People v. Newberry

• Decision Date: 22 June 1995
• Docket Number: No. 77864,77864
• Citation: 652 N.E.2d 288,209 Ill.Dec. 748,166 Ill.2d 310
• Parties: , 209 Ill.Dec. 748 The PEOPLE of the State of Illinois, Appellant, v. Charles S. NEWBERRY, Appellee.
• Court: Illinois Supreme Court

Page 288

652 N.E.2d 288

166 Ill.2d 310, 209 Ill.Dec. 748

The PEOPLE of the State of Illinois, Appellant, v. Charles S. NEWBERRY, Appellee.

No. 77864.

Supreme Court of Illinois.

June 22, 1995.

Roland W. Burris and James E. Ryan, Attys. Gen., Springfield, and David R. Akemann, State's Atty., St. Charles (Norbert J. Goetten, William L. Browers and Lisa Anne Hoffman, of the Office of the State's Attys. Appellate Prosecutor, Elgin, of counsel), for the People.

G. Joseph Weller, Deputy Defender, and Paul Alexander Rogers, Asst. Defender, of the Office of the State Appellate Defender, Elgin, for appellee.

Justice HARRISON delivered the opinion of the court:

The issue in this case is whether a criminal defendant charged with unlawful possession of a controlled substance is entitled to have the charges dismissed if the State destroys the substance in question after defense counsel has made a discovery request for it in accordance with Supreme Court Rule 412 (134 Ill.2d R. 412). For the reasons that follow, we hold that dismissal of the charges is mandated by due process and is an appropriate discovery sanction under Supreme Court Rule 415(g)(i) (134 Ill.2d R. 415(g)(i)). We therefore affirm.

The defendant in this case is Charles Newberry. In January of 1991, police arrested Newberry and seized a substance from him they believed to be cocaine. After a field test conducted by police was negative for the drug, the Kane County grand jury indicted him for unlawfully possessing a look-alike substance with intent to distribute (Ill.Rev.Stat.1991, ch. 56 1/2, par. 1404(b) (now 720 ILCS 570/404(b) (West 1992))).

A subsequent laboratory test conducted approximately one month after Newberry's arrest reached a contrary result. It indicated that cocaine was present in the substance seized from him. When this happened, the grand jury returned new indictments, this time charging him with two counts of unlawful possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1991, ch. 56 1/2, par. 1401 (now 720 ILCS 570/401 (West 1992))) and one count of unlawful possession of a controlled substance without paying the requisite tax and affixing a tax stamp (Ill.Rev.Stat.1991, ch. 120, par. 2160 (now 35 ILCS 520/10 (West 1992))). The grand jury later returned additional indictments charging Newberry with unlawful possession of a controlled substance with intent to deliver while on school property (Ill.Rev.Stat.1991 ch. 56 1/2, par. 1407(b)(1) (now 720 ILCS 570/407(b)(1) (West 1992))) and unlawful possession of a controlled substance (Ill.Rev.Stat.1991, ch. 56 1/2, par. 1402(b) (now 720 ILCS 570/402(b) (West 1992))).

Shortly after the grand jury returned its first set of new indictments, the circuit court granted a motion by the State to nol-pros the original charge of unlawful possession of a look-alike substance with intent to distribute. That charge was withdrawn, and only the controlled substance charges remained. In connection with those charges, Newberry's counsel promptly filed a written discovery motion pursuant to Supreme Court Rule 412 (134 Ill.2d R. 412). Included in that motion was a request to examine all tangible objects that had been seized from Newberry.

The State's initial response to Newberry's request was routine. A year after the discovery motion was filed, however, the State served a supplemental response advising defense counsel that the substance police thought was cocaine had been destroyed. When a hearing was held on the matter, testimony showed that the party responsible for the destruction was a police department evidence technician. The technician had not destroyed the material because it was necessary to do so as part of the testing process, nor had he acted out of some malevolent purpose. Rather, he had gotten rid of it simply because a computer check showed that the look-alike drug charge had been nol-prossed. The technician mistakenly assumed that this action signaled the end of the case against Newberry and that the material was no longer needed. He did not realize that new charges had been filed involving the same evidence.

