Opinion
1 CA-CR 10-0556
02-07-2012
STATE OF ARIZONA, Appellee, v. GARY VASKO, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Criss Candelaria Law Office P.C. By Criss E. Candelaria Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court of Navajo County
Cause No. S0900CR20090863
The Honorable John N. Lamb, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Robert A. Walsh, Assistant Attorney General
Attorneys for Appellee
Phoenix
Criss Candelaria Law Office P.C.
By Criss E. Candelaria
Attorney for Appellant
Pinetop
THOMPSON, Judge
¶1 Gary Vasko appeals his convictions for conspiracy to manufacture a dangerous drug (methamphetamine); possession of equipment or chemicals for the purpose of manufacturing a dangerous drug (methamphetamine); and manufacturing a dangerous drug (methamphetamine), each a class 2 felony. Vasko raises two issues on appeals with respect to the trial court's failure to give a Willits instruction. For reasons that follow, we affirm.
BACKGROUND
¶2 Vasko invited Thomas Makinson and his wife, Michaela Tschirhart, to move onto his property with him. While the three were residing together, each purchased quantities of cold medicine tablets containing pseudo-ephedrine, which can be used to manufacture methamphetamine. Based on information from the pharmacies where the purchases were made and the discovery of items containing methamphetamine residue in trash receptacles outside Vasko's residence, the police obtained a search warrant to search Vasko's property for a clandestine methamphetamine laboratory. During the search, the police discovered a box in the rafters of the garage that contained plastic and glass containers of chemicals as well as various other equipment and materials that together included everything necessary to manufacture methamphetamine.
¶3 Vasko was indicted and stood trial on the charges listed above. Makinson and Tschirhart were charged with the same offenses, but they entered into plea agreements and testified against Vasko. Specifically, Makinson and Tschirhart testified that Vasko agreed to allow them to move onto his property in return for Makinson attempting to manufacture methamphetamine for their collective personal use and to sell if large enough quantities were produced. The two further testified that Makinson made repeated attempts to manufacture methamphetamine during the time they resided with Vasko and that Makinson was successful on eight or nine occasions, with the product being shared with Vasko. They additionally testified that Vasko was present during a number of these attempts and urged Makinson to hurry because he wanted to consume the finished product. Although neither claimed Vasko was involved in the actual "cooking" of the methamphetamine, they testified he did render assistance to the effort by driving them to the pharmacies where the cold tablets were purchased and purchasing tablets himself on two occasions; grinding the cold tablets for use in the manufacturing process; purchasing muriatic acid and match books for use in the manufacturing process; and occasionally washing the glassware used in the manufacturing process.
¶4 At the trial's conclusion, the jury found Vasko guilty on all three counts as charged. After sentencing, Vasko timely appealed.
DISCUSSION
¶5 Prior to trial, Vasko filed a request for a Willits instruction based on the failure by the police to preserve the various containers of chemicals found during the search of his property. A Willits instruction tells the jurors they may draw an inference from the destruction of material evidence that the lost or destroyed evidence would be unfavorable to the party that lost or destroyed the evidence. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). Vasko contends he was denied due process by the trial court's failure to consider and rule on this request.
¶6 Contrary to Vasko's contention, the trial court did consider and rule on his pretrial request. In a minute entry order denying a separate motion to dismiss filed by Vasko, the trial court stated that the request for a Willits instruction would be addressed when the jury instructions are settled at trial. In other words, the trial court ruled that the pretrial request was premature.
¶7 When the final instructions were settled at trial, Vasko did not pursue his request for a Willits instruction and no such instruction was given to the jury. Although there was no explicit ruling by the trial court at trial on the earlier request for the instruction, by not giving the instruction, the trial court effectively denied the request. See State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993) ("A motion that is not ruled on is deemed denied by operation of law.") Given that jury instructions are necessarily dependent on the evidence presented at trial, we find no abuse of discretion or denial of due process by the trial court in declining to rule on the request for a Willits instruction prior to trial.
¶8 Vasko additionally argues that the trial court erred by failing to give a Willits instruction at trial. A Willits instruction may be appropriate where the State loses or destroys evidence that could potentially help the defendant. State v. Davis, 205 Ariz. 174, 180, ¶ 35, 68 P.3d 127, 133 (App. 2002). Vasko claims he was entitled to a Willits instruction because the destruction of the containers of chemicals deprived him of "the opportunity to show he did not handle the containers and, possibly, that the quantities therein were insufficient to manufacture methamphetamine." By failing to object at trial to the lack of a Willits instruction, however, Vasko waived appellate review of this issue absent fundamental error. State v. Valenzuela, 194 Ariz. 404, 405, ¶ 2, 984 P.2d 12, 13 (1999); Ariz. R. Crim. P. 21.3(c) ("No party may assign as error on appeal the court's giving or failing to give any instruction . . . unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for his or her objection.").
¶9 To prevail under this more restrictive standard of review, a defendant must establish both that fundamental error occurred and prejudice resulted. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. at ¶ 19 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Such error is extremely rare and "usually, if not always, involves the loss of federal constitutional rights." State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977)). The failure to give a Willits instruction simply does not rise to the level of fundamental error. See State v. Perez, 141 Ariz. 459, 464 n.6, 687 P.2d 1214, 1219 n.6 (1984) (noting that absence of Willits instruction does "not preclude defense counsel from arguing the substance of that instruction to the jury").
¶10 Moreover, even if this claim of error had not been waived by the failure to preserve it below, Vasko would not be entitled to relief. A Willits instruction is not required when the defendant fails to establish that the evidence at issue would have some tendency to exonerate him. State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). Under the State's theory that Vasko was guilty as an accomplice and co-conspirator, it would not have been surprising if Vasko's fingerprints were not found on the containers of chemicals. The testimony by Makinson and Tschirhart was that Vasko did not participate in the actual cooking of the methamphetamine. Indeed, according to these witnesses, Vasko's only handling of lab related items consisted of occasionally washing them, which would have eliminated rather than leave fingerprints. Under these circumstances, the absence of Vasko's fingerprints on the containers would not have any tendency to exonerate him. See State v. Tucker, 157 Ariz. 433, 443, 759 P.2d 579, 589 (1988) (holding absence of fingerprints on gun would not have excluded defendant from having handled the gun and committing the crime); State v. Geotis, 187 Ariz. 521, 525, 930 P.2d 1324, 1328 (App. 1996) (holding absence of fingerprints on currency would not have tended to prove defendant's innocence); State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (App. 1989) (holding proof of absence of the defendant's prints on drug packet would not have materially aided his defense).
¶11 As for the contention that the destruction of the containers of chemicals prevented him from possibly showing that the amounts were insufficient to manufacture methamphetamine, Vasko presents nothing to support this supposition. Vasko testified that he was never aware of the lab equipment or chemicals on his property and therefore lacks any knowledge regarding them. Mere speculation as to what the destroyed evidence might be able to show is insufficient to support a Willits instruction. See State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988) (holding no error in refusing Willits instruction where nothing but speculation existed to suggest number on destroyed piece of paper was not defendant's license plate number); State v. Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996) (holding defendant not entitled to Willits instruction when claim that lost or destroyed evidence is exculpatory is "entirely speculative"). On this record, there was no error, fundamental or otherwise, by the trial court in not giving a Willits instruction.
CONCLUSION
¶12 For the foregoing reasons, we affirm the convictions and sentences.
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JON W. THOMPSON, Presiding Judge
CONCURRING:
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MAURICE PORTLEY, Judge
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JOHN C. GEMMILL, Judge
State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).