Government of Virgin Islands v. Testamark

• Decision Date: 10 January 1978
• Docket Number: No. 77-1567,77-1567
• Citation: 570 F.2d 1162
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Paul TESTAMARK, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1162

570 F.2d 1162

GOVERNMENT OF the VIRGIN ISLANDS v. Paul TESTAMARK, Appellant.

No. 77-1567.

United States Court of Appeals Third Circuit.

Argued Dec. 7, 1977.

Decided Jan. 10, 1978.

George M. Alexis, Federal Public Defender, St. Thomas, Charlotte Amalie, V. I., for appellant.

Julio A. Brady, U. S. Atty., Thomas K. Moore, Asst. U. S. Atty., St. Thomas, Charlotte Amalie, V. I., for appellee.

Before ADAMS, ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This case, in which Paul Testamark was charged with assaulting Merry Cook with intent to rape, raises the issue of how a court should deal with a police department's failure to preserve evidence that is potentially critical in a criminal proceeding.

At the trial, which took place before a jury, Ms. Cook testified to the following version of the events surrounding the crime. Testamark had been drinking early in the day on July 9, 1976, at the self-service bar of the gift shop where Ms. Cook worked. He had then left to go swimming. Upon his return, two and a half hours later, Testamark made himself another drink, and chatted with Ms. Cook about farming. He then unexpectedly grabbed her from behind, covered her mouth and dragged her outside.

Ms. Cook related that when Testamark threw her to the ground, he lost his hold on her mouth, and she then cried for help. Testamark, at that point, told her to "be cool" and "she would like it." When he proceeded to pull her dress up, Ms. Cook screamed again. Testamark then covered her mouth, and told Ms. Cook that he would let her breathe if she would turn over and be quiet. He began to pull her dress up again, and informed her if she screamed once more he would choke her to death. Ms. Cook shouted yet a third time, and Testamark began to carry out his threat.

At that point, the encounter was interrupted by one Carl Strauch, who arrived in response to the screams. Testamark left hurriedly, saying, according to Strauch, something about having been cheated.

Both Strauch and Ms. Cook identified Testamark in court as the assailant. In addition, Ms. Cook's husband testified that shortly after the assault, he confronted Testamark, and that when Mr. Cook stated "you're the one", and grabbed him, Testamark replied "no, it was someone else", and fled.

Testamark testified in his own defense, and provided a somewhat different account. Some time after leaving the gift shop where Ms. Cook worked, he recounted, he began to feel "strange" and "saw my mind going through optical changes." Deciding that his previous drink was the source of his discomfort, Testamark returned to the gift shop to confront Ms. Cook. When Ms. Cook turned to walk away without answering, he grabbed her, believing her to be responsible. They struggled and fell to the ground, with Ms. Cook on top. Testamark declared that at that point "sex was the furthest thing from my mind." When Strauch arrived, Testamark maintained he simply left, and passed out shortly thereafter.

A policeman testified that he found Testamark on the afternoon of July 9, 1976, apparently asleep, in the bushes that were nearby the gift shop where Ms. Cook worked. The officer stated that Testamark appeared normal, but that the defendant smelled of alcohol and, upon questioning, falsely identified himself as "Davey Crakker."

After placing Testamark under arrest, the police took him to a hospital to draw a blood sample. By that time it was after 5:00 p. m. on Friday afternoon, and the police chemist, who analyzed such samples, was no longer in his office. Consequently, one of the officers, Harry Daniels, took custody of the sample. Daniels neglected, however, to refrigerate it, and upon delivering it to the chemist on the following Monday, the sample was unusable.

Although, at the trial, Testamark admitted the assault, he defended on the theory that he was so bemused by the intoxicant he had imbibed that he was unable to form a specific intent to rape. He argued that either he was drunk or that the liquor he had taken contained drugs. The jury rejected Testamark's defense and he was found guilty as charged. The court sentenced him to 10 years in prison.

