Your Right to Request Change of Judge in Arizona Criminal Court

Questions before the Court

The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial. But these rights are not without limitations.

In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons. The appeal centered around two arguments, one being the defendant’s request for a new judge.

First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.

Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.

In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:

• The Right of the Parties to Request Change of Judge;
• Special Actions v. Direct Appeals; and
• Judgement of Acquittal

We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.

Prohibited Possessor of Weapons Case

The case arose when officers learned that the defendant, the subject of an outstanding felony arrest warrant, was staying at a house Maricopa County.

The officers received a tip that the suspect was armed. They were informed that the suspect may potentially use a deadly weapon to avoid being captured.

Police called for back-up, and went to the house where they learned the suspect was staying.

There, they detained the defendant, based on the outstanding warrant, and located a .40 caliber bullet in one of his pockets at that time.

Another person who was renting the house confirmed that the defendant was staying there with her and her children.

That individual also informed the officers there was a gun in the house. She voluntarily consented to a search of the home for a weapon.

Police subsequently, found a .40 caliber semi-automatic loaded pistol with a bullet in one chamber, ammunition, an empty pill bottle, and a gun cleaning kit inside a briefcase in a bedroom closet.

Following jury trial the suspect was convicted of knowingly possessing a deadly weapon, as a prohibited possessor.

Court Proceedings

Initially, the defendant was indicted for one count of misconduct involving weapons. The court reassigned the case to a different judge one week before trial.

The day before trial, the defendant filed a notice of change of judge, by right pursuant to Arizona Rules of Criminal Procedure 10.2.

The Court found the request untimely. The defendant was found guilty of the charges, and convicted. He was sentenced to serve 2.5 years in prison.

On appeal, the defendant argued that the trial court erred in denying his request for a peremptory change of judge.

In response, the state argued that the appellate court wasn’t permitted to hear this issue, since the defendant had challenged the ruling by a special action.

In reviewing this issue, the Appeals Court determined that it needed to address whether or not the ruling should be challenged by a direct appeal or special action.

The Appeals Court concluded that a challenge to the denial of a notice of peremptory change of judge must be brought by Special Action, and that it cannot be challenged on direct appeal (State v. Mincey, Arizona 1981).

Further the court ruled that even if this were a special action, the defendant wouldn’t be entitled to relief.

This is because Rule 10.2(c) required the defendant to file the notice of change of judge on the next business day, after receiving notice of the assignment that took place fewer than 10 days before trial.

The defendant also argued that the state did not present enough evidence to support his conviction, so the trial court should have granted his motion for a judgment of acquittal under Rule 20.

The court noted that under A.R.S. § 13-3102(A)(4), someone commits misconduct involving weapons by knowingly possessing a deadly weapon when he or she is prohibited from doing so.

Under A.R.S. § 13- 3101(A)(7)(b), a person is prohibited from possessing guns if they’ve been convicted of a felony inside or outside the state of Arizona, and your civil right to possess or carry a firearm hasn’t been restored.

The defendant did not argue that he was not a prohibited possessor in this case. The parties had stipulated to the defendant’s prior felony conviction.

The defendant had told an officer that he wasn’t allowed to have a gun during a post-arrest interrogation.

However, the defendant argued that there wasn’t enough evidence to show he actually possessed the gun.

In evaluating the possession challenge, the court noted that possession may be actual or constructive (State v. Gonsalves Arizona 2013).

The Court recognized that since the pistol wasn’t found on the defendant it was not actual possession. The next step was to look at whether or not enough evidence was presented to support the concept of constructive possession.

The Court noted that constructive possession applies when the property is found in a place where the defendant has “dominion” (Arizona v. Tyler 1986), or control, and the defendant has actual knowledge of the prohibited property’s existence (Arizona v. Cox 2007; citing Arizona v. Villavicencio 1972).

A defendant is in constructive possession of property if it is found in a place that is under the defendant’s control or “dominion”, and under circumstances from which one can reasonably infer that the defendant actually knew the property existed there.

Direct or circumstantial evidence can be used to show constructive possession, and more than one person can jointly possess the prohibited object.

Someone merely being present in the same place as the prohibited property is not enough to show control or dominion.

In this case, the defendant indicated that he had a briefcase like the one that the officers found, but he didn’t know if that one was his. He had also admitted his was in a closet. The tag on the briefcase referenced Wisconsin, where the defendant’s prior felony was committed.

Additionally, the prescription pill bottle had the defendant’s name on it and was dated less than two months before the arrest. Moreover, the defendant had a .40 caliber bullet in his pocket, which was circumstantial evidence linking him to the pistol.

The Appeals Court noted in its evaluation that that the original tip to the police about the suspect having a gun, appeared to be “hearsay”.

However, it noted that since the defendant did not object on that basis at trial, it may be admitted as competent evidence (Arizona v. McGann 1982).

The court ruled there was enough evidence to show he had constructive possession, and his conviction was affirmed.

