SUPREME COURT
CRIMINAL MATTERS
A trial court
does not err in denying a motion
to suppress pretrial identification following a Dessureault
hearing at which a defendant is
first identified as a perpetrator
of a crime when a photographic
lineup administered by police is
not unduly suggestive, and prior
to the hearing the eyewitness to
the crime sees photographs of
the alleged perpetrator(s) on
reward fliers that were neither
created nor distributed by
police. The “due process clause
does not preclude every identification that is arguably unreliable; it
precludes identification testimony
procured by the state through
unduly suggestive pretrial procedures.” As such, in cases involving
Dessurreault-related identification
issues only identification evidence
allegedly tainted by state action
must meet reliability standards. A
trial court does not err in denying a defense Batson challenge
involving the State’s use of a
peremptory strike of a prospective juror with the same minority background as the defendant
on trial when the State offers a
race neutral explanation for the
strike and the record shows the
state accepted other minority
jurors on the venire indicating a
nondiscriminatory motive.
Batson challenges are subject to a
three-step analysis: “( 1) the party
challenging the strike must make a
prima facie showing of discrimination; ( 2) the striking party must
provide a race-neutral reason for
the strike; and ( 3) if a race-neutral
explanation is provided, the trial
court must determine whether the
challenger has carried its burden of
proving purposeful racial discrimination.” State v. Garcia, CR-07-
0438, 3/18/10.
ment for criminal acts is not violated when the State is permitted to retry the penalty phase in
a capital case after a jury is deadlocked, and the legislature subsequently changes the procedures applicable to capital
defendants. Although both
Article I, Sec. 10 of the United
States Constitution and Article 2,
Sec. 25 of the Arizona
Constitution “prohibit[] a state
from ‘retroactively alter[ing] the
definition of crimes or
increase[ing] the punishment for
criminal acts,” the subsequent
change in A.R.S. § 13-752(K)
(formerly A.R.S. § 13-703) is procedural rather than substantive
because it requires a trial court to
impose a life sentence only after
two ( 2) juries have been impaneled
in a death penalty case, and neither
jury is able to resolve the case.
State v. Cropper, CR-08-0116-AP,
3/11/10.
The Arizona Supreme Court accepted
review or jurisdiction of the following
issues on April 7, 2010*:
State v. Adam Scott King, 2 CA-CR
2009-0047, CR-09-0333-PR, 222 Ariz.
636, 218 P.3d 1093 (App. 2009):
Issue Presented:
The court of appeals ruled that the trial
court erred in granting a new trial in this
matter [although the court of appeals
noted the inconsistency between the lan-
guage of A.R.S. § 13-404 and dicta used
in some cases after the modification of the
Arizona Criminal Code that have included
the “solely” element in listing the elements of self-defense].
compiled by
Barbara McCoy Burke
Staff Attorney
Arizona Supreme Court
SUPREME
COURT
PETITIONS
Paul Kadlec, et al. v. Daniel Dorsey and Sherri Dorsey, 1 CA-CV-10-
0028-PR, 223 Ariz. 330, 223 P.3d 674 (App. 2009) (Brammer, J.,
dissenting):
Issue Presented:
When land is sold subject to a roadway easement, is the usual burden
of proof reversed so that courts presume an intent to dedicate the
roadway to public use?
*Unless otherwise noted, the issues are taken verbatim from
either the petition for review or the certified question.
In a case involving charges
including Theft of Means of
Transportation pursuant A.R.S.
§ 13-1814(A)( 5) a trial court
may err by failing to instruct the
jury regarding the lesser included offense of Unlawful Use of a
Means of Transportation.
Although defense counsel may fail
to make an appropriate record
regarding a requested instruction,
appellate review of such an issue is
not precluded if the defense
requested on the record that the
trial court give a particular instruction and the evidence may have
supported it. In such situations, an
appellate court should not decline
to consider a jury instruction issue
raised on appeal when the record
on appeal contains the trial transcript and all exhibits necessary to
determine the issue. State v.
Geeslin, CR-09-0205-PR,
3/4/10.
The rule against ex post facto
changes in the definition of
crimes or increasing the punish-
A trial court does not abuse
its discretion under Rules 11. 5
and 11. 6, ARIZ.R.CRIM.P., fol-
lowing the initial finding of
incompetency of a particular
defendant and ordering their
participation in an appropriate
restoration program by subse-
quently finding the defendant
competent to stand trial follow-
ing a stipulation of the parties to
the use of the final report from
the restoration program that
concluded that the defendant
may have feigned his earlier
reported psychosis and actually
understood the nature of the
charges against them with an
ability to assist in their defense.
Although a defendant has a due
process “right not to be tried or
convicted while incompetent and
Rule 11. 2, ARIZ.R.CRIM.P., pro-
tects that right by providing for a
prescreening examination and hear-
ing if reasonable grounds exist to
question an accused’s competence
based upon sufficient evidence to
indicate the defendant is unable to
understand the nature of the pro-
Thomas L. Hudson is a member at Osborn Maledon PA, where his practice focuses on civil appeals and appellate consulting
with trial lawyers. He can be reached at thudson@omlaw.com, and is ably assisted with this column by Osborn Maledon PA’s
appellate group, which maintains www.azapp.com. AzAPP contributors include Michael S. Catlett, Sharad H. Desai,
Brandon A. Hale, Mark P. Hummels, Kathleen Brody O’Meara, James K. Rogers, Joseph N. Roth and Kristin L.
Windtberg.
Patrick Coppen is a sole practitioner in Tucson.
ceeding against them and/or assist
in their defense, Rule 11 requires a
court to hold a subsequent “
hearing to redetermine the defendant’s
competency” after participation in a
restoration program. At the new
hearing it may redetermine a defendant’s competency by considering
evidence introduced by the parties
regarding the defendant’s mental
condition or through the submission of the matter by stipulation of
the parties on expert reports. A
trial court in a death penalty case
does not err when a jury deciding
the issue cannot unanimously
agree and the court gives an
impasse instruction after the jury
had twice indicated it was deadlocked because a judge need not
blindly accept a jury’s indication of
an impasse, yet retains authority in
such a situation under Rule 22. 4,
ARIZ.R.CRIM.P., to ask the jurors if
the court or counsel can assist
them. Factors indicating jury coercion under a totality of the circumstances may include situations in
which the numerical division or
split relating to the impasse is
known by the court, as well as the
length of time the jury has deliberated (in relation to the length of the
actual trial) when the trial court
delivers an impasse instruction.
