Oft-delayed Foshee Trial to begin

[Link to all case minutes for CR2009154132;  Direct link to case on Maricopa Co Superior Court ]

[ The old format, the one linked thru caselookup, no longer works and throws  a 500/internal server error. e.g: www.courtminutes.maricopa.gov/scripts/meeds/qreturn.asp?casenumber=CR2009154132 ]

[SENTENCING finally actually happened 4/18/2012; the matter is finally (hopefully) put to rest.  According to my correspondent, Foshee received 10.5 years for manslaughter 6 years each on the endangerment, 22.5 years, but to be served concurrently so 10 1/2 years, TOTAL, which is the presumptive sentence for manslaughter all by itself, a dangerous class 2 felony (see 28-704). Off-hand, not knowing all details and back-story — this seems too light given the hit-and-run, the other aggravating circumstances, the prior DUI conviction, and the (I presume) rejection of a plea deal. In short, it seems to me the justice system is sending many wrong signals here, for example it appears that, once again, there is no penalty whatsoever for hitting-and-running. You can read the sentencing case minute here. ]

[Updates from case minutes 3/28/2012: The motion for a new trial has been DENIED.  And separately, on the Defendant’s Motion, the defendant has been found to be indigent. I assume this has something to do with lawyer’s fees. Sentencing remains scheduled for 4/6/2012]

[Sentencing Update; 3/23/2012 — to the surprise of probably no one, sentencing did not occur as scheduled. The defense has filed a motion for new trial (here is the case minute, but it doesn’t explain anything), the prosecution has until 3/23 to respond. The sentencing has be re-scheduled for 4/6/2012]

[breaking news update: 2/14/2012 — guilty on all counts / and all counts are “dangerous”; the jury in a seperate phase found the charge to be aggravated (will make sentencing, scheduled for March 23, harsher). Man guilty of manslaughter in bicyclist’s death, Jim Walsh. Here is the verdict case minute, it is quite detailed ]

The manslaughter trial stemming from an incident where a cyclist was killed in August of 2009 is actually going to trial 1/30/2012 after many delays — yes, that was almost two and half years ago!

My correspondent told me that jury selection did begin on Monday.

According to police, issued to the media, at the time:

  • A WB driver crossed over into the EB lane and collided head-on and killed Russell Jenkins
  • “The rider…  had a working headlight on his bike”
  • “The surviving cyclists … reported that Foshee had a strong odor of alcohol”
  • “The driver fled the scene, but the Maricopa County Sheriff’s Office Traffic Unit later arrested Gary Foshe [Foshee], 53”
  • “two deputies reported that Foshee had a strong odor of alcohol and several signs of intoxication”

The defendant’s prior DUI conviction, as well as his blood test results are likely to be key factors. On the other hand, the issue of the victim’s posthumous blood test results is, from what i can tell, irrelevant because it did not affect the crash in any way.

[UPDATE added August 2014; i was unaware that the AZ supreme court publicaccess lookup does NOT include any Maricopa County Justice Courts. Searching justice courts turns up more brushes with the law; though the outcomes aren’t searchable (you would have to call the court), including a criminal traffic violation filed in San Tan Justice Court in March of 2010 where he was represented by the same attorney that handled his manslaughter case]

Much more background here and here.

The Criminal Case

Superior court criminal docket, case number CR2009-154132. , or lookup via supremecourt.az.gov

According to case minute entry “Defendant needs additional time for expert to complete investigation and make a complete expert opinion”; which was granted resetting the trial for 07/26/2010…. oops, more delays, now showing another conference for 1/4/2011 and the “new last day” is 2/10/2011. The minute entry from 9/28/2010 “regarding the constitutionality of A.R.S. § 12-2203“, a statute which relates to the Admissibility of expert opinion testimony. hmmm….

The trial has been reset AGAIN, as of the case minute entry from 3/14, the trial is set to begin 3/28/2011. This case has more minute entries and notations than I’ve ever see. The DPS criminologist is Herlinda Graham, and apparently the defense’s expert witness is Chester Flaxmayer.  See, e.g. “AACJ 23rd Annual Seminar on Aggressive Defense of the Accused Impaired Driver”, or phillipslaw.com.

