Arizona Attorney - March 2014

Appellate Court finds no error that can be so characterized, the error may be waived by failing to properly assert it. Although an appealing defendant may challenge a trial court’s finding of the “presence of child” aggravator by claiming that there was no evidence presented at his trial that the minor child was in the room, aware of what was happening or even awake at the time the murder occurred, the Arizona Court of Appeals has previously determined “that, in the context of the [child presence aggravator statute or ARS] § 13-701(D) ( 18), the term “presence” does not require the child to be in the same room as an incident.” While a child’s mere presence in a home where an offense has occurred does not, standing alone, fulfill the statutory requirement absent some evidence that the child was aware of the domestic violence-related offense,

so long as sufficient evidence is
presented, whether direct or
circumstantial, that a child was
not merely in proximity to the
offense, yet sufficiently exposed to
it (e.g., awake and in the same
room when the argument preced-
ing the homicide began), a trial
court does not abuse its discretion
by finding the “presence of child”
aggravator. State v. Torres, 2 CA-
CR 2012-0505, 12/10/13.

Although Rule 7. 2(c)( 1) ARIZ.R.CRIM.P., provides that when a defendant enters a guilty plea that “will in all reasonable probability” result in incarceration it must keep or take him into custody immediately, a Superior Court in a criminal case has the discretion to accept the stipulation of the parties to waive Rule 7. 2(c)( 1) pursuant to Rule 17. 4 (a) and temporarily release a defendant pending sentencing, whereby should he fail to later appear as promised it may order the forfeiture of their bail or appearance bond. Under Rule

17. 4(a), ARIZ.R.CRIM.P., the prosecution and the defense “may negotiate concerning, and reach an agreement on any aspect of [a criminal]

case.” Although an appearance bond is basically a contract, with the bondsman being the surety, the defendant the principal and the state the creditor, the principal and creditor may modify their contract without consent of the surety because the underlying contract incorporates Arizona law, including both Rule 7. 2(c)( 1) and Rule 17. 4(a) of the Arizona Rules of Criminal Procedure. State of Arizona v. Liberty Bail Bonds and Ameri-Bail Bonds, et al., 1 CA-CV 12-0213, 12/5/13.

COURT OF APPEALS SPECIAL ACTION MATTERS

ER 1. 7(a) Does Not Prevent a
Lawyer in a Derivative Action
from Also Representing the
Minority Shareholder on any
Direct Claims Against the
Corporation or its Management
That Arise from the Same Set of
Facts. Conflict of interest disputes
are resolved under Arizona Rules of
Professional Conduct Ethical
Rule 1. 7(a). That rule prohibits a
lawyer from representing a client
if ( 1) that representation will be
directly adverse to another client or
( 2) a significant risk exists that the
lawyer’s responsibilities to another
client, a former client, a third per-
son, or to the lawyer’s personal
interest will materially limit the
client’s representation. Lawyers are
not disqualified from representing
clients who are simultaneously pur-
suing direct claims against a corpora-
tion and derivative claims on behalf
of that corporation. If the filing of a
derivate claim created an attorney-
client relationship between the cor-
poration and the lawyer for the
minority shareholder, there would
be no way for the derivative plaintiff
to ever have conflict-free counsel.
Simms v. TP Racing, LLP, 1 CA-SA
13-0123, 1/2/14.

indicates a dissent

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

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