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).