Samek v. State, 56A03-9706-CR-214

• Decision Date: 10 December 1997
• Docket Number: No. 56A03-9706-CR-214,56A03-9706-CR-214
• Citation: 688 N.E.2d 1286
• Parties: Steve SAMEK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1286

688 N.E.2d 1286

Steve SAMEK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 56A03-9706-CR-214.

Court of Appeals of Indiana.

Dec. 10, 1997.

Rehearing Denied Feb. 19, 1998.

Anthony B. Ratliff, Randle Ratliff & Ratliff, Rensselaer, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, for Appellee-Plaintiff.

OPINION

GARRARD, Judge.

Steve Samek ("Samek") appeals his convictions for burglary and theft, claiming that the State's failure to preserve an audio taped confession violated his due process rights.

We affirm.

FACTS

On May 22, 1997, tools were stolen from the toolshed of Robert Churchill. Tire tracks from a three-wheeled vehicle led from the toolshed onto Samek's property. Based upon this evidence, the Indiana State Police obtained a search warrant for Samek's home. As the police were leaving after searching Samek's home, Samek arrived at his home in a van driven by his houseguest, Douglas Jacobsen ("Jacobsen"). The police found several tools in the back of the van that had been taken from Churchill's toolshed. Samek was arrested, but Jacobsen was not. That evening Jacobsen implicated Samek in the burglary.

Two days after Samek's arrest, Trina Samek, Samek's wife, gave the police an audiotape of a male voice confessing to the burglary of the Churchill toolshed. Trooper Anthony DeLello ("DeLello"), the investigating officer for the Churchill burglary, listened to the audiotape and, based upon the comments of the speaker, thought that the person speaking on the tape was Jacobsen. DeLello did not, however, identify the speaker on the tape based upon the speaker's voice.

Because he was concerned about the admissibility of the tape at trial, DeLello took the tape to the prosecutor, Edward Barce ("Barce"). After explaining the circumstances surrounding the tape and his belief that the speaker on the tape was Jacobsen, DeLello played the tape for Barce. After listening to the tape, Barce told DeLello not to place the tape into evidence. Barce did not, however, tell DeLello to destroy the tape. Neither Barce nor DeLello can remember whether DeLello took the tape with him or left it with Barce. The tape was never found after this meeting.

Nearly seven months later, on January 21, 1997, Samek filed a motion to dismiss the Information, claiming that the State had failed to preserve exculpatory evidence in the form of the tape. After a hearing on this matter on January 24, 1997, the trial court denied Samek's motion. Prior to trial, the State filed a motion in limine to prevent any testimony about the contents of the tape. The trial court granted this motion in limine, stating that the tape was inadmissible hearsay. At the time of the trial, Jacobsen could not be located and was assumed to have fled Indiana. Ultimately, the jury convicted Samek of burglary and theft. Samek now appeals.

ISSUE

Samek raises one issue on appeal which we restate as:

I. Whether the trial court erred by denying Samek's motion to dismiss.

DISCUSSION

Samek contends that his due process rights were violated by the State's failure to preserve the tape and, therefore, the trial court erred when it denied his motion to dismiss. To support this contention, Samek argues that the tape constituted material exculpatory evidence making its loss a violation of his due process rights. The State argues that Samek's due process rights were not violated because the tape did not constitute material exculpatory evidence but was instead merely potentially useful evidence. The State also argues that Samek has failed to prove that the failure to preserve the tape was in bad faith. In response to this argument, Samek contends that the evidence surrounding the disappearance of the tape shows bad faith on the part of the State.

The appropriate test to apply when deciding whether a defendant's due process rights have been violated by the State's failure to preserve evidence depends on whether the evidence in question was "potentially useful evidence" or "material exculpatory evidence" as these terms were employed in Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). When the evidence in question is defined as material exculpatory evidence, the State's good or bad faith in failing to preserve the evidence is irrelevant. Id. (citing Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). However, when the evidence in question is merely potentially useful evidence, the defendant must show that the State's failure to preserve the evidence was committed in bad faith in order to prove a violation of his due process rights. Id.

The U.S. Supreme Court in Youngblood defined potentially useful evidence as "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. To rise to the level of material exculpatory evidence, 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 reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984); See also Curry v. State, 643 N.E.2d 963, 979 (Ind.Ct.App.1994), reh'g denied, trans. denied. Exculpatory is defined as "[c]learing or tending to clear from alleged fault or guilt; excusing." BLACK'S LAW DICTIONARY 566 (6th ed. 1990).

We note that in Bivins v. State, 642 N.E.2d 928 (Ind.1994) cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996) our supreme court found no due process violation where a tape recording of a defendant's preliminary advisements had been negligently destroyed or recorded over since the defendant...