Pick up trial coverage (and eventual outcome) here.

The Court of Appeal’s decision

In an unpublished Memorandum Decision; Arizona v. Foshee,  No. 1 CA-CR 12-0249 filed 1/30/2014 The Arizona Court of Appeals upheld the trial court’s findings. Foshee asserted three errors

  1. Foshee contends the trial court erred when it granted the
    State’s motion to exclude evidence of methamphetamine in the decedent’s system: “At a pretrial hearing on the State’s motion to exclude, a forensic toxicologist testified there were ‘trace’ amounts of methamphetamine and one of its metabolites in the decedent’s blood. The amount present was similar to that one would find in a person who had taken a medically prescribed form of methamphetamine for weight loss. Further, the decedent ingested the methamphetamine at least six hours before his death. The toxicologist testified that due to the amount of methamphetamine in the decedent’s system and the amount of time that had passed since its ingestion, the decedent was not impaired at the time of the incident.” Furthermore “there is nothing in the testimony of the two witnesses he (Foshee) identifies to even hint the decedent was negligent, let alone impaired” [see footnote]
  2. Foshee asserts the trial court erred when it allowed an expert
    witness to testify that Foshee’s blood alcohol concentration (“BAC”) two hours after the incident was between .144 and .194. The defense’s expert disagree; however both experts were permitted to testify — allowing to the jury to decide that matter of fact.
  3. Foshee argues the trial court erred when it admitted evidence of his prior conviction for driving under the influence.

The CoA found no error.


Foshee left a bar sometime before 2:00 a.m. on the morning
of August 15, 2009 after the bar refused to serve him further and security personnel asked him to leave. At some point after he left the bar, Foshee drove his pickup truck east on a two-lane road. Ahead of Foshee on that same road, three men on bicycles rode west on and/or near the shoulder of the westbound lane. The decedent and at least one of the other cyclists had lights on their bicycles.
Shortly after 2:00 a.m., Foshee drove east in the westbound
lane to overtake and pass another eastbound vehicle. Once he passed the vehicle, Foshee drove down the center of the road. Foshee then moved into the westbound lane again, possibly to attempt to pass another eastbound vehicle. Regardless of the reason, Foshee drove towards the three cyclists as they rode west on or near the shoulder of the westbound lane. At some point in the sequence of events, Foshee swerved left and then right. Two of the cyclists turned right to avoid being struck by Foshee’s truck. The decedent, however, apparently turned left. Foshee struck the decedent with the right front corner of his truck…

One thing not present in the FACTS recited is any mention the incident was a hit-and-run as was stated by police in the media.

PCR (Post Conviction Relief)

[Updates Aug 2014: some PCR (post conv relief) line items popped up. 8/12/2014 minute refers to a “Rule 32” proceeding; appears to have a public defender appointed to prepare pcr stuff]

From what i can tell from case minute 02/13/2015 all possible PCR has been exhausted.


On the inadmissibility of victim’s impairment as unduly prejudicial under Rule 403 see

  • State v. Krantz, 174 Ariz. 211, 213, 848 P.2d 296, 298
    (App. 1992) (excluding the victim’s alleged use of methamphetamine), which was cited in the Foshee Court of Apeals decision, above. But, for contrast, see also:
  • the unpublished State v. Aguilera (victim’s BAC should have been admitted). In this case the drunk driver’s aggravated assault conviction was tossed; the defendant asserted the victim was driving his motorcycle too slowly, and that the motorcycle’s taillight was “weak”; and so it was okay to drive into the back of the motorcyclist. There were also three other interesting discussions, that weren’t relevant to the 403 issue: failure to instruct the jury on a) causation, b) superceding causation, and c) lesser included offense. [Since inquiring minds want to know… Aguilera ultimately plead guilty in a deal to non-dangerous agg assault, see case minutes for CR2007008373, 1/14/2011 (I can’t find the sentencing minute? the last case minute implies he did go to prison. I would think the non-dangerous classification would have yielded a suspended sentence / probation)]

