Author: ArizonaBikeLaw

[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.

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)]