State v. Lopez

¶1specially concurring.

¶2When the state destroys evidence that a defendant has specifically requested be kept, a sanction must be imposed. Only in that way can courts insure that evidence, exculpatory in character, is not conveniently lost or destroyed. See Livermore, Absent Evidence, 26 Ariz.L.Rev. 27 (1984).

¶3The dissent appears to dispute this analysis on three grounds. First, it is argued that to contend that the tapes were exculpatory is “inventive conjecture. Ordinarily, I agree that sanctions should not be imposed on so flimsy a basis. But when the state has destroyed evidence with knowledge that a defendant wishes to examine it, it is hardly in a position to criticize as “conjecture” that which it has made impossible to prove.

¶4It is next argued that only by making a request to the prosecutor can the defendant perfect his right to evidence. That might be — or might not be in some circumstances — a more effective way to preserve evidence. It does not, however, seem to me to be a good rule of law that would allow state agencies to destroy evidence that they know has been sought by a defendant unless a prosecutor tells them not to.

¶5Finally, it is argued that the sanction of dismissal is too severe. In most cases, it would be. The most appropriate sanction would be the suppression of the evidence to which the destroyed, possibly exculpatory,1 evidence would be directed, as in the lost intoxilyzer sample cases. See Scales v. City Court of the City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). The prosecutor should be allowed, as in those cases, to proceed with other evidence. But, in this case, the whole case stands or falls on the suppression motion. If the marijuana is suppressed because the officers cannot establish probable cause, there is no other evidence on which to proceed. Assuming the appropriate sanction is suppression, there is no difference between that and dismissal on the facts of this case. There was, therefore, no abuse of discretion in the choice of sanction.