People v. Wartena, 06SA232.

• Decision Date: 16 April 2007
• Docket Number: No. 06SA232.,06SA232.
• Citation: 156 P.3d 469
• Parties: In re PEOPLE of the State of Colorado, Plaintiff v. Matthew Gene WARTENA, Defendant.
• Court: Colorado Supreme Court

156 P.3d 469

In re PEOPLE of the State of Colorado, Plaintiff v. Matthew Gene WARTENA, Defendant.

No. 06SA232.

Supreme Court of Colorado, En Banc.

April 16, 2007.

Scott W. Storey, District Attorney, 1^st Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Plaintiff.

Douglas K. Wilson, State Public Defender, Nancy Holton, Deputy Public Defender, Golden, Colorado, Attorneys for Defendant.

Justice MARTINEZ delivered the Opinion of the Court.

In this C.A.R. 21 proceeding, we hold that the trial court abused its discretion when it committed to ordering suppression of DNA results for tests that had not yet been conducted if the CBI refused to permit videotaping and the district attorney refused to pay the expense of a defense expert. Thus, we vacate the ruling.

I. Facts and Procedural History

The defendant, Matthew Wartena ("Wartena"), is accused of eleven felonies, including extreme indifference murder and attempted murder after deliberation, stemming from a high-speed pursuit. At a preliminary hearing, police officers testified that Wartena and an accomplice were seen stealing a Honda Civic from a residential street. A passing motorist who witnessed the alleged theft followed the Civic until it pulled over. The Civic's passenger, purportedly Wartena, fired a shotgun at the trailing motorist before speeding away. Moments later, when the Civic attempted to merge onto southbound I-270 at Commerce City, it swerved across traffic, causing a multi-car accident that killed one motorist and seriously injured two others.

In April 2006, the Colorado Bureau of Investigation ("CBI") notified Wartena's counsel that tests would be performed on the handle of a shotgun found at the accident scene. The CBI further informed Wartena that these tests likely would destroy the sample and not permit subsequent defense testing. It is unclear from the record whether the CBI offered Wartena the opportunity to hire an expert to be present for the testing or whether the defense requested that the CBI delay testing while it considered its alternatives.

After receiving notice of possible destructive testing, Wartena asked the CBI to allow his attorney or an investigator to videotape the testing procedures, to be reviewed by his trial expert at a later date. The CBI refused this request. In refusing, the prosecution team referred Wartena to the CBI evidence manual, which states that "[p]hotographic and/or video recording of any in-progress analytical procedure is prohibited." Colo. Bureau of Investigation Forensic Lab. Evidence Manual, Version 1.6, 22 (Apr.2003).

The parties then involved the trial court in a discussion to explore possible alternatives that would allow Wartena the opportunity to observe the test. Defense counsel urged that the court either require the CBI to allow the defense to videotape the test or order the prosecution to pay the cost of a defense expert. The prosecution challenged both options.

At a subsequent proceeding, the court heard testimony from a CBI representative as to the reasons for its protocol prohibiting videotaping. The prosecution argued that its only obligation to the defense regarding the trace evidence was to allow a defense expert to be present during testing. Defense counsel countered that an expert would cost $2,000 per day plus expenses and given that the test would take three days to complete, the total expense would likely top $7,000. Conversely, videotaping could be done unobtrusively and for far less than $7,000. The prosecution then argued that the public defender's office had an appropriation from the General Assembly for expenses like expert witnesses. The public defender countered that "we call and beg for experts . . . [we have] funding problems." In considering the available options, and in light of the CBI's policy, the court asked the prosecution whether it would contribute some portion of the cost arising from the CBI's videotaping prohibition. The prosecution refused. The prosecution also refused to ask the CBI to allow videotaping of the tests.

The trial court then entered an order stating that it would suppress the results of the DNA test unless the prosecution paid the costs of the defense expert in excess of $1,000. Discussing the order, the judge stated in part:

Now, if the prosecution, whether through your office, public donations, or any other way comes up with the money to reimburse this expert, then I will admit the evidence as long as you have made available to the defense the opportunity to have this done at no expense to the defendant or, for that matter, at an expense that doesn't exceed a thousand dollars, because it seems me that at least the first time that's what it would cost.

