State v. Freeny, 1 CA-CR 20-0167

Background

Freeny threatened A.W. on a Phoenix light rail platform by raising a metal tent spike and threatening to gouge his eyes; A.W. identified Freeny and officers charged him with aggravated assault (dangerous instrument).
A security guard (not A.W.) placed the 911 call; the dispatch was initially labeled armed robbery but later changed to aggravated assault; the 911 recording was destroyed under the 190-day retention policy.
Some light-rail surveillance footage was disclosed in unusable formats or for the wrong date; third-party vendor footage for the correct date had been recorded over before it could be obtained.
Freeny, representing himself, sought discovery sanctions, a 30-day continuance (granted only seven days), an adverse‑inference (Willits) instruction for destroyed evidence, and a particular lesser‑included instruction for disorderly conduct; the court denied the sanctions and Willits instruction, granted a one‑week continuance, and gave the requested lesser‑included instruction.
A jury convicted Freeny of aggravated assault; the court found three aggravators at sentencing (use of a dangerous instrument, victim harm, two prior felonies) and imposed a presumptive prison term of 11.25 years; Freeny appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Freeny)	Held
Discovery sanctions for video/format/911 (Rule 15)	State made multiple disclosures in usable formats; technical problems were resolved; third‑party deletions not State's fault	State failed to produce usable evidence (video, 911 recording) and should be sanctioned or given relief	No abuse of discretion; State accommodated requests, videos accessible before trial, no Rule 15 violation shown
Continuance (1 week vs 30 days)	One‑week continuance sufficient; new investigator reviewed materials; no extraordinary circumstances	Needed 30 days to transfer discovery, review materials, interview witnesses, and prepare defense	No abuse of discretion; Freeny failed to show extraordinary circumstances or prejudice
Lesser‑included instruction (disorderly conduct; definition of "recklessly")	Instruction proper; jurors told to consider lesser only if acquitted of aggravated assault or unable to reach verdict	Instruction improperly formatted and misdefined recklessness	No fundamental error; any error harmless because jury convicted aggravated assault and court presumes jury followed limiting instruction
Adverse‑inference (Willits) for destroyed 911 and surveillance	Police did not negligently fail to preserve; third‑party overwrote tapes; 911 placed by guard; destroyed recording speculative	Destroyed recordings could have impeached A.W. and tended to exonerate; entitled to Willits instruction	Denied; Freeny only speculated about exculpatory value and failed to show material, accessible evidence was lost
Sentencing aggravator: use of dangerous instrument	Court may consider dangerous instrument along with other proper aggravators	Use of dangerous instrument is an essential element of the offense and thus an improper aggravator	Using dangerous instrument as an aggravator was improper, but no fundamental error: other valid aggravators existed and Freeny failed to show prejudice

Key Cases Cited

State v. Martinez-Villareal, 145 Ariz. 441 (1985) (abuse-of-discretion standard for discovery sanctions)
State v. Forde, 233 Ariz. 543 (2014) (standard for reviewing denial of continuance and prejudice requirement)
State v. Escalante, 245 Ariz. 135 (2018) (fundamental error review for unpreserved instructional errors)
State v. Willits, 96 Ariz. 184 (1964) (permitting jury inference when state negligently fails to preserve potentially exculpatory evidence)
State v. Murray, 184 Ariz. 9 (1995) (requirements for obtaining a Willits instruction)
State v. Perez, 141 Ariz. 459 (1984) (Willits instruction when police fail to seek obviously material videotape)
State v. Glissendorf, 235 Ariz. 147 (2014) (defendant must do more than speculate the lost evidence would be exculpatory)
State v. Newell, 212 Ariz. 389 (2006) (presumption that jurors follow limiting instructions)