State v. Youngblood, HERRERA-RODRIGUE

• Court: Supreme Court of Arizona
• Citation: 173 Ariz. 502,844 P.2d 1152
• Docket Number: CR-89-0353-PR,A,Nos. CR-90-0053-P,HERRERA-RODRIGUE,s. CR-90-0053-P
• Parties: , 61 USLW 2467 STATE of Arizona, Appellee/Cross-Appellant, v. Larry YOUNGBLOOD, Appellant/Cross-Appellee, STATE of Arizona, Appellant, v. Joeppellee.
• Decision Date: 07 January 1993

Page 1152

844 P.2d 1152

173 Ariz. 502, 61 USLW 2467

STATE of Arizona, Appellee/Cross-Appellant, v. Larry YOUNGBLOOD, Appellant/Cross-Appellee, STATE of Arizona, Appellant, v. Joe HERRERA-RODRIGUEZ, Appellee.

Nos. CR-90-0053-PR, CR-89-0353-PR.

Supreme Court of Arizona, In Banc.

Jan. 7, 1993.

[173 Ariz. 503] Stephen D. Neely, Pima County Atty. by Catherine M. Shovlin, Deputy County Atty., John R. Gustafson, Sp. Deputy County Atty., Tucson, for state of Ariz. in State v. Youngblood.

Daniel F. Davis, Tucson, for Youngblood.

Grant Woods, Atty. Gen. by Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for amicus curiae Arizona Atty. Gen., in State v. Youngblood.

Richard M. Romley, Maricopa County Atty. by H. Allen Gerhardt, Deputy County Atty. and John R. Gustafson, Deputy Pima County Atty., Phoenix, for state of Ariz. in State v. Herrera-Rodriguez.

Dean W. Trebesch, Maricopa County Public Defender by Paul Klapper, Deputy Public Defender, Phoenix, for Herrera-Rodriguez.

Grant Woods, Atty. Gen. by Joseph T. Maziarz, Asst. Atty. Gen., and Jessica Gifford Funkhouser, Former Chief Counsel, Crim. Div., Phoenix, for amicus curiae Arizona Atty. Gen. in State v. Herrera-Rodriguez.

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

OPINION

MARTONE, Justice.

These consolidated cases require us to decide whether, absent bad faith on the part of the state, failure to preserve evidence which might be exculpatory constitutes a denial of due process of law under Article 2, § 4 of the Arizona Constitution. We hold that it does not.

I. PROCEDURAL BACKGROUND AND FACTS

A. Youngblood

Youngblood was convicted of child molestation, sexual assault and kidnapping. The court of appeals reversed and ordered dismissal of all charges against Youngblood on the ground that the state violated his federal due process rights by failing properly to preserve semen samples from the victim's body and clothing. State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (App.1986). This court denied review. The United States Supreme Court granted the state's petition for writ of certiorari, reversed the court of appeals, and held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988).

The police collected samples, did not refrigerate the clothing and did not immediately perform tests on the samples taken from the victim's body. They did determine that sexual contact had occurred. What was collected was available to the defendant at trial and the defendant chose not to perform tests of his own. There was no suggestion of bad faith on the part of the police. On remand, and after having gone through the entire state and federal system once, the defendant for the first time raised a state law claim under the Arizona due process clause. Having been rebuffed on its resolution of the federal issue, the court of appeals held that Arizona due process was violated, reversed his convictions, and dismissed all charges against him. State v. Youngblood, 164 Ariz. 61, 790 P.2d 759 (App.1989). We granted the state's petition for review.

B. Herrera-Rodriguez

Herrera-Rodriguez was charged with sexual assault, kidnapping, armed burglary and aggravated assault. After a mistrial, the trial court granted a defense motion to dismiss because the state failed to preserve a cotton swab sample from a rape kit. The motion was based upon federal and Arizona due process. Once again, there was no evidence of bad faith. The police delivered the swab to a hospital for analysis. Hospital personnel failed to air dry the swab and, as a result, tests were not conclusive. Relying upon Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the court of appeals reversed the trial court's order of dismissal and ordered that the charges against the defendant be reinstated. State v. Herrera-Rodriguez, 164 Ariz. 49, 790 P.2d 747 (App.1989). We granted the defendant's petition for review.

