Albrecht v. State, 49S00-9901-CR-55.

• Decision Date: 19 October 2000
• Docket Number: No. 49S00-9901-CR-55.,49S00-9901-CR-55.
• Citation: 737 N.E.2d 719
• Parties: Michael G. ALBRECHT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

737 N.E.2d 719

Michael G. ALBRECHT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49S00-9901-CR-55.

Supreme Court of Indiana.

October 19, 2000.

Katherine A. Cornelius, Marion County Public Defenders Office, Appellate Division, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Kathryn Janeway, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

A jury convicted Michael Albrecht for the 1992 murder of his wife Cynthia for which he was sentenced to sixty years imprisonment. In this direct appeal, Albrecht raises six issues for our review which we rephrase and reorder as follows: (1) did the State fail to preserve and provide the defense with exculpatory evidence; (2) did the trial court improperly exclude evidence related to Albrecht's defense; (3) did the trial court improperly admit evidence offered by the State; (4) was Albrecht tried by a fair and impartial jury; (5) did the trial court err in its instructions to the jury; and (6) was the evidence sufficient to support the conviction? We affirm.

Facts and Procedural History

Cynthia and Michael Albrecht worked for different owners participating in the Championship Auto Racing Teams (CART) series. During the 1992 CART season the Albrechts began experiencing marital difficulties. As a result, Cynthia moved out of the marital home and thereafter filed for divorce. On October 26, 1992, one day before the divorce was scheduled to become final, Cynthia returned home from the final CART race of the season. She had made plans to meet a male friend in Florida later that week. However, after making a telephone call at approximately 9:30 p.m., Cynthia disappeared. Her naked and decapitated body was discovered several weeks later in a field in Northern Indiana.

On June 4, 1997, after a five-year criminal investigation, the State charged Albrecht with Cynthia's murder. One of the State's key witnesses at trial was William Filter, a long-time friend of Michael Albrecht. He had initially provided Albrecht with an alibi for the evening Cynthia disappeared. However, Filter later changed his story and told police that Albrecht had planned to murder Cynthia after their marriage soured. The plan included decapitating Cynthia to make identification of her body difficult. A jury convicted Albrecht of murder, and the trial court sentenced him to sixty years in prison. Albrecht filed a motion to correct error raising many of the issues he presents to us on appeal. The trial court denied the motion. This appeal followed. Additional facts are set forth below where relevant.

Discussion

I.

In his motion to correct error Albrecht sought a new trial complaining that the State failed to preserve and provide him with the interview notes of an FBI agent. According to Albrecht, the State's action denied him due process of law and the right to a fair trial. The essential facts are these. The FBI assisted Speedway police in investigating Cynthia's death. Working out of Milwaukee, Wisconsin, agent Daniel Craft interviewed several friends and relatives of Albrecht. In this appeal, Albrecht's claim focuses on the notes taken during Craft's two interviews of Albrecht's wife of a previous marriage. During the interviews, Craft made handwritten notes and thereafter reduced the notes to a summary report. In response to Albrecht's discovery request for notes, notations or any memoranda of oral statements, the State provided the summary reports. However, the State did not provide Albrecht with the handwritten interview notes. The record shows that Craft placed the notes in the FBI's Milwaukee case file, which was supposed to be forwarded to the Indianapolis office. Apparently, the FBI failed to forward the notes to Indianapolis, and in 1995, three years after the interviews took place, the notes were destroyed according to normal FBI procedure. At trial the State called Craft as a rebuttal witness. During his testimony, Craft referred to a portion of his interview with Albrecht's former wife that was not mentioned in his summary report. Specifically, Craft testified that Albrecht's former wife, Kathleen, told him that she was a light sleeper and would do anything to get Albrecht back.¹ Albrecht contends the now missing interview notes would have impeached Craft's trial testimony by demonstrating that Craft was mistaken about his recollection of the interview.

