State v. Arias

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, DIVISION ONE FILED: 12/13/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0709 Appellee, DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) v. GENARO LOPEZ ARIAS, Appellant. Appeal from the Superior Court in Maricopa County Cause No. CR2009-150166-002 DT The Honorable Glenn M. Davis, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Suzanne M. Nichols, Assistant Attorney General Attorneys for Appellee Law Office of Corso & Rhude by Christopher P. Corso John M. Rhude Attorneys for Appellant I R V I N E, Judge Phoenix Peoria ¶1 and Genaro Lopez Arias ( Arias ) appeals his convictions sentences for burglary in the first degree, misconduct involving weapons, impersonating a police officer, seven counts of aggravated counts of assault, armed seven robbery. counts Arias of argues kidnapping, that the and trial four court abused its discretion in denying defense counsel s request for a Willits jury instruction. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On appeal, we view the facts in the light most favorable to sustaining the verdict. State v. Haight-Gyuro, 218 Ariz. 356, 357, ¶ 2, 186 P.3d 33, 34 (App. 2008). On July 27, 2009, Arias and at least two men broke into a home with the intent to steal various items inside. Upon entry into the home, Arias and the two men immediately yelled, Get on the floor. FBI. Put your hands up. Arias and the men were carrying assault rifles and were wearing bullet-proof vests, ski masks, and gloves. The men forced the four occupants of the home to the ground at gunpoint and duct taped their ankles together and their hands behind their backs. ¶3 While the four victims lay on the floor bound up, P.R. arrived at the home along with two friends. When P.R. and his friends entered the home, Arias and his accomplices forced them to the ground at gunpoint, taped them up, and placed a blanket 2 over their heads. Arias and his accomplices proceeded to steal various items from the house. ¶4 While Arias and his accomplices were ransacking the home, one of the victims was able to send a text message to his mother asking her to call the police, which she did. As Officer Vizcarra approached the victims home, she saw a Hispanic male and several other people get into a gray truck parked near the victims home. Officer Vizcarra reported the license plate number of the truck and attempted to perform a traffic stop. However, when the truck began to increase its speed, Officer Vizcarra backed off and allowed Officer Bauer to pursue the truck from a safe distance. ¶5 A few minutes later, Officer Bauer reported over the radio that the truck had crashed approximately two miles from the victims home. Officer Bauer testified that a passing motorist told him that three men, believed to be Hispanic, had gotten out of the truck and run away. A subsequent search of the immediate area led to the apprehension of Arias, who was found hiding in a nearby yard. Arias s accomplices were also found hiding nearby. ¶6 masks, Inside a the camouflage truck, mask, officers a found bullet-proof three vest, black ski crowbars, a handgun, assault rifles, a shotgun, ammunition, a laptop, video game consoles, duct tape, and various personal items belonging 3 to the victims, including two wallets with driver s licenses for two of the victims. Officers later discovered that Arias was the registered owner of the truck. ¶7 The jury convicted Arias on all twenty-one counts. The court sentenced Arias to life in prison pursuant to A.R.S. § 13706(B) (2009) convictions for because violent Arias or had two aggravated prior, felonies. unrelated, Arias timely appeals. DISCUSSION ¶8 Arias argues that the trial court abused its discretion in denying defense counsel s request for a Willits jury instruction. instructions A related fair to trial any includes theory of the the right case to jury reasonably supported by the evidence presented. State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). A defendant s due process right to a fair trial is violated when the State either fails to preserve or destroys evidence favorable to the defendant and prejudice subsequently ensues. Brady v. Maryland, 373 U.S. 83, 87 (1963). A defendant is entitled to a Willits instruction only upon proof that (1) the state failed to preserve material evidence that was accessible and might have tended to exonerate [the defendant], and (2) there was resulting prejudice. State v. Bolton, 182 Ariz. 290, 308-09, 896 P.2d 830, 848-49 (1995). 4 ¶9 A trial court s refusal to give a requested Willits jury instruction is reviewed for an abuse of discretion. State v. Speer, 221 Ariz. 449, 457, ¶ 39, 212 P.3d 787, 795 (2009). An error conclusion of law may, committed however, in reaching constitute an a abuse of discretionary discretion. State v. Robles, 213 Ariz. 268, 270, ¶ 4, 141 P.3d 748, 750 (App. 2006) (citation omitted). Whether a trial court properly instructs the jury on the law receives de novo review. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). ¶10 Arias argues that the State failed to preserve material and reasonably accessible evidence having a tendency to exonerate him. Specifically, Arias alleges that police created a photo lineup of potential perpetrators, showed those photos to one of photos. the victims, Arias R.R., and that the argues then failed State s to alleged preserve failure the to preserve the photos substantially prejudiced his rights because he was unable to effectively prepare his defense. ¶11 The State argues that no such photo lineup was ever created or shown to any of the victims at any point. Detective Hickman testified perpetrators is that whenever printed, a a photo record lineup of that of potential lineup is automatically saved onto a police database. Detective Hickman stated that he conducted an extensive search and was unable to 5 find any record of a photo lineup ever being printed or shown to any of the victims at any point. ¶12 Detective Hickman further testified that although R.R. informed police that she saw one of the perpetrators lift up his ski mask, he did not show R.R. a photo lineup because R.R. indicated that she believed she saw a light skinned male, and the three men whom police arrested were not light skinned. Thus, a photo Hickman lineup also would stated have that served he did little not purpose. create a Detective photo lineup because the perpetrators were all wearing ski masks. ¶13 Additionally, supports the State s testimony position that from a the photo other lineup victims was never created or shown to R.R. Two of the victims, P.R. and P.R., both testified that they were only shown photos of stolen property and that they were never shown photos of potential perpetrators. P.R. further testified that he can confirm R.R. was never shown photos of potential perpetrators because he was with R.R. when she claims police showed her pictures of potential perpetrators. ¶14 declining The to trial give court a did not Willits abuse instruction its discretion because there in is significant doubt as to whether R.R. was ever shown any photos of potential perpetrators. See State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) (holding that the decision to refuse a jury instruction is within the trial court s discretion 6 and that this Court will not reverse that decision absent a clear abuse of that discretion). ¶15 Even assuming a photo lineup was shown to R.R., we find that Arias was not prejudiced by the State s failure to preserve the photos because there was considerable evidence of Arias s guilt. See State v. Reffitt, 145 Ariz. 452, 462, 702 P.2d 681, 691 (1985) (finding no significant prejudice in lack of Willits instruction because there was overwhelming evidence of the defendant s guilt). Additionally, the jury heard R.R. s testimony that she believed one of the assailants was light skinned. The jury weighed the credibility of R.R. s testimony in light of the additional evidence Arias was not significantly prejudiced by the trial court s refusal to issue a Willits jury instruction. CONCLUSION ¶16 For the foregoing reasons, we affirm convictions and sentences. /s/ PATRICK IRVINE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ DANIEL A. BARKER, Judge 7 Arias s

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