State v. Howard

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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. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JEFFREY ALLAN HOWARD, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0946 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-164344-001 DT The Honorable Steven P. Lynch, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor Terpstra, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 aggravated Jeffrey affirm. assault Allan and Howard appeals shoplifting. his convictions Finding no error, for we FACTS AND PROCEDURAL HISTORY 1 ¶2 M.D. was working as a loss prevention officer at a grocery store. He observed Howard enter the store, walk to the liquor aisle, and conceal a liquor bottle down the front of his pants. ¶3 M.D. followed Howard when he left the store. M.D. attempted to confront Howard, who pulled out a knife and threatened to kill him. walked away. M.D. backed away, and Howard M.D. followed, asking Howard to return the liquor. Howard became agitated and chased M.D. with the knife. M.D. ran, hid behind a car, and called 9-1-1. ¶4 Officers Ho and Gionet responded to the scene. provided Howard s description, and the area where M.D. had last seen Howard. returned video. to the store and watched to searched the Unable to find him, they the store s surveillance After obtaining a good description from the video, the officers resumed their search. M.D. officers M.D. come identify a A short while later, they asked person who appeared to match the individual M.D. described and the person the video depicted. M.D. positively identified Howard as the perpetrator. He also identified a knife officers had confiscated from Howard as the knife used in the assault. 1 We view the facts in the light most favorable to sustaining the jury s verdicts. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). 2 ¶5 Howard was indicted for aggravated assault, a class 3 dangerous felony misdemeanor ( count ( count 2 ). 1 ), and Howard shoplifting, filed a a motion class in 1 limine, seeking to exclude testimony about what the surveillance video depicted. He argued he would not be able to effectively cross examine the witnesses because the State did not preserve the video, and he did not have an opportunity to view it. 2 The court denied the motion, but stated Howard could request a Willits instruction at trial. 3 ¶6 A jury trial ensued. Gionet testified requested a and Willits M.D., Officer Ho, and Officer mentioned the instruction. video at Although times. the Howard trial court believed the State had the ability to preserve the video, it denied Howard s exculpatory and request, that the concluding defense was the not video was prejudiced by not its absence. ¶7 A unanimous jury found Howard guilty on both counts. Howard was sentenced to 12 years imprisonment, with 403 days of 2 On the night of the incident, the officers attempted to get a copy of the surveillance video, but were advised only the manager could download a copy, and the manager was not available. The detective assigned to the case made several attempts to obtain the video, but the store never provided it. 3 When police negligently fail to preserve potentially exculpatory evidence, an instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), permits the jury to infer that the evidence would have been exculpatory. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). 3 pre-sentence incarceration credit as to count 1, and 180 days imprisonment, Howard with timely Arizona credit appealed. Revised Statutes for We time have ( A.R.S. ) served, as jurisdiction to count 2. pursuant to sections 12-120.21(A)(1), Howard makes one argument on appeal: that the trial 13-4031, and -4033(A). DISCUSSION ¶8 court erred by refusing to give a Willits instruction. We review the refusal to give a Willits instruction for an abuse of discretion. Fulminante, 193 Ariz. at 503, ¶ 62, 975 P.2d at 93 (citation omitted). ¶9 A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant. State v. Lopez, 163 Ariz. 108, 113, 786 P.2d 959, 964 (citations (1990) omitted). To warrant a Willits instruction, a defendant must establish: (1) the State failed to preserve material, accessible evidence that exonerate him; and (2) resulting prejudice. might tend to Fulminante, 193 Ariz. at 503, ¶ 62, 975 P.2d at 93; see also State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). entitled to a Willits instruction A defendant is not merely because exhaustive investigation could have been made. Ariz. at 33, 906 P.2d at 566 (citation omitted). a more Murray, 184 Nor does a court err in refusing a Willits instruction if the defendant 4 fails to establish that the evidence would have had a tendency to exonerate him. ¶10 Id. (citation omitted). Howard s reliance on State v. Perez, 141 Ariz. 459, 687 P.2d 1214 (1984), is unpersuasive. the alleged detectives. robbery was viewed In Perez, a videotape of by the victim and several 141 Ariz. at 463-64, 687 P.2d at 1218-19. The video was not introduced into evidence because the store owner had reused the tape officers secured it. and erased the relevant portions Id. at 461, 687 P.2d at 1216. before The Arizona Supreme Court noted that the State could have secured the video by request or, if necessary, through a search warrant. 463, 687 P.2d at 1218. It went on to hold, Id. at though, that notwithstanding the failure to preserve the video, the defendant was not entitled to a Willits instruction because the video was not exculpatory and the defendant was not prejudiced. Id. at 464, 687 P.2d at 1219. ¶11 Even assuming that the State could have secured the surveillance video in this case, we agree with the trial court that Howard did not establish it was exculpatory in nature or that he was prejudiced by its absence. Defense counsel argued below that if the video were to be present, it could possibly exonerate our client. standard. 1152, 1156 Possible exoneration, though, is not the See State v. Youngblood, 173 Ariz. 502, 506, 844 P.2d (1993) ( Speculation 5 [regarding whether destroyed evidence may have been exculpatory] is not the stuff out of which constitutional error is made. ); State v. Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996) (no error in declining Willits destroyed files instruction would when tend to claim that exonerate contents defendant of was speculative). ¶12 M.D. testified that he saw Howard enter the store, go directly to the liquor department, put a bottle of Jagermeister [d]own the front of his pants, and cover it up with his shirt. M.D. made one comment about the video as to the shoplifting charge, testifying that it showed Howard concealing the bottle of liquor down the front of his pants. Officer Ho testified that the video showed Howard hiding and shielding something in his waistband as he exited the store. recall viewing portions of the But Officer Ho could not video showing Howard in the charge, the liquor aisle or in the act of shoplifting. ¶13 In terms of the aggravated assault State s witnesses all agreed that the surveillance video showed no altercation between M.D. and Howard. M.D. explained that the assault occurred in the parking lot and that the store s cameras only recorded inside the store. Howard does not suggest that the surveillance video would have depicted an assault; indeed, he has steadfastly denied engaging in an altercation with M.D. 6 Under these circumstances, the video was obviously not exculpatory as to the aggravated assault charge. 4 ¶14 Because Howard s claim that the video would have tended to exonerate him of shoplifting is speculative, and it was clearly not exculpatory as to the aggravated assault offense, the court did not abuse its discretion by denying a Willits instruction. CONCLUSION ¶15 For the foregoing reasons, we affirm Howard s convictions and sentences. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 4 We are also unpersuaded by Howard s suggestion that a Willits instruction was required because the video would have weakened M.D. s credibility as to where the alleged assault occurred. M.D. was adamant in his testimony that the assault occurred outside the store. Viewing the evidence in the light most favorable to the defense (which is not the proper standard), Officer Ho was vague when questioned about where M.D. told him the assault occurred -- i.e., inside the store s front door or outside. 7

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