Arizona Attorney - March 2013

Wells Fargo Bank v. Allen, 1 CA-CV 11-0572, 12/4/12.

COURT OF APPEALS CRIMINAL MATTERS

A trial court violates a defendant’s constitutional right to a public trial by failing to meet the requirements of the United States Supreme Court’s decision in Waller v. Georgia allowing closure under limited circumstances by partially closing a criminal trial to most of the general public (including members of a defendant’s family), yet allowing the press to attend the proceedings, without making an appropriate record of specific findings supporting its action or considering other less restrictive alternatives. The Court of Appeals also considered and decided: ( 1) the crime of conspiracy to commit a home invasion may be the underlying felony required for a violation of A.R.S. § 13-3116 (A) (the Misuse of/Misconduct with Body Armor Statute) because the plain language of the statute unambiguously imposes criminal liability for wearing body armor during the commission of any felony offense, with the wearing of the body armor at a home-invasion staging area providing any necessary nexus with the conspiracy itself; and ( 2) severance of the trial of an arguably less culpable or involved co-defendant is not required based on the “rub-off effect” of substantial evidence against co-defendants if under all circumstances the jurors are capable of following the court’s instructions to consider the evidence relevant to each defendant separately, ensuring a fair and impartial verdict as to each. State v. Tucker, Cuttler and Armstrong, 2 CA-CR 2011-0340, 2 CA-CR 2011-0386 and 2 CA-CR 2011- 0391 (consolidated), 12/24/12.

A trial court does not err in considering the state’s rebuttal evidence in evaluating whether a Rule 32 petitioner’s newly discovered evidence probably would result in a different verdict because “[o]ther evidence that significantly reduces the exculpatory value of the new evidence present-

ed by a defendant is clearly relevant to resolving that question.” State v. Hess, 2 CA-CR 2012-0207-PR, 12/19/12.

The United States Supreme Court’s recent decision in Perry v. New Hampshire modifies Arizona Supreme Court jurisprudence previously entitling a defendant to a Dessureault hearing when a suggestive pretrial identification occurs at a court proceeding rather than as arranged by police. In Dessureault, the Arizona Supreme Court established a process for challenging police related pretrial identification procedures that are “significantly suggestive and as such materially increase[] the dangers inherent in eye witness identification.” However, the Arizona Court of Appeals further held here that under such circumstances in which a suggestive identification procedure occurs at a prior court proceeding or trial, a defendant remains entitled to a cautionary jury instruction because due process requires that pretrial identification procedures be conducted in a manner that is fundamentally fair, securing a defendant’s right to a fair trial. In finding that the lower court had committed reversible error in failing to give the requested “ eyewit-ness-specific jury instructions” “warn[ing] the jury to take care in appraising [the] identification evidence,” the Court of Appeals noted that the Supreme Court in Perry had actually highlighted the specific Arizona instruction requested at trial (or RAJI 36) as exemplary of one of the additional kinds of due process trial protections necessary in cases involving suggestive pretrial identification procedures occurring during court proceedings. State v. Nottingham, 2 CA-CR 2011-0169, 12/6/12.

In a case in which a defendant
presented a false prescription to a
pharmacist to obtain 150 oxy-
codone tablets, a trial court may
not sentence a defendant to pro-
bation under Proposition 200
after he pleads guilty to attempt-
ing to obtain or procure a
narcotic drug by fraud, deceit,
misrepresentation or subterfuge
because the plain language of
Proposition 200 only provides
that if someone is convicted of
personal possession or use of a
controlled substance or drug
paraphernalia, she or he may be
placed on probation. State v. Hon.
Woodburn/Schmeissing, 1 CA-SA
12-0205, 12/6/12.

Federal law creating confidentiality protections for certain drug court proceedings does not prevent a trial court from considering its own drug court records or using the fact of a defendant’s unsuccessful participation in or termination from drug court as a basis for revocation of probation because federal confidentiality regulations do not prohibit a trial court from taking judicial notice of its own orders. Although 42 U.S.C. § 290dd- 2(a) and 42 C.F.R. § 2. 12(a) and (e) make confidential all information maintained in connection with programs that are both related to a patient’s substance abuse treatment or rehabilitation that is directly or indirectly assisted by the federal government, a person may either waive confidentiality in a form prescribed by related federal regulation, or the information may also be disclosed pursuant to a court order that complies with federal law. State v. Tatlow, 1 CA-CR 11-0593, 12/4/12.

COURT OF APPEALS SPECIAL ACTION MATTERS

Statutory Requirements for Standard-of-Care Experts in Medical Malpractice Suits Apply to Experts in Malpractice Suits Involving Vulnerable Adults Under the Adult Protective Services Act. A.R.S. § 12-604 requires a standard-of-care expert in any action alleging medical malpractice, including actions brought pursuant to the Adult Protective Services Act alleging medical negligence. Cornerstone Hosp. of Southeast Arizona LLC v. Marner ex rel. Blackburn, 2 CA-SA 2012- 0067, 12/7/12.

Detailed summaries of selected cases and other court news may be found at www.azapp.com.

COURT OF APPEALS TAX MATTERS

Income tax credit for taxes paid in other state utilizes taxable, not adjusted gross, income in numerator of limitation fraction. To alleviate the burden of duplicative taxation that arises when Arizona residents have income from numerous states, Arizona law provides that Arizona residents may seek a credit for taxes paid to other states. The credit is determined by multiplying the Arizona tax due by a fraction; the numerator of which is “the income subject to tax in the other state…and also taxable under this title”; the denominator is the entire income upon which Arizona tax is imposed. A decrease in the denominator results in an increased credit, a decrease in the numerator results in a decreased credit. In this case, the Court of Appeals agreed with the Department’s interpretation that in the numerator, “income subject to tax” means that which is taxable income (adjusted gross income less all deductions and exemptions). The taxpayer contended that the numerator should be adjusted gross income, resulting in an increased numerator and, thus, a larger credit. The court explained that taxpayer’s interpretation ignored the “taxable” portion of the credit statute. Finally taxpayer’s interpretation could result in a credit beyond the proportion of the taxpayer’s out-of-state income, allowing Arizona to provide a credit for more than the actual taxes paid in the other state. Stearns v. ADOR, 1-CA-TX 11- 0003 (11/29/12).