James E. Novak
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If you were convicted of a felony in Phoenix and are considering filing for post-conviction relief, a recent Arizona Court of Appeals ruling makes one thing clear. Once the court rules on your petition, your opportunity to revise it is limited. After the initial decision, you must act quickly and with strong justification if you want to change your petition. But even better is to avoid the need for a post-conviction proceeding by handling the case right the first time around.

Court Rejects Effort to Amend Years After Sentencing

The petitioner in this case had been found guilty of serious offenses, including second-degree murder, kidnapping, and burglary. His attorney presented a guilty except insane defense under Arizona law. The jury returned mixed verdicts. He was sentenced to decades in prison, including life for one of the murder counts.

After losing his appeal, the defendant filed a timely petition for post-conviction relief. He argued that his trial attorney failed him by not challenging the state’s timeline and by neglecting to question key witnesses. His attorney, he claimed, should not have moved forward with the mental health defense without thoroughly investigating the facts.

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If you are charged with a serious crime decades after it allegedly occurred, you may wonder how law enforcement identified you. In Arizona, courts allow DNA hits from government databases to be used in connecting people to cold cases. While this evidence can be robust, it also raises concerns about prejudice, assumptions, and whether it implies a history of criminal activity. In a recent ruling, the Arizona Court of Appeals held that DNA evidence from a database may be introduced at trial if it is relevant and not unduly prejudicial.

In State v. Vergara, the person on trial was charged with kidnapping, sexual assault, and aggravated assault with a deadly weapon. These charges stemmed from an incident that took place nearly 30 years before law enforcement made an arrest. The charges came after a DNA profile submitted to a database produced a match. At trial, the defense objected to the use of any testimony suggesting the DNA came from a criminal database, arguing that it implied a prior record and prejudiced the jury. The trial court allowed the testimony, and the appeals court upheld that decision.

DNA Hits Can Be Used to Explain How Police Identify Suspects

The appeals court emphasized that prosecutors may explain how law enforcement came to suspect someone, especially when a long time has passed since the alleged offense. In this case, the match between DNA evidence from the original crime scene and a DNA profile in a database helped explain the investigative process. The court ruled that the testimony helped rebut the theory that officers had unfairly targeted the wrong person without justification.

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In serious felony trials in Arizona, the issue of what evidence is admitted or excluded can make all the difference between a conviction and an acquittal. The rules governing evidence are complex, and while they are bound by laws, the admission of evidence often involves a great deal of discretion by the judge. This process can be much messier than it appears, and even seemingly minor errors can have significant consequences.

A recent case involving a defendant convicted of first-degree murder highlights the importance of proper evidence handling and the challenges of appealing a conviction based on improper evidence admission. The defendant in this case appealed his conviction, arguing that certain evidence should not have been presented to the jury. The case underscores the critical role that skilled criminal defense attorneys play in ensuring a fair trial and preserving the right to appeal.

The case began with a tragic incident in which the defendant and a co-defendant traveled from Las Vegas to Scottsdale armed with a handgun and a makeshift silencer. They visited a home under the guise of delivering a gift basket and poinsettia plant. When the victim opened the door, the co-defendant forced his way inside and attacked her. The defendant, waiting nearby, shot and killed the victim before attempting to shoot others in the home.

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In the United States, the standard of proof required to prevail in legal actions varies depending on the type of case. Criminal cases are held to the highest standard: proof beyond a reasonable doubt. This means that the prosecution must prove the defendant’s guilt to such a degree that there is no reasonable doubt in the mind of a rational person. This standard is much stricter than the preponderance of the evidence standard used in civil cases, which only requires that a fact is more likely true than not, or the clear and convincing evidence standard, which falls somewhere in between. Jurors in criminal trials are explicitly instructed to apply this rigorous standard, as it is a cornerstone of the justice system designed to protect the rights of the accused. However, even with these instructions, misunderstandings or misapplications of the standard can occur, as seen in a recent Arizona appellate case involving a man convicted of drug trafficking crimes.

