Recent Decisions

Did the trial court abuse its discretion by granting the defendant’s motion for new trial on the ground the court had denied a requested self-defense instruction after finding the defendant had failed to produce “sufficient evidence” he had acted solely out of fear of imminent danger?

2. Did the trial court properly preclude as prejudicial and irrelevant evidence of the murder victim’s cocaine use when the defendant made no offer of proof as to any specific evidence?

3. Did the trial court err in denying the defendant’s request to admit into evidence his medical records, which arguably may have supported a conviction on a lesser degree of murder, when the defendant was convicted of felony murder, which has no lesser-included offenses?

4. Did the trial court err in denying the defendant’s motion for a new trial based on alleged prosecutorial misconduct in closing arguments?

2. Whether the trial court was compelled to sentence the defendant–a repeat offender convicted of a subsequent methamphetamine-related offense–under A.R.S. § 13-712, the methamphetamine-specific sentencing statute, rather than under A.R.S. § 13-604(D), the general sentence-enhancement statute applicable to repeat offenders.

2. Whether such a sniff search constitutes an infringement of article II, § 8 of the Arizona Constitution, and if so, whether officers must have probable cause and a warrant to conduct it or whether they merely need reasonable suspicion contraband will be found in the home.

3. If the canine sniff search of Guillen’s home was an unlawful search, whether the evidence ultimately seized pursuant to a consensual physical search of the residence should be suppressed as fruit of the poisonous tree.

Should this court reconsider its opinion in light of the corrected transcript given the state’s untimely request to correct the record?

2. Was there sufficient evidence to support the defendant’s convictions for attempted armed robbery when, while displaying a gun, he asked the victims if they had any money and they replied, “no”?

(2) Whether the state exerted improper influence over the testimony of a witness.

2. Whether the trial court fundamentally erred in reducing indigent defense fees to a criminal restitution order at sentencing.

2. Whether trial to an eight-person jury constituted fundamental error.

Did the trial court err in admitting an expert opinion that drugs possessed by the defendant were for sale, rather than personal use?

2) Are the spouses of a person convicted of bigamy “victims” as defined by Arizona law?

3) May a court order a criminal defendant to pay restitution following a restitution hearing attended by neither the defendant nor his counsel?

Was the defendant’s due process right to notice of the charges against him under the Arizona and United States Constitutions violated when the court allowed the amendment of his indictment during trial from transportation of a dangerous drug for sale to possession of a dangerous drug?

2. Did the trial court err in allowing the jury to view portions of the child pornography found in defendant’s residence despite his offer to stipulate that the material was child pornography?

3. Did the trial court violate defendant’s Sixth Amendment right to retain counsel of his choice when it denied the application of defendant’s father, an Illinois attorney, to appear pro hac vice?

4. To be guilty of a dangerous crime against children under A.R.S. § 13-604.01, must a defendant have known that the children depicted in child pornography the defendant possessed were under the age of fifteen?

5. Did the trial court violate Rule 15 of the Arizona Rules of Criminal Procedure and commit fundamental error by allowing the state, in making its pretrial disclosure, to provide Coghill with copies of his computer hard drives rather than producing the original hard drives?

2. Was the evidence sufficient to permit the jury to find that the defendant was the same person previously convicted in another jurisdiction?

3. Was the trial court required to amend the presentence report pursuant to Rule 26.8(c), Ariz. R. Crim. P., based on the defendant’s allegations that it contained incorrect information?

2. Whether the defendant’s prior convictions for arson and conspiracy to commit arson occurred on the “same occasion” for purposes of A.R.S. § 13-604(M).

2. Did the admission of written urinalysis results without requiring a laboratory employee to testify and be cross-examined violate appellant’s Sixth Amendment confrontation rights as interpreted in Crawford v. Washington?

2. Whether the trial court erred by concluding the state did not violate Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by exercising peremptory strikes against two African-American prospective jurors.

