State v. Langlet

• Decision Date: 19 September 1979
• Docket Number: No. 62256,62256
• Citation: 283 N.W.2d 330
• Parties: STATE of Iowa, Appellee, v. Michael LANGLET, Appellant.
• Court: Iowa Supreme Court

Page 330

283 N.W.2d 330

STATE of Iowa, Appellee, v. Michael LANGLET, Appellant.

No. 62256.

Supreme Court of Iowa.

Sept. 19, 1979.

Patrick H. Payton, of Payton & Hearn, P. C., Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and Selwyn L. Dallyn, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, ALLBEE and LARSON, JJ.

LARSON, Justice.

The State of Iowa has obtained further review of a decision by the Iowa Court of Appeals reversing a judgment of conviction of operating a motor vehicle while under the influence of alcohol (O.M.V.U.I.), in violation of Section 321.281, The Code 1977. The court of appeals had reversed on the basis the trial court erred in failing to instruct the jury that, where certain evidence had been destroyed by the State, it could infer such evidence would not have supported the charge. We vacate the decision by the court of appeals and affirm the judgment of conviction.

The defendant originally raised in his appeal several issues in addition to the one involving the inference, which is the only one decided by the court of appeals. Because we find no error in the trial court's treatment of the inference issue, we must examine the remaining issues to determine whether any error appears which would require reversal. These additional issues are: admission of the results of the chemical blood test over defendant's foundation challenges; instructing the jury on its duty to determine the defendant's "guilt or innocence" rather than his "guilt or nonguilt"; giving Iowa Uniform Jury Instruction No. 5.5 regarding defendant's manner of operating the vehicle to infer intoxication; and giving Iowa Uniform Jury Instruction No. 105 on credibility.

I. Destruction of tapes. Defendant was arrested on February 16, 1978. Following his arrest, he was taken to the Newton Law Center. While in custody, he placed a telephone call to his attorney and received one from his wife. Both calls were made over the Newton Police Department's line one which is continuously recorded. A recurrent beep is audible to the users to reflect the fact that a recording is being made. Defendant was informed before the first call that the conversation would be recorded, and he informed the others. He did not request to use an unrecorded line.

On March 14 defendant filed a request for production of documents, including the tape recordings of these telephone calls. On March 16, before the assistant county attorney had made any attempt to procure the tape from the Newton Law Center, it was erased, apparently pursuant to the city's policy of erasing all tapes after thirty days. Defendant did not contend at trial, nor does he here, that the erasure was intentional, nor the result of anything other than normal Newton Police Department procedures. At most, he alleges that if the county attorney had been more diligent, the tapes would have been preserved. At trial, the assistant county attorney professed his lack of knowledge of the erasure policy to excuse his seeming lack of diligence.

Defendant contends the taped conversations were exculpatory because they would have shown that he was extremely coherent and articulate. The State counters that it was only cumulative, because other witnesses testified that defendant's speech was normal, and that the destruction of the tape was therefore not prejudicial. However, the auditory impact of the taped conversations is qualitatively different from the testimony of the other witnesses; we cannot presume a lack of prejudice under such circumstances. We must therefore confront the legal issues raised by defendant arising out of the destruction of this evidence.

When the prosecution suppresses exculpatory evidence, the appropriate remedy is usually a new trial at which the defendant has the use of the evidence. State v. Hillsman, 281 N.W.2d 114, 117 (Iowa 1979); State v. Van Rees, 246 N.W.2d 339, 345 (Iowa 1976). That remedy is, of course, unavailable where the exculpatory evidence has been destroyed.

Defendant argues that the destruction of these tapes so prejudiced his defense that the charges should have been dismissed or, in the alternative, that the results of the chemical blood test should have been suppressed. He cites no authority to support his theory. We have held that dismissal of a criminal prosecution is not an appropriate remedy even if exculpatory evidence has been suppressed. Hillsman, 281 N.W.2d at 117.

Similarly, suppression of a blood test is not an appropriate remedy for destruction of the tapes. The two have no direct connection; to deny the State the use of the blood test results because of the destruction of other evidence would have no support in logic. This seems to be in accord with the general rule. "A spoliator of evidence cannot be deprived of his legal rights by the exclusion of other and totally independent evidence offered by him." 31A C.J.S. Evidence § 152, at 388 (1964).