14 thoughts on “Oft-delayed Foshee Trial to begin”

  1. I’m happy to report that Mr. Foshee was convicted on 3 counts yesterday, all with aggravating circumstances. He was convicted of vehicular manslaughter for killing Russell and for Dangerous Endangerment for almost killing the other 2 bicyclists. It took less than 3 hours to reach their guilty verdicts and less than 30 minutes to add the aggravating circumstances. The bottom line is that he was a drunk. He had a recently prior DUI. That night, he was drinking at a bar where he was “cut off.” They called him a taxi but he refused the $10 taxi ride home from the bar that fatal night (despite having several hundred dollars in his pocket). He crossed over the centerline of the roadway and hit Russell and then attempted to flee the scene without rendering any aide. Foshee got what he deserved. Sentencing is March 23rd.

  2. Aggravating Circumstances:

    The jury initially found the defendant guilty of all charges (manslaughter and endangerment), those were the only counts being considered as i understand it. In a separate phase the jury heard some further testimony and again deliberated to decide whether it is aggravated, which would add to the sentence, four factors that were given 1) if defendant left the scene [ maybe this is why they don’t go for hit and run? ] 2) if more than one person was involved/endangered [ there were 3, total ], 3) another was if it caused hardship, Russ’s mom, Gina, took the stand in heartbreaking testimony said that Russ was her best friend and shopping and hanging out with him was even more than with her daughter, and much more, not many dry eyes in the room, 4) i can’t recall, as of now.

    The only question the defense attorney asked Russ’s mother was that if Russ was a drug addict? [ objection and sustained ].

  3. This accident is only focused on the alcohol, it is a sad day when regular law abiding american people over look the drugs involved in this case. Alcohol has its laws / and toxicology reports confirmed Russel to be on drugs while riding that night. Its awful that Russel died that night, but you have to take all the facts into consideration when you sentence someone.[ Mrs Jenkins has admitted she didnt know where Russel was every night and admitted to his drug use.[ Just ask her.] When you know you have a drug user in your family you live with the fear of that dreadful phone call that your loved one was involved in an accident, the odds are high when you frequently ride a bike or drive a car under any influence. Adults who ride bikes in the middle of the night are not doing the right thing either. Im sure the regrets are large in this case, we must keep an open mind and we must do something about all these drug users who can not obtain a legal drivers license, meth users are always taking apart and putting together bikes as therapy for the drug addiction. search that on the web and police confirm this. this comment is not given in any way to take away from the Jenkins familys loss ! Im sure they live with the what if all the time. What if Russel would not have been on drugs, what if when Russel went somewhere it would be in a car and not on a bike, what if he would have went into rehab, what if. the same with Mr. Foshee , what if

  4. ummm P.A.M. Where in heck do you get your info. Russell was not a drug addict, THANK YOU!! TOXICOLIGY reports DID NOT confirm Russell was on drugs that night. Recheck your facts…..Russell also had a LEGAL DRIVERS LICENCE…..HE ALSO HAD A JEEP…I dont see anywhere in the laws that it is illegal to ride your bike at night. HE HAD A LIGHT ON THAT BIKE!!!!! I have a 20 year old son and I dont know where he is everynight. Does that mean he is ALSO ON DRUGS….. I THINK NOT….

  5. Our office has records of the drug use and the toxicology findings, it is not hear say. Jenkins also had an warrant after his arrest for vandalizing QueenCreek High school,, which is a few blocks from the accident, Russell failed to show up for court in the matter and a warrant was issued for his arrest, this information is available at Maricopa records , I have the facts and in writing. You did not know Russell well if you were not aware of his on going drug use. The civil suit is recorded and on record and the family admits to Russels drug use. All public information. You have access to Russells criminal history if you want to know the truth.
    Either way Drugs and Alcohol didnt mix well

  6. Dear P.A.M:

    Have you stopped beating your wife?
    Which is to say: None of the issues you raise are relevant; regardless of their veracity. Your attempts to smear are transparent.

