State v. Weissinger

• Decision Date: 25 June 2014
• Docket Number: No. 2013AP218–CR.,2013AP218–CR.
• Citation: 2014 WI App 73,851 N.W.2d 780,355 Wis.2d 546
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jessica M. WEISSINGER, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

355 Wis.2d 546

851 N.W.2d 780

2014 WI App 73

STATE of Wisconsin, Plaintiff–Respondent,

v.Jessica M. WEISSINGER, Defendant–Appellant.^†

No. 2013AP218–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 16, 2014.

Opinion Filed June 25, 2014.

On behalf of the defendant-appellant, the cause was submitted on the brief of Gerald P. Boyle of Boyle, Boyle & Boyle, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

NEUBAUER, P.J.

¶ 1 Jessica M. Weissinger appeals from a judgment convicting her of causing great bodily harm by intoxicated use of a motor vehicle while having a detectable amount of a restricted controlled substance in the blood, Wis. Stat. § 940.25(1)(am) (2011–12),¹ and operating a motor vehicle while having a detectable amount of a restricted controlled substance in the blood, Wis. Stat. § 346.63(1)(am), second offense. Weissinger hit and seriously injured a motorcyclist while driving her vehicle. Weissinger consented to a blood test. When she later moved to retest the blood sample, it had been destroyed. The admission of the blood test results did not violate Weissinger's due process rights. We affirm.

FACTS

¶ 2 On July 6, 2009, the vehicle Weissinger was driving struck a motorcycle, severely injuring the operator of the motorcycle. At the scene, the police did not suspect Weissinger of being under the influence of an intoxicant. Weissinger was not arrested. Nevertheless, the police asked Weissinger to consent to give a blood sample, which she did.

¶ 3 An officer took her to the hospital, without arresting her and without handcuffs, and hospital personnel drew Weissinger's blood. The blood sample was sent to the Wisconsin State Laboratory of Hygiene, where it was tested on July 13, 2009. The sample showed no alcohol. The lab report indicated that the “[s]pecimen(s) will be retained no longer than six months unless otherwise requested by agency or subject.” On August 7, 2009, Weissinger's blood was tested again, this time for drugs. The test revealed a detectable amount of tetrahydrocannabinols (THC). A February 24, 2010 test confirmed the presence of THC in Weissinger's blood.² The results of that test were reported on March 7, 2010. The blood sample was discarded near the end of April 2010 because it was outside the six-month retention period. According to Weissinger, the results of the tests were not furnished to her until after August 18, 2010.

¶ 4 On May 24, 2010, Weissinger was charged with causing injury while having a detectable amount of a controlled substance in her blood and operating a motor vehicle while having a detectable amount of a controlled substance in her blood. One year later, Weissinger moved to retest her blood sample and to dismiss the charges because the blood sample had been destroyed and she could not retest. The State moved to preclude Weissinger from questioning the State's witnesses about the destruction of the blood sample. The trial court denied all three motions. Weissinger's case was tried to a jury, and she was found guilty and convicted on both charges.

DISCUSSION

¶ 5 Weissinger argues that the trial court erred in allowing the State to present evidence of the blood test results because Wis. Stat. § 971.23(5) gave her the right to retest the blood sample and because the failure to preserve the blood sample denied her due process.

¶ 6 The State responds that Wis. Stat. § 971.23 does not allow for discovery of the blood sample itself, but rather only the blood test results. Weissinger's due process rights were not violated because she had the opportunity to have an additional test and to challenge the test results on cross-examination. Finally, argues the State, Weissinger has not shown that the blood sample was apparently exculpatory or that the State acted in bad faith in destroying the blood sample.

Standard of Review

¶ 7 We review the trial court's evidentiary decisions for an erroneous exercise of discretion. State v. Munford, 2010 WI App 168, ¶ 27, 330 Wis.2d 575, 794 N.W.2d 264. Whether Weissinger's due process rights were violated is a question of law we review de novo. Id., ¶ 20.