Was an assault victim’s excited utterance at the scene, in response to a police officer’s question, “what happened?” testimonial and, therefore, subject to the Sixth Amendment’s Confrontation Clause under Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266 (2006), and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)?

2. Was the state’s evidence (a DOC “pen pack”) insufficient to prove defendant’s prior convictions for sentence enhancement purposes when that evidence did not include certified copies of the convictions themselves?

(2) Did the trial court’s imposition of an aggravated sentence violate Blakely v. Washington, 124 S. Ct. 2531 (2004), when some of the aggravating factors the trial court cited were neither found by a jury nor admitted by the defendant and when the trial court also found mitigating factors?

2. Under the facts of this case, did prohibited possession and aggravated assault with a deadly weapon constitute different acts?’

2. Was the defendant properly sentenced to a life term for the crime of sexual conduct with a minor, pursuant to A.R.S. § 13-604.01(A)?

2. Does § 13-1417(C) violate the jury unanimity requirement of article II, § 23 of the Arizona Constitution?

2. After the trial court granted a judgment of acquittal on all DUI charges and instructed the jury to disregard any alcohol-related evidence, was the remaining evidence sufficient to support a finding that the defendant had acted with criminal recklessness?

B. Whether the imposition of aggravated prison terms, in the absence of any Blakely-compliant or -exempt aggravating circumstances, constituted fundamental error.

C. Whether the defendant demonstrated he had been prejudiced by Blakely error when, as to one of the six aggravating circumstances found by the court, no reasonable jury could have reached a different conclusion.

2. Did the trial court’s admission, with a limiting instruction, of a non-testifying codefendant’s statement to police solely for impeachment purposes violate the defendant’s right of confrontation?

3. Did the defendant show fundamental, prejudicial error in the trial court’s finding aggravating sentencing factors that were neither Blakely-compliant nor -exempt?

2. In prosecution for aggravated DUI under A.R.S. § 28-1383(A)(3), did the trial court err in admitting, pursuant to Rule 803(19), Ariz. R. Evid., the arresting officer’s testimony about hearsay statements establishing the passenger’s age and date of birth?

3. When inadmissible evidence was admitted at trial and constituted the sole proof of one element of the charged offense, and when the conviction is reversed on that basis on appeal, do double jeopardy principles preclude a retrial on the same charge?

2. Did the trial court violate Blakely v. Washington by imposing aggravated sentences when some, but arguably not all, of the aggravating factors the court found were Blakely-compliant or -exempt, and when the court also found mitigating factors?

3. Is a defendant’s prior misdemeanor conviction Blakely-exempt?

4. Was any Blakely error harmless beyond a reasonable doubt?

Is A.R.S. § 28-1381, which prohibits having a blood alcohol concentration of .08 or greater within two hours of driving, unconstitutionally vague because a driver may not be able to determine the precise time when his or her blood alcohol concentration reaches .08 or, alternatively, because the statute permits arbitrary and discriminatory enforcement?

Does a defendant have standing to challenge A.R.S. § 28-1381 as overbroad when applied to parties not before the court if his First Amendment rights are not implicated?

Did the legislature’s elimination of the affirmative “relation back” defense provision of A.R.S. § 28-1381 render the statute no longer rationally related to furthering a legitimate governmental interest? Alternatively, did the elimination of that clause unconstitutionally extinguish the state’s burden of proving the offense beyond a reasonable doubt?

2. Can the state use evidence that a defendant moved his vehicle from the scene of an accident at an officer’s request as proof that defendant had the requisite alcohol concentration within two hours of driving as required by former A.R.S. § 28-692(A)(2), now § 28-1381(A)(2), without violating defendant’s due process rights, when the officer had no reason to believe defendant was impaired at the time of the request?

Issue Statement

Did the petitioner raise a colorable claim for post-conviction relief in asserting that trial counsel had been ineffective for failing to reinitiate plea negotiations with the prosecutor just before trial began?

