author: STARING, Presiding Judge: BREARCLIFFE, Judge, concurring in part and dissenting in part:

text:
    The STATE of Arizona, Appellee, v. Pablo Isaac HERNANDEZ, Appellant.
    No. 2 CA-CR 2018-0042
    Court of Appeals of Arizona, Division 2.
    Filed May 8, 2019
   STARING, Presiding Judge:

¶1 In this appeal from Pablo Isaac Hernandez's conviction for unlawful flight from a law enforcement vehicle, we conclude the trial court erred by not giving an adverse-inference jury instruction based on State v. Willits , 96 Ariz. 184, 191, 393 P.2d 274 (1964). We thus reverse Hernandez's conviction and remand for a new trial.

Factual and Procedural History

¶2 We view the facts in the light most favorable to sustaining the trial court's rulings and affirming Hernandez's conviction. See State v. Gay , 214 Ariz. 214, ¶¶ 2, 4, 150 P.3d 787 (App. 2007). On March 31, 2016, Pima County Sheriff's Deputy Michael Turner was driving a marked unit when a car ran a stop sign, entered his lane, and caused him to swerve to avoid a collision. While trying to avoid a collision, Turner "locked eyes" with the driver of the car for "a second to two seconds." He later testified the driver's face was "a face that [he] would never forget."

¶3 Turner attempted a traffic stop. The car did not stop, however, resulting in a pursuit that eventually ended in a parking lot, where the driver and two other occupants of the car fled on foot. Turner saw the driver's profile as he fled.

¶4 Within three minutes, federal marshals investigating another matter arrived at the parking lot and showed Turner a photograph bearing Hernandez's name. Turner identified him as the driver. Using the computer in his patrol unit, Turner then pulled up another photograph of Hernandez, and again identified him as the driver.

¶5 Before trial, Hernandez filed a motion to suppress evidence of Turner's pretrial identification, arguing the identification procedure was unduly suggestive under State v. Dessureault , 104 Ariz. 380, 453 P.2d 951 (1969), and the identification, if admitted, would be more prejudicial than probative under Rule 403, Ariz. R. Evid. He also moved to preclude Turner from making an identification during trial. The trial court denied the motions, finding the pretrial identification reliable. At trial, Turner again identified Hernandez as the driver.

¶6 Also before trial, Hernandez requested a Willits instruction based on the state's failure to collect DNA and fingerprint evidence from the car before releasing it to the registered owner. The trial court denied the motion, finding no loss or destruction of evidence, and also finding that, even had such evidence been discovered and preserved, it would have been "neutral" in terms of its capacity to exculpate or inculpate Hernandez.

¶7 Hernandez was convicted and sentenced to three years' imprisonment and this appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Pretrial Identification

¶8 Hernandez argues the trial court erred when it failed to preclude Turner's pretrial and in-court identifications. We review the court's "rulings on pretrial identifications for abuse of discretion." State v. Moore , 222 Ariz. 1, ¶ 17, 213 P.3d 150 (2009) ; see also State v. Leyvas , 221 Ariz. 181, ¶ 9, 211 P.3d 1165 (App. 2009) (fairness and reliability of challenged identification reviewed for clear abuse of discretion). "We defer to a ... court's factual findings that are supported by the record and are not clearly erroneous." Moore , 222 Ariz. 1, ¶ 17, 213 P.3d 150. "The ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact" we review de novo. Id . And, "[a] trial court ruling on a motion to suppress is reviewed based solely on the evidence presented at the suppression hearing." Id.

¶9 At the suppression hearing, Turner testified he was "[v]ery certain" of his identification of Hernandez as the driver when the marshals showed him the photograph moments after the pursuit ended. In challenging the reliability of Turner's identification and asserting the pretrial identification procedure was unduly suggestive, Hernandez points to Turner's other statement that, without that photograph, he "probably would not have been able to identify him later on down that road." The trial court, however, questioned Turner about that admission:

The Court: And you mentioned if you hadn't had those pictures sitting here today, if it's the first time you saw him again, you don't know if you would be able to recognize him from the small view that you had when he went by you?
[Turner]: From the incident, yeah, I could recognize him today, but from the point when-before I made contact with [Hernandez] that afternoon I would not have been able to identify [him] as Pablo Hernandez, but the face of the driver I would be able to identify .

(Emphasis added.)

¶10 The Due Process Clause of the Fourteenth Amendment "has been interpreted to require 'that any pretrial identification procedures [be] conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial.' " State v. Rojo-Valenzuela , 237 Ariz. 448, ¶ 6, 352 P.3d 917 (2015) (alteration in Rojo-Valenzuela ) (quoting State v. Lehr , 201 Ariz. 509, ¶ 46, 38 P.3d 1172 (2002) ). "Whether an identification procedure is so suggestive that it violates a defendant's due process rights depends on the totality of the circumstances." Id. A two-part test exists "for determining the admissibility of identification testimony," examining first "whether the method or procedure used was unduly suggestive," and then, "if unduly suggestive, whether it led to a substantial likelihood of misidentification, i.e., whether it was reliable." State v. Goudeau , 239 Ariz. 421, ¶ 132, 372 P.3d 945 (2016) (quoting Lehr , 201 Ariz. 509, ¶ 46, 38 P.3d 1172 ).

¶11 In Rojo-Valenzuela , our supreme court held "[a]n inherently suggestive one-person show-up identification procedure implicates due process, but such an identification is nevertheless admissible at trial if it is sufficiently reliable." 237 Ariz. 448, ¶ 1, 352 P.3d 917. Here, assuming without deciding that federal marshals showing Turner a single photograph was equivalent to a one-person show-up procedure and thus inherently suggestive, we must determine whether the resulting identification was nonetheless reliable. Id. In doing so, we consider the totality of circumstances including the following factors: "(1) the witness's opportunity to view or hear the perpetrator at the time of the offense; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty; and (5) the length of time between the crime and the confrontation." Goudeau , 239 Ariz. 421, ¶ 132, 372 P.3d 945. This list of factors is not exclusive and "a court may rely on other indicia of reliability as well." Rojo-Valenzuela , 237 Ariz. 448, ¶ 8, 352 P.3d 917.

¶12 Turner had the opportunity to view Hernandez's face, "lock[ing] eyes" with him, as he swerved to avoid a collision. Although he viewed Hernandez briefly, Turner's full attention was on Hernandez's face during the near collision. He also saw Hernandez's profile as he fled on foot from the car. Within three minutes of Hernandez fleeing, Turner saw the marshals' photograph and recognized him. Further, Turner testified he was "[v]ery certain" in his identification of Hernandez and that he would have been able to identify him in court without having first viewed the photograph. Applying the Goudeau factors, this record adequately supports the trial court's finding that Turner's identification was sufficiently reliable to be presented to the jury. See, e.g. , State v. Rojo-Valenzuela , 235 Ariz. 617, ¶ 15, 334 P.3d 1276 (App. 2014), aff'd , 237 Ariz. 448, 352 P.3d 917 (2015) (witness's identification reliable when "short duration of [witness's] observation was more than offset by his degree of attention"). Thus, the court did not abuse its discretion in admitting the identification.

Willits Instruction

¶13 Hernandez argues the trial court erred when it denied his request for a Willits instruction based on the state's failure to collect fingerprint and DNA evidence from the car before releasing it. "We review rulings regarding a Willits instruction for abuse of discretion." State v. Glissendorf (Glissendorf II) , 235 Ariz. 147, ¶ 7, 329 P.3d 1049 (2014). "An error of law constitutes an abuse of discretion." State v. Cheatham , 240 Ariz. 1, ¶ 6, 375 P.3d 66 (2016).

¶14 In a Willits instruction, the jury is told that if it finds "that the state ... allowed material evidence to be destroyed," or, in some circumstances failed to preserve evidence, it may "infer that the evidence would be against the interests of the state." State v. Hunter , 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983) (instruction required after destruction of evidence) (citing Willits ); see also State v. Perez , 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (instruction required where state fails to preserve "obviously material, and reasonably accessible" evidence and prejudice shown). In Willits , the state charged the defendant with attempting to ignite an explosion, and his defense was that the explosion was an accident. 96 Ariz. at 186-87, 393 P.2d 274. The state destroyed the package of explosives that was recovered at the scene, and Willits argued it might have aided him in showing the explosion was accidental. Id. at 187-88, 393 P.2d 274. The trial court denied his request for a jury instruction that read: "If you find that the plaintiff, the State of Arizona, has destroyed, caused to be destroyed, or allowed to be destroyed any evidence whose contents or quality are in issue, you may infer that the true fact is against their interest." Id. at 187, 393 P.2d 274. Our supreme court, however, concluded the requested instruction should have been given because "an inference unfavorable to the prosecution could have been drawn" and "[t]his in itself could create a reasonable doubt as to the defendant's guilt." Id. at 191, 393 P.2d 274 (emphasis omitted).

