Opinion
No. 2 CA-CR 2017-0034
03-26-2018
THE STATE OF ARIZONA, Appellee, v. ROBERT GODOY SAGASTA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20152171001
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 After a jury trial, Robert Sagasta was convicted of possession of a dangerous drug, possession of a narcotic drug, and possession of drug paraphernalia. The trial court sentenced him to concurrent sentences, the longest of which were six years. On appeal, Sagasta argues the court erred in refusing a requested jury instruction. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In May 2015, Sagasta was detained by Pasqua Yaqui law enforcement at a casino after casino personnel determined he had previously been banned from the premises. Upon escorting him outside, officers searched Sagasta's person and found methamphetamine and heroin, as well as identification cards of two other individuals, a passport and debit card of one of the individuals, and two cellphones. Sagasta was subsequently charged with possession of a dangerous drug for sale, possession of a narcotic drug for sale, and possession of drug paraphernalia.
¶3 At trial, Sagasta's proposed jury instructions included a request for a Willits instruction based on the officers' not having investigated whether the search was recorded by the casino's video surveillance system. The trial court denied that request. Sagasta's defense in part centered on his suggestion that he unknowingly possessed the drugs and paraphernalia because they were in clothing he was wearing but that did not belong to him. The investigating officers gave conflicting accounts of where on Sagasta's person the drugs were located, whether in his pants pocket or his jacket. In closing, Sagasta argued the officers performed an inadequate investigation, including by failing to request and review casino surveillance video footage that might have shown his arrest and search, which he claimed would have resolved the question of where the drugs were found.
State v. Willits, 96 Ariz. 184 (1964).
One officer testified that the casino utilized many video cameras for security and fraud detection, including in the area where Sagasta was searched, but such videos were never requested or viewed.
¶4 At the conclusion of the two-day trial, the jury acquitted Sagasta of the possession-for-sale charges but found him guilty of the lesser-included offenses previously noted, and he was sentenced as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Willits Instruction
¶5 Sagasta's sole argument on appeal is that the trial court erred in denying his request for a Willits instruction informing the jury that it could draw an inference against the state if it found the state had failed to preserve material evidence. See State v. Glissendorf, 235 Ariz. 147, ¶5 (2014). We review that ruling for an abuse of discretion, see id. ¶7, and "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). A defendant is entitled to a Willits instruction if he can demonstrate "(1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." State v. Smith, 158 Ariz. 222, 227 (1988).
The state argues we should review only for fundamental error because Sagasta initially refers to his "right[] to due process and a fair trial" secured by proper jury instructions and he "did not raise this objection below." Despite his references to constitutional principles, however, Sagasta's argument on appeal appears to be simply that the trial court erred in denying his request for a Willits instruction, an issue he preserved below, and we therefore conclude abuse of discretion is the proper standard of review.
¶6 Sagasta did not testify at trial, but through his cross-examination of the officers, and his opening statement and closing argument, he conveyed the theory that he was not in knowing possession because it was "[n]ot [his] jacket." He additionally argued, "there's no photo or video of where the drugs were from, . . . and th[is was an] important piece[] of evidence" because "it would have shown where the drugs were found." On appeal, Sagasta contends he was prejudiced by the state's failure to obtain from the casino and preserve video surveillance footage from the time of the search, and the trial court's subsequent denial of a Willits instruction on that issue. He has not, however, met the threshold requirement of demonstrating the state failed to obtain and preserve material evidence with the potential to exonerate him. See id.
¶7 Sagasta relies on two cases, State v. Perez, 141 Ariz. 459 (1984), and State v. Leslie, 147 Ariz. 38 (1985), to argue the state had an obligation to obtain the casino's surveillance video. Both decisions are unavailing here. In Perez, the defendant was charged with armed robbery, and a store owner viewed a videotape of the robbery "approximately eight times before he was shown a photographic lineup" but subsequently destroyed the video. 141 Ariz. at 461. Although the Perez court ultimately concluded Perez had not shown prejudice, it also rejected the state's argument that Willits does not apply when the police "never had possession of the destroyed evidence," noting that "several detectives viewed the [Perez] tape at least a 'couple days' before it was erased." Id. at 463-64. The court stated:
Though the state does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence, the state does have a duty, in the interest of justice, to 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.Id. at 463.
¶8 Similarly, in Leslie, the defendant was charged with first degree murder, and our supreme court concluded he was entitled to a Willits instruction based on the state's failure to analyze spots an investigating officer testified appeared to be blood to determine whether they in fact were blood. 147 Ariz. at 41, 46-47. The court emphasized that the state itself, through "questions during trial and comments during closing argument[,] testif[ied] strongly to the materiality of the lost evidence." Id. at 47.
¶9 The materiality of the evidence in both Perez and Leslie is readily apparent. In contrast here, the relevance of alleged surveillance footage is not "obviously material." Perez, 141 Ariz. at 463. Although the "[n]ot my jacket" theory was a central feature of Sagasta's defense at trial, it appears the only indication of this defense the police received during the investigation was Sagasta's statement upon arrest that he "wanted the person he was with to return," asking the officers "to call his friend back" and possibly saying "he had his friend's stuff." We cannot conclude these vague statements about a friend who may have owned some of the items in Sagasta's possession gave the police any reason to believe the precise location of the drugs, either Sagasta's pants or jacket, was material to their investigation.
The record does not reflect any elaboration by Sagasta or details about what "stuff" may have belonged to his friend, and in particular there is no evidence Sagasta disclaimed owning the jacket or any item of clothing. Nevertheless, we note that although the state argues at length the precise location of the drugs was irrelevant to Sagasta's possession of them, his actual defense theory at trial was that he was not in knowing possession because he did not know the drugs were in the clothes he was wearing. --------
¶10 As we recognized in State v. Davis, 205 Ariz. 174, ¶¶ 36-37 (App. 2002), for a Willits instruction to be warranted, "[e]vidence must possess exculpatory value that is apparent before it is destroyed," and "the state does not have a duty to seek out or preserve potentially exculpatory evidence for the defendant when they have developed sufficient evidence against him." Multiple officers witnessed or participated in the search of Sagasta. Although we agree "[t]he video may have shown that the drugs were found in the jacket pocket along with the other person's identification, or it may have shown that the drugs were found in [Sagasta]'s pants pocket and the identifications were found separately in the jacket," the investigating officers had no reason to believe that the location of the contraband on Sagasta's person and the casino video would matter. Moreover, we note that nothing in the record indicates Sagasta made any attempt to obtain the surveillance video he now argues was key to his defense. Cf. State v. Herrera, 203 Ariz. 131, ¶¶ 19-21 (App. 2002) (prosecutor's comment that defendant could have introduced videotape after he "essentially invited the jury to consider" its possible contents in his favor was permissible in part because it "merely prevented [defendant] from drawing a positive inference from evidence that he could have presented but did not").
¶11 Under these circumstances, we conclude the state did not have an obligation to obtain video footage that might have shown the search, and the trial court therefore did not err in denying Sagasta's request for a Willits instruction. Because Sagasta has not met the first prong of the Willits test, we need not consider whether the absence of such video or instruction was harmful to his defense. Cf. Glissendorf, 235 Ariz. 147, ¶ 23 (after defendant has shown error, burden shifts to state to prove error was harmless). Nevertheless, we note that Sagasta cross-examined the officers about the search and lack of video evidence, and argued the essence of the Willits instruction to the jury during closing arguments. 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.").
Disposition
¶12 For the foregoing reasons, Sagasta's convictions and sentences are affirmed.