from the Superior Court in Pima County No. CR20161916001 The
Honorable Michael Butler, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Michelle Hogan, Assistant Attorney General,
Phoenix Counsel for Appellee
Feinman, Pima County Public Defender By Michael J. Miller and
David J. Euchner, Assistant Public Defenders, Tucson Counsel
Presiding Judge Staring authored the opinion of the Court, in
which Chief Judge Eckerstrom concurred and Judge Brearcliffe
concurred in part and dissented in part.
STARING, PRESIDING JUDGE
In this appeal from Pablo Isaac Hernandez's conviction
for unlawful flight from a law enforcement vehicle, we
conclude the trial court erred by not giving an
adverse-inference jury instruction based on State v.
Willits, 96 Ariz. 184, 191 (1964). We thus reverse
Hernandez's conviction and remand for a new trial.
and Procedural History
We view the facts in the light most favorable to sustaining
the trial court's rulings and affirming Hernandez's
conviction. See State v. Gay, 214 Ariz. 214,
¶¶ 2, 4 (App. 2007). On March 31, 2016, Pima County
Sheriff's Deputy Michael Turner was driving a marked unit
when a car ran a stop sign, entered his lane, and caused him
to swerve to avoid a collision. While trying to avoid a
collision, Turner "locked eyes" with the driver of
the car for "a second to two seconds." He later
testified the driver's face was "a face that [he]
would never forget."
Turner attempted a traffic stop. The car did not stop,
however, resulting in a pursuit that eventually ended in a
parking lot, where the driver and two other occupants of the
car fled on foot. Turner saw the driver's profile as he
Within three minutes, federal marshals investigating another
matter arrived at the parking lot and showed Turner a
photograph bearing Hernandez's name. Turner identified
him as the driver. Using the computer in his patrol unit,
Turner then pulled up another photograph of Hernandez, and
again identified him as the driver.
Before trial, Hernandez filed a motion to suppress evidence
of Turner's pretrial identification, arguing the
identification procedure was unduly suggestive under
State v. Dessureault, 104 Ariz. 380 (1969), and the
identification, if admitted, would be more prejudicial than
probative under Rule 403, Ariz. R. Evid. He also moved to
preclude Turner from making an identification during trial.
The trial court denied the motions, finding the pretrial
identification reliable. At trial, Turner again identified
Hernandez as the driver.
Also before trial, Hernandez requested a Willits
instruction based on the state's failure to collect DNA
and fingerprint evidence from the car before releasing it to
the registered owner. The trial court denied the motion,
finding no loss or destruction of evidence, and also finding
that, even had such evidence been discovered and preserved,
it would have been "neutral" in terms of its
capacity to exculpate or inculpate Hernandez.
Hernandez was convicted and sentenced to three years'
imprisonment and this appeal followed. We have jurisdiction
under A.R.S. §§ 12-120.21(A)(1), 13-4031, and
Hernandez argues the trial court erred when it failed to
preclude Turner's pretrial and in-court identifications.
We review the court's "rulings on pretrial
identifications for abuse of discretion." State v.
Moore, 222 Ariz. 1, ¶ 17 (2009); see also State
v. Leyvas, 221 Ariz. 181, ¶ 9 (App. 2009) (fairness
and reliability of challenged identification reviewed for
clear abuse of discretion). "We defer to a . . .
court's factual findings that are supported by the record
and are not clearly erroneous." Moore, 222
Ariz. 1, ¶ 17. "The ultimate question of the
constitutionality of a pretrial identification is, however, a
mixed question of law and fact" we review de novo.
Id. And, "[a] trial court ruling on a motion to
suppress is reviewed based solely on the evidence presented
at the suppression hearing." Id.
At the suppression hearing, Turner testified he was
"[v]ery certain" of his identification of Hernandez
as the driver when the marshals showed him the photograph
moments after the pursuit ended. In challenging the
reliability of Turner's identification and asserting the
pretrial identification procedure was unduly suggestive,
Hernandez points to Turner's other statement that,
without that photograph, he "probably would not have
been able to identify him later on down that road." The
trial court, however, questioned Turner about that admission:
The Court: And you mentioned if you hadn't had those
pictures sitting here today, if it's the first time you
saw him again, you don't know if you would be able to
recognize him from the small view that you had when he went
[Turner]: From the incident, yeah, I could recognize him
today, but from the point when- before I made contact with
[Hernandez] that afternoon I would not have been able to
identify [him] as Pablo Hernandez, but the face of the driver
I would be able to identify.
