State v. Rivera

• Citation: 152 Ariz. 507,733 P.2d 1090
• Decision Date: 04 March 1987
• Docket Number: No. 6673,6673
• Parties: STATE of Arizona, Appellee, v. Aurelio Calderon RIVERA, Appellant.
• Court: Supreme Court of Arizona

Page 1090

733 P.2d 1090

152 Ariz. 507

STATE of Arizona, Appellee, v. Aurelio Calderon RIVERA, Appellant.

No. 6673.

Supreme Court of Arizona, In Banc.

March 4, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Frank P. Leto, Deputy Pima County Public Defender, Tucson, for appellant.

HOLOHAN, Justice.

Defendant, Aurelio Calderon Rivera, was convicted of one count of first degree murder under A.R.S. § 13-1105 and sentenced to life imprisonment without possibility of parole for 25 years. We have jurisdiction over this appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4035.

Defendant raises six issues for review:

I. Did the State's failure to obtain a blood alcohol test from defendant violate defendant's due process right to a fair trial?

II. Did the trial court err by admitting defendant's statement to police?

III. Did the trial court err in precluding expert testimony on defendant's alleged character trait of "panic reaction to stress" and on the effects of voluntary intoxication?

IV. Did the trial court err in admitting allegedly gruesome photographs of the victim and crime scene?

V. Did the trial court err in refusing two of defendant's proffered jury instructions?

VI. Did the trial court err in permitting the State to rebut defendant's assertion that the victim made homosexual advances toward defendant?

Defendant, who had been in the United States for less than three months and spoke no English, was living in South Tucson with Marcello Madrid, a co-worker at a local restaurant. On October 9, 1984, defendant and Madrid went to a bar in Tucson around 4:00 p.m. and drank several pitchers of beer. Madrid left defendant at the bar at about 9:00 p.m.

Defendant stayed at the bar until he was refused service. He then took a 12-pack of beer with him to another bar where he began drinking with the victim and another man. It is unclear how much additional beer the three men consumed before they went to defendant's residence where they continued to drink. According to defendant, after arriving at the house the victim and the unidentified third party accused defendant of being a "fag." Defendant claims that once the third party left, the victim asked defendant if he "would let him do sex." Then the victim exposed himself to defendant and threatened "to screw him by force." Defendant punched the victim and then went outside, picked up a 2 X 4 and returned inside to strike the victim repeatedly with the board. After dragging the body into a detached room which served as his sleeping quarters, defendant returned to the main part of the house to try to clean it up before falling asleep at approximately 4:00 a.m.

Madrid did not return to the residence he shared with defendant until approximately 9:00 a.m. Upon arriving, he found the front door locked and the stereo playing loudly. Looking through the front window, he observed defendant asleep on the couch. Madrid unsuccessfully attempted to arouse defendant by yelling at him, knocking on the window, and then opening the window and tossing several pebbles at him. Finding that the rear door to the house was also locked, Madrid opened the door to the detached room and discovered a body covered with a blanket. He went to a nearby bar, called the police, and returned to the house.

Officer Vizmanos of the South Tucson Police Department, the first officer to arrive, confirmed that the victim was dead. He attempted to arouse defendant by shouting and by knocking on the front door but was unsuccessful. Eventually, after the arrival of three more officers, defendant responded and arose to open the front door.

When the officers identified themselves and asked defendant his name, defendant answered in Spanish. Detective Campa, who is fluent in Spanish, asked defendant what had happened, and defendant started to relate that he had killed a man. Noticing blood on defendant's clothing, Campa advised defendant of his Miranda rights. Defendant acknowledged that he understood his rights and indicated that he would answer Campa's questions. Defendant said that some men had attempted to rape him and that he had killed one of them. When Campa asked defendant if he would go to the police station and make a taped statement, defendant agreed.

Before beginning questioning at the station, Campa again spoke in Spanish to defendant. Defendant assured the officer that he understood his rights and then consented to a search of his residence. After receiving defendant's statement, Campa took defendant to a restroom and asked him to remove his blood-splattered pants.

