Rita v. State

• Decision Date: 18 April 1996
• Docket Number: No. 71A03-9506-CR-185,71A03-9506-CR-185
• Citation: 663 N.E.2d 1201
• Parties: John G. RITA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1201

663 N.E.2d 1201

John G. RITA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-9506-CR-185.

Court of Appeals of Indiana.

April 18, 1996.

Rehearing Denied Aug. 17, 1996.

Appeal from the St. Joseph Superior Court, The Honorable William H. Albright, Judge, Cause No. 71D01-9311-CF-01064.

Charles A. Asher, South Bend, for appellant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Office of Attorney General, Indianapolis, for appellee.

OPINION

GARRARD, Judge.

John G. Rita was charged below with failure to stop at the scene of a fatal accident and with driving with a blood alcohol content (b.a.c.) in excess of .10%, resulting in the death of another person. Rita was acquitted of the second charge, but the jury was unable to reach a verdict on the first charge. After the State filed an amended information, the trial court, pursuant to Ind. Appellate Rule 4(B)(6), certified four issues for interlocutory appeal, which we address as follows:

I. Whether the State's alleged failure to properly preserve or negligent destruction of material evidence denied Rita due process under the Fourteenth Amendment and Ind. Const. art. I, § 12. ¹

II. Whether the trial court erred in permitting the State to amend the information after the first trial.

III. Whether the trial court erred in allowing the State, but not the defense, to use subpoenas to take ex parte statements from witnesses.

FACTS

On November 13, 1993, Rita was driving a vehicle which struck and killed Mara Fox. The accident occurred at approximately 12:20 a.m. on a rainy and foggy evening. Rita failed to stop at the scene but did pull over a short time later. He and his passengers observed that the windshield had been fractured and that the right-front section of the car had been damaged. Rita returned to his apartment and fell asleep while his friends notified the police, and Rita was subsequently arrested.

At trial, a key issue was the visibility of the fracture to the windshield. Three days after the accident, the prosecutor had the windshield removed from the vehicle without notice to Rita or the court. Rita learned of the removal a few months later when he sought to conduct various tests on the vehicle. As the windshield could not be replaced in the vehicle, this opportunity was lost. Over Rita's objections, the State was permitted to introduce as evidence at trial the windshield itself and several photographs taken before and after its removal. In its ruling denying Rita's motion to dismiss the information, the court stated in part:

[The decision to remove the windshield] does not in any way appear to have been done in bad faith. It was not expected to play a significant role in the way now contemplated by defendant for testing purposes. The defendant can perform many tests on a similar vehicle but not with a windshield damaged in exactly the same way.... [U]pon these facts there is not a denial of due process of law.

(R. 298-99). At trial, Rita was acquitted of the charge of causing a death while driving with a b.a.c. in excess of .10%, and the jury was unable to reach a verdict on the charge of knowingly leaving the scene of a fatal accident. Rita now brings this interlocutory appeal.

ISSUE I

Rita argues that the trial court erred in denying his motion to dismiss and, alternatively, in refusing to exclude the State's evidence regarding the broken windshield and in refusing to give Rita's jury instruction regarding the windshield. We find no error.

The defendant in a criminal case has the right to examine physical evidence in the hands of the prosecution. Turnpaugh v. State, 521 N.E.2d 690, 692 (Ind.1988), citing Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). The negligent destruction or withholding of material evidence by the police or prosecution may present grounds for reversal because it denies due process under the Fourteenth Amendment and the Ind. Const. art. I, § 12. Lee v. State, 545 N.E.2d 1085, 1089 (Ind.1989); Smith v. State, 586 N.E.2d 890, 893 (Ind.Ct.App.1992). However, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Court held that the failure of police to preserve potentially useful evidence was not a denial of due process of law absent the defendant's showing of bad faith on the part of the police. The Supreme Court indicated its unwillingness to read the fundamental fairness requirement of the Due Process Clause as imposing on police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution. Id. at 58, 109 S.Ct. at 337.

