City of Seattle v. Duncan
| Decision Date | 04 August 1986 |
| Docket Number | No. 17045-7-I,17045-7-I |
| Citation | 723 P.2d 1156,44 Wn.App. 735 |
| Parties | CITY OF SEATTLE, Appellant, v. James K. DUNCAN, Respondent. |
| Court | Washington Court of Appeals |
Will Roarty, City Atty., Seattle, for appellant.
Marilyn Young-Skoglund, Seattle-King County Public Defender, Seattle, for respondent.
The City of Seattle (City) appeals the superior court's reversal and dismissal of a municipal court conviction of property destruction. We granted discretionary review and reverse.
On August 2, 1984, at approximately 3 p.m. Donald Sankus was leaving the parking lot of a service station in his vehicle. His car stalled on the sidewalk of the driveway and protruded onto Highway 99. At the same time, a truck driven by James Duncan turned onto Highway 99 and proceeded at a high rate of speed. Upon seeing Sankus' car protruding onto the highway, Duncan applied his brakes in an attempt to avoid Sankus. Duncan skidded for about 10 feet. From this point, the testimony of Sankus and Duncan Sankus maintains that as he attempted to start his car to move it back into the service station lot, Duncan jumped from his truck and ran to the driver's side of Sankus' car. Duncan kicked the driver's side door twice leaving a footprint shaped dent in Sankus' car door. Duncan then ran back to his truck and left. After examining the damage, Sankus went into the service station and telephoned the police.
differ.
Duncan, on the other hand, testified that after getting out of his truck, he ran towards Sankus' car and told him to "hold on" because he felt that the front hub of his vehicle had been damaged. When Duncan got close to the car, he could tell that Sankus was bigger than he and angry. Duncan further maintains that as he approached the car window, Sankus began swearing at him. He testified:
Duncan also testified that after returning to his truck he turned his truck into the service station parking lot. In the lot, he saw Sankus' car, but not Sankus. He wrote down Sankus's license number and went straight home and called 911. He contends that he reported the incident in "every detail" within 15-20 minutes of the confrontation. The police report, however, states that Duncan "called in to Duncan was subsequently charged with property destruction for the door-denting incident. 1 Duncan moved for discovery of the 911 tape of his call. An order granting access to the tape was obtained. It was then discovered that the tape had been routinely destroyed prior to Duncan's discovery request. Duncan then moved to dismiss the charge alleging that the tape contained evidence supporting his assertion that he put his foot on the car door in self defense. He argued that destruction of such material and favorable evidence warranted dismissal. The motion was denied and Duncan was convicted as charged.
report a traffic accident where the other driver displayed a hand gun" 1 hour and 37 minutes after the incident.
On appeal to the superior court the municipal court was reversed and the charge dismissed because of the destruction of the tape.
The question before this court is whether the superior court correctly construed State v. Vaster, 99 Wash.2d 44, 659 P.2d 528 (1983). 2 Duncan contends that Vaster stands for the proposition that a prosecution must be dismissed if there is a reasonable possibility that the destroyed evidence affected the defendant's ability to present a defense. Vaster, at 52, 659 P.2d 528. Duncan maintains that if the tape had been preserved he could have established his defense without giving up his Fifth Amendment right to remain silent. He also asserts that the contents of the tape would have corroborated his testimony if he did choose to testify.
The City argues that under Vaster a defendant must show that there exists a reasonable possibility that the destroyed evidence would exculpate the defendant before destruction of the evidence will constitute a due process violation. Vaster, at 52, 659 P.2d 528. The City contends that overwhelming evidence of guilt as well as the trial court's findings belie any contention that the tape recording had a reasonable possibility of exculpating Duncan.
In its decision to reverse Duncan's conviction, the superior court judge stated:
A due process violation occurred when the prosecution failed to preserve the 911 tapes in this case. Defendant was able to establish a "reasonable possibility" that the evidence would be favorable and material to the defense case. See Vaster [supra ] ...
