Hammond v. State

• Decision Date: 06 September 1989
• Citation: 569 A.2d 81
• Parties: George M. HAMMOND, III, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 81

569 A.2d 81

George M. HAMMOND, III, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 6, 1989.

Decided: Dec. 28, 1989.

Rehearing Denied Jan. 18, 1990.

Kevin M. Howard (argued), and Mark F. Dunkle, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellant.

Richard E. Fairbanks, Jr. (argued), Chief of Appeals Div., and Gary A. Myers, Dept. of Justice, Wilmington, for appellee.

Before MOORE, WALSH and HOLLAND, JJ.

HOLLAND, Justice:

The defendant-appellant, George M. Hammond, III ("Hammond"), was convicted on June 2, 1988, following a jury trial, of two counts of Vehicular Homicide in the First Degree. Hammond was sentenced on August 17, 1988. ¹ Hammond filed this appeal on August 18, 1988. ²

In this appeal, Hammond argues that: (1) the police negligently failed to gather and preserve evidence material to the preparation of his defense; (2) the Superior Court erred in admitting into evidence the results of a blood alcohol test, in the absence of a foundation establishing the reliability of the Du Pont aca Discrete Clinical Analyzer ("Du Pont aca"); and (3) the Superior Court erred in admitting into evidence statements made by Hammond to a police officer.

We have reviewed each of Hammond's contentions. We find no reversible error. Therefore, the judgments of the Superior Court are affirmed.

Facts

On July 25, 1986, at about 5:00 A.M., Hammond, then age eighteen, Keith Douglas Moore ("Moore") and Leon Buddy Carter ("Carter"), were involved in a single car accident. They were all occupants in an automobile which left the roadway and came to rest partially imbedded ³ in the foundation of a townhouse that was under construction. The accident resulted in the deaths of Moore and Carter.

Officer William Wayne Walls ("Walls"), of the City of Dover Police Department, was one of the first persons to reach the accident scene. Walls testified as to what he saw when he arrived. Hammond was in the driver's seat of the vehicle, with his left shoulder against the left door, and his right shoulder against the driver's seat. Hammond's right leg, which was in a cast, was entangled between the accelerator and the brake pedal. ⁴ Moore was also in the front seat area. Moore's head was on Hammond's chest and his feet were in the passenger's foot well. Carter was slumped over in the left rear seat.

Hammond, Moore and Carter were all taken to the Kent General Hospital in Dover. At the hospital, the emergency room physician had questions about the extent of Hammond's injuries. Consequently, he ordered x-rays to be taken and a sample of Hammond's blood to be drawn for tests, including an analysis of its alcohol content. Consistent with the hospital's procedures, a medical technician withdrew the blood and then took it to the hospital's laboratory. The technician testified that he put a serum sample of Hammond's blood, and the reagent kit for alcohol analysis, into the hospital laboratory's Du Pont aca. Hammond's treating physician testified, over Hammond's objection, that the Du Pont aca reported a whole blood alcohol concentration of .13 per cent.

While they were at the hospital, the police discovered that the identification papers found in the possession of one of the crash vehicle's occupants, who had died, did not belong to him. As part of the police efforts to notify the decedent's next-of-kin, Walls went to see Hammond, who was still in the emergency treatment room. After explaining the identification problem, Walls asked Hammond for the names of the people in the car. Hammond told Walls that Moore and Carter were with him. Hammond also told Walls that he had been driving. Later, another Dover officer, Tye Shultz ("Shultz"), talked to Hammond to obtain information in order to complete an accident report.

Prior to trial, Hammond moved to suppress all of his conversations with Walls and Shultz, arguing that they had not been preceded by adequate Miranda ⁵ warnings and waivers. The Superior Court apparently granted the motion with regard to the statements Hammond made to Shultz but refused to exclude the statements made to Walls. ⁶ As part of its case, the State introduced, over Hammond's objection, the testimony of Walls about his conversation with Hammond at the hospital.

