Opinion
1 CA-CR 23-0030
02-13-2024
STATE OF ARIZONA, Appellee, v. DEREK VAUGHN MINOR, Appellant.
Law Offices of Stephen L. Duncan PLC, Scottsdale By Stephen L. Duncan Counsel for Appellant Arizona Attorney General's Office, Tucson By Karen Moody Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2018-005666-001 The Honorable Ronee Korbin Steiner, Judge
Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Karen Moody
Counsel for Appellee
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Anni Hill Foster and Vice Chief Judge Randall M. Howe joined.
MEMORANDUM DECISION
FURUYA, Judge:
¶1 Derek Minor appeals the superior court's denial of his request for a Willits jury instruction. State v. Willits, 96 Ariz. 184 (1964). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2018, Minor and his wife ("Victim") lived together in an apartment with Victim's mother and daughter. In August of that year, Defendant and Victim got into an argument culminating in Victim and her family packing their things to move out. While Victim was still packing, Minor found her emergency money and took it with him to work. Victim and her family left to stay at a timeshare resort.
¶3 On September 5, 2018, Victim told her daughter she was going to meet Minor at their former apartment to get the cash back. Victim left to meet him around 1:00 p.m. Surveillance footage at the apartment showed her car arrive at 1:02 p.m. Victim's daughter received a text from Victim's phone that evening at 5:00 p.m. but did not have any further communication with her after that, despite many attempts to contact her. The following morning, Victim's daughter called the police. Later that same day, police officers visited the former apartment shared by Victim and Minor. They noted the apartment was secured with no sign of forced entry. When police entered, they found Victim deceased, wrapped in blankets atop a mattress in the upstairs loft area.
¶4 Police searched the apartment and observed blood on the ceiling, walls, mattress, floor, and bathroom. They found a bloodstained screwdriver and a pair of scissors in a bathroom drawer and a machete beneath a sink. Victim's distinctive car was not in the parking lot. Surveillance footage from the apartment complex showed Minor on the premises alone on September 5, 2018, at 5:24 p.m., and then Victim's car leaving the complex at 6:04 p.m. At 6:12 p.m., Victim's car appeared on surveillance footage from the store where Minor worked. The footage showed Minor park the car and enter the store. He resigned his position at this same store at 6:35 p.m.
¶5 Days later, police investigators were informed that Victim's car had been found in Los Angeles, California. Minor was charged with second-degree murder and theft of means of transportation, and an arrest warrant was issued against him. On October 25, 2018, Santa Monica police officers found Minor sleeping in a park. After the officers ascertained his identity and discovered the warrant, they arrested him.
¶6 At trial, the State's forensic scientists testified about the various DNA evidence collected from the apartment. Investigators collected an anal swab from Victim containing DNA from Victim, Minor, and an "insignificant third" contributor and a semen sample from Victim's thigh, which was comprised of a "non-sperm fraction" and a "sperm-fraction." The non-sperm fraction contained DNA consistent with Minor's DNA profile. However, the sperm fraction of the sample was ruined due to a malfunction with the lab's centrifuge during testing.
¶7 Minor requested a jury instruction pursuant to State v. Willits because the sperm fraction sample had been ruined. See Willits, 96 Ariz. at 191. The court denied the request as unnecessary. The jury found Minor guilty as to Count One, second-degree murder, and Count Two, theft of means of transportation. Minor was sentenced to a total of 32 years imprisonment. Minor timely appealed. We have jurisdiction under Arizona Revised Statutes §§ 12-2101(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶8 Minor argues the superior court's denial of his request for a jury instruction pursuant to State v. Willits was an abuse of discretion. A Willits instruction permits the jury to weigh the state's explanation for destroyed evidence and potentially draw a negative inference from it. Willits, 96 Ariz. at 191. We review the superior court's rulings regarding a Willits instruction for abuse of discretion and will not "reverse the decision to refuse a jury instruction absent a clear abuse of that discretion." State v. Hernandez, 250 Ariz. 28, 31 ¶ 9 (2020), as amended (Nov. 25, 2020) (cleaned up). Under an abuse of discretion standard, "we uphold a decision if there is 'any reasonable evidence in the record to sustain it.'" State v. Salamanca, 233 Ariz. 292, 295 ¶ 8 (App. 2013) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77 (2007).
