State v. Holiday

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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. ) ) SEAN LARRY HOLIDAY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 08/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0698 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. CR2008-0933 The Honorable Mark R. Moran, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Angela C. Kebric, Assistant Attorney General Attorneys for Appellee H. Allen Gerhardt, Coconino County Public Defender By H. Allen Gerhardt Attorneys for Appellant Phoenix Flagstaff B R O W N, Judge ¶1 sentences Sean Larry Holiday appeals from his convictions and for two counts of aggravated driving under the influence and one count of possession of marijuana. argues that the trial court improperly denied his Holiday motion to dismiss because the State s destruction of evidence violated his right to due process. For the following reasons, we affirm. BACKGROUND ¶2 In traveling May 2006, westbound Officer on Route Barnett 66 with observed its high a vehicle beam lights activated. As the vehicle approached, it failed to dim its high beams, violation in of Arizona section 28 942(1) (2004). observing signs that the Revised Statutes ( A.R.S. ) Barnett effected a stop, and after driver, influence of alcohol, arrested him. Holiday, was under the Barnett transported Holiday to the jail and read to him the contents of an implied consent affidavit for the purpose of obtaining a blood sample, which Holiday refused. Barnett then obtained a warrant permitting a blood draw. ¶3 With Barnett observing, blood sample from Holiday. a phlebotomist collected a Two days after his arrest, Holiday submitted a request to the office of the county attorney for preservation of any and all discovery in this matter, including dispatch tapes and logs, 9-1-1 tapes and logs, cell phone records of the officers, and any records of communication between the officers involved through the use of patrol vehicle computers and officer notes. Approximately two years later, in 2 2008, the State indicted Holiday on two counts of aggravated driving under the influence of alcohol pursuant to A.R.S. §§ 281381(A)(1)-(2) and possession marijuana of -1383(A)(1) (Supp. pursuant to 2010), A.R.S. one § count of 13-3405(A)(1) (Supp. 2010), and one count of possession of drug paraphernalia pursuant to A.R.S. § 13-3415(A) (2010). 1 Holiday subsequently learned that his 2006 request had not been acted upon and the evidence had been destroyed pursuant to police department policy. ¶4 Prior to trial, Holiday moved to dismiss the indictment, 2 asserting that the State destroyed material evidence and violated Arizona Rule of Criminal Procedure 15 disclosure rules, denying him due process. 3 Holiday alleged that the State destroyed the dispatch records of the stop despite his request for preservation, which he asserted provided the only objective evidence case. audio of the stop, detention, arrest and search in this He alleged further that the State destroyed video and recordings of the blood draw, which were 1 Absent material revision after the date offense, we cite the statute s current version. 2 Alternatively, Holiday moved to suppress obtained during the stop, search, and detention. 3 material of an all to alleged evidence See Ariz. R. Crim. P. 15.1(b) (requiring disclosure of all statements of the defendant within the prosecutor's possession or control). 3 determine whether the proper instruments and procedure were used for the blood sample as well as to determine the time periods involved. In response, the State argued that the evidence was not material and that Holiday suffered no prejudice. ¶5 At an evidentiary hearing on the motion, the State offered the testimony of Barnett as well as an officer familiar with the video and Lieutenant Figueroa. that Holiday audio recordings at the department, The trial court denied the motion, ruling was not prejudiced or the audio/video by the tape destruction from the of jail the dispatch tape ( the tapes ). The court noted that [there was] nothing in the facts or evidence that would show that those tapes would either be favorable to the defense or material to a relevant issue pending before the Court. 4 ¶6 on Following a three-day trial, a jury convicted Holiday two counts possession of of aggravated marijuana. driving under Holiday was the influence sentenced to and two concurrent terms of eight years imprisonment on the aggravated driving counts and to two years imprisonment for marijuana possession, with 137 days of presentence incarceration credit. Holiday timely appealed. 4 The court later denied Holiday s request instruction, finding it was inappropriate because not material evidence that might tend to defendant and no prejudice existed. See State Ariz. 184, 393 P.2d 274 (1964). 