State v. Youngblood

OPINION

MARTONE, Justice.

These consolidated cases require us to decide whether, absent bad faith on the part of the state, failure to preserve evidence which might be exculpatory constitutes a denial of due process of law under Article 2, § 4 of the Arizona Constitution. We hold that it does not.

I. PROCEDURAL BACKGROUND AND FACTS

A. Youngblood

Youngblood was convicted of child molestation, sexual assault and kidnapping. The court of appeals reversed and ordered dismissal of all charges against Youngblood on the ground that the state violated his federal due process rights by failing properly to preserve semen samples from the victim’s body and clothing. State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (App.1986). This court denied review. The United States Supreme Court granted the state’s petition for writ of certiorari, reversed the court of appeals, and held that “unless a criminal defendant can show bad *504faith 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, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988).

The police collected samples, did not refrigerate the clothing and did not immediately perform tests on the samples taken from the victim’s body. They did determine that sexual contact had occurred. What was collected was available to the defendant at trial and the defendant chose not to perform tests of his own. There was no suggestion of bad faith on the part of the police. On remand, and after having gone through the entire state and federal system once, the defendant for the first time raised a state law claim under the Arizona due process clause. Having been rebuffed on its resolution of the federal issue, the court of appeals held that Arizona due process was violated, reversed his convictions, and dismissed all charges against him. State v. Youngblood, 164 Ariz. 61, 790 P.2d 759 (App.1989). We granted the state’s petition for review.

B. Herrera-Rodriguez

Herrera-Rodriguez was charged with sexual assault, kidnapping, armed burglary and aggravated assault. After a mistrial, the trial court granted a defense motion to dismiss because the state failed to preserve a cotton swab sample from a rape kit. The motion was based upon federal and Arizona due process. Once again, there was no evidence of bad faith. The police delivered the swab to a hospital for analysis. Hospital personnel failed to air dry the swab and, as a result, tests were not conclusive. Relying upon Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the court of appeals reversed the trial court’s order of dismissal and ordered that the charges against the defendant be reinstated. State v. Herrera-Rodriguez, 164 Ariz. 49, 790 P.2d 747 (App.1989). We granted the defendant’s petition for review.

II. DISCUSSION

A. Preclusion

Herrera-Rodriguez raised his state due process claim in the trial court. In contrast, Youngblood did not assert his state due process claim until he had been through the trial court, the court of appeals, this court, and the United States Supreme Court. He first raised his state due process claim on remand to the court of appeals. The court of appeals should have rejected his claim as untimely. One bite at the apple is enough. One should not be allowed to hold back a claim or issue and then use it only if one needs it. All claims or issues arising out of the same nucleus of operative facts must be presented at the same time, or else they are precluded. At some point litigation must come to an end. Lack of finality is one of the reasons for the popular dissatisfaction with our legal system. Piecemeal litigation is an evil to be avoided.1

Even on direct appeal, we generally refuse to consider claims that are not raised below. “Absent a finding of fundamental error, failure to raise an issue at trial ... waives the right to raise the issue on appeal.” State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).2 With even greater force, preclusion should occur on remand after direct appellate review has *505been exhausted. Paramount Pictures, Inc. v. Holmes, 58 Ariz. 1, 4, 117 P.2d 90, 91 (1942) (“appeals from a judgment may not be taken piecemeal, and ... any question which could and should have been raised on the first appeal may not be presented to nor considered by this court on the second appeal.”); State v. Rhodes, 112 Ariz. 500, 506-507, 543 P.2d 1129, 1135-36 (1975). As we stated in Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086, cert. denied, 484 U.S. 874, 108 S.Ct. 212, 98 L.Ed.2d 177 (1987), the “[ejfficient and orderly administration [of justice] requires some point in time at which it is too late to raise new issues on appeal.” Thus, if we were free to do so, we would hold that Youngblood is precluded from relying upon the Arizona due process clause for having failed to raise that claim at his trial, on direct appeal to the Arizona Court of Appeals, and on review by certiorari by the United States Supreme Court.3 See generally Yee v. Escondido, — U.S. -, -, 112 S.Ct. 1522, 1531, 118 L.Ed.2d 153 (1992).4 But we are not so free. Although the state petitioned us to review the preclusion issue, the court, as then constituted, denied it. A majority of this court declines to reach an issue upon which review has been denied.5 We turn next to the merits.

