State of Arizona v. Pablo Isaac Hernandez

                                 IN THE
    SUPREME COURT OF THE STATE OF ARIZONA

                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                       PABLO ISAAC HERNANDEZ,
                               Appellant.

                           No. CR-19-0193-PR
                          Filed October 27, 2020

            Appeal from the Superior Court in Pima County
               The Honorable Michael J. Butler, Judge
                        No. CR20161916-001
                             AFFIRMED

             Opinion of the Court of Appeals, Division Two
                       

246 Ariz. 543

(App. 2019)
                              VACATED

COUNSEL:

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
                           STATE V. HERNANDEZ
                             Opinion of the Court


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
Willits 1 instruction. State v. Glissendorf, 

235 Ariz. 147

, 152 ¶ 18 (2014); State
v. Perez, 

141 Ariz. 459

, 464 (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

; 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 and affirm the defendant’s conviction and sentence. See
State v. Hernandez, 

246 Ariz. 543

, 549 ¶¶ 21–22 (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



1          State v. Willits, 

96 Ariz. 184

(1964).

                                        2
                         STATE V. HERNANDEZ
                           Opinion of the Court


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).




2          Hernandez moved to suppress Turner’s identification as unduly
suggestive, but the trial court denied Hernandez’s motion. The court of
appeals affirmed that ruling, and Hernandez does not challenge it in this
Court. 

Hernandez, 246 Ariz. at 546

–47 ¶ 12.

3          The legislature extensively revised § 28-622.01 in 2018. Because
these changes were substantive, we cite the 2016 version that was in effect
at the time of the events here.
                                     3
                           STATE V. HERNANDEZ
                             Opinion of the Court


¶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. 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.

¶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. 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 (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; 

Perez, 141 Ariz. at 464

. 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. 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. 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.
                                       4
                          STATE V. HERNANDEZ
                            Opinion of the Court


Rivera, 

152 Ariz. 507

, 511–12 (1987); see also State v. Murray, 

184 Ariz. 9

, 33
(1995) (“A Willits 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

. 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

; 

Perez, 141 Ariz. at 463

–64; State v.
Fuentes, 

247 Ariz. 516

, 525 ¶ 32 (App. 2019).

¶13           For example, in Perez, the defendant was charged with armed
robbery of a convenience 

store. 141 Ariz. at 461

. The store’s surveillance
camera recorded the crime, and the victim viewed the videotaped footage
of the robbery multiple times.

Id. at 463.

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 (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. In that case, the

                                      5
                          STATE V. HERNANDEZ
                            Opinion of the Court


defendant was charged with first degree murder and aggravated assault.

Id. at 519 ¶ 1.

The defendant shot and killed victim D.P. during a
confrontation between the two men.

Id. at 520 ¶¶ 4–6.

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.

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.

¶15            The court of appeals rejected the defendant’s argument that
he was entitled to a Willits instruction based on the State’s failure to
photograph the shoeprint.

Id. at 525–526 ¶¶ 30–35.

It determined the
shoeprint evidence was not “obviously material” because, at the time of
their investigation, “police correctly understood that D.P. had been present
on [the] property sometime before the shooting, such that any shoeprints
he may have left would not necessarily be tied to the incident”; no witnesses
at the scene indicated the defendant acted in self-defense; and the
defendant had not made a claim of self-defense.

Id. ¶ 32.

The court of
appeals concluded that “[g]iven the facts known to law enforcement
officers at the time of their investigation of the crime scene,” the court did
not err by “implicit[ly] finding that it was reasonable for the police to decide
not to photograph the shoeprint.”

Id. at ¶ 33;

see also State v. Tyler, 

149 Ariz. 312

, 317 (App. 1986) (rejecting need for a Willits instruction where “[a]t the
time the weapon was seized, the officer had no reason to know what the
defendant’s defense would be concerning [the fingerprints defendant
claimed were on the weapon]”).

¶16            Considering these cases, we conclude that evidence is
“obviously material” when, at the time the state encounters the evidence
during its investigation, the state relies on the evidence or knows the
defendant will use the evidence for his or her defense. Analyzing the
materiality of the evidence at the time of the state’s investigation balances
the realities of law enforcement’s goal of conducting a timely investigation
while also ensuring that law enforcement is “neither intentionally selective
or elusive, nor careless, negligent, or lazy, in seizing and assuring the
preservation of material evidence.” 

Perez, 141 Ariz. at 464

.


                                       6
                          STATE V. HERNANDEZ
                            Opinion of the Court


                                      II.

¶17           Turning to the facts of this case, in denying Hernandez’s
request for a Willits instruction, the trial court concluded that the State did
not have a duty to preserve fingerprint and DNA evidence from the car
when, at the conclusion of its investigation, Hernandez had not been
apprehended and the State had developed sufficient evidence establishing
the identity of the driver. The court of appeals disagreed with the trial
court’s reasoning, stating that the instruction was necessary because the
“physical evidence from the interior of the car, particularly the driver’s side,
was material” given that the “sole issue” at trial was the identification of
the driver. 