¶15 Here, Hernandez's defense at trial was that he was not the driver of the car, and the state's evidence consisted solely of Turner identifying Hernandez as the driver. Before trial, Hernandez requested a Willits instruction "based upon the State's failure to preserve material evidence" because "[i]dentification is a major issue in this case and forensic evidence from inside the [car], including fingerprint and DNA evidence from the steering wheel could have shown that [Hernandez] was not driving the car." The state opposed the motion, arguing "the [car] had little probative value" and that "the identity of the driver is not an issue" because Turner identified Hernandez as the driver. The trial court ruled:

[T]his is not evidence because we don't know what is there and it's not a loss of evidence and it's not a destruction of evidence. And whether you are talking about whether it's exculpatory, it just as easily could be inculpatory. It's a non-there is no indicator of which way the evidence goes.
And what I believe, it's not appropriate to present an inference to the jury that something exculpatory was there because I don't think it rises to that level. It's a nullity in my mind. It's a neutral-the evidence could be against him and could be for him. That being the case obviously, because you had the opportunity if it's going to be an identification case-because you have the opportunity to discuss regarding what they could have done to further identify him and that's already in the record, I'm going to deny the motion because I don't think a Willits instruction is necessary under those circumstances.

¶16 Concerning the standard a defendant must satisfy to obtain a Willits instruction, our supreme court recently held: "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." Glissendorf II , 235 Ariz. 147, ¶ 8, 329 P.3d 1049 (quoting State v. Smith , 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988) ); see also State v. Speer , 221 Ariz. 449, ¶ 40, 212 P.3d 787 (2009) ; State v. Broughton , 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988). Although Glissendorf II acknowledges that a defendant "must do more than simply speculate about how the evidence might have been helpful," 235 Ariz. 147, ¶ 9, 329 P.3d 1049, the phrase "tendency to exonerate," "does not mean the evidence must have had the potential to completely absolve the defendant," id. ¶ 10. Indeed, "tendency to exonerate" has been used interchangeably with "potentially helpful." Id. ; see also State v. Murray , 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) ; State v. Davis , 205 Ariz. 174, ¶ 35, 68 P.3d 127 (App. 2002). Thus, "a defendant 'is entitled to an instruction if he can demonstrate that the lost evidence would have been material and potentially useful to a defense theory supported by the evidence.' " Glissendorf II , 235 Ariz. 147, ¶ 10, 329 P.3d 1049 (quoting State v. Glissendorf (Glissendorf I) , 233 Ariz. 222, ¶ 17, 311 P.3d 244 (App. 2013), vacated , 235 Ariz. 147, 329 P.3d 1049 ).

¶17 Hernandez maintains he was entitled to a Willits instruction because the state failed to preserve the car or collect fingerprint and DNA evidence from it, and that such evidence would have tended to exonerate him. Specifically, he argues the "absence of DNA and fingerprints could have substantiated his defense that he was not the driver." The state counters that Hernandez was not entitled to a Willits instruction because he "failed to show that fingerprinting and DNA testing of the car would have a tendency to exonerate him." The state also contends "whether the surfaces of the car would have produced fingerprint and DNA evidence is entirely speculative" and the absence of such evidence "would not support his defense theory of misidentification because people often do not leave behind fingerprints or DNA after touching an item." On the record before us, we agree with Hernandez.

¶18 First, the state failed to preserve any fingerprints and DNA that may have been present in the car before returning it to its owner. And, because the sole issue was the identification of the driver, and the validity of that identification was disputed, physical evidence from the interior of the car, particularly the driver's side, was material. This evidence was also reasonably accessible, as the car had been abandoned by the occupants and the sheriff's department had possession of it. Deputies had the opportunity to examine the car for fingerprints and DNA before releasing it.

¶19 Second, fingerprint and DNA evidence collected from the car could have had the potential to exonerate Hernandez. We disagree with the state's argument that whether the surfaces of the car could have produced such evidence is "entirely speculative." At trial, Hernandez admitted a photograph showing several visible fingerprints both on the window and driver's door frame. Hernandez neither could nor needed to show more about these fingerprints (i.e., whether they were on the inside or outside of the car or whether they were forensically useable) because, due to the actions of the state, he did not at any point have access to the car. Moreover, both the state and our dissenting colleague disregard the fact that, although not necessarily dispositive, the absence of Hernandez's fingerprints and DNA in the vehicle-particularly on the steering wheel, gear shift and door handle-would have been exculpatory.

¶20 Mindful of the inherently uncertain tilt of evidence which has been lost or destroyed, a Willits instruction merely erects a rebuttable presumption. It does not require the jury to infer the missing evidence would have been adverse to the state; the jury is free to reject that notion. Nor does a Willits instruction preclude the state from presenting evidence about why the absence of particular evidence is neither dispositive nor even exculpatory. The instruction allows the jury to weigh all of the evidence, the absence of evidence, and any explanation the state may have for why it was destroyed or otherwise not preserved.

¶21 We conclude that Hernandez has met his burden of showing that the evidence, if preserved, would have been potentially helpful to him. He was entitled to a Willits instruction as to the state's failure to preserve any fingerprint and DNA evidence in the car. The trial court erred by denying the instruction.

Disposition

¶22 For the foregoing reasons, we reverse Hernandez's conviction and remand for a new trial.

BREARCLIFFE, Judge, concurring in part and dissenting in part:

¶23 I concur in the opinion's reasoning and holding as to the pretrial identification, but I cannot agree with its conclusion and remand on the Willits instruction. The state elected not to seek out and collect fingerprint or DNA evidence from the stolen car, but instead to base its case on the pursuing law enforcement officer's positive identification. The defendant could have, and did, try to undermine the identification and use an "incomplete investigation" as fodder in his opening statement and in cross-examination of the state's witnesses. What he was not entitled to was a Willits instruction premised on required showings he did not make. I would affirm the trial court in full.

¶24 A Willits instruction is appropriate "when the state loses or destroys evidence that would have been useful to the defense, even if that destruction is innocent." Glissendorf II , 235 Ariz. 147, ¶ 7, 329 P.3d 1049. A Willits instruction instructs the jury that it may "infer," if it finds the state's explanation inadequate, that the lost or destroyed evidence "would be against the interests of the state." See Hunter , 136 Ariz. at 50, 664 P.2d at 200 (instruction required after destruction of evidence); see also Perez , 141 Ariz. at 464, 687 P.2d at 1219 (instruction required where state fails to preserve "obviously material, and reasonably accessible" evidence and shows prejudice). It is not an impotent instruction. Indeed, it instructs a jury that it may conclude, absent a satisfactory explanation, that the state, at best, failed to collect evidence or, at worst, destroyed evidence that would have cleared an innocent man. Consequently, there are showings beyond the mere loss or destruction of evidence that must be made to be entitled to such an instruction.

¶25 Our supreme court's opinion in Glissendorf II , 235 Ariz. 147, 329 P.3d 1049, is the most recent detailed discussion of the Willits issue. As the majority describes above, in Glissendorf II , the court identified a "two-element test" to determine whether a Willits instruction must be given. Id. ¶ 8. A defendant requesting a Willits instruction, however, must make four inherent predicate showings before that two-element test is satisfied: (1) that evidence existed; (2) which was destroyed (or not preserved) by the state; (3) which could have had a "tendency to exonerate" the defendant by being "potentially useful to a defense theory supported by evidence;" and (4) prejudice. Id. ¶ 8 (quoting Glissendorf I , 233 Ariz. 222, ¶ 17, 311 P.3d 244 ). Here, Hernandez did not demonstrate that evidence existed-latent fingerprints and DNA residue-or that, once possessed by the state, it had later been destroyed or lost. But most importantly, Hernandez failed both to present a defense theory supported by evidence, which the lost evidence could have advanced, and to show any prejudice from its loss.

No Showing That Evidence Existed or Was Destroyed or Lost

¶26 At trial, Hernandez expected the trial court to assume that collectible and usable fingerprint or DNA evidence was present in the subject car-a Monte Carlo-because we should expect to find fingerprints in certain places, and everyone leaves DNA behind. Although a photograph of the Monte Carlo showed what Turner described as a "fingerprint" on the driver's side window, there was no testimony as to whether the print was on the inside or outside, that the print was forensically useable, or whether it pre-dated or was contemporaneous with the events here. There was additionally no showing at all, beyond speculation, that any DNA evidence was present-forensically useable or otherwise.

¶27 Moreover, even if we presume that the fingerprint in the photograph was collectible and useable, Hernandez failed to make any showing whatever that it was impossible still to gain latent fingerprints or DNA residue evidence from the Monte Carlo. Contrary to the majority's statement in footnote four, although it is certainly true that the Monte Carlo was released to its owner before Hernandez was arrested, there was no evidence or even avowal that the defense attempted to examine or test the car. Hernandez-to support his request for the Willits instruction-could have had his counsel track down the Monte Carlo and ask the owner a few simple questions, such as "After you picked up the car, did you wash it?" "Did you wipe down the interior?" "Did you vacuum the inside?" "Has anyone other than you been in the car since you recovered it?" "May we have the car dusted for prints and scraped for DNA?" Rather than taking any of those steps, Hernandez merely relies on, and demands that the court rely on, the assumption that the purported evidence was no longer obtainable.