(Emphasis added.)
A proper interpretation of Vaster is dispositive of Duncan's case. It is particularly important since the arguments of the parties as well as the superior court's decision rely solely on various excerpted statements from the case taken out of context. Viewed in its entirety, however, Vaster supports the City's contention.
In Vaster, the court considered whether the inadvertent destruction of a rape victim's vaginal fluid sample violated the defendant's due process right. Vaster, at 48, 659 P.2d 528. The court adopted a balancing test to be applied in cases of inadvertent or good faith destruction of evidence. The court stated:
In weighing the burdens necessarily imposed on both the defendant and the prosecution, a court should first consider whether there exists a reasonable possibility that the missing evidence would have affected the defendant's ability to present a defense. The burden of establishing that "reasonable possibility" rests with the defendant. "Reasonableness" must be determined in light of the peculiar circumstance of each case. Lost or destroyed evidence which does not rise to the level of establishing a "reasonable possibility" that it will exculpate a defendant will be deemed insufficiently material to constitute a due process violation.
Vaster, at 52, 659 P.2d 528; State v. Campbell, 103 Wash.2d 1, 18-19, 691 P.2d 929 (1984) cert. denied, --- U.S. ---- 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985). Whether a reasonable possibility exists that the lost evidence would be "exculpatory must be determined by reviewing the entire record, including evidence of guilt as well as other evidence of the defense." State v. Huxoll, 38 Wash.App. 360, 366, 685 P.2d 628 (1984); accord, State v. Wright, 87 Wash.2d 783, 789-90, 557 P.2d 1 (1976).
In Vaster, the court held that the destruction of the vaginal fluid sample did not materially affect the issue of guilt or innocence. The court stated that the 12 percent probability of the fluid sample being exculpatory might create a "reasonable possibility" in some cases. In light of the evidence presented, however, the court was unwilling to make such a finding.
The court noted that there was extremely strong evidence of Vaster's guilt including a detailed eyewitness identification and an exact "match-up" between Vaster and the original description given. Vaster, 99 Wash.2d at 53, 659 P.2d 528. Under the circumstances, the court did not believe that the loss of the sample abridged Vaster's due process right to a fair trial. Vaster, at 54, 659 P.2d 528.
It is apparent that the mere fact that the evidence was "material and potentially favorable to the defense was not enough for the Vaster court. It looked further to determine whether there was a reasonable possibility that the destroyed evidence would be exculpatory. In the case sub judice, the superior court reversed Duncan's conviction relying solely on the ground that there was a reasonable possibility that the evidence was material and favorable to Duncan. There is no indication that the court considered whether a reasonable possibility exists that the destroyed evidence would exculpate Duncan in light of all the other evidence presented. This is the analysis advocated by the City and required by Vaster. We, therefore, must determine whether the superior court's ruling should be sustained in light of all the evidence presented.
There are a number of cogent reasons for determining that there is not a reasonable possibility that the destroyed tape would exculpate Duncan.
First, after hearing all the testimony, the municipal court judge determined that the 911 call was placed by Duncan, not soon after the averted automobile accident, but rather after a later confrontation between Duncan and Sankus. Apparently, Sankus obtained Duncan's address after filing the police report. He then went to Duncan's house to obtain restitution for the damage. A confrontation ensued. As the trial court noted:
I don't know if later there was some altercation between the two men that might have prompted him to call the police, call 911, or whatever to complain that he was in danger of being assaulted. But if I do find that if that did happen, it happened sometime after this incident occurred and was not related to this particular aspect of their confrontation.
(Emphasis added.) In light of this finding, it is doubtful that the 911 call was relevant to the disposition of the door-kicking incident before the court.
Second, even if the 911 call was deemed relevant, it would be inadmissible. Contrary to Duncan's assertions, it is not admissible as a prior consistent statement pursuant to ER 801(d). The call was...
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