Robbery - James Novak

Arizona Defendant in Robbery Case Challenges Guilty Conviction with DNA Evidence

The Law Office of James Novak Team — Sat, 01 Apr 2023 00:03:01 GMT

In a recent case before an appeals court in Arizona, the defendant asked for a reconsideration of his guilty conviction for armed robbery and aggravated assault. Originally, the defendant was convicted after he and an accomplice robbed a local jewelry store. His case went to trial, and a jury found him guilty. When the defendant appealed, the higher court had to decide whether the evidence supported the verdict, given the defendant’s argument that some of the DNA should have undergone independent testing and was thus unreliable. Ultimately, the higher court denied the defendant’s appeal, and his original verdict was affirmed.

Facts of the Case

According to the opinion, the defendant and his accomplice arrived at a jewelry store on the day in question and held the owner at gunpoint. A passerby came into the store, and when that passerby started to pull out his phone to call the police, the defendant fought him to the ground. Eventually, the defendant and his accomplice both fled the scene, and investigators arrived quickly after they left.

While fleeing, the defendant had left behind a shirt and a hat from the fight with the passerby. Using DNA evidence, the investigators linked the shirt to the defendant, who was in their criminal database. Eventually, the defendant was charged, and his case went to trial. The jury found the defendant guilty as charged.

The Decision

On appeal, the defendant argued that he should have been allowed to have an independent testing site analyze the DNA evidence submitted at trial. The defendant had filed a motion to continue the trial since forensic analysts testing the hat had determined the DNA results were “inconclusive.” Without certainty, said the defendant, he should be allowed to bring in an independent analyst, and the trial should have been continued to allow him time to do this. Since the lower court had denied his motion to continue, he was unnecessarily burdened, and he was eligible for a reversal.

Looking at the lower court’s decision, the court of appeals determined that there was no reason to think a third test of the evidence would yield a different result. Because the defendant had failed to articulate how independent testing would reveal new evidence, his request was insufficient to warrant a continuance of the trial. The DNA evidence on the shirt was enough to link him to the scene of the crime, even without conclusive evidence from the hat.

Thus, the defendant’s argument was ineffective, and the guilty verdict remained in place.

Are You in Need of a Criminal Defense Attorney in Arizona?

If you are facing robbery charges in the state of Arizona, you need someone by your side who you know will fight relentlessly in your favor. At the Law Office of James E. Novak, we take pride in offering you thorough representation that explores every possible avenue for getting your charges dropped. For a free and confidential with a member of our team, call us today at 480-413-1499.

Arizona Court Addresses Admissibility of Identification Evidence in Recent Felony-Murder Case

The Law Office of James Novak Team — Sat, 24 Jul 2021 09:12:57 GMT

Recently, the Arizona Court of Appeals issued an opinion in an Arizona robbery and felony-murder case. In its opinion, the court affirmed the lower court’s decision to deny the defendant’s motion to preclude an identification made by a witness.

The Facts of the Case

According to the court’s opinion, the defendant and four other individuals robbed an armored truck as two security guards attempted to refill an ATM. One of the individuals fired a rifle at the security guards, and a security guard fired a gunshot back. The shot fired by the security guard was fatal.

The defendant’s DNA was found on a rifle left near the scene of the crime, in addition to the deceased individual’s cell phone being found at the scene of the crime. The call records from the cell phone revealed that the defendant and the deceased had been in communication on multiple occasions and that the defendant had traveled to and from the location of the crime on the day of the incident. The State was authorized to conduct a wiretap on the phones of the suspects, leading to the defendant being arrested.

Police questioned one of the suspects from the robbery and showed the witness a photograph of the defendant, resulting in the witness failing to recognize the defendant. A year later, the witness identified the defendant in a photographic lineup. The defendant filed a motion to exclude the witness’s identification of him as a result of the suggestive manner in which the photographs were shown to the witness. Additionally, the defendant filed a motion to suppress evidence obtained through the phone wiretap because, at the time of the wiretap application being filed for approval, it did not include an affidavit from the principal prosecuting attorney.

The superior court denied the defendant’s identification suppression request because the witness’s identification was considered reliable, and further denied the wiretap suppression request because the application met the substantive requirements.

