 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Williams6/27/1991
re influenced by the remarks.
State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983). Because the trial court is best able to sense the possible effect an objectionable statement may have had on the jury, it is granted broad discretion in ruling on a motion for mistrial. State v. Bailey, 160 Ariz. 277, 772 P.2d 1130 (1989). We do not reject that determination unless there is an abuse of discretion. Id.
Although we agree with appellant that the reference to the sister's nightmares was improper, we do not find that the remark was so inflammatory that the trial court erred in denying his motion for a mistrial.
REFERENCES TO APPELLANT'S RACE
As we noted earlier, appellant was tried in absentia. Prior to the start of testimony, appellant's counsel moved to preclude any reference to the fact that appellant is an Indian. The court refused to grant the motion, but the state indicated that it would caution its witnesses not to refer to appellant's race.
One of the state's witnesses twice repeated a statement that her husband made to her when they observed appellant's driving just before the accident. The statement was, "Those Indians are drunk." The state did not elicit the statement either time. During argument on appellant's objections, the prosecutor stated that he had not had time to discuss the matter with the witness before she testified.
Appellant moved for a mistrial, which the court denied. The court subsequently instructed the jury that the statements were stricken and were to be disregarded. The jury was also again instructed that it was not to be moved by sympathy or prejudice of any kind.
We find that the instruction cured any harm that might have been caused by the spontaneous statements. State v. Lacey, 143 Ariz. 507, 694 P.2d 795 (App. 1984). In any event, the fact that appellant is an Indian was not immediately apparent to the jury only because he voluntarily absented himself from the trial. We find no error in the denial of the motion for mistrial.
DOUBLE JEOPARDY
Appellant next asserts that his prosecution for aggravated assault was precluded on double jeopardy grounds, citing Grady v. Corbin, 495 U.S. , 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U. S. Const. amend. V. The clause protects a defendant from being prosecuted for the same offense after an acquittal or a conviction and from being punished more than once for the same offense. Ohio v. Johnson, 467 U.S 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); State v. Nunez, 167 Ariz. 272, 806 P.2d 861 (1991).
The state contends that appellant has waived the issue because he did not raise it below. Double jeopardy is a nonjurisdictional defense that can be waived. State v. Owens, 127 Ariz. 252, 619 P.2d 761 (App. 1980).
The issue of double jeopardy, however, was mentioned below. Prior to the start of trial, the parties argued a number of pretrial motions. One of those was appellant's motion to preclude the state from introducing evidence of appellant's blood alcohol content (BAC). In that motion, appellant argued that his BAC was irrelevant because the state's aggravated assault theory was that appellant intended to injure the victim. The state responded that it was entitled to introduce the evidence in
Page 1 2 3 4 5 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|