Adopting the United States Supreme Court's decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), this Court has declared that the scope of the State's duty to preserve exculpatory evidence is:

limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Holder v. State, 571 N.E.2d 1250, 1255 (Ind.1991) (quoting Trombetta, 467 U.S. at 488-89, 104 S.Ct. 2528 (footnote and citation omitted)). The notes at issue here do not meet the standard of constitutional materiality as Albrecht has not shown that the handwritten interview notes played a significant role in his defense. More specifically he has not demonstrated that the notes possessed an exculpatory value. Holder, 571 N.E.2d at 1255. Exculpatory is defined as `[c]learing or tending to clear from alleged fault or guilt; excusing.' Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct.App.1997) (quoting BLACK'S LAW DICTIONARY 566 (6th ed.1990)). Even assuming the notes could have in some way impeached Craft's trial testimony, such impeachment would have hardly risen to the level of clearing Albrecht of Cynthia's murder. Furthermore, Albrecht provides no basis for us to conclude that Craft's notes would have shown whether Kathleen actually made the statements or that Craft's recollection of the interview was incorrect. Craft testified that the summary reports, which did not mention the statements, were a reliable and complete account of the interview. Albrecht used the reports to impeach Craft's recollection of the interviews. Thus, he accomplished the task for which he now claims the notes were necessary.

At most, the notes may have been potentially helpful to Albrecht's case as additional evidence. However, the State's failure to preserve useful evidence violates the Fourteenth Amendment only when the defendant can show bad faith on the State's part. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Vermillion v. State, 719 N.E.2d 1201, 1206 (Ind.1999),reh'g. denied;²see also Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961)

(declaring that where the pre-trial destruction of an FBI agent's notes, which were transferred to other documents that were made available to the defense, was done in good faith as part of a normal practice, their destruction would not be impermissible nor deprive a defendant of any right). Here, Albrecht has made no showing of bad faith. He was not denied due process of law nor the right to a fair trial.

II.

Albrecht asserts the trial court improperly excluded evidence related to his defense, namely: the results of a witness's polygraph examination, evidence that a witness worked as a confidential informant, and the deposition testimony of an absent witness.

A. The polygraph examination

Matthew Kernal had dated Cynthia on at least one occasion and was initially identified by police as a possible suspect in her death. At the request of police, Kernal took a polygraph exam, and some of his responses showed signs of deception. Albrecht attempted to get the results before the jury, but the trial court ruled they were not admissible.

As a general proposition a trial court is given wide discretion in determining the admissibility of evidence. However, it has no discretion to admit evidence of a polygraph examination absent a waiver or stipulation entered into by both parties. Wright v. State, 593 N.E.2d 1192, 1194-95 (Ind.1992). Here, the State did not agree to the admission of Kernal's polygraph results. Therefore, the trial court properly excluded the evidence. Further, Albrecht's claim that the State's failure to consent to admission of the results denied him a fair trial is unavailing. The State is not required to stipulate to the admission of polygraph results. Hestand v. State, 491 N.E.2d 976, 979 (Ind.1986). We find no error here.

B. Evidence that Kernal worked as a confidential informant

Speedway Police led the investigation into Cynthia's murder. Albrecht argues that evidence should have been admitted to show that police did not thoroughly investigate Kernal because of their association with him as a confidential informant. The essential facts are these. During the course of trial, defense counsel received a telephone call from a man claiming Kernal worked with Speedway Police as a confidential informant in a case involving the caller. One of Albrecht's main defense strategies was to call into question the department's diligence in thoroughly investigating the murder and other potential suspects, including Kernal. Albrecht questioned Kernal outside the presence of the jury about his alleged work as an informant. Kernal denied knowing the caller or working as an informant. Instead, he stated that he once helped a friend who worked as an informant by riding around with him and identifying potential drug dealers. Kernal also did not recall working with Speedway Police and said that he never received favorable treatment from police for helping his friend. After hearing Kernal's testimony, the trial court precluded Albrecht from presenting evidence on the topic, stating that it found no evidence to link the information to this case. We agree.

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