AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
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Thursday, July 31, 2003
Corporation Commission Plans To File Special Action In Arizona Supreme Court Challenging AG's Refusal To Certify Rules Addressing Unauthorized Changes In Services And Charges By Telephone Companies.
According to an article in today's Arizona Republic, and an article in today's East Valley Tribune, the members of the Arizona Corporation Commission are unhappy with the Attorney General's refusal to certify the Commission's rules dealing with the problem of unauthorized changes in services or charges by telephone companies, and the Commissioners are planning to challenge the Attorney General's decision by means of a special action petition in the Arizona Supreme Court.
According to an article in today's Arizona Republic, and an article in today's East Valley Tribune, the members of the Arizona Corporation Commission are unhappy with the Attorney General's refusal to certify the Commission's rules dealing with the problem of unauthorized changes in services or charges by telephone companies, and the Commissioners are planning to challenge the Attorney General's decision by means of a special action petition in the Arizona Supreme Court.
Posted by azapp @ Thu, Jul 31, 2003
Corporation Commission Plans To File Special Action In Arizona Supreme Court Challenging AG's Refusal To Certify Rules Addressing Unauthorized Changes In Services And Charges By Telephone Companies.
According to an article in today's Arizona Republic, and an article in today's East Valley Tribune, the members of the Arizona Corporation Commission are unhappy with the Attorney General's refusal to certify the Commission's rules dealing with the problem of unauthorized changes in services or charges by telephone companies, and the Commissioners are planning to challenge the Attorney General's decision by means of a special action petition in the Arizona Supreme Court.
According to an article in today's Arizona Republic, and an article in today's East Valley Tribune, the members of the Arizona Corporation Commission are unhappy with the Attorney General's refusal to certify the Commission's rules dealing with the problem of unauthorized changes in services or charges by telephone companies, and the Commissioners are planning to challenge the Attorney General's decision by means of a special action petition in the Arizona Supreme Court.
Posted by azapp @ Thu, Jul 31, 2003
Wednesday, July 30, 2003
State v. Smyers: Division One Holds That Defendants May Challenge The Admission Of Prior Conviction Impeachment Evidence Even If They Did Not Testify.
Smyers was convicted of two counts of furnishing harmful items (showing computer porn) to minors. Before trial the state sought to admit, under Ariz. R. Evid. 609, evidence of Smyers’ prior conviction for attempted child abuse to impeach Smyers if he should choose to testify. Smyers argued that the conviction was not probative at all, but that if it were admitted, it should either be “sanitized” to indicate only the bare fact of the conviction, or the jury should be told the full story of the prior offense. The trial court held that the prior conviction would be admitted without being “sanitized,” except with respect to the class of the felony and the facts of the case, as these were “unfairly prejudicial” facts under Rule 403. Smyers was convicted and appealed on other grounds. He did not testify at the trial.
On appeal Division One raised the Rule 609 ruling sua sponte and ordered supplemental briefing. The court held that although the U.S. Supreme Court has held that a defendant’s decision not to testify at trial waives his right to challenge on appeal the trial court’s ruling on the admissibility of his prior conviction, Luce v. United States, 469 U.S. 38, 43 (1984), if the trial court has erred in admitting such evidence, the defendant’s decision not to testify may not have been a “reasoned and knowing one” and thus even a defendant who chooses not to testify should be permitted to challenge such a ruling. Turning to the merits of the trial court’s ruling, the Court held that the trial court had erred by applying the wrong standard and overlooking the unfair prejudice that could result from the admission of the prior conviction. The Court accordingly reversed Smyers’ conviction and remanded the case for a new trial.
The decision was authored by Judge Erlich and joined by Judges Weisberg and Ronan.
Smyers was convicted of two counts of furnishing harmful items (showing computer porn) to minors. Before trial the state sought to admit, under Ariz. R. Evid. 609, evidence of Smyers’ prior conviction for attempted child abuse to impeach Smyers if he should choose to testify. Smyers argued that the conviction was not probative at all, but that if it were admitted, it should either be “sanitized” to indicate only the bare fact of the conviction, or the jury should be told the full story of the prior offense. The trial court held that the prior conviction would be admitted without being “sanitized,” except with respect to the class of the felony and the facts of the case, as these were “unfairly prejudicial” facts under Rule 403. Smyers was convicted and appealed on other grounds. He did not testify at the trial.
On appeal Division One raised the Rule 609 ruling sua sponte and ordered supplemental briefing. The court held that although the U.S. Supreme Court has held that a defendant’s decision not to testify at trial waives his right to challenge on appeal the trial court’s ruling on the admissibility of his prior conviction, Luce v. United States, 469 U.S. 38, 43 (1984), if the trial court has erred in admitting such evidence, the defendant’s decision not to testify may not have been a “reasoned and knowing one” and thus even a defendant who chooses not to testify should be permitted to challenge such a ruling. Turning to the merits of the trial court’s ruling, the Court held that the trial court had erred by applying the wrong standard and overlooking the unfair prejudice that could result from the admission of the prior conviction. The Court accordingly reversed Smyers’ conviction and remanded the case for a new trial.
The decision was authored by Judge Erlich and joined by Judges Weisberg and Ronan.
Posted by azapp @ Wed, Jul 30, 2003
Special Action Petition Filed In Arizona Supreme Court Challenges Governor's Executive Order Barring Discrimination Against Homosexuals In State Agencies.
The Alliance Defense Fund, together with six state legislators, has filed a special action petition in the Arizona Supreme Court alleging that Governor Napolitano's executive order barring discrimination against homosexuals in state agencies violates the doctrine of separation of powers, as reported in an article in the East Valley Tribune and an article in the Arizona Republic. The Court has entered an order providing that it will consider the petition, without oral argument, on October 28, 2003, and setting a schedule for the filing of briefs (Respondent's brief due on August 11, 2003, and any reply due by August 20, 2003). For a copy of the petition and order, click here.
The Alliance Defense Fund, together with six state legislators, has filed a special action petition in the Arizona Supreme Court alleging that Governor Napolitano's executive order barring discrimination against homosexuals in state agencies violates the doctrine of separation of powers, as reported in an article in the East Valley Tribune and an article in the Arizona Republic. The Court has entered an order providing that it will consider the petition, without oral argument, on October 28, 2003, and setting a schedule for the filing of briefs (Respondent's brief due on August 11, 2003, and any reply due by August 20, 2003). For a copy of the petition and order, click here.
Posted by azapp @ Wed, Jul 30, 2003
State v. Smyers: Division One Holds That Defendants May Challenge The Admission Of Prior Conviction Impeachment Evidence Even If They Did Not Testify.
Smyers was convicted of two counts of furnishing harmful items (showing computer porn) to minors. Before trial the state sought to admit, under Ariz. R. Evid. 609, evidence of Smyers’ prior conviction for attempted child abuse to impeach Smyers if he should choose to testify. Smyers argued that the conviction was not probative at all, but that if it were admitted, it should either be “sanitized” to indicate only the bare fact of the conviction, or the jury should be told the full story of the prior offense. The trial court held that the prior conviction would be admitted without being “sanitized,” except with respect to the class of the felony and the facts of the case, as these were “unfairly prejudicial” facts under Rule 403. Smyers was convicted and appealed on other grounds. He did not testify at the trial.
