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34th Annual Criminal Year Seminar 2016
CLE West and APAAC are pleased to present the
2016 Criminal Year in Review Seminar
This one day seminar features presentations from all perspectives – judicial, prosecution, and defense – in addition to outstanding written materials prepared by The Honorable Crane McClennen.
Covers Critical 2014 and 2015 Cases
35 of the most important 2015 U.S. Supreme Court, Arizona Supreme Court and Arizona Court o
f Appeals cases will be analyzed for both prosecutors and defense counsel by our judges and other faculty members.
This seminar provides a truly balanced presentation of the most important cases and issues of 2015.
Get the latest information on criminal procedure, evidence, criminal substantive law, and constitutional issues.
Whether you’re a prosecutor or defense attorney, your success at trial is directly related to your comprehension of the latest developments in criminal law. It may well be the most valuable and instructive seminar you attend this year.
34TH ANNUAL CRIMINAL YEAR SEMINAR IN REVIEW
AGENDA
AGENDA
8 am / Coffee and Conference Sign-In
8:30 am / Opening Remarks
Elizabeth Ortiz, APAAC Executive Director
Elizabeth Ortiz, APAAC Executive Director
8:35 am / Criminal Substantive Law Update
Hon. Michael McVey - Retired Judge, Maricopa County Superior Court
Joseph Maziarz - Arizona Assistant Attorney General
Hon. Michael McVey - Retired Judge, Maricopa County Superior Court
Joseph Maziarz - Arizona Assistant Attorney General
9:35 am / Break
9:50 am / Criminal Procedure Update
Hon. Michael D. Jones - Retired Judge, Maricopa County Superior Court
Hon. David Cole - Retired Judge, Maricopa County Superior Court
Hon. Michael D. Jones - Retired Judge, Maricopa County Superior Court
Hon. David Cole - Retired Judge, Maricopa County Superior Court
10:50 am / Break
11 am / Evidence, DUI, AMMA Updates
Hon. Crane McClennen - Maricopa County Superior Court
Jonathan Mosher - Deputy Pima County Attorney
Hon. Crane McClennen - Maricopa County Superior Court
Jonathan Mosher - Deputy Pima County Attorney
Noon / Lunch
1:20 pm / Constitutional Law Update
Robert J. McWhirter - Attorney at Law
Robert J. McWhirter - Attorney at Law
2:20 pm / Break
2:35 / Dueling Perspectives: Prosecution and Defense
Jonathan Mosher - Deputy Pima County Attorney
Robert J. McWhirter - Attorney at Law
Robert J. McWhirter - Attorney at Law
4:35 / Adjourn and Completion of Evaluations
CASES COVERED WILL INCLUDE
Constitutional Law
In light of the AMMA, does “plain smell” give probable cause to search?
State v. Cheatham, 353 P.3d 382 (Ct. App. 2015).
State v. Sisco, 359 P.3d 1 (Ct. App. 2015).
If and when should the court apply the exclusionary rule when there has been a change in the law?
State v. Reyes, 364 P.3d 1134 (Ct. App. 2015).
State v. Driscoll, 361 P.3d 961 (Ct. App. 2015).
State v. Ontiveros-Loya, 352 P.3d 941 (Ct. App. 2015).
Criminal Substantive Law
Is resisting arrest made by two officers one offense or two offenses?
State v. Jurden, 352 P.3d 455 (Ct. App. 2015).
For enhanced sentencing, must the victim actually be 17 years of age or younger?
State ex rel. Polk v. Campbell (Kraps), 357 P.3d 144 (Ct. App. 2015).
DUI
Does reading the Admin Per Se/Implied Consent Affidavit make any consent involuntary?
State v. Valenzuela, 350 P.3d 811 (Ct. App. 2015).
State v. Okken, 364 P.3d 485 (Ct. App. 2015).
What is the extent of the defense provided by the AMMA?
Dobson v. McClennen, 361 P.3d 374 (2015).
Darrah v. McClennen, 337 P.3d 550 (Ct. App. 2014).