    What is relevant is that three bicyclists were cycling according to the rules of the road (going in the proper direction) when Foshee, driving in the wrong direction, collided with one of them. His conduct was found to be reckless and was convicted of (aggravated) manslaughter ” ‘Recklessly’ means… that a person is aware of and consciously disregards a substantial and unjustifiable risk … of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation”. §13-1103

  7. The drugs were not mentioned at the trial. The jury had no knowledge of Jenkins toxicology reports, Russel was a wanted fugitive at the time and had he survived this horrible ordeal he would have been arrested Case # 2004-35902-001. The warrant was issued 5 years before the accident for failure to appear for the break in at Queen Creek High School just a few blocks from the accident. Jenkins was known to frequent the roads at night a carousel the neighborhoods in the area. Jenkins was impaired the night of the accident had the Jury had this knowledge the out come may seem justified. It was not though

    One more factor, there was no proof of the defender being on the wrong side of the road . the man following the defender in his vehicle said he was in his lane. These are the facts. If you choose to believe the other users on the the other bikes you will as you have. Two wrongs dont make rights. This is all I am saying because the truth is before you and I will not argue with users, there is no reality here and all a user can thing of is when and where will I get my junk

  8. PAM So easy to post and belittle someone who is no longer here to defend themselves. If you read the report then you would obviously know that Russell was NOT impaired. Minute traces is not impaired. Yes ask his Mother. Did Russ have a drug problem? Yes..5 years before he was taken from us. Do I believe Russ was using again on a regular basis? NO. Russ lived with me I would have known. Russ was an ugly person when he used. Did I know where he was every night? Why should I?? He was 24 years old and didnt need my permission to go out! Facts are facts. Russ screwed up. We all do. But should he be punished again and again for something that happened 5 years before his death?? WTF? So many seem so bent on blaming the guys on bikes! What about the one drinking and driving AGAIN!! Ask anyone in Queen Creek that knows him! They will be happy to tell you he was known for drinking and driving most weekends! Had any of you cared enough to be at the trial you would have known that Russ didnt even want to ride to Wal-Mart that night. he had to WORK the next day. And if you have so much access to Russ’s personal info then you should also print facts!! Russ has a VALID drivers license!! OMG Get a life. Stop beating your wife and let Russ Rest in Peace!!! I’m sure your not perfect and would not appreciate all your dirty laundry aired in public!!

  9. PAM
    I looked up the “public records” Shame on you. The warrant was never issued until after his death! For something that happened in 2003!! Again 6 years before his death. Please pull your head out of your A#$ and get your facts straight. The case is CLOSED!!

  10. It’s people like this that disgust me. Russell, Terry, and Tim were riding their bikes legally! Russ was hit and killed by a drunk driver. Could have easily been all three of them. And these people will still stick up for the drunk driver. It is NOT illegal to ride a bike at night. If Russ were driving his jeep they could have all been killed and this would have been a whole different story. The fact that the “drugs” were never allowed in court, is because there were not enough drugs in his system to make a difference. But the fact that The Drunk driver was still extremely drunk 4 hours later is downplayed every time.
    This mentality is why we still have so many deaths caused by DUI. “Blame the victim because he isn’t perfect. The drunk driver didn’t do anything wrong.” Really?? That’s why he’ll be spending the next 10 years in prison!!

  11. nkronk
    Once again no dui! Look it up!!!!! For azbikelaw mentioning beating anyone in general is completely uncalled for. Have some class.

  12. WTH are you talking about? No DUI?? Dude I was in court for EVERY session. I know what was and what was not!! And the mentioning of beating anyone was just a figure of speech. Pull your head out!! Hiding behind unknown. How appropriate.

  13. The drivers’s blood BAC according to the FARS database was 0.15%
    Defense lawyer motioned to exclude the defendant’s blood test results, and was denied… So as far as I know the blood evidence was admitted and presented at trial in support of his being impaired, which supported his conviction for manslaughter and two endangerments.

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