The State v. Miller

• Decision Date: 20 September 2010
• Docket Number: No. S09G1828.,S09G1828.
• Citation: 287 Ga. 748,699 S.E.2d 316
• Parties: The STATEv.MILLER.
• Court: Georgia Supreme Court

287 Ga. 748

699 S.E.2d 316

The STATEv.MILLER.

No. S09G1828.

Supreme Court of Georgia.

Sept. 20, 2010.

Daniel J. Porter, Dist. Atty., William C. Akins, Asst. Dist. Atty., for appellant.

Clark & Towne, Jack E. Harrell, Jr., Lawrenceville, Sharon L. Hopkins, Duluth, for appellee.

HINES, Justice.

We granted certiorari to the Court of Appeals in State v. Miller, 298 Ga.App. 584, 680 S.E.2d 627 (2009), to consider the proper standard for analyzing whether the destruction of potentially exculpatory evidence rises to a violation of due process and whether that standard was met in this case. For the reasons that follow, we conclude that the appropriate standard, which has been set forth in precedent from this Court, was not applied by the Court of Appeals, and further, that such standard was not met in Miller's case.

The opinion by the Court of Appeals stated the following. On November 22, 2007, a Gwinnett County police officer stopped a vehicle driven by Miller because of a tag violation. Upon learning that there were outstanding warrants for Miller's arrest on charges that he had committed a simple battery on September 9, 2007, a robbery and battery on October 5, 2007, and another battery and simple battery on September 28, 2007, the officer arrested Miller, and he was incarcerated. The officer seized Miller's cell phone for use as evidence, apparently because a picture of a gun was displayed on the screen saver and the officer thought Miller had been charged with armed robbery. However, the property sheet completed by the officer stated that the cell phone could be released to Miller, and it referenced only the traffic case against Miller and not the other criminal charges. Miller's residential address, as written down by the officer on the property sheet, was incorrect.

The tag violation against Miller was resolved, and the police department sent a notice dated December 19, 2007, informing Miller that it had property in its custody that would be disposed of within 90 days if he did not retrieve it. But, the notice was sent to the incorrect address set forth on the property sheet, rather than to Miller's correct permanent address or to the facility where he remained in custody. The notice was returned to the police department with the notation “insufficient address, unable to forward.”

The preliminary hearing on the outstanding charges was scheduled for December 5, 2007, by which time Miller was represented by appointed counsel. Miller told his attorney that his cell phone contained contact information for two witnesses who could provide Miller with an alibi on October 5, 2007, as well as a third witness who had information about the victim named in the indictment, which information corroborated Miller's defense.

On January 29, 2008, the police department submitted an application, pursuant to OCGA § 17-5-54,¹ for the destruction of multiple items of personal property in the custody of the department in a number of cases. The traffic case against Miller was on the list, and one of the items of personal property was his cell phone. The application and an attached, sworn verification of the chief of police stated that the items of property to be destroyed had been “unclaimed for more than ninety (90) days after their seizure, or following the final conviction in the case of property used as evidence, and such items [were] no longer needed in a criminal investigation or for evidentiary purposes.” The representations were untrue in regard to Miller's cell phone. Nonetheless, in reliance on them, the superior court signed an order on February 4, 2008, authorizing destruction of the property. Miller's cell phone was destroyed.

On February 20, 2008, Miller was indicted for one count of robbery and two counts each of battery and simple battery. At his arraignment on March 19, 2008, defense counsel informed the prosecuting attorney about the cell phone. Unaware of its destruction, defense counsel obtained the prosecutor's consent to release of the cell phone. After learning of its destruction, the defense filed a motion to dismiss the indictment based on the State's destruction of exculpatory evidence.

