State v. Madrigal ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
GILBERT SAFWAN MADRIGAL,
Appellant.
No. 1 CA-CR 21-0361
FILED 7-21-2022
Appeal from the Superior Court in Maricopa County
No. CR2020-113363-001
The Honorable Monica S. Garfinkel, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. MADRIGAL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
W E I N Z W E I G, Judge:
¶1 Gilbert Safwan Madrigal appeals his convictions and
sentences for kidnapping and sexual abuse. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The victim was delivering packages for Amazon at an
apartment complex when she encountered Madrigal. Madrigal first
shouted catcalls at the victim from afar, but he approached the victim when
she ignored his advances. Madrigal blocked the victim’s path and then
pinned her to the wall, touching her “everywhere” and telling her “you
know you want it.”
¶3 After a minute or two, the victim broke free, ran to her car and
drove away. The victim soon noticed a police officer, however, and stopped
to ask for help. Still crying and shaking, the victim told the officer what
happened and described the assailant. The officer asked for backup and
launched a search for the suspect inside the apartment complex. The officer
first approached a man in the parking lot who did not fit the victim’s
description and asked if he had heard anything. The man said no, and the
officer resumed his search. A female resident then told the officer he was
probably looking for Madrigal who lived in apartment 202. Madrigal was
arrested and charged with kidnapping and sexual abuse.
¶4 A three-day jury trial was conducted. At one point, Madrigal
asked the court to instruct the jury that they may draw an inference
unfavorable to the State because the first responding police officer never
recorded the name or contact information of the man in the parking lot. See
State v. Willits, 96 Ariz. 184 (1964). The court refused because Madrigal had
not shown the “evidence” had “a tendency to exonerate [him], [or] be
helpful to the defense.”
¶5 The jury then found Madrigal guilty as charged. Because
Madrigal was on probation and had four prior felony convictions, he was
sentenced to concurrent prison terms of 18 years for the kidnapping
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STATE v. MADRIGAL
Decision of the Court
conviction and six years for the sexual abuse conviction. Madrigal timely
appealed. We have jurisdiction. See Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶6 This court reviews the trial court’s denial of a Willits jury
instruction for an abuse of discretion. See State v. Hernandez, 250 Ariz. 28,
31, ¶ 9 (2020). To secure a Willits instruction, the defendant must show “(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.” Id. ¶ 10. But the first prong requires more
than mere speculation “about how the evidence might have been helpful,”
and there must be “a real likelihood that the evidence would have had
evidentiary value.” Id. (citation omitted).
¶7 We are not persuaded for three reasons. First, Madrigal does
not contend the State destroyed or lost evidence here; just that the first
police officer on the scene neglected to gather contact information from the
man in the parking lot and instead continued his search. See State v. Walters,
155 Ariz. 548, 551 (App. 1987) (concluding “there was no suppression or
destruction of evidence” where police failed to preserve the identity of
inmates who witnessed a jailhouse assault).
¶8 Second, the contact information was not “obviously material”
as the police officer continued searching for the suspect. The state need
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.” Hernandez, 250 Ariz. at 32, ¶ 11 (citation omitted). Here, the state
did not rely on statements from the man in the parking lot to make its case,
and the police officer did not know “the defendant would use the evidence
for his or her defense.” Id. at ¶ 12. The man in the parking lot neither
contradicted the victim’s account or “change[d] the course” of the
investigation.
¶9 Third, the contact information of the man in the parking lot
did not have “a tendency to exonerate the accused.” See id. at 31, ¶ 10.
Again, the man did not contradict the victim’s account. We require more
than mere speculation for a Willits instruction. See id.
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STATE v. MADRIGAL
Decision of the Court
CONCLUSION
¶10 We affirm Madrigal’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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