Tag Archives: DUI

Seriously, how often does this happen?

[ There was an Oct 2015 Court of Appeals ruling against Nissley ]

[ THE OUTCOME: Nissley trial began mid-August and was in Day 14 as of 9/13/2012 “Chester Flaxmayer is sworn and testifies” Case minutes. Some news coverage on the trial: Man using diabetes defense in trial; Man in pedestrian’s death was on meth, prosecutor says
The EIGHTEEN DAY trial wrapped up on 9/20/2012 (sounds mighty expensive!) The trial lawyer was Lawrence Kazan,   the lawyer whom AZRepublic columnist Laurie Roberts refers to as “the Valley’s go-to attorney for bad drivers – the ones who can afford him, that is”.
Verdict: guilty of manslaugther and several other ancillary charges. The jury also found aggravating factors for all the charges; one of them being he “used a dangerous instrument, his car, in the commission of a crime”.  Paradise Valley man who claimed diabetes in fatal crash guilty. ]


It’s an usually warm early November afternoon. You’re strolling down a lovely sidewalk in Paradise Valley, AZ when suddenly, BAM, you’re dead.

(see more and other Are Cars Dangerous? stories).

Head-on collision in Paradise Valley leaves pedestrian dead
by Lauren Worthington – Nov. 3, 2010 11:40 AM
The Arizona Republic

A pedestrian is dead and five people are in the hospital after a head-on collision in Paradise Valley. The pedestrian has been identified as [plastic surgeon and ‘top doc’]]Richard Pavese, 62, of Phoenix, police said Wednesday. About 5:45 p.m. Tuesday, Patrick Nissley, 25, of Paradise Valley was traveling north in the southbound lane of Invergordon Road near East Vista Drive when he struck the corner of a 2003 Lincoln Town Car. Nissley’s car, a white 2009 BMW, glanced off the Lincoln Town Car and drove over the sidewalk, hitting and killing a pedestrian, Paradise Valley police spokesman Alan Laitsch said. The driver of the Lincoln Town Car, Craig Lesman, 42, of Phoenix, and his passengers — a 61-year-old man and two women, ages 62 and 70 — were transported to Scottsdale Healthcare Osborn Medical Center and St. Joseph’s Hospital and Medical Center with non-life-threatening injuries. Nissley was transported to an area hospital in serious condition. The cause of the accident is under investigation. Continue reading Seriously, how often does this happen?

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 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.

FACTS OF THE CASE

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.

Footnotes

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)]

Foshee Trial delayed again again again

[Trial actually, finally begins: oft-delayed-foshee-trial-to-begin ]

The manslaughter and endangerment trial of Gary Foshee in connection with a fatal traffic collision in August of 2009 has been delayed again and again and again.Trial was originally set for 5/24/2010; however it was reset because “Defendant needs additional time for expert to complete investigation…” (this was 9 months after the incident), so was first delayed to 7/26/2010.Then for some reason that was delayed.

Then the trial set for 9/28/2010 was missed: “Defense counsel orally moves to continue the Trial. Defense counsel’s expert witness will not be available to testify at the Evidentiary Hearing…”.

Then there’s a whole bunch more motions and case minutes.

The case minute dated 5/16/2011 which re-sets the pre-trial conference to 5/18/2011, at which time i suppose the trial date will get set (again). “Due to the unavailability of Defense witness”. Trial was then set for August 15, 2011 (! exactly 2 years after the incident).

Oops, another delay  (for seemingly unspecified reasons by the state; the defense did not object), make that trial date of 10/4/2011.

Oops Oops again another delay  (again, for seemingly unspecified reasons by the state; the defense did not object): new trial date 11/28/2011.

Oops, oops, another delay, another new trial date “The Court finds that delay is indispensable to the interests of justice… A defense expert is not available. IT IS ORDERED granting the Motion to Continue … resetting the trial to January 23, 2012“.

