Cases Affecting Public Lawyers

Recent Arizona Appellate Decisions:

Niehaus v. Huppenthal, 1 CA-CV 12-0242
Opinion filed 10/1/2013; Thompson, J.
A.R.S. §§ 15-2401 through 15-2404 (Arizona Empowerment Scholarship Accounts program) does not violate Ariz. Const., art. 9, § 10 (aid to private or religious schools), or Ariz. Const., art. 2, § 12 (religion clause); nor does it unconstitutionally condition receipt of a government benefit on waiver of a constitutional right.

State v. Larin, 2 CA-CR 2012-0156
Opinion filed 10/16/2013; Vasquez, P.J.
“[W]e hold that in a non-capital case, Rule 19.1(b) requires that a sentencing aggravator such as dangerousness should not be mentioned in jury instructions or otherwise during the guilt phase of the trial unless it is an element of the offense. … we disapprove of the RAJI’s direction to include a dangerous-nature interrogatory on the verdict form in those cases where dangerousness is not an element of the offense charged.”  Also held that trial court could not
properly enhance defendant’s sentence under A.R.S. §  13-704 (dangerous offense) without a jury finding on dangerousness, even though a finding of dangerousness was inherent in the jury’s verdict finding the defendant guilty of armed robbery involving a firearm.

State v. Gustafson, 2 CA-CR 2012-0424
Opinion filed 10/16/2013; Howard, C.J.
Trial court appropriately allowed jury to determine whether defendant’s repeated use of taser on victim who defendant knew had a pacemaker constituted “the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument” within meaning of A.R.S. § 13-704.