Opinion
2 CA-CR 2022-0153
09-19-2023
The State of Arizona, Appellee, v. Carlos Alberto Correa-Ortiz, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Celeste Kinney, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Panuco, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100193 The Honorable Daniel A. Washburn, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Celeste Kinney, Assistant Attorney General, Phoenix Counsel for Appellee
Rosemary Gordon Panuco, Tucson Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge O'Neil concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Carlos Correa-Ortiz appeals from his conviction and sentence for second-degree murder. He argues the trial court erred in denying his request for a jury instruction pursuant to State v. Willits, 96 Ariz. 184 (1964). For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdict. State v. O'Laughlin, 239 Ariz. 398, ¶ 2 (App. 2016). In January 2021, Correa-Ortiz shot and killed his roommate, J.H. According to Correa-Ortiz, on the evening of the shooting, J.H. had offered him "a dab"-concentrated marijuana extract wax-to smoke. The wax was a different variety than Correa-Ortiz had used before. After Correa-Ortiz smoked it, he participated in a video call with his family. Sometime during that call, Correa-Ortiz abruptly threw his phone, picked up a gun, and shot J.H. three times in the chest, seemingly without provocation.
¶3 Correa-Ortiz testified at trial. He told the jury that after he took the dab, "something really weird happened" and "something took over" that "took [him] out completely," such that he was "just watching" his body take action. He testified that he had "no ability or awareness of comprehending" and that he had not intended to shoot J.H. Not long after the shooting, he regained control of himself, found himself outside "with a gun in [his hand]," got scared, and threw the gun aside. He ran inside to J.H. and tried to assist J.H.'s brother, who was administering CPR with the help of a 9-1-1 operator. During that call, Correa-Ortiz told the 9-1-1 operator that he had shot J.H. Likewise, during the approximately two-hour interview after the shooting, Correa-Ortiz told officers that he had consumed alcohol and had a "dab" of marijuana and, afterward, "a feeling came over him that somebody was following him" and he shot J.H.
The brother also lived with J.H. and Correa-Ortiz.
¶4 Upon arriving at the scene, a Pinal County Sheriff's Office deputy found Correa-Ortiz attempting to administer CPR to J.H. He detained Correa-Ortiz, who passively resisted arrest. The deputy then attempted to administer first aid to J.H., but he died at the scene. Officers then collected evidence.
¶5 Officers did not collect the marijuana wax, citing at trial their uncertainty as to whether the wax was an illegal substance at the time of the shooting. However, about eight hours after the 9-1-1 call, they did collect a sample of Correa-Ortiz's blood. Testing confirmed the presence of active and metabolized THC. The testing also ruled out "hundreds of different drugs" through a broad-spectrum screen.
¶6 At trial, a forensic scientist testified that marijuana wax is a "very concentrated THC sample" and that high doses of THC can cause "paranoia reactions or hallucinogenic effects." He also testified that the effects of THC can vary from user to user and from use to use, such that the same person might have varied responses to the same dose on different occasions. And, he explained that THC is eliminated from a body fairly quickly.
A detective testified at trial that marijuana extract wax can have a THC concentration of up to eighty percent, as compared to the ten-percent concentration generally found in a raw marijuana flower.
¶7 Before and during trial, Correa-Ortiz requested a Willits instruction. He argued the instruction was warranted because (1) the state never collected the wax or tested it for additional, non-THC substances, and (2) as his blood was not collected for eight hours after the shooting, the blood test would have failed to detect any substances that had already left his system by the time of the blood draw. The trial court denied the request.
¶8 After a seven-day trial, a jury found Correa-Ortiz guilty of second-degree murder. The trial court imposed a slightly aggravated twenty-year prison term. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶9 On appeal, Correa-Ortiz contends that because there is "no reason or explanation" for why he would have shot J.H. given the lack of conflict between them, the only possible explanation is that "there must have been something in the marijuana extract wax" that altered his mental state. Because he never disputed he shot and killed J.H., Correa-Ortiz's sole defense was that he did not knowingly do so. See A.R.S. § 13-1104(A) (second-degree murder requires intentional, knowing, or reckless conduct causing death). He argues the state's failure to collect the wax and the eight-hour delay in sampling his blood deprived him of evidence that might have supported this defense theory of involuntary intoxication. Accordingly, he contends the trial court prejudicially erred by denying his request for a Willits instruction.
