A New Mexico man who claims he broke the nose of a guard with the Arizona Department of Corrections (ADC) to prove to other inmates he was not “a rat” is not entitled to a new trial just because prison officials failed to preserve video recorded immediately after the incident, the Arizona Court of Appeals has ruled.
Shawn Moore was serving a New Mexico prison term in an ADC facility in March 2018 when he head-butted Corrections Officer Joshua Nielsen. He told a jury he did so because the guard had been calling Moore an “805,” a term that can refer to an inmate in protective custody or receiving special consideration.
Moore was convicted by a Pinal County jury of aggravated assault and sentenced by Judge Christopher O’Neil to 10 years in prison. The sentence does not begin until Moore’s New Mexico sentence for burglary, child abuse, and kidnapping expires.
On appeal, Moore argued O’Neil abused his discretion by not giving a jury instruction about the fact ADC officials did not keep a video recording he claims captured his explanation for the attack minutes after it happened. Moore contends the video would show his comments about Nielsen calling him an 805 in front of other inmates.
The jury instruction, commonly known as a Willits instruction, tells jurors they may choose to infer “that missing or destroyed evidence would have been exculpatory when the state negligently failed to preserve the evidence.”
On Dec. 18, the court of appeals released a unanimous decision affirming O’Neil’s denial of a Willits instruction. The appellate decision notes Moore’s comments were not admissible even if the video still existed, because there was “a sufficient amount of time between head-butting Officer Nielsen and the arrival of the response team with the video camera” to fabricate a justification.
Moore has until Jan. 19 to petition for review to the Arizona Supreme Court.
Court records show Nielsen was helping to move Moore from a recreation area to his cell. Moore was restrained, but when a security door opened he lunged at Nielsen.
In his testimony, Moore insisted he only meant to head-butt the guard in the chest but ended up hitting Nielsen in the face. He initiated the assault “under duress” to show he was not “a rat, a coward, a number of things that you can’t have in prison,” where an 805 designation puts an inmate at risk of attack by other inmates, Moore testified.
Prior to trial, Moore’s defense attorney Steven Czop requested a copy of the video recording but was told by an investigator with the Inspector General Bureau that it no longer existed. As a result, Czop asked O’Neil to provide the Willits instruction to the jury.
The prosecutor opposed such an instruction, arguing that even if Moore’s statement about his motive was captured on tape, it was inadmissible. The state also contended there was no evidence the video would have contained anything exculpatory for Moore’s defense against an assault charge.
Moore’s conduct while housed with ADC will delay his release on the New Mexico charges, according to court records. He must complete that sentence before the 10-year sentence begins, O’Neil ordered.