State v. Greenwold, 94-1396-CR

Citation525 N.W.2d 294,189 Wis.2d 59
Decision Date01 November 1994
Docket NumberNo. 94-1396-CR,94-1396-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Eugene P. GREENWOLD, Defendant-Respondent. d
CourtCourt of Appeals of Wisconsin

For the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Barbara L. Oswald, Asst. Atty. Gen.

For the defendant-respondent, the cause was submitted on the briefs of Mary E. Waitrovich, Asst. State Public Defender.

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

CANE, Presiding Judge.

The State appeals an order dismissing charges against Eugene Greenwold of homicide by intoxicated use of a motor vehicle and homicide by operation of a motor vehicle with a blood alcohol level of .1% or more in violation of § 940.09(1), STATS. The trial court found that the officers investigating the homicide charges acted in bad faith by not preserving evidence and thus violated Greenwold's due process rights. The State contends that the trial court applied the Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), standard improperly by concluding that the officers' negligence constituted bad faith and therefore was a violation of Greenwold's due process rights. We agree that negligence is inadequate for a showing of bad faith and therefore reverse the trial court's ruling on the motion to dismiss.

BACKGROUND

The incident in question involved a one car, rollover accident on Highway N in the Town of Preston, Trempealeau County. An officer who arrived at the scene briefly spoke with the owner of the car, Julie Murray, who gave conflicting testimony as to whether she or Greenwold was the driver. Also, an officer spoke with Greenwold, who said he was not driving the car and was not sure if Murray was driving the car. Murray died two days later from a head injury sustained in the accident.

While at the accident scene, the officers generally searched the area for markings and took some photographs. However, the officers did not examine the car for blood. Later, the vehicle was taken to an impound shed, which was neither heated nor air-conditioned and open to birds, rodents and other animals. Furthermore, the officers did not Despite these oversights, the officers continued to investigate the accident and obtained a search warrant to take samples from the vehicle, which was still impounded. The officers collected several samples from the vehicle, including vinyl from the interior, molding from the driver's side door, human hair from the roof of the interior and a reddish brown substance from the dashboard by the steering wheel. These items were sealed in envelopes and placed in the evidence room of the sheriff's department. The police obtained another search warrant to seize blood and hair samples from Greenwold, which were sent to the Wisconsin State Crime Laboratory for analysis.

perform an extensive investigation until nine days after the accident. At that time, the officers noticed blood spots on various places in the interior of the vehicle, but they did not collect any evidence from the vehicle. There were other omissions in the investigation, including the officers' failing to take a photograph reflecting the entire accident scene.

The crime lab found that the samples did indicate human blood was present but, because the results were inconsistent, the particular blood type was unknown. The forensic scientist at the crime lab testified that age alone would not produce the inconsistent test results, but would produce negative results. She suggested that the fabric or temperatures could also be a cause of the inconsistent results. She did not reach a definite explanation for the inconclusive results.

Ultimately, Greenwold was charged with homicide by intoxicated use of a motor vehicle and homicide by operation of a motor vehicle with a blood alcohol concentration of .1% or above, in violation of § 940.09(1), STATS. The complaint alleged that Murray's father spoke to Greenwold after the accident at which time Greenwold admitted to being the driver of the vehicle. Before the jury trial commenced, Greenwold moved to dismiss the charges on the ground that the State failed to preserve relevant and exculpatory evidence and that this constituted a violation of his constitutional right to due process.

In support of his motion, Greenwold cited to the officers' failure to preserve the blood samples for proper analysis and to properly record the accident scene. The trial court based its decision on State v. Hahn, 132 Wis.2d 351, 392 N.W.2d 464 (Ct.App.1986), which was decided before Youngblood. The trial court found that the State violated Greenwold's due process rights and dismissed the charges with prejudice. The State appealed this order, and we held that the trial court failed to make a determination whether the officers acted in bad faith as required under Youngblood. See State v. Greenwold, 181 Wis.2d 881, 886, 512 N.W.2d 237, 239 (Ct.App.1994). Thus, the case was remanded to the trial court for a determination of whether the investigating officers acted in bad faith under the Youngblood due process standard.

At the hearing on remand, the trial court took judicial notice of the prior proceedings and heard the testimony from several witnesses and arguments from counsel. Also on remand, Greenwold stipulated that the officers did not intentionally obstruct or tamper with evidence. 1 Based on a totality of the circumstances test, the trial court found that the officers negligently breached their duty to investigate, constituting bad faith. The State appeals this order of dismissal asserting that Greenwold did not meet his burden of proving the officers acted in bad faith because negligence does not constitute bad faith for the purpose of a due process violation. We agree and reverse the trial court's order.

DISCUSSION

This issue involves the court's application of a constitutional standard to the conduct of the police officers in preserving evidence. Whether the trial court erred as a matter of law in applying the constitutional standard is a constitutional fact which we review de novo. State v. Tarwid, 147 Wis.2d 95, 105, 433 N.W.2d 255, 259-60 (Ct.App.1988) . "The reviewing court has the duty to apply constitutional principles to the facts as found in order to ensure that the scope of constitutional protections does not vary from case to case." State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987).

In order to rise to the level of a due process violation, evidence not preserved, lost or destroyed by the State "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). In Trombetta, the Court focused its analysis on the defendant's right to fundamental fairness by giving the defendant a chance to present a complete defense. Id. at 485, 104 S.Ct. at 2532. Unclear from the Trombetta holding was the role of a good faith analysis in the due process examination.

Youngblood addresses the good faith analysis and the materiality of the evidence, departing from the Trombetta holding. In Youngblood, the Court distinguished "potentially useful evidence" from "exculpatory evidence." Id., 488 U.S. at 57-58, 109 S.Ct. at 337-38. It 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." Id. at 58, 109 S.Ct. at 337. The Court reasoned that the State's bad faith is irrelevant when it fails to disclose exculpatory evidence. Id.

Thus, the due process analysis is two-pronged. A defendant's due process rights are violated if the police: (1) failed to preserve the evidence that is apparently exculpatory; or (2) acted in bad faith by failing to preserve evidence which is potentially exculpatory. Id. at 57-58, 109 S.Ct. at 337-38; see also Greenwold, 181 Wis.2d at 885-86, 512 N.W.2d at 239. Arriving at this standard, the Court balanced the defendant's interests in having access to significant evidence weighed against the unreasonableness of requiring the police to retain and preserve all evidence that might have significance. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337.

Under prong two, the bad faith analysis, the investigator's knowledge of the potentially useful or potentially exculpatory nature of the evidence is also relevant. See id. at 56 n. *, 109 S.Ct. at 336 n. *. However, if the State fails to disclose or preserve materially exculpatory evidence, the defendant's due process rights are violated under the first prong of the test. Id. at 57, 109 S.Ct. at 337. Although this logic may seem circular, the Youngblood analysis suggests that if the materiality of the evidence rises above being potentially useful to clearly exculpatory, a bad faith analysis need not be evoked; the defendant's due process rights are violated because of the apparently exculpatory nature of...

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