The Due Process Clause of the Fourteenth Amendment "has
been interpreted to require 'that any pretrial
identification procedures [be] conducted in a manner that is
fundamentally fair and secures the suspect's right to a
fair trial.'" State v. Rojo-Valenzuela, 237
Ariz. 448, ¶ 6 (2015) (alteration in
Rojo-Valenzuela) (quoting State v. Lehr,
201 Ariz. 509, ¶ 46 (2002)). "Whether an
identification procedure is so suggestive that it violates a
defendant's due process rights depends on the totality of
the circumstances." Id. A two-part test exists
"for determining the admissibility of identification
testimony," examining first "whether the method or
procedure used was unduly suggestive," and then,
"if unduly suggestive, whether it led to a substantial
likelihood of misidentification, i.e., whether it was
reliable." State v. Goudeau, 239 Ariz. 421,
¶ 132 (2016) (quoting Lehr, 201 Ariz. 509,
In Rojo-Valenzuela, our supreme court held
"[a]n inherently suggestive one-person show-up
identification procedure implicates due process, but such an
identification is nevertheless admissible at trial if it is
sufficiently reliable." 237 Ariz. 448, ¶ 1. Here,
assuming without deciding that federal marshals showing
Turner a single photograph was equivalent to a one-person
show-up procedure and thus inherently suggestive,
must determine whether the resulting identification was
nonetheless reliable. Id. In doing so, we consider
the totality of circumstances including the following
factors: "(1) the witness's opportunity to view or
hear the perpetrator at the time of the offense; (2) the
witness's degree of attention; (3) the accuracy of the
witness's prior description; (4) the level of certainty;
and (5) the length of time between the crime and the
confrontation." Goudeau, 239 Ariz. 421, ¶
132. This list of factors is not exclusive and "a court
may rely on other indicia of reliability as well."
Rojo-Valenzuela, 237 Ariz. 448, ¶ 8.
Turner had the opportunity to view Hernandez's face,
"lock[ing] eyes" with him, as he swerved to avoid a
collision. Although he viewed Hernandez briefly, Turner's
full attention was on Hernandez's face during the near
collision. He also saw Hernandez's profile as he fled on
foot from the car. Within three minutes of Hernandez fleeing,
Turner saw the marshals' photograph and recognized him.
Further, Turner testified he was "[v]ery certain"
in his identification of Hernandez and that he would have
been able to identify him in court without having first
viewed the photograph. Applying the Goudeau factors,
this record adequately supports the trial court's finding
that Turner's identification was sufficiently reliable to
be presented to the jury. See, e.g., State v.
Rojo-Valenzuela, 235 Ariz. 617, ¶ 15 (App. 2014),
aff'd, 237 Ariz. 448 (2015) (witness's
identification reliable when "short duration of
[witness's] observation was more than offset by his
degree of attention"). Thus, the court did not abuse its
discretion in admitting the identification.
argues the trial court erred when it denied his request for a
Willits instruction based on the state's failure
to collect fingerprint and DNA evidence from the car before
releasing it. "We review rulings regarding a
Willits instruction for abuse of discretion."
State v. Glissendorf (Glissendorf II), 235 Ariz.
147, ¶ 7 (2014). "An error of law constitutes an
abuse of discretion." State v. Cheatham, 240
Ariz. 1, ¶ 6 (2016).
In a Willits instruction, the jury is told that if
it finds "that the state . . . allowed material evidence
to be destroyed," or, in some circumstances failed to
preserve evidence, it may "infer that the evidence would
be against the interests of the state." State v.
Hunter, 136 Ariz. 45, 50 (1983) (instruction required
after destruction of evidence) (citing Willits);
see also State v. Perez, 141 Ariz. 459, 464 (1984)
(instruction required where state fails to preserve
"obviously material, and reasonably accessible"
evidence and prejudice shown). In Willits, the state
charged the defendant with attempting to ignite an explosion,
and his defense was that the explosion was an accident. 96
Ariz. at 186-87. The state destroyed the package of
explosives that was recovered at the scene, and Willits
argued it might have aided him in showing the explosion was
accidental. Id. at 187-88. The trial court denied
his request for a jury instruction that read: "If you
find that the plaintiff, the State of Arizona, has destroyed,
caused to be destroyed, or allowed to be destroyed any
evidence whose contents or quality are in issue, you may
infer that the true fact is against their interest."
Id. at 187. Our supreme court, however, concluded
the requested instruction should have been given because
"an inference unfavorable to the prosecution could have
been drawn" and "[t]his in itself could create a
reasonable doubt as to the defendant's guilt."
Id. at 191 (emphasis omitted).
Here, Hernandez's defense at trial was that he was not
the driver of the car, and the state's evidence consisted
solely of Turner identifying Hernandez as the driver. Before
trial, Hernandez requested a Willits instruction
"based upon the State's failure to preserve material
evidence" because "[identification is a major issue
in this case and forensic evidence from inside the [car],
including fingerprint and DNA evidence from the steering
wheel could have shown that [Hernandez] was not driving the
car." The state opposed the motion, arguing "the
[car] had little probative value" and that "the
identity of the driver is not an issue" because Turner
identified Hernandez as the driver. The trial court ruled:
[T]his is not evidence because we don't know what is
there and it's not a loss of evidence and it's not a
destruction of evidence. And whether you are talking about
whether it's exculpatory, it just as easily could be
inculpatory. It's a non-there is no indicator of which
way the evidence goes.
And what I believe, it's not appropriate to present an
inference to the jury that something exculpatory was there
because I don't think it rises to that level. It's a
nullity in my mind. It's a neutral-the evidence could be
against him and could be for him. That being the case
obviously, because you had the opportunity if it's going
to be an identification case-because you have the opportunity
to discuss regarding what they could have done to further
identify him and that's already in the record, ...