¶10 A Willits instruction informs the jury that it may draw an adverse inference against the state if the state loses or destroys evidence that would have been useful to the defense. State v. Glissendorf, 235 Ariz. 147, ¶ 7 (2014). However, a defendant is not entitled to a Willits instruction every time evidence has been lost or left unpreserved. See, e.g., State v. Hernandez, 250 Ariz. 28, ¶¶ 1, 19-23 (2020) (no instruction warranted regarding unpreserved fingerprint and DNA evidence); State v. Perez, 141 Ariz. 459, 464 (1984) (affirming trial court's refusal to provide instruction regarding lost videotape of robbery). Rather, the defendant must demonstrate both that (1) the state failed to "preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused" and (2) he or she was prejudiced by that failure. Hernandez, 250 Ariz. 28, ¶¶ 1, 10; see also Glissendorf, 235 Ariz. 147, ¶ 8.
¶11 We review a trial court's denial of a requested Willits instruction for abuse of discretion. See State v. Carlson, 237 Ariz. 381, ¶ 38 (2015). We find no such abuse here.
As the state notes, the trial court denied Correa-Ortiz's request for a jury instruction on involuntary intoxication. Correa-Ortiz has not reasserted this argument on appeal, and we therefore do not address whether the unpreserved evidence may have expressly supported an involuntary intoxication inference. See State v. Carver, 160 Ariz. 167, 175 (1989) (failure to argue claim constitutes abandonment and waiver of claim).
¶12 First, Correa-Ortiz has not demonstrated that investigators had an affirmative duty to preserve evidence relating to his intoxication when the relevant crime was a homicide and the obviously material facts of that homicide were essentially known by the time deputies apprehended him. The state "'does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence,' nor does it have a duty to gather evidence for a defendant to use in establishing a defense." Hernandez, 250 Ariz. 28, ¶ 11 (quoting State v. Rivera, 152 Ariz. 507, 511 (1987)). It must only "act in a timely manner to ensure the preservation of evidence it is aware of where that evidence is obviously material and reasonably within its grasp." Id. (quoting Perez, 141 Ariz. at 463). "[E]vidence is 'obviously material' when, at the time the state encounters the evidence during its investigation, the state relies on the evidence or knows the defendant will use the evidence for his or her defense." Id. ¶¶ 16, 19 (concluding fingerprint and DNA evidence not obviously material in investigation where defendant was identified by eyewitness officer and investigators had no reason to anticipate mistaken identity defense).
¶13 By the time law enforcement arrived on scene, Correa-Ortiz had already acknowledged to a 9-1-1 operator that he had shot J.H., and that information had been passed to responding deputies. There appears to have been no dispute about what had happened to cause J.H.'s death, even if nobody knew exactly why those events had occurred. As the officers testified, the presence of marijuana wax at the scene indicated behavior that was, to their knowledge, possibly legal. In short, Correa-Ortiz has identified no evidence suggesting that officers believed the marijuana wax was relevant to their investigation or that they ought to have been attuned to a potential defense supportable by the wax. See Hernandez, 250 Ariz. 28, ¶ 16.
¶14 Arguably, the absence of any evidence of motive, coupled with the evidence of apparent drug use, should have cued the officers that Correa-Ortiz's intoxication might become a relevant question in determining the species of homicide that had occurred. But, after interviewing Correa-Ortiz, the officers did secure a blood sample from him. As to the eight-hour delay in the blood sample collection, officers had no reason to believe that Correa-Ortiz might assert an intoxication defense until, at a minimum, he stated during his interview that he fired his gun because he suddenly believed "somebody was following him." See Hernandez, 250 Ariz. 28, ¶¶ 14-16; see also State v. Fuentes, 247 Ariz. 516, ¶¶ 32-33 (App. 2019) (unpreserved evidence not obviously material when officers, who had no reason to believe at time of investigation that defendant would argue self-defense, failed to collect evidence potentially supporting self-defense). And, nothing in the record suggests that officers had reason to secure the blood sample more urgently.
