Archive for trial

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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May
06

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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