Weapons Possession and Defense of a Third Party in Arizona

[aquarianterri]

My question involves criminal law for the state of: Arizona.

My son was cleared of the homicide (defense of a third party); but because he is a felon they wish to give him 3.5 years on a plea for 'constructive [weapons] possession.' Is there case law in his defense? Is it worth the risk taking this to a jury? Poss. 11 years if a jury convicts, as opposed to 3.5 years on a plea (class 3 burglary charge will dismiss if he pleads).

[aaron]

What's the story? He was committing a burglary and his accomplice had a gun?

[aquarianterri]

Hi. The alleged burglary was in 2007 and now that he's locked up for the weapons possession charge (April 08) they brought up the burglary charge for which he was picked out of a lineup in 2007. They just were not able to find him prior to this homicide for which they are not charging him. They are charging only for the weapons possession by a felon. Hope this makes sense and thank you for your response.

[cyjeff]

So there are two counts in question.

The first is a burglary charge from 2007 where he was picked out of a lineup but never found.

Considering the trouble that the police had in finding him, I would expect a high bail amount. From there, listen to his attorney.

As to the second charge, a convicted felon in possession of a weapon... I am unsure what you want.

Are you saying he wasn't carrying a weapon or that he isn't a felon?

[aquarianterri]

Hi. You are correct = the first is a burglary charge from 2007 where he was picked out of a lineup but never found; considering the trouble that the police had in finding him, I would expect a high bail amount. From there, listen to his attorney.

As to the second charge, a convicted felon in possession of a weapon... I am unsure what you want: WHAT I WANT TO KNOW: IF THERE IS CASE LAW in favor of defendant excusing the felon in (constructive) possession because the reason for picking up the weapon is to defend the third party who was the girlfriend of the now-deceased; the deceased had a long history of domestic violence. I have done research and cannot find similar case law. The defense when the weapon was ultimately fired was self-defense; however, [the weapon] was picked up in the first instant to defend the third party so that's what my son is being charged with.

Are you saying he wasn't carrying a weapon or that he isn't a felon? THE WEAPON WAS AT THE SCENE ALTHOUGH HE WASN'T CARRYING IT ON HIS PERSON IT WAS IN A PLACE WHERE HE COULD GAIN POSSESSION AND CONTROL OVER IT; HENCE "CONSTRUCTIVE" POSSESSION. Hope this makes sense.

[aaron]

If he had constructive possession of the weapon prior to using it, the circumstances under which he used it are irrelevant to his prior possession. So fill us in - whose weapon was it, where was it stored, and how did your son know where to find it?

[Litigator]

I don't think that having the weapon for defense of a third party is going to be a defense to a charge of FIPF or at least I'm not aware of any jurisdiction allowing for that.

As to constructive possession, the Court looks at various factors to determine whether the charge can be proven including whether he was the only person in proximity to the weapon.

As to the negotiated plea, he needs to listen to the attorney as to what it common in that locale keeping in mind that as a felon he is always subject to harsher punishment than one with a clean record.

[aquarianterri]

Aaron - in response to your posting: "If he had constructive possession of the weapon prior to using it, the circumstances under which he used it are irrelevant to his prior possession. So fill us in - whose weapon was it, where was it stored, and how did your son know where to find it?"

A friend's weapon - the friend came home, placed the weapon on the countertop and when the confrontation began my son picked up the weapon and proceeded to use it. It was in plain sight.

[Litigator]

If the scenario is that person is attacking or about to attack another person--defendant happens to see a gun and picks it up to protect the other person--choice of evils may work if you have that as a defense in AZ. The way it works is that one crime may be excused if the act was engaged in to prevent a graver crime. Worth a look anyway.

[aquarianterri]

Thank you Litigator - I'll research 'choice of evils' in AZ.