State v. Bauer

• Decision Date: 12 March 1985
• Docket Number: No. 84-1340-CR,84-1340-CR
• Citation: 123 Wis.2d 444,368 N.W.2d 59
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Daniel J. BAUER, Defendant-Respondent. *
• Court: Wisconsin Court of Appeals

Page 59

368 N.W.2d 59

123 Wis.2d 444

STATE of Wisconsin, Plaintiff-Appellant, v. Daniel J. BAUER, Defendant-Respondent. ^*

No. 84-1340-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 14, 1985.

Opinion Released March 12, 1985.

Opinion Filed March 12, 1985.

Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-appellant.

Nila Jean Robinson and Robinson, Smith & Robinson, Appleton, for defendant-respondent.

Before CANE, P.J., and DEAN and LaROCQUE, JJ.

CANE, Presiding Judge.

The state appeals an order suppressing the identification of Daniel J. Bauer as the perpetrator of a sexual assault. The victim of the assault identified Bauer at the preliminary hearing. The in-court identification followed prior identifications from a photo array and a physical lineup. After the victim died in an automobile accident, the defendant sought to suppress the in-court identification because the state could not produce the photo array or a photograph of the lineup. The trial court concluded that the lost photographs were material evidence and that due process prohibits the state from using an identification based on lost evidence.

The state contends that the trial court erred by presuming that the lost photographs were exculpatory. Alternatively, the state contends that the in-court identification should be admitted because it had a basis independent of the out-of-court identifications. Because the lost photographs were material to establishing the reliability of the in-court identification and were possibly exculpatory, and because no independent basis exists to verify the reliability of any of the identifications, we affirm the suppression order.

The victim of the assault first identified Bauer from an array of six photographs. The police then arrested Bauer, and he requested a physical lineup to test the victim's prior identification. Bauer's attorney attended the lineup at which the victim again identified the defendant. Finally, the victim identified Bauer at the preliminary hearing.

The victim died in an automobile accident shortly after the preliminary hearing. Bauer's new attorney ¹ then moved to suppress all identification evidence, including the victim's testimony at the preliminary. The trial court suppressed the preliminary testimony, but did not rule on the identification evidence. The state appealed the court's suppression order, and this court reversed the exclusion of the preliminary testimony. 106 Wis.2d 775, 319 N.W.2d 179 (1982). Our supreme court affirmed our decision to admit the preliminary testimony. State v. Bauer, 109 Wis.2d 204, 325 N.W.2d 857 (1982).

Bauer renewed his motion to exclude all identification evidence after this matter was remanded to the trial court. The trial court excluded the victim's out-of-court identification testimony as unreliable hearsay. The state did not appeal this ruling. Bauer also argued that the identification at the preliminary should be suppressed because the prior out-of-court identifications were suppressed and because the state lost the photo array and the photograph of the lineup. He contended that the admissibility of the in-court identification depends on the reliability of the out-of-court identifications, which cannot be determined without the lost evidence. The trial court ruled that the lost evidence was material and that due process required the suppression of the identification made at the preliminary.

DUTY TO PRESERVE EVIDENCE

This case raises the problem of evidence lost by the state that may or may not be favorable to the defendant. The photographs in a pictorial lineup and the photograph of a physical lineup may constitute exculpatory evidence if they indicate that the identification procedure was unnecessarily suggestive. The exculpatory value of such evidence cannot be determined, however, when the evidence is lost or destroyed. This case therefore differs from those recently decided by our supreme court involving lost evidence that was not material or exculpatory under any circumstances. See State v. Walstead, 119 Wis.2d 483, 351 N.W.2d 469 (1984); State v. Disch, 119 Wis.2d 461, 351 N.W.2d 492 (1984); State v. Ehlen, 119 Wis.2d 451, 351 N.W.2d 503 (1984).

The parties express justifiable confusion about the correct test for determining whether the loss or destruction of evidence constitutes a violation of due process. After reviewing decisions by this court, our supreme court, and the United States Supreme Court, it appears that a variety of tests have been applied to evaluate the effect of lost evidence. The state urges a test requiring Bauer to show that lost evidence would have been both material and exculpatory. Bauer argues that he must only show that the lost evidence would have been material. We conclude that the state has an obligation to preserve material evidence that may possibly be exculpatory. The loss or destruction of such evidence does not necessarily require a sanction, however, unless fundamental fairness is denied.