The case began when a man was pulled over for speeding on an Arizona interstate. During the traffic stop, the officer noticed inconsistencies in the man’s story about his travel plans and the identity of his passenger. The officer eventually asked for consent to search the vehicle, which the man initially refused. However, after further questioning and the arrival of a K-9 unit, the man consented to the search. The search revealed a significant quantity of methamphetamine and fentanyl in luggage found in the car. The man was arrested and charged with transportation of dangerous drugs for sale and transportation of narcotic drugs for sale. At trial, the man testified that he had no knowledge of the drugs and claimed he was unaware of the luggage’s contents. Despite his testimony, the jury found him guilty, and he was sentenced to prison. He later appealed his conviction, arguing that the prosecutor had misstated the reasonable doubt standard during closing arguments.

On appeal, the defendant argued that the prosecutor’s use of the phrase “reasonable likelihood” instead of the legally required “real possibility” language in the jury instructions had misled the jury about the burden of proof. The appellate court acknowledged the importance of the reasonable doubt standard and the need for precise language when explaining it to jurors. However, the court found that the defendant had not preserved this issue for appeal because his trial counsel had failed to object to the prosecutor’s statements at the time. As a result, the court reviewed the issue for fundamental error, which is a much higher bar to clear. The court ultimately concluded that even if the prosecutor’s phrasing was incorrect, the error was not prejudicial because the jury had been properly instructed on the reasonable doubt standard both verbally and in writing. The defendant’s conviction was upheld, and he will be required to serve his sentence.

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Violent crimes can be tricky to litigate and to defend in court. One source of recent conversation in the Arizona criminal legal sphere has been the crime of aggravated assault, and whether hurting multiple people through one assault counts as multiple crimes or only one crime. The answer to this question matters because, in general, the more charges a person faces, the more convictions he might have on his record and the more time he might spend in jail or prison. Recently, an Arizona court addressed this question as it relates to one person firing one shot that then hits and injures multiple people.

Victim-Driven v. Conduct Driven Offenses

If, during the course of committing a violent crime, a defendant fires one gunshot and injures multiple people from that one shot, the defendant is still eligible to face multiple convictions of assault. As an Arizona court explained in its recent ruling, assault is known as a “victim-driven offense” as opposed to a “conduct-driven offense.” For a conduct-driven offense, a person firing one shot might be eligible for only one conviction, no matter how many people are injured. For a victim-driven offense, though, it matters how many individuals were harmed by the shot when the State decides how many charges to bring against the defendant.

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If a police officer initiates a traffic stop for an alleged traffic violation in Arizona, the stop opens the door for the officer to find evidence of other possible criminal activity. In a recent case before an Arizona court, the defendant appealed his conviction for weapons misconduct, arguing that the officers that pulled him over for a traffic violation were actually just hoping to catch him in the act of additional criminal activity. Unfortunately, Arizona law affirmed that the defendant’s unlit license plate was reasonable grounds for the officers to a) stop the defendant and b) arrest him for unrelated criminal activity.

The Traffic Stop

The officers in this case were on patrol at a motorcycle rally, and they noticed that the defendant was wearing clothing consistent with a gang in Arizona. They approached the defendant, notifying him that he was operating a motorcycle without a license plate light. Upon additional conversation, the officers learned that the defendant was carrying a knife and a pistol. They later learned that he carried the pistol unlawfully. The defendant was both charged with and convicted of three counts of weapons misconduct.

The defendant took issue on appeal with the fact that the officers stopped him under the pretext of a missing license plate light when, in reality, they suspected additional criminal activity in the area and decided to act on those suspicions by finding a relatively small traffic code violation. This practice was unfair, said the defendant. It violated his constitutional rights, and his conviction should therefore be overturned.

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Sometimes, appeals courts are called upon to determine if a trial court made a “fundamental, prejudicial error” during trial. In certain circumstances, when the higher court finds that the lower court made this kind of critical error, the higher court will vacate the defendant’s guilty conviction. It is crucial, then, to understand what “prejudicial error” means during criminal court proceedings. That way, if you think the court has committed a prejudicial error against you during your case, you can move forward with potential grounds to get your guilty conviction thrown out.

Definition of “Prejudicial”

According to Arizona case law, to show prejudicial error, a defendant must show that without one particular error, a reasonable jury could have “plausibly and intelligently returned a different verdict.” Essentially, this means that a defendant must show that if the court had not committed the error in question, it would have been reasonable for the jury to find him not guilty.

