State v. Cote

• Decision Date: 23 June 2015
• Docket Number: Docket No. Pen–14–112.
• Citation: 2015 ME 78,118 A.3d 805
• Parties: STATE of Maine v. Clarence COTE.
• Court: Maine Supreme Court

118 A.3d 805

2015 ME 78

STATE of Maine

v.Clarence COTE.

Docket No. Pen–14–112.

Supreme Judicial Court of Maine.

Argued: April 7, 2015.

Decided: June 23, 2015.

Corrected: July 21, 2015.

Stephen C. Smith, Esq. (orally), Bangor, for appellant Clarence Cote.

R. Christopher Almy, District Attorney, and Susan J. Pope, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

Opinion

HJELM, J.

[¶ 1] Clarence Cote appeals from a judgment of conviction entered by the trial court (Anderson, J. ) after a jury found him guilty of two counts of gross sexual assault (Class A), 17–A M.R.S.A. § 253(1)(B), (4) (1983).¹ Cote contends that his constitutional right to a fair trial was violated by the State's failure to preserve a recording of a police interview of the victim and by the State's delay in seeking an indictment. We affirm the judgment.

I. BACKGROUND

[¶ 2] The record, viewed in the light most favorable to the State, establishes the following facts. See State v. Marroquin–Aldana, 2014 ME 47, ¶ 2, 89 A.3d 519.

[¶ 3] In August 2012, Cote was indicted by a grand jury for two counts of gross sexual assault based on allegations that he sexually abused his niece in July and August 1990. Shortly after the abuse occurred, the victim moved from Lincoln to Millinocket and no longer saw Cote. In 1992, Cote moved out of Maine. The victim reported the assaults sometime after that, and her allegations were eventually referred to the Millinocket Police Department. In December 1994, a Millinocket detective conducted a recorded interview of the victim at her middle school. Based on her statements about where the incidents occurred, the case was transferred to the Lincoln Police Department in early 1995.

[¶ 4] In January 1996, the Maine State Police took over the investigation, and a State Police detective interviewed the victim. The State filed a complaint against Cote, and a warrant was issued for his arrest, but because he was not in Maine, he was not arrested until April 2012. Following Cote's arrest, a State Police detective attempted to find the recording of the 1994 interview, but although it had been turned over to the Lincoln Police Department, there was no record of what happened to it after that, and it was never found. The case was then presented to a grand jury, which returned the indictment against Cote.

[¶ 5] In April 2013, Cote filed a motion to dismiss the indictment, contending that he was prejudiced by the pre-indictment delay and that the State's failure to preserve the recording violated his right to a fair trial. After a hearing, the court (R. Murray, J. ) denied the motion, finding that the State did not act in bad faith in failing to preserve the recording and that Cote was not prejudiced by the pre-indictment delay.

[¶ 6] A two-day trial was held in January 2014. The victim testified that in 1990, the summer before she entered second grade, she sometimes stayed with Cote and her aunt in Lincoln, and that, on several occasions, Cote subjected her to sexual assaults including anal intercourse and oral-genital contact. The now-retired Millinocket detective who interviewed the victim testified, based on a report that he wrote at the time of the interview, that the victim told him that the assaults had occurred approximately two years before the interview, which would have been in either 1991 or 1992. He also testified that the victim stated in the interview that on several occasions Cote touched her vagina and forced her to touch his penis. The victim could not remember at trial, however, whether she had stated in the interview that Cote forced her to have anal intercourse or to have oral contact with his penis.

[¶ 7] During the trial, Cote moved for a judgment of acquittal, arguing that the State's evidence was inconsistent regarding the year in which the assaults occurred. He also renewed his motion to dismiss based on pre-indictment delay and destruction of evidence. The court denied both motions, and the jury found Cote guilty of both counts of gross sexual assault. He was sentenced on the first count to a ten-year prison term with all but five years suspended and six years of probation, and on the second count to a concurrent five-year prison term. He timely appealed.