On appeal Division One raised the Rule 609 ruling sua sponte and ordered supplemental briefing. The court held that although the U.S. Supreme Court has held that a defendant’s decision not to testify at trial waives his right to challenge on appeal the trial court’s ruling on the admissibility of his prior conviction, Luce v. United States, 469 U.S. 38, 43 (1984), if the trial court has erred in admitting such evidence, the defendant’s decision not to testify may not have been a “reasoned and knowing one” and thus even a defendant who chooses not to testify should be permitted to challenge such a ruling. Turning to the merits of the trial court’s ruling, the Court held that the trial court had erred by applying the wrong standard and overlooking the unfair prejudice that could result from the admission of the prior conviction. The Court accordingly reversed Smyers’ conviction and remanded the case for a new trial.
The decision was authored by Judge Erlich and joined by Judges Weisberg and Ronan.
Smyers was convicted of two counts of furnishing harmful items (showing computer porn) to minors. Before trial the state sought to admit, under Ariz. R. Evid. 609, evidence of Smyers’ prior conviction for attempted child abuse to impeach Smyers if he should choose to testify. Smyers argued that the conviction was not probative at all, but that if it were admitted, it should either be “sanitized” to indicate only the bare fact of the conviction, or the jury should be told the full story of the prior offense. The trial court held that the prior conviction would be admitted without being “sanitized,” except with respect to the class of the felony and the facts of the case, as these were “unfairly prejudicial” facts under Rule 403. Smyers was convicted and appealed on other grounds. He did not testify at the trial.
On appeal Division One raised the Rule 609 ruling sua sponte and ordered supplemental briefing. The court held that although the U.S. Supreme Court has held that a defendant’s decision not to testify at trial waives his right to challenge on appeal the trial court’s ruling on the admissibility of his prior conviction, Luce v. United States, 469 U.S. 38, 43 (1984), if the trial court has erred in admitting such evidence, the defendant’s decision not to testify may not have been a “reasoned and knowing one” and thus even a defendant who chooses not to testify should be permitted to challenge such a ruling. Turning to the merits of the trial court’s ruling, the Court held that the trial court had erred by applying the wrong standard and overlooking the unfair prejudice that could result from the admission of the prior conviction. The Court accordingly reversed Smyers’ conviction and remanded the case for a new trial.
The decision was authored by Judge Erlich and joined by Judges Weisberg and Ronan.
Posted by azapp @ Wed, Jul 30, 2003
Special Action Petition Filed In Arizona Supreme Court Challenges Governor's Executive Order Barring Discrimination Against Homosexuals In State Agencies.
The Alliance Defense Fund, together with six state legislators, has filed a special action petition in the Arizona Supreme Court alleging that Governor Napolitano's executive order barring discrimination against homosexuals in state agencies violates the doctrine of separation of powers, as reported in an article in the East Valley Tribune and an article in the Arizona Republic. The Court has entered an order providing that it will consider the petition, without oral argument, on October 28, 2003, and setting a schedule for the filing of briefs (Respondent's brief due on August 11, 2003, and any reply due by August 20, 2003). For a copy of the petition and order, click here.
The Alliance Defense Fund, together with six state legislators, has filed a special action petition in the Arizona Supreme Court alleging that Governor Napolitano's executive order barring discrimination against homosexuals in state agencies violates the doctrine of separation of powers, as reported in an article in the East Valley Tribune and an article in the Arizona Republic. The Court has entered an order providing that it will consider the petition, without oral argument, on October 28, 2003, and setting a schedule for the filing of briefs (Respondent's brief due on August 11, 2003, and any reply due by August 20, 2003). For a copy of the petition and order, click here.
Posted by azapp @ Wed, Jul 30, 2003
Saturday, July 26, 2003
Arizona v. Brown: Division Two Holds That Judge-Finding Of Aggravating Circumstances Enabling Judge To Increase Sentence For Class Two Felony Above "Presumptive" Five-Year Term Does Not Violate Constitutional Principles Set Forth In U.S. Supreme Court's Apprendi and Ring Decisions.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the U.S. Supreme Court held that factual findings that raise the maximum punishment to which a criminal defendant may be exposed must, in light of the jury-trial right guaranteed by the Sixth Amendment, be found by a jury, rather than by a judge. Later, in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the Court extended this principle to the aggravating factors required under Arizona's sentencing statutes to raise the maximum punishment for first-degree murder from life imprisonment to death, requiring that these factors must be found by a jury. In a recently-issued decision, Division Two addressed the question of whether the Apprendi/Ring principle requires that juries find the aggravating factors that a judge must consider in setting the sentence for a Class Two felony.
Jonathan McMullen pleaded guilty to reckless manslaughter, a Class Two Felony. Arizona's statutes specify that the punishment for a Class Two Felony is five years' imprisonment. The statutes also specify, however, that a judge "may" sentence a class two felon to as much as 12.5 years after finding two or more enumerated "aggravating factors," or to as little as 3 years after finding two or more enumerated "mitigating factors." The trial court sua sponte ordered a trial by jury with respect to any aggravating factors the State intended to prove. McMullen subsequently moved the court to find the pertinent sentencing statutes (A.R.S. 13-702 and 13-702.01) unconstitutional, because they assigned these findings to the judge, rather than to a jury. The court granted the motion. The State petitioned Division Two for special action relief from these two orders.
Division Two accepted special action jurisdiction, noting that the State had no equally adequate remedy by appeal and that the issues presented were of statewide importance and likely to recur. In a unanimous decision authored by Judge Pelander and joined by Judges Espinosa and Druke, the Court vacated the trial court's orders. The Court stressed that language in Apprendi and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002) indicates that the principles of Apprendi and Ring do not undermine the constitutionality of sentencing statutes that authorize a judge to make factual findings that affect the sentence the judge chooses within the "maximum sentence prescribed in the applicable statutory range." Noting that court decisions and other statutes referred to the five-year sentence for a Class Two Felony as the "presumptive" sentence, rather than the "maximum" sentence, the Court concluded that the statutes under which McMullen would be sentenced are of this constitutionally-permissible type.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the U.S. Supreme Court held that factual findings that raise the maximum punishment to which a criminal defendant may be exposed must, in light of the jury-trial right guaranteed by the Sixth Amendment, be found by a jury, rather than by a judge. Later, in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the Court extended this principle to the aggravating factors required under Arizona's sentencing statutes to raise the maximum punishment for first-degree murder from life imprisonment to death, requiring that these factors must be found by a jury. In a recently-issued decision, Division Two addressed the question of whether the Apprendi/Ring principle requires that juries find the aggravating factors that a judge must consider in setting the sentence for a Class Two felony.
Jonathan McMullen pleaded guilty to reckless manslaughter, a Class Two Felony. Arizona's statutes specify that the punishment for a Class Two Felony is five years' imprisonment. The statutes also specify, however, that a judge "may" sentence a class two felon to as much as 12.5 years after finding two or more enumerated "aggravating factors," or to as little as 3 years after finding two or more enumerated "mitigating factors." The trial court sua sponte ordered a trial by jury with respect to any aggravating factors the State intended to prove. McMullen subsequently moved the court to find the pertinent sentencing statutes (A.R.S. 13-702 and 13-702.01) unconstitutional, because they assigned these findings to the judge, rather than to a jury. The court granted the motion. The State petitioned Division Two for special action relief from these two orders.
Division Two accepted special action jurisdiction, noting that the State had no equally adequate remedy by appeal and that the issues presented were of statewide importance and likely to recur. In a unanimous decision authored by Judge Pelander and joined by Judges Espinosa and Druke, the Court vacated the trial court's orders. The Court stressed that language in Apprendi and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002) indicates that the principles of Apprendi and Ring do not undermine the constitutionality of sentencing statutes that authorize a judge to make factual findings that affect the sentence the judge chooses within the "maximum sentence prescribed in the applicable statutory range." Noting that court decisions and other statutes referred to the five-year sentence for a Class Two Felony as the "presumptive" sentence, rather than the "maximum" sentence, the Court concluded that the statutes under which McMullen would be sentenced are of this constitutionally-permissible type.
