People v. Scarlett, 96CA2221.

• Decision Date: 17 September 1998
• Docket Number: No. 96CA2221.,96CA2221.
• Citation: 985 P.2d 36
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William E. SCARLETT, Defendant-Appellant.
• Court: Colorado Court of Appeals

985 P.2d 36

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William E. SCARLETT, Defendant-Appellant.

No. 96CA2221.

Colorado Court of Appeals, Div. III.

September 17, 1998.

Rehearing Denied October 22, 1998.

Certiorari Denied September 7, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jane G. Ebisch, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Claudia Brett Goldin, Deputy State Public Defender, Denver, Lisa Dixon, Deputy State Public Defender, Colorado, for Defendant-Appellant.

Opinion by Judge PLANK.

Defendant, William E. Scarlett, appeals the judgment of conviction entered upon a jury verdict finding him guilty of vehicular homicide. We affirm.

While driving his pickup truck, defendant saw an obstacle ahead in the road. After his vehicle skidded to a stop, defendant realized that he had struck and killed a child who had been riding a bicycle.

A subsequent police investigation indicated that defendant was speeding and that his blood alcohol level following the collision was between 0.020 and 0.046 grams of alcohol per 100 milliliters of blood. Defendant was charged with vehicular homicide involving reckless driving. A charge of vehicular homicide involving alcohol was dismissed upon motion of the prosecution. The conviction at issue in this appeal resulted.

I.

Defendant first contends that his conviction was obtained in violation of his right to due process because the police were grossly negligent in permitting additional damage to occur to his truck while it was impounded and that the trial court abused its discretion by imposing a meaningless sanction on the prosecution. We disagree. Police measured the skid marks left by defendant's truck and, using that information as well as general road conditions and other factors, determined that defendant had been traveling 54 miles per hour when the skid began. The posted speed limit was 25 miles per hour. Defendant sought to have an expert evaluate the damage to the truck to establish independently the truck's speed at the time of the collision.

Defendant's truck was stored at the police impound lot during the pendency of this action. The practice at the impound lot was to leave the key in the ignition of the vehicles stored there. Thieves used defendant's truck to ram the impound lot gate to facilitate their theft of another vehicle. The additional damage to the front of defendant's truck prevented the expert from being able to perform an independent evaluation of the truck's speed at the time of impact.

The trial court found that the police had "failed in their responsibility [to preserve evidence] to the prejudice of defendant." As a sanction for that failure, the trial court barred the prosecution from admitting any accident reconstruction evidence based on evidence of damage to the truck but ruled that the "skid-to-stop" evidence would be admitted.

Defendant argues that the sanction was, in effect, no sanction at all, because the prosecution had no such accident reconstruction evidence to offer but, more importantly, that police "bad faith" conduct prevented defendant from being able to present potentially exculpatory evidence.

It is a violation of the defendant's due process rights when the state fails in bad faith to preserve evidence that might have exonerated him or her. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). However, as stated in People v. Wyman, 788 P.2d 1278, 1279-80 (Colo.1990):

The due process clause of the fourteenth amendment does not invariably require a state to preserve evidence ... "of which no more can be said than it could have been subjected to tests." When dealing with such evidence, unless an accused can show bad faith on the part of the police, failure to preserve useful evidence does not constitute a due process deviation.... The constitutional duty imposed upon the state to preserve evidence is limited to that evidence that is "constitutionally material." For evidence to be constitutionally material, the evidence (1) must have an exculpatory value that was apparent before the evidence was lost or destroyed; and (2) the defendant must be unable to obtain comparable evidence through other available means.

Therefore, defendant here must show either that the police acted in bad faith by failing to prevent additional damage to the truck or that the damaged truck had apparent exculpatory value before it was further damaged, and that there was no other comparable evidence available.

Citing People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977), defendant asserts that the police conduct, particularly the failure to prevent additional break-ins at the impound lot despite knowledge of prior incidents, was in bad faith because it amounted to gross negligence. However, Baca holds only that gross negligence may be, under some circumstances, tantamount to bad faith or overreaching, not that such a finding is mandatory.

