Archive for November, 2008

An Irritating Non-Lesser Included Offense

Tuesday, November 25th, 2008

I recently discussed lesser included offenses. Although Arizona’s practice of looking to the statute instead of the facts is frustrating enough in principle alone, there are some instances where I am particularly bothered by what a defendant can’t get as a lesser included offense.

One instance involves felony flight. In an unpublished decision released this past September, Arizona’s Division One Court of Appeals looked at whether someone accused of felony flight could request a lesser included instruction for failure to stop. The felony flight statute applies to a driver who wilfully flees or attempts to elude a police vehicle with lights and sirens, and the failure to stop statute applies to a driver who knowingly fails or refuses to bring his or her vehicle to a stop after being given a visual or audible signal or instruction by an officer. In both instances, the driver doesn’t stop. In one instance, the driver just fails or refuses to stop. In the other, the driver does that, but also willfully flees or attempts to elude the officer. The former is therefore a lesser included of the latter, right?

Unfortunately, it isn’t that simple. Arizona’s Division One Court of Appeals previously used ridiculous reasoning to create a nonsensical interpretation of the felony flight law that encompasses any refusal to stop for an officer in a car. Because of that, although Division One acknowledged failure to stop is a lesser-included offense of felony flight because the greater offense of felony flight cannot occur unless failure to stop also occurs, the court decided you can’t get a lesser included offense instruction. The court basically reasoned that, notwithstanding the plain language of the statutes, the only difference between them is that one involves flight from an officer in a vehicle and the other one doesn’t. You can’t be convicted of failing to stop if the officer is in a vehicle because an officer in a car automatically makes any refusal to stop felony flight. If the officer has a car, you don’t get a lesser included offense instruction.

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Posted in Arizona Cases, Arizona Statutes | 1 Comment »

Jury Trial Shenanigans

Thursday, November 20th, 2008

The US Constitution says you get an impartial jury “[i]n all criminal prosecutions.” The Arizona Constitution says you get an impartial jury “in criminal prosecutions.” A misdemeanor is a criminal prosecution, so you get a jury trial, right?

If you agree, it probably means you haven’t had the good fortune of spending three years in law school. Those three years are essential if you want to learn the super-important lawyer skill of looking at something really clear and interpreting it to mean something different from what it obviously means. The most important lesson lawyers-to-be learn in law school is that constitutions, statutes, and rules don’t always mean what they say. Sometimes, they don’t even mean what they mean.

Nowhere are those important law school lessons more impressively put to use than when US and Arizona courts interpret our constitutional rights to a jury trial. According to the US Supreme Court, the US Constitution’s right to a jury trial “in all criminal prosecutions” guarantees you a jury trial only in those criminal prosecutions where you can be incarcerated for more than six months. Misdemeanors in Arizona are punishable by a maximum of six months in jail, so the federal right doesn’t apply. However, Arizona courts have generously decided that you can get a jury trial for some misdemeanors. According to the Arizona Supreme Court, the Arizona Constitution’s right to a jury trial “in criminal prosecutions” gives you a jury trial in misdemeanor prosecutions where the crime either 1) has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood or 2) is sufficiently serious. Makes sense, right?

When it comes to our jury trial rights, the courts really take essential law school lessons to heart.

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Posted in Arizona Cases, SCOTUS Cases, US Constitution | 1 Comment »

Lesser Included Offenses

Saturday, November 15th, 2008

In many cases that go to trial, it is important to request that the judge give the jury a lesser included offense instruction. That means that you ask the judge to tell the jury that the crime with which the defendant has been charged includes a lesser crime and that, if they feel the facts warrant it, they can find the defendant guilty of the lesser crime instead of the charged crime. For instance, in Arizona, theft is a lesser included offense of robbery, so if you are accused of robbery, the judge can tell the jury that they can find you guilty of theft instead.

Some jurors don’t like the fact they only have two options (guilty or not guilty), so a lesser included offense instruction gives them a third, more appealing option. I’m sure many defendants have avoided a lot of extra prison time by giving the jury the option of finding them guilty of a lesser offense. Unfortunately, like many things that can benefit a defendant in our criminal justice system, lesser included offense instructions are not always easy to get.

To get a lesser included offense instruction in Arizona, you have to show that the more serious offense can’t be committed “without necessarily committing the lesser.” The elements of the crime as contained in the statute determine whether a crime is a lesser included offense, not the facts of the case. That means the facts of a specific case might support a lesser conviction, but if it was not charged in the indictment, the jury can’t find the defendant guilty of the lesser offense.

Not every state looks to the language of the statute instead of the facts of the case. Arizona’s Division Two Court of Appeals has noted that both Colorado courts and the 9th Circuit federal courts look to the facts of the case when deciding whether a lesser included offense instruction is merited. I’m sure many other jurisdictions do as well. However, the court explained that is not the test in Arizona. As far as I can tell, the rule in Arizona can be traced back to the 1954 Supreme Court of Arizona case State v. Westbrook, which cited two out-of-state cases and a legal encyclopedia for the following proposition: “[t]he test to be applied is simple: Is the first offense one that cannot be committed without necessarily committing the second?”

The problem with that test is the word “necessarily,” which seems to be what binds Arizona courts to looking at the statute and not the facts of the case. Because a court half a century ago decided to look to what Maine and California were doing, countless juries since then have been prevented from deciding which statute best matches the facts of a case. Why not give them another option? Other than “because it’s how we’ve always done it,” is there any good argument for looking to the language of the statute instead of the facts of the case? Why not liberally permit any lesser included the facts support? It won’t result in any harm to a defendant, and I can’t see why a prosecutor wouldn’t want to convict a defendant of the crime best suited to what he or she actually did. Do the courts have any legitimate purpose in limiting a jury’s options?

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Posted in Arizona Cases | No Comments »

Can't Make Out Your VIN?

Friday, November 7th, 2008

If your answer to that question is “yes,” there’s a chance your vehicle is going to become property of the State of Arizona at some point in the future. A.R.S. § 28-4594(A) provides that when the VIN of a vehicle or of a major component of a vehicle has been removed, defaced, altered or destroyed without the permission the Arizona Department of Transportation, the vehicle is contraband. If the state decides your vehicle is contraband, it can seize and destroy it.

That might mean that every vehicle with a non-manufacturer or out-of-state VIN on any major component could be seized when driven or ridden through Arizona. When a new VIN is attached by another state to any major part of a recovered vehicle, that vehicle might be forever barred from use in Arizona.

Are you merely an innocent purchaser? Was it previously titled in another state? Is the VIN just tough to make out because it’s an old vehicle? Based on the language of the statute, you could be out of luck. Looks like Gilbert might have some competition for the title to your vehicle.

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Posted in Arizona Statutes | No Comments »