¶28 In Glissendorf II , as discussed more fully below, it was established that the evidence-audiotape and videotape of the victim interview-once existed but was destroyed and no longer available. 235 Ariz. 147, ¶ 2, 329 P.3d 1049. Here, reasonable people can speculate that the evidence might have existed and that it might have been unrecoverable at the time Hernandez was arrested, but we do not know. Speculation as to what may have been found in the car, however, is insufficient to support the giving of a Willits instruction. See Smith , 158 Ariz. at 227, 762 P.2d at 514 ( Willits instruction not appropriate when defendant merely speculates that lost piece of paper would have contained information implicating another).

Fingerprint and DNA Evidence Not Relevant to a Defense Theory Supported by Evidence

¶29 It is, however, a greater deficiency that Hernandez failed to articulate any connection between the evidence purportedly destroyed and a defense theory supported by any other evidence in the case. Even had Hernandez successfully shown that useful fingerprint or DNA evidence existed at one time and was no longer available-thereby checking off the first two boxes on the Glissendorf II list-he without question failed to check the third.

¶30 For the state's loss of evidence to merit a Willits instruction, the defendant must demonstrate that lost evidence would have had a "tendency to exonerate" him. Glissendorf II , 235 Ariz. 147, ¶ 8, 329 P.3d 1049. In showing that evidence has a "tendency to exonerate," "the defendant must do more than simply speculate about how the evidence might have been helpful." Id. ¶ 9. That is, he must show "a real likelihood that the evidence would have had evidentiary value." Id . As our supreme court implies in Glissendorf II , evidence with the "potential to completely exonerate the defendant"-such as, perhaps, a videotape of him a town away at the time of the crime-has evidentiary value. A showing that he might have been "completely absolve[d]" is not necessary, id. ¶ 10, but a defendant must meet the required threshold of "evidentiary value" by "demonstrat[ing] that the lost evidence would have been material and potentially useful to a defense theory supported by the evidence ," id. (quoting Glissendorf I , 233 Ariz. 222, ¶ 17, 311 P.3d 244 ) (emphasis added); State v. Axley , 132 Ariz. 383, 393, 646 P.2d 268, 278 (1982) ( Willits instruction, like any other, "must be predicated on some theory of the case which may be found in the evidence, and, when not so predicated, [it] should not be given, as [its] tendency would be to mislead the jury." (quoting State v. McIntyre , 106 Ariz. 439, 445, 477 P.2d 529, 535 (1970) )).

¶31 In Glissendorf II , the Tucson Police Department possessed an audio recording of an interview of one of the two victims of child molestation. 235 Ariz. 147, ¶ 2, 329 P.3d 1049. Another state agency had videotaped the same interview and the audio recording was summarized in a written police report. Id. Six-to-twelve months after the state initially chose not to prosecute, both recordings were routinely destroyed per standard police procedure. Id . Some years later, the state elected to bring charges. Id. At trial, the victim testified inconsistently with the police report summary of her interview in some respects. Id. ¶ 19. The victim also testified that the report summary was "both inaccurate and incomplete." Id. At trial, the defendant's requested Willits instruction was denied because the recordings had not been "maliciously destroyed" nor shown to contain "exculpatory evidence." Id . ¶ 5.

¶32 In his defense, Glissendorf did not merely rely on the presumption of innocence and count on the state's failure to meet its burden of proof. As related in Glissendorf I , Glissendorf's defense theory, begun in opening statements, supported through his use of the report summary in impeaching the victim, and summed up in closing, was that the victim's statements were inconsistent. Glissendorf I , 233 Ariz. 222, ¶¶ 13, 15-16, 311 P.3d 244. In his opening statement, Glissendorf apparently alluded to an evolution in the victim's story. Id. ¶ 15 (state's characterization of opening statement). And "[d]uring cross-examination, Glissendorf attempted to highlight the discrepancies between [the victim's] testimony and her allegations from 2001, using the police report for impeachment." Id. ¶ 13. Lastly, in closing, Glissendorf asserted that the victim's "memory was unreliable, at minimum, and she possibly had fabricated the additional allegations about the bedroom incident because her first report had not resulted in prosecution." Id. ¶ 16. Glissendorf's defense, which was supported by the testimony and the fact of the earlier non-prosecution, was that the victim was mistaken or had possibly, with motive, lied.

¶33 On review, our supreme court concluded that the "several differences between [the victim's] story as recounted in the 2001 police report and her trial testimony more than a decade later, including the number of times Glissendorf had touched her," "had the potential to assist" him in impeaching the state's sole witness to the crime. Id. ¶ 19. The court observed that, by allowing the audio recordings to be destroyed, the state had caused the defendant a "two-fold harm"-depriving him of "objective impeachment evidence and undermining the exculpatory impact" of the inconsistencies between the victim's testimony and the written report summary. Id. It concluded that Glissendorf had "easily met the 'tendency to exonerate' standard" in his case, and that the trial court had erred in refusing to give the instruction. Id . ¶¶ 1, 19.

¶34 Hunter , 136 Ariz. 45, 664 P.2d 195, and State v. Leslie , 147 Ariz. 38, 708 P.2d 719 (1985), also illustrate defenses sufficient to permit a Willits instruction. In Hunter , a first-degree murder case, police entered the victim's home and found signs of a struggle and the victim in a pool of blood on the kitchen floor. 136 Ariz. at 47, 664 P.2d at 197. A pair of scissors was next to the body and a bloody hunting knife was in another room. Id. The responding police officers seized the knife but not the scissors. Id. Later, as detectives were completing their investigation, a friend of the family came to the house to clean it before the victim's wife returned. Id . After receiving permission from a detective present, the friend "picked up the scissors from beside the body, wiped them off with a towel, and put them on a kitchen counter." Id . As the court recounts, "[i]t was later determined that the victim had suffered several stab wounds ... a chest wound apparently caused by a knife, and ... an abdominal wound consistent with the pair of scissors." Id. After the police determined that the scissors "may have been significant," a detective returned and retrieved the scissors. Id .

¶35 At trial, Hunter claimed he had killed the victim in self-defense. Id . He testified that he brought the scissors to the victim's home to have him sharpen them. Id. He stated that, after he handed the victim the scissors, the victim took some "playful swipes" at him and then he "shoved the victim into the doorjamb." Id. The conflict escalated, and then, he testified, the victim attacked him with the scissors, and he defended himself with a knife he grabbed from a wall display. Id.

¶36 Hunter sought a Willits instruction because the police failed to preserve the scissors to allow for collection of latent fingerprints. Id . at 50, 664 P.2d 195. The trial court refused to give the instruction. Id . On review, our supreme court concluded that Hunter was entitled to the instruction. Id . As the court stated, "if the victim's fingerprints were on the scissors they would have to have been placed there during the stabbing incident, as appellant claimed at trial." Id. at 51, 664 P.2d 195. This would have "tended to corroborate [Hunter's] claim that the victim attacked him with the scissors." Id . "This is not a case," the court concluded, "in which the destroyed evidence was of no evidentiary value whatsoever." Id.

¶37 In Leslie , the defendant was convicted of capital murder. 147 Ariz. at 41, 708 P.2d at 722. The victim was found bludgeoned to death in her garage, her body was covered by several rugs, and a small, blood-stained axe was found in the garage. Id. at 42, 708 P.2d at 723. Her car was missing. Id . Later, police in a neighboring county attempted to arrest Leslie for speeding on the freeway. Id . He pulled off the freeway, got out of the car and fled, leaving two female passengers in the car. Id . Police impounded the car and later determined it belonged to the victim. Id . Leslie was arrested several hours later. Id .

¶38 At trial, Leslie testified and admitted that he burglarized the victim's home and stole her silver, but he denied killing her and claimed that "he never saw [the victim] that day." Id. To link Leslie not just to the stolen car but also to the murder, the state highlighted "several spots" found on the exterior of the car after it was impounded. Id. at 45, 708 P.2d at 726. The police officer who noted the spots believed them to be too small to test so he never notified the crime lab about them or sought to have them analyzed. Id. at 45-46, 708 P.2d at 726-27. Despite not having tested the spots, the same officer testified that based on his "experience as a police officer" in his opinion it was blood. Id. at 46, 708 P.2d at 727. A police criminalist admitted on cross-examination, however, that there was enough of the substance on the car to determine whether it was blood, although not enough to "type group[ ]" it. Id .

¶39 Based on the testimony regarding the blood, the defendant requested a Willits instruction, which was denied. Id . Then, in closing argument, the prosecutor stated:

What about the blood on the car? Okay. Detective Butler should have had the car checked out by the crime lab. There is no question about that, and we can all see that, I can see it.... The fact of the matter is, it looked like blood.
Detective Butler has seen blood before, you have all seen blood, there is a pretty strong inference that it was blood, blood that was put on the car after [the victim] was killed.

Id. at 46, 708 P.2d at 727.