United States Supreme Court Cases Regarding Destruction of Potentially Useful Evidence

¶ 8 The Due Process Clause of the Fourteenth Amendment requires that criminal prosecutions conform to fundamental notions of fairness and that criminal defendants are given “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see alsoU.S. Const. amend. XIV, § 1. Due process requires that the prosecution disclose material exculpatory evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 9 In Trombetta and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the U.S. Supreme Court developed a test to determine whether the government's failure to preserve evidence violated a defendant's due process rights. Trombetta and other respondents challenged convictions for drunk driving after the breath samples showing their blood alcohol content were destroyed before they could independently test the samples. Trombetta, 467 U.S. at 483, 104 S.Ct. 2528. In upholding the convictions, the Supreme Court noted that the police officers had no apparent intent to destroy exculpatory evidence but rather acted in good faith and according to their protocol. Id. at 488, 104 S.Ct. 2528. Further, the breath test evidence was not apparently exculpatory; “the chances [were] extremely low that preserved samples would have been exculpatory.” Id. at 489, 104 S.Ct. 2528. Finally, respondents had “alternative means of demonstrating their innocence,” such as attacking the reliability of the testing. Id. at 490, 104 S.Ct. 2528.

¶ 10 Expanding on this test in Youngblood, the Court noted that while the prosecution must turn over material exculpatory evidence, the Supreme Court has been unwilling to “impos[e] 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.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Youngblood “refined” the Trombetta rule, distinguishing between “potentially useful evidence” and “exculpatory evidence” and requiring a showing of bad faith when the police fail to preserve evidence that is merely potentially useful. State v. Greenwold, 189 Wis.2d 59, 67, 525 N.W.2d 294 (Ct.App.1994) ( Greenwold II ) (quoting Youngblood, 488 U.S. at 57–58, 109 S.Ct. 333); see also State v. Greenwold, 181 Wis.2d 881, 885, 512 N.W.2d 237 (Ct.App.1994) ( Greenwold I ) (adopting Youngblood standard and noting refinement of Trombetta rule). After Youngblood, a defendant's due process rights as to the loss of evidence are violated if the police (1) fail to preserve evidence that is apparently exculpatory or (2) act in bad faith by failing to preserve evidence that is potentially exculpatory. Greenwold II, 189 Wis.2d at 67, 525 N.W.2d 294 (citing Trombetta, 467 U.S. at 489, 104 S.Ct. 2528, and Youngblood, 488 U.S. at 57–58, 109 S.Ct. 333). Thus, “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.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Bad faith can only be shown if “(1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence.” Greenwold II, 189 Wis.2d at 69, 525 N.W.2d 294.

¶ 11 The Youngblood rule applies even when the defense has made a discovery request for potentially useful, outcome-determinative evidence; there is no due process violation from the destruction of such evidence unless the defendant can show the evidence was destroyed in bad faith. Illinois v. Fisher, 540 U.S. 544, 548, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam). Fisher was charged with possession of cocaine and made a discovery request for the bag of powdery substance the police had seized which had tested positive four times for cocaine. Id. at 545, 124 S.Ct. 1200. Fisher fled the state, and when he returned, ten years later, the evidence had been destroyed. Id. Fisher was convicted, but his conviction was overturned on appeal. Id. at 546, 124 S.Ct. 1200. The Illinois appellate court relied on Illinois v. Newberry, 166 Ill.2d 310, 209 Ill.Dec. 748, 652 N.E.2d 288 (1995), distinguishing Youngblood on the grounds that Fisher had requested the evidence and the evidence was Fisher's “only hope for exoneration.” Fisher, 540 U.S. at 546–47, 124 S.Ct. 1200. The Illinois Supreme Court did not take the case. Id. at 547, 124 S.Ct. 1200.

¶ 12 The United States Supreme Court took the case and reversed. Id. at 545, 124 S.Ct. 1200. The Court reiterated the necessity of a finding of bad faith in order to show a due process violation when potentially exculpatory evidence has been destroyed. Id. at 547–48, 124 S.Ct. 1200. “We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of police.” Id. at 548, 124 S.Ct. 1200. “We also disagree that Youngblood does not apply whenever the contested evidence provides a defendant's ‘only hope for exoneration’ and is ‘essential to and determinative of the outcome of the case.’ ” Id. (citation omitted). The applicability of the Youngblood bad-faith requirementdepends on whether the evidence was exculpatory or just potentially useful, not on whether the evidence was central to the state's case. Fisher, 540 U.S. at 549, 124 S.Ct. 1200. The destroyed substance in Fisher's case, having tested...