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State v. Bush4/14/2004
did not commit the crimes, he was sorry for what Mr. Lopez and his family had been through.
After the defendant read his statement, the state asked to cross-examine him. The defendant's attorney told the trial court that the defendant had taken the stand only to read the statement. The prosecutor told the trial court, "He is either a witness or there is no reason for him to get up there." The trial court agreed with the state. On cross-examination, the defendant testified that he was innocent. The state then attempted to question him about the crimes, and the defendant asserted his Fifth Amendment privilege against self-incrimination. The following exchange then occurred:
[The State]: Then I would ask that these claims that he's made be struck, because that is a comment on the evidence that he's now making without the benefit of cross examination. And I would ask that that statement be --
THE COURT: He is asking the Court for a suspended sentence. Of course, the Court is -- by law cannot give him a suspended sentence. So, there is nothing I can do about that.
[The State]: I am not concerned about his plea for probation. What I am saying is that I would ask that the Court strikes any reference to his innocence since we have been denied the opportunity to cross examine him on that.
THE COURT: All right. That will be stricken then.
The defendant went on to state on cross-examination that he had been pleased with his attorney's performance until closing arguments and that his attorney should have objected several times during the state's closing argument.
According to the defendant's presentence report, the then twenty-four-year-old defendant dropped out of high school but received a certificate in auto body mechanics. He stated that his physical health was fair, that he suffered from sleep apnea and asthma, and that he had to use an inhaler. He said that his mental health was fair and that he tried to commit suicide in 1999. The defendant said that he began using alcohol when he was nine or ten years old and that he began using illegal drugs when he was eight. Although the defendant had not received any treatment for his drug or alcohol problems, he stated that he had attended Alcoholics Anonymous and Narcotics Anonymous while in jail.
In the report, the defendant stated that he had worked at Tandem Temporary Service, Red Cap, and Waldenbooks. However, the officer who prepared the report could not verify the defendant's employment at any of those companies. The report shows that the defendant's prior criminal record includes five convictions for driving on a revoked or suspended license, three convictions for resisting arrest, and convictions for cocaine possession, marijuana possession, trespassing, driving under the influence , and criminal impersonation. The report shows that the defendant received probation for some of his convictions and that his probation was revoked four times.
The trial court determined that enhancement factors (1), that the defendant has a history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2), that the defendant was a leader in the commission of the offense; (8), that the defendant "has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community"; and (22), that the defendant "intentionally selects the person against whom the crime is committed . . . in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person . . . ," applied to his
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