State v. Youngblood

consent, against Baumann, her husband without his State v. occurring during as to events the mar- Hocker, 610 P.2d ____ riage 450, 454-55, 556 P.2d 788-89 (1976). interpreted appeals The court of the stat- Over and above its construction of person testimony ute to forbid from a statute, appeals found no “against” person’s spouse which prejudice argue in fact. does not to Cohen during the sense that it concerns events contrary petition in his for review. marriage impliedly suggest “which at least disagree while we with the court of criminal conduct.” 169 Ariz. at statute, appeals’ construction P.2d at 214. it found that Ms. Because affirm its reversal of the remand order as testimony Cohen’s was “neither relevant privilege it relates to the anti-marital fact prejudicial nor criminal liabili- [Cohen’s] issue. interrogation ty” it held that her did not privilege. violate his marital Id. DISPOSITION disagree. The We statute con testimonial limitation. tains no substantive vacated and the case is remanded to the against” do not mean The words “for proceedings trial court for further consis- They mean “favorable unfavorable.” opinion. tent simply spouse “on behalf of” a or “on party opposing” spouse. This behalf MOELLER, V.C.J., CORCORAN and interpreted privilege court has forbid JJ., ZLAKET, FERNANDEZ, and LLOYD

any testimony, just damaging testimo Judge, Appeals, Court concur. ny, during as to events which occurred marriage non-testifying spouse unless C.J., FELDMAN, participate did not Williams, 133 Ariz. consents. See State v. matter; pursuant the determination of this Const, to Ariz. art. LLOYD § (decided previous under version of the stat FERNANDEZ, J., of the Arizona Court of privilege which did not limit the ute Two, Appeals, designated Division was concerning oc testimony events which sit his stead. during marriage); curred Whitaker, Ms. The fact that Cohen was testify the state to about events called marriage proceed occurring during the ing against her husband satisfies the stat right keep her from ute. Cohen had a Arizona, Appellee/Cross- STATE of testimony giving any events which Appellant, during marriages, just their occurred damaged his in

testimony actually which YOUNGBLOOD, Larry Appellant/Cross- terests. Because Ms. Cohen was occasion occurring ally questioned regarding events Appellee, after the the 1976 divorce or Arizona, Appellant, STATE of questions marriage, or at least asked limited the 1976- specifically were period the Cohens were not when HERRERA-RODRIGUEZ, Appellee. Joe married, privilege fact Cohen’s anti-marital in fact violated. CR-90-0053-PR, Nos. CR-89-0353-PR. the end of the But this is not Arizona, ap of an indictment is inquiry. Remand En Banc. person under in propriate where proce vestigation is denied a “substantial Jan. 12.9, Ev right.” dural Rule Ariz.R.Crim.P. privilege in violation of a

idence elicited procedural the accused a substantial denies is shown. right only prejudice actual when Woods, Atty.

Grant by Joseph Gen. T. Maziarz, Gen., Phoenix, Asst. Atty. for Gen., Atty. amicus curiae Arizona in State Youngblood. Romley, Maricopa County Richard M. Atty. Gerhardt, by H. Allen Deputy County Gustafson, Atty. and Deputy John R. Pima Phoenix, County Atty., for state of Ariz. in Herrera-Rodriguez. State v. Trebesch, Dean Maricopa County W. by Klapper, Deputy Public Defender Paul Defender, Phoenix, Public for Herrera- Rodriguez. Woods, Atty.

Grant Joseph Gen. T. Maziarz, Gen., Atty. Asst. and Jessica Gif- Funkhouser, Counsel, ford Former Chief Div., Phoenix, Crim. for amicus curiae Ari- Atty. zona inGen. State v. Herrera-Rodri- guez.

Hirsh, Davis, Walker & Piccarreta Piccarreta, Tucson, Michael L. for amicus Attys. curiae Arizona for Criminal Justice.

OPINION

MARTONE, Justice. These consolidated require us to whether, decide absent bad faith on the state, part of preserve failure to evi- dence consti- tutes a denial of due of law under Article 4 of the Arizona Constitution. § We hold that it does not.

I. PROCEDURAL BACKGROUND AND FACTS A. Youngblood Youngblood was convicted of child moles- tation, kidnapping. sexual assault and appeals reversed and ordered dis- charges against Youngblood missal of all ground on the that the state violated his process rights by federal due failing prop- erly samples semen from the body clothing. victim’s Stephen Neely, County Atty. by D. Pima Youngblood, 153 Ariz. Shovlin, Deputy County M. Catherine (App.1986). This court denied review. The Gustafson, Atty., Deputy Sp. John R. Coun- granted United States Tucson, ty Atty., for state of Ariz. in State certiorari, petition state’s for re- writ of Youngblood. appeals, versed the court of and held Davis, Tucson, Youngblood. F. Daniel “unless criminal defendant can show bad police, lying faith on the upon failure to Youngblood, preserve potentially useful evidence does U.S. L.Ed.2d 281 (1988), not constitute of due a denial reversed the order of Youngblood, law.” Arizona v. 488 U.S. court’s dismissal and ordered 333, 337, charges against 109 102 the defendant be L.Ed.2d 281 (1988). Herrera-Rodriguez, reinstated. State v. 164 Ariz. 790 P.2d 747 (App.1989). We police samples, The collected did not re- granted petition the defendant’s for review. frigerate the clothing and did not immedi- ately perform samples tests on the taken II. DISCUSSION body. They from the victim’s did deter- A. Preclusion mine that sexual contact had occurred. was collected was available to the Herrera-Rodriguez