But absent the prosecution coming up with some method where the defense can exercise this constitutional right for a cost that does not exceed a thousand dollars, and absent the Colorado Bureau of Investigation being willing to participate in the development of a protocol that permits videotaping of this extraction of DNA material without risks of contamination or disruption, then it is likely that the evidence obtained will not be admitted in this court because it will be my view that the defendant's constitutional right to have this testing reasonably observed will have been violated.

The prosecution then sought to clarify the court's ruling by asking, "If we do this testing [with] no videotaping, . . . is this court going to preclude us from putting that evidence in at trial?" The court replied, "It sounds like I probably am." The court continued, "Oh, you want a `yes' or `no'?" The prosecutor said, "Yes, please." The court then responded, "Yes."

II. Analysis

We turn to the substance of the court's commitment to suppress the test results. The prosecution argues, and we agree, that the General Assembly has largely codified the applicable constitutional considerations pertaining to destructive testing. § 16-3-309, C.R.S. (2006). The statute mandates that the trial court take account of various factors when considering whether to suppress test results if the testing will not leave a sufficient sample for independent analysis.¹

Section 16-3-309 leaves for the court the determination of admissibility based on the reasonableness of the prosecution's actions. The statute establishes a good faith standard of prosecutorial conduct requiring that the state seek to preserve evidence where possible and act reasonably in destroying evidence where necessary. If the court determines that it was foreseeable that test results might aid the defendant, the statute mandates that the court consider the state's choice in tests, whether the state should have kept a photographic record, and whether the state should have preserved test samples for later analysis. § 16-3-309(2). Alternatively, if, after collecting the evidence, the state has reason to suspect that the sample will be destroyed during testing, the state has the duty to contact the defendant so that his expert may be present during testing. § 16-3-309(2)(g).

The touchstone of the statute is the reasonableness of the state's conduct. Thus, when the sample is destroyed the court may be asked to suppress the test results as a sanction for unreasonable state conduct. Under these circumstances, the statute requires that the court consider whether the state performed the testing in good faith and gave the defendant an opportunity to have an expert present during destructive testing. See People v. Brown, 194 Colo. 553, 555, 574 P.2d 92, 94 (1978) (when the state acts unreasonably in destroying evidence, the court, in its role of guarding the preservation of evidence, may impose an appropriate sanction). An order suppressing results prior to testing could only be based on possible future conduct. Thus, when it commits to ordering test results suppressed before evidence has been destroyed in testing the court acts outside its discretion because it is in no position to assess the reasonableness of the prosecution's future actions.

Instead of deciding whether evidence will be suppressed, the court's role prior to testing is to oversee the preservation of evidence. The authority of the court to supervise the preservation of evidence originates in the court's role to protect the "civilized standards of procedure and evidence." McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943).² The trial courts' supervisory role extends to remedies when addressing a failure to preserve material evidence. United States v. Valenzuela-Bernal, 458 U.S. 858, 870, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); see also, California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).³

Acting to avoid or mitigate a failure to preserve evidence, the court may order that evidence cannot be destroyed, or may permit the consumptive testing of evidence. Brown, 574 P.2d at 94; see also People v. Braunthal, 31 P.3d 167, 174 (Colo.2001). Except in unusual circumstances, this authority does not extend to dictating procedures to a particular laboratory or ordering the prosecution to pay for a defense expert. Nonetheless, the court may exercise its authority over the evidence by prohibiting testing that does not comply with procedures adopted by the court to permit independent evaluation of evidence.

We have not previously addressed whether, in the exercise of its authority to set appropriate procedures, the court may require videotaping of testing procedures as a condition of permitting consumptive testing. The American Bar Association recently addressed the duty to preserve evidence in consumptive testing situations, noting in the Criminal Justice Section Standards on DNA Evidence that courts should consider ordering procedures such as videotaping that would allow for independent evaluation.⁴ We agree with the recommendation of the American Bar Association and adopt Standard ...