B. The Merits

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 *506(1963), the Supreme Court held “that the suppression by the prosecution of [material] evidence favorable to an accused upon request violates [federal] due process ... irrespective of the good faith or bad faith of the prosecution.” This makes sense. Exculpatory evidence matters whether the police exercise good faith or bad faith in failing to produce it. The defendant is harmed in fact. The defendant is prejudiced by definition because the unproduced evidence is plainly exculpatory. His trial is flawed. He gets a new trial at which the evidence is available, not a dismissal.

In stark contrast to Brady, the unpreserved evidence in these eases is neither plainly exculpatory nor inculpatory. By definition, not having been preserved, we will never know. Under these circumstances, one can only say that the evidence might have been exculpatory, or the evidence might have been inculpatory. More accurately, one could only say that the unpreserved evidence could have been subjected to tests, the results of which might have been exculpatory or inculpatory. Thus, there is no showing of prejudice in fact. In contrast to the dissent’s statement that this case is about prejudice, all that can be said is that the defendant might have been prejudiced. Speculation is not the stuff out of which constitutional error is made.

In Arizona v. Youngblood the United States Supreme Court held that for this class of evidence, the good or bad faith of the state is relevant because of an inference that can be drawn from the bad faith of the police. A conscious, intentional or malicious failure to preserve evidence which could be tested suggests “that the evidence could form a basis for exonerating the defendant.” 488 U.S. at 58, 109 S.Ct. at 337. Good faith or bad faith does not matter in a Brady setting because by definition Brady materials are plainly exculpatory and no inference is required.

The defendants argue that in contrast to federal due process, Arizona due process requires us to equate nonexistent evidence which might have been exculpatory with existing evidence which is plainly exculpatory. It goes without saying that just as the United States Supreme Court is the final arbiter of federal constitutional issues, this court is the final arbiter of Arizona constitutional issues.

The defendants’ argument builds upon this court’s peculiar driving under the influence jurisprudence. In Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), this court, by the slimmest of margins, held that Arizona due process requires the police to inform a DUI suspect of his right to an independent alcohol test even if the police choose not to test the suspect. Montano argued that “the unique evidentiary circumstances attendant to DUI arrests justify a narrow exception” to the rule that “the state normally has no obligation to aid a suspect in gathering potentially exculpatory evidence.” Id. at 389, 719 P.2d at 275.6 Driving under the influence cases are arguably unique for a variety of reasons. The evidence is in the defendant’s own body. Usually the defendant is in custody and the state has the right to take a breath or blood sample. Whatever our DUI jurisprudence means, the differences are too great to transpose its peculiar rules to any other setting. Efforts in the court of appeals to extend this “narrow exception” are expressly rejected.

More to the point is State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). For over a quarter century, this case has required trial judges to instruct juries that if they find that the state has lost, destroyed or failed to preserve material evidence that might aid the defendant and they find the explanation for the loss inadequate, they may draw an inference that that evidence would have been unfavorable to the state. With respect to evidence which might be exculpatory, and where there is no bad faith conduct, the Willits rule more than ade*507quately complies with the fundamental fairness component of Arizona due process. Admittedly, our Willits jurisprudence has sometimes defied neat analysis. Compare State v. Hannah, 120 Ariz. 1, 2, 583 P.2d 888, 889 (1978) (negligent loss of potentially exculpatory evidence prejudicial even with Willits instruction) with State v. Hunter, 136 Ariz. 45, 50-51, 664 P.2d 195, 200-201 (1983) (negligent loss of potentially exculpatory evidence prejudicial without Willits instruction), and State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (failure to obtain possession of material evidence plus actual prejudice requires Willits instruction). But the core of the doctrine as it relates to Arizona due process is that an instruction is adequate where the state destroys, loses or fails to preserve evidence unless the state acts in bad faith or the defendant suffers prejudice-in-fact. See State v. Serna, 163 Ariz. 260, 264, 787 P.2d 1056, 1060 (1990) (first considering federal due process under Arizona v. Youngblood, and then Willits); State v. Tucker, 157 Ariz. 433, 442, 759 P.2d 579, 588 (1988) (applying bad faith standard before Supreme Court decided Arizona v. Youngblood ).

