State v. Ware

Decision Date29 August 1994
Docket NumberNo. 21492,21492
Citation881 P.2d 679,118 N.M. 319,1994 NMSC 91
PartiesSTATE of New Mexico, Plaintiff-Petitioner, v. Robert WARE, Defendant-Respondent.
CourtNew Mexico Supreme Court
OPINION

BACA, Justice.

Pursuant to SCRA 1986, 12-502 (Repl.Pamp.1992), the State appeals the Court of Appeals' opinion in State v. Ware, 118 N.M. 326, 881 P.2d 686 (Ct.App.1993), which affirmed a trial court order suppressing certain evidence in the trial of Defendant-Appellee, Robert Ware. We granted certiorari to consider whether the Court of Appeals erred in affirming the trial court order. We reverse the Court of Appeals, and remand this case to the trial court for further proceedings.

I.

On May 29, 1990, police officers responded to a call of domestic violence at Defendant's address. The officers found Betty Ann Martinez ("Martinez"), Defendant's girlfriend, bleeding from a wound on the back of her head. The officers also found the Defendant at the scene, with blood on his body and clothing. During the course of investigating the scene, the officers found a rock that had blood on it. The officers did not attempt to collect the rock itself, or samples from the rock, such as blood, other bodily fluids, cloth, fibers, or hair. Instead, a police detective photographed the rock where it was found. Following further investigation, the officers arrested Defendant at the scene.

A hearing before a grand jury was held on June 7, 1990. At the hearing, Martinez testified that someone other than Defendant chased her into the landlord's yard and pounded on her head with a rock.1 Martinez testified that she could not identify her assailant and had no idea why someone would attack her. On June 8, 1990, the grand jury indicted Defendant on three counts of aggravated battery with a deadly weapon. See NMSA 1978, Sec. 30-3-5(A) & (C) (Repl.Pamp.1984).

On May 15, 1991, Defendant filed a Motion to Dismiss, claiming that the State's negligence in failing to preserve the rock violated his due process rights under the state and federal constitutions. The Defendant sought dismissal of the charges against him or suppression of any photographs or testimony pertaining to the rock. A hearing on the motion was held on May 16, 1991. At the hearing, Defendant argued that State v. Lovato, 94 N.M. 780, 782, 617 P.2d 169, 171 (Ct.App.1980), set forth the relevant test for destruction of evidence. Defendant maintained that the State's failure to preserve the rock resulted in prejudice to the Defendant because the rock could not be tested for hair, blood, or fibers, and because the rock could not be used to impeach prosecution witnesses. Defendant urged dismissal of the charges.

The State argued that Defendant had failed to show prejudice resulting from the failure to collect the rock. The State maintained that the police investigating the crime scene had simply made a judgment call and decided to photograph the rock rather than to take the rock into evidence. The State asserted that witnesses would verify the connection of the rock to the crime charged. Finally, the State contended that it had breached no duty to the Defendant by failing to gather the rock, and requested that Defendant's motion be dismissed.

The trial court granted Defendant's motion and filed an Order of Prohibition on June 19, 1991. The court found that Defendant had been prejudiced by not being able to conduct tests of blood, bodily fluids, cloth, fibers, or hair from the rock, and by being denied the opportunity "to challenge the nexus of the rock to the incident." The court found that the State's failure to preserve physical evidence had violated Defendant's due process rights "as guaranteed by Article II, Section 18 of the New Mexico Constitution [and] by the Fifth Amendment of the United States Constitution." The court prohibited the State from introducing photographs of the rock and ruled that none of the State's witnesses could testify about the rock.

The State appealed the trial court's order to the Court of Appeals. The Court of Appeals affirmed the trial court's decision in an opinion filed on June 29, 1993. The Court of Appeals applied the three-part test articulated in Lovato and State v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1980, 72 L.Ed.2d 447 (1982), and held that "the police had a duty to collect and preserve the weapon alleged to have been used in the commission of the offenses and that Defendant was materially prejudiced by the State's failure to collect and preserve material evidence." Ware, 118 N.M. at 330, 881 P.2d at 690. This Court granted certiorari in this case on September 30, 1993.

