State of Arizona v. Robert Charles Glissendorf ( 2014 )


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  •                                 IN THE
    SUPREME COURT OF THE STATE OF ARIZONA
    STATE OF ARIZONA,
    Appellee,
    v.
    ROBERT CHARLES GLISSENDORF,
    Appellant.
    No. CR-13-0388-PR
    Filed July 18, 2014
    Appeal from the Superior Court in Pima County
    The Honorable Michael O. Miller, Judge
    No. CR20112756-001
    REVERSED AND REMANDED
    Opinion of the Court of Appeals, Division Two
    
    233 Ariz. 222
    , 
    311 P.3d 244
    (App. 2013)
    VACATED
    COUNSEL:
    Lori J. Lefferts, Pima County Public Defender, David J. Euchner (argued),
    Katherine A. Estavillo, Assistant Public Defenders, Tucson, for Robert
    Charles Glissendorf
    Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
    General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals
    Section, Phoenix, for State of Arizona
    CHIEF JUSTICE BALES authored the opinion of the Court, in which, VICE
    CHIEF JUSTICE PELANDER, JUSTICE BERCH, JUSTICE BRUTINEL, and
    JUSTICE TIMMER joined.
    CHIEF JUSTICE BALES, opinion of the Court:
    ¶1           Fifty years ago, this Court held that if the state fails to
    preserve evidence that is potentially exonerating, the accused might be
    STATE V. GLISSENDORF
    Opinion of the Court
    entitled to an instruction informing the jury that it may draw an adverse
    inference from the state’s action. See State v. Willits, 
    96 Ariz. 184
    , 191, 
    393 P.2d 274
    , 279 (1964). Today, we reaffirm this principle. Because the trial
    court erred in refusing to give a Willits instruction and the State has not
    established that the error was harmless, we reverse the convictions and
    sentences and remand for a new trial.
    I.
    ¶2             In 2012, Robert Charles Glissendorf was tried for three counts
    of child molestation. Count 1 involved his niece, E.G., who testified that
    when she was between five and seven years old she awoke one night to find
    Glissendorf touching her vagina. This incident occurred between 1997 and
    1999, but E.G. did not report it until 2001. That year, a Tucson detective
    tape-recorded his interview of E.G. about the incident and summarized the
    interview in a written report. A Child Protective Services (“CPS”)
    employee was also present and recorded the interview on video. The State
    initially decided not to prosecute. Six to twelve months later, the Tucson
    Police Department (“TPD”), consistent with its then-existing policy,
    destroyed its recording. The CPS recording was also destroyed.
    ¶3            Counts 2 and 3 involved similar molestations reported in 2010
    by I.K., who was then five years old. I.K. testified that, sometime between
    2009 and 2010, she and her sister, A.K., were each molested by Glissendorf
    one night when he slept over at their mother’s house. Count 2 was based
    on the molestation of I.K., and Count 3 concerned the molestation of A.K.
    Because A.K. was not awake during the incident, I.K.’s testimony provided
    the evidence for both counts.
    ¶4             Over Glissendorf’s objection, the trial court allowed another
    witness, C.L., to testify under Evidence Rule 404(c)’s other-act exception
    about an alleged incident in Nevada in 1976. C.L. testified that, when she
    was six years old, Glissendorf lured her into an apartment with candy,
    forced her to lie down on the couch, and touched her vagina. He then gave
    her two dollars and let her go. Glissendorf was later arrested in Nevada
    but was never charged for this incident.
    ¶5            At trial, Glissendorf requested a Willits instruction regarding
    the destruction of the TPD and CPS recordings of the 2001 interview with
    E.G., arguing that the recordings would have been useful in impeaching her
    2
    STATE V. GLISSENDORF
    Opinion of the Court
    2012 testimony. The trial court construed Glissendorf’s request as seeking
    the following standard jury instruction:
    If you find that the State has lost, destroyed, or failed to
    preserve evidence whose contents or quality are important to
    the issues in this case, then you should weigh the explanation,
    if any, given for the loss or unavailability of the evidence. If
    you find that any such explanation is inadequate, then you
    may draw an inference unfavorable to the State, which in
    itself may create a reasonable doubt as to the defendant’s
    guilt.
    Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 10. The court denied the request
    because the recordings had not been maliciously destroyed and Glissendorf
    had not shown that they contained exculpatory evidence.
    ¶6             The jury convicted Glissendorf on Counts 1 and 2 and
    acquitted him on Count 3; he was sentenced to consecutive prison terms
    totaling thirty-four years. Glissendorf appealed and raised several issues,
    including the denial of a Willits instruction and the admission of C.L.’s
    testimony under Rule 404(c). The court of appeals concluded that the trial
    court erred in refusing to give a Willits instruction, but the court reversed
    only the conviction and sentence on Count 1. State v. Glissendorf, 
    233 Ariz. 222
    , 233–34 ¶ 32, 
    311 P.3d 244
    , 255–56 (App. 2013). As for the admission of
    C.L.’s testimony, the court of appeals found the trial court had erred in one
    aspect of its Rule 404(c) analysis; because the court of appeals could not
    determine whether this error affected the trial court’s ultimate ruling,
    however, it remanded to allow the trial court to clarify this point. 
    Id. at 235
    ¶¶ 39–40, 
    311 P.3d 258
    .
    II.
    ¶7             We review rulings regarding a Willits instruction for abuse of
    discretion. See State v. Bolton, 
    182 Ariz. 290
    , 309, 
    896 P.2d 830
    , 849 (1995). In
    Willits, this Court held that a defendant is entitled to an adverse-inference
    instruction when the state loses or destroys evidence that would have been
    useful to the defense, even if that destruction is innocent:
    We think that the rule permitting an inference is not
    based only on the notion that the destruction is motivated by
    3
    STATE V. GLISSENDORF
    Opinion of the Court
    a desire to conceal the truth. Evidence, of course, may be
    innocently destroyed without a fraudulent intent simply
    through carelessness or negligence or, as the case might have
    appeared to the jury here, an unwillingness to make the
    necessary effort to preserve it. In any event, the State cannot
    be permitted the advantage of its own conduct in destroying
    evidence which might have substantiated the defendant's
    claim regarding the missing evidence. But the damage to the
    defendant is equally great because the evidence was no longer
    available at the trial by which the facts with certainty could be
    determined.
    
    Willits, 96 Ariz. at 191
    , 393 P.2d at 279.
    ¶8             The Court has repeatedly upheld this approach, eventually
    fashioning a two-element test: “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) (citing State v. Perez, 
    141 Ariz. 459
    , 464, 
    687 P.2d 1214
    , 1219 (1984)); see also State v. Speer, 
    221 Ariz. 449
    , 457 ¶ 40, 
    212 P.3d 787
    , 795 (2009).
    ¶9              To show that evidence had a “tendency to exonerate,” the
    defendant must do more than simply speculate about how the evidence
    might have been helpful. See, e.g., 
    Speer, 221 Ariz. at 457
    41, 212 P.3d at 795
    (observing that defendant did not show how the evidence would have
    exonerated him or even mitigated his participation in the crime); 
    Smith, 158 Ariz. at 227
    , 762 P.2d at 514 (holding that speculation as to how the evidence
    might have been beneficial was not enough); 
    Perez, 141 Ariz. at 464
    , 687 P.2d
    at 1219 (observing that appellant presented no evidence on how the missing
    evidence would have helped his defense). In other words, there must be a
    real likelihood that the evidence would have had evidentiary value. See,
    e.g., State v. Murray, 
    184 Ariz. 9
    , 33, 
    906 P.2d 542
    , 566 (1995) (noting that “[a]
    Willits instruction is not given merely because a more exhaustive
    investigation could have been made”); State v. Watkins, 
    126 Ariz. 293
    , 302,
    
    614 P.2d 835
    , 844 (1980) (concluding that the evidence had “no evidentiary
    value”); State v. Garrison, 
    120 Ariz. 255
    , 259, 
    585 P.2d 563
    , 567 (1978) (same).