¶40 On appeal, our supreme court determined that the spots potentially being blood "was a vital part of the state's case." Id . at 46, 708 P.2d at 727. It noted that there were no fingerprints on the murder weapon, and there was no blood on the defendant or on the inside of the car. Id. But blood found on the car "would indicate that the car was in the garage at the time of the murder and contradict defendant's testimony that he had not seen the victim" when "he burglarized the house and stole the car." Id . The court concluded that the trial court abused its discretion in failing to give the Willits instruction. It further stated:

We might be able to overlook the failure to preserve the evidence had the state not emphasized the fact it was blood. The state, in effect, created prejudice by using the blood to contradict the defendant's claim that he had never seen the victim. Thus we find prejudice in the state's failure to remove the spots and have them preserved, coupled with the state's affirmative comments concerning the fact that the spots were blood.

Id. at 47, 708 P.2d at 728.

¶41 Here, the majority incorrectly asserts that the third showing required by Glissendorf II -that the missing evidence be "potentially useful to a defense theory supported by evidence," 235 Ariz. 147, ¶ 10, 329 P.3d 1049 (quoting Glissendorf I , 233 Ariz. 222, ¶ 17, 311 P.3d 244 )-was met because "Hernandez's defense at trial was that he was not the driver of the car." Opinion at ¶ 15. That is just not so. Hernandez asserted no defense at all. At all times, he solely relied on the purported inability of the state to prove its case, whether because of a slip-shod investigation or weak identification evidence. Hernandez did not, for example, offer evidence of an alibi tending to show he was elsewhere at the time the officer placed him at the scene. Nor did Hernandez-as was his right-offer any evidence of his own that he was not the driver. Hernandez merely put the state to its burden of proof.

¶42 In his opening statement, this course was laid out:

So you will learn what the State has in this case, and what they have is a very quick few seconds of observation of who the driver was. They have another observation as to the profile as the driver was running away. They have a bad description of whoever that driver was and they also have a photo suggestion to try to make a[n] identification. But what don't they have? Fingerprints, photos, a video, the registration of the vehicle. Nothing in the vehicle that linked that driver to Mr. Hernandez.

He continued:

[We] don't have the burden of proof as the Judge has told you.
The burden lays only on this table and [the prosecution] ha[s] the burden to prove to you beyond a reasonable doubt as the Judge just said. That means that you must be left firmly convinced that it was Pablo Hernandez driving that day.

And, in summary:

[A]t the end of this trial my co-counsel ... will come before you and he will ask a question of you. If you are still wondering if it actually was Mr. Hernandez in that vehicle, let alone the driver, if that's still something you are thinking about, then you have to come with the only appropriate verdict of not guilty.

¶43 Hernandez did not assert that any evidence showed he was not in the car, or that he was in fact not present at the time, or that someone else confessed to the crime; each of which, if such evidence existed, could have been a defense theory supported by evidence. Instead, Hernandez simply based his case on the state's burden of proof. Such is a wholly legitimate, fair, and common-place way to defend a case. See State v. Hall , 136 Ariz. 219, 221, 665 P.2d 101, 103 (App. 1983) ("It is axiomatic that the burden is always on the state to prove all of the elements of the crime and the identity of the person who committed the crime beyond a reasonable doubt."); Ariz. R. Crim. P. 19.1(b)(4), (b)(5) ("the State must offer evidence in support of the charge;" "the defendant may ... offer evidence in his or her defense"). See also, e.g. , State v. Rodriguez , 126 Ariz. 28, 35, 612 P.2d 484, 491 (1980) ("The only question we have here is whether the defendant's attorney, over the objection of defendant, as a trial strategy, could decide not to call any witnesses after the State had rested. We think he could."). But doing so is not the same as having a defense theory supported by evidence. It is rather only and wholly a calculated risk that the state's theory will be insufficiently supported by evidence.

¶44 Had Hernandez, like Glissendorf, Hunter, and Leslie, either testified, presented some other testimony, or pointed to evidence supporting a defense theory to which fingerprint or DNA evidence would have been potentially useful, he might have met the third Glissendorf II requirement. Contrarily, had Hunter not asserted a self-defense theory supported by his testimony, had Leslie not testified that he was present but never saw the body of the victim, or had Glissendorf not been able to show concrete inconsistencies in the victim's testimony, it is unlikely that our supreme court would have found error in those cases.

¶45 The requirement that there be "a defense theory supported by the evidence" to which the lost evidence is "potentially useful," id. , either means something or it does not. Hunter , Leslie , and Glissendorf II certainly suggest that it does. In each case, there was independent evidence-whether the defendant's trial testimony or contradictions between pretrial statements and another witness's trial testimony. And, in each case, that evidence supported an asserted defense-self-defense, actual innocence, or fabricated witness testimony. If this predicate showing for a Willits instruction simply means that the defendant must put the state to its burden of proof, the requirement adds nothing to the inquiry; the state always bears the burden of proof. Perhaps in this case on review, or in another appropriate case, our supreme court will illustrate more concretely what it means by the need to have a "defense theory supported by evidence," Glissendorf II , 235 Ariz. 147, ¶ 10, 329 P.3d 1049 (quoting Glissendorf I , 233 Ariz. 222, ¶ 17, 311 P.3d 244 ), before the failure to give a Willits instruction becomes reversible error.

No Showing of Prejudice by the Loss of the Evidence

¶46 Finally, Hernandez failed to make any showing that he was prejudiced by the purported loss of evidence. Our supreme court in Glissendorf II repeated the requirement from a line of cases that a defendant seeking a Willits instruction show prejudice from the loss of evidence before he can obtain the instruction-not merely that he show prejudice on appeal because he was denied the instruction itself. 235 Ariz. 147, ¶ 8, 329 P.3d 1049. As the court stated thirty years earlier in Perez :

We hold today that where the state fails to act in a timely manner to ensure the preservation of evidence that is obviously material, and reasonably accessible, a defendant is entitled to a Willits instruction upon a showing that he or she was prejudiced thereby. In other words, where the state failed to procure obviously material evidence, the defendant must show actual prejudice before he or she can claim entitlement to a Willits instruction.

141 Ariz. at 464, 687 P.2d at 1219. That is, even if a defendant asserts a defense theory supported by evidence, he must show he was denied evidence that would have advanced that theory in a concrete way.

¶47 In Perez , the defendant was accused of robbing a convenience store. Id . at 463, 687 P.2d at 1218. He asserted a "mistaken identity" defense. Id . at 464, 687 P.2d at 1219. Detectives investigating the robbery viewed a store surveillance tape of the robbery, but did not take possession of the tape and it was ultimately erased by the store owner. Id . at 461, 463, 687 P.2d at 1216, 1218. Perez argued that the state's failure to preserve the videotape required a Willits instruction, and that, had the instruction been given, he "could have been acquitted." Id . at 463, 687 P.2d at 1218. The trial court denied the requested instruction and he was ultimately convicted of the robbery. Id. at 461, 687 P.2d at 1216. On appeal, our supreme court concluded that the tape was "obviously material" and the state-although it never possessed the tape-"could have, and ... should have" secured its possession. Id. at 463, 687 P.2d at 1218.

¶48 While recognizing the state "does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence," our supreme court stated that the prosecution does have a duty "to act in a timely manner to ensure the preservation of evidence it is aware of where that evidence is obviously material and reasonably within its grasp." Id. at 463, 687 P.2d at 1218. However, our supreme court found, despite the foregoing, that the trial court did not abuse its discretion in refusing to give a Willits instruction because Perez had not shown prejudice. Id. at 464, 687 P.2d at 1219. Our supreme court stated:

Though the videotape, in the instant case, was obviously material, easily accessible, and available for seizure for at least a "couple of days" before it was erased, the appellant has failed to make the requisite showing of prejudice. He has presented no evidence to support his assertion that had the videotape been presented to the jury, he would have been acquitted of the February 13th robbery because the tape would have proven his mistaken identity defense. In fact, the only evidence of the tape's probative value indicates that it would have inculpated rather than exonerated appellant .

Id. (emphasis added). Beyond the fact that Perez might have certainly benefitted from the Willits instruction at trial, because, as the court recognized, the tape would have likely confirmed the eyewitness accounts of the defendant's presence in the store, Perez "benefitted from its destruction" and was not prejudiced. Id . (emphasis omitted).

¶49 Here, the trial court found that, even had fingerprint and DNA evidence been found and collected, the results would have been "neutral" in terms of its capacity to exculpate or inculpate Hernandez. That is, had the Monte Carlo been tested for latent fingerprints and DNA, the presence of Hernandez's fingerprints and DNA would have inculpated him. However, the absence of useable fingerprints or conclusive DNA samples-or even the presence of fingerprint or DNA evidence showing that someone else at some point had been in the car-could not have exonerated him wholly or partially. Consequently, neither fingerprint nor DNA evidence would have been of any evidentiary value to Hernandez even had he presented an actual defense theory, and thus he cannot show the prejudice required for a Willits instruction.