II. DISCUSSION

A. Preclusion

Herrera-Rodriguez raised his state due process claim in the trial court. In contrast, Youngblood did not assert his state due process claim until he had been through the trial court, the court of appeals, this court, and the United States Supreme Court. He first raised his state due process claim on remand to the court of appeals. The court of appeals should have rejected his claim as untimely. One bite at the apple is enough. One should not be allowed to hold back a claim or issue and then use it only if one needs it. All claims or issues arising out of the same nucleus of operative facts must be presented at the same time, or else they are precluded. At some point litigation must come to an end. Lack of finality is one of the reasons for the popular dissatisfaction with our legal system. Piecemeal litigation is an evil to be avoided. ¹

Even on direct appeal, we generally refuse to consider claims that are not raised below. "Absent a finding of fundamental error, failure to raise an issue at trial ... waives the right to raise the issue on appeal." State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). ² With even greater force, preclusion should occur on remand after direct appellate review has been exhausted. Paramount Pictures, Inc. v. Holmes, 58 Ariz. 1, 4, 117 P.2d 90, 91 (1942) ("appeals from a judgment may not be taken piecemeal, and ... any question which could and should have been raised on the first appeal may not be presented to nor considered by this court on the second appeal."); State v. Rhodes, 112 Ariz. 500, 506-507, 543 P.2d 1129, 1135-36 (1975). As we stated in Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086, cert. denied, 484 U.S. 874, 108 S.Ct. 212, 98 L.Ed.2d 177 (1987), the "[e]fficient and orderly administration [of justice] requires some point in time at which it is too late to raise new issues on appeal." Thus, if we were free to do so, we would hold that Youngblood is precluded from relying upon the Arizona due process clause for having failed to raise that claim at his trial, on direct appeal to the Arizona Court of Appeals, and on review by certiorari by the United States Supreme Court. ³ See generally Yee v. Escondido, 503 U.S. 519, ----, 112 S.Ct. 1522, 1531, 118 L.Ed.2d 153 (1992). ⁴ But we are not so free. Although the state petitioned us to review the preclusion issue, the court, as then constituted, denied it. A majority of this court declines to reach an issue upon which review has been denied. ⁵ We turn next to the merits.

B. The Merits

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held "that the suppression by the prosecution of [material] evidence favorable to an accused upon request violates [federal] due process ... irrespective of the good faith or bad faith of the prosecution." This makes sense. Exculpatory evidence matters whether the police exercise good faith or bad faith in failing to produce it. The defendant is harmed in fact. The defendant is prejudiced by definition because the unproduced evidence is plainly exculpatory. His trial is flawed. He gets a new trial at which the evidence is available, not a dismissal.

In stark contrast to Brady, the unpreserved evidence in these cases is neither plainly exculpatory nor inculpatory. By definition, not having been preserved, we will never know. Under these circumstances, one can only say that the evidence might have been exculpatory, or the evidence might have been inculpatory. More accurately, one could only say that the unpreserved evidence could have been subjected to tests, the results of which might have been exculpatory or inculpatory. Thus, there is no showing of prejudice in fact. In contrast to the dissent's statement that this case is about prejudice, all that can be said is that the defendant might have been prejudiced. Speculation is not the stuff out of which constitutional error is made.

In Arizona v. Youngblood the United States Supreme Court held that for this class of evidence, the good or bad faith of the state is relevant because of an inference that can be drawn from the bad faith of the police. A conscious, intentional or malicious failure to preserve evidence which could be tested suggests "that the evidence could form a basis for exonerating the defendant." 488 U.S. at 58, 109 S.Ct. at 337. Good faith or bad faith does not matter in a Brady setting because by definition Brady materials are plainly exculpatory and no inference is required.

The defendants argue that in contrast to federal due process, Arizona due process requires us to equate nonexistent evidence which might have been exculpatory with existing evidence which is plainly exculpatory. It goes without saying that just as the United States Supreme Court is the final arbiter of federal constitutional issues, this court is the final arbiter of Arizona constitutional issues.

The defendants' argument builds upon this court's peculiar driving under the influence jurisprudence. In Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), this court, by the slimmest of margins, held that Arizona due process requires the police to inform a DUI suspect of his right to an independent alcohol test even if the police choose not to test the suspect. Montano argued that "the unique evidentiary circumstances attendant to DUI arrests justify a narrow exception" to the rule that "the state normally has no obligation to aid a suspect in gathering potentially exculpatory evidence." Id. at 389, 719 P.2d at 275. ⁶ Driving under the influence cases are arguably unique for a variety of reasons. The evidence is in the defendant's own body. Usually the defendant is in custody and the state has the right to take a breath or blood...