People v. Harmes

• Decision Date: 26 November 1976
• Docket Number: No. 75--393,75--393
• Citation: 38 Colo.App. 378,560 P.2d 470
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Louis HARMES, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 470

560 P.2d 470

38 Colo.App. 378

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Louis HARMES, Defendant-Appellant.

No. 75--393.

Colorado Court of Appeals, Div. I.

Nov. 26, 1976.

Rehearing Denied Dec. 16, 1976.

Selected for Official Publication.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, E. Ronald Beeks, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

PIERCE, Judge.

The opinion announced on October 14, 1976, is withdrawn, and the following opinion is issued in its stead.

Defendant appeals his conviction of second degree assault. We reverse.

Defendant was arrested for trespass in connection with his having fallen asleep in a private residence without invitation. Two officers were summoned to the scene to remove him. After awakening defendant, the officers took him to a patrol car. According to the officers, he intentionally kicked one of them as they were placing him in the vehicle. Defendant's testimony was that if he had kicked the officer, it was inadvertent, the consequence of his attempting to position himself in a sitting position in the back seat of the patrol car while handcuffed.

At the police station, another altercation between defendant and the same officer occurred. The police claimed that defendant began these hostilities by once again intentionally kicking at the officer, and that as a result, he was physically subdued by the officer and other policemen in an appropriate manner. Defendant contended that the officer began to strike him without justification and that he had only used his feet in an attempt to fend off the officer's blows.

As to the events which occurred at the police station, videotape equipment was activated by the officers as they entered the station, and the incident which occurred there was filmed. However, that videotape was not preserved, and because it was not available, defendant moved for but was denied dismissal of the assault charge. The propriety of that ruling forms the dispositive issue of this appeal.

Defense counsel was first made aware of the existence of the videotape at the preliminary hearing. According to the uncontroverted statements of defense counsel in the motion to dismiss, the defense was informed at the preliminary hearing that the videotape would be held by the police as evidence against defendant purportedly probative of the alleged assault. Later, approximately a week before defendant's case was scheduled for trial, counsel contacted the prosecutor, and requested to view the videotape. At that time, the prosecutor apprised defense counsel that, several days previously, the officer involved in the altercation with defendant had informed the prosecutor that the videotape had been erased and reused by the police. It was never established exactly when the film was obliterated except that the police claimed that it was still in existence prior to the preliminary hearing, but was thereafter erased prior to defense counsel's efforts to view it. It was undisputed that the defense was wholly unaware of the erasure of the film until after being so informed by the prosecution following the request to view the film.

Defendant filed a motion to dismiss the following day. The trial court denied the motion and the case proceeded to trial.

The People do not dispute that willful or intentional nondisclosure by the police or prosecution of evidence potentially favorable to defendant constitutes suppression, resulting in a denial of due process. Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967); People v. Norwood, Colo.App., 547 P.2d 273 (1975). See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Our Supreme Court, however, never has expressly decided whether, in all cases, a defendant must establish that the loss or nondisclosure was intentional. See People v. Bynum, Colo., 556 P.2d 469 (announced November 1, 1976). Thus, the question is whether the admittedly negligent destruction of the videotape in this case is tantamount to suppression. We conclude that it is.

The duty to preserve evidence known to be material is part of the duty to disclose. People v. Norwood, supra. The principle underlying this rule is the constitutional requirement that a criminal defendant be afforded due process. The focus therefore is not upon the existence or extent of any culpability by the authorities in failing to preserve clearly material evidence, a matter not generally susceptible of proof by defendant. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Rather, it is directed at the effect that the loss of the particular item of evidence has on defendant's ability to defend against the criminal charges. Brady v. Maryland, supra. Thus, although it may be questionable terminology to label cases involving negligent loss or destruction of critical evidence as instances of 'suppression', the effect of non-availability to the defendant is at least as damaging under these circumstances as it is in cases involving intentional nondisclosure. See Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965); Comment, Judicial Response to Governmental Loss or Destruction of Evidence, 39 U.Chi.L.Rev. 542 (1972). See also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

The destruction of the videotape through official misfeasance has effectively precluded defendant from ever demonstrating whether it supported his version of the altercation. See People v. Holmes, Colo., 553 P.2d 786 (announced August 30, 1976). He was thus denied due process. Trimble v. State, supra. The evidence destroyed was known to be material and critical, and not merely incidental to, the question of defendant's guilt or innocence, and therefore, the duty to preserve the film for its evidentiary value was apparent. See People v. Bynum, supra. See also Fresquez v. People, 178 Colo. 220, 497 P.2d 1246 (1972); State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970), Cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). The significance of the eradicated evidence in this case reflects disfavorably on the failure to ensure its preservation. See People v. Poole, Colo., 555 P.2d 980 (announced November 1, 1976). This is not a case, therefore, in which inadequate investigation resulted in the careless destruction of evidence not known to be material at the time. See People v. Norwood, supra; State v. Maloney, supra. Nor is this a case where defendant should be penalized for his counsel's procrastination in seeking to view the videotape, since, as is stated in the uncontradicted motion to dismiss, defense counsel was informed that the videotape was being held by the police as evidence damaging to the defense.

Hence, by establishing the existence and negligent destruction of this particular evidentiary item, defendant established a sufficient factual foundation in support of his contention of denial of due process. See People v. Trujillo, 186 Colo. 329, 527 P.2d 52 (1974).

The People contend, however, that this court should affirm defendant's conviction based on testimony regarding the events which took place in the police vehicle. They further argue that since defendant was able to present to the jury his version of both occurrences, he was not prejudiced by the unavailability of the videotape. These assertions are without merit.

We may not affirm defendant's conviction on the speculative premise that the jury may have found him to be guilty based on the events occurring in the police vehicle following his arrest, which was not a subject of videotaping. Only a single count of assault was lodged against defendant, and nowhere in the record can we find that the jury expressly was apprised as to which occurrence was the basis for the criminal charge. Indeed, an instruction submitted to the jury on self defense implied that the altercation at the stationhouse was the event upon which the assault charge was based.

Further, the fact that defendant was able to testify at trial pertaining to his perception of both incidents did not diminish the damage to his defense resulting from his being deprived of the opportunity to substantiate that testimony with the videotape. Trimble v. State, supra; Farrell v. State, 317 So.2d 142 (Fla.App.1975). See also People v. Green, Colo.App., 553 P.2d 839 (announced July 29, 1976).

Finally, the People argue that affirmance is mandated by the decision of our Supreme Court in People v. Hedrick, Colo., 557 P.2d 378 (announced October 25, 1976). We disagree.

In People v. Hedrick, the court held that the failure to preserve a breath sample taken from defendant under the implied consent statute for the purposes of later independent testing by the defendant did not deprive the accused of due process. There, the court noted: 1) That the breath sample was subject to objective scientific analysis, the reliability and accuracy of which was uncontested; 2) that there was no showing that the sample was of such a nature that preservation for testing was even possible; and 3) that defendant had no legal or factual basis for believing that the sample would be preserved and retained by the prosecution for later use. These factors are not present here. The videotape was not made the subject of disinterested analysis by any person, it could easily have been preserved for perusal by the exercise of minimal care by the authorities, and defendant was led to believe by the statements of the prosecution that the videotape would be preserved by the People for use against defendant at trial. These factual distinctions alone would warrant analyzing the present case differently from People v. Hedrick.

The materiality of the destroyed videotape cannot be...