Contrary to the dissent’s characterization of the role of bad faith as new, post, at 513, 844 P.2d at 1163, we adopted the bad faith guide long before the United States Supreme Court did. Well before the Supreme Court decided Youngblood we said, “[a] defendant is not deprived of due process by the destruction of evidence unless the state has acted in bad faith or the defendant is prejudiced by the loss.” State v. Day, 148 Ariz. 490, 496, 715 P.2d 743, 749 (1986). To the same effect is State v. Soloman, 125 Ariz. 18, 22-23, 607 P.2d 1, 5-6 (1980). Where the nature of the evidence—exculpatory, inculpatory, or neutral—is unknown, as in these cases, there can be no showing of prejudice in fact. Thus, only a showing of bad faith implicates due process. The bad faith guide to the fundamental fairness component of Arizona due process in the context of unpreserved potentially exculpatory evidence is therefore hardly new and certainly no departure from our previous holdings. Indeed, if bad faith were read out of due process analysis in the context of unpreserved potentially exculpatory evidence, when would Willits ever be appropriate?

The defendants and the dissent would have us abandon our own pre-existing state constitutional law under the guise of not following the United States Supreme Court. In truth, the Supreme Court has followed us in this area, and with good reason. The question is fundamental fairness. When the state exhibits bad faith in the handling of critical evidence, it is fundamentally unfair to allow the trial to proceed. The court’s remedy is to tell the state it will not be allowed to prosecute the case in our courts. Bad faith strengthens the inference that the evidence might be exculpatory to an unacceptable level.

In contrast, where 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 dismiss the case. It is enough to let the jury decide whether to draw such an inference.

The defendants asked for and received a Willits instruction at their trials. There was no evidence of bad faith here. The facts in these cases are indistinguishable from those in Willits. There, the police gave dynamite and wires to the Air Force which in turn destroyed them. Willits argued that the dynamite and wire “might have aided [him] in showing that [an] explosion was accidental.” 96 Ariz. at 188, 393 P.2d at 278. We held that Willits was entitled to an instruction, not a dismissal.

When a Brady violation results only in a new trial, it would be bizarre to suggest that, because of a non-malignant fortuity, fundamental fairness would require the dismissal of the charges. The possibility of prejudice is not sufficient to justify the ultimate sanction—an order of dismissal. See United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986). Instead, the defendant gets more than the process due with a Willits instruction. “The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness.” State v. *508Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992).

We therefore hold that absent bad faith on the part of the state, the failure to preserve evidentiary material which could have been subjected to tests, the results of which might have exonerated the defendant, does not constitute a denial of due process of law under the Arizona Constitution.

Here, there is no evidence to suggest bad faith on the part of the police. Nor has there been any showing of prejudice in fact. Thus, the defendants were not denied due process of law under the Arizona Constitution.7

III. DISPOSITION

The judgment of the court of appeals in Youngblood is reversed, its opinion is vacated, and the convictions and sentences imposed by the trial court are affirmed. The judgment of the court of appeals in Herrera-Rodriguez is affirmed, its opinion is vacated, the order of the trial court dismissing the charges is reversed, and the case is remanded for trial.

MOELLER, Y.C.J., and CORCORAN, J., concur.

. The dissent characterizes defendant’s failure to expressly raise the state claim as understandable, post, at 509, 844 P.2d at 1159. However, as the dissent acknowledges, state and federal claims have different sources. Post, at 508, 844 P.2d at 1158. There is federal judicial review of federal claims, but not state claims. Lawyers know the difference. Justice William Brennan has been urging lawyers to raise state claims for many years. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). Our own dissenting Chief Justice has done the same. See Stanley G. Feldman & David L. Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 Ariz.St.L.J. 115, 146 (1988). The Chief Justice has also acknowledged that this court will consider the Arizona Constitution "at least when lawyers have made an adequate record and raised the proper arguments." Id.