    4
    STATE V. GLISSENDORF
    Opinion of the Court
    ¶10            The phrase “tendency to exonerate,” however, does not mean
    the evidence must have had the potential to completely absolve the
    defendant. See State v. Hunter, 
    136 Ariz. 45
    , 51, 
    664 P.2d 195
    , 201 (1983) (“To
    be entitled to a Willits instruction, . . . an accused need not prove that
    evidence destroyed by the state would have conclusively established a
    defense.”). Rather, as the court of appeals correctly held, a defendant “is
    entitled to an instruction if he can demonstrate that the lost evidence would
    have been material and potentially useful to a defense theory supported by
    the evidence.” 
    Glissendorf, 233 Ariz. at 229
    17, 311 P.3d at 251
    . Indeed,
    we have previously used the phrase “potentially helpful” interchangeably
    with “tendency to exonerate.” See, e.g., 
    Murray, 184 Ariz. at 33
    , 906 P.2d at
    566 (quoting State v. Lopez, 
    163 Ariz. 108
    , 113, 
    786 P.2d 959
    , 964 (1990)) (“A
    Willits instruction is appropriate when the state destroys or loses evidence
    potentially helpful to the defendant.”) (internal quotation marks omitted).
    ¶11           The “tendency to exonerate” test is not the same as that for a
    violation of due process. The “failure to preserve potentially useful”
    evidence is not a denial of due process unless “a criminal defendant can
    show bad faith on the part of the police.” Arizona v. Youngblood, 
    488 U.S. 51
    ,
    58 (1988). Thus, the test for a violation of due process depends on the
    subjective intent of law enforcement, while the test for giving a Willits
    instruction is explicitly intended to cover innocent destruction. Compare
    
    Youngblood, 488 U.S. at 58
    , with 
    Willits, 96 Ariz. at 191
    , 393 P.2d at 279.
    ¶12           Bad faith can be difficult to prove, while the “tendency to
    exonerate” standard is more easily satisfied. See Cost v. State, 
    10 A.3d 184
    ,
    192–94 (Md. 2010); see also Norman C. Bay, Old Blood, Bad Blood, and
    Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash.
    U. L. Rev. 241, 288 (2008). This difference in the two standards makes sense
    in light of the greater consequences that stem from a violation of due
    process: “when evidence has been destroyed in violation of the
    Constitution, the court must choose between barring further prosecution or
    suppressing . . . the State’s most probative evidence.” California v. Trombetta,
    
    467 U.S. 479
    , 487 (1984). Both of these remedies are more drastic than the
    mere adverse inference that jurors may be permitted to draw by a Willits
    instruction. Hence, it follows that the bar for issuing a Willits instruction is
    lower than that for establishing a violation of due process. See State v.
    Youngblood, 
    173 Ariz. 502
    , 507, 
    844 P.2d 1152
    , 1157 (1993) (“[W]here there is
    no bad faith[,] it is fundamentally unfair to bar the state from our courts.
    The inference that the evidence may be exculpatory is not strong enough to
    5
    STATE V. GLISSENDORF
    Opinion of the Court
    dismiss the case. It is enough to let the jury decide whether to draw such an
    inference.”).
    ¶13            Nonetheless, the State urges us to overrule Willits, essentially
    arguing that consequences for the loss or destruction of evidence should
    only apply if it were done in bad faith. We decline the State’s invitation. A
    consequence for even innocent loss or destruction is necessary both to deter
    such action and to ensure that defendants do not bear the burden of the
    state’s actions. See 
    Cost, 10 A.3d at 197
    (“For the judicial system to function
    fairly, one party in a case cannot be permitted to gain an unfair advantage
    through the destruction of evidence.”). Moreover, the Willits instruction
    takes into account the state’s explanation of the destruction by permitting
    jurors to draw an adverse inference only if they “find that any such
    explanation is inadequate.” RAJI Stand. Crim. 10.
