State v. Young

THE STATE OF ARIZONA, Appellee, v. DIJON TREVAR YOUNG, Appellant.

No. 2 CA-CR 2015-0091

ARIZONA COURT OF APPEALS DIVISION TWO

April 11, 2017

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pinal County

No. S1100CR201300632

The Honorable Henry G. Gooday Jr., Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Law Firm of Richard Luff, LLC, Tucson

By Richard Luff

Counsel for Appellant

MEMORANDUM DECISION

Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred.

VÁSQUEZ, Judge:

¶1 After a jury trial, Dijon Young was convicted of manslaughter. The trial court imposed an aggravated, enhanced sentence of seventeen years' imprisonment. On appeal, Young contends the court erred by denying his request for an instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), admitting demonstrative evidence, and allowing expert testimony from a police detective. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Young's conviction. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). In April 2013, Young was in an "on-again, off-again" relationship with V.V., with whom he had a two-year-old daughter and three-year-old son. The two had recently broken up, and they exchanged a series of text messages in which V.V. requested Young return the key to her apartment and Young asked about his belongings. That same day, Young purchased a .357 Taurus Tracker revolver from a friend and went to V.V.'s apartment. Young shot V.V. while they were sitting on the couch in the same room as the children, who were watching television. V.V. was transported to a nearby hospital, where she underwent surgery and later died.

¶3 A grand jury indicted Young for second-degree murder. At trial, Young admitted he shot V.V. but claimed it was an accident. The jury found him guilty of the lesser-included offense of manslaughter. He was sentenced as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Willits Instruction

¶4 Young argues the trial court erred by denying his request for a Willits instruction. We review the decision to give a Willits instruction for an abuse of discretion.¹ State v. Carlson, 237 Ariz. 381, ¶ 38, 351 P.3d 1079, 1091 (2015).

¶5 Officers recovered the .357 Taurus Tracker revolver from between the box spring and mattress in V.V.'s bedroom. They sent the gun for testing, but the criminalist misread the request and mistakenly performed a "destructive test" that resulted in the revolver no longer being able to fire in single-action mode.²

¶6 Before trial, Young filed a motion for a Willits instruction based on the "irreparable damage to the firearm." He admitted that he did not recall if the revolver was in single- or double-action mode at the time of the shooting. He nevertheless argued it was in single-action mode, which, "depending on the nature of the trigger, . . . the sear, and the force needed to be appliedto the trigger to discharge the firearm," made his defense that this was an accident "more plausible." Young maintained that he was prevented from testing the revolver in single-action mode because of the broken sear.

¶7 The state responded that Young essentially wanted "to prove that this was a hair trigger, or that there was some kind of alteration to it which made the gun easier to go off" in single-action mode. It reasoned that Young's argument was based on speculation because "[t]here [was] no evidence to show that any alterations to the gun made it a hair trigger, or made it a light trigger, or anything like that." In reply, Young explained that he was not asserting "it had to have been a hair trigger condition" and that the revolver could have been "unintentionally or inadvertently discharged . . . while . . . in single-action mode." The trial court denied Young's motion.

¶8 "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." State v. Glissendorf, 235 Ariz. 147, ¶ 8, 329 P.3d 1049, 1052 (2014), quoting State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). "To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful." Id. ¶ 9. Put another way, "a defendant is entitled to an instruction if he can demonstrate that the lost evidence would have been material and potentially useful to a defense theory supported by the evidence." Id. ¶ 10 (citation omitted).

¶9 On appeal, Young again maintains that, because single-action mode requires less pressure on the trigger pull, "[i]t is far more likely that an accidental discharge . . . would have occurred in single-action mode than double-action." He also asserts that additional "testing may have indicated that the gun had a defect or hair trigger in the single-action mode." Young reasons that "[t]his evidence would have substantially aided the defense showing that [he] did not intend to fire the gun" and that he was "highly prejudiced by the loss of the gun's functionality."

¶10 The state does not dispute that the revolver had a "damaged sear" caused by the criminalist's test. However, the state argues, "[T]here is no evidence that the gun had a hair trigger, and [Young's] argument to the contrary is based simply on speculation." On this point, we agree. The revolver's previous owner, who had given Young the gun just hours before the shooting, testified that it had no "modifications or changes." The criminalist confirmed that, based on his initial examination of the gun, it performed as it was originally "manufactured or designed to do." And Young did not offer any evidence to the contrary. Cf. State v. Williamson, 236 Ariz. 550, ¶ 38, 343 P.3d 1, 12 (App. 2015) (value of lost messages speculative where "there was no evidence suggesting any of the alleged discrepancies were evident in those messages"). Young's assertion that the gun had a hair trigger was based on speculation and was insufficient to warrant a Willits instruction. See Glissendorf, 235 Ariz. 147, ¶ 9, 329 P.3d at 1052.

¶11 Young also argues, however, that an accidental shooting was more likely in single-action mode because the revolver required less pressure to pull the trigger in that mode than in double-action mode. And because of the damaged sear, Young explained below that he was unable to test the revolver in single-action mode to show "the relative amount of pressure, measured in pounds, needed to be applied to the trigger for it to discharge." Young therefore demonstrated that the evidence was "potentially useful to a defense theory." Id. ¶ 10, quoting State v. Glissendorf, 233 Ariz. 222, ¶ 17, 311 P.3d 244, 251 (App. 2013).

¶12 But whether that theory was "'supported by the evidence'" and, thus, had a "tendency to exonerate," id., quoting Glissendorf, 233 Ariz. 222, ¶ 17, 311 P.3d at 251, is a closer question because in his pretrial motion for a Willits instruction, Young admitted that he "d[id] not know" if the gun was in single-action mode at the time of the shooting, id. ¶ 9 (defendant must do more than simply speculate).³ See also State v. Speer, 221 Ariz. 449, ¶ 41,212 P.3d 787, 795 (2009) (defendant must show how evidence would have exonerated or mitigated his participation in crime); Smith, 158 Ariz. at 227, 762 P.2d at 514 (speculation about how evidence might have benefitted defendant insufficient); State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (observing defendant presented no evidence on how missing evidence would have helped his defense). As the court noted in Glissendorf, to have a "tendency to exonerate" there must be a real likelihood that the evidence would have had evidentiary value. 235 Ariz. 147, ¶ 9, 329 P.3d at 1052. Young has not made this showing.

¶13 Even assuming there was some evidence the gun was in single-action mode when the shooting occurred and the trial court thus erred in denying Young's request for a Willits instruction, we will not reverse if the error was harmless. See Glissendorf, 235 Ariz. 147, ¶ 23, 329 P.3d at 1055; see also State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005) ("Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence."). As we have noted, Young's single-action theory was premised on showing that the revolver required less pressure to fire in that mode and was thus more likely to discharge accidentally. The state acknowledged that the revolver was capable of being fired in both single- and double-action mode when the shooting occurred. The criminalist who damaged the sear explained:

[W]ith a double action, it takes more energy from you pulling back everything, so there's going to be a trigger pull that's a heavier trigger pull, whereas [you are] doing some of the work ahead of time in single action by pulling back [the hammer] . . . , so that when you do pull the trigger, it takes less energy.

An armorer employed by the Casa Grande Police Department similarly testified, "It requires a lot more pressure to fire any double action revolver as opposed to . . . when it's in single action function." Thus, Young's defense theory was already established by other evidence presented to the jury, despite his inability to test the gun. And the court did not preclude Young from arguing that...