Posted by azapp @ Sat, Jul 26, 2003
Arizona v. Brown: Division Two Holds That Judge-Finding Of Aggravating Circumstances Enabling Judge To Increase Sentence For Class Two Felony Above "Presumptive" Five-Year Term Does Not Violate Constitutional Principles Set Forth In U.S. Supreme Court's Apprendi and Ring Decisions.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the U.S. Supreme Court held that factual findings that raise the maximum punishment to which a criminal defendant may be exposed must, in light of the jury-trial right guaranteed by the Sixth Amendment, be found by a jury, rather than by a judge. Later, in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the Court extended this principle to the aggravating factors required under Arizona's sentencing statutes to raise the maximum punishment for first-degree murder from life imprisonment to death, requiring that these factors must be found by a jury. In a recently-issued decision, Division Two addressed the question of whether the Apprendi/Ring principle requires that juries find the aggravating factors that a judge must consider in setting the sentence for a Class Two felony.
Jonathan McMullen pleaded guilty to reckless manslaughter, a Class Two Felony. Arizona's statutes specify that the punishment for a Class Two Felony is five years' imprisonment. The statutes also specify, however, that a judge "may" sentence a class two felon to as much as 12.5 years after finding two or more enumerated "aggravating factors," or to as little as 3 years after finding two or more enumerated "mitigating factors." The trial court sua sponte ordered a trial by jury with respect to any aggravating factors the State intended to prove. McMullen subsequently moved the court to find the pertinent sentencing statutes (A.R.S. 13-702 and 13-702.01) unconstitutional, because they assigned these findings to the judge, rather than to a jury. The court granted the motion. The State petitioned Division Two for special action relief from these two orders.
Division Two accepted special action jurisdiction, noting that the State had no equally adequate remedy by appeal and that the issues presented were of statewide importance and likely to recur. In a unanimous decision authored by Judge Pelander and joined by Judges Espinosa and Druke, the Court vacated the trial court's orders. The Court stressed that language in Apprendi and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002) indicates that the principles of Apprendi and Ring do not undermine the constitutionality of sentencing statutes that authorize a judge to make factual findings that affect the sentence the judge chooses within the "maximum sentence prescribed in the applicable statutory range." Noting that court decisions and other statutes referred to the five-year sentence for a Class Two Felony as the "presumptive" sentence, rather than the "maximum" sentence, the Court concluded that the statutes under which McMullen would be sentenced are of this constitutionally-permissible type.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the U.S. Supreme Court held that factual findings that raise the maximum punishment to which a criminal defendant may be exposed must, in light of the jury-trial right guaranteed by the Sixth Amendment, be found by a jury, rather than by a judge. Later, in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the Court extended this principle to the aggravating factors required under Arizona's sentencing statutes to raise the maximum punishment for first-degree murder from life imprisonment to death, requiring that these factors must be found by a jury. In a recently-issued decision, Division Two addressed the question of whether the Apprendi/Ring principle requires that juries find the aggravating factors that a judge must consider in setting the sentence for a Class Two felony.
Jonathan McMullen pleaded guilty to reckless manslaughter, a Class Two Felony. Arizona's statutes specify that the punishment for a Class Two Felony is five years' imprisonment. The statutes also specify, however, that a judge "may" sentence a class two felon to as much as 12.5 years after finding two or more enumerated "aggravating factors," or to as little as 3 years after finding two or more enumerated "mitigating factors." The trial court sua sponte ordered a trial by jury with respect to any aggravating factors the State intended to prove. McMullen subsequently moved the court to find the pertinent sentencing statutes (A.R.S. 13-702 and 13-702.01) unconstitutional, because they assigned these findings to the judge, rather than to a jury. The court granted the motion. The State petitioned Division Two for special action relief from these two orders.
Division Two accepted special action jurisdiction, noting that the State had no equally adequate remedy by appeal and that the issues presented were of statewide importance and likely to recur. In a unanimous decision authored by Judge Pelander and joined by Judges Espinosa and Druke, the Court vacated the trial court's orders. The Court stressed that language in Apprendi and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002) indicates that the principles of Apprendi and Ring do not undermine the constitutionality of sentencing statutes that authorize a judge to make factual findings that affect the sentence the judge chooses within the "maximum sentence prescribed in the applicable statutory range." Noting that court decisions and other statutes referred to the five-year sentence for a Class Two Felony as the "presumptive" sentence, rather than the "maximum" sentence, the Court concluded that the statutes under which McMullen would be sentenced are of this constitutionally-permissible type.
Posted by azapp @ Sat, Jul 26, 2003
Friday, July 25, 2003
Pleak v. Entrada Property Owners' Assoc.: Division Two Holds that Arizona Law Permits the Dedication of a Roadway Easement to the Public by Other than Statutory Means.
Plaintiffs in this case are real property owners of land adjacent to a roadway on Defendants' land in rural Pima county. Defendants are successors in interest to three parcels of land originally owned and surveyed by First American Title Insurance Company. Plaintiffs sued seeking a declaration that First American had dedicated the roadway to public use. The trial court granted Defendants' partial summary judgment ruling that the roadway had not met the statutory requirements for public dedication. The Court of Appeals reversed holding that, despite pronouncements from the Arizona Supreme Court that "in Arizona[,] 'public highways' are limited to those establsihed in the manner provided by law and to no others," Herman v. Cardon, 112 Ariz. 548, 549 (1976), common law dedication of a roadway easement is permissible. The court held that it is unnecessary for a governing body to accept the public roadway, noting that there are three types of roadways: public, private, and those dedicated to the public, but not yet accepted by any governing body. Applying the common law, the court found that the dedication by First American was completed when Defendants' purchased the land referring to the recorded survey and the delineated road easement.
Plaintiffs in this case are real property owners of land adjacent to a roadway on Defendants' land in rural Pima county. Defendants are successors in interest to three parcels of land originally owned and surveyed by First American Title Insurance Company. Plaintiffs sued seeking a declaration that First American had dedicated the roadway to public use. The trial court granted Defendants' partial summary judgment ruling that the roadway had not met the statutory requirements for public dedication. The Court of Appeals reversed holding that, despite pronouncements from the Arizona Supreme Court that "in Arizona[,] 'public highways' are limited to those establsihed in the manner provided by law and to no others," Herman v. Cardon, 112 Ariz. 548, 549 (1976), common law dedication of a roadway easement is permissible. The court held that it is unnecessary for a governing body to accept the public roadway, noting that there are three types of roadways: public, private, and those dedicated to the public, but not yet accepted by any governing body. Applying the common law, the court found that the dedication by First American was completed when Defendants' purchased the land referring to the recorded survey and the delineated road easement.
Posted by azapp @ Fri, Jul 25, 2003
Pleak v. Entrada Property Owners' Assoc.: Division Two Holds that Arizona Law Permits the Dedication of a Roadway Easement to the Public by Other than Statutory Means.
Plaintiffs in this case are real property owners of land adjacent to a roadway on Defendants' land in rural Pima county. Defendants are successors in interest to three parcels of land originally owned and surveyed by First American Title Insurance Company. Plaintiffs sued seeking a declaration that First American had dedicated the roadway to public use. The trial court granted Defendants' partial summary judgment ruling that the roadway had not met the statutory requirements for public dedication. The Court of Appeals reversed holding that, despite pronouncements from the Arizona Supreme Court that "in Arizona[,] 'public highways' are limited to those establsihed in the manner provided by law and to no others," Herman v. Cardon, 112 Ariz. 548, 549 (1976), common law dedication of a roadway easement is permissible. The court held that it is unnecessary for a governing body to accept the public roadway, noting that there are three types of roadways: public, private, and those dedicated to the public, but not yet accepted by any governing body. Applying the common law, the court found that the dedication by First American was completed when Defendants' purchased the land referring to the recorded survey and the delineated road easement.
