Opinion
No. 2 CA-CR 2015-0335
09-13-2016
THE STATE OF ARIZONA, Appellee, v. ZACHARY MERRIMAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Tanja K. Kelley, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201300974
The Honorable Boyd T. Johnson, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelley, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred. HOWARD, Presiding Judge:
¶1 After a ten-day jury trial, Zachary Merriman was convicted of second-degree murder and tampering with physical evidence. The trial court sentenced him to consecutive, aggravated and maximum prison terms totaling 24.5 years, with 791 days of presentence incarceration credit. Merriman now appeals, arguing the court erred in refusing to give an instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). We affirm.
¶2 Merriman asserts the trial court erred by denying his request for a Willits instruction regarding the state's failure to preserve a recording of statements he had made to Casa Grande Police Officer Dallin McClellan at the hospital shortly after killing the victim. He also maintains the state's failure to preserve the recording deprived him of his due process rights. We review the court's denial of a Willits instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, ¶ 7, 329 P.3d 1049, 1052 (2014). However, because Merriman "did not object [at trial] on due process grounds . . . we review only for fundamental error whether denying the Willits instruction deprived [Merriman] of due process." State v. Carlson, 237 Ariz. 381, ¶ 38, 351 P.3d 1079, 1091 (2015).
¶3 Willits "require[s] trial judges to instruct juries that if they find that the state has lost, destroyed[,] or failed to preserve material evidence that might aid the defendant and they find the explanation for the loss inadequate, they may draw an inference that that evidence would have been unfavorable to the state." State v. Youngblood, 173 Ariz. 502, 506, 844 P.2d 1152, 1156 (1993). "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988).
¶4 On the eighth day of trial, Merriman requested a Willits instruction for "spontaneous statements" he had made to McClellan after arriving at the hospital for treatment of injuries he claimed to have suffered during the altercation with the victim. McClellan recorded the statements and transferred them to a compact disc which was later found to be inoperable; and, the recorder he used became damaged. In support of his request for a Willits instruction, Merriman told the trial court the statements "were primarily beneficial" and "primarily consistent with his statements to law enforcement and to his testimony." In turn, the state argued that because McClellan had testified at trial regarding the statements on the recording, Merriman had suffered no prejudice. The state additionally argued there was no evidence the statements "might actually tend to exonerate" Merriman or "that there was material evidence on that recording beyond what Officer McClellan was able to testify to." The court denied the request for a Willits instruction "for the reasons primarily stated by the State."
¶5 At trial, McClellan testified that in the ambulance on the way to the hospital, Merriman spontaneously told him "how he tried to choke out the victim and how he tried to take a knife from [the victim]," and that he had tried to "slit" the victim's throat. At the hospital, Merriman continued to make unsolicited statements to McClellan, which the officer recorded; as McClellan testified, Merriman told him "he had tried to talk himself out of doing it, not really referring to anything but 'it,'" and that the victim had talked about "bringing out blankets and rolling them up." McClellan was able to listen to the recording and either "quote[d] verbatim" or paraphrased some of the statements Merriman had made when he wrote his report, which he prepared on the same day the statements were made. McClellan also believed Merriman had made other statements which were not documented in his report.
¶6 On appeal, Merriman asserts the statements he made at the hospital "tended to exonerate him" because they "presented a self-defense claim," and argues he suffered prejudice by the trial court's refusal to give a Willits instruction. However, McClellan's testimony that Merriman had told him he had tried to talk himself out of "doing it" undermines, rather than supports his claim of self-defense; nor does Merriman argue McClellan's testimony was inaccurate or point to material statements McClellan failed to include at trial. Put simply, Merriman has not shown how the recorded statements would have helped his defense. "A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish that the lost evidence would have had a tendency to exonerate him." State v. Fulminante, 193 Ariz. 485, ¶ 62, 975 P.2d 75, 93 (1999); see also Glissendorf, 235 Ariz. 147, ¶ 10, 329 P.3d at 1052 (defendant entitled to Willits instruction if lost evidence material and potentially useful to defense theory).
¶7 In any event, Merriman's self-defense theory was placed squarely before the jury. Casa Grande Police Officer Bryan Martinez testified that when he had interviewed Merriman at the jail "several hours" after he was taken into custody, Merriman asserted he had killed the victim in self-defense; that interview was "audio and video" recorded. And, Merriman testified that the victim had tried to kill him, causing him to act in self-defense because he believed he was "going to die." In addition, Merriman's wife testified that Merriman had told her that he had killed the victim after being attacked by him.
However, Merriman also acknowledged at trial that he had "lied to law enforcement" about several issues, ostensibly casting doubt on his credibility as a witness. Additionally, his codefendant testified that the victim had not been the aggressor or attacked Merriman; Casa Grande Detective Dave Linehan testified that during a free talk the codefendant had told Linehan that Merriman had stated on the evening of the murder "that he wanted to kill [the victim]"; and, a blood stain expert testified that the evidence did not support Merriman's self-defense theory. --------
¶8 Merriman has not established that the recorded statements tended to exculpate him. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (Willits instruction not required where lost videotape may have either inculpated or exonerated defendant). Therefore, because Merriman did not show he was prejudiced by the absence of the recordings, see State v. Speer, 221 Ariz. 449, ¶ 40, 212 P.3d 787, 795 (2009), the trial court did not abuse its discretion in refusing his request for a Willits instruction.
¶9 We also reject Merriman's argument that the denial of his request for a Willits instruction constituted a due process violation. "[U]nless 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 (1988). Because Merriman did not allege, much less establish, that the state acted in bad faith by failing to preserve the recording, the trial court "did not fundamentally err or violate his due process rights by denying the requested Willits instruction." Carlson, 237 Ariz. 381, ¶ 42, 351 P.3d at 1092.
¶10 Therefore, we affirm Merriman's convictions and sentences.