# State v. Willits > Arizona Supreme Court · June 11, 1964 · 96 Ariz. 184 URL: https://www.frixlaw.com/law-library/cases/9558180 ## Case - **Full name:** The STATE of Arizona, Appellee, v. Roy David WILLITS, Appellant - **Court:** Arizona Supreme Court - **Decided:** June 11, 1964 - **Citations:** 96 Ariz. 184; 393 P.2d 274; 1964 Ariz. LEXIS 257 - **Precedential status:** Published - **Opinion:** Dissent by Udall - **Judges:** Struckmeyer, Udall, Lockwood, Bernstein, Jennings - **Cited by:** 190 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9558180 ## How later opinions describe it (automated extraction) - holding that if the state fails to preserve 28 evidence that is potentially exonerating, the accused may be entitled to an instruction informing the jury that it may draw an adverse inference from the state’s action - stating that the trial court may assume "matters of fact conceded at trial or established by uncontradicted or uncontroverted evidence ... in an instruction" - holding that a jury may be instructed to draw an adverse inference if the state fails to preserve potentially exonerating evidence ## Opinion text UDALL, Chief Justice (dissenting). I dissent from the views expressed by the majority in this case. The opinion contains oblique suggestions that modifitions to the requested instruction may have been in order. But aside from recommending incorporation of the specific facts *192 to be inferred, there is no mention of the modifications desired. I can only conclude, therefore, from reading the opinion as a whole, that the charge under examination is approved in haec verba. Omitting verbiage, the instruction provides : “If you find that the plaintiff * * has destroyed * * * any evidence whose contents or quality are in issue, you may infer that the true fact is against their [the state’s] interest.” It was uncontradicted, in fact readily acknowledged by all parties — both at trial and in the briefs here - — that the state had destroyed the dynamite and wires. In net effect, therefore, the instruction would only have advised the jury: “[Y]ou may infer that the true fact is against * * * [the state’s] interest.” The propriety of such an inference when destruction occurs under circumstances indicating a motive to suppress evidence is beyond dispute. See United States v. Remington, 191 F.2d 246 (2d Cir. 1951), cert, denied, 343 U.S. 907 , 72 S.Ct. 580 , 96 L.Ed. 1325 (1952). I agree further that adverse inferences are available although the destruction results only from carelessness or an “unwillingness to make the necessary effort to preserve it.” In such cases the defendant is needlessly deprived of the •opportunity to establish his case. But I would not penalize the prosecution when its action is neither malicious nor inadvertent. The present record shows that the course adopted by the state may well have been only a calculated effort to avoid the hazards of using inadequate storage facilities for highly explosive materials. The county and city officials were surely justified in accepting the advice of their experts that the dynamite was fully active and dangerous to life and limb of all those who came into contact with it, or even into the area where it was kept. And Captain Donald Pierson, after stating that the dynamite was in good condition and active, testified as follows: “Q * * * Captain, could the dynamite have been saved for the purposes of an analysis ? "A Yes, it could have if — it could have been, yes. The County, however, nor the City have proper storage facilities for this type .of thing, for these types of items, and in the Air Force we are restricted in the type of explosives that we can store together and storage is critical out at Davis Monthan right now.” Before its removal to the Air Force Base the dynamite was located in the City Plall basement with clerical personnel working in the immediate vicinity. In my opinion, it was at least a jury question whether the state’s explanation of its *193 behavior was true and if so, whether it acted reasonably in the premises. But the requested instruction withheld that matter from jury consideration. Only the qualifying word “may” carried any hint that the inferences need not be drawn. This was insufficient. Without an express statement of the alternative to the adverse inferences, the instruction was tantamount to a directed verdict of acquittal. There is no doubt that refusal to give a properly framed instruction would constitute reversible error. Defense counsel, however, made no attempt to amend the charge and has not argued the point here. Our function is not to revise the tactics of trial counsel and never before have we attempted to do so. His purpose could have been to avoid mention of the state’s explanation at all costs. There was evidence that the dynamite had been destroyed by detonation and was thus active and dangerous. Rather than call this fact to the jury’s attention, counsel might well have been satisfied to rest on defendant’s own testimony. Whatever the reasons, he elected to stand on the instruction as requested. For reasons already stated, I consider that instruction an inaccurate statement of the law and believe it was properly rejected by the trial judge. I would affirm. JENNINGS, J., concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9558180. Public record. Not legal advice.