State v. Jarvis ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER ANTHONY JARVIS, Appellant.
No. 1 CA-CR 19-0504
FILED 1-7-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201800421
The Honorable Thomas K. Kelly, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
STATE v. JARVIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Christopher Anthony Jarvis appeals from his conviction and
sentence for one count of aggravated driving or actual physical control
while under the influence of intoxicating liquor or drugs. Jarvis argues his
due process rights were violated by the State’s failure to preserve an
audio/video recording from the State’s booking facility. Jarvis contends
this recording contains proof of the State’s violation of his right to counsel.
For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the
jury verdict, which requires us to resolve all reasonable inferences against
Jarvis. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007). In April 2012,
Officer Winn initiated a traffic stop after hearing squealing tires and seeing
a vehicle “[take] off at a high rate of speed.” Officer Winn, who identified
Jarvis after locating his ID, reported smelling a strong odor of alcohol.
Officer Winn arrested Jarvis and then took him to a small holding area at
the Chino Valley Police Department.
¶3 Jarvis performed two field sobriety tests before being
informed of his Miranda rights. Jarvis invoked his right to counsel after
being Mirandized. Officer Winn then read Jarvis an informed consent
affidavit, explaining what would happen to his driving privileges should
he refuse to comply with blood or breath tests. Again, Jarvis invoked his
right to counsel. Officer Winn’s report mentioned both references to
wanting to speak with counsel, but the report does not specify whether
Jarvis contacted or attempted to contact an attorney.
¶4 Jarvis initially refused the tests, prompting Officer Winn to
obtain a search warrant for Jarvis’s blood and breath. Officer Hyslip, a
qualified phlebotomist, drew Jarvis’s blood, which yielded a blood alcohol
content of .121%. Jarvis gave two breath samples, both with blood alcohol
contents of 0.109%.
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STATE v. JARVIS
Decision of the Court
¶5 The original prosecutor assigned to Jarvis’s case decided not
to prosecute, apparently concerned the State may have violated Jarvis’s
right to counsel. Jarvis’s attorney sent a letter requesting the State preserve
evidence related to Jarvis’s case. In October 2017, police arrested Jarvis for
an unrelated incident and charged him with four counts of aggravated
driving under the influence. A different prosecutor decided to revisit
Jarvis’s April 2012 incident. The prosecutor presented evidence to a
Yavapai County Grand Jury, which indicted Jarvis on two counts of
aggravated driving or actual physical control while under the influence of
intoxicating liquor or drugs, class four felonies. The grand jury also indicted
Jarvis on one count of criminal impersonation, a class six felony.
¶6 Jarvis filed a motion to dismiss in May 2018, claiming the State
failed to provide him a speedy trial. The superior court scheduled an
evidentiary hearing and ordered Jarvis to file another motion to dismiss
based on the alleged violation of right to counsel. In his second motion to
dismiss, Jarvis claimed that after invoking his right to counsel, the officers
did not give him an opportunity to call an attorney. He further argued the
State violated his due process rights by failing to preserve any audio or
video recordings from his arrest. Jarvis filed a third motion to dismiss
alleging prosecutorial misconduct.
¶7 The superior court held a two-day evidentiary hearing on the
motions to dismiss. Officer Winn testified that for each DUI case she
investigates, defendants are provided a telephone, telephone book, and
privacy. She also stated Jarvis was given an opportunity to call an attorney
during a two-hour window between the reading of the implied consent
affidavit and the issuance of the warrant. Officer Hyslip also recalled Jarvis
making a telephone call. Jarvis testified during the hearing’s second day.
He said the police gave him a cell phone after requesting to speak to his
wife, but the police would not allow him to contact an attorney.
¶8 The superior court ultimately denied all of Jarvis’s motions to
dismiss. The court found the State’s delay in prosecuting Jarvis may have
been “inadvertent and negligent, but not intentional.” The court also found
“no evidence that the audio or videotape in this case, if one exists, is
exculpatory.”
¶9 The superior court held a jury trial in May 2019, and the jury
convicted Jarvis of aggravated driving under the influence but found him
not guilty as to the criminal impersonation charge. The jury did not return
a verdict on count one, which the State later dismissed. Jarvis was sentenced
to four months with the Arizona Department of Corrections, with one day
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STATE v. JARVIS
Decision of the Court
of pre-incarceration credit and five years of supervised probation to follow.
Jarvis timely appeals and we have jurisdiction under Article 6, Section 9, of
the Arizona Constitution and A.R.S. §§ 13-4031 and -4033(A).
DISCUSSION
¶10 Jarvis argues the State violated his due process rights by
failing to preserve the booking video. Specifically, he contends the video
would have shown the State failed to heed his invocation of counsel. Jarvis
seems to argue the superior court abused its discretion by denying his
motion to dismiss on the alleged right to counsel violation.
¶11 We review the superior court’s ruling on Jarvis’s motion to
dismiss for an abuse of discretion. See State v. Moody, 208 Ariz. 424, 448, ¶ 75
(2004). But we review alleged constitutional violations de novo. State v.
Glassel, 211 Ariz. 33, 53, ¶ 78 (2005). “Due process requires the [S]tate to
produce any information favorable to the defendant that is material to the
issue of defendant’s guilt.” State v. Lopez, 156 Ariz. 573, 574 (App. 1987)
(citing Brady v. Maryland, 373 U.S. 83 (1963)). The critical distinction is
whether the booking video contains “material exculpatory” evidence or
“potentially useful” evidence. See State v. Speer, 221 Ariz. 449, 457, ¶ 37
(2009) (quoting Illinois v. Fisher, 540 U.S. 544, 549 (2004)). The mere
possibility that destroyed evidence could have exculpated a defendant is
insufficient to establish a due process violation. State v. O’Dell, 202 Ariz.
453, 458, ¶ 13 (App. 2002).
¶12 Jarvis has not established that the booking video contains
evidence that would exculpate him. Instead, he asserts the booking video
would have contained the best evidence showing whether the State actually
afforded him an opportunity to speak with counsel. Thus, the video might
inform the court whether it should suppress any evidence; it could not
show whether Jarvis was guilty. At most, the booking video presents
potentially useful evidence.
¶13 But “unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S.
51, 58 (1988). Jarvis argues the State acted with bad faith by waiting until
after the booking video’s destruction to prosecute him. And Jarvis
highlights his attorney’s specific request for the State to preserve any
evidence. We agree with the superior court. The State acted negligently in
its failure to preserve the recordings, but the record does not contain
evidence that the State’s negligence involved bad faith.
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STATE v. JARVIS
Decision of the Court
¶14 In any event, the superior court provided the jury with a
Willits instruction. See State v. Willits, 96 Ariz. 184 (1964). The court
instructed the jury that if it found that the State “lost, destroyed, or failed
to preserve evidence” relevant to the case, then the jury could draw
inferences unfavorable to the State. We presume the jury follows the court’s
instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Thus, Jarvis
received more than the process due when the superior court gave the Willits
instruction. See Youngblood, 173 Ariz. at 507.
¶15 Jarvis also contends the destruction of the original, executed
warrant violated his due process rights. He claims to be prejudiced by an
inability to examine whether it was properly supported by an affidavit. But
Jarvis retained a copy of both the warrant and affidavit and both are part of
the record on appeal. We therefore find no prejudice. The superior court
did not abuse its discretion in denying any of Jarvis’s dismissal motions and
we find no due process violations.
CONCLUSION
¶16 We affirm Jarvis’s conviction and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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