¶50 Requiring that lost evidence be "potentially useful" in advancing a defense theory otherwise supported by actual evidence, such that a defendant is prejudiced by its loss, places reasonable limits on what can be a powerful instruction. Without such a reasonable limits, in every case with a claim that the state failed to prove presence at the scene of a crime beyond a reasonable doubt, the defendant will demand a Willits instruction because fingerprints or DNA -or even some witness who may or may not have seen him across town at the time-was not sought out. A defendant will be able to claim, for example, that, despite surveillance camera footage of someone who looks just like him in the convenience store holding a gun on the cashier, he is entitled to a Willits instruction because investigators failed to swab the counter for DNA and dust the door for prints. He will argue, because we would expect to find his prints and DNA at the store if he was the robber, the absence of his prints and DNA "tends to exonerate him"-a claim tethered to no defense other than the presumption of innocence and the state's burden of proof. A trial court, citing this opinion, would be required to give the Willits instruction. But a Willits instruction should not be the rule. A court should require that a defendant seeking the instruction show some reason, grounded in other evidence, as to why the uncollected evidence matters. By not requiring a link between the missing evidence and a defense theory otherwise supported by evidence in the record, this opinion is making new law.

¶51 Because Hernandez did not meet any of the requirements stated in Glissendorf II for a Willits instruction, let alone all of them, I cannot conclude that the trial court abused its discretion in denying the instruction. I respectfully dissent in part.

      Such an instruction is commonly known as a "Willits instruction."

      An "unduly suggestive" identification procedure described in Dessureault , triggering "the need for a reliability analysis," is the same as an "inherently suggestive" identification procedure described in other case law. See Rojo-Valenzuela , 237 Ariz. 448, n.1, 352 P.3d 917.

      In view of our resolution of this issue, we need not reach the state's argument that the identification procedure was not unduly suggestive because the identification was made as a matter of law enforcement necessity. See State v. Wood , 180 Ariz. 53, 72, 881 P.2d 1158, 1177 (1994) ("Our disposition of the other issues on appeal, however, makes it unnecessary to reach this issue.").

      Ordinarily, a Willits instruction is not warranted merely because the state fails to test evidence, but rather when the state causes or allows the evidence to be unavailable to the defendant. See Broughton , 156 Ariz. at 399, 752 P.2d at 488 (instruction inappropriate where state delayed testing evidence but did not destroy or lose it); State v. Watkins , 126 Ariz. 293, 301, 614 P.2d 835, 843 (1980) (failure to identify blood type on weapon not destruction of evidence); State v. Todd , 244 Ariz. 374, ¶ 24, 418 P.3d 1147 (App. 2018) (decision not to develop DNA or fingerprint evidence from weapon not destruction or loss of evidence). Here, the deputies neither preserved the car nor examined it for fingerprints or DNA. Instead, they released it to the owner a few weeks after the incident, which was approximately three months before Hernandez's arrest. This prevented the defense from conducting any fingerprint or DNA testing of its own.

      Likewise, the presence of fingerprints or DNA belonging neither to Hernandez nor anyone else with legitimate access to the car could have been exculpatory. As the trial court correctly noted, the presence of Hernandez's fingerprints or DNA in the car would have inculpated him. But, as made clear in Glissendorf II , and implicit in Willits itself, a defendant need only show that the lost evidence would have had the potential to be exculpatory: he need not show it would necessarily have been so.

      The state has not argued that error in failing to give a Willits instruction would be harmless.

      Hernandez argues the trial court also erred by precluding expert testimony from a Tucson Police Department detective, who would describe proper non-suggestive identification procedures. See Wood , 180 Ariz. at 72, 881 P.2d at 1177. Hernandez maintains such testimony was relevant to explain to a jury how the photo identification here, which deviated substantially from those procedures, was suggestive. Because we reverse for the reasons stated above, we do not reach this issue.

      This is not to say that, to receive a Willits instruction, Hernandez must exercise his constitutional right to testify in derogation of his constitutional right to refuse to do so. However, his testifying would merely be one of many possible ways, and likely the most direct way, by which to support a defense theory with evidence.

      One case suggests that, even where the defendant does not assert a defense theory supported by other evidence, a Willits instruction may be required where the state makes the untested evidence a centerpiece of its case. State v. Lang , 176 Ariz. 475, 485, 862 P.2d 235, 245 (App. 1993) (state focused closing argument on envelope tested for fingerprints but not DNA). Here, the state did not mention fingerprints or DNA except to address Hernandez's cross-examination and closing argument, and to say, in closing, "Now, there was a lot of testimony about DNA or fingerprint evidence, but there is no DNA or fingerprint evidence in this case." The state emphasized, "What we have is the out-of-court pretrial identification that Turner made within four or five minutes of first seeing Pablo Hernandez. We have the in-court identification of Pablo Hernandez."

      In the Willits case itself, the police allowed seized explosives to be destroyed by the military, which prevented Willits from proving his defense that the explosion was accidental. This defense was supported by expert testimony and Willits's own testimony at trial. 96 Ariz. 184, 187-88, 393 P.2d 274.

      Although the majority did not address the remaining issue on appeal-whether the defendant's cold expert was properly precluded-I would affirm the trial court on this basis as well. Given that Detective Deloria's proposed testimony was to describe police conduct-the preferred use of six-pack photographic line-ups-under different circumstances, it was not relevant to the facts of this case. Consequently, Deloria's proffered testimony did not satisfy Rule 702(a)-(c), Ariz. R. Evid., and the court did not abuse its discretion in precluding it.


source: Caselaw Access Project

author: JUSTICE HOOD delivered the Opinion of the Court. JUSTICE SAMOUR, concurring in part and dissenting in part.

license: Public Domain

text:
    OWNERS INSURANCE COMPANY, a Michigan corporation, Petitioner, v. DAKOTA STATION II CONDOMINIUM ASSOCIATION, INC., a Colorado corporation, Respondent.
    Supreme Court Case No. 17SC583
    Supreme Court of Colorado.
    June 24, 2019
    Attorneys for Petitioner: Wheeler Trigg O'Donnell LLP, Terence M. Ridley, Evan Bennett Stephenson, Kayla L. Scroggins-Uptigrove, Denver, Colorado, Wheeler Waters, P.C., Karen H. Wheeler, Jami A. Maul, Greenwood Village, Colorado
    Attorneys for Respondent: Orten Cavanagh & Holmes, LLC, Jonah G. Hunt, Denver, Colorado
    Attorneys for Amicus Curiae American Insurance Association: Foran Glennon Palandech Ponzi & Rudloff PC, Amy M. Samberg, Matthew S. Ponzi, Thomas Orlando, Denver, Colorado
    Attorneys for Amicus Curiae Colorado Defense Lawyers Association: American Family Insurance Legal Group, Dylan Lewis, Englewood, Colorado, Ruebel & Quillen, LLC, Jeffrey Clay Ruebel, Westminster, Colorado
    Attorneys for Amicus Curiae Colorado Trial Lawyers Association: The Frankl Law Firm, P.C., Keith E. Frankl, Greenwood Village, Colorado, Speights & Worrich Colorado LLC, David Roth, Denver, Colorado
    Attorneys for Amici Curiae National Association of Public Insurance Adjusters and Rocky Mountain Association of Public Insurance Adjusters: Sherman & Howard, LLC, Christopher R. Mosley, Denver, Colorado
    Attorneys for Amici Curiae Property Casualty Insurers Association of America and Colorado Civil Justice League: Sweetbaum Sands Anderson PC, Jon F. Sands, Marilyn S. Chappell, Denver, Colorado
    Attorneys for Amicus Curiae United Policyholders: Reed Smith, LLP, Jim Davis, Chicago, Illinois
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 A condominium association, Dakota, filed two claims with its insurer, Owners, for weather damage. The parties couldn't agree on the money owed, so Dakota invoked the appraisal provision of its insurance policy.

¶2 The appraisal provision requires each party to "select a competent and impartial appraiser." An umpire would be selected by the parties or appointed by the court. The appraisers would assess the value of the property and amount of loss. Any disagreement would be submitted to the umpire. Any agreement as to the values reached by at least two of the three would bind them all.

¶3 The parties each selected an appraiser, putting the rest of the provision's terms into motion. Ultimately, the appraisers submitted conflicting value estimates to the umpire, and the umpire issued a final award, accepting some estimates from each appraiser. Dakota's appraiser signed onto the award, and Owners paid Dakota.

¶4 Later, Owners called foul. It moved to vacate the award, arguing that Dakota's appraiser was not "impartial" as required by the insurance policy's appraisal provision and that she failed to disclose material facts. The trial court disagreed and "dismissed" the motion to vacate. A division of the court of appeals affirmed.

¶5 Having agreed to review the case, we must interpret the policy's impartiality requirement and determine whether a contingent-cap fee agreement between Dakota and its appraiser rendered the appraiser partial as a matter of law. We conclude that the plain language of the policy requires appraisers to be unbiased, disinterested, and unswayed by personal interest. They must not favor one side more than another, so they may not advocate for either party. We also hold that the contingent-cap fee agreement didn't render Dakota's appraiser partial as a matter of law.

¶6 Accordingly, we affirm the judgment of the court of appeals with respect to the contingent-cap fee agreement, reverse with respect to the impartiality requirement, and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶7 Dakota Station II Condominium Association Inc., the owner of a condominium development in Littleton, filed two claims with its insurer, Owners Insurance Company, for weather damage to the development.

¶8 Dakota disagreed with Owners about the value of the claims, so it invoked the following appraisal provision of its insurance policy:

If [Owners] and [Dakota] disagree on the value of the property or the amount of loss, either may make a written demand for an appraisal of loss. In this event, each party will select a competent and impartial appraiser . The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.