Lopez Issue Statement

1. May a defendant charged with misconduct involving weapons by possessing a deadly weapon when prohibited from doing so under A.R.S. § 13-3102 require the state to stipulate to the defendant’s status as a prohibited possessor?

2 When a defendant charged with misconduct involving weapons by possessing a deadly weapon when prohibited from doing so contends he discovered the existence of that weapon in his vehicle only after passengers had departed, did the trial court abuse its discretion by refusing that defendant’s proffered jury instruction stating that “[p]assing control, such as momentarily handling an item, does not constitute possession of that item” under A.R.S. § 13-3102(A)(4), and stating that in order to find the defendant guilty the jury must find beyond a reasonable doubt that the defendant had had more than just passing control of the firearm?

2. Does either the Fourth Amendment or the exclusionary rule apply to the actions of a tribal ranger lacking authority as an Arizona peace officer?

Issue Summary:

1. May the state amend existing allegations of prior convictions for sentence enhancement pursuant to A.R.S. §13-604 after trial but before sentencing to change dates of conviction and specify the class of felony?

2. Must the state prove the existence of a prior historical conviction for sentence enhancement under A.R.S. § 13-604(P) beyond a reasonable doubt?

3. Was the procedure followed by the state and the evidence submitted sufficient to prove the defendant’s prior convictions for sentence enhancement pursuant to A.R.S. §13-604?

Issue Summary

Are the defenses in A.R.S. § 13-411 available to a defendant who is not a resident of a dwelling but who is present at the invitation of a resident and who asserts he shot the victim to protect the sanctity of the dwelling from an altercation between the victim and another guest?

Issue Summary

When a pleading defendant is granted a new sentencing hearing following successful post-conviction proceedings, may the defendant seek direct review of the new sentence under A.R.S. § 13-4033?

State v. Guilliams

Issue Summary

To what extent, if at all, may a trial court order a criminal defendant who aided and abetted a prison escape to pay restitution to the Arizona Department of Corrections for institutional costs incurred in responding to the escape?

2. Does the limitation period in § 13-107(B) begin when the state discovers or, with the exercise of reasonable diligence, should have discovered that an offense possibly has been committed or, rather, that an offense probably has been committed?

To enter a defendant’s home to execute an arrest warrant, must a law enforcement officer possess a reasonable belief that the defendant is probably home or may the officer lawfully enter based on a mere possibility that the defendant will be found within?

2. Can the act of a passenger who alters the course of a moving vehicle by grabbing its steering wheel constitute “actual physical control” for purposes of the DUI statutes?

2. Were the defendant’s Fourth Amendment rights violated following the conclusion of the traffic stop by the officer’s asking additional questions and conducting a “dog sniff” of the defendant’s vehicle where the police dog was already at the scene and the additional time involved was very brief?

2. Are A.R.S. §§ 13-501(A)(6) and 13-501(E) unconstitutional under Apprendi and its progeny?

3. Was officers’ seizure of weapon justified by concerns for officer safety and, therefore, constitutionally reasonable?

Does sexual gratification constitute a benefit under A.R.S. § 13-2310?

How should the corpus delicti rule be applied to closely related sexual offenses against children?

2) Whether the trial court erred in denying defendants’ motion for summary judgment because § 20-259.01 contains a safe-harbor provision which immunizes insurance companies from litigation when they provide insureds offer forms approved by the Department of Insurance.

3) Whether the trial court erred in granting plaintiff’s motion for summary judgment because questions of fact existed as to whether plaintiff knowingly declined UM\UIM coverage.

2) May a court disregard the financial resources of a party who seeks an award of costs, expenses, and attorney fees under A.R.S. § 25-324(A) and consider only the financial resources of the party who would be paying the fee award?

2. Does A.R.S. § 33-422 require a seller of real estate to provide an affidavit of disclosure once the buyer has anticipatorily repudiated the purchase agreement?

