Collins v. Com.

• Decision Date: 22 May 1997
• Docket Number: No. 96-SC-578-MR,96-SC-578-MR
• Citation: 951 S.W.2d 569
• Parties: Jerry COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 569

951 S.W.2d 569

Jerry COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-578-MR.

Supreme Court of Kentucky.

May 22, 1997.

As Modified Sept. 4, 1997.

Case Ordered Published Sept. 4, 1997.

Daniel F. Dotson, Whitesburg, for Appellant.

A.B. Chandler III, Attorney General, Carol Ullerich, Criminal Appellate Division Office of the Attorney General, Frankfort, for Appellee.

GRAVES, Justice.

Appellant was convicted in the Letcher Circuit Court of the first-degree rape, second-degree rape, second-degree sodomy, incest and first-degree wanton endangerment of his stepdaughter, L.T. He was sentenced to life imprisonment. Appellant appeals to this Court as a matter of right. We have carefully reviewed the record and, finding no error, affirm the judgment and sentence.

The victim, L.T., testified that Appellant had sexually abused her from 1988 to 1992, when she was between the ages of nine to fifteen years old. L.T. stated that Appellant had forced her to engage in sex at least one hundred times during this period. The abuse occurred in the family home, as well as in a trailer at Appellant's job site. Appellant practiced coitus interruptus and ejaculated either into a towel or underwear. L.T. testified that Appellant kept a towel hidden between the mattress and box springs in his bedroom for such purpose.

Appellant was arrested in 1993 when L.T., after reading a magazine article describing a similar ordeal endured by another girl, divulged the abuse. Shortly thereafter, L.T.'s mother discovered a soiled towel between the mattress and box springs of Appellant's bed. Upon mentioning the towel to a deputy sheriff and two social service employees, the mother placed the towel into a plastic bag, pursuant to their instructions, and put the bag in a closet for safe keeping. The towel was never collected and was subsequently lost.

Prior to trial, Appellant filed a motion to compel production of the test results on the towel. Due to a reference in the grand jury transcript, counsel mistakenly believed that the towel had, in fact, been collected and tested. Upon discovering that such had not occurred, Appellant filed a motion in limine to exclude all reference to the towel. Although testimony concerning the towel was ultimately admitted at trial, Appellant was given a missing evidence instruction.

Only three witnesses testified during the Commonwealth's case in chief: L.T., her mother, and Dr. Artie Bates, who testified both as L.T.'s treating physician and as an expert on the physical aspects of child sexual abuse cases. The jury convicted Appellant of three counts of first-degree rape, three counts of second-degree rape, four counts of second-degree sodomy, one count of first-degree wanton endangerment, and incest. Appellant was sentenced to life imprisonment. Appellant's motions for a judgment N.O.V. and new trial were denied, and this appeal ensued. Additional facts will be developed as necessary in the course of this opinion.

COMMONWEALTH'S FAILURE TO COLLECT THE TOWEL

Appellant argues that the Commonwealth's failure to collect and preserve the towel violated his right to due process and fundamental fairness under the Kentucky Constitution. Appellant relies primarily on this Court's opinion in Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988), in which we stated:

Appellant further contends that it was reversible error for the prosecution to have lost one of the bullets found at the scene. He argues that the loss is inexcusable and renders the fact-finding of the prosecution skewed and perverted.... In order to establish a due process violation, the evidence must be either intentionally destroyed, or destroyed inadvertently outside normal practices. Furthermore, the lost evidence must "possess an exculpatory value that was apparent before it was destroyed." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). Appellant has failed to satisfy this test. He has not proven that the loss was anything but an unforeseen accident which occurred in the normal course of the police department's business and there is no indication that the lost bullet would tend to clear him.

Id. at 54.

It is Appellant's contention that the towel was lost "outside normal practices" of the police department. Shortly after Tamme was decided, the United States Supreme Court rendered Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The factual scenario resembles the present case in that the State failed to refrigerate the victim's clothing for the purposes of preserving it for semen tests, as well as failed to properly preserve semen samples which were collected. In holding that no due process violation occurred, the Court stated:

[T]he Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant.... We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.

Id. at 57-58, 109 S.Ct. at 337.

The rationale in Youngblood marked a departure from the Supreme Court's previous decision in Trombetta, supra, which was the basis for this Court's opinion in Tamme, supra. The Court noted that Trombetta involved evidence whose exculpatory value was "apparent." In Youngblood, however, respondent could not demonstrate that "police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the boy's clothing; this evidence was simply an avenue of investigation that might have led in any number of directions." Id. at 56, note 2, 109 S.Ct. at 336, note 2. The Court concluded that a showing of bad faith is requisite to finding a due process violation. Id. at 58, 109 S.Ct. at 337.

Appellant urges this Court to reject the bad faith approach of Youngblood in favor of a balancing test simply because Section 2 of the Kentucky Constitution ¹ uses different wording from that of the federal Due Process Clause ². It is the slight variation in language which leads Appellant to the conclusion that Section 2 provides more expansive rights. In support, Appellant cites several decisions from other jurisdictions holding that the negligent loss of evidence violates state constitutional protections even if the degree of bad faith necessary to satisfy the Youngblood test is absent. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995); State v. Delisle, 162 Vt. 293, 648 A.2d 632 (1994); Ex Parte Gingo, 605 So.2d 1237 (Ala.1992).

Appellant states that no Kentucky decision has dealt with the issue of lost evidence since Tamme, supra, and therefore we have not actually adopted the bad faith requirement. However, the Kentucky Court of Appeals cited Youngblood with favor in Allen v. Commonwealth, Ky.App. 817 S.W.2d 458 (1991), and this Court has recognized and applied the bad faith analysis in Johnson v. Commonwealth, Ky., 892 S.W.2d 558 (1994) and Perdue v. Commonwealth, Ky., 916 S.W.2d 148 (1995).

We realize that there are two striking differences between the present case and prior decisions. First, unlike the prior cases in which evidence was properly collected but ultimately destroyed or lost, the Commonwealth in this instance never came into possession of the towel. Second, because the Commonwealth in the prior cases initially had the evidence in question, documentation and test results were provided to the defense even though the actual evidence was no longer in existence. Thus, this is a case of first impression in that this Court has not previously been presented with a situation in which the Commonwealth failed to collect evidence. However, we are of the opinion that this may be a distinction without a difference.

The Commonwealth concedes, and we agree, that it was negligent in failing to collect and preserve the towel. Nonetheless, mere negligence simply does not rise to the level of bad faith required by Youngblood, supra. Appellant cannot substantiate any ill motive or intention on the part of the Commonwealth in failing to collect the towel. Further, even if we were to apply the rationale set forth in Tamme, supra and Trombetta, supra, Appellant is unable to prove that the towel possessed "an exculpatory value that was apparent before it was destroyed." Tamme, 759 S.W.2d at 54. Indeed, it is more likely that the towel would have been useful to the Commonwealth. Had the towel tested positive for Appellant's semen, the evidence would have further corroborated L.T.'s testimony and strengthened the Commonwealth's case. Conversely, had the towel tested negative, such information alone could not have exonerated Appellant. Jurors could have easily concluded that it was not the same towel L.T. described, or that it had been laundered. Moreover, since the acts occurred in various locations, it would not have been unreasonable for jurors to believe that there was more than one towel.

Another factor of critical importance to this case is the missing evidence instruction that was provided. The trial judge instructed the jury:

If you believe from the evidence that there existed a towel and that the agents or employees of the Commonwealth allowed the towel to be destroyed without making any effort to obtain and test same, you may, but are not required to, infer that the towel would be, if available, adverse to the...