According to the United States Supreme Court, due process is violated by the loss of evidence that prevents a fair trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982). Absence of fairness is not established unless the defendant explains how the lost evidence would have been favorable and material. See id. Sanctions may be imposed because of the loss of material evidence only if there is a reasonable likelihood that the evidence could have affected the judgment of the trier of fact. See id., 102 S.Ct. at 3450.

In California v. Trombetta, 467 U.S. 479, ----, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984), the Supreme Court specifically addressed the government's duty to take affirmative steps to preserve evidence for criminal defendants. The court stated that the Constitution requires the preservation of evidence that might be expected to play a significant role in the suspect's defense. Id., 104 S.Ct. at 2534. To meet the standard of constitutional materiality, evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Id.

Wisconsin appellate courts have not always required a showing that lost evidence would have been favorable to the defendant. In State v. Amundson, 69 Wis.2d 554, 577, 230 N.W.2d 775, 787-88 (1975), our supreme court distinguished between the suppression of evidence and the destruction of evidence. The court required a showing that suppressed evidence is exculpatory because the evidence is available for inspection by the court. Id. at 577, 230 N.W.2d at 787. The court held that destroyed evidence need only be material because the defendant could not possibly prove that the destroyed evidence was exculpatory. Id. at 578, 230 N.W.2d at 788. Relying on Amundson, this court subsequently held that the destruction of breath ampoules before the defendant could test them violated due process. We stated that the defendant could not otherwise effectively challenge the reliability of the state's evidence. State v. Booth, 98 Wis.2d 20, 28, 295 N.W.2d 194, 198-99 (Ct.App.1980).

The parties disagree as to whether our supreme court recently changed the requirements for proving a due process violation in destruction of evidence cases. Walstad, 119 Wis.2d at 522, 351 N.W.2d at 488, overruled our decision in Booth on the basis that used ampoules are not retestable, and therefore they are not material evidence. The results of a blood alcohol test were admitted in Disch, 119 Wis.2d at 470, 351 N.W.2d at 497, where the defendant did not show that the lost blood sample could be retested. See also Ehlen, 119 Wis.2d at 457, 351 N.W.2d at 506. Bauer argues that these cases reaffirm the underlying principle that the loss of material evidence violates due process regardless of whether the defendant can prove that the evidence was exculpatory. The supreme court did state in Disch, 119 Wis.2d at 477, 351 N.W.2d at 500, that a defendant is denied fundamental fairness when evidence material to guilt or innocence is unavailable. The state contends, however, that the loss of evidence does not necessarily violate due process unless fundamental fairness is compromised so that a fair trial is impossible. See Disch, 119 Wis.2d at 469-70, 351 N.W.2d at 496-97.

The confusion of the parties is caused by the failure to distinguish between two separate inquiries that are both necessary to evaluate destruction of evidence cases. The first issue is whether the state had a duty to preserve the lost evidence for inspection by the defendant. The second issue is whether the loss of evidence that should have been preserved requires the imposition of a sanction. The fact that evidence should be preserved triggers the second inquiry about sanctions; sanctions, however, are not automatically required.

We conclude that the state has a duty to preserve material evidence that is possibly exculpatory. The defendant must make a plausible showing of how the lost evidence would have been material and favorable. We recognize that a defendant may be able to establish that lost evidence was possibly exculpatory, while the state discarded the evidence because it was not apparently exculpatory. We reconcile the defendant's need for a relaxed showing of exculpability and the state's right to discard nonexculpatory evidence by placing the burden on the state to show that the unavailable evidence was not favorable to the defendant. The state must show that the evidence was not exculpatory by clear and convincing evidence. ² Where the state did not determine whether evidence was exculpatory before the evidence was lost or discarded, the state cannot rebut the defendant's showing that the evidence was possibly exculpatory; ³ the lost evidence is then presumed to be exculpatory,...