The State also introduced into evidence statements that Hammond had made to two ambulance attendants on the way to the hospital. One attendant asked Hammond if he had been drinking, as a precaution, before treatment was initiated. He testified that Hammond's response was "I had three to four beers, three to four hours prior to the accident." The other ambulance attendant testified that Hammond said the accident occurred when his foot slipped off the brake pedal because of the cast he had on his leg.

Hammond testified in his own defense. His memory had been "hypnotically refreshed." ⁷ See generally Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Hammond stated that he graduated from high school on July 24, 1986, after completing summer courses. Following the graduation ceremony, Hammond and several friends celebrated at Scott William Kisters' ("Kisters") apartment. Hammond, Carter, and Moore left Kister's apartment in the early morning hours of July 25, 1986, just prior to the accident. Hammond testified that they had all been drinking and that none of them were in "very good shape." He told the jury that Moore was driving Kister's car at the time of the accident. According to Hammond's testimony, the force of the collision must have moved him and Moore about within the crash vehicle.

In support of his defense, Hammond presented testimony by Dr. George C. Govatos ("Dr. Govatos"), a consulting engineer who was qualified as an accident reconstruction expert. Dr. Govatos testified about the kinematics of occupants in a crash vehicle, who are not wearing seatbelts. Dr. Govatos showed the jury a video tape of a test he had performed. The video tape depicted how the impact of a collision could cause the driver and the passenger to be thrown about and come to rest in each other's original seat. Dr. Govatos testified that an examination of the actual vehicle involved in the collision would have been important to his analysis because of the possibility of evidence in the interior of the vehicle that might have been left by the people as they were moved about by the collision, e.g., hair, blood, pieces of clothing, or other physical evidence. ⁸ Dr. Govatos testified that the existence of such evidence would have helped him to substantiate his opinion on the movement of Hammond and Moore within the crash vehicle. Dr. Govatos also testified that he would have needed the vehicle in order to determine whether mechanical failure could have caused or partially caused the collision.

The crash vehicle was not available to Dr. Govatos because the Dover police no longer had it in their possession, when Hammond's attorney filed a discovery request on October 14, 1986. Although the crash vehicle had been towed from the scene and impounded, it was released by the Dover City Police on August 8, 1986. No evidence was collected from the vehicle by the City of Dover Police before it was released. Hammond moved for a judgment of acquittal, or for a special instruction to the jury, as a result of the State's failure to preserve or to test the crash vehicle. The Superior Court denied both motions.

Right of Access to Evidence

The first issue raised by Hammond on appeal is that the failure of the Dover police to preserve the crash vehicle itself or to gather evidence of blood, clothing, tissue, and fingerprints, from inside of the crash vehicle, violated his constitutionally guaranteed right of access to evidence. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). This Court has recognized that the "obligation to preserve evidence is rooted in the due process provisions of the fourteenth amendment to the United States Constitution and the Delaware Constitution, article I, section 7." ⁹ Deberry v. State, Del.Supr., 457 A.2d 744, 751-52 (1983). The independent and alternative constitutional bases for our holding in Deberry is particularly significant in view of the subsequent development of the "access to evidence" doctrine in this Court and the United States Supreme Court. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Bailey v. State, Del.Supr., 521 A.2d 1069 (1987); Hughes v. State, Del.Supr., 490 A.2d 1034 (1985); Deberry v. State, 457 A.2d 744 (1983). A review of the evolution of these precedents is not only instructive but necessary for a proper evaluation of Hammond's claim.

In Deberry, the question presented was "what relief is appropriate when the State had or should have had the requested evidence, but the evidence does not exist when the defense seeks its production?" Deberry v. State, 457 A.2d at 749. In answering that inquiry, we held that claims of this type must be examined according to the following paradigm:

1) would the requested material, if extant in the possession of the State at the time of the defense request, have been subject to disclosure under Criminal Rule 16 or Brady?

2) if so, did the government have a duty to preserve the material?

3) if there was a duty to preserve, was the duty breached, and what consequences should flow from a breach?

Id. at 750 (citations omitted). The consequences which should flow from a breach of the duty to preserve evidence are determined in accordance with a separate three-part analysis which considers:

1) the degree of negligence or bad faith involved,

2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available, ¹⁰ and

3) the sufficiency of the other...