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State v. Ware6/29/1993
CHAVEZ, Judge.
Defendant was charged with three counts of battery with a deadly weapon. The indictment alleged that Defendant struck or applied 'force' to the [victim], with a rock, a deadly weapon. Defendant filed a motion to dismiss the indictment contending that the State's failure to preserve the rock as evidence in order to allow for its testing deprived Defendant of due process of law under the New Mexico and United States Constitutions. The trial court denied Defendant's motion to dismiss the indictment, but ordered the suppression of all evidence regarding the rock. The State appeals the suppression order. We agree with the trial court and affirm.
Facts
Officers responded to a domestic disturbance call at Defendant's address. They found Betty Ann Martinez, who had blood on the back of her head, and Defendant, who had blood on his body and clothes, at the scene. Upon subsequent investigation, the officers arrested Defendant. The officers then located a rock that had blood on it. A detective photographed the rock where it lay. The officer did not, however, secure or collect any blood, bodily fluids, cloth, fibers, or hair from the rock. Further, the rock itself, although it was of a size capable of being held in one hand, was not collected by the officer.
Defendant was indicted on three counts of aggravated battery (deadly weapon). Martinez testified before the grand jury that her assailant had been someone other than Defendant. Prior to trial, Defendant moved the trial court to dismiss the indictment or, in the alternative, suppress any evidence regarding the rock. The trial court denied Defendant's motion to dismiss, but suppressed all evidence regarding the rock. The State timely filed a notice of appeal of the suppression order. Our jurisdiction to review the suppression order is conferred by NMSA 1978, Section 39-3-3(B) (2) (Repl. Pamp. 1991).
Standard to be Applied
The State requests this Court to adopt the federal standard for lost or destroyed evidence announced in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). During the suppression hearing, however, the state's argument was limited to the application of the state's standard articulated in , cert. denied, 456 U.S. 930, 72 L. Ed. 2d 447, 102 S. Ct. 1980 (1982). On appeal, this Court will only consider issues raised in the trial court unless an issue involves matters of jurisdiction or fundamental error. ) cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985); see also ) cert. denied, 112 N.M. 308, 815 P.2d 161 (1991) (no preservation of state constitutional issue where defendant failed to argue below that state constitution provided rights independent of federal constitution). The State does not contend that the trial court's failure to apply the Youngblood standard constituted fundamental error. We therefore will not decide this issue.
The Chouinard Standard
In , our Supreme Court adopted a three-part test for determining whether deprivation of evidence by the state is reversible error. See also . Before a reviewing court can reverse the decision of a trial court, the reviewing court must find: "'1) the State either breached some duty or intentionally deprived the defendant of evidence; 2) the improperly 'suppressed' evidence must have been material; and 3) the suppression of this evidence prejudiced the defendant.'" (quoting >).
The evidence which the police failed to collect and preserve in this case was the weapon the State asserts that Defendant used to perpetrate the charged offenses. Further, proof of the existence of the rock and its use by Defendant was necessary to
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