What due raised his state process defendant at trial and defendant chose claim in the trial In con court. trast, perform not to of his There not tests own. did assert his state suggestion was no faith on the due claim until had he been court, remand, through police. having ap On and after court, peals, gone through state and the United States the entire and federal once, He first system for Court. raised his state the defendant the first claim on court remand to the time raised state law claim under the appeals. appeals The court of should Having Arizona due clause. rejected untimely. have his claim as One on rebuffed its resolution of the federal apple enough. bite One should issue, the held that Ari- not be to hold allowed back a claim or issue violated, zona was reversed his and it. All then use one needs convictions, charges dismissed all and arising claims issues the same out of against Youngblood, him. State v. 164 present nucleus operative facts must be (App.1989). Ariz. We time, they pre ed at the same else granted petition the state’s for review. point litigation cluded. At some must come B. Herrera-Rodriguez to an of finality end. Lack is one of the popular reasons for the with dissatisfaction Herrera-Rodriguez charged was legal system. litigation Piecemeal assault, armed kidnapping, burglary sexual an evil avoided.1 to be mistrial, aggravated After assault. court granted the trial a defense motion to appeal, generally Even on direct to preserve because the state failed dismiss refuse to consider claims that are not rape sample swab from a kit. The finding a cotton raised funda below. “Absent upon error, federal Arizona motion was based mental failure to an issue at raise again, right there Once trial ... waives the to raise appeal.” Gendron, The on bad faith. delivered State (1991).2 analysis. Hospi- P.2d hospital the swab to a With force, and, greater personnel dry preclusion occur tal failed to air swab should result, appellate direct not conclusive. Re- on remand after review as a tests were Security Protecting failure Double Federalism: Indi- 1. The dissent characterizes defendant’s Constitution, Liberty expressly claim as understand- vidual Under the raise the state Arizona However, able, (1988). The Chief Jus- post, at P.2d at 1159. Ariz.St.L.J. acknowledged acknowledges, tice has also that this court will dissent state and federal as the Post, consider the Arizona Constitution "at least when sources. claims different lawyers adequate judicial have made an record and is federal review of P.2d at 1158. There arguments." claims, proper Lawyers raised the Id. not state claims. the difference. Justice William Brennan know why says explain urging lawyers The we have to raise state claims for dissent failed to has been Brennan, Jr., principle many years. of fundamental error does not William J. See Post, apply to this case. Constitutions and the Protection Individual (1977). anticipates concern its con- Rights, Our own 1160. The dissent's 90 Harv.L.Rev. 489 court’s, clusion, regarding dissenting the merits. Justice has done same. See Chief Abney, Stanley first determines whether there is er- G. & David L. Feldman Pictures, Paramount relying upon been exhausted. Arizona due Holmes, Inc. v. having clause for failed to claim raise that (1942) (“appeals appeal at his direct judgment from a piecemeal, any ques Appeals, by taken Court of and on certio and ... review could and rari tion which should have been the United Court.3 — Escondido, generally Yee v. pre appeal may the first raised on -, -, nor court on sented to considered Rhodes, (1992).4 so appeal.”); But we are not the second Although the petitioned free. us court, issue, v. All Hawkins preclusion review the As we stated in Co., constituted, then A of Ins. denied it. 490, 503, 733 152 Ariz. denied, upon cert. this court to reach an 874, declines issue U.S. which has been denied.5 turn review We 212, (1987), “[ejffi S.Ct. 98 L.Ed.2d 177 the next to the merits. orderly justice] cient and administration [of requires point some in time at which is B. The Merits appeal.” too to raise new late issues on Brady Maryland, v. so, 83, if we were free to would do we In 373 U.S. 87, precluded hold is from 83 S.Ct. L.Ed.2d ror, support rights and then whether it is fundamental. of his claim that his the under 419, 239, 424, King, v. (1988). 158 Ariz. 763 P.2d Sixth and Fourteenth Amendments were violat- error, by Since there anti-psychotic is no there is no ed forced administration of drugs to during argument occasion reach the doctrine of fundamental his because that — U.S.-,-, error. was not made below. (1992) (Thom- S.Ct. 118 L.Ed.2d 479 3. The dissent characterizes the defendant’s fail as, J., concurring). Despite the dissent’s charac- ure to raise state constitutional claim as the position terization of in the instant case as Post, of a “citation.” 844 P.2d omission at by even more extreme than that taken Justice square It is difficult to character this Thomas, analysis fact our line in is more in acknowledgment ization with dissent’s case, Youngblood with Yee. In instant responsibility it is court’s ultimate “this inter claim, timely failed to raise his state due meaning pret application Arizona of the (not argument) wholly a claim a mere distinct light reading in Constitution our own each from his federal claim. Post, clause.” 1158. How duty can a court fulfill this is not the issue Although grant court limited its of review raise, thought weighty enough to be or if the claim, Youngblood’s I am the simple is a The difference citation? defen thereby prevented view con- that it is from only failed dant not to "cite" the Arizona Consti preclusion sidering argument. the state’s Such any tution but also failed to sort of mount parties’ used limitations are to focus the atten- Sherrill, argument upon Taylor based v. it. See initially issues tion on those which the court dispositive believes will case and ("while contains a Constitution also jurisdictional in nature. Olmstead clause, jeopardy § double Ariz. Const. art. States, 438, 466, 488, U.S. separately we do not discuss it because defen 564, 568, 576, 72 L.Ed. 944 Stevens solely on the in dant relied federal constitution Marks, 383 U.S. arguments to the trial court and the court J., (1966) (Harlan, concurring Nunez, appeals”). State v. 274 n. dissenting part). (1991) ("The 863 n. 2 defendant grants This then separate argument court sometimes review and no the state makes based on therefore, improvidently where dismisses a case granted. review is provision; do not constitutional it.”). Sometimes court