When defense counsel learned that the substance had been destroyed, he moved to dismiss the indictments against his client. In the alternative, he asked the court to bar the State from presenting any evidence of the results of the laboratory test of the substance. Following a hearing, the court granted the motion to dismiss, holding that the State's destruction of the substance following receipt of Newberry's discovery request constituted a denial of due process. The appellate court affirmed over the dissent of one justice (265 Ill.App.3d 688, 203 Ill.Dec. 70, 638 N.E.2d 1196). We then allowed the State's petition for leave to appeal (145 Ill.2d R. 315).

Section 114--1(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1991, ch. 38, par. 114--1(a) (now 725 ILCS 5/114--1(a) (West 1992))) enumerates the 11 basic grounds for which an indictment, information or complaint may be dismissed. Although none of those grounds are applicable here, a trial judge also has inherent authority to dismiss an indictment for reasons other than those listed in section 114--1(a). (People v. Fassler (1992), 153 Ill.2d 49, 58, 178 Ill.Dec. 782, 605 N.E.2d 576.) Specifically, the court may exercise such authority " 'when failure to do so will effect a deprivation of due process or result in a miscarriage of justice.' " Fassler, 153 Ill.2d at 58, 178 Ill.Dec. at 786, 605 N.E.2d at 580, quoting People v. Sears (1971), 49 Ill.2d 14, 31, 273 N.E.2d 380.

In the case before us, Newberry asserted, and the circuit and appellate courts agreed, that the destruction of the disputed substance following his discovery request constituted a due process violation. Although the State does not dispute that the failure by police to preserve evidence may violate due process (see People v. Ward (1992), 154 Ill.2d 272, 297-99, 181 Ill.Dec. 884, 609 N.E.2d 252), it argues that under Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the destruction of evidence rises to the level of a due process violation only where a defendant can show that the police officers responsible for the destruction acted in bad faith. Because the police evidence technician here simply made a mistake when he discarded the disputed substance and did not act in bad faith, the State reasons that the failure to preserve the evidence cannot justify dismissal of the grand jury's indictments on due process grounds.

In Youngblood, the defendant, who was charged with child molestation, sexual assault, and kidnapping, claimed that his due process rights were violated because the State failed to promptly test samples found on the victim's clothing or to properly refrigerate the clothing so that it could be properly tested later. In rejecting this claim, the United States Supreme Court held, as it had in the past, that the good or bad faith of the State is irrelevant when the State fails to disclose to the defendant exculpatory evidence that is material. The Court concluded, however, that the due process clause requires a different result when no more could be said of the evidence "than that it could have been subjected to tests, the results of which might have exonerated the defendant." (Youngblood, 488 U.S. at 57, 109 S.Ct. at 337, 102 L.Ed.2d at 289.) According to the Court, police do not have "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." (Youngblood, 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289.) Where the evidentiary material is only "potentially useful," the failure to preserve that material does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the police. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289.

Youngblood is distinguishable from the case before us today. In Youngblood, the disputed material was not essential for establishing the defendant's guilt or innocence. Its value was speculative, and it played no role in the prosecution's case. Because there was no bad faith on the part of the police, the defendant's due process challenge to his conviction was therefore denied. The situation in this case is markedly different. Here, the evidence in question is more than just "potentially useful." It is essential to and determinative of the outcome of the case. Newberry cannot be convicted of the drug possession charges absent proof of the content of the disputed substance, nor does he have any realistic hope of exonerating himself absent the opportunity to have it examined by his own experts.

In an effort to minimize the prejudice to Newberry's defense, the State wrongly asserts that the discarded substance here is no different than the breath sample that the police failed to preserve in California v. Trombetta (1984), 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413. In Trombetta, defendants charged with driving under the influence of intoxicating liquor unsuccessfully sought suppression of breath-analysis test results on the grounds that the police failed to preserve the breath samples, thereby limiting the defendants' ability to challenge the incriminating test results. The State appellate court set aside their convictions, holding that due process demanded that the arresting officers preserve the breath samples, but the United States Supreme Court reversed. The Court reasoned that due process was not violated because the police had acted in good faith and in accord with normal procedures when they failed to preserve the samples, and the testing device's high degree of accuracy made it extremely unlikely that further testing of the samples would have helped the defense. (Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2534, 81 L.Ed.2d at 422.) The Court further noted that the defendants were not...