Request for Change of Judge

Under Arizona Rules of Criminal Procedure 10.2, Rights of Parties, a person has the right to request a new judge prior to trial by filing a pleading with the court. The request must be in good faith. The court will have reason to deny this request however the moving attorney must disavow that the request is being made for any of the following reasons:

• So that severance may be obtained;

• Interference with the judge’s reasonable case management protocol;

• Prejudice of faith, race, or gender;

• Request of change of the same judge, in a blanket fashion as cited in (State v. City Court of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986) where the prosecution requested a change of judge in every impaired driving case);

• For a more convenient geographical location;

• To secure an advantage or circumvent a disadvantage related to a negotiated plea agreement, with the exception of those allowed by Rules of Criminal Procedure 17.4g.0

Change of Judge Requests – Time Restrictions

Reassignment of a Judge is subject to certain time restrictions. A change of judge may be filed within ten days after:

• The Arraignment, as long as proper notice and assignment is provided;

• The Arizona Appellate Court files a mandate with the Superior Court clerk.

In all other cases when a different judge is assigned to preside over a case less than 10 days before a trial begins, certain time rules apply: Notice of the change is required to be filed with the other parties. The other parties must be in actual receipt of the notice by 5:00 p.m. of the next business day, the earlier of the assignment, or by the start of trial.

When filing the change of judge, the parties are required to provide written notification as to whether or not they have agreed upon a judge who is in a position to take the case. Their request will be honored.

If the parties cannot agree upon a judge then the presiding judge will complete the reassignment immediately.

Special Action v. Direct Appeal

In Arizona the Rules of Criminal Procedure, for trial, allow for Special Actions as part of trial proceedings.

They are used provide a remedy for arguments involved in the case, for example those involving evidence, or rules of procedure.

Generally these take place prior to the completion of the trial

The disputing party begins the process by filing a petition with the court, similar to an Appellate brief.

This differs from a Direct Appeal in which the petition can be filed only following final orders, and appealable judgments.

Arizona Statutes exists that allow for Special Action filing. These are referred to as Statutory Special Actions.

Special Actions are not available where there is an equal and adequate remedy that exists through the filing of a Direct Appeal.

A Direct Appeal is a formal petition in writing asking the Appeals Court to review the decision to make sure rights were not violated, procedures were followed, and laws were interpreted correctly.

Judgement of Acquittal

Arizona Rule 20 of the Criminal Procedures allows for a Judgment of Acquittal on behalf of the defendant. It may take place before the verdict or after the verdict.

An Acquittal is in essence, a “not-guilty” judgment. It is a conclusion that can be reached pursuant to a jury verdict in whole or in part on the counts; motion by the defendant, or by the court itself.

This may be concluded when it is determined that substantial evidence does not exist that would lead to a guilty verdict, or that the state prosecution did not did not satisfy its burden of proof beyond a reasonable doubt.

Criminal Defense for Arizona Prohibited Possessor Charges

Under the Arizona Constitution and United States Constitution persons currently have the right to bear arms.

But these rights are not without limits at both levels.

For example under Arizona Law A.R.S. 13- 3102, is in violation of Weapons Crime Laws if they are convicted of:

• Possess a deadly weapon, while classified as a Prohibited Possessor;
• Possess a Prohibited Weapon as defined by law; or
• Other Misconduct of Weapons as defined by law.

Weapons crimes may be classified as Misdemeanors or Felonies. Both are serious, particularly those brought as felonies.

All felony convictions in Arizona expose a person to prison sentences, large fines, a felony criminal record, and jeopardize a person’s rights in the future to bear arms, even to defend themselves.

It is important to understand your rights if you carry or possess weapons, and the fact that those rights are in jeopardy if you face felony charges.

If you face criminal charges, you should hire an experienced weapons crime defense attorney to protect your rights, and defend your charges.

Due to the multifaceted nature of criminal charges, numerous challenges or defenses may exist, and every possible avenue explored for applicability for criminal defense purposes.

10 Common Defenses Used for Prohibited Possessor Charges

Below are 10 challenges that might apply to prohibited Possessor charges:

• Constitutional Rights violations such as unlawful search and seizure;
• Validity or trustworthiness of “heresay” testimony;
• Lack of constructive or actual possession;
• Lack of knowledge of prohibited property;
• Lack of Dominion where the prohibited property was found;
• Lack of ownership of the firearm;
• Challenges to whether or not the suspect is a prohibited possessor;
• Challenges to whether or not the property is prohibited;
• Violations of Police agency procedures or Rules of Criminal Procedural;
• Insufficiency of Evidence or other trial challenges

Prohibited Possession of Weapons Defense Attorney Mesa, AZ

“Always Prepared to Defend.”

– James Novak, DUI & Criminal Defense Attorney Mesa AZ

James Novak is a highly skilled criminal defense attorney. If retained, James Novak will evaluate your case to determine what defenses apply and tailor your defense. He will determine what challenges if presented are likely to lead to the most favorable resolution in your case.

If you are charged with a gun crime in Arizona, you should consult an experienced criminal defense attorney. James Novak of the Law Office of James Novak provides a free initial consultation for active charges in his area. He can discuss your matter with you, and provide you with options for a defense. Call or contact the Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S. § 13-3102 (A)(4) (Misconduct involving weapons)
• A.R.S. § 13- 3101(A)(7)(b) (Definitions related to weapons charges)
• Arizona 13-3925 (Unlawful Search and Seizure; Admissibility of Evidence)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona Constitution Article 2, Section 8 (Privacy Rights)
• Arizona Rules of Criminal Procedure | III Rights of Parties | Rules 10.1 & 10.2
• Arizona Rules of Criminal Procedure| Rule 20 | Judgement of Acquittal
• Maricopa County Attorney | Criminal Process

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