denies review separately discuss and it is a certain issue turns out that that issue properly dispositive discussion of what issues either outcome or critical to an issue In its were it, granted. distinguished upon the Court in be- such a Yee which review This is claim, generally prejudice parties. be con- Both tween a which will not case. There is appeal, preclu- and an the first the state and defendant briefed the sidered for time claim, support argument in the Court sion I believe it is unwise to fail of a which issue. below, consider, upon long improvi- so which this court even if not made address an issue dently will authority properly presented petition review. There is no in the for writ of denied as — at-, precluded proposition that we are con- certiorari. contrast, Nevada, sidering subsidiary Riggins these Thom- in case under Justice Nevertheless, argued that the Court consid- circumstances. four members as should not have "liberty petitioner’s argument otherwise. interest" court think ered (1963), argue Court held “that the The that in defendants contrast to suppression process, Arizona due prosecution of [materi- requires us equate nonexistent upon evidence favorable to accused al] have been request due process violates ... [federal] existing plainly exculpa- evidence which irrespective good faith or bad faith tory. goes It saying just without prosecution.” This sense. makes the United Court is the Exculpatory evidence matters whether final arbiter of federal constitutional is- good exercise faith in sues, this court is the final arbiter of Ari- failing produce it. zona constitutional issues. preju- harmed fact. The defendant is argument builds upon defendants’ unproduced diced because the definition peculiar driving this court’s under in plainly exculpatory. His trial is jurisprudence. fluence In Montano v. Su gets flawed. He new at which the perior Court, 149 Ariz. available, not a evidence is dismissal. (1986), court, by the slimmest of mar Brady, unpre- contrast stark gins, held Arizona due re served evidence is neither eases quires the police suspect to inform a DUI exculpatory By plainly inculpatory. nor right independent of his to an alcohol test definition, having preserved, been if choose not to test the suspect. argued will know. Under circum- that “the never Montano unique evidentiary circumstances attendant stances, only say one can that the evidence justify exception” to DUI arrests a narrow might exculpatory, have the evi- been or normally to the rule “the state that has no dence might inculpatory. have been More obligation suspect gathering to aid a could accurately, say one potentially exculpatory evidence.” Id. at unpreserved could evidence have been sub- Driving 719 P.2d at 275.6 under the tests, jected might the results which unique influence arguably cases are for a exculpatory inculpatory. have or been variety of reasons. The evidence is in the showing of prejudice there is no body. Usually defendant’s own defen fact. In to the contrast dissent’s statement in custody dant is and the state has the prejudice, this case about all that right sample. take a or blood breath might can be that the said is means, jurisprudence Whatever our DUI Speculation prejudiced. is not great transpose too differences are the stuff of which error out constitutional peculiar setting. any its rules to other Ef is made. in the forts to extend this In Arizona v. rejected. exception” expressly “narrow are Supreme held for this Willits, point More to v. State evidence, good class or faith of bad For over a relevant because infer- the state is of an required quarter century, this case has tri- ence that can drawn be judges juries they al to instruct find conscious, A or police. of the intentional lost, destroyed that the or state has failed preserve malicious failure to evidence preserve evidence that might material suggests which could be tested “that the they find expla- aid the defendant and exonerating form a evidence could basis they inadequate, may nation for loss 488 U.S. at the defendant.” draw inference that that evidence would at 337. Good faith bad faith does the state. have been unfavorable to With Brady setting matter in a because defi- respect might be evidence which excul- plainly exculpa- Brady patory, nition materials there is no bad faith and where conduct, required. rule more than ade- tory and no inference is Willits square understanding exception" rule that the has It the dissent’s "narrow state is hard to obligation gather potentially exculpatory as the rule rather than the DUI Montano exception, post, n. 1162 n. at 512 P.2d at evidence. characterization of DUI as a with Montano’s quately complies the fundamental fair out of process analysis in the context component unpreserved ness of Arizona due potentially exculpatory evi- Admittedly, jurisprudence dence, appro- Willits when would Willits ever be analysis. Compare sometimes defied neat priate? Hannah, 120 Ariz. State The defendants and the dissent would (1978)(negligent potentially loss of pre-existing have us abandon our own exculpatory prejudicial evidence even with guise constitutional law under the of not instruction) Hunter, Willits with State v. following the United States 136 Ariz. truth, Court. Court has (1983) (negligent potentially loss of excul area, good followed us in this and with patory prejudicial evidence without Willits question reason. The is fundamental fair- instruction), Perez, ness. When the state exhibits bad faith 1214, 1219 (failure the handling of critical it is fun- possession to obtain of material evidence damentally pro- unfair to allow the trial to plus prejudice requires actual in Willits ceed. The remedy court’s is to tell the struction). But the core doctrine as state it will not prosecute be allowed to it relates to Arizona due is that an case in our strengthens courts. Bad faith adequate instruction is where the state de the inference that the evidence stroys, loses fails exculpatory unacceptable to an level. unless the state acts in bad faith or the contrast, where there is no bad faith it prejudice-in-fact. defendant suffers fundamentally unfair to bar the state Serna, from our courts. The inference that the (1990) (first considering strong is not process under Arizona v. Youngblood, enough to dismiss enough the case. It is Willits); Tucker, and then State v. jury let the decide whether to draw such an 433, 442, Ariz. inference. (applying bad faith standard Su before The defendants asked for and received a preme Court decided Young Arizona v. instruction at Willits their trials. There ).

