Land v. State
| Decision Date | 21 January 2004 |
| Docket Number | No. 82A04-0304-CR-176.,82A04-0304-CR-176. |
| Citation | 802 N.E.2d 45 |
| Parties | Donald LAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Matthew Jon McGovern, Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Donald Land appeals his convictions for arson as a class B felony1 and arson as a class D felony.2 Land raises three issues, which we restate as:
I. Whether Land's due process rights were violated when the State failed to preserve evidence of alleged accelerant on the arson victim's shoes;
II. Whether the trial court violated the Indiana Constitution's prohibition against double jeopardy by entering judgment of conviction upon arson as a class B felony and arson as a class D felony; and
III. Whether the trial court erred when it allowed the State to add an habitual offender enhancement seven months after the original omnibus date.
We affirm.
The relevant facts follow. In November 2001, Land and his wife, Mayme Eaton, were in the process of divorcing. Eaton began having an affair with Land's neighbor and friend, Chris Griffith. Eaton had moved some of her possessions into Griffith's house, and Land learned of the affair. On November 18, 2001, Land told Griffith that he "was a piece of shit and [he] was lucky that [Land] didn't beat [his] head in with a baseball bat." Transcript at 215. Land also told his neighbors, Don and Janeta McNeele, that Griffith was "messing with [his] wife" and that Land would Id. at 360.
The next day, Chad Owens, who was living with Land, heard Land and Eaton arguing. When Eaton left the house, Land followed her outside. Eaton and Land continued to argue outside, and Eaton went to Griffith's house. A few minutes later, as Eaton and Griffith were walking to Griffith's truck, Eaton and Land began arguing again. Eaton and Griffith then left to visit a friend who lived a couple of blocks away.
When Land returned to his house, he asked Owens to talk with him on the porch. As they talked on the porch, Owens noticed a "flickering" in the window of Griffith's house. Id. at 168. Land and Owens walked to Griffith's house, and Land looked in the window. Land said that the couch was on fire and told Owens to call 9-1-1. Land and Owens went into the house to see if anyone was in the house and attempted to extinguish the fire. They also tried to pull the couch out of the house. When the fire department arrived, Land went to tell Eaton and Griffith about the fire. When Land arrived where Eaton and Griffith were visiting their friend, he kept telling Griffith "that he didn't do it." Id. at 205.
While the fire was being extinguished, Land asked Owens "to leave out the part about him going outside," but Owens refused. Id. at 177. Fire Investigator Jesse Storey arrived on the scene with his accelerant-detecting canine. The canine is trained to recognize petroleum-based accelerants. The canine "alerted on" Griffith's shoes. Id. at 292. Storey requested that Griffith let him perform additional testing on his shoes, and Griffith consented. Storey tested the shoes with an electronic hydrocarbon detector, and the test results were negative. Storey then collected Griffith's shoes in a sealed container. However, Storey determined that the soles of Griffith's shoes were manufactured "using a type of solvent that was a flammable and detectable by the canine but not sufficient to be detected by the electronic detector." Id. at 304. Storey then returned the shoes to Griffith.
The canine also gave a "slight alert" on the exposed foam rubber of the couch. Id. at 294. However, the couch's foam rubber is "a petroleum based product and when burnt, gives off some of the same type of byproducts as found in some common accelerants." Id. at 295. Storey determined that the origin of the fire was in the center cushion of the sectional couch. He found no evidence that Griffith had removed any possessions from the residence before the fire. Storey found no evidence that the fire was accidental. Rather, Storey concluded that the fire was intentionally set. However, he found no evidence that an accelerant was used to start the fire.
The State charged Land with arson as a class B felony and later added a charge of arson as a class D felony. The trial court set the omnibus date for February 1, 2002.3 Land filed a motion to dismiss alleging that the State failed to preserve exculpatory evidence, specifically, alleged accelerants on Griffith's shoes. However, the trial court denied the motion.
On September 4, 2002, the State filed an habitual offender enhancement. Land objected to the filing as being untimely, but the trial court granted the State leave to file the habitual offender enhancement. Land later filed a motion to dismiss the habitual offender enhancement, but the trial court denied the motion.
While incarcerated pending trial, Land wrote several letters to friends asking them to tell the prosecutor and Land's attorney that Griffith and Eaton had set Land up. Land offered the friends various pieces of equipment in exchange for their help.
The jury found Land guilty of arson as a class B felony and arson as a class D felony. Land admitted to his status as an habitual offender. The trial court sentenced Land to the Indiana Department of Correction for twelve years for the arson as a class B felony conviction, enhanced by ten years for Land's status as an habitual offender, and one year for the arson as a class D felony conviction. The trial court ordered that the sentences be served consecutively.
The first issue is whether Land's due process rights were violated when the State failed to preserve evidence of alleged accelerant on Griffith's shoes. Land argues that the evidence of accelerant on Griffith's shoes was materially exculpatory and that the trial court erred by denying his motion to dismiss. In the alternative, Land argues that the evidence of accelerant on Griffith's shoes was potentially useful and was destroyed in bad faith.
To determine whether a defendant's due process rights have been violated by the State's failure to preserve evidence, we must first decide whether the evidence in question was "potentially useful evidence" or "materially exculpatory evidence." Chissell v. State, 705 N.E.2d 501, 504 (Ind.Ct.App.1999), trans. denied. Potentially useful evidence is defined as "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), reh'g denied). The State's failure to preserve potentially useful evidence does not constitute a denial of due process of law "unless a criminal defendant can show bad faith on the part of the police." Id. "Bad faith is defined as being `not simply bad judgment or negligence, but rather implies the conscious doing of wrong because of dishonest purpose or moral obliquity.'" Wade v. State, 718 N.E.2d 1162, 1166 (Ind.Ct.App.1999), reh'g denied, trans. denied.
On the other hand, materially exculpatory evidence is that evidence which "possesses an exculpatory value that was apparent before the evidence was destroyed" and must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Chissell, 705 N.E.2d at 504 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984)). "Exculpatory is defined as `[c]learing or tending to clear from alleged fault or guilt; excusing.'" Wade, 718 N.E.2d at 1166. 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." Noojin v. State, 730 N.E.2d 672, 675 (Ind. 2000). Unlike potentially useful evidence, the State's good or bad faith in failing to preserve materially exculpatory evidence is irrelevant. Chissell, 705 N.E.2d at 504.
Land argues that the alleged evidence of accelerant on Griffith's shoes was materially exculpatory. Specifically, Land argues that his defense was predicated upon a theory that Griffith set the fire for financial gain. Land relies upon Roberson v. State, 766 N.E.2d 1185 (Ind.Ct.App. 2002), reh'g denied, trans. denied. In Roberson, the defendant was an inmate in a county jail. Id. at 1186. He was found in possession of "two wooden sticks wrapped on the one end and sharpened to a point on the other end," and the State charged him with possession of a dangerous device or material by a prisoner. Id. Prior to trial, the State discarded the device. Id. However, a poor quality picture of the device existed. Id. The defendant filed a motion to dismiss, which the trial court denied. Id. at 1186-1187.
On interlocutory appeal, this court reversed, holding that the evidence was materially exculpatory. Id. at 1189. Specifically, we held that the evidence of "the character of the device is the sole basis of the defendant's defense." Id. at 1188. The defendant could not "secure comparable evidence by other reasonably available means." Id. at 1189. As for whether the device had an exculpatory value that was apparent before its destruction, the State pointed to the testimony of three government officials who each opined that the device was fashioned to be a weapon and was capable of causing bodily injury. Id. We held that:
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