4 for a Willits the tapes were exonerate the v. Willits, 96 DISCUSSION ¶7 Holiday argues that the trial court erred in denying his motion to dismiss and failing to impose sanctions for the willful destruction asserts that material the evidence resulting in a of evidence. State More exhibited bad that he denial of his due Holiday faith by destroying requested expressly federal and state constitutions. specifically, be preserved, process rights under the See U.S. Const. amend. V & XIV; Ariz. Const. art. 2, § 4. ¶8 Generally, an order denying a motion to dismiss or motion to suppress will not be disturbed absent an abuse of discretion. State v. Chavez, 208 Ariz. 606, 607, ¶ 2, 96 P.3d 1093, 1094 (App. 2004). We view the facts and evidence in the light most favorable to sustaining the trial court s ruling, but we review questions of law de novo. ¶9 Id. (citation omitted). A defendant is not deprived of due process by the destruction of evidence unless the state has acted in bad faith or the defendant Youngblood, 173 is Ariz. (citation omitted). prejudiced 502, 507, by 844 the P.2d loss. 1152, State 1157 v. (1993) Moreover, where the nature of the evidence (exculpatory, inculpatory, or neutral) is unknown, there can be no showing of prejudice in fact and thus, only a showing of bad faith implicates due process. Id.; see also State v. O Dell, 202 Ariz. 453, 457, ¶ 12, 46 P.3d 1074, 1078 (App. 2002) 5 (where the evidence in controversy no longer exists, due process is violated only determination of upon bad a showing faith of must bad faith). necessarily turn The on the police s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Arizona v. Youngblood, 488 U.S. 51, 56 (1988); see also State v. Dunlap, 187 Ariz. 441, 452, 930 P.2d 518, 529 (App. 1996). ¶10 Here, the contents of the destroyed tapes are unknown and therefore a showing of bad faith is required for reversal. However, the officers had no knowledge of the exculpatory value of the tapes at the time they were destroyed. testified stop, and that it there was was not nothing his unusual common about practice recordings of the stop on dispatch. Officer Barnett to this traffic preserve any Lieutenant Figueroa also testified that it was not typical procedure for an arresting officer to request preservation of audio and video. The record indicates that the officers were acting in good faith and in accordance destroyed. the with their normal practice when the tapes were Because the record fails to support a finding that officers were aware of the exculpatory evidence, bad faith cannot be present. Ariz. at 459, 46 P.3d at 1080. nature of the See State v. O Dell, 202 Absent a showing of bad faith, it is fundamentally unfair to bar the state from our courts. Youngblood, 173 Ariz. at 507, 844 P.2d at 1157. 6 ¶11 Holiday argues nonetheless that pursuant to State v. Lopez, 156 Ariz. 573, 574-75, 754 P.2d 300, 301-02 (App. 1987), bad faith is presumed because the State failed evidence that was expressly requested by him. to preserve In Lopez, the defendant, by certified letter, requested preservation of the police radio transmission tapes from the day of his arrest. at 574, 754 P.2d at 301. The defendant received receipts, indicating DPS received his request. when the defense went to request the destroyed pursuant to departmental policy. the defendant s court. in Id. motion to dismiss was returned Id. tapes, they Id. Id. However, had been As a result, granted by the trial On appeal, the State asserted that the court erred dismissing without a showing that the evidence was exculpatory, that defendant was prejudiced by the destruction, or that the State acted in bad faith. ¶12 This court affirmed the dismissal, finding there was a reasonable material. was Id. possibility that the evidence was Id. at 574-75, 754 P.2d at 301-02. undisputed that DPS received favorable and We noted that it defendant s request for preservation of evidence and stated, [w]hen the state receives a specific request for such evidence, failure to disclose is seldom, if ever, (citation omitted). excusable. Id. at 574, 754 P.2d at 301 We reasoned that the critical issue in that case was whether the officers had reasonable suspicion to stop 7 the defendant s vehicle, and the requested tapes were the only evidence that would have revealed the reasons given over the air by the officers for stopping the vehicles, the time periods involved, and the identities of the vehicles and drivers. at 574 75, 754 P.2d at 301 02. Id. We therefore concluded that because the evidence was favorable and material to the defense, dismissal was proper. ¶13 Unlike Lopez, there is no evidence here that Holiday sent a request for preservation of evidence to the department, or that such a request was ever received. Officer Barnett request. testified that he never police In fact, received any such Although the State conceded that Holiday s request was probably received by the county attorney s office in 2006, there is no evidence that the county attorney was ever in possession of the tapes: Holiday was not indicted until 2008, approximately two years after his arrest, and two years after the tapes policy. had been destroyed in accordance with department Knowledge of the exculpatory value of the evidence at the time it was lost or destroyed is determinative of bad faith, which was not present here. ¶14 See Youngblood, 488 U.S. at 56. In sum, we find nothing in the record here that shows the State acted in bad faith in not preserving the tapes. therefore conclude Holiday s right 8 to due process was We not violated and thus the trial court did not err in denying his motion to dismiss. CONCLUSION ¶15 For the foregoing reasons, we affirm Holiday s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ MAURICE PORTLEY, Presiding Judge /s/ ___________________________________ MARGARET H. DOWNIE, Judge 9

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