blood was no evidence of bad faith here. The Contrary to the dissent’s characterization indistinguishable facts in these new, of the role post, of bad faith as There, from those in Willits. adopted 844 P.2d at we the bad faith gave dynamite and wires to the Air Force guide long before the United States Su- destroyed which in turn them. Willits ar- preme Court did. Well gued dynamite that the and wire “might said, Youngblood Court decided “[a] showing explo- have aided in [him] [an] deprived process by defendant is not of due sion was accidental.” 96 Ariz. at the destruction of evidence unless the state P.2d at 278. We held that Willits was has acted in bad faith or the defendant is instruction, entitled to an not a dismissal. prejudiced by the Day, loss.” State v. Brady When violation results in a 490, 496, (1986). To new suggest would be bizarre to Soloman, the same effect is that, non-malignant fortuity, because of a (1980). require fundamental fairness would evidence—exculpa- Where the nature of the charges. dismissal of the The unknown, possibility tory, inculpatory, or neutral—is prejudice justify is not sufficient to cases, showing inas there can no ultimate sanction—an order of dismissal. Thus, prejudice only showing in fact. Hawk, v. Loud See implicates The bad guide bad faith to the fundamental fairness (1986). Instead, gets the defendant more component process of Arizona due than the unpreserved potentially exculpa- context of with Willits instruc- tory hardly and tion. “The touchstone of due un- evidence is therefore new certainly departure previous der both the Arizona and federal constitu- Indeed, holdings. if bad faith were read tions is fundamental fairness.” manner Melendez, Arizona Constitution the same (1992). counterpart. Arizona v. as its federal 51, 109 333, 102 Youngblood, 488 U.S. hold that absent bad faith We therefore not, The does L.Ed.2d 281 state, the failure to part on the however, agree position with the state’s could preserve evidentiary material which In that the two clauses are coterminous. tests, results of subjected to have been stead, re the defen- it reaffirms this court’s ultimate might have exonerated dant, of due meaning does not constitute a denial sponsibility interpret and Arizona Constitu- process of law under the application of the Arizona Constitution tion. clause. light reading of our own of each Here, suggest no evidence to there is approach Because I that this believe police. Nor has faith on the decision-making is cor state constitutional showing prejudice any there been rect, in the constitutional concur de the defendants were not fact. join in adopted by the Arizona nied due of law under portion opinion. Disagreeing Constitution.7 opinion’s2 application pro of that the lead Youngblood cess to and with the conclusion III. DISPOSITION cases, I majority reached in re both appeals the court of judgment following por spectfully dissent from the reversed, opinion is its va- Youngblood opinion. tions of the cated, the convictions and sentences affirmed. by the trial court are imposed Youngblood A. Preclusion: judgment affirmed, its Herrera-Rodriguez Stating that failed to assert vacated, trial court dis- the order of the the Arizona his due claim under reversed, charges is and the missing the through until he had Constitution trial. case is remanded for system re appellate entire and his case appeals, the lead manded to our court of CORCORAN,J., MOELLER, Y.C.J., and pre opinion argues “Youngblood that concur. relying upon the Arizona due cluded from Justice, FELDMAN, concurring in premise Chief process clause.”3 Both the dissenting part. part and conclusion are flawed. of Arizona