    ¶14           As support for its argument that Willits should be overturned,
    the State contends that the instruction lacks a statutory or constitutional
    basis. The State correctly observes that this Court has never held that
    Arizona’s due process clause requires the issuance of Willits instructions.
    Instead, the Court has held that the same bad-faith test applies to identify
    violations of either the Arizona due process clause or the federal due
    process clause. See 
    Speer, 221 Ariz. at 457
    36, 212 P.3d at 795
    ; 
    Youngblood, 173 Ariz. at 507
    –08, 844 P.2d at 1157–08.
    ¶15            Many other state courts, however, have held that their state
    constitutions or evidentiary rules require measures similar to a Willits
    instruction when the state’s failure to preserve evidence does not involve
    bad faith. See 
    Cost, 10 A.3d at 193
    –95 (describing several states’
    approaches). Such holdings recognize that when potentially exonerating
    evidence is lost or destroyed, an adverse-inference instruction may be
    appropriate because the accused is presumed innocent and the state bears
    the burden of proving guilt beyond a reasonable doubt. While jurors
    generally are instructed to determine the facts from the admitted evidence,
    a Willits instruction permits them to draw an adverse inference from the
    loss or destruction of evidence by the state.
    ¶16           Even if Willits is characterized as a court-adopted rule of
    evidence, see 
    id. at 194,
    we believe that it properly balances the state’s duty
    to prove guilt with the defendant’s presumed innocence. We therefore
    decline to abrogate a rule that has been part of Arizona law for fifty years
    6
    STATE V. GLISSENDORF
    Opinion of the Court
    and has been applied in dozens of cases by this Court and the court of
    appeals.
    ¶17           Alternatively, the State argues that a Willits instruction is
    appropriate only if the exculpatory value was apparent when the evidence
    was destroyed. In support of this argument, the State cites several court of
    appeals’ opinions. See State v. Davis, 
    205 Ariz. 174
    , 180 ¶ 37, 
    68 P.3d 127
    ,
    133 (App. 2002); State v. Tinajero, 
    188 Ariz. 350
    , 355, 
    935 P.2d 928
    , 933 (App.
    1997); State v. Walters, 
    155 Ariz. 548
    , 551, 
    748 P.2d 777
    , 780 (App. 1987).
    These cases do not persuasively support the State’s position, however, as
    they largely cite each other or the United States Supreme Court’s decision
    in Trombetta, which involved a federal due process claim. In assessing
    materiality in that context, Trombetta stated “evidence must both possess an
    exculpatory value that was apparent before the evidence was destroyed,
    and be of such a nature that the defendant would be unable to obtain
    comparable evidence by other reasonably available 
    means.” 467 U.S. at 489
    .
    ¶18           The Trombetta standard, grounded in the due process clause,
    is inapposite for assessing the appropriateness of a Willits instruction,
    which, as discussed, does not turn on the subjective intent of the state’s
    agents. Thus, to the extent that Arizona courts have implied an apparent
    exculpatory value requirement for issuing Willits instructions, the courts
    have incorrectly conflated the due process analysis with that for Willits
    instructions. We therefore reaffirm that a defendant is entitled to a Willits
    instruction when “(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.” 
    Smith, 158 Ariz. at 227
    , 762
    P.2d at 514.
    ¶19           In this case, Glissendorf easily met the “tendency to
    exonerate” standard. He noted several differences between E.G.’s story as
    recounted in the 2001 police report and her trial testimony more than a
    decade later, including the number of times she claimed Glissendorf
    touched her. The recordings thus had the potential to assist Glissendorf in
    impeaching E.G. Without this tool for impeaching the State’s only witness
    to the incident, Glissendorf was prejudiced.         The prejudice was
    compounded by E.G.’s suggestion on cross-examination that the written
    police report was both inaccurate and incomplete. As the court of appeals
    observed, “The loss of the [recordings] thus created a two-fold harm,
    depriving Glissendorf of objective impeachment evidence and
    7
    STATE V. GLISSENDORF
    Opinion of the Court
    undermining the exculpatory impact of the evidence of the 2001 interview
    that survived.” 
