as 1874. In the contemporary legal setting, the breathalyzer test, also known as alcohol breath testing, is touted as a highly accurate and definitive tool for detecting Blood Alcohol Content (BAC). BAC is a vital measure for determining if someone is operating a vehicle under the influence of alcohol. Unfortunately, breathalyzer tests are not always as accurate as they are portrayed to be. Here are 10 instances where breathalyzer tests can miss the mark:

Breath machines are responsive to temperature and will provide inaccurate readings if not calibrated to adjust to a change in ambient temperature.
The pattern of breathing may affect the validity of a test. Holding your breath for 30 seconds could result in an increase of a BAC of .07% to .081% or more.

August 11, 2022

Arizona Court Denies Defendant’s Appeal in Arizona Drug Case, Rejecting Defendant’s Argument That He Was Categorized Incorrectly

by James E. Novak, P.L.L.C.

In a recent appellate opinion in an Arizona drug case, the defendant unsuccessfully appealed his conviction of one count of possession or use of dangerous drugs and one count of possession of drug paraphernalia with the aggravating circumstance that he was on release from confinement and had historical prior felony convictions. In the appeal, the defendant argued that he was incorrectly charged, as the two prior felony convictions used to enhance his sentence did not qualify as historical prior felony convictions. The appeals court affirmed the lower court decision, finding that because the defendant did not argue that his prior convictions were too remote in time to qualify as historical prior felony convictions, the issue could only be reviewed for fundamental error. Subsequently, the appeals court ruled that defendant did not show that the superior court did not commit a fundamental, prejudicial error by sentencing him as a Category 3 offender.

Facts of the Case

According to the opinion, the defendant was arrested and charged with possession or use of dangerous drugs and possession of drug paraphernalia. The defendant was on parole at the time and had at least three prior felony convictions, placing him in Category 3 as a repeat offender. His prior convictions were possession of a dangerous drug, a class 4 felony, committed on April 2, 2016, possession of drug paraphernalia, a class 6 felony, committed on November 20, 2013, and a class 6 felony, committed on December 26, 2013.

The Decision

On appeal, the defendant argued that his convictions for possession of drug paraphernalia, committed on November 20, 2013, and December 26, 2013, do not qualify as historical prior felony convictions because he committed those offenses more than five years before he committed the present offenses on June 2, 2019. In superior court, the defendant and defense counsel expressly stated that they acknowledged his parole status and his three prior felony convictions. The appeals court found that because the defendant did not argue to the superior court that his 2013 drug offenses were too remote in time to qualify as historical prior felony convictions, the appeals court could only review the decision for fundamental error. To prevail under fundamental error review, the defendant must establish both that fundamental error exists and that the error caused him prejudice. Fundamental error review goes to the foundation of the case, deprives the defendant of a right essential to his defense, or is of such magnitude that the defendant could not possibly have received a fair trial. The appeals court acknowledged that the improper use of a conviction as a historical prior felony conviction for enhancement purposes constitutes a fundamental error.

July 26, 2022

Arizona Defendant Unsuccessfully Argues Against Unfair Identification Method on Appeal

by James E. Novak, P.L.L.C.

In a recent weapons case coming out of an Arizona court, the defendant argued on appeal that the pretrial identification used in his case was both suggestive and unreliable. According to the defendant, the identification should have been conducted in a more objective manner, and his convictions for misconduct involving weapons should be overturned on these grounds. The court of appeals disagreed with the defendant and ultimately affirmed the original convictions.

Facts of the Case

According to the opinion, the defendant was walking with a woman one evening when he allegedly began firing shots into traffic on the road. A driver, who happened to be close to the scene at the time, observed the defendant firing into traffic. He immediately pulled over at a convenience store and called 911, giving the operator a general description of the defendant and of what he had seen.

July 11, 2022

Defendant in Arizona Drug Case Loses Appeal, Despite Argument That Evidence was Insufficiently Authenticated

by James E. Novak, P.L.L.C.

In a recent case coming out of an Arizona court, the defendant appealed her convictions and sentences for several drug-related crimes. On appeal, the defendant specifically argued that the prosecution failed to provide a sufficient foundation for some of the evidence presented against her at trial. After considering this argument, the court of appeals affirmed the defendant’s original convictions.

Facts of the Case

According to the opinion, a confidential informant reached out to the police and offered to set up a drug deal with a specific dealer he knew – that dealer later became the defendant in this case. When the police officers agreed to the set-up, the officers met up with the informant and observed as he reached out to the defendant to organize the logistics of the transaction. The officers then drove the informant to the previously agreed-upon location, which was a parking lot nearby.