Is a police vehicle “other traffic” for signaling when changing lanes?
State v. Salcido, 362 P.3d 508 (Ct. App. 2015).
“Right to consult with counsel” vs. “hindering ongoing investigation.”
State v. Peraza, 2016 WL 360339 (Ariz. Ct. App. 2016).
Arizona Medical Marijuana Act
Does the AMMA give immunity for false statements?
State v. Gear, 339 P.3d 1034 (Ct. App. 2014)
ISSUES IN THE FOLLOWING CASES WILL BE ARGUED BY PROSECUTING ATTORNEY, JONATHAN MOSHER AND DEFENSE ATTORNEY, ROBERT McWHIRTER
Is Defendant entitled to justification (crime prevention) instruction.
State v Almeida, 238 Ariz. 77 (App 2015)
State v Almeida, 238 Ariz. 77 (App 2015)
Bullet could satisfy element of entry for purposes of burglary charge + Batson
State v. Decker, 365 P.3d 954 (Ct. App. 2016), 239 Ariz. 29 (App. 2016)
State v. Decker, 365 P.3d 954 (Ct. App. 2016), 239 Ariz. 29 (App. 2016)
Court’s authority to grand motion for new trial
State v. Fischer, 360 P.3d 105 (Ct. App. 2015), 238 Ariz. 309 (App. 2015)
Lack of sexual interest is not an affirmative defense
State v. Holle, 358 P.3d 639 (Ct. App. 2015), 238 Ariz. 218 (App. 2015)
Victims could not be interviewed about acts relating to other victims in the same case.
State v. Lee, 238 Ariz 19 (App 2015)
Miranda public safety exception (Defendant shot himself in the face) + 404/prior ill will admissible in murder to prove motive + observation evidence/impulsivity.
State v. Leteve, 237 Ariz. 516 (App 2015)
Investigatory questions do not violate Miranda + corpus
State v. Maciel, 238 Ariz. 200 (App 2015)
MCAO properly indicted a DNA profile and no prejudice from delay between charging and arrest.
State v. Neese, 2016 WL 74933 (Ariz.Ct. App. 2016),
Dutton/cold expert + DNA/need not call every technician for analyst opinion
State v. Ortiz, 238 Ariz. 329 (App 2015)
ARS 13-1421(A)(5)/admissibility of previous touching as defense in molest case absent findings of falsehood + victim rights
State v. Padilla (Simcox), 238 Ariz. 560 (App 2015)
Exclusion of expert on experimental design to rebut firearm/toolmark testimony was error + admissibility of F/T testimony
State v. Romero, 365 P.3d 358 (2016), 239 Ariz. 6 (2016)
Special action denying State relief regarding preclusion of video because it had been cropped by the witness.
State v. Steinle, 354 P.3d 408 (Ct. App. 2015)
FACULTY
The Honorable Michael McVey, Retired Judge of the Maricopa County Superior Court
The Honorable Michael D. Jones, Retired Judge of the Maricopa County Superior Court
The Honorable Dave Cole, Retired Judge of the Maricopa County Superior Court
The Honorable Crane McClennen, Judge of the Maricopa County Superior Court
Joseph T. Maziarz, Assistant Arizona Attorney General
Jonathan Mosher, Deputy Pima County Attorney
Robert McWhirter, Attorney at Law
Constitutional Law:
May a mistake of law support reasonable suspicion?
Moreno, 340 P.3d 426 (Ct. App.)
When may officer conduct pat-down search for weapons?
Serna, 331 P.3d 405 Sup. Ct.)
When may officer search items in residence not belonging to owner of residence?
Gilstrap, 332 P.3d 43 (Sup. Ct.)
When is officer engaging in emergency aid or community caretaking function?
Wilson, 333 P.3d 774 (Ct. App.)
Jacot, 330 P.3d 981 (Ct. App.)
Inzunza, 316 P.3d 1266 (Ct. App.)
When is suspect in custody for Miranda purposes?