Some background information and media reports about the incident which occurred 8/15/2009: Queen Creek hit-and-run; driver arrested Continue reading Foshee Trial delayed again again again

Driver found guilty: South Phoenix Hit-and-run

7/11/2009: location listed only as “South Phoenix”,  in the early morning hours of Saturday,  hit-and-run. Police apprehended Max Ramiro Garcia, 33, in an unrelated traffic stop (speeding). ( azcentral.comKPHO). was charged with manslaughter and leaving the scene in the death of cyclist Robert Flakes; Superior Court Case Number CR2009-145409 case minutes Continue reading Driver found guilty: South Phoenix Hit-and-run

Christmas Eve ’07 crash trial, verdict: guilty

This has been a long and arduous journey legal journey (continuing on as of 2014 still dealing with pcr motions. And I see a number of pro per motions in Oct 2016).  The human and societal costs are staggering.

For starters, one victim, a motorist, dead. A number of injured motorists. The suspect, locked up since the crash on December 24, 2007.

Christopher Lee Smith, 32 years old, stands accused of DUI and manslaughter in a wrong-way, head-on collision on Pecos Road near 14th Street in Phoenix, AZ.

According to the Ahwatukee Foothills news story; “At the time of the crash, Smith was on probation for a previous misdemeanor DUI…” Continue reading Christmas Eve ’07 crash trial, verdict: guilty

Another hit-and-run; this time Mesa

A cyclist was seriously injured by a hit-and-run driver in Mesa in the early-evening timeframe. Monday Aug 24, 2009.  Police arrested Benito Gil-Mendoza, 31,  on suspicion of aggravated assault and hit-and-run.

The azcentral story says the collision was 6:30p. Sunset that day in Phoenix is 7:03p. No mention of lights was made in either of the news stories.

How will this one play out? After all, three hours is a long time. The suspect will likely deny he was drunk at the time.

Continue reading Another hit-and-run; this time Mesa

Phoenix Hit-and-runs disturbingly similar

There has been a third fatal hit-and-run in Phoenix, the third within two months — one in June, one in July and one (so far) in August.

Just after midnight this past Saturday,  52 year old cyclist Charles Waldrop was killed by a hit and run driver who witnesses say was driving at a high rate of speed and swerving. Police say an anonymous tip lead to the apprehension and arrest of  23 y.o. Timothy Kissida after he traded (via the “Cash for Clunkers” program) a light blue 1992 BMW 325i w/damage consistent with hit-and-run.  He was booked into the Maricopa County jail and charged with leaving the scene of a fatal collision and tampering with evidence. (KPHO, abc15, azcentral) (CAzBike blog). According to case minutes from 04/08/2010 “The parties anticipate that this matter will resolve prior to Trial.”. Kissida was ultimately sentenced to 10.5 years in prison.

This is disturbingly similar to another incident just 4 weeks ago; also in Phoenix, also in the early morning hours of Saturday, also hit-and-run. In that case, though, police apprehended and was arrested someone soon after the collision. See South Phoenix Hit-and-run for details on that incident.

There was a third nighttime hit-and-run fatality in Phoenix back in June, see Driver confesses to hit-and-run killing

As a note on media coverage; something I normally have complaints about, I have to give credit where it is due — The azcentral.com (and abc15.com carried the same quotes), sourced to police spokesman Sgt. Tommy Thompson was unambiguous: “The cyclist, 52, was riding home from work and was in full compliance with the bicycle laws. He was riding with a bike light and a rear flashing light in the bike lane.” In the June fatality, police said “Police say that Thompson was riding his bike legally”.

Recap of the Criminal Cases

Index to the three, with outcomes, all drivers were caught and were subsequently convicted of various crimes, though the outcome varied quite a bit:

  • June incident: driver worked a plea for simple hit-and-run; very brief sentence. Presumably because there was apparently no impairment.
  • July incident: driver went to a full trial — found guilty of neg hom among other crimes. Was sentenced to 6 year PLUS a consecutive 3.5 years for the hit-and-run (VERY unusual) — this seems to be his “punishment” for going to trial vs. working a plea deal.
  • August incident: driver plead to manslaughter and got 10.5 years. due to plea deal, the hit-and-run he also plead to netted no incarceration.

 

 

2009 AZ Cyclist Fatality Grid