The officers observed the drug deal take place, then picked up the informant and retrieved the drugs as well as the recording device that were both on his person. The officers then obtained a search warrant to retrieve the defendant’s private Facebook messages. After further investigations, the defendant was charged with the sale of a dangerous drug as well as participating in a criminal syndicate.

June 26, 2022

Arizona Court Denies Defendant’s Appeal of Denial of Motion for Mistrial

by James E. Novak, P.L.L.C.

In a recent gun case coming out of an Arizona court, the defendant’s appeal of the court’s decision in his case was denied. The defendant was originally charged with aggravated assault and disorderly conduct, and he was found guilty of disorderly conduct after a jury considered the facts of his case. On appeal, the defendant argued that the trial court should have granted him a mistrial because of one officer’s unfair and inaccurate testimony. The higher court disagreed with the defendant, affirming his original conviction.

Facts of the Case

According to the opinion, police officers arrived at the defendant’s apartment one evening in 2019 after receiving six emergency phone calls about an individual with a weapon. When the officers got out of their vehicles, they saw the defendant, who matched the descriptions that the 911 callers had provided. The defendant was walking in circles with two guns hanging from his waistband. One witness at the scene told the officers that the defendant had pointed the gun in his direction. Another witness insisted that he had not seen the defendant point the gun at anyone.

Regardless of whether the defendant had pointed the gun at any individuals, the officers recognized he posed a direct threat to the people around him. After finding four additional magazines on the defendant’s person, the officers arrested him and charged him accordingly.

June 10, 2022

Arizona Defendant in Murder Case Successfully Moves for New Trial

by James E. Novak, P.L.L.C.

In a recent murder case coming out of an Arizona court, the defendant successfully appealed his guilty conviction and moved for a new trial. According to the defendant, the trial court made a mistake when it failed to instruct the jury that he was eligible for a certain kind of defense applying to those who act violently in the hopes of preventing a crime from occurring. In the absence of this instruction, said the defendant, his trial was incomplete and unfair. The court of appeals agreed that the defendant was eligible for the crime prevention instruction and reversed the conviction.

Facts of the Case

The defendant shot a man in June 2017 after having heard from others in the community that the man wanted to kill him. A few days before the shooting, the defendant confronted the man about these statements, and the man punched the defendant in the nose with a sharp object.

On the night in question, the man found the defendant in a residential neighborhood. The two individuals began arguing, and the man threatened the defendant by saying, “next time you pull a gun on me, you better shoot me.” The men angrily left the altercation, but the man approached the defendant again a few hours later. The man swelled out his chest, again verbally threatening the defendant. The defendant immediately shot the man once with a shotgun he had in his truck. The man later died from the wound.

May 20, 2022

Arizona Defendant Loses Appeal in Aggravated Assault Case

by James E. Novak, P.L.L.C.

In a recent aggravated assault case coming out of an Arizona court, the defendant appealed his guilty verdict. On appeal, the defendant argued that the trial court failed to properly instruct the jury that decided his case. The higher court agreed that the trial court should have given more instruction to the jury, but ultimately decided that the defendant would have been convicted either way.

Facts of the Case

According to the opinion, the defendant in this case was charged with aggravated assault after he approached an acquaintance in the drive-through of a restaurant and punched him in the face. The acquaintance responded by punching the defendant back, which led the defendant to grab a knife, cut the acquaintance’s finger and wrist, and slice through the acquaintance’s shirt.

Eventually, others in the drive-through intervened, and the defendant ran from the scene. The acquaintance himself caught up to the defendant and brought out his own knife, but then put it down before taking any action. Officers came to the scene and the defendant was arrested. The acquaintance went to the hospital and received seven stitches on his finger and one on his wrist.

May 10, 2022

Arizona Court Denies Defendant’s Appeal in Unlawful Flight Case

by James E. Novak, P.L.L.C.

In a recent case coming out of an Arizona court, the defendant unsuccessfully appealed his guilty conviction for one count of unlawful flight from a police officer. Originally, a police officer attempted to pull the defendant over for failing to stop at a stop sign. When the defendant’s car took off, the officer lost sight of the driver but eventually located the defendant through a photo identification process. The defendant was charged and convicted, and he promptly appealed.

The Facts of the Case

According to the opinion, a police officer was patrolling in his car one evening when he saw a white truck roll through a stop sign. The officer activated his lights and tried to initiate a traffic stop. The truck, being driven by the defendant, at first pulled over onto the road’s shoulder but then quickly sped away. The officer began chasing the defendant by car, at one point observing the defendant through the truck’s lower driver’s side window.

A few minutes later, the truck stopped in front of a home and the driver left the vehicle. Again, the officer caught sight of the defendant in the headlights of his car. The defendant walked towards a fence by the home, and the officer lost sight of him.