Detective Corkill obtained written consent from co-resident Madrid before supervising the subsequent search of the residence. The detective found the murder weapon on the top shelf of the closet in the detached bedroom.

I

Defendant asserts that the State violated the rule established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to test his blood alcohol content at the time of his arrest. The defendant contends that the State's failure to conduct the test was tantamount to losing or destroying evidence favorable to the defense. Consequently, defendant claims he is entitled to dismissal of the first degree murder charge. In the alternative, defendant asserts that he was entitled to a Willits instruction. See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). ¹

A defendant's due process right to a fair trial is violated when the State either suppresses or destroys evidence favorable to him and he is prejudiced thereby. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218; Scales v. City Court of Mesa, 122 Ariz. 231, 234, 594 P.2d 97, 100 (1979). We have recently expanded on this rule to find that the State also has a duty "to ensure the preservation of evidence it is aware of where that evidence is obviously material and reasonably within its grasp." State v. Perez, 141 Ariz. 459, 463, 687 P.2d 1214, 1218 (1984) (emphasis added). The action necessary to cure the State's violation of the defendant's right depends upon the prejudice caused to the defendant. In cases where the State has suppressed evidence and the evidence is still available, the defendant's due process right is protected by granting him a new trial. See Brady, supra. In instances where the evidence is no longer available because the State has destroyed the evidence or failed in its duty to preserve the evidence, the defendant's due process right may nonetheless be protected by the court giving a Willits instruction to the jury. See Perez, 141 Ariz. at 464, 687 P.2d at 1219. However, if the State has destroyed evidence and the prejudice caused to the defendant is great or the State acted in bad faith or with connivance, the charges against the defendant must be dropped or his conviction reversed; a Willits instruction is insufficient to cure the violation of the defendant's due process right. See Scales, 122 Ariz. at 234, 594 P.2d at 100; State v. Hannah, 120 Ariz. 1, 2, 583 P.2d 888, 889 (1978).

We hold that in this case, defendant's due process right to a fair trial has not been violated because the State did not suppress, destroy or fail to preserve evidence. Rather, the State chose not to gather evidence of defendant's blood alcohol level to prove its case.

Generally, the State does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence. See Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986); Perez, 141 Ariz. at 463, 687 P.2d at 1218. We have recently discussed this rule in the limited context of DUI ("driving under the influence") cases. In such cases where specialized blood alcohol tests have been employed by the State, we have required that the police preserve the ampoule or sample of the defendant's breath for testing by the defense. See, e.g., Scales, 122 Ariz. at 234, 594 P.2d at 100; Baca v. Smith, 124 Ariz. 353, 356, 604 P.2d 617, 620 (1979). Blood alcohol evidence is frequently a dispositive element in the State's proof of a DUI charge because under the DUI statute, a blood alcohol level of 0.10 percent or more raises a presumption that the defendant was under the influence. A.R.S. § 28-692(E)(3). Our rulings in Scales, Baca and Montano simply provide safeguards for the defendant to insure the accuracy of the often critical blood alcohol evidence offered by the State at trial.

The State has no corresponding duty, however, to gather blood alcohol evidence for the defense to use in corroborating the defense's own evidence. Even in DUI cases we have ruled that the State has no duty to perform an initial blood alcohol test. Montano, 149 Ariz. at 387, 719 P.2d at 273 (State has "the power to forgo altogether any alcohol testing of DWI suspects"). Likewise, the State has no duty to perform an initial blood alcohol test in a murder case. Evidence of a defendant's blood alcohol level is not used by the State to prove a murder case because intoxication is not an element of the crime of first degree murder. Evidence of intoxication may be introduced by a defendant to try to convince the jury that he lacked the necessary culpable mental state. See A.R.S. § 13-503. ² In the instant case, the trial court properly instructed the jury on the role that evidence of intoxication played in determining defendant's culpable mental state and the State made no attempt to interfere with defendant's introduction of evidence showing defendant was voluntarily intoxicated at the time of the murder.

At most, a blood alcohol test would have corroborated evidence submitted by the defense and uncontested by the State that defendant was voluntarily intoxicated at the time of the murder. ³ It is true that there are formulas that can be used to extrapolate a person's blood alcohol level at some...