Drawing interpretation on its of accepting reasoning precedent and Opinion’s 1. The Lead Position compelling, the case law where pre- opinion’s The lead discussion fair today holds that fundamental court dictum—language un- clusion issue is both ins no more than a requires ness Willits holding—and necessary irrelevant to to Willits, truction.1 See State Concluding the court. issue (1964). Ultimately, the P.2d 274 free” to decide the we are “not ... process clause of the that applies the due court process due is not violated unless “presumption of holds that The dissent’s reference 7. the other evi- the loss of evi- and “cases in which can demonstrate that innocence” us. Post at 511 is inconclusive” baffles dence and from the state’s bad faith. dence has resulted If there is Feldman, at 1161 and 1164. Also, (Chief Vice Justice a conviction evidence to warrant no substantial Moeller, Corcoran, and Jus- Justice Justice Chief beyond without the absent a reasonable doubt Zlaket) Youngblood should not believes that tice evidence, judgment to a the defendant is entitled asserting precluded his Arizona due If acquittal. Ariz.R.Crim.P. there of Rule Therefore, rights I refer in this court. is done. no harm substantial such opinion opin- as the "lead Justice Martone's ion.” at 1155-1156. op. (Vice Justice court Chief A of this Lead Martone) Corcoran, Moeller, and Justice Justice applied which due clause it preclusion4—having case constitution, referring review, instead briefing, cited neither granted ordered neither arriving to both federal and argument of that issue— nor entertained has its conclusion. This court been next to the mer the lead “turn[s] See, guilty imprecision. e.g., of similar then, What, is the its” and decides them. Tucker, entitled “Preclu preceding discussion (1988).7 P.2d than author’s It is more sion”'1. preclusion, question on the dissertation the Arizona Youngblood’s failure cite by briefing6 argument. uninformed prejudice the Constitution did not state. opinion’s assumption, Contrary to lead compounding the error of At risk that Youngblood did not hold back issue. procedurally that believe every step, In a he timely manner and at necessary respond improper, I think issue, arguing raised the my opinion’s the lead dicta with some deprived him of destruction of get wishing quickly own. The reader a fair trial. When the United States Su- only the court and decided issue before preme held for the first time that begin at B of by it is advised to Part qua of a due bad faith was the sine non dissent. process deprivation, Youngblood then asked the state court to follow Raised The Issue was cases, Tucker, such as and hold under Youngblood did raise only Arizona Constitution bad claim; proper supporting he also made the one of tests a fair It is under- trial. stage proceed- argument. every At that he had not so before. standable done court, ings, from the trial court to this any had previ- Neither this court nor other Youngblood argued the destruc- ously aware that bad faith was the principles of fun- tion evidence violated fact, previously factor. court fairness, him a fair damental denied abjured subjective inquiries such into the process. Young- and thus offended due prosecutorial psyche similar cases. only to failed cite article section 4 blood Court, Superior Pool v. arguing of the Arizona Constitution when requirement of fundamental fairness. therefore, espoused today, The view Indeed, Youngblood’s original in the brief inarguable far more radical than state cited neither the state nor ment should not be allowed “[o]ne spoke generally of federal constitution but hold a claim or issue and then use it back Now, only if one it.”8 under what is needs view, opinion’s evidently was not alone in this omis- the lead opinion though litigant prejudice, con appeals’ original The court of a suffers no sion. 50, rights may destroyed simply be Youngblood, 153 Ariz. 734 stitutional in State v. lawyer greater prescience specify had no (Ct.App.1986), P.2d 592 also did not because a 505, discussing that the of op. at 7. Tucker's claim loss 4. Lead at fundamentally evidence had rendered unfair, depriving process, him due for- thus of 505-506, Lead 844 P.2d at 1155-1156. mer Gordon discussed federal and Chief Justice citing either cases without constitu- preclusion opinion suggests that the 6. The lead tion; did Tucker made nor he indicate whether and n. 5. It is incorrect. issued was briefed. Id. judges, under either or both. While his claim para- one was raised the state in Preclusion courts, may highest particularly of the those Young- graph. for Petition Review 10-11. be for that which the lead sometimes opinion excused paragraph. Opposition responded in one blood lawyers, the Chief Justice condemns at 2. This court then to Petition for Review possibly were under the and the Tucker court grant- preclusion on denied the issue review misapprehension as defense counsel same review, briefing, supplemental ordered ed case, believing correctly the time that the this argument See Order on two other issues. heard the under both constitutions. test was same Thus, ques- preclusion May the dated briefed, review, accepted not not tion was op. at 844 P.2d at 1154. argued. and not than the this court 49. Accordingly, Youngblood if had failed to state which constitution he in- failed to raise destruction of evidence support timely court, of voked a claim claim the trial of appeals raised the court jurisdiction the exact words used had in both constitutions. consider claim. A If holding, such refusal becomes court’s to do so on direct review would triumph inconsequential prudential—and witness the have been usually good form critical policy—rather jurisdictional over substance. do than not—as nature. opinion implies—retreat present case, lead As in the the court when principle appeals passes that state issues must be on raised such a claim—as well it raised, a might, considering and record made. The issue was importance point argued. and the was All fairly that was constitutional issue—the issue be- See, Dawson, omitted was citation. fore this e.g., court. 746-49; Ariz. at 792 P.2d at see — Williams, Issue Could not be Waived also United States v. U.S. -,---, preclusion Even if the principle applied in 118 L.Ed.2d 352 case, the opinion lead has overlooked a significant Briefly issue. acknowledging opinion, citing Yee, the lead evi preclusion there when dently fundamen concludes that of appeals the court occurred, tal opinion error the lead had discretion to consider issue but that, explain why principle citation, fails to does single for lack of a the court Indeed, apply to this case. if the of appeals state’s its deciding abused discretion Youngblood destruction denied issue. This is a legally incorrect and fundamentally trial, gratuitous reprimand fair the issue would court of ap — precluded peals. Yee, at---, had completely even if he U.S. evidentiary 1531-32; failed raise question. Nevada, Riggins S.Ct. cf. — Dawson, -, -, (1990); J., (Thomas, State v. 118 L.Ed.2d 479 dissenti Hunter, ng).11 Youngblood squarely and timely Slemmer, court, see also State v. raised the due claim. Each n. including 177-78 & appeals, considered (1991). Thus, n. reasoning argument & 8 is circu his question of fundamen itous; Youngblood denied a tal was fair fairness. Even under Justice Thomas’ view, always the error would be fundamen preclud not waived or precluded.9 tal and could ed. preclusion.