The Court’s Analysis

The appeals court agreed with the lower court’s finding that the identification of the defendant was inherently suggestive. However, the court found that the identification was nevertheless reliable. To determine whether an identification procedure is unduly suggestive, a court considers the following factors, weighing them against any suggestiveness of the identification procedures:

The witness’ opportunity to observe the person;
The witness’ level of attention;
The witness’ degree of certainty;
The accuracy of the witness’ description; and
The amount of time passed between the incident and the identification.

Here, the court explains that the witness was also a co-conspirator of the crime, and thus spent an extended amount of time traveling with the defendant. The witness also described the events of the robbery, accurately described the defendant’s appearance, and testified that he was not influenced by seeing the photograph of the defendant a year before positively identifying him in the photographic lineup. Two years passed between the crime and the photographic lineup took place, but the court found that this factor did not fully weigh against the witness’s reliability.

The court concluded that the superior court was correct to hold the witness’s pretrial identification as reliable, and thus to permit the witness’s in-court identification of the defendant.

Additionally, the court affirmed the lower court’s denial of the defendant’s motion to suppress the wiretap because the application was not substantially deficient and the affidavit was filed sometime after the application was filed, which still sufficed in establishing that the principal prosecuting attorney had personally reviewed and authorized the wiretap application.

Have You Been Arrested for a Violent Offense in Arizona?

If you have recently been arrested and convicted of a violent crime in Arizona, contact attorney James E. Novak for immediate assistance. Attorney Novak has decades of experience handling complex cases and is passionate about defending clients facing all types of serious accusations in Tempe and across Maricopa County. To schedule a free consultation and learn more, call 480-413-1499.

New Law Makes Wearing Mask or Disguise While Committing a Crime Aggravated Factor in Sentencing

The Law Office of James Novak Team — Tue, 28 Aug 2018 22:56:13 GMT

Arizona lawmakers recently passed House Bill 2007 (HB2007), adding an aggravating circumstance to the list of 26 that were previously enumerated in the statute. The law became effective August 3, 2018.

The newest aggravating circumstance is triggered when a defendant “uses a mask or other disguise to obscure the defendant’s face to avoid detection” during a crime.

To be clear, the new aggravating circumstance doesn’t criminalize wearing a disguise. Rather, it allows for an increased punishment for those who are convicted of committing a crime, while wearing a mask or disguise.

Opponents of the law expressed concerns that less serious, non-violent offenders may be subject to enhanced penalties because they wore a mask during the conduct giving rise to their arrest.

Prior to finding that the aggravating circumstance exists, a jury must find that the defendant was not only wearing a mask or disguise but also wearing the mask or disguise “to avoid detection.”

This may provide some relief to those who fear the aggravating circumstance would be applied in cases involving non-violent crimes in which a disguise was worn for reasons other than evasion.

The most common crimes that will be impacted are by HB2007 are robbery, and burglary, since masks and disguises are often used in these offenses.

This article includes a discussion of the new aggravated factor law pertaining to masks and disguises, other aggravated and mitigating factors in sentencing; the burden of proof for aggravated factors; examples of aggravated and mitigated factors; sentencing ranges and how penalties are imposed within them; and the role of a criminal defense attorney in the sentencing stage.

What constitutes a mask or disguise?

Currently, no statutory definition exists that describes what constitutes a mask or disguise as it pertains to this law.

Typically when no definition exists under the law, the court will look to the literal definition, or previous case law, that addresses the question based on the facts of the case.

Significant weight will be placed on the intended purpose of the disguise or mask at the time of the criminal offense, for purposes of deciding if A.R.S. – 13-701 (D) (26) applies.

The court will determine if there has been a sufficient showing based on the trier of facts beyond a reasonable doubt, that the disguise was being worn by the defendant in an attempt to avoid detection.

What is an aggravated factor in sentencing?

An aggravated factor in sentencing is a circumstance surrounding a crime that makes it more serious, calling for more severe penalties.

After a defendant is convicted of a crime, whether by judge or jury trial, or plea agreement, the court will then move on to the sentencing phase. This is when aggravated and mitigated factors are considered by the court.

Arizona Criminal Code Sentencing Provisions include sentencing ranges for which the judge must sentence the defendant. The judge has the discretion as to what level of penalties to impose following a conviction, as long as they fall within this statutory sentencing range.