¶9 To receive a Willits instruction, a defendant must prove 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) there was resulting prejudice." Hernandez, 250 Ariz. at 31 ¶ 10 (citing State v. Glissendorf, 235 Ariz. 147, 152 ¶ 18 (2014)).
¶10 Here, the destroyed evidence was "obviously material." During its investigation, the State collected the semen sample from Victim's thigh in anticipation of its relevance to its case. See Hernandez, 250 Ariz. at 33 ¶ 16 (explaining evidence is "obviously material" when, at the time the State encounters it during investigation, the State relies on it or knows the defendant will use it for his or her defense). Indeed, at trial, the State presented the unspoiled non-sperm fraction as evidence placing Minor at the crime scene. However, Minor failed to show the destroyed evidence "could have had a tendency to exonerate" him. See Id. at 31 ¶ 10.
¶11 Minor points to testimony from the State's forensic science expert concerning a potential "insignificant third" contributor found on the anal swab sample. But the expert testified this sample contained DNA consistent with Minor's DNA profile and the probability of the "insignificant third" contributor being an unrelated third party was "one in, at least, 510 septillion." Nevertheless, seizing on this testimony, Minor suggests the destroyed sperm fraction of Victim's thigh swab could have also shown the presence of a third person. Even setting aside concerns regarding the staggering unlikelihood of an unrelated third contributor's presence, the anal swab and the thigh swab were separate samples. The results from the preserved, non-sperm fraction of the same thigh sample contained no evidence of a third contributor. Without more, Minor's theory the sperm fraction from that same sample could contain DNA from a third contributor is mere speculation. More is required to establish entitlement to a Willits instruction. See Glissendorf, 235 Ariz. at 150 ¶ 9 (explaining that to prove evidence had a "tendency to exonerate," mere speculation is insufficient). Given this record, sufficient evidence supports the court's decision to decline Minor's request for a Willits instruction.
¶12 Moreover, Minor further failed to show the loss of the sperm fraction evidence prejudiced him. See Hernandez, 250 Ariz. at 31 ¶ 10. The function of the DNA evidence was to establish Minor's presence and interaction with the Victim at the apartment. The lost sperm fraction was not the only evidence the State relied on for this purpose. For one, Minor's DNA was found in the non-sperm fraction, which was part of the same sample as the lost sperm fraction. Further, both Minor's and Victim's DNA were also found on a bathroom sink handle at the apartment. The anal swab from Victim contained Minor's DNA. Surveillance footage from the apartment complex where Victim's body was found showed Minor was present in the complex's parking lot around the time Victim was last seen. The Victim's autopsy also showed she sustained eight chop and stab-style head wounds, and the State's medical examiner testified at trial that the wounds likely came from a screwdriver and machete. The State-arguing the bloodstained screwdriver recovered from the apartment was one of the likely murder weapons-introduced evidence that the screwdriver contained Victim's DNA on the tip and Minor's DNA on the handle.
¶13 Even assuming another man's sperm could be detected in the lost sperm fraction of the thigh swab, that fact alone does not exclude Minor's presence from the scene of Victim's murder, given all other evidence provided at trial. In other words, the jury reasonably relied on other evidence to convict Minor. Therefore, Minor did not demonstrate he was prejudiced by loss of the sperm fraction evidence. See id.
¶14 Minor further argues denial of his requested Willits instruction violated his right to due process. However, the test to determine whether a due process violation arose from destruction of evidence is distinct from qualification for a Willits instruction and requires the defendant prove the State acted in bad faith. Glissendorf. 235 Ariz. at 150-51 ¶ 11. But Minor did not attempt to prove bad faith. To the contrary, Minor conceded that destruction of the sperm fraction was an innocent mistake. Therefore. he failed to meet his burden to establish a due process violation.
¶15 For the foregoing reasons. we conclude the court did not abuse its discretion in denying Minor's request for a Willits instruction.
CONCLUSION
¶16 We affirm.