. The dissent says we have failed to explain why the principle of fundamental error does not apply to this case. Post, at 510, 844 P.2d at 1160. The dissent's concern anticipates its conclusion, not the court’s, regarding the merits. The court first determines whether there is er*505ror, and then whether it is fundamental. State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). Since there is no error, there is no occasion to reach the doctrine of fundamental error.

. The dissent characterizes the defendant’s failure to raise the state constitutional claim as the omission of a “citation.” Post, at 510, 844 P.2d at 1160. It is difficult to square this characterization with the dissent’s acknowledgment that it is “this court’s ultimate responsibility to interpret the meaning and application of the Arizona Constitution in light of our own reading of each clause.” Post, at 508, 844 P.2d at 1158. How can a court fulfill this duty if the issue is not thought to be weighty enough to raise, or if the only difference is a simple citation? The defendant not only failed to "cite" the Arizona Constitution but also failed to mount any sort of argument based upon it. See Taylor v. Sherrill, 169 Ariz. 335, 338, 819 P.2d 921, 924 (1991) ("while the Arizona Constitution also contains a double jeopardy clause, Ariz. Const. art. 2, § 10, we do not separately discuss it because defendant relied solely on the federal constitution in his arguments to the trial court and the court of appeals”). State v. Nunez, 167 Ariz. 272, 274 n. 2, 806 P.2d 861, 863 n. 2 (1991) ("The defendant makes no separate argument based on the state constitutional provision; therefore, we do not separately discuss it.”).

. In its discussion of what issues were properly before it, the Court in Yee distinguished between a claim, which generally will not be considered for the first time on appeal, and an argument in support of a claim, which the Court will consider, even if not made below, so long as properly presented in the petition for writ of certiorari. — U.S. at-, 112 S.Ct. at 1532. In contrast, in Riggins v. Nevada, Justice Thomas argued that the Court should not have considered petitioner’s "liberty interest" argument in support of his claim that his rights under the Sixth and Fourteenth Amendments were violated by forced administration of anti-psychotic drugs during his trial, because that argument was not made below. — U.S.-,-, 112 S.Ct. 1810, 1824, 118 L.Ed.2d 479 (1992) (Thomas, J., concurring). Despite the dissent’s characterization of our position in the instant case as even more extreme than that taken by Justice Thomas, in fact our analysis is more in line with Yee. In the instant case, Youngblood failed to timely raise his state due process claim, a claim (not a mere argument) wholly distinct from his federal due process claim.

. Although the court limited its grant of review to Youngblood’s due process claim, I am of the view that it is not thereby prevented from considering the state’s preclusion argument. Such limitations are used to focus the parties’ attention on those issues which the court initially believes will be dispositive of the case and are not jurisdictional in nature. See, e.g., Olmstead v. United States, 277 U.S. 438, 466, 488, 48 S.Ct. 564, 568, 576, 72 L.Ed. 944 (1928); Stevens v. Marks, 383 U.S. 234, 246-247, 86 S.Ct. 788, 795, 15 L.Ed.2d 724 (1966) (Harlan, J., concurring in part and dissenting in part).

This court sometimes grants review and then dismisses a case where review is improvidently granted. Sometimes this court denies review of a certain issue and it turns out that that issue is either outcome dispositive or critical to an issue upon which review is granted. This is such a case. There is no prejudice to the parties. Both the state and the defendant briefed the preclusion issue. I believe it is unwise to fail to address an issue upon which this court improvidently denied review. There is no authority for the proposition that we are precluded from considering a subsidiary issue in a case under these circumstances. Nevertheless, four members of the court think otherwise.

. It is hard to square the dissent’s understanding of Montano as the rule rather than the DUI exception, post, at 512 n. 18, 844 P.2d at 1162 n. 18, with Montano’s characterization of DUI as a "narrow exception" to the rule that the state has no obligation to gather potentially exculpatory evidence.

. The dissent’s reference to the “presumption of innocence” and “cases in which the other evidence is inconclusive” baffles us. Post at 511 and 514, 844 P.2d at 1161 and 1164. If there is no substantial evidence to warrant a conviction beyond a reasonable doubt without the absent evidence, the defendant is entitled to a judgment of acquittal. Rule 20, Ariz.R.Crim.P. If there is such substantial evidence, no harm is done.