¶15 Assuming, arguendo, that the officers should have recognized the materiality of the THC wax and preserved it, Correa-Ortiz has failed to establish that the unpreserved evidence would have had a tendency to exonerate him. Correa-Ortiz must "do more than simply speculate about how the evidence might have been helpful." Glissendorf, 235 Ariz. 147, ¶ 9. Rather, he must demonstrate "a real likelihood that the evidence would have had evidentiary value." Id. Correa-Ortiz suggests that the wax might have contained some "unknown substance," which could have been identified either by testing the wax or by collecting and testing a more immediate blood sample. This argument amounts to speculation, particularly in light of contradictory evidence the state presented at trial. See Hernandez, 250 Ariz. 28, ¶ 20.
¶16 Specifically, the state's forensic scientist testified that the broad-spectrum screening conducted on Correa-Ortiz's blood tested for "a majority of the impairing drugs," including hundreds of known narcotic and hallucinogenic substances. Later, a detective reiterated that the broad-spectrum blood test "contains most everything that we're going to run into in the United States," including "the hallucinogens that are . . . known to be used by humans." Yet, the only substance detected in the blood screening was THC.
¶17 Furthermore, the forensic scientist testified that high doses of THC can cause "paranoia reactions or hallucinogenic effects." And, the examiner testified that marijuana wax is a "very concentrated THC sample." Correa-Ortiz does not dispute that he consumed the THC voluntarily, and voluntary intoxication is not a defense to the crime of second-degree murder. See A.R.S. § 13-503.
¶18 Thus, although an unusual reaction to THC could have readily explained Correa-Ortiz's behavior, Correa-Ortiz asks us to instead speculate that the wax-which came from a marijuana dispensary and was labeled-was laced with some unknown substance that either evaded the wide net of the broad-spectrum screening or would have fully dissipated from his system even faster than THC. Nothing in the record supports this speculation. Correa-Ortiz has therefore not demonstrated "a real likelihood" that different actions by the investigators would have preserved evidence tending to exonerate him. Glissendorf, 235 Ariz. 147, ¶ 9.
¶19 Finally, we find no prejudice to Correa-Ortiz due to the trial court's denial of the Willits instruction. See Hernandez, 250 Ariz. 28, ¶ 22 (no prejudice where defendant "argued the essence of" Willits instruction to jury during summation). Correa-Ortiz questioned law enforcement about its failure to collect the wax. He essentially raised the inference that because it was not collected, "we'll never know if there was something else in it, if it was laced." At least one juror submitted a question asking specifically whether the blood test could have revealed "other drugs in his system" that may have been in the wax. And, Correa-Ortiz himself took the stand, testifying that the wax was not his and was a variety that he had not used before. He also cross-examined the state's witnesses with regard to the time lapse between the incident and the blood collection.
¶20 Thus, Correa-Ortiz was able to raise his "laced wax" defense during the trial. Nothing prevented Correa-Ortiz from further supporting his defense theory. He could have offered an expert to identify any specific substances that may have provoked his actions and which might have fully disappeared from blood collected for broad-spectrum screening eight hours after consumption. Cf. State v. Riley, 248 Ariz. 154, ¶¶ 53-54 (2020) (prosecutor may properly comment on defendant's failure to present exculpatory evidence to substantiate defense theory). Although the jury was not specifically instructed that it could draw an adverse inference from law enforcement's failure to collect the wax or to collect the blood more quickly, the record reflects that Correa-Ortiz was able to develop his theory that the wax may have been laced with some undetected substance.
Disposition
¶21 For the foregoing reasons, we affirm Correa-Ortiz's conviction and sentence.