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Improperly requested jury instruction not considered on appeal

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The Arizona Court of Appeals recently issued a published opinion in the matter of State of Arizona v. Tracie Renee Geeslin. Ms. Geeslin was convicted at trial of a number of felony offenses including theft of means of transportation. During trial, Ms. Gesslin requested that the jury be permitted to consider the less serious crime of unlawful use of means of transportation. On appeal, she challenged the trial court’s rejection of that request.In its decision the Arizona Court of Appeals essentially held that, although it implicitly agreed with Ms. Geeslin that the jury should have been allowed to consider the less serious offense, the issue had not been properly raised during trial and therefore could not be considered on appeal. Specifically, Ms. Gesslin’s attorney apparently made the request to the judge and the prosecutor in an informal email and neglected to follow up by filing a formal motion with the court. Because emails of this nature are not considered part of the court’s official record, the request was treated by the court of appeals as if it was never made. Like most issues on appeal, a request for a specific jury instruction must be formally made during the course of trial in order for issue to be addressed on appeal.

This Court of Appeals decision underscores that the importance of “protecting the record” cannot be overstated. Because the defense attorney did not incorporate the request into the official court record, Ms. Gesslin forever lost the opportunity to raise that issue on appeal. Regardless of how strong her argument was that the court should have granted the request, the Court of Appeals would not even consider the issue.

While Geeslin
persuasively argues that unlawful use pursuant to A.R.S. § 13-
1803 (2001) is a lesser included offense of theft of means of
transportation pursuant to A.R.S. § 13-1814(A)(5), and that the
trial court should have given the lesser included instruction,
we are unable to address the issue. The record does not contain
the requested jury instruction and we will not find that a trial
court erred in failing to give an instruction that we cannot

Criminal charges are serious and require serious legal representation. If you are in need of legal representation, have an experienced criminal defense attorney in your corner who will make sure your rights are properly protected. Contact the Law Offices of Joshua S. Davidson today for your free initial consultation.

Categories : Criminal Law
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Criminal Trials and Guilty Pleas

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A criminal case may be resolved either by a guilty verdict following trial or by the entry of a guilty (or no contest) plea. Both result in a criminal conviction.

A defendant who proceeds to trial is entitled to representation if he/she is unable to afford an attorney. As in civil cases, the defendant makes all the substantive decisions about the case after receiving advice from defense counsel. The criminal case then proceeds to discovery. The criminal discovery rules are very liberal. There is no trial by ambush in Arizona; both parties have a duty to disclose prior to trial. The trial court has broad discretion to sanction parties who fail to timely disclose witnesses or required discoverable material. Following discovery, the state might offer the defendant a plea. In the event of a plea offer, the negotiations can be extensive and time consuming.

If the defendant proceeds to trial, the state is bound by strict time deadlines. The rules of
evidence apply in a criminal trial, unlike in an administrative hearing. The state has the burden of proving each element of a criminal offense beyond a reasonable doubt. This is the highest standard of proof (much higher than the preponderance of the evidence standard applied in administrative hearings). The defendant is not required to testify and the jurors are instructed that they cannot consider the defendant’s silence in deciding the case. The defendant is entitled to an 8-person jury when the possible sentence is under 30 years. The defendant is entitled to a 12-person jury for capital offenses and cases that carry a possible sentence of 30 years or more. The jury verdict must be unanimous to either convict or acquit the defendant. If the jury is “hung”, the state can retry the defendant.

A defendant who enters a guilty or no contest plea is afforded significant constitutional
protections under the United States and Arizona Constitutions. These protections are codified in the Arizona statutes and in the Rules of Criminal Procedure. The trial court is required to advise a defendant of his or her rights and the consequences of pleading guilty or no contest. Rule 17.2. Ariz. R. Crim. P. The trial court must determine whether the defendant knowingly, voluntarily and intelligently entered the plea. The defendant is questioned in detail, on the record, in the trial court regarding whether any force, threats, or promises were made to induce the plea. The defendant must also provide the trial court with the “factual basis” for the plea; meaning the defendant must admit that he/she committed the elements of the offense. The failure of the trial court to follow the rules of criminal procedure may be grounds for setting aside the plea. The Arizona Supreme Court has rejected a defendant’s later claim that he pled guilty, but did not mean what he had avowed to the court, because accepting the claim would in effect mean that the trial court condoned perjury.

Arizona State Board of Nursing guidelines for sexual misconduct and boundary violation cases

Categories : Criminal Law
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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.


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