Court of Appeals of Arizona, First Division, Department B
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County Cause No. CR2010-149647-001 The Honorable Robert L. Gottsfield, Judge (Retired)
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant.
PATRICIA A. OROZCO, Judge.
¶1 Robert Steven Curtis appeals his conviction and sentence for second-degree murder. He contends the trial court abused its discretion in denying his motion to dismiss for failure to preserve exculpatory evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Curtis was indicted for first-degree murder for shooting and killing the victim and first-degree burglary for entering the victim's motor home with the intent to commit a felony.
¶3 Before trial, Curtis moved to dismiss the charges. He alleged that the police exercised bad faith by failing to measure, weigh, and preserve the column fan that he claimed the victim threw at him when he entered the motor home. He argued that the police should have preserved the fan in light of its "obvious" value as both "material exculpatory evidence" and "potentially useful evidence" to show that his conduct was justified.
¶4 After an evidentiary hearing, the court found that the police had not acted in bad faith in failing to preserve the fan and Curtis had not suffered prejudice because there were photographs of the fan. It also found no due process violation and denied the motion. The court, however, granted Curtis's request for a Willitsinstruction to allow the jury to infer from the State's failure to preserve the evidence that the evidence would have been unfavorable to the State.
¶5 Although Curtis testified that he shot the victim in self-defense, the jury convicted him of second-degree murder. The trial court sentenced Curtis to a mitigated term of ten years in prison and designated the sentence "clearly excessive" pursuant to Arizona Revised Statutes (A.R.S.) section 13-603.L (2010).
¶6 Curtis timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010).
¶7 Curtis argues that the court abused its discretion in denying his motion to dismiss. In reviewing the ruling on the pretrial motion, we limit our review to the evidence admitted at the evidentiary hearing. See State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996) (stating that review of a denial of a motion to suppress is restricted "to consideration of the facts the trial court heard at the suppression hearing"). We review the ruling for ...