A sentencing range is based upon specific classifications of charges. The level of penalties vary depending on the classifications, and type of charges. In general they include mitigated, minimum, presumptive, maximum, and aggravated. Mitigated sentences are those that are least severe within the range, and aggravated sentencing holds the harshest of penalties.

For dangerous offenses the levels are minimum, presumptive, and maximum. More severe penalties are included within the maximum range designation of dangerous offenses. When aggravated factors exist, the judge will consider imposing the maximum sentence in these cases.

Both dangerous and non-dangerous offenses have additional categories for repeat and historical offenses.

What are some other aggravated factors?

Some examples of aggravated factors under A.R.S. 13-701 (D) include: Displaying, threatening or using a deadly weapon during the crime; The crime involved an accomplice; The defendant was convicted of a prior felony within 10 years of the current conviction; During the crime the defendant impersonated a police officer; The defendant was paid to commit the crime; Immediately after the crime was committed, the defendant committed a hit and run; and The offense was a hate crime against a law enforcement officer.

The law outlines a list of 27 statutory aggravated factors. However, the court may consider other aggravating circumstances that are not listed in the law, including the defendant’s character, criminal history or other relevant circumstances.

What proof is needed to impose an aggravated factor?

In order to admit an aggravated factor in sentencing, the prosecution needs to provide showing beyond a reasonable doubt based on the facts and evidence.

If the aggravated factor involves prior felony convictions, it will be up to the court to determine the validity of prior convictions based on the information and facts introduced.

The exception to this is if the defendant admits to, or validates the aggravated factor.

What is the difference between a mitigated and aggravated factor?

A mitigated factor is the opposite of an aggravated factor. Mitigating circumstances are those factors that serve to reduce the penalties.

The judge will weigh the mitigating factors presented against the aggravated factors to determine of aggravated sentencing, or other level of sentencing will apply.

If only aggravated factors were presented, and no mitigating factors existed, the judge will generally impose aggravated sentencing.

If no aggravated factors were presented, and one or more mitigating factors exist, the judge will usually impose a mitigated sentence.

A.R.S. 13-70. (E), lists a total of 6 mitigating factors including such things as age, duress, trivial amount of involvement in the crime.

The court may also consider other relevant mitigating factors not on the statutory list, related to the defendant’s character, background, or history.

How can a criminal defense attorney help me resolve my charges?

For any person accused of a crime and facing criminal charges, the ideal outcome is to get the charges dismissed. An effective criminal defense attorney will look for ways to make that happen throughout the criminal justice process. If that is not possible, the prosecution will likely ask you to enter a plea agreement. If an acceptable resolution cannot be reached, you still have the right to take your case to trial.

A skilled Arizona criminal defense attorney can help you compile compelling mitigation evidence in hopes of receiving a lenient sentence. Judges will normally look at a defendant’s background, including the defendant’s contributions to society as well as their prior convictions, when fashioning a sentence. A judge, however, cannot sentence a defendant to the maximum statutory term without a jury finding that an aggravating circumstance exists. Similarly, a judge must document at least one mitigating circumstance if he intends to sentence the defendant to the minimum allowable statutory sentence.

The prosecution looks for evidence of aggravated factors in sentencing. However, they are not obligated to help you find or present mitigated factors to offset aggravated factors or reduce your sentence. This is also the case for presiding judge in that the judge has no obligation to introduce find or introduce mitigated factors to reduce penalties for the defendant. An experienced criminal defense attorney like James Novak will be your voice, look for mitigating circumstances, and provide a showing of the validity of these factors if they are applicable.

If you face felony charges, especially if they involve aggravated circumstances, it is important that you obtain strong criminal defense representation. James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney, and former prosecutor. Attorney James Novak provides his clients with upfront and honest advice from the beginning of their case throughout the entire process. If retained he will protect your rights and defend your charges.

With zealous representation and a keen knowledge of the relevant procedural and substantive laws, Attorney James Novak diligently represents clients in all types of Arizona criminal cases, including Arizona robbery crimes. James Novak offers a free initial consultation for those who face active charges in Tempe, Mesa, Gilbert, Scottsdale, Chandler, and Phoenix AZ.

To learn more, and to speak with Attorney Novak about how he can help you defend against the charges you are facing, call (480) 413-1499 or complete our contact form on the website site.

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