(Emphasis added.)

¶9 In accordance with this provision, each party selected an appraiser. The two appraisers couldn't agree on an umpire, so the court appointed one. The appraisers evaluated the property and submitted their conflicting estimates to the umpire. Each estimate included six cost categories.

¶10 After reviewing the appraisers' estimates and supporting documentation, the umpire adopted Owners' appraiser's estimates in four of the six cost categories and Dakota's appraiser's estimates in the other two. In total, the umpire found that the replacement cost reached almost $3 million.

¶11 Even though the umpire adopted four of Owners' appraiser's six cost estimates, Owners' appraiser didn't agree with the roof-cost estimate, the big-ticket category ($2,553,434.50), and wouldn't sign the final determination of costs. However, Dakota's appraiser and the umpire both signed the award. Owners then paid Dakota.

¶12 Months later, Owners filed a petition to vacate the award pursuant to section 13-22-223, C.R.S. (2018), of the Colorado Uniform Arbitration Act, arguing that Dakota's appraiser was impermissibly partial and failed to disclose material facts. Owners asserted that appraisers must be competent and impartial "like arbitrators." Owners later filed a clarification of the relief requested, explaining that the appraiser's "duties of impartiality stem from the Policy."

¶13 As relevant here, Owners alleged that Dakota's appraiser acted improperly by entering into a contract with the public adjuster that capped her fees at five percent of the insurance award (allegedly giving her a financial interest in the outcome).

¶14 Later, at an evidentiary hearing, Owners' counsel asked Dakota's appraiser whether she felt that "it's appropriate to be an advocate for an insured when you're acting as an appraiser." The appraiser replied: "I think it's natural. I think you're an advocate for ... Owners." In closing arguments, Owners' counsel argued that this testimony further demonstrated the appraiser's partiality.

¶15 The trial court "dismissed" the petition. Ultimately, the court concluded that Dakota's appraiser didn't act improperly or unlawfully. The trial court rejected Owners' contention that appraisers must act as impartially as an umpire or arbitrator in every instance. It reasoned that the law requires appraisers to be impartial in the sense that they must render their decisions based upon experience and not allow their findings to be influenced by the side that hired them or the side for whom they work.

¶16 The trial court also rejected Owners' contention that a contingent-cap fee provision of Dakota's appraiser's contract gave her an impermissible financial interest in the outcome of the appraisal. The appraiser's contract included a provision capping the appraiser's fees at five percent of the overall award but indicated that the provision would not apply unless it was initialed by the parties. The parties didn't initial it. However, the trial court concluded that the provision likely would have been enforceable against the appraiser if her fees had indeed exceeded five percent of the final award. The court reasoned that including the provision created an ambiguity that would be resolved against the appraiser, as the drafter.

¶17 Still, the trial court determined that the provision didn't render the appraiser impermissibly biased. It found the evidence "clear" that neither party thought that the cap applied. It also found the cap didn't come into play because, regardless of whose estimates the umpire adopted, the fee would have been well under the cap. It rejected the contention that the provision rendered the appraiser biased as a matter of law. (The trial court didn't explicitly address Owners' concern about the appraiser testifying that it is "natural" for an appraiser to be an advocate.)

¶18 Owners appealed, and in a split, published decision, a division of the court of appeals affirmed the trial court's judgment. Owners Ins. Co. v. Dakota Station II Condo. Ass'n, Inc. , 2017 COA 103, ¶ 1, 444 P.3d 784.

¶19 The division majority agreed with the trial court's reading of the impartial appraiser requirement, understanding it "to mean that an impartial appraiser in rendering his or her valuation opinion applies appraisal principles with fairness, good faith, and lack of bias." Id. at ¶ 20.

¶20 In reaching this conclusion, the majority first noted that any ambiguity in the definition of "impartial" is construed against Owners. Id. at ¶ 21 (citing Union Ins. Co. v. Houtz , 883 P.2d 1057, 1061 (Colo. 1994) ). Next, it acknowledged that Black's Law Dictionary defines impartial as "not favoring one side more than another; unbiased and disinterested; unswayed by personal interest." Id. at ¶ 22. However, based on the context of the appraisal provision, the majority "[didn't] agree that the impartial appraiser called for in this policy may not favor one side more than the other." Id . Because the provision requires the two appraisers to submit any differences to an umpire, the majority reasoned that "[t]he policy plainly contemplates that the appraisers will put forth a value on behalf of the party that selects them." Id. at ¶ 23. The majority agreed with the Iowa Supreme Court that, while the appraisers "must act fairly, without bias, and in good faith," they "do not violate their commitment by acting as advocates for their respective selecting parties." Id. at ¶ 24 (quoting Cent. Life Ins. Co. v. Aetna Cas. & Sur. Co. , 466 N.W.2d 257, 261 (Iowa 1991) ). Thus, the majority concluded, "[s]o long as the selected appraiser acts fairly, without bias, and in good faith, he or she meets the policy requirement of an impartial appraiser." Id.

¶21 The majority declined to apply the standard of impartiality applicable to arbitrators. Id. at ¶ 25 (citing Noffsinger v. Thompson , 98 Colo. 154, 54 P.2d 683, 683 (1936) ("An arbitrator ... is bound to exercise a high degree of impartiality, without the slightest degree of friendship or favor towards either party.")). In rejecting the application of this standard, the majority declined to follow language in a 1923 case from this court, Providence Washington Insurance Company v. Gulinson , which states that "[a]ppraisers are not [arbitration] referees, but their duty of impartiality is the same." Id. at ¶ 26 (quoting Providence Washington Ins. Co. v. Gulinson , 73 Colo. 282, 215 P. 154, 155 (1923) ). The majority distinguished Providence from the instant case. Providence , the majority explained, concerned an appraiser and the umpire entering an award without notice to the second appraiser-not the conduct at issue here. See id.

¶22 Finally, the majority addressed each of Owners' contentions regarding Dakota's appraiser's alleged misconduct. Id. at ¶¶ 27-69. Ultimately, the majority agreed with the trial court's findings that no misconduct occurred. Id.

¶23 As relevant here, the majority agreed with the trial court that, under the circumstances, the five percent cap on Dakota's appraiser's fees didn't demonstrate bias. Id. at ¶ 55. Because five percent of the final appraisal far exceeded the appraiser's actual billed fees and the parties didn't invoke the contract provision, the majority saw "no basis for concluding that [the appraiser's] impartiality was compromised." Id.

¶24 Judge Terry concurred in part and dissented in part. Id. at ¶ 71. In relevant part, she concluded that the trial court failed to "hold the insured's appraiser to the standard of impartiality provided for in the insurance policy." Id. Judge Terry gleaned the parties' intent "by looking to the plain and generally accepted meaning of the contract language." Id. at ¶ 73 (citing Copper Mountain, Inc. v. Indus. Sys., Inc. , 208 P.3d 692, 697 (Colo. 2009) ). She found the phrase "impartial appraiser" unambiguous, as Black's Law Dictionary clearly defines "impartial" as "[n]ot favoring one side more than another; unbiased and disinterested; unswayed by personal interest." Id. at ¶ 76 (quoting Impartial , Black's Law Dictionary (10th ed. 2014)). Allowing for an appraiser to advocate for the selecting party, according to Judge Terry, "would be to read the term 'impartial' completely out of the contract." Id. at ¶ 77.

¶25 Unlike the majority, Judge Terry concluded that Providence controlled. Id. at ¶ 79. She read Providence to establish "a general duty of impartiality for appraisers" to be as impartial as an arbitrator. Id. (citing Providence , 215 P. at 155 ). Because the trial court "never made specific findings as to whether [Dakota's appraiser] was in fact impartial," Judge Terry would have "reverse[d] and remand[ed] for the trial court to make additional factual findings as to whether [Dakota's] appraiser was impartial under the impartiality standard described in Providence ." Id. at ¶¶ 81-82.

¶26 Owners appealed, and we granted certiorari.

II. Analysis

¶27 First, we consider Owners' contention that Providence mandates that insurance appraisers act as impartially as arbitrators. We conclude that Providence 's holding is limited to notice issues and doesn't control our interpretation of the impartiality requirement here.

¶28 Next, we turn to the language of the insurance policy's appraisal provision. Based on the plain meaning of the word impartial, we conclude that the policy requires appraisers to be unbiased, disinterested, and unswayed by personal interest. They must not favor one side more than another. This means no advocacy on behalf of either party.

¶29 Finally, we consider Owners' contention that the contingent-cap fee agreement rendered Dakota's appraiser partial as a matter of law. Because the award did not reach the stated cap and the parties didn't believe the cap was in effect, we conclude that the cap didn't come into play and therefore doesn't demonstrate bias.

A. The Impartiality Requirement

¶30 Owners argues that the impartiality requirement in the insurance policy must be read to require appraisers to be as impartial as arbitrators. In support of this contention, it principally relies on Providence . See 215 P. at 155. First, we conclude that Providence doesn't control our interpretation of the impartiality requirement in this insurance policy. Then, we turn to the language of the policy.

