Cited by

(emphasis omitted); see also Willits, 96 Ariz. at 191.

there can be no showing of prejudice in fact.”

waives the right to raise the issue on appeal.’” (quoting Gendron, 168 Ariz. at 154); (same); (same); (similar); (“Defendant did not object to the instruction at trial.

Courts consistently hold that diminished recollection by witnesses does not, by itself, constitute the type of substantial prejudice warranting a finding of a due process violation.”); Wills, 177 Ariz. at 594-95; (The mere possibility of prejudice is insufficient.).

See, (“We have frequently held that we prefer to determine cases on their merits rather than on points of procedure.”); (“Piecemeal litigation is an evil to be avoided.”).

(explaining bad faith means “a conscious, intentional or malicious failure to preserve evidence”); cf. Arizona v. Youngblood, 488 U.S. at 58–59 (losing evidence negligently is insufficient to show bad faith).

In our role as “the final arbiter of Arizona constitutional issues,” this Court “may independently interpret and apply provisions of the Arizona Constitution in a manner that affords greater protection to individual rights than their federal counterparts,” ¶ 105 (2018).

(“Speculation is not the stuff out of which constitutional error is made.”); see also State v. O’Dell, ¶ 13 (App. 2002).

-05 (1993) (3-2 decision).

We do not need to examine whether the claims or issues “aris[e] out of the same nucleus of operative facts,” or whether “additional evidence is needed to prevail in the second action than that needed in the first,” Phoenix Newspapers, Inc. v. Dep’t of Corr., because under similar circumstances nearly a century ago, our supreme court held ‘‘[t]he estoppel extends only to the exact

(“Speculation is not the stuff out of which constitutional error is made.”).

“[A]bsent 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.” see also Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding the same under the United States Constitution).

(“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.”).

Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (Youngblood I); (Youngblood II).

¶17 Quoting Chief Justice Feldman’s concurring and dissenting in part, Morrison contends that a Willits instruction was insufficient if the defendant did not receive “what the due process clause of the constitution requires: a fair trial under fundamentally fair procedures.” In Youngblood, the Arizona Supreme Court held: “With respect to ev

has lost, destroyed[,] or failed to preserve material evidence that might aid the defendant and they find the explanation for the 14 STATE v. CARLSON Opinion of the Court loss inadequate, they may draw an inference that that evidence would have been unfavorable to the state.”

a. Youngblood Claim ¶22 P.2d 1152 (1993), because the investigating officers acted in bad faith in failing to impound the recordings at the end of the shift, per the plain wording of Phoenix Police Operations Order 8.1.

(“[A]bsent 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.”).

(“[W]here there is no bad faith[,] it is fundamentally unfair to bar the state from our courts.

By this standard, a defendant need not establish with certainty that the lost evidence was exculpatory; an instruction is required if the state “failed to preserve material evidence that might aid the defendant.” 113, (“A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant.”).

(finding no Brady violation when “one could only say that the unpreserved evidence could have been subjected to tests, the results of which might have been exculpatory or inculpatory”).

It is enough to let the jury decide whether to draw such an inference.”

593 , ("Dismissal is the most drastic sanction which can be applied."); , Nesmith .

333 , 102 L.Ed.2d 281 (1988), , because the state had acted in bad faith when it “intentionally or at least knowingly allowed evidence that is, in general terms, clearly exculpatory to be systematically destroyed.” The state appeals the trial court’s ruling.