Plaintiffs in this case are real property owners of land adjacent to a roadway on Defendants' land in rural Pima county. Defendants are successors in interest to three parcels of land originally owned and surveyed by First American Title Insurance Company. Plaintiffs sued seeking a declaration that First American had dedicated the roadway to public use. The trial court granted Defendants' partial summary judgment ruling that the roadway had not met the statutory requirements for public dedication. The Court of Appeals reversed holding that, despite pronouncements from the Arizona Supreme Court that "in Arizona[,] 'public highways' are limited to those establsihed in the manner provided by law and to no others," Herman v. Cardon, 112 Ariz. 548, 549 (1976), common law dedication of a roadway easement is permissible. The court held that it is unnecessary for a governing body to accept the public roadway, noting that there are three types of roadways: public, private, and those dedicated to the public, but not yet accepted by any governing body. Applying the common law, the court found that the dedication by First American was completed when Defendants' purchased the land referring to the recorded survey and the delineated road easement.
Posted by azapp @ Fri, Jul 25, 2003
Thursday, July 24, 2003
American Pepper Supply Co. v. Federal Insurance Co.: Division One Holds That An Insurer Defending A Breach of Contract Claim By Charging The Insured With Concealment Or Misrepresentation Must Prove The Concealment Or Misrepresentation By Clear And Convincing Evidence.
State courts have split on the question of whether insurers defending their decisions to deny claims on the ground that their insureds concealed material information from them or misrepresentated material facts to them must prove the concealment or misrepresentation by the ordinary "preponderance of the evidence" standard, or should instead be held to the higher standard of "clear and convincing evidence." Today Division One issued a unanimous decision adopting the latter position.
The appellant was an insurance company that had defended its denial of the appellee's claim for the theft of its equipment by alleging that the insured had actually sold the equipment and misrepresented its value to the insurer. The trial judge instructed the jury to apply the clear and convincing evidence standard to the insurer's concealment and misrepresentation defenses. The jury found in favor of the insured, awarding it $15,000 in damages for the denial of its claim, and the insurer appealed.
The Court, per Judge Timmer, affirmed. The Court reasoned that by charging their insureds with concealment or misrepresentation, insurers are in effect charging them with a "specie of fraud," such that the heightened standard of proof applicable to fraud claims should apply. The Court noted that a heightened standard is applied to fraud claims because such claims allege conduct of a "deceitful nature" and accordingly deliver a "blow to the actor's reputation," and reasoned that these same concerns are present when an insurer charges its insured with concealment or misrepresentation. The Court also rejected the claim that the trial judge had erred in instructing the jury on the elements of common-law fraud in light of the fact that another instruction conveyed the terms of the relevant provisions of the insurance contract. The Court held that the extra fraud instruction was not error regardless of whether it was "necessary or required." Judges Weisberg and Thompson joined in the opinion.
State courts have split on the question of whether insurers defending their decisions to deny claims on the ground that their insureds concealed material information from them or misrepresentated material facts to them must prove the concealment or misrepresentation by the ordinary "preponderance of the evidence" standard, or should instead be held to the higher standard of "clear and convincing evidence." Today Division One issued a unanimous decision adopting the latter position.
The appellant was an insurance company that had defended its denial of the appellee's claim for the theft of its equipment by alleging that the insured had actually sold the equipment and misrepresented its value to the insurer. The trial judge instructed the jury to apply the clear and convincing evidence standard to the insurer's concealment and misrepresentation defenses. The jury found in favor of the insured, awarding it $15,000 in damages for the denial of its claim, and the insurer appealed.
The Court, per Judge Timmer, affirmed. The Court reasoned that by charging their insureds with concealment or misrepresentation, insurers are in effect charging them with a "specie of fraud," such that the heightened standard of proof applicable to fraud claims should apply. The Court noted that a heightened standard is applied to fraud claims because such claims allege conduct of a "deceitful nature" and accordingly deliver a "blow to the actor's reputation," and reasoned that these same concerns are present when an insurer charges its insured with concealment or misrepresentation. The Court also rejected the claim that the trial judge had erred in instructing the jury on the elements of common-law fraud in light of the fact that another instruction conveyed the terms of the relevant provisions of the insurance contract. The Court held that the extra fraud instruction was not error regardless of whether it was "necessary or required." Judges Weisberg and Thompson joined in the opinion.
Posted by azapp @ Thu, Jul 24, 2003
Today's Arizona Republic includes a short article noting that Governor Napolitano has retained Scott Bales and Kim Demarchi, of her former law firm Lewis & Roca, to defend her use of the line-item veto to restore funding to state agencies in a suit recently filed by Republican legislators.
Posted by azapp @ Thu, Jul 24, 2003
American Pepper Supply Co. v. Federal Insurance Co.: Division One Holds That An Insurer Defending A Breach of Contract Claim By Charging The Insured With Concealment Or Misrepresentation Must Prove The Concealment Or Misrepresentation By Clear And Convincing Evidence.
State courts have split on the question of whether insurers defending their decisions to deny claims on the ground that their insureds concealed material information from them or misrepresentated material facts to them must prove the concealment or misrepresentation by the ordinary "preponderance of the evidence" standard, or should instead be held to the higher standard of "clear and convincing evidence." Today Division One issued a unanimous decision adopting the latter position.
The appellant was an insurance company that had defended its denial of the appellee's claim for the theft of its equipment by alleging that the insured had actually sold the equipment and misrepresented its value to the insurer. The trial judge instructed the jury to apply the clear and convincing evidence standard to the insurer's concealment and misrepresentation defenses. The jury found in favor of the insured, awarding it $15,000 in damages for the denial of its claim, and the insurer appealed.
The Court, per Judge Timmer, affirmed. The Court reasoned that by charging their insureds with concealment or misrepresentation, insurers are in effect charging them with a "specie of fraud," such that the heightened standard of proof applicable to fraud claims should apply. The Court noted that a heightened standard is applied to fraud claims because such claims allege conduct of a "deceitful nature" and accordingly deliver a "blow to the actor's reputation," and reasoned that these same concerns are present when an insurer charges its insured with concealment or misrepresentation. The Court also rejected the claim that the trial judge had erred in instructing the jury on the elements of common-law fraud in light of the fact that another instruction conveyed the terms of the relevant provisions of the insurance contract. The Court held that the extra fraud instruction was not error regardless of whether it was "necessary or required." Judges Weisberg and Thompson joined in the opinion.
State courts have split on the question of whether insurers defending their decisions to deny claims on the ground that their insureds concealed material information from them or misrepresentated material facts to them must prove the concealment or misrepresentation by the ordinary "preponderance of the evidence" standard, or should instead be held to the higher standard of "clear and convincing evidence." Today Division One issued a unanimous decision adopting the latter position.
The appellant was an insurance company that had defended its denial of the appellee's claim for the theft of its equipment by alleging that the insured had actually sold the equipment and misrepresented its value to the insurer. The trial judge instructed the jury to apply the clear and convincing evidence standard to the insurer's concealment and misrepresentation defenses. The jury found in favor of the insured, awarding it $15,000 in damages for the denial of its claim, and the insurer appealed.
