State v. Boyd, 8554-9-I

• Decision Date: 15 June 1981
• Docket Number: No. 8554-9-I,8554-9-I
• Citation: 29 Wn.App. 584,629 P.2d 930
• Parties: STATE of Washington, Respondent, v. Daniel Lewis BOYD, Appellant.
• Court: Washington Court of Appeals

Page 584

29 Wn.App. 584

629 P.2d 930

STATE of Washington, Respondent, v. Daniel Lewis BOYD, Appellant.

No. 8554-9-I.

Court of Appeals of Washington, Division 1.

June 15, 1981.

Brett, Brinn, Daugert & Erickson, Dean Brett, Bellingham, for appellant.

David S. McEachran, Whatcom County Pros. Atty., Charles Tull, Deputy Pros. Atty., Bellingham, for respondent.

JAMES, Chief Judge.

Dan Boyd appeals his conviction for eluding a police officer, alleging failure by the police to preserve evidence material to his defense. We reverse.

Boyd testified ¹ that as he and a friend were leaving the parking lot of the Coconut Grove, a Bellingham tavern, at about 1:30 a. m. on September 25, 1979, a Chevrolet Camaro spun several rocks at his car. The rocks struck Boyd's car, a silver Corvette with license number IZX 087. Boyd followed the Camaro, then realized he left his wallet at the Coconut Grove and returned to get the wallet. He left the tavern, proceeding along Bennett Drive. As he entered the freeway access ramp, his car was stopped by a Bellingham police officer.

Another police officer testified that he observed a silver Corvette approaching him at a high rate of speed on Marine Drive at about 1:30 a. m. He believed the license plate to read, "IZY," and at trial identified Boyd as the driver of the car. The officer radioed a description of the car before pursuing it. He turned on his siren and chased the car through several residential streets and an alley, after which he lost sight of it. At this point, he again radioed the dispatcher. Shortly after, he received a dispatch that an anonymous caller had reported a silver Corvette traveling on Bennett Drive toward the freeway. Shortly after this radio communication, another officer radioed that he had stopped a silver Corvette on the freeway access ramp. The Corvette was Boyd's.

At trial, several police officers testified to hearing the officer's initial description of the car. One officer testified he heard a communication stating the first license plat letter was "I," while the dispatcher remembered hearing "IZX."

Boyd, in contrast, testified he was in the general area but was not involved in any police chase. Boyd presented evidence tending to show that, in the limited time stated by the officer, he could not have traveled from the point where the officer lost sight of the Corvette to the point where he was stopped. Two residents of the chase area testified they heard no sirens and believed they would have heard a siren had one been used. Boyd's companion in the car testified that he had "dozed off" and would have awakened if the car had been involved in a high speed chase.

Boyd contends that resolution of this testimonial conflict in his favor would have been materially aided by introducing evidence of the contents of the officer-to-station radio transmission tapes pertaining to his case. Bellingham police regularly record all such radio transmissions on 24-hour tapes, covering 6 a. m. of one day to 6 a. m. of the next. The recordings are routinely erased after 30 days.

On October 19, Boyd's attorney requested from the prosecutor

a true and correct transcribed record of the relevant law enforcement recordings regarding the above-entitled matter. For your convenience the cause number is 10410 and involves ... the eluding of a police officer. These events occurred on the evening of September 25, 1979.

Exhibit 9. Based on the reference to events occurring "on the evening of September 25," the tape beginning at 6 a. m. on September 25 was preserved, but the tape desired by Boyd (beginning at 6 a. m. on September 24) was destroyed.

Boyd moved to dismiss the charges because of police failure to preserve specifically requested evidence. The trial judge concluded that the destruction resulted from negligence and bureaucratic mixup rather than deliberate destruction and denied the motion. At trial, a missing evidence instruction was given. ²

Boyd asserts that the transcript of the tapes would have conclusively shown the time of each call from each location, supporting his contention that he could not have traveled from where the officer lost sight of the Corvette to where Boyd was stopped. He also asserts that the absence of the sound of a siren on the tape could rebut the police officer's testimony that a siren was used and support evidence of witnesses from the alleged chase area who heard no siren. Boyd further contends that the recording of the police officer's original identification of the car could also rebut the officer's testimony on that point. He contends that destruction of this evidence denied him due process of law.

It is well established that destruction or withholding of evidence violates due process if the evidence is favorable to a defendant and material to his case. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976); State v. Temple, 5 Wash.App. 1, 485 P.2d 93 (1971).

In Seattle v. Fettig, 10 Wash.App. 773, 776, 519 P.2d 1002 (1974), evidence was held to be material to the defense if it tends to rebut a police officer's testimony; evidence was held to be favorable if there was at least a "reasonable possibility" the evidence rebutted such testimony. In State v. Wright, supra at 789-90, 557 P.2d 1, the court found a denial of due process where "there was a reasonable possibility that the evidence destroyed ... was material to guilt or innocence and favorable to appellant." In State v. Canaday, 90 Wash.2d 808, 815, 585 P.2d 1185 (1978), our Supreme Court adopted the test enunciated in United States v. Agurs, which was "a refinement" of the Brady rule. In Agurs 427 U.S. at 112-13, 96 S.Ct. at 2401-02, the Supreme Court defined materiality in these terms:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

(Footnotes omitted.)

Agurs distinguished cases where specific requests were made, stating that "(w)hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable." United States v. Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2398. Agurs did not, however, involve a specific defense request for preservation of evidence. The court stated that "(t)he test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made." (Footnote omitted.) United States v. Agurs, supra 427 U.S. at 106, 96 S.Ct. at 2398. Reviewing Brady v. Maryland, the court found that implicit in the requirement of materiality is a "concern that the suppressed evidence might have affected the outcome of the trial." United States v. Agurs, supra, 427 U.S. at 104, 96 S.Ct. at 2397. This test has been interpreted as synonymous with the constitutional "harmless error" standard and as requiring reversal whenever "there is a 'reasonable possibility' that the error materially affected the verdict." (Footnote omitted.) United States v. Goldberg, 582 F.2d 483, 489 (9th Cir. 1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979). Boyd contends that this "concern that the suppressed evidence might have affected the outcome" is equivalent to the "reasonable possibility" standard of materiality employed by our Supreme Court in State v. Wright, supra. We agree.

The failure to make a timely specific request for preservation of evidence is a factor to be considered in determining if a defendant has been denied due process of law. See State v. Renfro, 28 Wash.App. 248, 622 P.2d 1295, review granted, 95 Wash.2d 1018 (1981); State v. Ervin, 22 Wash.App 898, 594 P.2d 934 (1979); State v. Weygandt, 20 Wash.App. 599, 581 P.2d 1376 (1978); State v. Scriver, 20 Wash.App. 388, 580 P.2d 265 (1978). Another Division of this court has, however, questioned the appropriateness under Agurs of the "reasonable doubt" standard applied in State v. Canaday, supra, where a request for preservation of specific evidence was made. State v. Nerison, 28 Wash.App. 659, 625 P.2d 735 (1981).

Two factors present in Canaday suggest...