Here, defendant does not allege that the police willfully destroyed evidence, and the trial court determined only that the police were negligent in the preservation of defendant's truck. Because there is ample support in the record for the trial court's determination, we will not overturn it on appeal.

Alternatively, the evidence must have had apparent exculpatory value before the loss or destruction occurred. But, defendant does not assert that the nature of the damage to his truck from the collision was apparently exculpatory, nor does our review of the record reveal anything to support such a contention. Speculative assertions regarding the possible exculpatory effect had the evidence been available for testing are not sufficient to meet this burden. People v. Wyman, supra.

Finally, the evidence defendant sought to have admitted would have been merely an additional method for determining the speed of his truck at the time of the collision. The "skid-to-stop" calculation, which defendant admits is a reliable method of determining the speed of a vehicle, as well as the testimony of two eyewitnesses, provided additional sources of comparable evidence as to the speed of his truck. See People v. Wyman, supra. We also note that, while the "skid-to-stop" calculation supported the prosecution's theory that defendant was speeding, the eyewitness testimony was entirely favorable to defendant.

Therefore, because the trial court found that the damage to defendant's truck while impounded was not the result of bad faith conduct by the police, because the evidence sought by defendant was not apparently exculpatory before it was damaged, and because other evidence was admitted as to the speed of the truck that was at least as reliable as that which defendant sought, we hold that there was no violation of defendant's due process rights.

II.

Defendant next contends that the trial court abused its discretion by granting an exception to its witness sequestration order, so that an expert could hear defendant's testimony and then testify in response thereto. Defendant also contends that the matters the expert was attempting to refute were irrelevant, that the expert's testimony constituted a discovery violation pursuant to Crim. P. 16, and that the trial court erred by denying defendant's motion for a continuance in response to the expert's "surprise" testimony. We perceive no error.

Defendant testified at his trial and was thereby subject to cross-examination. Prior to the direct examination of defendant, the prosecution successfully requested an exception to the witness sequestration order to permit two witnesses to hear the testimony of defendant.

During subsequent cross-examination, defendant testified that he had two to three beers at about 3:00 p.m. on the day of the collision, and gave further testimony as to his weight and the chronology of events on that day.

Following the cross-examination of defendant, the prosecution called a forensic toxicologist, who had heard the defendant's testimony, as an expert witness. The toxicologist testified that defendant's five measured blood alcohol levels were inconsistent with his testimony regarding either the chronology of events or the quantity of alcohol consumed, or both.

A.

Defendant's first contention is that the evidence of alcohol consumption was irrelevant and that it was beyond the scope of his direct examination. We disagree.

"A defendant who takes the witness stand is subject to the same tests of credibility as any other witness." People v. Neal, 181 Colo. 341, 343, 509 P.2d 598, 599 (1973). The prosecution is entitled to "explain, refute, counteract or disprove" the defendant's testimony by "any competent evidence." Deeds v. People, 747 P.2d 1266, 1274 (Colo.1987).

Under CRE 611(b), the scope of cross-examination is not limited to precisely the "facts and acts" raised on direct examination but may touch on all matters necessary to permit an effective cross-examination. Rather, the rule "must be liberally construed to permit cross-examination on any matter germane to the direct examination, qualifying or destroying it, or tending to elucidate, modify, explain, contradict, or rebut testimony given by the witness." People v. Sallis, 857 P.2d 572, 574 (Colo.App.1993).

When the defendant does not object to the admission of evidence at trial, we review the trial court's ruling only for plain error. Accordingly, for reversal to be required the "defendant must demonstrate that the error so undermined the fundamental fairness of the trial that it casts serious doubt on the reliability of the verdict." People v. Roy, 948 P.2d 99, 102 (Colo.App.1997).

The first inquiry of defendant regarding his alcohol consumption was by the prosecution on cross-examination, without a defense objection. However, the inquiry was relevant as to the issue of defendant's...