1. Standard of Review

¶31 Insurance policies are contracts, interpretations of which we review de novo. See Cary v. United of Omaha Life Ins. Co. , 108 P.3d 288, 290 (Colo. 2005). Therefore, we review the meaning of the insurance policy's impartiality requirement de novo.

2. General Principles of Contract Interpretation

¶32 Employing general principles of contract interpretation, "we give effect to the intent and reasonable expectations of the parties" by enforcing the plain language of the contract. Hoang v. Assurance Co. of Am. , 149 P.3d 798, 801 (Colo. 2007). "When determining the plain and ordinary meaning of words, we may consider definitions in a recognized dictionary." Renfandt v. N.Y. Life Ins. Co. , 2018 CO 49, ¶ 18, 419 P.3d 576, 580.

3. Providence is Inapposite

¶33 Owners argues that Providence requires appraisers to be held to the same standards of impartiality as arbitrators. We disagree. Owners suggests that Providence articulated a general legal duty of appraisers, namely that, although they aren't arbitrators, "their duty of imparti[a]lity is the same." But Providence does not impose a general legal duty of impartiality on appraisers; the language Owners points to is dicta.

¶34 Providence involved a fire insurance policy that included a similar appraisal provision to the one at issue here. See 215 P. at 154. The relevant portion of the Providence policy stated: "In the event of disagreement as to the amount of loss, the same shall ... be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one and the two so chosen shall first select a competent and disinterested umpire." Id.

¶35 When the parties disagreed as to the amount of loss, each selected an appraiser, and the two appraisers selected an umpire. Id. at 154-55. However, one of the appraisers met with the umpire without notice to the second appraiser, and the two came to an agreement about the amount of loss. Id. at 155. We held that the award was invalid because of the lack of notice to the second appraiser. Id. at 155-56.

¶36 In reaching this conclusion, we invoked principles of "[n]atural justice" and compared appraisers to arbitrators, reasoning that "[a]ppraisers are not [arbitration] referees, but their duty of imparti[a]lity is the same." Id. at 155.

¶37 But ultimately, our holding was limited. We didn't establish a general duty of impartiality applicable to appraisers. We simply concluded that an award is invalid when one appraiser and the umpire agree to an award without notice to the second appraiser. That holding is confined to the specific notice problem presented in Providence . Because the conduct at issue here doesn't present a notice problem, Providence is inapposite.

4. An Individual Acting as an "Advocate" for One Side Cannot Simultaneously Be Considered "Impartial"

¶38 While the division majority's interpretation of the impartiality requirement doesn't conflict with Providence , it does conflict with the plain meaning of the word "impartial." The majority concluded that an appraiser can simultaneously advocate for a party and be impartial. Owners Ins. Co. , ¶ 67. However, the plain meanings of the words "impartial" and "advocate," as defined by commonly used dictionaries, see Renfandt , ¶ 18, 419 P.3d at 580, can't be reconciled.

¶39 Black's Law Dictionary defines "impartial" as "[n]ot favoring one side more than another; unbiased and disinterested; unswayed by personal interest." Impartial , Black's Law Dictionary (10th ed. 2014). Webster's New World College Dictionary similarly defines "impartial" as "favoring no one side or party more than another; without prejudice or bias; fair; just." Impartial , Webster's New World College Dictionary (5th ed. 2016).

¶40 In contrast, relevant definitions of "advocate" include "[s]omeone who assists, defends, pleads, or prosecutes for another," Advocate , Black's Law Dictionary (10th ed. 2014), and "a person who speaks or writes in support of something," Advocate , Webster's New World College Dictionary (5th ed. 2016).

¶41 To "advocate" for a party, by definition, involves acting for or in support of that party. Thus, to advocate for only one side in a dispute necessarily involves favoring one side over another. These definitions are fundamentally incompatible. In construing the phrase "each party will select a competent and impartial appraiser," we can't endorse a reading of the impartiality requirement that suggests one can simultaneously be an "advocate" for one of the parties and be "impartial."

¶42 The language of the appraisal provision doesn't create an ambiguity as to whether the meaning of the word "impartial" could encompass advocacy. The division majority reasoned that, because the provision requires the appraisers to submit differences to an umpire, the language of the provision both "distinguishes the 'impartial' appraisers from the umpire" and "plainly contemplates that the appraisers will put forth a value on behalf of the party that selects them." Owners Ins. Co. , ¶ 23. Thus, the division concluded that "the policy does not hold an appraiser to the standard of 'not favoring one side more than another.' " Id. at ¶ 24.

¶43 We disagree with the majority's reasoning. The provision certainly contemplates that the appraisers might submit conflicting values, but a difference in opinion could result for many reasons, including a legitimate difference of methodology. Nothing in the language suggests that values will be put forth on behalf of a party, and we decline to accept such a reading when it directly conflicts with the plain meaning of "impartial."

¶44 We conclude that the appraiser's conduct must be evaluated using the plain meaning of the word impartial. Thus, the policy requires the appraiser to be unbiased, disinterested, without prejudice, and unswayed by personal interest. She must not favor one side more than another. To conclude otherwise, in the words of Judge Terry, "read[s] the term 'impartial' completely out of the contract." Id. at ¶ 77 (Terry, J., dissenting). We reverse the holding of the court of appeals and remand so the trial court can determine whether Dakota's appraiser's conduct conformed to this standard.

B. The Fee Cap

¶45 Next, Owners argues that a five percent contingent-cap fee agreement tying Dakota's appraiser's compensation to the ultimate appraisal award rendered her partial as a matter of law. Dakota, on the other hand, argues that no such contractual cap was in place.

1. Standard of Review

¶46 Whether contingent-cap fee agreements that tie appraisers' compensation to the ultimate appraisal award render appraisers partial as a matter of law is a question of law, which we review de novo. See Palizzi v. City of Brighton , 228 P.3d 957, 962 (Colo. 2010) (noting that a ruling "as a matter of law" is a legal conclusion reviewed de novo). Therefore, we consider de novo whether the contingent-cap fee agreement rendered Dakota's appraiser partial as a matter of law.

2. The Fee Cap Didn't Render the Appraiser Partial as a Matter of Law

¶47 The trial court found that Dakota's appraiser drafted a document that included a provision capping the appraiser's recovery at five percent of the insurance award. However, "clear" evidence showed "that neither party thought that the five percent cap applied to this case." And, regardless of whose estimates the umpire adopted, the fee would have been well under the alleged cap. Even if the umpire had agreed with all six of Owners' appraiser's estimates, the total fees would have amounted to less than two percent of the final award. Thus, because the appraiser didn't believe the cap was in place and the award didn't appear to correspond to the estimates put forth by the appraiser, the trial court concluded that the provision didn't render the appraiser impermissibly partial.

¶48 Like the division majority, "we see no basis for concluding that [the appraiser]'s impartiality was compromised by this [five percent] fee cap when [five percent] of the final appraisal was far in excess of the actual billed fees and the contract provision was not invoked." See Owners Ins. Co. , ¶ 55. In such a case, where the appraiser didn't believe the cap was in effect and there is seemingly no relationship between the fees billed by the appraiser and the estimates she put forth, we can't say that hypothetical incentives rendered her partial. Thus, while we are wary of the possible incentives these agreements create, we decline to hold that they render appraisers partial as a matter of law.

III. Conclusion

¶49 We conclude that the plain language of the policy requires appraisers to be unbiased, disinterested, and unswayed by personal interest. They must not favor one side more than another, so they may not advocate for either party. We also hold that the contingent-cap fee agreement didn't result in partiality on these facts.

¶50 Accordingly, we affirm the judgment of the court of appeals with respect to the contingent-cap fee agreement, reverse with respect to the impartiality requirement, and remand for further proceedings consistent with this opinion.

JUSTICE SAMOUR concurs in part and dissents in part, and CHIEF JUSTICE COATS joins in the concurrence in part and dissent in part.

JUSTICE SAMOUR, concurring in part and dissenting in part.

¶51 I agree with the majority's determinations that our decision in Providence Washington Insurance Company v. Gulinson , 73 Colo. 282, 215 P. 154 (1923), is inapposite, maj. op. ¶¶ 33-37, and that the contingent-fee cap agreement did not render Dakota's appraiser partial as a matter of law, id. at ¶¶ 47-48. But I disagree with the majority's conclusion that the plain language of the policy prohibits appraisers from advocating for or favoring either party. Id. at ¶¶ 38-44.

¶52 The majority holds that the plain language of the policy essentially requires the same level of impartiality from appraisers as that expected of judges. See id. at ¶¶ 5, 44. On paper, today's decision has appeal. However, in practice, it is not feasible. After all, there is a reason why we do not allow judges, who must be impartial, to be selected and compensated by one of the parties. The policy requires each party to select and compensate its own appraiser. But the majority nevertheless rules that appraisers may not advocate for or favor one side. I fear that today's decision will lead to more disputes between insurance companies and their insureds and will result in an increase in litigation. Indeed, the majority draws a line between partial and impartial that is easily smudged. According to the majority, an appraiser who advocates for a party is partial, but an appraiser who explains her position, defends her work, and attacks the other appraiser's work is impartial. Id. at ¶ 44 n.5. Were we living in a utopia, I might consider joining the majority. Because we are not, I cannot do so. Therefore, I respectfully dissent in part.