Hernandez, 246 Ariz. at 548

¶ 18.

¶18             The practical effect of the court of appeals’ decision would
require the state to gather evidence based upon any number of possible
defenses an accused might later proffer at trial. This determination is
inconsistent with the state’s duty to preserve “evidence it is aware of” and
when “that evidence is obviously material and reasonably within its grasp.”

Perez, 141 Ariz. at 463

. It also would not further the purpose of Willits,
which is to impose a necessary “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.” 

Glissendorf, 235 Ariz. at 151

¶ 13.

¶19            At the outset of the State’s investigation, Turner had already
identified Hernandez, so the officers had no need to collect fingerprint or
DNA evidence to identify the suspect. Additionally, at that time, law
enforcement had no knowledge that Hernandez would later assert the
existence of an alternate driver that would make DNA or fingerprint
evidence material. Hernandez has failed to demonstrate why police would
have had reason to collect this evidence. Given the facts known to the State
at the time of the investigation, Hernandez has failed to show that any DNA
or fingerprint evidence was “obviously material.” The trial court did not
abuse its discretion in concluding it was reasonable for the State to not
collect fingerprint and DNA evidence from the interior of the car.

¶20           Additionally, we agree with the trial court that Hernandez
failed to show that the uncollected evidence tended to exonerate him. To
meet this burden, Hernandez was required to “do more than simply
speculate about how the evidence might have been helpful”; rather, “there

                                       7
                          STATE V. HERNANDEZ
                            Opinion of the Court


must be a real likelihood that the evidence would have had evidentiary
value.” 

Glissendorf, 235 Ariz. at 150

¶¶ 9–10.

¶21           In this case, there was no “real likelihood” the evidence
would have had evidentiary value because any fingerprint or DNA
evidence would only either: (1) match Hernandez, definitively confirming
he was the driver; or (2) not match Hernandez, which would not
conclusively exculpate him because he may not have left identifiable DNA
or fingerprints, even if he were the driver. Cf. State v. Tucker, 

157 Ariz. 433

,
441–42 (1988) (recounting expert testimony “that a person may or may not
leave a fingerprint after touching an object” and “it would be easy, either
intentionally or unintentionally, to wipe off fingerprints . . . with a cloth”).

¶22            Hernandez failed to prove either of the two parts of the first
prong of the Willits test—namely, that the evidence was “obviously
material” and “had a tendency to exonerate him.” See 

Glissendorf, 235 Ariz. at 152

¶ 18. Because Hernandez failed to establish the first prong of the
Willits test, we need not consider whether the absence of fingerprint and
DNA evidence or the instruction were prejudicial to him. Nevertheless, we
note that in support of his argument that the State failed to meet its burden
of proof, Hernandez cross-examined the State’s witness about the failure to
collect evidence from the car and argued the essence of the Willits
instruction to the jury during closing argument. Cf. 

Perez, 141 Ariz. at 464

n.6 (“[T]he trial court’s decision to forego a Willits instruction did not
preclude defense counsel from arguing the substance of that instruction to
the jury.”). The State’s failure to look for DNA and fingerprint evidence
may have put Hernandez in a better position to impeach Turner’s
eyewitness identification, thereby raising the specter of reasonable doubt.

¶23           In sum, a defendant is entitled to a Willits instruction when
the state fails to preserve evidence that is “obviously material and
reasonably accessible” that “could have had a tendency to exonerate the
accused” and the defendant is prejudiced thereby. 

Perez, 141 Ariz. at 464

;

Glissendorf, 235 Ariz. at 152

¶ 18. The obvious materiality of the evidence
must be apparent at the time the state encounters the evidence during its
investigation. The state’s failure to gather every conceivable piece of
physical evidence does not require a Willits instruction.



                                       8
                          STATE V. HERNANDEZ
                            Opinion of the Court


¶24             However, if the state fails to collect “evidence that, though not
obviously material, turns out to be material, it is up to the trial judge to
determine if the state’s failure to recognize its materiality was reasonable or
not and to give a Willits instruction only where it finds the failure to have
been unreasonable.” 

Perez, 141 Ariz. at 464

n.5. This allows a defendant the
opportunity to challenge the reasonableness of the state’s failure to preserve
evidence during its investigation. If the trial court determines that the
state’s failure to collect evidence during its investigation was unreasonable,
a Willits instruction is appropriate.

                               CONCLUSION

¶25          Because the trial court did not abuse its discretion in denying
Hernandez’s request for a Willits instruction, we vacate the court of appeals’
opinion, and affirm Hernandez’s conviction and sentence.




                                       9
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