Testamark's first contention on appeal, and the most troubling one, is that by allowing the blood sample to spoil, the Government of the Virgin Islands has denied him due process of law. It is clear that had the blood sample been preserved, Testamark could have successfully requested that it be disclosed. ¹ And, had the government suppressed the blood sample, or denied access to a copy of the report of the sample's analysis after a defense request, Testamark's constitutional rights might well have been violated if the blood sample could be characterized as "material". ² By allowing the blood sample to spoil, Testamark urges, the government has in effect suppressed evidence which could have conclusively established his defense of incapacity. ³ The government has thus immunized itself, Testamark argues, to subsequent defense requests by destroying potentially exculpatory evidence.

In support of his claim, Testamark points a) to the fact that Officer Daniels testified that he knew that the blood would spoil if not refrigerated and b) to indications that the failure to refrigerate was a violation of standard police procedure. Moreover, Testamark notes that the trial judge commented that he thought that "the police deliberately did not preserve the integrity of that blood."

The government responds, first, that the failure to refrigerate the blood, while regrettable, was at worst negligent misconduct, not deliberate suppression of evidence, and second that the negligence was outweighed on a "pragmatic balancing standard" by the evidence of guilt adduced at trial. ⁴

While this case is one of first impression in our Circuit, it is well settled elsewhere that the failure of the police or prosecutor to preserve evidence may, in some circumstances, constitute grounds for reversal of a conviction. In U. S. v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1968), in the context of a Jencks Act request of a court martial for tapes of the defendant's interrogation, the Court noted that "the Navy bore the burden of producing them or explaining why it could not do so." ⁵ Since, however, the Navy had apparently acted in good faith, but was simply unable to find the tapes after "earnest efforts", the conviction was upheld.

The Court of Appeals for the District of Columbia, in a leading case on loss of evidence, interpreted Augenblick as holding that where evidence has been lost or destroyed by the government, convictions may be permitted to stand only "so long as the Government has made 'earnest efforts' to preserve crucial materials and to find them once a discovery request is made" U. S. v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971). ⁶ Other circuits have followed Bryant in holding that the government's failure to take adequate steps to preserve evidence may deny a defendant due process, and thereby jeopardize otherwise viable convictions. ⁷

We fully endorse these views. Loss or destruction of relevant evidence by the government not only raises general questions of the fundamental fairness of a criminal trial, but may also deny a defendant the right to compulsory process. The right to subpoena evidence at trial, and the obligation of the prosecutor to disclose exculpatory evidence are inherent in the conception of a criminal trial as a truth-seeking process. These rights and obligations may be undermined if the prosecution has no duty to preserve the evidence which it later must disclose.

In this case, Officer Daniel's actions were in violation of departmental procedures, and indeed may be characterized as gross negligence. By no means are they the "earnest efforts" contemplated by Augenblick and Bryant. As such, they could raise doubts about the validity of a conviction.

Having established that a serious violation has taken place, however, we must now consider what sanctions are appropriate.

Testamark is correct that had the blood sample been suppressed at trial and later recovered, he might well have been entitled to a new trial if the sample had proved exculpatory. Under U. S. v. Agurs, when the suppressed evidence has been requested by defense counsel, the defendant is entitled to be retried where the evidence "might have affected the outcome of the trial." ⁸ If the blood sample showed a high level of inebriation, it is possible that such suppression of evidence would have been sufficiently material to warrant a new trial.

This conclusion, however, only begins our inquiry, for this case differs from Agurs in two respects. First, the relief available under Agurs, a new trial where the defense might use the suppressed evidence, is not possible here. ⁹ A new trial here would be infected by the same taint as the former hearing. We are therefore faced with a choice between dismissing the charges entirely and affirming the conviction. ¹⁰

Second, because the evidence has been lost, it is impossible to determine directly its probable effect on the jury, which under Agurs would constitute the decisive factor. Our "over-riding concern with the justice of the finding of guilt" ¹¹ must therefore focus on the evidence presented at trial in the attempt to determine whether this error may be properly characterized as harmless. ¹²

The sole issue upon which the blood sample could have been relevant was whether Testamark was sufficiently competent to form an intent to rape. On this point, the evidence presented at trial weighed heavily against the defendant's contentions. The only drink that Testamark testified to having taken was imbibed two and a half hours before his assault on Ms. Cook. According to Ms. Cook, Testamark, upon his return to the gift shop, appeared rational. He was able to carry on a coherent conversation and he moved steadily. During the assault, Testamark acted with apparent...