¶53 The appraisal provision in the parties' insurance policy reads as follows:

If [Owners] and [Dakota] disagree on the value of the property or the amount of loss, either may make a written demand for an appraisal of loss. In this event, each party will select a competent and impartial appraiser . The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and [of the] umpire equally.

The majority zeroes in on a single word, "impartial," and reads it out of context. This is what leads it to misinterpret the provision.

¶54 Consistent with our caselaw, I would give effect to the intent and reasonable expectations of the parties by enforcing the plain and ordinary meaning of all the words used, see Hoang v. Assurance Co. of Am. , 149 P.3d 798, 801 (Colo. 2007), and by reading the provisions of the policy as a whole, rather than in isolation, Sachs v. Am. Family Mut. Ins. Co. , 251 P.3d 543, 545-46 (Colo. App. 2010). In doing so, I would "construe the policy so that all provisions are harmonious and none is rendered meaningless." Id. at 546 (emphasis added). Where appropriate, I would consult recognized dictionaries to ascertain the meaning of the terms used. Sch. Dist. No. 1 v. Denver Class. Teach. Ass'n , 2019 CO 5, ¶ 13, 433 P.3d 38, 41.

¶55 The plain and ordinary meaning of the policy requires the insurer and the insured each to select an appraiser who is "impartial." I do not take issue with the dictionary definitions of "impartial" on which the majority relies. The flaw in the majority's position is that it reads some of the language out of the provision, and that, in turn, renders the provision overly broad. Rather than construe the policy as simply requiring each party to select an appraiser who is "impartial," the majority holds that, in addition, a selected appraiser may not advocate for either party or favor one side. The majority ignores the term "select," which the parties presumably included in the policy to narrow the scope of the provision.

¶56 The provision does not address the conduct of a selected appraiser; it addresses the selection of an appraiser. The most sensible reading of the provision is that neither party may appoint a family member, a close friend, or an interested person (such as someone with a financial stake in the matter) as its appraiser. The provision does not say that an appraiser selected by a party must submit an impartial appraisal or that the work performed by an appraiser or the method used to arrive at an appraisal must be impartial. And the provision certainly contains no information related to whether a selected appraiser may advocate for anything or favor anyone. The provision is silent on all those issues. Had the parties intended the majority's construction, they presumably would have said so in the policy.

¶57 If, as the majority determines today, an appraiser must be impartial in all her work, why would there be a need for two appraisers (one selected by each party)? And why would the policy allow each party to pay for its own appraiser? We do not require two judges (one selected by each party), much less allow a judge to be paid by a party. One judge who is compensated by neither party suffices because we expect the judge's work and decisions to be impartial. Considering that the same impartiality expectation exists for appraisers, at least according to the majority, then one appraiser unpaid by either party should suffice. But that's not what the provision calls for.

¶58 The provision not only requires each party to select and pay for its own appraiser, it indicates that the two appraisers must select an umpire or, if they cannot agree on an umpire, either may request that a judge make that selection. The umpire is charged with resolving differences between the appraisals. Consequently, the policy contemplates that there may be disagreement on the final valuations submitted by the two appraisers and that the umpire will address any conflicts between those valuations. Not surprisingly, the parties are to bear the expenses related to the umpire's compensation equally. Given that the appraisers must select one umpire together and that the parties must pay an equal share of his expenses, and given further the role of the umpire, it makes sense to interpret the provision as not requiring that each appraiser's work and final valuation be impartial. The umpire is responsible for addressing any disagreements between the appraisers, including as a result of any partiality. In this sense, umpires are much more like judges than appraisers are.

¶59 I worry that today's decision, apart from its impracticality (or perhaps because of it), will lead to increased litigation between insurance companies and policyholders by either opening appraisers to attack as soon as there is disagreement on their valuations, or, as happened here, allowing parties to intentionally sit on an impartiality issue so that they may later upend an unsatisfactory decision by an umpire. Even more troubling is the fact that the majority's interpretation further tips the scale in favor of the insurance industry. There is already an imbalance of power in this area because, unlike policyholders, insurers are repeat players in the appraisal process. Allowing an appraiser to advocate for the policyholder to an umpire helps level the playing field. Today the majority takes that away.

¶60 I see nothing in the policy that prevents an appraiser from advocating for a position in favor of the party that retained her. Because formulating an appraisal is not an exact science, two selected appraisers may be partial and advocate for and favor different parties while remaining fair and reasonable.

¶61 Significantly, when an appraiser advocates for her own work and final valuation, she essentially advocates for one party, and it's human nature to expect (and want) an appraiser to advocate for her own work and final valuation. Stated differently, having an appraiser advocate for her own work and valuation will almost certainly favor one side. Does the majority believe that this runs afoul of the policy? And if not, what is the difference between, on the one hand, an appraiser explaining and defending her final valuation and attacking the other appraiser's final valuation, all of which the majority says is allowed, and, on the other, an appraiser advocating for her final valuation, which the majority says is prohibited? Are there magic words that transform a permissible defense of one's appraisal or an acceptable attack of the other appraiser's work into prohibited advocacy? Or is the determining factor the appraiser's tone or gestures? And how do we divine whether an appraiser's explanation is "motivated by a desire to benefit a party," such as by seeking "top dollar," or "by a desire to reach an accurate outcome"? Maj. op. ¶ 44 n.5.

¶62 Because I cannot make heads nor tails of the distinction the majority draws between partial and impartial conduct, and because I believe the majority does a disservice by further muddying what are already murky waters, I respectfully dissent in part. I would affirm the division's judgment on other grounds.

I am authorized to state that CHIEF JUSTICE COATS joins in this concurrence in part and dissent in part.

      The appraisal award included adopted estimates for "replacement cost" and "actual cost." The parties focus their attention on the "replacement cost" estimates, so we do the same.

      Owners' appraiser believed that the total replacement cost was closer to $2.3 million and placed the roof-cost estimate at $1,865,402.74.

      We granted certiorari to address the following issues:
      1. Whether the court of appeals' rule permitting insurance appraisers to "favor one side more than the other" and act as "advocates" for the selecting party conflicts directly with this court's holding in Providence Washington Insurance Co. v. Gulinson that such "[a]ppraisers are not [arbitration] referees, but their duty of impartiality is the same." 73 Colo. 282, 215 P. 154, 155 (1923).
      2. Whether the court of appeals' rule permitting insurance appraisers to utilize contingent-cap fee agreements that tie the appraiser's own compensation to the ultimate appraisal award conflicts directly with the holding from Providence Washington Insurance Co. v. Gulinson , 73 Colo. 282, 215 P. 154, 155 (1923), that such appraisers must be impartial in the same manner as an arbitrator.

      To the extent that one could attempt to resolve this tension by focusing on the word "select," we find that interpretation unreasonable. It occurs to us that one might seize on the word "select" to suggest that the appraiser need only be impartial when chosen. But none of the parties or amici ask us to adopt that reading, and we know of no court that has relied on the word "select" to reach that conclusion. In contrast, several courts have used dictionary definitions of "impartial" to interpret this common appraisal provision. See, e.g. , Landmark Am. Ins. Co. v. H. Anton Richardt, DDS, PA , No. 2:18-cv-600-FtM-29UAM, 2019 WL 2462865 at *2, *3 (M.D. Fla. June 13, 2019) (using Black's Law Dictionary's definition of "impartial" to interpret an insurance policy instructing parties to "select a competent and impartial appraiser"); Veranda Gardens, LLC v. Secura Ins. , No. 3:18-cv-611-DJH-RSE, 2019 WL 2438788 at *1, *3 (W.D. Ky. June 10, 2019) (same); Verneus v. Axis Surplus Ins. Co. , No. 16-21863-CIV-MARTINEZ/GOODMAN, 2018 WL 4150933 at *1, *3 (S.D. Fla. Aug. 29, 2018) (same); Great N. Ins. Co. v. 100 Park Ave. Homeowners Ass'n, Inc. , No. 16-cv-02009-RPM, 2017 WL 10924246 at *1, *3-4 (D. Colo. Mar. 13, 2017) (order granting summary judgment) (using definitions of "impartial" and "partial" in Webster's II New Riverside University Dictionary to interpret an insurance policy instructing parties to "select and pay a competent and impartial appraiser"). Moreover, even if we were to adopt such a reading, it would leave unanswered the question of what parameters, if any, should govern post-selection.

      In reaching this conclusion, we acknowledge a distinction between advocating for a party and explaining a position. An appraiser can certainly explain her position without running afoul of the provision's impartiality requirement. An appraiser may, for example, defend her choice of methodology or use of certain data. Conversely, an appraiser may explain why she feels another appraiser's methodology or use of data is wrong. In neither instance would the appraiser necessarily be acting as an advocate on behalf of a party to the dispute. An appraiser advocates for or on behalf of a party when her actions are motivated by a desire to benefit a party. For example, if an appraiser simply seeks top dollar for a client, that is improper. In contrast, explaining a position or defending a choice in methodology can be motivated by a desire to reach an accurate outcome.