Considerations During Review

In reviewing a trial court’s record for prejudicial error, the higher court will consider the other evidence presented at trial. For example, in a recent case before the Court of Appeals of Arizona, Second Division, the defendant argued that it was prejudicial for the court to allow testimony regarding the fact that he was carrying a “Santa Muerte card” while stopped for suspected drug trafficking. Many drug dealers are known to carry this card, and the defendant argued that the testimony about the card made the jury believe that he was, indeed, trafficking drugs just because he was holding the card.

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Have you been stopped by a police officer and charged with a DUI? Are you looking to contest the test results that the State wants to use against you? In Arizona, there are several options for challenging DUI test results; depending on your set of circumstances, each strategy has a different likelihood of success. To learn more or to see which method(s) would work for you, contact a Phoenix DUI attorney as soon as possible to discuss next steps in your case.

What is the Difference Between Each Test?

A breathalyzer is a device that officers use to track your blood alcohol content (BAC) based on each breath you take. A blood test, similarly, can detect a person’s BAC. The blood test can find alcohol in a person’s blood for up to 12 hours after drinking. A field sobriety test occurs when a police officer asks an individual to complete physical and mental tasks to determine if the person is intoxicated (i.e., standing on one leg, walking and turning).

Method 1: Challenge the Testing Procedure

The first method you might be able to use to challenge the results of a breath, blood, or field sobriety test is challenging the actual testing procedure. Officers do not always follow the correct testing procedures when stopping individuals for a breath, blood, or field sobriety test. It might be the case, for example, that the officer’s testing kit had expired, that your blood sample was not labeled correctly, or that the officer failed to use the precise proportion of chemicals when compiling the test.

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Recently, a defendant in Arizona was found guilty of six counts of first-degree murder. He appealed his convictions, arguing in part that one of the jurors in his trial had external knowledge of a previous crime that he had committed. According to the defendant on appeal, this knowledge prejudiced the juror against him, and the trial court should have granted his request for a mistrial. The higher court reviewed the trial record and ultimately disagreed, finding that the juror credibly stated she did not remember that the defendant had been accused of another crime several years prior.

Arizona Rule of Criminal Procedure 24.1

Under Arizona Rule of Criminal Procedure Rule 24.1, a court may order a new trial either on the defendant’s motion or with the defendant’s consent. The defendant in this case moved for a new trial under this rule, arguing that one juror intentionally hid the fact that she knew the defendant was convicted of a previous murder. The trial court denied the defendant’s request, concluding that 1) the defendant did not show that the juror failed to disclose any knowledge and 2) regardless, the defendant failed to show any prejudice that resulted from the possible knowledge.

The defendant appealed. In the higher court’s opinion addressing the appeal, it noted that the juror testified that she knew about the previous murder, but she also indicated that she did not remember that the defendant in the case before her had been convicted of that murder. The court found this testimony to be credible; that is, it found it reasonable that the trial court relied on the juror’s testimony when deciding not to grant the defendant a mistrial.

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Sex crimes can be tough crimes to fight, but having an understanding of the different offenses can be helpful when you are up against the state of Arizona. Today, we review some basics of “luring,” which is a lesser known but severe criminal offense.

Definition of Luring

In Arizona, “luring a minor for sexual exploitation” means that a suspect offers sexual conduct when he or she knows or has reason to know that the other person is a minor. Luring is a class 3 felony, and there are harsher punishments if the minor is under fifteen years old.

Interestingly, a defendant in a luring case cannot offer the defense that the other person was not, in fact, a minor. For example, oftentimes, investigators suspect an individual of luring and pretend to be a minor on an internet platform. The investigators themselves are over 18 years of age, but the person committing the luring believes the investigators are different people, i.e. that they are minors themselves. Even though the investigators are not actually minors, this does not matter for the criminal offense: all that matters is that the suspect has reason to know that the second individual was a minor.

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Contact Information
Law Office of James Novak, PLLC
4500 S Lakeshore Dr #352
Tempe, AZ 85282
Phone: (480) 413-1499Text: (602) 908-8123

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