Even if had failed to raise So much for the “merits” claim, finding process. the state I return Dicta is easy preclusion wrong would be as a matter of define but sometimes hard to avoid. All of jurisprudential policy. Although unnecessary it cites us are guilty statements. — Escondido, U.S.-, It Yee v. common law But (1992),10 goes preclusion much lead further. The opinion’s preclusion entirely views on are far more discussion in the lead Yee, dictum, recognized opin- extreme. Court held as such in the lead ion, jurisdiction that have to consider and completely courts a irrelevant issues —Yee, Further, appeal. claim first raised on on which case was U.S. the decided. at-, 1531; 112 at see the also Daw conclusions reached without the son, 283-86, briefing argument by 792 P.2d at 746- benefit of counsel. P.2d at 9. Lead 505 n. 844 1155 n. 3. United States Court "should refuse to Cf. [liberty argument," Riggins’s interest] consider especially granted only op. at it had certiorari 1155. because other No other to determine issues. Id. mem- fact, Concluding agreed. 11. had ber the Justice Scalia that the "Nevada courts Court joined preclu- argument Riggins except reason consider an that did the dissent on all issues — make,” at-, Riggins, S.Ct. at Justice Thomas asserted that the sion.

5H issue, Only denied re- Faith This court review of Good Cannot be issue, argument hear on the and Test fused to express it.

therefore should address holding remedy be The court’s that no so a and my improper dissent from jury appropriate instruction un yond a is us. next to the issue before turn defendant the state’s less the establishes non is sequitur. faith is a The issue

bad Rather, good the state’s faith. Loss of Evidence B. received the issue is whether the defendant eviden Disregarding persuasive both the consti the due clause of the what legal analysis tiary and funda requires: a fair trial under tution Youngblood12 and the trial mentally procedures. Obviously, fair destroyed judge’s finding factual situations, might a have some defendant “may evidence have Herrera- exonerated” though acted had a fair trial the state adopts Rodriguez,13 here faith; likewise, in bad a defendant bright line rule that what evi no matter though have had unfair trial even potential or how its significant dence is lost good acted in faith. The answer is value, due not violat exculpatory process is depends quality fact-intensive can demonstrate ed unless .evidence, type quantity of the other the state’s that the loss resulted from lost, potential that was val of evidence its too, signifi This is analysis, “bad faith.”14 exculpatory purposes, and similar ue for cantly flawed. assume, issues. There no basis to police every case have acted where Brady Maryland faith, Inapplicable in bad fair trial has been process always Nor has due been denied. First, support the court finds some where the have acted satisfied Brady Maryland, such as 373 U.S. having good faith evidence but lost (1963), L.Ed.2d exculpatory majori significant value. The remedy for suppressed where ty’s bright just line test that re achieves true, retrial, not dismissal.15 This is 506-507, 1156-1157; sult. At 844 P.2d at Brady applicable rule is not to this Lembke, Note, H. Matthew The Role of When, in Brady, prosecution case. Young Culpability Police in Leon and a new has withheld blood, (1990); The 76 Va.L.Rev. pro which the can be Court, Term—Leading duced, appropriate remedy, “irrespec (1989). Cases, 103 Harv.L.Rev. 157-67 good faith of the tive of the or bad Brady, U.S. at prosecution.” also the effect overlooks says today, As the majority at 1197. presumption of innocence. application Mathers, 66-67, sense.” Brady “makes Its however, case, makes no sense. Presuming the defendant case, innocent, proper question the evidence is not available is whether destroyed potential because had such excul- retrial the lost evidence testing. signifi- Retrial leave us with its patory would value destruction remedy to can easi- determining cantly impaired what defense. One same issue: judge in just imagine cases—and the trial ly the evidence has not invoke when evidently destroyed. Herrera-Rodriguez believed withheld but order, Young v. Herr description See November of the evidence 12. For Maricopa Superior era-Rodriguez, County blood, Ariz. at P.2d at 592-94. see 153 case No. CR-87-11124. (as opinion applies law in Arizona it existed force, today) compelling dem to fact with until 508, op. at at 14. Lead 844 P.2d 1158. believe, onstrating, view taken I the error of the 506, op. at 1156. 52-55, 15. Lead at 844 P.2d majority. today’s 734 P.2d by See id. at at 594-97. 506, op. at 844 P.2d at 1156. 512 Herrera-Rodriguez