2. Did the trial court err in finding neither the state nor the county had any duty to plaintiff, decedent’s mother, to investigate more thoroughly her son’s death or to identify his body before disposing of it?

2. When the property owner did not dispute that the claimant and his predecessor in interest had used the property openly, notoriously, and without interference for nearly forty years, did the evidence in this quiet title action support the trial court’s ruling that the claimant had failed to prove he had acquired rights to the property by prescriptive easement and adverse possession?

2) Does a business owner’s nondelegable duty to maintain safe premises encompass the actions of an independent contractor it hires to perform security services on its premises, thus exposing the business owner to vicarious liability?

Can a seller of a bar be held liable for the negligent training of bar employees when the employees’ allegedly negligent conduct occurs after the seller no longer employs them, when they are employed by the purchaser and new operator of the bar?

2) Absent a request for an evidentiary hearing, did the trial court err in summarily finding from undisputed facts and documents presented that a wife had had implied, actual authority to execute an arbitration agreement on behalf of her incapacitated husband in connection with his stay at a nursing home facility?

2) Whether the 2005 amendment to Pima County’s sewer connection fee ordinance unconstitutionally impaired an existing sewer fee agreement between Pima County and Robson Ranch Quail Creek, LLC.

II. Whether a cause of action for defamation—based on letters sent to third parties—accrues on the date the letters are published or the date the plaintiff discovered or reasonably should have discovered the existence of the letters.

III. Whether communications between two agents of the same principal constitute “publication” for defamation purposes.

2. Can the trial court’s dismissal of the employee’s administrative appeal be alternatively upheld on the ground the Personnel Board lacked jurisdiction because the employee’s appeal was untimely?

Did the trial court err in granting summary judgment to defendant against a plaintiff who had slipped and fallen on defendant’s business premises on the ground plaintiff had failed to present sufficient evidence that defendant could reasonably anticipate that hazardous conditions would regularly arise under the mode-of-operation rule adopted in Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987)?

3. Did the trial court err as a matter of law in finding that Chilton had proved sufficient evidence of the falsity of CBD’s publication?

4. Did the trial court err as a matter of law in finding that Chilton had proved sufficient evidence of actual malice?

5. Did the trial court err in submitting three written questions to the jury regarding only the question of the falsity of CBD’s publication?

6. Were the punitive damages assessed against CBD, a non-profit agency, inappropriate or excessive?

2. Did the trial court abuse its discretion in awarding attorney fees to appellee Cochise County?

2. Was Casa Grande’s previous approval from the State Land Department valid for its new annexation petition?

2. Was the evidence sufficient to support plaintiff’s claim of negligent entrustment against defendant-wife based on her knowledge that her codefendant husband was incompetent to drive?

3. Was the jury’s damage award of $200,000 excessive or unsupported by the evidence?

4. Absent sufficient evidence to support plaintiff’s negligent-entrustment claim against defendant-wife, may the jury’s allocation of fault to her be reallocated to defendant-husband, who admitted fault for the accident and for having caused plaintiff’s damages?

2. Did the court abuse its discretion in denying the plaintiff’s alternative requests for an extension of time for service under Rule 4(i) or for relief under Rule 60(c), Ariz. R. Civ. P., or A.R.S. § 12-504, Arizona’s savings statute?

2. When the same individual serves in both an investigatory and adjudicatory role in a hospital peer review process and the hospital bylaws do not prohibit the same individual from serving in dual roles, does the person’s serving in dual roles, without more, deny the physician a fair process?

2. Did the Commission’s finding that the sheriff’s termination decision was shocking to a sense of fairness, in the absence of any evidence to support that finding, authorize the Commission to reject the Department’s choice of sanction without imposing any other disciplinary measure?

When presumption of undue influence arises about the execution of a will, does the burden of production or the burden of persuasion shift to the proponent of the will?

