A defendant’s Aggravated DUI and Theft charges were properly joined for trial.
The Facts
The Tempe Police Department received a report of a stolen vehicle. The vehicle was reported to and be in a certain area. The police stopped the vehicle and eventually the defendant was identified as the driver. The defendant appeared to be impaired. The police got a blood sample from the defendant.
Trial Court Proceedings
The defendant was first charged with felony theft of the vehicle. The police received the blood test results which showed methamphetamine and fentanyl. The defendant then was also charged with Aggravated DUI.
The County Attorney asked the court to have the charges joined together for a trial. The Arizona Rules of Criminal Procedure allow separate charges arising from the same incident to be joined. The reason is to avoid having to present the same evidence in two separate trials together.
Joinder is permitted if the offenses are:
- of the same or similar character;
- based on the same conduct or otherwise connected in commission or
- alleged to have been part of a common scheme or plan.
The defendant objected to Joinder. He alleged severance (keeping the charges separate) not joinder was needed to promote a fair determination of his guilt or innocence for each offense. The idea is the jury may be unfairly prejudiced against him if it hears he has two separate type of charges.
The court granted the County Attorney’s request for joinder. The defendant failed to then file a separate severance motion. That motion is required under the rules.
The jury found the defendant not guilty of theft but guilty of Aggravated DUI.
Court of Appeals Decision
The court of appeals denied defendant’s appeal regarding the joinder of his DUI and theft cases was denied. The court said joinder was not a mistake, The court affirmed the conviction and sentence.
The defendant’s failure to submit a separate motion for severance meant the issue was not preserved for appeal. An issue not properly preserved can be still be considered on an appeal if what happened in the trial court was “fundamental error”.
“Under fundamental error review, the defendant bears the burden to establish that:
- error exists,
- the error is fundamental, and
- the error caused him prejudice.
Error is fundamental when it “goes to the foundation of the defendant’s case, takes away a right that is essential to the defendant’s defense, or is of such magnitude that the defendant could not have received a fair trial”., In short, it is a very heavy burden.
The court said there was not only no fundamental error but even if the issue had been preserved, no error. Joinder is appropriate when the two charges (Theft & DUI) arose from the same incident.
That rule may be logical but for a defendant it stacks the odds against him.
Schwab appealed his convictions for DUI, arguing the court erred in joining his DUI case with his theft case. The court found no fundamental error in the joinder decision.
Gordon Thompson
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.
Website: https://www.GordonThompsonAttorney.net
Blog: https://www.GordonThompsonAttorney.net/blog/