this was judge one17—where a “defendant trial un nor the prove able to acted in bad faith fashioned ... the loss or destruction of evidence a applied new Arizona rule to destruc is nevertheless so critical to the defense as tion They of evidence simply ap cases. to make a fundamentally criminal trial un Young plied existing Arizona law. Henderson, v. Massachusetts fair.” 411 blood, 52-55, 153 Ariz. 734 P.2d at 594- 309, 496, (1991) Mass. (quot 582 N.E.2d 497 1978, Since the Arizona Youngblood, Arizona v. ing 61, 488 history Court has a well-settled in cases of (Stevens, J., 109 S.Ct. at concurring) 339 lost or destroyed origin ap evidence. The (citations omitted)). Hyder ex rel. v. Hughes, pears to State If the lost significantly impaired 261, 264, 722, 119 (1978) Ariz. P.2d 580 725 defense, Herrera-Rodriguez’ pro (a rape in adopting case the test rights cess prejudiced. Prejudice were Klein, States v. Heiden and 898, 508 F.2d always independent been an component of In Hughes, (9th Cir.1974)). 902 quoted process Arizona’s due clause in in cases Heiden and Klein: “When there is loss or volving destroying failing preserve or evidence, destruction of such we will re See, Tucker, e.g., significant evidence. 157 verse a defendant’s conviction if he can 442, Ariz. at at 588. 759 P.2d This has (1) show bad faith or connivance on the holding driving been the under the influ that he was government (2) Montano v. (“DUI”) ence such as prejudiced the loss the evidence.” Court, Superior 385, Ariz. 149 719 P.2d Hughes, 119 Ariz. at 264, 580 P.2d at 725 (1986). Montano, is not a course, 271 (emphasis added). ig preserve case, failure to but our cases, nores our in which non-DUI we have Prejudice other DUI cases are.18 has also before consistently held, such cases as Tucker and been the test Youngblood, that Gerhardt, State v. test for 410, fundamental 161 Ariz. 778 P.2d error (Ct.App.1989), process 1306 and due is either that no relation to bad faith the OR peculiarities law. prejudice.19 of DUI Neither comprehensive entry 17. In a minute filed homicide. The constitution makes no such dis- 4, able, 1988, but, experienced requires process November tinctions instead in all evidence, judge explained detailed the that cases. overwhelming, was less than and noted that the jury, hung, Many subsequent must have reached the same decisions this court include, Hughes conclusion. He dismissed the They then case. have endorsed the rule. Hannah, chronological order: State v. 120 1, 2, 888, (1978) 334, (holding Ariz. Kemp, 583 P.2d 889 that 168 Ariz. 813 (1991) (reaffirming charged filing P.2d defendant with arson 315 that and must preserve separate sample indepen prejudiced by breath fraudulent insurance claim was defendant): evidence); Soloman, testing by dent a DUI State v. Velas the loss of the State v. 125 co, 480, 1, (1980) 821 (holding 165 Ariz. 799 P.2d Oshrin v. Ariz. 607 P.2d 5 Coulter, (1984) P.2d Ariz. charged rape the defendant with while armed (holding that the Arizona Court will deprived process with a knife was not his due prejudice Schilleman, reverse a conviction if bad faith or rights); State v. 125 Ariz. shown). can be (1980) (holding 609 P.2d defendant charged degree rape burglary with first not today, always Until our court’s cases have deprived rights); Wiley, of due State v. accepted proposition that due re (1985) P.2d quires that even in situations "where the defen (holding charged burglary, with defendant dant cannot show bad faith in state’s fail [the kidnapping, robbery deprived of due material ure] defen process rights); Day, 148 Ariz. 496- dant be entitled nevertheless to dismissal (1986) (holding 749-50 showing if he made a sufficient substantial charged Gerhardt, various with sexual assaults prejudice.” Tucker, rights); deprived of due (Ct.App.1989). 442-43, (defendant Ariz. at jurisprudence overrules our on this murder); charged degree dismissing with first State v. Ser simply by cases as DUI na, cases. Lead 844 P.2d at 1155— assumes, (holding charged suppose, that defendant This that we have degree deprived depending first rights). murder of due different due tests on wheth driving, burglary, er the case involves drunk

513 argues preme plurality Court s Arizona v. Remarkably, today’s majority 260, Serna, Youngblood. Depart 787 P.2d v. v. 163 Thorne State Tucker, 433, 1326, (1990), 759 Safety, Pub. 1330 1056 ment of long 579, adopted guide (Alaska 1989)(“We P.2d a “bad faith n. 9 have construed Supreme the United Court States Constitution’s due clause Alaska If this means that bad faith faith.”); did.”20 require showing of bad Lol considered, only the assertion factor we (Del.1992) Delaware, ly v. 611 A.2d 956 unsupported, majority is As at best. grounds (rejecting bad faith as a for Wil cases, acknowledges, like those cited instruction); lits-type Dela Hammond v. 19, held that footnote all due (Del.1989) (“We ware, 81, 569 A.2d in bad was violated the “state acted fair remain convinced that fundamental prejudiced by is faith OR ness, re process, as an element of due loss.”21 evi the State’s failure quires defen that could favorable to the dence Prejudice present is case what in the of the dant be evaluated context ‘[to] suggestion today’s about. The deci ”) (quoting record.’ entire United States sion, making for a only bad faith the test 2392, 427 Agurs, 96 violation, is a mere exercise 2402, (1976)); 49 L.Ed.2d 342 Hawaii v. today, stare decisis unfounded.22 Before 787 673 Matafeo, 71 Haw. P.2d bad faith was one two used elements (“In (1990) circumstances, regard certain to determine fundamental alternative faith, good less or bad today, After it is test. fairness. destroy lose or material evidence which departure majority “no from Yet claims ‘so critical to the defense as to make previous holdings.”23 today, Until fundamentally criminal trial unfair’ with Arizona case had held that bad faith is the it.”) (quoting Youngblood, out Arizona v. qua process. Today’s non sine of due J., (Stevens, ignor 488 U.S. at 109 at 339 holding majority’s results from the Fain, ap concurring)); Idaho ing authority well-reasoned Arizona Idaho v. 116 denied, plying the of four of the 493 U.S. views members cert. Supreme United States Court. That Henderson,