2) Did the trial court err in setting aside a default judgment on the ground that the plaintiff’s attempted service of process by certified mail, pursuant to Rule 4.2(c), had failed, when the plaintiff had expressly and unconditionally authorized a commercial mail-receiving agency to receive “restricted delivery mail” on her behalf and when that agency had received and signed for the certified mail delivery of the summons and complaint?

2. Did trial court properly grant summary judgment in favor of former employee on plaintiff’s claims for breach of contract, misappropriation of trade secrets, conversion, tortious interference with business expectancy, and defamation?

2. Was musicians’ labor organization obligated by labor agreement to pursue arbitration by presenting any and all musician/employee grievances in writing to the symphony’s Executive Director?

3. Did the trial court abuse its discretion in awarding to defendants/appellees all attorney fees they had requested pursuant to A.R.S. § 12-341.01(A)?

2. In a “mass-tort” case involving multiple plaintiffs and an extended time frame over which plaintiffs allegedly were injured by a toxic substance, what legal theory should apply in determining whether an “accident” with resulting damage occurred during an insurer’s policy period so as to trigger coverage?

3. Did the trial court err in finding insurance coverage under the insurer’s CGL “accident” policy based on the plaintiffs having sustained cellular damage from exposure to a toxic substance during the insurer’s policy period, despite the lack of proof of any fully manifested disease during that period?

4. Did the trial court err in finding reasonable a Morris agreement and resulting consent judgment when the insured evaluated and settled the claims of approximately 1,600 plaintiffs on a “global” basis, without requiring individualized proof on the nature and extent of plaintiffs’ injuries and damages?

5. Having found coverage under the insurer’s CGL “accident” policy, did the trial court err in failing to likewise find coverage under the insurer’s “occurrence” policy?

6. Did the plaintiffs/Intervenors, as assignees of the insured’s rights under the CGL insurance policy, properly and timely seek a money judgment as supplemental relief in this DRA, pursuant to A.R.S. § 12-1838?

7. Was plaintiffs/Intervenors’ request for monetary relief in the DRA barred because of their alleged failure under A.R.S. § 12-1551 to renew the consent judgment they had obtained pursuant to the Morris agreement in the underlying tort case or because their request constituted an impermissible direct action against the insurer?

8. Did plaintiffs/Intervenors’ complaint-in-intervention in this DRA qualify under A.R.S. § 12-1611 as an action on the consent judgment previously entered in the underlying tort case for purposes of timely renewing that judgment and avoiding its expiration?

Issue Summary

In a special action arising from a criminal proceeding, did the trial court err in imposing a sanction of attorney fees against the state pursuant to Rule 11(a) of the Arizona Rules of Civil Procedure?

Issue Summary

Whether the trial court erred in refusing to apply the doctrine of equitable subrogation to subrogate a permanent financing lender to the first lien position of the construction lender where the permanent loan discharged the construction loan and intervening mechanics lienholders did not establish any material prejudice

1. Must a plaintiff demonstrate that the defendant abused a specific court process to establish a claim for abuse of process or can the claim be based on the course of the litigation process as a whole?

2. Does Arizona law limit the range of court procedures on which an abuse of process claim can be based to those that compel an opposing litigant to act or forbear to act ?

3. Can a litigant who did not initiate a specific court process but who abused it be held liable for abuse of process?

Whether an easement holder owes a duty of care to invitees on the servient estate with respect to conditions created by the landowner and unrelated to the easement holder’s use of the land.

In re Bond Forfeiture, CV 2003-0165 ISSUE SUMMARY:

Does a surety assume the risk of a defendant’s failure to appear when the defendant was deported before trial, when information about his immigration status was available at the time the surety posted the bond, and when the surety made no effort to secure permission for the defendant to re-enter the United States to appear in court?

2. Does the ordinance effect a regulatory taking or illegal exaction in violation of the Fifth Amendment to the United States Constitution and article II, § 17 of the Arizona Constitution?

1) In a product liability action involving a failed tire, was the seller’s tender of defense to, and subsequent indemnity claim against, the parent tire company proper when the tire had actually been manufactured and distributed by that company’s subsidiary?