The Court, per Judge Timmer, affirmed. The Court reasoned that by charging their insureds with concealment or misrepresentation, insurers are in effect charging them with a "specie of fraud," such that the heightened standard of proof applicable to fraud claims should apply. The Court noted that a heightened standard is applied to fraud claims because such claims allege conduct of a "deceitful nature" and accordingly deliver a "blow to the actor's reputation," and reasoned that these same concerns are present when an insurer charges its insured with concealment or misrepresentation. The Court also rejected the claim that the trial judge had erred in instructing the jury on the elements of common-law fraud in light of the fact that another instruction conveyed the terms of the relevant provisions of the insurance contract. The Court held that the extra fraud instruction was not error regardless of whether it was "necessary or required." Judges Weisberg and Thompson joined in the opinion.
Posted by azapp @ Thu, Jul 24, 2003
Today's Arizona Republic includes a short article noting that Governor Napolitano has retained Scott Bales and Kim Demarchi, of her former law firm Lewis & Roca, to defend her use of the line-item veto to restore funding to state agencies in a suit recently filed by Republican legislators.
Posted by azapp @ Thu, Jul 24, 2003
Wednesday, July 23, 2003
State v. Darelli: Division One Rules That a Trial Judge May Not Effectively Implement a Plea Cut-Off Date By Rejecting All Potential Pleas Except a Plea to the Charges Based Solely on the Procedural Posture of a Case
Division One in a 2-1 decision filed on Tuesday held that a “[t]rial judge erred when he unilaterally announced a self-imposed procedural rule which” prevented the parties from presenting a plea agreement to him for “individualized consideration” on the merits. The issue arose when the prosecution and the defense attempted to negotiate a last-minute plea agreement on the first day of trial, while the jury was already assembled and awaiting voir dire. Learning of the plea negotiations, the trial judge stated on the record that “because jurors had already been summoned and assembled, he would only accept a plea to the indictment or a dismissal of all charges.” Not wishing to dismiss all charges, the prosecution broke off negotiations and proceeded with its case, ultimately resulting in conviction.
Writing for the majority, Judge Barker noted that the principles applicable to plea agreements also apply to plea negotiations. Based on rulings by the Arizona Supreme Court in Espinoza v.Martin, 182 Ariz. 145, 894 P.2d 688 (1995), and Hare v. Superior Court, 133 Ariz. 540, 652 P.2d 1387 (1982), along with Arizona Rule of Criminal Procedure 17.4, the court held that:
(1) there is a right to negotiate a plea, if the parties so choose, and (2) a trial judge may not add procedural hurdles to the exercise of that right that (3) serve as a basis for the trial judge to forego exercising individualized consideration on the merits of the negotiated plea in determining whether to accept or reject it.
Finding reversible error, the court then vacated the defendant’s conviction and ordered the parties returned to the status quo at the time of the trial judge’s interference, with a new trial to be held if no plea agreement is reached.
Judge Garbarino dissented in part, agreeing that the trial court erred, but finding no reason to set aside a valid conviction where there was never an actual plea agreement on the table. At most, the parties were simply in the beginning stages of negotiation.
Division One in a 2-1 decision filed on Tuesday held that a “[t]rial judge erred when he unilaterally announced a self-imposed procedural rule which” prevented the parties from presenting a plea agreement to him for “individualized consideration” on the merits. The issue arose when the prosecution and the defense attempted to negotiate a last-minute plea agreement on the first day of trial, while the jury was already assembled and awaiting voir dire. Learning of the plea negotiations, the trial judge stated on the record that “because jurors had already been summoned and assembled, he would only accept a plea to the indictment or a dismissal of all charges.” Not wishing to dismiss all charges, the prosecution broke off negotiations and proceeded with its case, ultimately resulting in conviction.
Writing for the majority, Judge Barker noted that the principles applicable to plea agreements also apply to plea negotiations. Based on rulings by the Arizona Supreme Court in Espinoza v.Martin, 182 Ariz. 145, 894 P.2d 688 (1995), and Hare v. Superior Court, 133 Ariz. 540, 652 P.2d 1387 (1982), along with Arizona Rule of Criminal Procedure 17.4, the court held that:
(1) there is a right to negotiate a plea, if the parties so choose, and (2) a trial judge may not add procedural hurdles to the exercise of that right that (3) serve as a basis for the trial judge to forego exercising individualized consideration on the merits of the negotiated plea in determining whether to accept or reject it.
Finding reversible error, the court then vacated the defendant’s conviction and ordered the parties returned to the status quo at the time of the trial judge’s interference, with a new trial to be held if no plea agreement is reached.
Judge Garbarino dissented in part, agreeing that the trial court erred, but finding no reason to set aside a valid conviction where there was never an actual plea agreement on the table. At most, the parties were simply in the beginning stages of negotiation.
Posted by azapp @ Wed, Jul 23, 2003
State v. Darelli: Division One Rules That a Trial Judge May Not Effectively Implement a Plea Cut-Off Date By Rejecting All Potential Pleas Except a Plea to the Charges Based Solely on the Procedural Posture of a Case
Division One in a 2-1 decision filed on Tuesday held that a “[t]rial judge erred when he unilaterally announced a self-imposed procedural rule which” prevented the parties from presenting a plea agreement to him for “individualized consideration” on the merits. The issue arose when the prosecution and the defense attempted to negotiate a last-minute plea agreement on the first day of trial, while the jury was already assembled and awaiting voir dire. Learning of the plea negotiations, the trial judge stated on the record that “because jurors had already been summoned and assembled, he would only accept a plea to the indictment or a dismissal of all charges.” Not wishing to dismiss all charges, the prosecution broke off negotiations and proceeded with its case, ultimately resulting in conviction.
Writing for the majority, Judge Barker noted that the principles applicable to plea agreements also apply to plea negotiations. Based on rulings by the Arizona Supreme Court in Espinoza v.Martin, 182 Ariz. 145, 894 P.2d 688 (1995), and Hare v. Superior Court, 133 Ariz. 540, 652 P.2d 1387 (1982), along with Arizona Rule of Criminal Procedure 17.4, the court held that:
(1) there is a right to negotiate a plea, if the parties so choose, and (2) a trial judge may not add procedural hurdles to the exercise of that right that (3) serve as a basis for the trial judge to forego exercising individualized consideration on the merits of the negotiated plea in determining whether to accept or reject it.
Finding reversible error, the court then vacated the defendant’s conviction and ordered the parties returned to the status quo at the time of the trial judge’s interference, with a new trial to be held if no plea agreement is reached.
Judge Garbarino dissented in part, agreeing that the trial court erred, but finding no reason to set aside a valid conviction where there was never an actual plea agreement on the table. At most, the parties were simply in the beginning stages of negotiation.
Division One in a 2-1 decision filed on Tuesday held that a “[t]rial judge erred when he unilaterally announced a self-imposed procedural rule which” prevented the parties from presenting a plea agreement to him for “individualized consideration” on the merits. The issue arose when the prosecution and the defense attempted to negotiate a last-minute plea agreement on the first day of trial, while the jury was already assembled and awaiting voir dire. Learning of the plea negotiations, the trial judge stated on the record that “because jurors had already been summoned and assembled, he would only accept a plea to the indictment or a dismissal of all charges.” Not wishing to dismiss all charges, the prosecution broke off negotiations and proceeded with its case, ultimately resulting in conviction.
