State v. Hernandez

250 Ariz. 28

474 P.3d 1191

STATE of Arizona, Appellee,

v.Pablo Isaac HERNANDEZ, Appellant.

No. CR-19-0193-PR

Supreme Court of Arizona.

Filed October 27, 2020

Amended November 25, 2020

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Michael T. O'Toole, Chief Counsel, Michelle L. Hogan, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Michael J. Miller, David J. Euchner, Deputy Public Defenders, Tucson, Attorneys for Pablo Isaac Hernandez

Nicholas C. DiPiazza, Glendale, and Lisa S. Wahlin, Phoenix, Attorneys for Amicus Curiae, The Arizona Law Enforcement Legal Advisors Association

Bill V. Amato, and Eric B. Edwards, Sedona, Attorneys for Amicus Curiae Arizona Association of Chiefs of Police

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ, and MONTGOMERY joined.

JUSTICE BEENE, Opinion of the Court:

¶1 When the state fails to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused and prejudice results, the trial court must provide the jury a Willits¹ instruction. State v. Glissendorf , 235 Ariz. 147, 152 ¶ 18, 329 P.3d 1049, 1054 (2014) ; State v. Perez , 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). This instruction is powerful, informing jurors that they may draw an inference unfavorable to the state, which in itself may create a reasonable doubt as to the defendant's guilt. See Willits , 96 Ariz. at 191, 393 P.2d 274 ; see also Rev. Ariz. Jury Inst. (Crim.) Standard 42, at 33–34 (4th ed. 2016). Here, we address whether law enforcement's failure to collect putative fingerprint and DNA evidence warranted a Willits instruction. We hold it did not. We vacate the court of appeals’ opinion holding otherwise. See State v. Hernandez , 246 Ariz. 543, 549 ¶¶ 21–22, 443 P.3d 33, 39 (App. 2019).

BACKGROUND

¶2 In March 2016, Pima County Sheriff's Deputy Michael Turner was driving on patrol when a car ran a stop sign and entered his lane, causing him to swerve to avoid a collision. As the car passed his vehicle, Turner made eye contact with the driver through the latter's partially open driver's-side window for one to two seconds. Turner later testified the driver's face was "a face that [he] would never forget."

¶3 Turner attempted to conduct a traffic stop, but the car sped away. After a short pursuit, the car stopped at an apartment complex and three men got out and fled. As the men ran off, Turner saw the driver's profile from approximately ten feet away. Turner searched the apartment complex but was unable to find the men.

¶4 Shortly after arriving at the apartment complex, Turner was contacted by federal marshals. The marshals explained they had been pursuing a car in connection with another offense and showed Turner a photograph bearing Pablo Hernandez's name. Turner agreed the person in the photograph was the driver of the car he had been following. Using the computer in his patrol car, Turner pulled up another photograph of Hernandez and again identified him as the driver.²

¶5 Police impounded the car without collecting any evidence from its interior. About a week after the incident, the car was returned to its owner, who had reported it stolen. Approximately three months after the incident, Hernandez was arrested.

¶6 The State indicted Hernandez with one count of fleeing from a law enforcement vehicle. See A.R.S. § 28-622.01 (2016).³ Before trial, Hernandez requested a Willits instruction, arguing the State's failure to collect fingerprint and DNA evidence from the car deprived him of a fair trial. The trial court denied Hernandez's request after a hearing, concluding: (1) the State did not destroy, lose, or fail to collect evidence because it was unclear whether the evidence in question existed; and (2) the evidence was just as likely to be inculpatory as exculpatory. The jury found Hernandez guilty, and the court sentenced him to three years in prison. A.R.S. § 13-703(J).

¶7 The court of appeals reversed Hernandez's conviction and remanded for a new trial, concluding the trial court abused its discretion by refusing to give a Willits instruction. Hernandez , 246 Ariz. at 545 ¶ 1, 443 P.3d at 35. It reasoned that Hernandez "met his burden of showing that the [fingerprint and DNA] evidence, if preserved, would have been potentially helpful to him." Id. at 549 ¶21, 443 P.3d at 39.

