People v. Gann, 85SA55

• Decision Date: 08 September 1986
• Docket Number: No. 85SA55,85SA55
• Citation: 724 P.2d 1318
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph Barry GANN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1318

724 P.2d 1318

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph Barry GANN, Defendant-Appellee.

No. 85SA55.

Supreme Court of Colorado,

En Banc.

Sept. 8, 1986.

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Michael J. Milne, Deputy Dist. Atty., Brighton, for plaintiff-appellant.

David F. Vela, Public Defender, Judy Fried, Chief Deputy Public Defender, Denver, for defendant-appellee.

QUINN, Chief Justice.

The People appeal a judgment of dismissal entered by the district court on charges of aggravated robbery and the commission of a crime of violence. ¹ In dismissing the charges, the court ruled that the prosecution violated the defendant's due process rights because, prior to trial, a police detective investigating the case lost the telephone number of an anonymous informant. We conclude that the telephone number did not measure up to the standard of constitutionally material evidence under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and we accordingly reverse the judgment of dismissal.

I.

On June 24, 1984, at approximately 4:00 p.m., a man wielding a gun robbed jewelry from a salesperson in the O.G. Wilson Store in Northglenn, Colorado. Two days later a police officer of the Denver Police Department received an anonymous telephone call from a woman who said that she had information about the robbery. The woman caller gave the Denver officer a telephone number at which she could be reached. The Denver officer telephoned Detective Steve Hipp of the Northglenn Police Department and conveyed to him the telephone number. Detective Hipp in turn telephoned Northglenn Detective Frank Spottke, who was in charge of the robbery investigation, and passed on the woman's telephone number to him. Detective Spottke was at his home at this time and wrote the telephone number on the back of an envelope in his kitchen and then telephoned the woman. ²

During her telephone conversation with Detective Spottke, the woman asked the detective if a robbery had been committed at the O.G. Wilson Store in Northglenn, to which Spottke responded, "Yes, we had one." She next asked if the robber wore a false mustache, and the detective told her that it was possible. She then asked if the robber had a heavily pockmarked face, and Detective Spottke told her that he did. After these questions were asked and answered, the woman told the detective that he "should be looking for a Joseph Gann." The woman stated that she had been told by a friend that Gann had talked about committing such a robbery. The woman did not mention the friend's name, and she refused to give her own name or a telephone number at which she could later be contacted. She stated that the phone she was talking from was not her home phone but a "pay phone." Detective Spottke was unable to obtain any further information from the woman about her identity or about the robbery. After conversing with the woman, Detective Spottke misplaced the envelope upon which he had written the phone number.

Based on the information obtained from the woman caller, Detective Spottke compiled a photographic lineup with pictures of the defendant and five other men. Two eyewitnesses to the robbery were able to identify the defendant from his photograph as the person who committed the crime. An arrest warrant issued for the defendant and he was ultimately arrested and charged with aggravated robbery and the commission of a crime of violence.

Prior to trial, the defendant moved to dismiss the charges. In the motion to dismiss, the defendant specifically cited and relied on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in which the United States Supreme Court recognized an accused's right of access to exculpatory evidence pursuant to the Due Process Clause of the Fourteenth Amendment. The defendant's motion made no reference whatever to the Due Process Clause of Article II, section 25 of the Colorado Constitution. It was the defendant's contention that he had been deprived of constitutionally material evidence because the telephone number would have permitted him to contact the unknown informant and thereby develop other evidence exonerating him of the crime. The district court granted the defendant's motion to dismiss. It concluded that, although the loss of the telephone number was inadvertent, the defendant's due process right was violated because there was "a strong possibility" that the telephone number would be "material to the defense of the case." The court in its ruling did not elaborate on the asserted materiality of the telephone number to the defense of the case, nor did it indicate whether or in what manner the loss of the telephone number might impair the defendant in presenting a defense at trial.

The People initially claim that the defendant's due process rights were not violated because the loss of the telephone number did not deprive the defendant of constitutionally material evidence. Alternatively, the People argue that the district court abused its discretion in not imposing a sanction less drastic than dismissal. We conclude that the lost telephone number failed to satisfy the standard of "constitutionally material evidence" applicable to an access-to-evidence claim predicated on the Due Process Clause of the United States Constitution. Our resolution of the appeal on this basis renders it unnecessary to address the People's alternative claim relating to the appropriate sanction.

II.

In this case, the defendant's motion to dismiss made no mention of the Due Process Clause of the Colorado Constitution, but instead referred generally to the defendant's "due process rights" and the United States Supreme Court's decision in Brady, 373 U.S. 83, 83 S.Ct. 1194. The district court similarly failed to make any specific reference to the Colorado Constitution in its ruling. Where, as here, the defendant's motion to dismiss expressly relies on the United States Supreme Court's interpretation of the Due Process Clause of the Fourteenth Amendment and makes no mention of the Due Process Clause of the Colorado Constitution, and where the district court's ruling is similarly devoid of any reference to the state constitution, we must presume that both the motion itself and the court's ruling were based exclusively on federal constitutional standards. Under these circumstances we will review the propriety of the judgment of dismissal on the basis of the federal due process standard only.

It is now well settled that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196. The Due Process Clause further requires the prosecution to produce for an accused's use at trial evidence that is clearly supportive of a claim of innocence, regardless of whether the accused makes a request for such evidence prior to trial. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976); see also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (prosecution's failure to disclose plea agreement with key prosecution witness violated due process and required a new trial); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (failure of prosecutor to correct testimony of witness which prosecutor knew to be false violated due process). Because it is the character of the evidence and not the moral culpability or fault of the prosecution that underlies an accused's constitutional right to such evidence, it is of no significance that such evidence might have been lost or destroyed through inadvertence rather than through the moral culpability or willfulness of the prosecutor or the police. Agurs, 427 U.S. at 110, 96 S.Ct. at 2400.

The constitutional duty outlined in Brady and Agurs relates to the duty to disclose existing exculpatory evidence that is within the possession or control of the prosecution and thus within its ability to make available to an accused for use at trial. Neither case discussed the extent of the state's duty to preserve for an accused's use at trial evidence that was obtained or utilized by law enforcement officers in the investigatory stage of the case. The scope of that duty was addressed in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), where the court considered "whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions." Id. 467 U.S. at 479, 104 S.Ct. at 2530. The Court limited the state's duty of preservation to "constitutionally material evidence," stating:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. at 109-110 , evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Id. at 488-89, 104 S.Ct. at 2534 (footnote omitted).

It was the Court's...