Following a hearing, the trial court initially determined that the State had not destroyed the cell phone with knowledge of its potentially exculpatory nature, and therefore, that the defense had not sufficiently showed the State's bad faith so as to justify dismissal of the charges, and that the appropriate remedy would be a jury instruction on spoliation of evidence. After determining that such a jury instruction was not appropriate in a criminal case, the trial court entered an order concluding that because the police officer had seized the cell phone without any real justification, the police department could have delivered the cell phone to Miller while he was being held in custody, the police department had destroyed the cell phone in violation of OCGA § 17-5-54 and through representations in the application that were inaccurate, and the police officer who seized the cell phone did not appear and testify at the hearing on Miller's motion to dismiss, acts amounting to conscious wrongdoing by the State had been shown as would justify dismissal of the two charged offenses that allegedly occurred on October 5, 2007. The trial court also found that the cell phone contained Miller's only means of contacting the three alleged exculpatory witnesses; because of the record-keeping practices of the cell phone provider, there were no call logs that could be subpoenaed. After giving the State an opportunity to present additional evidence, the trial court entered an order dismissing two of the five counts of the indictment.

The State then appealed to the Court of Appeals, which affirmed the judgment of the trial court. State v. Miller, supra. It concluded that the case was controlled by the decisions of 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), which both address whether a defendant's constitutional rights to due process have been violated when the police destroy potentially exculpatory evidence. After examining these cases, the Court of Appeals concluded:

In our opinion Youngblood describes three types of evidence: (1) that which the police knew “would have exculpated” the defendant, (2) that which the police knew “could have exculpated” the defendant, and (3) that of which nothing more can be said other than that it is potentially useful evidence. Youngblood seems to treat the first type of evidence as “material exculpatory evidence” and to make good or bad faith irrelevant when the police destroy or fail to preserve such evidence. As to the second and third types of evidence Youngblood seems to require a showing of bad faith such as the type outlined in Trombetta, i.e., official animus toward the defendant or a conscious effort to suppress exculpatory evidence, before the state's destruction or failure to preserve such evidence rises to the level of a due process violation. And before dismissal of criminal

charges is warranted for destruction or failure to preserve any of the three types of evidence, it would seem that the Trombetta requirement, concerning the inability of the defendant to obtain comparable evidence by other reasonably available means, continues in effect.

It then cited Georgia cases that it said were consistent with its interpretation of Trombetta and Youngblood,² and ultimately concluded that because Miller's cell phone contained information that could have led to Miller's acquisition of evidence that could have exculpated him, the cell phone was properly characterized as type two or three Youngblood evidence, i.e., evidence that the police knew “could have exculpated” Miller or evidence that was “potentially useful”; it further concluded that the trial court's finding that the police had engaged in conscious wrongdoing and thus acted in bad faith in destroying the cell phone was not clearly erroneous, and that the evidence supported the trial court's finding that Miller could not obtain the information stored in the cell phone by other reasonably available means.

This Court has discussed in detail what is required, under Trombetta and Youngblood, in order to find that the State's destruction of evidence potentially exculpatory to a defendant violates the defendant's rights to due process. In Walker v. State, 264 Ga. 676, 449 S.E.2d 845 (1994), this Court considered a scenario much like the present in regard to the appropriate legal analysis. Following the victim's murder, police learned from a witness that she had heard that Walker and another individual had committed the murder and that they were driving around in Walker's car. Subsequently, the police stopped Walker's car and arrested him for theft of the vehicle. After Walker and his companions were removed from the car, police found a bill of sale for the car showing that Walker had purchased it. The police questioned all the occupants of the car about the victim's murder, and, on the basis of information acquired during those interrogations, charged Walker with the murder. A technician called to the crime scene located and photographed a set of automobile tire tracks in the victim's yard; the technician used a ruler so that the tread type and width of the tires could be measured to scale. Investigators processed the interior and exterior of the car, but they found no evidence of blood. Fiber, hair and other tests done on the interior of the car likewise failed to connect any of the suspects with the murder. Contrary to ordinary police practice, no photographs were taken of the car or the tires, nor were impressions made of the tires. At trial, none of the investigating officers could recall anything about the type, size or series of the tires; however, the officer who processed the car...