majority (“The chooses to follow the of a views 582 N.E.2d 497 rule plurality provisions the United States under of the unremarkable, though Court is I believe than Massachusetts Constitution is stricter it is re this issue erroneous. The court’s Youngblood opinion____ stated in acknowledge doing, it is how fusal to what police did The fact that the not act ever, is remarkable. negligently poten they faith when lost the tially exculpatory evidence cannot in fair ignore should Ari- We well-reasoned dispositive issue.”); New ness authority just because zona four Smagula, 578 Hampshire N.H. justices change their 1215, 1217(1990)(applying A.2d a different interpretation what constitution); test under the state New now, years plurali- Five requires. Ramos, York v. A.D.2d change. ty may then for Arizona? What N.Y.S.2d Holding Unsup- Majority’s 3. The majority’s logic The error becomes ported by Authority espousal apparent when one considers its generally prompted oth- of the Willits instruction.24 These considerations have 186-91, Willits, today’s P.2d at 275- reject Ariz. at er state courts view Su- instruc- and that of the United States 79. The concludes that an op. op. P.2d P.2d at 22. Lead at 1157. 20. Lead 23. Lead at 1157. (quoting op. at P.2d at 1157 21. Lead Day, added)). (emphasis op. at 844 P.2d at 1155-1156. permitting time; tion jury doubt, the to infer that the define bad faith at this exculpatory would have been procession must await a of cases over the problem, cures signifi the no matter how coming years amorphous define this to This, course, cant the lost evidence. of term. assumption empirical for which no evi The new faith jurisprudence bad created fact, dence In exists. considerable evi by present possible, again, only the case is suggests contrary. general dence the See majority ignores presump- because the the Livermore, Joseph Evidence, ly M. Absent previ- tion of innocence. The of our basis 26 Ariz.L.Rev. 27 J. Alexander Tan- ous cases was that because defendant is ford, The Law Psychology Jury of innocent, presumed we must at in- least Instructions, 69 Neb.L.Rev. 71 dulge the idea evidence that could any event, majority explain fails why to significant exculpatory have value would permissible it is jury infer Therefore, guilt. have rebutted cases the evidence have been exculpatory inconclusive, which the other impermissible but for the judge trial to do prejudiced loss well the de- as so a matter of appropriate law under deprived trial, fendant and of a him fair facts. requiring thus dismissal. previous and, I our would rest on Majority’s Holding Bad Judi- constitution, applying Policy

cial follow holdings agree of other state courts. I Finally, making the officers’ bad faith with the Massachusetts the litmus test determine whether a de- government potentially that when the loses fendant received what due re- evidence, exculpatory trial court must quires, majority requires our trial degree balance the culpability exactly they courts to do what should not government, materiality evi- deciding do. objective ques- Instead dence, potential prejudice and the tion whether the loss of the evidence defendant in deprived trial, protect order to the defen- of a fair will, henceforth, dant’s right constitutional due courts concentrate on trial____ subjective intent a fair If of the officers. No the loss of the evi- bene- right fit much mischief will result dence threatened the defendant’s po- judge these mini-trials on the motives fair con- discretion prosecutors. Pool, cerning lice and protect the manner in 268-70; Lolly, rights. 677 P.2d at thé defendant’s A.2d at 960. Henderson, N.E.2d at 496-97. majority’s signifi- new rule has other CONCLUSION policy Regardless cant ramifications. important whether evidence is Thus, in Youngblood, believing that the inculpatory, good policy public requires precluded, is not police that the use in preserving care it. approve appeals’ would requiring prove Instead of a defendant to judgment and reverse the of conviction. something and subjective as nebulous as a Herrera-Rodriguez, I would vacate the faith, police officer’s bad we should encour- of appeals’ opinion and affirm the age Today’s holding due care. invites bad trial court’s order dismissal. work, long so police government faith, bad does act whatever is. ZLAKET, J., concurs. Is it bad when the valu- faith collect pre- know that it able should

served, carelessly fail to so? Is it do government fails when

provide agency the law enforcement proper equipment the evi- Properly,

dence? does not

Case Details

Case Name: State v. Youngblood

Court Name: Arizona Supreme Court

Date Published: Jan 7, 1993

Citation: 844 P.2d 1152

Docket Number: CR-90-0053-PR, CR-89-0353-PR

Court Abbreviation: Ariz.