State of Utah v. Miles

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State of Utah,
Plaintiff and Appellee,

v.

Howard Lloyd Miles,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981669-CA

F I L E D
October 15, 1999
    1999 UT App 296 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Linda M. Jones, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

DAVIS, Judge:

Defendant argues that Officer Collins destroyed the blood samples in bad faith and that the destruction amounted to a denial of defendant's due process rights. To succeed on a due process claim, a defendant must first show that the destroyed evidence was "potentially useful," and then show that the evidence was destroyed in bad faith. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 337 (1988). Here, defendant argues that the blood samples "would have exonerated him of the charged offenses." Youngblood's definition of "potentially useful" requires only that the destroyed evidentiary material be such "that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. at 57, 109 S. Ct. at 337. For the purpose of our analysis, we assume the blood samples in this case meet this test.

Defendant must also show that Officer Collins destroyed the blood samples in bad faith. "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Id. at 56 n.*, 109 S. Ct. at 336 n.*. Defendant identifies four instances he claims supports his assertion that Officer Collins destroyed the blood samples in bad faith.

First, on the second day of trial, it became apparent that defense counsel was not given a copy of Officer Bell's report during the discovery process. Defendant contends that this omission and Officer Collins's testimony that no blood samples were taken evidences bad faith on the part of Officer Collins. However, nobody disputes that the focus here is on Officer Collins's conduct, not the prosecutor's. We fail to see how any error by the prosecution for failing to give defense counsel Officer Bell's report has any bearing on whether Officer Collins acted in bad faith by failing to preserve the blood samples. Defendant has not provided us with any evidence suggesting that Officer Collins was involved in providing discovery to defense counsel and therefore had the opportunity to conceal Officer Bell's report.(1) We accordingly reject this argument.

Second, defendant argues that bad faith can be shown by Officer Collins's testimony at trial, which, defendant maintains, misrepresented facts about the blood samples. However, Officer Collins's testimony accurately reflects Officer Bell's attempt to collect a testable blood sample. Officer Bell told Officer Collins that he was unsure of whether the samples provided enough blood to test, but that the state crime lab would be able to affirmatively answer that question. Thus, Officer Collins's testimony is not misleading, but conforms with his and Officer Bell's belief that it was unlikely that the collected sample was sufficient for analysis. At the very most, Officer Collins made a unilateral decision not to have the blood samples analyzed which, according to Officer Bell's testimony(2) he was entitled to do as the investigating officer. Cf. id. at 59, 109 S. Ct. at 338 (stating that "the police do not have a constitutional duty to perform any particular tests"). Officer Collins's testimony was not contrary or misleading as to what transpired at the scene, but merely showed that he did not believe that a testable "blood sample" had been taken. This, by itself, does not indicate bad faith on the part of Officer Collins. To the contrary, Officer Collins's decision that there was insufficient blood collected on the cloths to label them "blood samples" and his resulting failure to preserve the blood samples for analysis by the state crime lab "can at worst be described as negligent." Id. at 58, 109 S. Ct. at 337.

Third, defendant argues that Officer Collins failed to preserve the blood samples in violation of normal police practices. Defendant also asserts that Officer Bell's testimony that only the state crime lab could decide whether the blood on the absorbent cloths could be analyzed supports his contention that Officer Collins failed to preserve the evidence in violation of standard police practices. We fail to see how this testimony shows any existing police policies or procedures regarding preserving evidence for future analysis. Officer Collins's answer was simply responsive to the question asked, which had nothing to do with police policies and procedure. Furthermore, Officer Bell testified that the decision of whether to send the sample to the state crime lab rested with Officer Collins. Because defendant did not provide any evidence that Officer Collins breached normal police procedures by failing to preserve the samples and the evidence before the court was actually contrary to defendant's contention, his argument necessarily fails.

Fourth, defendant challenges the trial court's determination that "Officer Collins did not have knowledge of the exculpatory value of the blood samples at the time he discarded them." Defendant advances his argument with three suppositions: Defendant maintains that because Officer Collins never divulged the existence of the samples taken by Officer Bell, the existence of the samples is unknown because he was not questioned about them. Defendant also contends that if Officer Collins destroyed the blood samples after discovery was requested by defense counsel, this fact would support a determination of bad faith on the part of Officer Collins. Defendant finally maintains that Officer Collins must have known of the possible exculpatory value of the blood samples based on the fact that the only other evidence was eyewitness testimony.

Notwithstanding defendant's dissatisfaction with the trial court's ruling, the record does not reflect any attempt by defense counsel to call Officer Collins back to the witness stand to discern when and where the samples were destroyed. "[U]nless 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. Thus, because it is defendant's burden to show bad faith on the part of Officer Collins, and because defendant failed to re-call Officer Collins as a witness to determine the fate of the blood samples, we decline to speculate as to his reasons for failing to preserve the samples for analysis. There is just as much or more support for the theory that because there was a solid eyewitness who (1) had eye contact with defendant, (2) spoke with him, (3) watched defendant and followed him as he approached the bagel store, and (4) watched as defendant broke the drive-thru window and crawl into the store, that this coupled with the existence of fresh cuts on defendant's hands gave Officer Collins reason to believe that even if the blood could have been typed, it would have amounted to cumulative, inculpatory evidence of defendant's breaking into the bagel store. Accordingly, we affirm the trial court's ruling that Officer Collins was unaware of the exculpatory value of the blood samples.

In sum, defendant is unable to point to any evidence that Officer Collins acted in bad faith by failing to preserve the blood samples for analysis. Accordingly, defendant's due process rights under the federal constitution have not been violated.(3)

Therefore, the trial court did not abuse its discretion by ruling that "[t]he destruction of the blood samples did not violate defendant['s] right to Due Process."

Defendant's convictions are affirmed.
 
 

______________________________
James Z. Davis, Judge

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I CONCUR:
 
 

______________________________
Norman H. Jackson, Judge

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I CONCUR IN THE RESULT:
 
 

______________________________
Gregory K. Orme, Judge

1. Defendant cites several cases in support of his argument that any prosecutorial error should be imputed to a police officer because the "prosecutor is charged with knowing [the] police officer's efforts" and they are both part of the "prosecution team." Under the facts of this case, defendant's argument is unsound. Defendant has not pointed to any evidence that the prosecutor and Officer Collins conspired to destroy potentially exculpatory evidence. Furthermore, the fact that defense counsel did not receive Officer Bell's report, an established discovery violation, see State v. Thomas, 974 P.2d 269, 275 (Utah 1999), is insufficient to support a determination that any improper collusion between the two was afoot, particularly in light of the fact that the prosecutor actually called Officer Bell to testify regarding his attempt to collect evidence at the burglary scene.

2. Which, we note, was the only testimony before the court on that issue.

3. Defendant does not seek a separate analysis under the Utah Constitution.