Writing for the majority, Judge Barker noted that the principles applicable to plea agreements also apply to plea negotiations. Based on rulings by the Arizona Supreme Court in Espinoza v.Martin, 182 Ariz. 145, 894 P.2d 688 (1995), and Hare v. Superior Court, 133 Ariz. 540, 652 P.2d 1387 (1982), along with Arizona Rule of Criminal Procedure 17.4, the court held that:
(1) there is a right to negotiate a plea, if the parties so choose, and (2) a trial judge may not add procedural hurdles to the exercise of that right that (3) serve as a basis for the trial judge to forego exercising individualized consideration on the merits of the negotiated plea in determining whether to accept or reject it.
Finding reversible error, the court then vacated the defendant’s conviction and ordered the parties returned to the status quo at the time of the trial judge’s interference, with a new trial to be held if no plea agreement is reached.
Judge Garbarino dissented in part, agreeing that the trial court erred, but finding no reason to set aside a valid conviction where there was never an actual plea agreement on the table. At most, the parties were simply in the beginning stages of negotiation.
Posted by azapp @ Wed, Jul 23, 2003
Tuesday, July 22, 2003
Here is a copy of the special action brief filed by the State Legislature in the Supreme Court in Bennet v. Napolitano, CV-03-0245-SA. Click here for references to news articles about the case.
Posted by azapp @ Tue, Jul 22, 2003
Today's Arizona Republic includes an article about a special action lawsuit alleging that the Los Arcos development deal violates the "gift clause" of the Arizona Constitution.
Posted by azapp @ Tue, Jul 22, 2003
Here is a copy of the special action brief filed by the State Legislature in the Supreme Court in Bennet v. Napolitano, CV-03-0245-SA. Click here for references to news articles about the case.
Posted by azapp @ Tue, Jul 22, 2003
Today's Arizona Republic includes an article about a special action lawsuit alleging that the Los Arcos development deal violates the "gift clause" of the Arizona Constitution.
Posted by azapp @ Tue, Jul 22, 2003
Friday, July 18, 2003
Yesterday's Arizona Republic includes an article stating that the Arizona Supreme Court will hear arguments on Republican legislators' challenge to Governor Napolitano's line-item vetoes. Today's paper includes a short comment by the paper's editorial board lauding the Court for its rapid reaction, and expressing the board's hope that the Court hears the case, rather than sending it to a lower court. The Governor's and legislators' comments about the lawsuit are included an article that appeared on Wednesday.
Posted by azapp @ Fri, Jul 18, 2003
Yesterday's Arizona Republic includes an article stating that the Arizona Supreme Court will hear arguments on Republican legislators' challenge to Governor Napolitano's line-item vetoes. Today's paper includes a short comment by the paper's editorial board lauding the Court for its rapid reaction, and expressing the board's hope that the Court hears the case, rather than sending it to a lower court. The Governor's and legislators' comments about the lawsuit are included an article that appeared on Wednesday.
Posted by azapp @ Fri, Jul 18, 2003
Wednesday, July 16, 2003
Today's Arizona Republic includes an article stating that two individuals have asked the Arizona Court of Appeals to address the issue of same-sex marriage.
Posted by azapp @ Wed, Jul 16, 2003
Today's Arizona Republic includes an article stating that two individuals have asked the Arizona Court of Appeals to address the issue of same-sex marriage.
Posted by azapp @ Wed, Jul 16, 2003
Tuesday, July 15, 2003
State v. Cazeras: Division Two Rules That Guilty Plea Does Not Waive A Rule 32 Petition Challenging Sentencing
Division Two decided on Friday that a guilty plea does not waive a defendant's right to challenge his sentence in post-conviction proceedings under Rule 32. The court noted that since a defendant who pleads guilty waives his right to direct appeal, PCR procedures are the only means available for to challenge a sentence. The court also explained that the sentencing statutes do not distinguish between convictions resulting from trials and guilty pleas. Since Rule 32 permits post-conviction relief when the sentence imposed is “not in accordance with the sentence authorized by law,” the court concluded that the trial court erred in ruling that PCR was not available for the pleading defendant.
On the merits of the defendant's petition, however, the court upheld the trial court and affirmed defendant's sentence. Defendant claimed that the trial court erred in not finding his age a mitigating factor in sentencing. The appellate court held that the trial judge was only required to give due consideration to the defendant's age, not to find his age mitigating.
Judge Espinosa wrote for the unanimous panel.
Division Two decided on Friday that a guilty plea does not waive a defendant's right to challenge his sentence in post-conviction proceedings under Rule 32. The court noted that since a defendant who pleads guilty waives his right to direct appeal, PCR procedures are the only means available for to challenge a sentence. The court also explained that the sentencing statutes do not distinguish between convictions resulting from trials and guilty pleas. Since Rule 32 permits post-conviction relief when the sentence imposed is “not in accordance with the sentence authorized by law,” the court concluded that the trial court erred in ruling that PCR was not available for the pleading defendant.
On the merits of the defendant's petition, however, the court upheld the trial court and affirmed defendant's sentence. Defendant claimed that the trial court erred in not finding his age a mitigating factor in sentencing. The appellate court held that the trial judge was only required to give due consideration to the defendant's age, not to find his age mitigating.
Judge Espinosa wrote for the unanimous panel.
Posted by azapp @ Tue, Jul 15, 2003
State v. Cazeras: Division Two Rules That Guilty Plea Does Not Waive A Rule 32 Petition Challenging Sentencing
Division Two decided on Friday that a guilty plea does not waive a defendant's right to challenge his sentence in post-conviction proceedings under Rule 32. The court noted that since a defendant who pleads guilty waives his right to direct appeal, PCR procedures are the only means available for to challenge a sentence. The court also explained that the sentencing statutes do not distinguish between convictions resulting from trials and guilty pleas. Since Rule 32 permits post-conviction relief when the sentence imposed is “not in accordance with the sentence authorized by law,” the court concluded that the trial court erred in ruling that PCR was not available for the pleading defendant.
On the merits of the defendant's petition, however, the court upheld the trial court and affirmed defendant's sentence. Defendant claimed that the trial court erred in not finding his age a mitigating factor in sentencing. The appellate court held that the trial judge was only required to give due consideration to the defendant's age, not to find his age mitigating.
Judge Espinosa wrote for the unanimous panel.
Division Two decided on Friday that a guilty plea does not waive a defendant's right to challenge his sentence in post-conviction proceedings under Rule 32. The court noted that since a defendant who pleads guilty waives his right to direct appeal, PCR procedures are the only means available for to challenge a sentence. The court also explained that the sentencing statutes do not distinguish between convictions resulting from trials and guilty pleas. Since Rule 32 permits post-conviction relief when the sentence imposed is “not in accordance with the sentence authorized by law,” the court concluded that the trial court erred in ruling that PCR was not available for the pleading defendant.
On the merits of the defendant's petition, however, the court upheld the trial court and affirmed defendant's sentence. Defendant claimed that the trial court erred in not finding his age a mitigating factor in sentencing. The appellate court held that the trial judge was only required to give due consideration to the defendant's age, not to find his age mitigating.
Judge Espinosa wrote for the unanimous panel.
Posted by azapp @ Tue, Jul 15, 2003
Tuesday, July 8, 2003
Arizona v. Antoin Jones: Supreme Court Remands Another Pre-Ring v. Arizona Death Penalty Case For Resentencing Before A Jury
In its last Term, the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), held that Arizona's death-sentencing system violated the defendants' Sixth and Fourteenth Amendment right to have juries, rather than judges, find the facts - known as "aggravating" facts or circumstances - that enable the State to impose a sentence of death. The Arizona Supreme Court subsequently consolidated all of the Arizona death-penalty cases that had not yet become final when Ring v. Arizona was decided and called for briefing and argument on what to do next. The Court issued its decision on these common issues on April 3, 2003. The Court rejected arguments to the effect that all of these defendants had to be resentenced to life imprisonment, and instead decided to review each death sentence to determine whether the fact that a judge, rather than a jury, found the aggravating facts that enabled these defendants to be sentenced to death could be characterized as "harmless error" -- i.e., an error in the trial proceedings that clearly didn't make any difference in the outcome.