II.

On appeal, we address whether the Court of Appeals erred when it affirmed the trial court's order suppressing all evidence and testimony pertaining to the rock that Defendant allegedly used to assault Martinez. Defendant maintains that the State "breached its duty to preserve physical evidence which it had collected" when police photographed the rock, rather than collecting it for evidence. Defendant contends that the Court of Appeals was correct in upholding the trial court's suppression of all evidence regarding the rock under the test set forth by Lovato and Chouinard. This test determines whether deprivation of evidence violates a criminal defendant's right to due process and requires suppression of the evidence if: "[ (1) ] The State either breached some duty or intentionally deprived the defendant of evidence; [ (2) ] [t]he improperly 'suppressed' evidence [was] material; and [ (3) ] [t]he suppression of [the] evidence prejudiced the defendant." Chouinard, 96 N.M. at 661, 634 P.2d at 683; see also Lovato, 94 N.M. at 782, 617 P.2d at 171.

The State argues that in this case, the police did not lose, destroy or fail to preserve physical evidence. The State contends that the police failed to collect evidence at the crime scene and that investigating officers do not have a duty to collect every piece of evidence at the scene. Consequently, the State maintains that the three-part test pronounced in Lovato and Chouinard does not apply in this case. Instead, the State asserts that the applicable standard is a test set forth by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In affirming the trial court, the Court of Appeals concluded that the State has a " 'duty to preserve, where reasonably practical, relevant evidence obtained in the investigation of a crime.' " Ware, 118 N.M. at 329, 881 P.2d at 689 (quoting State v. Stephens, 93 N.M. 368, 369, 600 P.2d 820, 821 (1979)). Applying Lovato and Chouinard, the Court of Appeals held that "the police had a duty to collect and preserve the rock ..., the trial court [did not err] in finding that the rock constituted material evidence ..., [and that] Defendant was materially prejudiced by the State's failure to collect and preserve [the rock]." Ware, 118 N.M. at 330, 881 P.2d at 690.

A.

We hold that the three-part test in Lovato and Chouinard does not apply to determine the admissibility of evidence in cases where the State fails to gather physical evidence during the investigation of a crime scene. As the State points out, our courts have only applied Lovato and Chouinard in cases where evidence collected was lost, destroyed, or inadequately preserved.2 Case law from New Mexico and other jurisdictions demonstrates that a clear distinction exists between suppression of evidence, failure to preserve evidence, and failure to gather evidence in the first instance during a criminal investigation.

We also reject the State's assertion that Youngblood and Trombetta apply to the facts of the case at bar. The State argues that Trombetta requires the collection and preservation of "constitutionally material" evidence.3 467 U.S. at 488-89, 104 S.Ct. at 2534. The State asserts that if police fail to collect evidence that is only potentially exculpatory, Youngblood requires the defense to show that the State acted in bad faith before the evidence is suppressed. 488 U.S. at 57-58, 109 S.Ct. at 337-38.

We reject the argument that Trombetta and Youngblood are applicable for the same reason we reject application of the test in Lovato and Chouinard. Both Trombetta and Youngblood are cases where evidence was seized by the State and subsequently destroyed, rather than cases where the State never gathered the evidence in the first place. See Trombetta, 467 U.S. at 482, 104 S.Ct. at 2530-31 (the arresting officers failed to preserve breath samples from drivers accused of driving while intoxicated); Youngblood, 488 U.S. at 53-54, 109 S.Ct. at 334-35 (the State failed to properly preserve samples and evidence of sexual assault). Consequently, the test outlined in Trombetta and Youngblood is not relevant to the instant appeal.

B.

The law recognizes three general circumstances that give rise to a claim that the State violated a criminal defendant's right to due process by failing to "provide evidence to the defense which is within, or potentially within, [the State's] purview." State v. Steffes, 500 N.W.2d 608, 612 (N.D.1993). The first circumstance arises when the State violates the defendant's due process rights by collecting and preserving evidence from the crime scene only to withhold the evidence "when the defendant requests it, or when it otherwise becomes material to the defense." Id. (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), which held that "suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to...

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