2) Is A.R.S. § 12-684(A) a separate and independent basis for a seller’s indemnity claim against a manufacturer, or is that statutory right to indemnity also qualified and affected by common law principles?

3) Is a seller entitled to indemnity from a manufacturer if all prerequisites of § 12-684(A) are met, even when those entities had a conflict of interest and when no evidence in the indemnity action established that the product was defective at the time it left the manufacturer’s control? CV 2003-0115

Do students, who perform a routine errand at their teacher’s request and in the process accidentally injure another teacher, qualify as school “employees” under the Workers’ Compensation Act such that A.R.S. § 23-1022(A) bars the injured teacher’s common law negligence action against the students?

2. Does an arbitration agreement that expressly incorporates a set of arbitration rules, including a rule allowing the arbitrator to decide the arbitrability of the issues, provide clear and unmistakable evidence of the parties’ intention to allow the arbitrator to decide arbitrability?

3. In an arbitration award confirmation proceeding, when should the trial court hold an evidentiary hearing?

2. When does the one-year license suspension commence—when the DUI arrestee surrenders his driver’s license or, rather, when the arrestee subsequently receives the order of suspension?

2. Is a legal malpractice claim subject to equitable subrogation?

ISSUE TWO: Did the trial court err in granting a new trial on the ground that the timing of the reading of the complaint allegations unfairly prejudiced the plaintiff?

2. Must an administrative law judge conduct an independent review of the Industrial Commission’s disability benefit calculations?

After the juvenile court finds sufficient grounds to terminate a parent’s rights pursuant to § 8-533, does that parent have standing to challenge the child’s placement? Did the juvenile court make sufficient factual findings as required by Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 995 P.2d 682 (2000), and A.R.S. § 8-533(B)(4)?

2. Is the parent of a dependent child an “aggrieved party” under A.R.S. § 8-235(A) who can appeal from a dependency disposition order, even if the parent is not a potential placement for the dependent child?

2. May a juvenile court deny parents’ request to appear telephonically at a dependency adjudication hearing if the parents have left Arizona voluntarily?

3. If a defendant can waive the protection of Rule 17.4(f) and Rule 410 for statements made in connection with a breached plea agreement, did the defendant waive those protections here and did the respondent judge abuse his discretion by prohibiting the state from introducing these statements for all but impeachment purposes?

Did the trial court err by precluding the state’s witness in a DUI trial from using certain words and terms to describe the defendant's performance on field sobriety tests?

2. Does the Workers’ Compensation Act and an intergovernmental agreement between the police agencies involved divest the superior court of jurisdiction over the plaintiffs’ negligence and willful misconduct action?

3. What effect does the failure by the parties to the intergovernmental agreement to post the notice required by A.R.S. § 23-1022(E) of the Workers’ Compensation Act have on the viability of the lawsuit?

2. Were the defendant’s statements, made at the change-of-plea hearing to establish a factual basis for the plea but pertaining to matters beyond what was necessary to establish the elements of reckless manslaughter, admissions for purposes of Blakely? And by making those statements, did the defendant waive the right to have a jury determine the facts underlying the alleged aggravating circumstances?

2. Does the United States Supreme Court’s decision in Blakely v. Washington apply to a non-capital first-degree murder case, entitling the defendant to have a jury find the existence of aggravating factors beyond a reasonable doubt before the defendant may be sentenced to a prison term of natural life, rather than life with the possibility of parole?

Does a criminal defendant who appears at a contested hearing before a judge who hears that matter only but is not assigned to the case waive the right to a peremptory change of judge, pursuant to Rule 10.2, Ariz. R. Crim. P., 16A A.R.S., when the case is later reassigned to that judge for trial?

2. Does the holding in State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001), that Proposition 200 applies to drug paraphernalia offenses, apply to persons who committed offenses before Estrada was decided?