Waller, 333 P.3d 806 (Ct. App.)
When will mental illness invalidate a knowing and intelligent waiver?
Naranjo, 321 P.3d 398 (Sup. Ct.)
When state has failed to preserve evidence, when and to what extent is defendant entitled to relief?
Forde, 315 P.3d 1200 (Sup. Ct.)
Evidence:
Gatekeeping function: accuracy of result or trustworthiness of methodology?
Bernstein (Herman et al.), rev. granted, CV-14-0057-PR.
To what extent was $7 million verdict based on expert testimony?
Glazer, rev. granted, No. CV-14-0123-PR.
When may the trial court preclude expert testimony under its gatekeeper function?
Romero, 2014 WL 74583068 (Ct. App.)
May expert testify as “cold” witness.
Salazar-Mercado, 325 P.3d 996 (Sup. Ct.)
When should profile evidence be excluded?
Ketchner, 339 P.3d 645 (Sup. Ct.)
Garcia-Quintana, 321 P.3d 432 (Ct. App.)
Are statements made to forensic nurse “testimonial evidence”?
Hill, 336 P.3d 1283 (Ct. App.)
Criminal Code:
What constitutes an intervening cause of death?
Pesqueira, 333 P.3d 797 (Ct. App.)
Third-degree burglary, must a residential yard be fenced?
Lewis, 340 P.3d 4158 (Ct. App.)
May a person burglarize a mailbox? The bed of a pick-up truck?
Bon, 338 P.3d 989 (Ct. App.)
Gill, 333 P.3d 36 (Ct. App.)
May victim’s parent or legal guardian refuse defense interview once victim turns 18.
J.D. & M.M., 335 P.3d 1118 (Sup. Ct.)
Driving Under the Influence
To what extent does the AMMA preclude prosecution under § 28-1381(A)(3) & (D)?
Dobson, 337 P.3d 568 (Ct. App.)
Darrah, 337 P.3d 550 (Ct. App.)
Relation-back testimony: must expert know eating & drinking history?
Miller (Madrid), 321 P.3d 454 (Ct. App.)
When must a conviction be dismissed on double jeopardy grounds?
Nereim, 317 P.3d 646 (Ct. App.)
Solis, 338 P.3d 982 (Ct. App.)
Must instruction on actual physical control include language about “stationary shelter”?
Tarr, 331 P.3d 423 (Ct. App.)
What is “initial term of incarceration in jail” for purposes of the home detention program?
Bourne, 333 P.3d 750 (Ct. App.)
When does person voluntarily submitted to medical treatment under § 28-1388(E)?
Spencer, 333 P.3d 823 (Ct. App.)
Criminal Procedure
What does suspect have to do to invoke right to counsel?
Nevarez, 329 P.3d 233 (Ct. App.)
When is defendant’s absence voluntary?
Allen, 326 P.3d 339 (Ct. App.)
Does supervening indictment automatically replace or void original indictment?
Ceasar, 336 P.3d 775 (Ct. App.)
What conditions of probation may trial court impose under AMMA?
Reed-Kaliher, rev. granted, CV-14-0226-PR.
Hancock (Ferrell), rev. granted, CV-14-0084-PR.
Is Willits still alive and well?
Glissendorf, 329 P.3d 1049 (Sup. Ct.)
When does “entry of judgment and sentence” occur?
Whitman, 324 P.3d 851 (Sup. Ct.)
Honorable Michael McVey, Retired Judge, Maricopa County Superior Court
Honorable Michael D. Jones, Retired Judge, Maricopa County Superior Court
The Honorable Dave Cole, Retired Judge, Maricopa County Superior Court; of Counsel, Poli, Moon, and Zane
Hon. Crane McClennen, Maricopa County Superior Court
Joseph T. Maziarz, Assistant Arizona Attorney General
Jonathan Mosher, Deputy Pima County Attorney
Robert J. McWhirter, Attorney at Law, The Law Offices of Robert J. McWhirter. U.S.