Since then, the Court has periodically issued supplemental opinions deciding, in individual cases from the previously-consolidated group, whether the judge-finding of aggravators was harmless error. When it finds that the error was not harmless, the Court remands the case for a new sentencing hearing at which a jury will be asked to find the aggravating facts. (Under the statute enacted to fix the constitutional problem in Arizona's death-sentencing scheme, the jury at the new sentencing will also be asked to determine whether any "mitigating" facts -- or facts weighing against re-imposing the death sentence -- are present, and to determine whether, in light of the mitigating and aggravating facts, a death sentence should be imposed.) So far, all of the Court's supplemental opinions in these cases have remanded for new sentencing hearings before a jury.
The latest such supplemental opinion is Arizona v. Antoin Jones, authored by Justice Ryan and issued on July 7, 2003. Jones was convicted of first degree premeditated murder and other crimes in connection with the kidnapping and murder of a twelve-year-old girl that occurred in Glendale in the Spring of 1996. At the sentencing hearing, the judge found two aggravators to be present: (1) the crime was committed in an especially heinous, cruel, or depraved manner, and (2) the victim was under fifteen years of age. The judge found some mitigating factors, but found them insufficiently weighty to render the death penalty inappropriate, and imposed a death sentence. In its supplemental opinion, the Arizona Supreme Court noted that the fact that a jury did not make the second finding constituted harmless error, because Jones' trial jury found him guilty of crimes that included the victim's age as an element. But the Court reached a different conclusion with respect to the other aggravator, as well as several of the mitigating factors Jones urged the judge to find. Reiterating what has been frequent refrain in its post-Ring supplemental decisions, the Court stressed that facts found by a judge on the basis of a witness's testimony might well not have been found by a jury, because a jury might have decided not to credit the witness's testimony. The judge's finding that the murder was "cruel" because the victim consciously suffered fell in this category, as it was based on the testimony of Jones' girlfriend. So did the judge's finding that Jones was able appreciate the wrongfulness of his conduct (which the judge based on the testimony of the State's expert) and the judge's rejection of a number of mitigating factors urged by Jones (which the judge based on his refusal to credit Jones' witnesses). Although the Court believed that the physical evidence would have required any reasonable jury to find that the murder involved gratuitous violence and the senseless killing a helpless victim, the presence of a number of substantial factual findings that might have been rejected by the jury led the Court to remand the case for a new sentencing hearing before a jury.
Chief Justice Jones wrote a brief concurring opinion in which he reiterated the position he took in the consolidated cases: The absence of a jury at the initial sentencing hearings in each of the consolidated cases was "structural error" that can never be harmless, and thus a remand for resentencing before a jury in all of the consolidated cases should have been ordered without harmless-error analysis. Justice Hurwitz, who represented the defendants in the consolidated cases prior to his appointment to the court, took no part in the decision.
In its last Term, the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), held that Arizona's death-sentencing system violated the defendants' Sixth and Fourteenth Amendment right to have juries, rather than judges, find the facts - known as "aggravating" facts or circumstances - that enable the State to impose a sentence of death. The Arizona Supreme Court subsequently consolidated all of the Arizona death-penalty cases that had not yet become final when Ring v. Arizona was decided and called for briefing and argument on what to do next. The Court issued its decision on these common issues on April 3, 2003. The Court rejected arguments to the effect that all of these defendants had to be resentenced to life imprisonment, and instead decided to review each death sentence to determine whether the fact that a judge, rather than a jury, found the aggravating facts that enabled these defendants to be sentenced to death could be characterized as "harmless error" -- i.e., an error in the trial proceedings that clearly didn't make any difference in the outcome.
Since then, the Court has periodically issued supplemental opinions deciding, in individual cases from the previously-consolidated group, whether the judge-finding of aggravators was harmless error. When it finds that the error was not harmless, the Court remands the case for a new sentencing hearing at which a jury will be asked to find the aggravating facts. (Under the statute enacted to fix the constitutional problem in Arizona's death-sentencing scheme, the jury at the new sentencing will also be asked to determine whether any "mitigating" facts -- or facts weighing against re-imposing the death sentence -- are present, and to determine whether, in light of the mitigating and aggravating facts, a death sentence should be imposed.) So far, all of the Court's supplemental opinions in these cases have remanded for new sentencing hearings before a jury.
The latest such supplemental opinion is Arizona v. Antoin Jones, authored by Justice Ryan and issued on July 7, 2003. Jones was convicted of first degree premeditated murder and other crimes in connection with the kidnapping and murder of a twelve-year-old girl that occurred in Glendale in the Spring of 1996. At the sentencing hearing, the judge found two aggravators to be present: (1) the crime was committed in an especially heinous, cruel, or depraved manner, and (2) the victim was under fifteen years of age. The judge found some mitigating factors, but found them insufficiently weighty to render the death penalty inappropriate, and imposed a death sentence. In its supplemental opinion, the Arizona Supreme Court noted that the fact that a jury did not make the second finding constituted harmless error, because Jones' trial jury found him guilty of crimes that included the victim's age as an element. But the Court reached a different conclusion with respect to the other aggravator, as well as several of the mitigating factors Jones urged the judge to find. Reiterating what has been frequent refrain in its post-Ring supplemental decisions, the Court stressed that facts found by a judge on the basis of a witness's testimony might well not have been found by a jury, because a jury might have decided not to credit the witness's testimony. The judge's finding that the murder was "cruel" because the victim consciously suffered fell in this category, as it was based on the testimony of Jones' girlfriend. So did the judge's finding that Jones was able appreciate the wrongfulness of his conduct (which the judge based on the testimony of the State's expert) and the judge's rejection of a number of mitigating factors urged by Jones (which the judge based on his refusal to credit Jones' witnesses). Although the Court believed that the physical evidence would have required any reasonable jury to find that the murder involved gratuitous violence and the senseless killing a helpless victim, the presence of a number of substantial factual findings that might have been rejected by the jury led the Court to remand the case for a new sentencing hearing before a jury.
Chief Justice Jones wrote a brief concurring opinion in which he reiterated the position he took in the consolidated cases: The absence of a jury at the initial sentencing hearings in each of the consolidated cases was "structural error" that can never be harmless, and thus a remand for resentencing before a jury in all of the consolidated cases should have been ordered without harmless-error analysis. Justice Hurwitz, who represented the defendants in the consolidated cases prior to his appointment to the court, took no part in the decision.
Posted by azapp @ Tue, Jul 8, 2003
Arizona v. Antoin Jones: Supreme Court Remands Another Pre-Ring v. Arizona Death Penalty Case For Resentencing Before A Jury
In its last Term, the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), held that Arizona's death-sentencing system violated the defendants' Sixth and Fourteenth Amendment right to have juries, rather than judges, find the facts - known as "aggravating" facts or circumstances - that enable the State to impose a sentence of death. The Arizona Supreme Court subsequently consolidated all of the Arizona death-penalty cases that had not yet become final when Ring v. Arizona was decided and called for briefing and argument on what to do next. The Court issued its decision on these common issues on April 3, 2003. The Court rejected arguments to the effect that all of these defendants had to be resentenced to life imprisonment, and instead decided to review each death sentence to determine whether the fact that a judge, rather than a jury, found the aggravating facts that enabled these defendants to be sentenced to death could be characterized as "harmless error" -- i.e., an error in the trial proceedings that clearly didn't make any difference in the outcome.
