Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 (FIRM STATE BARNo. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997

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TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)

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RESPONDENTS

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ATTORNEYS

FOR

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner,
-VS

CIV 04-573-PHX-FJM (MS)

DORA B. SCHRIRO, et aI., Respondents.

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EXHIBIT J, PART 5, PGS. 160-166 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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penalty when administered to a minor, and I would hope that the legislature didn't pass two, two criminal statutes that apply to the same act. I'd like you to

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try to shed some light on that if you would. MR. GRIFFITH:
I'm going to -- ,I'm going

to be shedding light on that in my Rule 20 Motion tomorrow at the close of the state's case.
THE COURT:

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Well, for the purpose of

allowing me to do some research on it, why don't you

shed light on it now, Mr. Griffith. MR. GRIFFITH: Honor.
,

Okay.

Thank you, Your

Your Honor, our argument essentially is going to be this: 13-3407 talks about administration
and administer as defined in 3407 -- it's defined in 3401, and it means: To facilitate the inhalation or

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ingestion of a substance.

Facilitate means, to help

someone else meet their goal, which implies that someone else wants to ingest the substance or the drug. So

essentially the Legislature has not said two separate things, has not covered the same crime with two separate
statutes.

You can see then in 1205, it clearly states that this is introduction without -- and it uses the word, introduced into the body of another person

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without such other person's consent.

And the

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distinction between 1205 and 3407 is that facilitate

assumes consent on the part of the person you're facilitating and introduction under 1205 says specifically that you do not have their consent. So it

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is our position, that he is charged under the wrong Statute, that he has not facilitated; that if he is guilty of anything, he has introduced without the
consent.

And to this point we have heard no evidence

whatsoever that Ms. Tseko consented or wanted Mr. smith to facilitate the introduction of drugs into her body.
THE COURT:

You're saying that ARS
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~ection -- I'll be glad to hear from you in,a minute. MS. Bowen, ,when~ver you're ready.

You're saying, M~. Griffith, the charge contained in the indictment, 13-3407, refers to administration of a dangerous drug with the recipient's consent? MR. GRIFFITH:
THE COURT:

Yes.

You're also saying 13-1205,

which is the requested instruction that you have asked I give to the Jury, refers to the unlawful administration of a dangerous drug without a person's consent? MR. GRIFFITH:
THE COURT:

Yes.

You're saying that at this

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point in time the testimony and the evidence is such that there is no evidence that the drug was administered with Rachel's consent. MR. GRIFFITH:
THE COURT:

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Yes.

And that therefore, based on

that, 13-3407 would not apply? MR. GRIFFITH:
THE COURT:

Yes.
Thank you.

MS. BOWEN:

Your Honor, in response to

your first inquiry, I donit have, I don't believe, a copy of the Defendant's instructions, or if I have, I haven't looked at them, you know, realizing this issue was going to come up at this point in time to be aware this was an issue. I just ask for some time. Maybe we

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could address this tomorrow. response.
THE COURT:

I don't reaLly have a

You certainly have that right.

I didn't want to prolong our jury instruction session, and that's why I, when I discovered this earlier today I wanted to bring it to your attention. Take a look at

Mr. Griffith's requested jury instructions, Ms. Bowen,
and MS. BOWEN:

It's a one-page, aSking for

facilitation, that's it? MR. GRIFFITH: It's just two pages, yes,

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sir, and I did give this to her before. of papers floating around.
THE COURT:

There is a lot

-It's the two pages, first page

containing the elements of 13-1205, and I believe from RAJI 12.05. MS. BOWEN:
THE COURT:

I do have it.

And the second page contains a Is that from the statute or

definition of facilitating.

is -- where is that taken from, Mr. Griffith? MR. GRIFFITH: I could not find the

statutory definition of facilitate. MS. BOWEN: Offenses.
THE COURT: MS. BOWEN:

It's in the Preparatory

Is it?
1003 or something like that. So there is a definition,

MR. GRIFFITH: but MS. BOWEN:
THE COURT:

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1004.

Is that the same facilitation

that is referred to in Well, the word facilitate is derived from definition of administer.
Counsel. That's 3401 I believe,

MR. GRIFFITH:
THE COURT:

Yes, Your Honor, it is.

You're offering what, a

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dictionary definition of the verb, of the term
facilitate?

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MR. GRIFFITH: definition of 13-1004 for it. my argument.

I'm now going to offer the That fits perfectly with

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THE COURT: .All right.
Counsel:

Food for thought,

I'm not sure 13-1004 refers to the same

facilitation as facilitation that's included in the
definition of administer. My initial reaction is that

the facilitation defined in 13-io04 refers to a specific offense which is facilitation, either a class 5 or class
6 felony or class 1 or class 3 misdemeanor, depending on

certain circumstances.

And I may be wrong.

But give

me, please, your arguments on whether the facilitation
definition in 13-1004 applies to the term facilitate in

the definition of administer under 13-3401. Also, Ms. Bowen, you certainly can have until tomorrow to give me your argument on whether the offense, based on the evidence presented, falls under
13-1205, the class 5 felony for administering a

dangerous drug to a minor or whether it properly falls under the offense as indicted, 13-3407. Thank you.

I will need to meet with you then at 1:00 o'clock to try to ferret that out and I'll see you at
1:00.

We will have the Jury start with us at 1:30.

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Thank you very much.

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do

'y certify that the foregoing pages constitute a full, :ate
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typewritten record of my stenographic notes

1 at said time and place. all done to the best of my
,

,

and ability. DATED this

day of

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bfficial Court Reporter

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