State v. Jefferson, 4888
| Decision Date | 25 June 1980 |
| Docket Number | No. 4888,4888 |
| Citation | 615 P.2d 638,126 Ariz. 341 |
| Parties | STATE of Arizona, Appellee, v. Wayne Eric JEFFERSON, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., Phoenix by William J. Schafer, III, David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.
Martin & Feldhacker by William H. Feldhacker, Phoenix, for appellant.
This is an appeal from an order revoking the appellant's probation and a further order directing that he be incarcerated in the Arizona State Prison for a period of not less than five nor more than six years. Jurisdiction was accepted pursuant to the authority of Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S. Reversed.
On March 12, 1975, appellant was convicted of assault with a deadly weapon. Thereafter, on April 23, 1975, sentence was suspended and appellant was placed on probation for five years. On November 29, 1978, a petition to revoke appellant's probation was filed in the Maricopa County Superior Court. The petition alleged Jefferson had committed aggravated assault with a deadly weapon and had possessed or controlled a firearm without the permission of his probation officer. After a revocation hearing, the court below found that the State had shown by a preponderance of the evidence that appellant had committed the probation violations alleged in the petition to revoke.
At Jefferson's hearing on the violation of his probation, Robert McDonald and Adison White testified that appellant had a hand gun and had fired two shots at McDonald in a shopping center. Jefferson testified that it was McDonald who had a gun and fired twice at him. Jefferson ran from the scene of the shooting but returned later. He was arrested and at that time asked for what is called by his counsel a "powder burn test" to corroborate his story. Jefferson also called a witness who stated that she saw McDonald with a gun, saw him point it and heard a shot fired.
Appellant appeals on the ground that he was deprived of due process of law when police failed to afford him the opportunity to obtain a "powder burn" test. He asserts that the test would have demonstrated his innocence of the offense charged, and he argues that he had a constitutional right to be given a "powder burn test." His contention is that the failure of the police to make the test and make the evidence available to him amounted to suppression of exculpatory evidence and denied him a fair hearing in violation of the Fourteenth Amendment to the Constitution of the United States.
Appellant argues from the decision in Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App.1977), that an accused has the right to have independent tests and that the interference with the right to obtain evidence, lost through the passage of time, is analogous to the suppression of evidence and violative of due process. Appellant, however, misapplies the holding in Cada. There, Cada was arrested at about 12:40 a. m. on the charge of driving a motor vehicle while under the influence of liquor. Even though he had on his person cash funds which exceeded the bail schedule of the Phoenix Municipal Court for the offense charged, his request for bail to secure his release so that an independent blood test could be administered was ignored. Cada is authority for the proposition that it is a denial of due process to deprive one of the right to obtain at his own expense a scientific test for the purpose of establishing his innocence.
We note that in Cada the Court of Appeals quoted this language from In re Martin, 58 Cal.2d 509, 24 Cal.Rptr. 833, 374 P.2d 801 (1962):
" * * * (P)olice officers are not required to take the initiative or even to assist in procuring any evidence on behalf of a defendant which is deemed necessary to his defense." Smith v. Cada, supra at 512, 562 P.2d at 392.
We do not base our conclusion on the proposition that police officers do not have any responsibility to assist an accused in exculpation when he is in custody, for there may be circumstances where there is a duty to assist a suspect in exculpation. Rather, we decide the issue on our conclusions in State ex rel. Hyder v. Hughes, 119 Ariz. 261, 580 P.2d 722 (1978), that where there is a loss or destruction of evidence, we will reverse a defendant's conviction if it can be shown (1) bad faith or connivance on the part of the government or (2) that he was prejudiced by the loss of the evidence.
Officer Robert Lewis of the Phoenix police force testified at the revocation hearing:
"Q. Did Mr. Jefferson ask you if you would give him a powder burn test?
A. Yes, he did.
Q. Did you do that?
A. I could not, sir.
Q. How is that normally done, if you know?
A. We take them down to the I. Bureau where they could have that done. It was late at night and they could not do that at that time.
Q. Are they only in operation during regular business hours? Is that the problem?
A. No, sir. Everyone was out of the office.
Q. Does it have to be done within a certain amount of time? In other words, does it have to be done within a specific time after a shooting of a weapon?
A. Yes. I believe so, sir, yes.
Q. Do you know how long that time is?
A. No, sir, I do not."
If we assume that fair dealing compelled the State to give appellant a powder burn test simply at his request, a point we specifically do not decide, still the evidence is uncontradicted that the State could not. More important, however, is the fact that there is no evidence in this record of the nature of a powder burn test, what it could have disclosed, when it should have been taken, and the circumstances which would make it reliable. We do not find bad faith or connivance on the part of the police, nor are we able to say that appellant was prejudiced by the claimed loss of evidence.
The appellant urges that this case must be reversed because of an attempt by defense counsel to withdraw during the course of the revocation hearing. The hearing on the revocation was commenced on January 2, 1979. Two witnesses were called by the prosecution. One was the appellant's probation officer who testified to the terms of appellant's probation, and the second a police officer who testified to an incident at which a gun was discharged. At the request of defendant, the hearing was continued until January 5, 1979. At that time, the following occurred:
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State v. Brooks
...faith and whether the defendant was prejudiced by the loss of the notes. 122 Ariz. at 271-72, 594 P.2d at 525-26. See State v. Jefferson, 126 Ariz. 341, 615 P.2d 638 (1980); State v. Schilleman, 125 Ariz. 294, 609 P.2d 564 (Sup.1980). We find there is no evidence of bad faith on the part of......