The intentional destruction of evidence, sometimes discussed as a form of obstruction of justice, ¹ is usually referred to as spoliation. ² When it is established, the fact finder may draw the inference that the evidence destroyed was unfavorable to the party responsible for its spoliation. Prudential Insurance Co. v. Lawnsdail, 235 Iowa 125, 130, 15 N.W.2d 880, 883 (1944); McCormick on Evidence § 273, at 660-61 (2d ed. 1972); 22A C.J.S. Criminal Law § 596, at 377 (1961). Cf. United States v. Remington, 191 F.2d 246, 251 (2d Cir. 1951) (suppression of evidence); State v. Parker, 261 Iowa 88, 100-01, 151 N.W.2d 505, 512-13 (1967) (dictum; failure to call witness). Spoliation involves more than destruction of evidence. Application of the concept requires an intentional act of destruction. Only intentional destruction supports the rationale of the rule that the destruction amounts to an admission by conduct of the weakness of one's case. McCormick Supra, at 660-61; 31A C.J.S. Evidence § 293, at 750-51 (1964).

The spoliation inference is also said to be an attempt by the courts to penalize acts of bad faith, or that it is based upon public policy, even though not fully supportable in logic. 31A C.J.S. Evidence § 152, at 388 (1964).

The spoliation inference is explained by McCormick as follows:

A party's failure to produce evidence when he is free to produce or withhold may . . . be treated as an admission. As might be expected, wrongdoing by the party in connection with his case, amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means. Accordingly, a party's . . . destruction . . . of relevant documents or objects . . . (is an) instance of this type of admission by conduct. Of course, it is not enough to show that a third person did the acts . . . charged as obstructive. They must be fastened to the party himself . . . by showing that he did the act or authorized it by words or other conduct. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain the inference of consciousness of a weak case.

McCormick, Supra, at 660-61.

Courts considering the issue have, accordingly, held that the spoliation inference is not appropriate when the destruction is not intentional. See, e. g., Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975) (records destroyed under routine procedures well in advance of claimant's service of interrogatories seeking information from records); In re Grace Line, Inc., 517 F.2d 404, 409 (2d Cir. 1975) (no showing that disappearance was attributable to opponent); Haynes v. Coca Cola Bottling Co., 39 Ill.App.3d 39, 46, 350 N.E.2d 20, 26 (1976) (soft drink can discarded by cleanup personnel of attorney's office without his authority); Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 81, 211 N.W.2d 810, 821 (1973) (no showing of deliberate destruction; doctrine "reserved for deliberate, intentional actions and not mere negligence even though the result may be the same as regards the person who desires the evidence"). Other authorities are in accord. See 1 Jones on Evidence §§ 3.90, 3.93, at 321, 329 (6th ed. 1972); 1 Wharton's Criminal Evidence § 117, at 197 (13th ed. 1972). The inference and the scope of its application are discussed at 31A C.J.S. Evidence § 152, at 388 (1964):

Spoliation of evidence implies a consciousness of guilt so that the presumptions to be drawn from such conduct are not limited to the particular evidence but may pervade the entire case. Presumptions arising from the spoliation of evidence are not conclusive and may be rebutted by evidence explaining the tampering or by establishing facts contrary to those inferred from the tampering.

See also 29 Am.Jur.2d Evidence § 177, at 221 (1967) (inference not proper if destruction not intentional or if merely destroyed as matter of routine procedure).

As applied to the facts of this case, the destruction of the tape might justify the unfavorable inference if it was intentional; if it was not intentional, the destruction would be irrelevant. This instruction was requested by the defendant:

There has been evidence adduced that the State destroyed two tape recordings of telephone conversations that the Defendant had after he was arrested and while in custody. The State destroyed these recordings two days after Defendant, by and through his attorney, requested their production.

You are instructed that there is a presumption that evidence destroyed by the State would be, if produced, adverse to the State and favorable to the Defendant. This presumption may be rebutted by other competent evidence, but if uncontradicted, the presumption is satisfactory proof of the matter in question.

This requested instruction was refused by the trial court on the basis that there was no evidence of intentional destruction.

The court...