    Glissendorf, 233 Ariz. at 230
    –31 ¶ 
    23, 311 P.3d at 252
    –53.
    ¶20           Although the court of appeals correctly held that the trial
    court should have given a Willits instruction, the court erred in reversing
    only the conviction on Count 1. Because the alleged acts were similar, the
    State chose to try in one case the counts involving separate victims, see Ariz.
    R. Crim. P. 13.3(a), and thereby to prove each act based in part on the
    evidence of the other acts. Although character evidence is generally not
    admissible to prove action in conformity therewith, Ariz. R. Evid. 404(a),
    our rules make a narrow exception for sexual misconduct cases in which
    the state can show that the defendant had an “aberrant sexual propensity
    to commit the offense,” Ariz. R. Evid. 404(c). Thus, in 404(c) cases, separate
    acts may be used to corroborate each other.
    ¶21            Throughout the trial, the State repeatedly encouraged the jury
    to infer that the similarity of the acts supported convictions on all counts.
    For example, during closing arguments, the prosecutor stated that the
    “evidence as a whole shows . . . a pattern over and over again of the same
    man, the same targets, the same acts again and again.” Repeating this
    theme, the prosecutor said “[t]he common thread is the defendant doing
    the same thing, picking out the same little girls over and over again,” and
    “those facts are the same every single time. The same man, the same age
    they were at, the same acts over and over again.”
    ¶22            The court of appeals, however, held that the denial of a Willits
    instruction was harmless as to Count 2 because Glissendorf did not argue
    that the error had affected that count. 
    Glissendorf, 233 Ariz. at 233
    –34 ¶ 
    32, 311 P.3d at 255
    –56. This reasoning is flawed in both its characterization of
    Glissendorf’s arguments and its application of the harmless error standard.
    Although Glissendorf did not make separate arguments as to each count,
    he did not limit his argument to Count 1. Instead, he argued generally that
    the trial court’s error in failing to give a Willits instruction should result in
    the reversal of both convictions.
    ¶23           Once Glissendorf had shown error, the burden shifted to the
    State to prove that the error was harmless beyond a reasonable doubt. State
    v. Henderson, 
    210 Ariz. 561
    , 567 ¶ 18, 
    115 P.3d 601
    , 607 (2005). The State did
    not meet this burden. In its answering brief before the court of appeals, the
    State did not even mention harmlessness. In opposing the petition for
    8
    STATE V. GLISSENDORF
    Opinion of the Court
    review in this Court, the State merely observed that the two victims were
    “unrelated.” And the State’s argument on the issue in its supplemental
    brief focused on Glissendorf’s alleged failure to show error rather than
    explaining how the error was harmless.
    ¶24          The State’s reticence perhaps reflects that there is no
    convincing argument that the error did not affect both counts. See 
    id. (“Harmless error
    review places the burden on the state to prove beyond a
    reasonable doubt that the error did not contribute to or affect the verdict or
    sentence.”). The State’s case rested entirely on testimony, and Rule 404(c)
    allowed the State to urge the jury to consider the evidence for one count as
    supporting the other counts. Denying a Willits instruction thus affected
    both Counts 1 and 2, because uncertainty about Count 1 might have
    undermined the State’s arguments that it proved Count 2 beyond a
    reasonable doubt. Because Glissendorf showed error with regard to both
    counts and the State failed to show harmlessness, we must reverse the
    convictions and sentences for both counts.
    ¶25            Although we also granted review to consider whether the
    court of appeals erred by remanding for clarification of the trial court’s Rule
    404(c) analysis, this issue is now moot, and we decline to address it. On
    remand, the trial court shall reconsider the admission of the Rule 404(c)
    evidence, if it is again offered.
    III.
    ¶26           We reverse the convictions and sentences, vacate the opinion
    of the court of appeals, and remand this case to the trial court for a new
    trial.
    9