¶8 We granted review to determine whether Hernandez, under these circumstances, was entitled to a Willits instruction, a matter of statewide interest. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶9 "We review rulings regarding a Willits instruction for abuse of discretion." Glissendorf , 235 Ariz. at 150 ¶ 7, 329 P.3d at 1052. We "will not reverse [the decision to refuse a jury instruction] absent a clear abuse of that discretion." State v. Bolton , 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

¶10 Generally, a defendant is entitled to a Willits instruction if: (1) the state failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused; and (2) there was resulting prejudice. Glissendorf , 235 Ariz. at 152 ¶ 18, 329 P.3d at 1054 ; Perez , 141 Ariz. at 464, 687 P.2d at 1219. To prove the first prong, the defendant "must do more than simply speculate about how the evidence might have been helpful"; there must be "a real likelihood that the evidence would have had evidentiary value." Glissendorf , 235 Ariz. at 150 ¶ 9, 329 P.3d at 1052.

The defendant need not show the state destroyed the evidence in bad faith; rather, Willits imposes a "consequence for even innocent loss or destruction ... both to deter such action and to ensure that defendants do not bear the burden of the state's actions." Id. at 151 ¶13, 329 P.3d at 1051.

I.

¶11 Here, Hernandez did not assert that the State destroyed or lost evidence, only that it failed to collect fingerprint and DNA evidence from the car before returning it to the owner. However, it is well-settled that "the [s]tate does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence," nor does it have a duty to gather evidence for a defendant to use in establishing a defense. State v. Rivera , 152 Ariz. 507, 511–12, 733 P.2d 1090, 1094-95 (1987) ; see also State v. Murray , 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) ("A Willit s instruction is not given merely because a more exhaustive investigation could have been made."). The state must only "act in a timely manner to ensure the preservation of evidence it is aware of where that evidence is obviously material and reasonably within its grasp." Perez , 141 Ariz. at 463, 687 P.2d at 1218. Here, we decide whether law enforcement's failure to collect physical evidence from inside the car violated its duty to preserve "obviously material" evidence.

¶12 Until now, we have not defined what constitutes "obviously material" evidence in a Willits context. Generally, evidence is "material" if it has "some logical connection with the facts of the case or the legal issues presented." Material Evidence , Black's Law Dictionary (11th ed. 2019). The dictionary definition finds support in Arizona law, where courts have determined evidence to be "obviously material" when, at the time of the state's investigation, the state relied on the evidence as part of its investigation or knew that the defendant would use the evidence for his or her defense. See Willits , 96 Ariz. at 191, 393 P.2d 274 ; Perez , 141 Ariz. at 463–64, 687 P.2d at 1218-19 ; State v. Fuentes , 247 Ariz. 516, 525 ¶ 32, 452 P.3d 746, 755 (App. 2019).

¶13 For example, in Perez , the defendant was charged with armed robbery of a convenience store. 141 Ariz. at 461, 687 P.2d at 1216. The store's surveillance camera recorded the crime, and the victim viewed the videotaped footage of the robbery multiple times. Id. at 463, 687 P.2d at 1218. During the investigation, several police officers also viewed the videotape on multiple occasions before it was destroyed. Id. We rejected the State's argument that Willits does not apply when the police "never had possession of the destroyed evidence," and determined that "[t]he [S]tate could have, and indeed should have, secured possession of the tape .... The [videotape] was obviously material and the police were aware of its existence." Id. The Court did not focus on whether the State had possession of the evidence but on the fact that the tape was "obviously material" to the State's investigation. See id. ; cf . State v. Sanchez , 165 Ariz. 164, 169, 797 P.2d 703, 708 (App. 1990) (rejecting need for a Willits instruction where "[p]olice testified that the [evidence] was of no useful purpose to the investigation").

¶14 As Perez indicates, the analysis focuses on the time of the state's investigation. The court of appeals’ opinion in Fuentes is particularly instructive on this point. 247 Ariz. at 525–26 ¶¶ 30–35, 452 P.3d at 755-56. In that case, the defendant was charged with first degree murder and aggravated assault. Id. at 519 ¶1, 452 P.3d at 749. The defendant shot and killed victim D.P. during a confrontation between the two men. Id. at 520 ¶¶4–6, 452 P.3d at 750. At trial, the defendant claimed he shot D.P. in self-defense after D.P. attempted to run him over with a truck and rammed the truck into a fence. Id. at 524 ¶25, 452 P.3d at 754. The defendant "sought to establish that D.P. left a shoeprint on the other side of the downed fence, indicating, because of its placement, that he was shot after the fence was struck." Id. Although a crime scene technician had noticed a shoeprint at the crime scene, the State had not photographed the print. Id. at 525 ¶30, 452 P.3d at 755.

¶15 The court of appeals rejected the defendant's argument that he was...