Since then, the Court has periodically issued supplemental opinions deciding, in individual cases from the previously-consolidated group, whether the judge-finding of aggravators was harmless error. When it finds that the error was not harmless, the Court remands the case for a new sentencing hearing at which a jury will be asked to find the aggravating facts. (Under the statute enacted to fix the constitutional problem in Arizona's death-sentencing scheme, the jury at the new sentencing will also be asked to determine whether any "mitigating" facts -- or facts weighing against re-imposing the death sentence -- are present, and to determine whether, in light of the mitigating and aggravating facts, a death sentence should be imposed.) So far, all of the Court's supplemental opinions in these cases have remanded for new sentencing hearings before a jury.
The latest such supplemental opinion is Arizona v. Antoin Jones, authored by Justice Ryan and issued on July 7, 2003. Jones was convicted of first degree premeditated murder and other crimes in connection with the kidnapping and murder of a twelve-year-old girl that occurred in Glendale in the Spring of 1996. At the sentencing hearing, the judge found two aggravators to be present: (1) the crime was committed in an especially heinous, cruel, or depraved manner, and (2) the victim was under fifteen years of age. The judge found some mitigating factors, but found them insufficiently weighty to render the death penalty inappropriate, and imposed a death sentence. In its supplemental opinion, the Arizona Supreme Court noted that the fact that a jury did not make the second finding constituted harmless error, because Jones' trial jury found him guilty of crimes that included the victim's age as an element. But the Court reached a different conclusion with respect to the other aggravator, as well as several of the mitigating factors Jones urged the judge to find. Reiterating what has been frequent refrain in its post-Ring supplemental decisions, the Court stressed that facts found by a judge on the basis of a witness's testimony might well not have been found by a jury, because a jury might have decided not to credit the witness's testimony. The judge's finding that the murder was "cruel" because the victim consciously suffered fell in this category, as it was based on the testimony of Jones' girlfriend. So did the judge's finding that Jones was able appreciate the wrongfulness of his conduct (which the judge based on the testimony of the State's expert) and the judge's rejection of a number of mitigating factors urged by Jones (which the judge based on his refusal to credit Jones' witnesses). Although the Court believed that the physical evidence would have required any reasonable jury to find that the murder involved gratuitous violence and the senseless killing a helpless victim, the presence of a number of substantial factual findings that might have been rejected by the jury led the Court to remand the case for a new sentencing hearing before a jury.
Chief Justice Jones wrote a brief concurring opinion in which he reiterated the position he took in the consolidated cases: The absence of a jury at the initial sentencing hearings in each of the consolidated cases was "structural error" that can never be harmless, and thus a remand for resentencing before a jury in all of the consolidated cases should have been ordered without harmless-error analysis. Justice Hurwitz, who represented the defendants in the consolidated cases prior to his appointment to the court, took no part in the decision.
In its last Term, the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), held that Arizona's death-sentencing system violated the defendants' Sixth and Fourteenth Amendment right to have juries, rather than judges, find the facts - known as "aggravating" facts or circumstances - that enable the State to impose a sentence of death. The Arizona Supreme Court subsequently consolidated all of the Arizona death-penalty cases that had not yet become final when Ring v. Arizona was decided and called for briefing and argument on what to do next. The Court issued its decision on these common issues on April 3, 2003. The Court rejected arguments to the effect that all of these defendants had to be resentenced to life imprisonment, and instead decided to review each death sentence to determine whether the fact that a judge, rather than a jury, found the aggravating facts that enabled these defendants to be sentenced to death could be characterized as "harmless error" -- i.e., an error in the trial proceedings that clearly didn't make any difference in the outcome.
Since then, the Court has periodically issued supplemental opinions deciding, in individual cases from the previously-consolidated group, whether the judge-finding of aggravators was harmless error. When it finds that the error was not harmless, the Court remands the case for a new sentencing hearing at which a jury will be asked to find the aggravating facts. (Under the statute enacted to fix the constitutional problem in Arizona's death-sentencing scheme, the jury at the new sentencing will also be asked to determine whether any "mitigating" facts -- or facts weighing against re-imposing the death sentence -- are present, and to determine whether, in light of the mitigating and aggravating facts, a death sentence should be imposed.) So far, all of the Court's supplemental opinions in these cases have remanded for new sentencing hearings before a jury.
The latest such supplemental opinion is Arizona v. Antoin Jones, authored by Justice Ryan and issued on July 7, 2003. Jones was convicted of first degree premeditated murder and other crimes in connection with the kidnapping and murder of a twelve-year-old girl that occurred in Glendale in the Spring of 1996. At the sentencing hearing, the judge found two aggravators to be present: (1) the crime was committed in an especially heinous, cruel, or depraved manner, and (2) the victim was under fifteen years of age. The judge found some mitigating factors, but found them insufficiently weighty to render the death penalty inappropriate, and imposed a death sentence. In its supplemental opinion, the Arizona Supreme Court noted that the fact that a jury did not make the second finding constituted harmless error, because Jones' trial jury found him guilty of crimes that included the victim's age as an element. But the Court reached a different conclusion with respect to the other aggravator, as well as several of the mitigating factors Jones urged the judge to find. Reiterating what has been frequent refrain in its post-Ring supplemental decisions, the Court stressed that facts found by a judge on the basis of a witness's testimony might well not have been found by a jury, because a jury might have decided not to credit the witness's testimony. The judge's finding that the murder was "cruel" because the victim consciously suffered fell in this category, as it was based on the testimony of Jones' girlfriend. So did the judge's finding that Jones was able appreciate the wrongfulness of his conduct (which the judge based on the testimony of the State's expert) and the judge's rejection of a number of mitigating factors urged by Jones (which the judge based on his refusal to credit Jones' witnesses). Although the Court believed that the physical evidence would have required any reasonable jury to find that the murder involved gratuitous violence and the senseless killing a helpless victim, the presence of a number of substantial factual findings that might have been rejected by the jury led the Court to remand the case for a new sentencing hearing before a jury.
Chief Justice Jones wrote a brief concurring opinion in which he reiterated the position he took in the consolidated cases: The absence of a jury at the initial sentencing hearings in each of the consolidated cases was "structural error" that can never be harmless, and thus a remand for resentencing before a jury in all of the consolidated cases should have been ordered without harmless-error analysis. Justice Hurwitz, who represented the defendants in the consolidated cases prior to his appointment to the court, took no part in the decision.
Posted by azapp @ Tue, Jul 8, 2003
Tuesday, July 1, 2003
Today is the private launch of the Arizona Appellate Blog hosted by Osborn Maledon P.A. The goals of this blog are: 1) to comprehensively track the latest decisions from the Arizona appellate courts, 2) follow and highlight other developments surrounding the Arizona appellate courts, 3) provide a resource of useful information for those who practice in the Arizona appellate courts, 4) provide a resource of useful information for others who are interested in the Arizona appellate courts.
Posted by azapp @ Tue, Jul 1, 2003
Today is the private launch of the Arizona Appellate Blog hosted by Osborn Maledon P.A. The goals of this blog are: 1) to comprehensively track the latest decisions from the Arizona appellate courts, 2) follow and highlight other developments surrounding the Arizona appellate courts, 3) provide a resource of useful information for those who practice in the Arizona appellate courts, 4) provide a resource of useful information for others who are interested in the Arizona appellate courts.
Posted by azapp @ Tue, Jul 1, 2003