Our supreme court has clearly stated that, absent a showing of bad faith on the part of the police, the failure to preserve evidence does not constitute a denial of due process of law. McGowan v. State, 599 N.E.2d 589, 594 (Ind.1992). Indeed, numerous Indiana cases have applied the bad faith requirement in cases involving the negligent destruction of evidence. See Bivins v. State, 642 N.E.2d 928 (Ind.1994), cert. denied, --- U.S. ----, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996) (loss or destruction of audio tape recordings of defendant's interrogation, which would have provided material evidence, did not violate due process where defendant failed to demonstrate bad faith on the part of police in failing to preserve the tape); Nettles v. State, 565 N.E.2d 1064 (Ind.1991) (failure to preserve blood samples for defendant to test did not constitute denial of due process where there was no showing of bad faith); Vaughn v. State, 559 N.E.2d 610 (Ind.1990) (failure to preserve notebook which defendant alleged may have contained exculpatory evidence was not reversible error where no showing of bad faith); Curry v. State, 643 N.E.2d 963 (Ind.Ct.App.1994), reh'g denied, trans. denied (State's destruction of adult diaper and laundering of undergarments did not violate due process where State did not perceive evidentiary value to the defense at time of destruction and there was no evidence of bad faith); Smith v. State, 586 N.E.2d 890 (Ind.Ct.App.1992) (tape recording of conversation which was lost and then found during trial did not result in reversible error where no bad faith shown on the part of police); Glasscock v. State, 576 N.E.2d 600 (Ind.Ct.App.1991), reh'g denied, trans. denied (hospital's destruction of blood samples did not present grounds for reversal where State did not possess the evidence and there was no showing of bad faith); Everroad v. State, 570 N.E.2d 38 (Ind.Ct.App.1991), aff'd in part, vacated in part on other grounds, (failure to establish bad faith resulted in no error when police failed to test seized contraband for fingerprints);

Here, there is no evidence that the prosecution's decision to remove the windshield was motivated by bad faith. Rather, it appears that the prosecution was attempting to preserve the condition of the windshield. Further, while the evidence demonstrates that the State believed that the windshield was a key piece of evidence, there is no indication that, at the time it was removed, the State understood the type of testing which Rita wanted to perform on the windshield. See Curry, 643 N.E.2d at 979 (to meet the standard of constitutional materiality, the 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 reasonable means). In the absence of a showing of bad faith, we find no due process violation.

Rita also seems to contend that Indiana cases have drawn a distinction between the failure to preserve material evidence and the destruction of evidence, arguing that "[w]hile the failure of the police or prosecutors to take affirmative steps to seek out and preserve material evidence may constitute a denial of due process only if bad faith is shown ... where the destruction of evidence once in the hands of the police or prosecution is involved, a higher standard has applied for over a quarter of a century in Indiana." (Brief of Appellant at 31). ² We initially observe that the State did not destroy the windshield; rather, it failed to preserve it in the same condition as at the time of the accident. Secondly, the cases Rita cites to support his argument were decided prior to Arizona v. Youngblood. See Birkla v. State, 263 Ind. 37, 323 N.E.2d 645 (1975); Hale v. State, 248 Ind. 630, 230 N.E.2d 432 (1967). The cases since Youngblood have uniformly applied the bad faith requirement to due process claims involving the failure to preserve evidence or the negligent destruction of evidence. We find no basis in the cases cited by Rita to create a distinction between the failure to preserve evidence and the destruction of evidence, as several Indiana cases have applied the bad faith requirement where evidence has been destroyed. See Bivins, 642 N.E.2d 928 (loss or destruction of tape recordings); Curry, 643 N.E.2d 963 (destruction of adult diaper and laundering of undergarments); Smith, 586 N.E.2d 890 (loss of tape recording); Glasscock, 576 N.E.2d 600 (destruction of blood samples). By failing to preserve evidence, the State does, in effect, destroy it. Thus, we find the bad faith requirement applicable to the present case. ³

Given the absence of any bad faith on the part of the prosecution and the police in removing the windshield from Rita's vehicle, we find no error in the court's denial of his motion to dismiss or in the admission of evidence regarding the windshield. Rita also tendered a jury instruction which instructed the jury that, due to the removal of the windshield, it was mandatory that they accept as a fact that the fracture in the windshield was invisible to Rita and his passengers until, essentially, the time that they maintain they first noticed it. The test for reviewing the propriety of the...