Archive for July, 2009

Jul
26

Confession of former criminal defense attorney to be used at trial

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Jason Keller is accused of smuggling drugs, a cell phone and a cell phone charging device into the Maricopa County Jail during “legal visits” he conducted with various inmates.  Mr. Keller’s defense lawyer recently filed a motion challenging the means by which his confession was obtained by the Sheriff’s Office and argued that it should not be admitted because it was involuntarily made by the former defense attorney.

The Court reviewed the confession and denied the defendant’s motion:

The Court has considered Defendant’s Motion to Suppress Statements as a Result of Involuntariness and the State’s Response thereto.  The Court has reviewed the transcript of the interview conducted of Defendant immediately following his arrest.  The Court has also considered the evidence presented at the evidentiary hearing held on the motion.  (A CD of the interview was admitted into evidence but the Court was unable to view it as it was not compatible with the Court’s computer.)

Defendant argues rather broadly that the Defendant’s statements should be suppressed as involuntary because of his “vulnerable” state of mind and alleged promises made to him by the police officers.  

The Court finds that the statements taken from the interview transcript and set forth in the Defendant’s motion are piecemeal excerpts and are not cited in any chronological order.  This results in a skewed representation of what was said by each party and/or at what point the statements were made during the interview.  The Court reviewed the transcript of the interview in its entirety.

In Arizona, confessions are presumed to be involuntary and it is the burden of the State to overcome this presumption.  State v. Scott, 177 Ariz. 131, 836 P.2nd 792 (1993).  A court must look at the totality of the circumstances when determining the voluntariness of a defendant’s statements.  Scott, id.; State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1946).  While personal circumstances of the defendant may be considered, the critical element in a voluntariness inquiry is whether police conduct constituted overreaching.  State v. Stanley, 167 Ariz. 519, 809 P.2d. 944 (1991).

 

The interview viewed in its entirety demonstrates that Defendant who was a licensed attorney was aware of his rights and was also very aware of the potential consequences of talking to the police without an attorney present to advise him.  He admitted that he was exhausted, Having not slept for two days and that it was not unusual for him to go without sleep for five, six and even up to thirteen days.  He admitted that the last time he had used methamphetamine was the Friday before the interview but never admitted that he was under the influence of any drug at the time of the interview.  He was coherent and contemplative of his actions, his personal life and the impact of the alleged criminal activities on his future.  The Defendant was never left alone and he remained awake during the entire interview.  The police officers did not exhibit any coercive or abusive behavior during the interview.

 

The Defendant also alleges that based on his prior experience with Detective Coste as an attorney representing a defendant and being present during a “free talk”, that he was essentially induced into believing that he would receive some benefit from talking to the officers following his arrest.  The transcript does not substantiate this claim.  Defendant is informed initially that he is in a “little bit different position here” than Defendant’s client was in because Defendant’s client participated in a “free talk.” 

 

Detective Coste advised Defendant many times that he could not make any promises and that it was up to the Attorney General as to what would happen.  He did tell the Defendant that he would tell the both the prosecuting attorney and the Initial Appearance judge that he was cooperative.

 After Defendant had discussed with the detectives the contraband (including drugs, a cell phone and a cell phone charger) he did ask Detective Coste if he was picking up new charges by talking.  He was told that the charges were relating to the “stuff” they had already talked about that day and already knew about.  Detective Coste later told him again that he would tell the prosecuting attorney about how the Defendant cooperated with the detectives and that the Defendant “knows how the system works” and “knows what happens at that point when the attorneys get that information.”  These statements of Detective Coste do not support Defendant’s position that he relied either on his past experience with Detective Coste or the “promises” made during the interview before making his statements immediately following his arrest.

 The Defendant has not demonstrated to the Court that his will was overborne or that he relied on promises made by the detectives prior to making his statements during the interview or that the police officers were overreaching in any manner during the interview. 

Categories : Criminal Law
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In 2002, officer Lovelace fatally shot a woman who was suspected of illegal obtaining prescription drugs at a drive-thru pharmacy in Chandler.  Lovelace was thereafter charged with murder by the Maricopa County Attorney’s Office.  A jury found Lovelace not guilty of the charge during a criminal trial that ended in the summer of 2004.

Lovelace was terminated from the department and the city had to pay several million dollars to settle legal claims arising from his conduct.  According to news reports, Lovelace will now be working as a detention officer with the Pinal County Sheriff’s Office.

Lovelace’s criminal case was extensively litigated by his criminal defense attorney  before the trial commenced.  In fact, the case was actually dismissed at one point after the court ruled that prosecution did not present the evidence to the grand jury in a full and fair manner.  After the court’s ruling, the prosecution presenting the case to another grand jury and obtained another indictment.  In remanding the case back to the grand jury, the court held:

 Arizona law has never required the grand jury to receive or consider all potentially exculpatory evidence. In State v. Superior Court (Mauro), 139 Ariz. 422, 678 P.2d 1386 (1984), the Court held that the prosecutor’s duty to present exculpatory evidence to the grand jury extended only to “clearly exculpatory evidence”, defined as “evidence of such weight that it would deter the grand jury from finding the existence of probable cause.” Mauro, Id. at 425, 678 P.2d at 1390. However, an accused is entitled to due process during grand jury proceedings. State v. Emery, 131 Ariz. 493, 506, 642 P.d 838, 851 (1982). Due process requires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. Id. State v Emery. The duties of fair play and impartiality imposed on those who attend and serve the grand jury are meant to insure that the determinations made by that body are informed, objective, and just. Crimmins v. Superior Court in and for Maricopa County, 137 Ariz. 39, 668 P.d 882 (1983). Arizona case law has specifically mandated that false, misleading or inaccurate evidence may not be presented to the grand jury, and, if it is, a remand is warranted. Maretick v. Jarrett, 391 Ariz. Adv.Rep. 9, 63 P.3d 120 (En Banc 2003); Escobar v. Superior Court 155 Ariz. 298, 746 P.2d 39 (App.1987). It appears to the Court that several errors occurred in Detective Kieffer’s testimony before the grand jury. First, Detective Kieffer testified that Defendant said when he shot Ms. Nelson he remembers looking at her and seeing: “….. that her arms were up on the steering wheel at about 10:00 o’clock and 2:00 o’clock” (GJT p.19) That was not the way Defendant described it in his taped interview dated October 11, 2002. Defendant, in fact, stated: “I know that I was facing her at a slight angle, not directly perpendicular. Less than perpendicular when I shot. So where I was exactly all I know is the car was coming at me…. It’s at a slight angle and she’s….. has her left arm still up. So she’s slightly turned and she’s making….. So she’s leaning slightly to her right and she’s looking right at me as she’s turning.

There is nothing in the transcript of Defendant’s interview that confirms that he said that Ms. Nelson’s arms were up on the steering wheel at about 10:00 and 2:00 o’clock. Second, the Affidavits of Attorney Dale Norris and Chandler Police Officer Daryle Palmer, both of whom witnessed the interview of Defendant, state that Defendant never stated or demonstrated that when he shot Ms. Nelson her left hand was at the 10:00 o’clock position. Daryle Palmer stated that Defendant indicated he first saw Ms. Nelson turning her steering wheel with her right hand in a counter-clockwise motion, turning the vehicle towards him. Defendant further indicated that just before he discharged his weapon, Ms. Nelson had her left arm up and was leaning slightly to her right. Officer Palmer stated that, as Defendant demonstrated this movement, the left side of Ms. Nelson’s body was more forward than her right side, her left hand was not on the steering wheel, her left forearm was raised and moved toward the passenger side, which caused her left upper arm, which was close to her body, to be rotated slightly clockwise. Dale Norris stated that Defendant said and demonstrated that Ms. Nelson was turning hard to the left and her right hand was high on the steering wheel. He said that Defendant stated and demonstrated that Ms. Nelson’s left arm was held high and visible above the door while turning the vehicle. Defendant indicated and demonstrated that Ms. Nelson was leaning to the right away from Defendant before he discharged his weapon. Finally, Mr. Norris stated that Defendant demonstrated that when turning her body to the right, Ms. Nelson was exposing the rear of her left shoulder to Defendant. The Court FINDS it noteworthy that the State has not offered an affidavit from Detective Kaminsky, who conducted Defendant’s interview, controverting the Palmer and Norris affidavits. These descriptions of what Officer Palmer and Mr. Norris heard and observed during Defendant’s interview become even more important since the following questions were asked by the prosecutor and the following answers were given by Detective Kieffer during the grand jury proceeding.

Q…..”What we have the medical examiner finds the bullet enters the back of her left arm; correct?

A. Yes, sir.

Q. Travels from back to front?

A. Correct.

Q. And comes to rest in this right breast?

A. Correct.

Q. The officer said that he was facing her when he fires?

A. Correct.

Q. With her arms up on the steering wheel?

A. Correct.

Q. That’s inconsistent with what the medical examiner found because the

medical examiner found the left arm had to have been up against the

chest wall?

A. Yes.

Q. The arm would not have been extending?

A. Correct.

Q. It’s possible, I suppose, that at the time the shot was fired she

could have — in order to get that back to front, she could turned

very sharply to right and then exposed her left arm to where the

officer said he was?

A. Correct. Correct.

Q. That’s not how he described seeing her?

A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).

Detective Kieffer’s testimony, that Defendant did not describe that Ms. Nelson turned to the right and then exposed her left arm to where the Defendant said he was positioned, was misleading. In fact, Detective Palmer and Mr. Norris, who were both present during the interview, stated that is precisely how he described it. The Court notes that neither Mr. Norris nor Officer Palmer prepared supplements to become part of the departmental report regarding this incident. Detective Kieffer was not present during Defendant’s interview and did not have the information from Officer Palmer or Mr. Norris when he testified before the grand jury. The prosecutor also did not have the benefit of any supplements prepared by Mr. Norris and/or Officer Palmer. Accordingly, it cannot be said that the prosecutor and/or the officer intentionally mislead the grand jury regarding what the Defendant described. However, in the telephonic conference between Court and counsel on May 8, 2003, Mr. Imbordino acknowledged that, if had been aware of the information provided by Palmer and Norris, he would have had to present it to the grand jury.

With regard to Detective Kieffer’s testimony as to the 10:00 o’clock and 2:00 o’clock position of Ms. Nelson’s arms, that testimony was simply a misunderstood interpretation of what Defendant stated in his interview. Regardless of the fact that there was no intentional misleading of the grand jury, the duties of fair play and impartiality imposed on those who attend and serve the grand jury require that the presentation of the evidence be a fair presentation. In this case, the incident took place in a matter of seconds. The exact position of Ms. Nelson’s body in her vehicle at the time of the shooting in relation to Defendant’s position is a crucial issue to be determined by the finder of fact. The State has the right to use Defendant’s statement in the grand jury presentation, but its use must be precise and accurate. It is important in the interests of justice that a full and fair presentation of the relevant evidence regarding the position of Ms. Nelson’s body in her vehicle be presented to the grand jury. That was not done and, accordingly, IT IS ORDERED granting Defendant’s Motion to Remand. The matter is remanded to the grand jury for further proceedings in accordance with the ruling of the Court. IT IS FURTHER ORDERED vacating any pending trial or trial management conference dates.

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