State v. Najim

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

HADEED NAJIM, Appellant.

No. 1 CA-CR 22-0127
FILED 9-19-2023

Appeal from the Superior Court in Maricopa County
No. CR2020-139470-001
The Honorable Howard D. Sukenic, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Damon A. Rossi
Counsel for Appellant
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MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 Hadeed Najim, f/k/a Sharod Willie Austin, appeals from his
conviction and resulting sentence for aggravated assault. We affirm
Najim’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdict. State v. Fuentes, 247 Ariz. 516, 520, ¶ 2 (App. 2019).

¶3 While working overnight in an industrial area of Tempe, the
victim and his co-worker went outside for a smoke break and saw Najim
walking along the nearby frontage road. Soon after, Najim rushed up and
stabbed the victim’s neck and back multiple times. Najim then fled the area.

¶4 Earlier that night, a security guard for a nearby business saw
Najim on the premises and asked him to leave. Finding Najim’s presence
suspicious, the security guard and his co-workers drove around the area
after their shift. When they reached the victim’s workplace, they saw Najim
attack the victim. One of the security guard’s co-workers found Najim
nearby and detained him until police arrived. Near where Najim was
found, police discovered a knife with the victim’s DNA on the blade and
Najim’s DNA on the handle.

¶5 The State charged Najim with one count of aggravated assault
with a deadly weapon or dangerous instrument, a class three felony and
dangerous offense. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1204. Najim moved
to dismiss the charge, arguing that his due process rights were violated, in
part because the investigating officer muted her body-worn camera during
portions of her interview with the victim. After full briefing and an
evidentiary hearing, the superior court found no due process violation and
denied Najim’s motion. The court found that the investigating officer did
not act in bad faith, there was no evidence that any information of
evidentiary value was lost, and that any missing information could be
obtained through officer reports and subsequent witness interviews.

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¶6 Following trial, the jury found Najim guilty as charged. Based
on the jury’s finding of aggravating circumstances and Najim’s two prior
dangerous felony convictions, the court sentenced him to 25 years in prison.
See A.R.S. § 13-704(E).

¶7 Najim timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

DISCUSSION

¶8 We review the denial of a motion to dismiss for an abuse of
discretion. State v. Hulsey, 243 Ariz. 367, 377, ¶ 17 (2018). We defer to the
superior court’s findings of fact when they are supported by the record and
not clearly erroneous. Id. But we review de novo the court’s legal
conclusions, including whether Najim’s due process rights were violated.
See State v. Smith, 250 Ariz. 69, 82–83, ¶ 34 (2020).

¶9 The failure of police to preserve “potentially useful evidence”
violates due process only if the police acted in bad faith. Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). “Absent bad faith on the part of the
officers, due process is violated only when the evidence possessed an
obvious exculpatory value and is of such a nature that the defendant would
not be able to obtain comparable evidence by other reasonable means.”
State v. Turner, 251 Ariz. 217, 221, ¶ 11 (App. 2021) (citing Hulsey, 243 Ariz.
at 377, ¶ 18).

¶10 Najim concedes that the victim’s unrecorded statements were
not “materially exculpatory” but only “potentially useful.” Therefore, to
show a due process violation, Najim must show that the investigating
officer acted in bad faith. See id. Najim argues that when the officer muted
her body-worn camera while speaking with the victim at the hospital, she
failed to preserve the victim’s potentially useful statements and acted in
bad faith.

¶11 The investigating officer met the victim at the hospital
immediately after the assault. When she arrived, her body camera was on,
recording audio and video. The officer questioned the victim both before
and after the victim was taken for a CAT scan. The officer then reviewed
the victim’s account and asked him follow-up questions.

¶12 The body camera footage shows that for the next three
minutes, the officer flipped through her notes, put her pen away, sat down,
and called to check on the status of the officer who was meeting her at the

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hospital with the swabs to collect the victim’s DNA. She then asked the
victim one more question and after about 20 seconds of silence, she muted
her body camera’s audio. Her camera remained muted for the remaining
24 minutes of her interaction with the victim. Moments after the officer
muted her body camera, the victim spoke with her again for about four
minutes while she took notes. The victim did not speak again until the other
officer arrived with the DNA swabs and the investigating officer collected
the victim’s DNA samples. After his DNA was collected, the victim spoke
with both officers for a few minutes until medical staff arrived to treat his
wounds. The investigating officer then completed her paperwork and left
the hospital. All told, the victim appeared to speak with officers for less
than half of the 24 minutes that the officer’s body camera was muted.