II. DISCUSSION

[¶ 8] Cote contends that his due process rights were violated by the State's failure to preserve the recording of the December 1994 interview with the victim and the twenty-two-year delay between the alleged assaults and the indictment.

A. Disappearance of Evidence

[¶ 9] Cote first argues that the trial court erred by denying his motion to dismiss the indictment based on the missing interview recording. Because the court correctly treated Cote's motion as a motion to suppress,² we review the factual findings underlying the trial court's ruling for clear error and the court's legal conclusions de novo. See State v. Drewry, 2008 ME 76, ¶ 19, 946 A.2d 981.

[¶ 10] The court denied Cote's motion solely because he did not prove that the State acted in bad faith in failing to preserve the recording. A showing of bad faith, however, is not always required for a defendant to prove that his right to a fair trial was violated by the State's destruction or loss of evidence. Rather, the United States Supreme Court has held that the question of whether a defendant is required to prove that the State acted in bad faith is a function of the nature of the lost or destroyed evidence. See California v. Trombetta, 467 U.S. 479, 488–89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ; Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

[¶ 11] In Trombetta, the Court held that, in order to protect a criminal defendant's right to a fair trial, prosecutors have a constitutional duty to preserve material evidence. 467 U.S. at 488, 104 S.Ct. 2528. For evidence to be material, it “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.” Id. at 489, 104 S.Ct. 2528. That holding, however, left open an important question: whether a defendant's rights can be violated when the State fails to preserve evidence that was not apparently exculpatory at the time it was lost or destroyed.

[¶ 12] The Court answered that question affirmatively in Youngblood, but it also held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. 333 (emphasis added). The Court emphasized that “[t]he Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333. The Court declined, however, to read the Due Process Clause “as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58, 109 S.Ct. 333. Particularly, the Court held that absent a showing of bad faith, the state's failure to “preserve 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” was not a violation of the defendant's due process rights. Id. at 57, 109 S.Ct. 333.

[¶ 13] The Supreme Court therefore has drawn a distinction between apparently exculpatory evidence and potentially useful evidence, and that distinction determines whether a defendant must prove that the loss of evidence was the result of bad faith on the part of the state. Youngblood makes clear that a defendant is required to prove that the state acted in bad faith only if the evidence does not “possess an exculpatory value that was apparent before the evidence was destroyed.”Trombetta, 467 U.S. at 489, 104 S.Ct. 2528 ; see Youngblood, 488 U.S. at 57–58, 109 S.Ct. 333 ; see also United States v. Garza, 435 F.3d 73, 75 (1st Cir.2006).

[¶ 14] We have not always drawn that distinction with precision. For example, in State v. Cyr, 588 A.2d 753, 755 n. 4 (Me.1991), although we ruled for the defendant on other grounds, we suggested that the trial court was correct in requiring the defendant to prove that the destroyed evidence was apparently exculpatory and that the State acted in bad faith. Some of our other cases may similarly be seen as blending the separate standards developed in Trombetta and Youngblood into a single three-part test without clearly stating that, if the evidence was apparently exculpatory when it was lost, the defendant is not required to make a showing of bad faith.³ See Trombetta, 467 U.S. at 489, 104 S.Ct. 2528 ; see, e.g., State v. Cruthirds, 2014 ME 86, ¶ 29, 96 A.3d 80 (stating that there are three elements the defendant must prove); State v. Kremen, 2000 ME 117, ¶ 15, 754 A.2d 964 (stating that even when the lost evidence is apparently exculpatory, bad faith “must be present”); State v. Lewis, 584 A.2d 622, 625 (Me.1990) (stating that the defendant must prove that the lost evidence was apparently exculpatory and that the State acted in bad faith).⁴

[¶ 15] We therefore clarify that, to determine whether the State's failure to preserve evidence violated a defendant's right to a fair trial, the trial court is required to conduct a bifurcated analysis. First, the court must determine whether the evidence possessed “an exculpatory value that was apparent before the evidence was destroyed.” Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. If so, then the defendant must show only that the evidence was “of such a nature that the defendant would be unable to...