State v. Lopez

OPINION

FERNANDEZ, Judge.

The sole issue in this case is the propriety of the court’s dismissal of the charges against the appellee because the state destroyed evidence which the defense had specifically requested be preserved.

Appellee Virginia Navarro Lopez was arrested on October 17, 1986, and charged with unlawful possession of marijuana for sale and unlawful transportation of marijuana. At approximately 1:30 p.m. on that day, two DPS officers traveling southbound on Interstate 19 north of Nogales observed two northbound vehicles travel-ling together at the posted speed limit of 55 miles per hour. Because of his knowledge and experience, one of the officers believed that the vehicles,' a Mercury and a Cadillac, fit the “heat car” modus operandi, a method by which contraband is smuggled in the lead vehicle and the following car diverts the attention of any law enforcement vehicle by committing traffic violations so that the lead car can proceed undetected. After the officers saw the cars go by, they crossed the median and followed them. At some point the Cadillac allegedly violated a traffic law, and the officers stopped the vehicle and requested the lone occupant to produce his driver’s license. The driver then asked the officer if he wanted to inspect the trunk, which the driver opened. It was found to be empty. The driver was released after questioning. The police report does not contain the driver’s name, but the name was presumably called into DPS headquarters.

The officers then continued north and located the Mercury. They followed the vehicle for an undetermined period of time. They observed no traffic violations but noticed a crack in the windshield. The officers then stopped the vehicle, and a search of the trunk revealed a load of marijuana. Appellee, the driver of the vehicle, was arrested.

Three days later, on October 20, 1986, defense counsel sent certified letters to the DPS in both Phoenix and Nogales requesting that the radio transmission tapes for the day of the incident not be destroyed since they would be “primary evidence” in appellee’s defense. Both letters were received by DPS, as evidenced by return receipts in the record. Several months later, appellee’s counsel served a subpoena duces tecum requesting the tapes. It was then learned that the transmission tapes had been destroyed in December 1986 pursuant to departmental policy. After a hearing, the court granted appellee’s motion to dismiss with prejudice.

On appeal, the state contends that the court erred in dismissing without any showing that the destroyed evidence was exculpatory, that appellee was prejudiced by the destruction or that the state acted in bad faith.

Due process requires the state to produce any information favorable to the defendant that is material to the issue of defendant’s guilt. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Arizona courts have adopted a three-pronged test to determine whether a defendant’s right to due process has been violated by the destruction of evidence. “First, was the evidence material to the question of guilt or the degree of punishment; second, was the defendant prejudiced by its destruction; and, third, was the government acting in good faith when it destroyed the evidence?” State v. Cruz, 123 Ariz. 497, 500, 600 P.2d 1129, 1132 (App.1979); see also State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981); Scales v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). When the state receives a specific request for such evidence, failure to disclose is seldom, if ever, excusable. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

It is clear that the crucial issue in this case is whether the officers had reasonable suspicion to stop appellee’s vehicle. See State v. Payan, 148 Ariz. 293, 714 P.2d 463 (App.1986). The transmission tapes would have revealed the reasons given over the air by the officers for stopping the vehicles, the time periods involved, and the identities of the vehicles and drivers. It is undisputed that the DPS received the request for the tapes at both its Phoenix and Nogales offices. No reason was given by the state for the destruction of the tapes other than the fact that it was routine procedure to destroy them after 60 days. The state was unable to explain either what had been done with the letters or why no response had been made to appellee’s attorney.

The choice of appropriate sanctions for violation of discovery rules is a matter wholly left to the sound discretion of the trial court, whose decision will not be reversed absent a clear showing of abuse of discretion. State v. Lukezic, 143 Ariz. 60, 691 P.2d 1088 (1984); State v. Fisher, 141 Ariz. 227, 686 P.2d 750, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984).

In a case involving a similar factual situation, a Washington court ruled that when there is a “reasonable possibility” that the requested evidence would be favorable and material to the defense, dismissal is a proper sanction for destruction of the evidence. State v. Boyd, 29 Wash.App. 584, 590-91, 629 P.2d 930, 934 (1981).

Because sufficient facts exist to support the dismissal here, we find no abuse of discretion by the court.

Affirmed.