¶13 At the evidentiary hearing on Najim’s motion, the
investigating officer testified that while interviewing people in hospital
settings, she often mutes her body camera when the interview is over
because hospital staff discuss personal, medical information. She further
testified that she muted her body camera after she finished her interview
with the victim and was waiting for the other officer to arrive with the DNA
swabs. She explained that because she was located near a nurses’ station,
she muted her body camera after the interview concluded to protect
patients’ privacy. The officer also explained that the Tempe Police
Department’s body camera policy states that officers “shall not record in a
hospital setting unless it’s for a criminal investigation.” She explained that,
although the policy states that officers should provide a reason for muting
their body cameras, it is not required.

¶14 Najim contends that the investigating officer acted in bad
faith because she failed to mute her body camera at earlier points when
patient information was discussed. But the officer testified that she muted
her body camera once she believed the interview was finished. At that
point, because she no longer had an investigative purpose, she muted her
camera to protect the privacy of patients in the hospital. And although the
officer did not mute her camera at earlier points—when private information
may have been discussed nearby—it is evident that this was because her
investigation was ongoing. It was only once she believed the interview was
over that she muted her camera. The footage shows that she muted her
body camera at the conclusion of her questioning and as she awaited the
other officer’s arrival.

¶15 The superior court found the investigating officer’s testimony
credible, a decision to which we defer. See State v. Estrada, 209 Ariz. 287,
292, ¶ 22 (App. 2004) (“Because the trial court was in the best position to

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observe the demeanor of the witnesses and determine their possible biases,
we must defer to its assessment of their credibility[.]”) (citations omitted),
holding modified by State v. Nesley, 241 Ariz. 327 (2017). Nothing in our
review of the video recording leads us to conclude that the court’s ruling is
clearly erroneous or an abuse of discretion.

¶16 Najim also argues that the investigating officer acted in bad
faith because she did not follow the Tempe Police Department’s body
camera policy when she muted her body camera. We disagree.

¶17 Pursuant to the Tempe Police Department’s policy, an officer
is not to record in a hospital unless it is for a criminal investigation. Though
the investigating officer did not announce a reason for muting her body
camera, the policy states this action as a recommendation, not a
requirement. At worst, assuming their later exchange had any evidentiary
value, the officer acted negligently in failing to restart the audio when the
victim resumed speaking and she resumed notetaking. But negligence is
not bad faith. Youngblood, 488 U.S. at 58; see also Turner, 251 Ariz. at 222,
¶ 17.

¶18 Najim contends that failing to restart the audio at this point
was intentional, not negligent. In support of this position, Najim argues
that while her audio recording was muted, the officer blurred the camera’s
video as she took notes. But this argument ignores that the officer blurred
her notes throughout her conversation with the victim following his CAT
scan, both while the camera recorded audio and after she muted the camera.
Her blurring of notes, without more, is not evidence of bad faith. And the
officer testified that she documented the victim’s relevant statements in her
report, which Najim received. The superior court weighed the competing
characterizations of this evidence, including testimony, and concluded
against Najim’s position. We will not reweigh the evidence on appeal. State
v. Lee, 189 Ariz. 590, 603 (1997).

¶19 We see no error in the superior court’s ruling that the
investigating officer did not act in bad faith and that Najim was not denied
due process. The court thus properly denied Najim’s motion to dismiss.

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CONCLUSION

¶20 We affirm Najim’s conviction and sentence.1

AMY M. WOOD • Clerk of the Court
FILED: AA

1 The superior court’s sentencing order incorrectly lists the date of offense

for both of Najim’s prior dangerous felony convictions as June 29, 2013. The
record shows that Najim’s prior offense of aggravated assault was
committed on June 28, 2013, and his prior offense of attempted armed
robbery was committed on June 29, 2013. Despite this typographical error,
the superior court properly sentenced Najim because he was convicted of
two prior dangerous felony convictions.

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