ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE:
DAVID W. STONE, IV
Anderson, Indiana Attorney General of Indiana
CECLIA K. HEMPHILL
Deputy Attorney General
HARRY L. ROBERSON, III, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-0108-CR-504 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Transcript at 90-93. On July 5, 2001, Roberson filed a motion
to certify the decision for interlocutory appeal, and the motion was granted the
same day. We granted Robersons petition to certify interlocutory appeal on August
The defendant in a criminal case has the right to examine physical evidence in the hands of the State. Rita v. State, 663 N.E.2d 1201 (Ind. Ct. App. 1996), affd in relevant part, 674 N.E.2d 968 (Ind. 1996). The failure of the State to preserve such evidence may present grounds for reversal based on denial of due process of law. Id. To determine whether a defendants due process rights have been violated, we first decide whether the evidence in question was potentially useful evidence or materially exculpatory evidence. Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999) (quoting Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997), trans. denied), trans. denied.
If the evidence was only potentially useful, the defendant must establish bad faith on the part of the State. Albrecht v. State, 737 N.E.2d 719 (Ind. 2000) (citing Arizona v. Youngblood, 488 U.S. 51(1988)). The United States Supreme Court has described potentially useful evidence as evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. Arizona v. Youngblood, 488 U.S. at 57.
The States duty to preserve exculpatory evidence is:
limited to evidence that might be expected to play a significant role in the suspects defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Albrecht v. State, 737 N.E.2d at 724 (quoting Holder v. State, 571 N.E.2d
1250, 1255 (Ind. 1991)); see also California v. Trombetta, 467 U.S. 479 (1984).
Unlike potentially useful evidence, the States good or bad faith in failing
to preserve materially exculpatory evidence is immaterial. Chissell v. State, 705 N.E.2d
As the trial court has noted, the instant case is complex. In order to obtain a conviction, the State must establish, among other things, that the device was intended to be used in a manner readily capable of causing bodily injury. See I.C. § 35-44-3-9.5. Because there were legitimate reasons for possessing such a stick, establishing the sticks condition (i.e., how it had been modified) is critical to the States case. See footnote The testimony regarding the device is absolutely crucial and determinative, as there is no independent evidence except for one blurry photograph. We further observe that the character of the device is the sole basis of Robersons defense.
In light of the critical importance of this evidence to both the prosecution and the defense, we cannot agree with the State that the device would have simply been potentially useful evidence and, therefore, that Roberson must establish bad faith. Cf. Arizona v. Youngblood, 488 U.S. 51 (defendant convicted with independent evidence, as State did not attempt to use the lost evidence in its own case in chief). See footnote Clearly, this evidence, at the very least, might have been expected to play a significant role in the suspects defense. See Holder v. State, 571 N.E.2d at 1255. This is evident from application of the test for materially exculpatory evidence.
The second portion of that test is easily met, as Roberson cannot secure comparable evidence by other reasonably available means. This evidence was unique and cannot be precisely replicated or replaced. The evidence was not, and in reality could not have been, subjected to objective testing prior to its loss. See footnote Furthermore, we cannot say that the photograph sufficiently depicts the character and dangerousness of the device.
Less evident is whether the first portion of the test can be satisfied. The glaring question is whether the device had an exculpatory value that was apparent before its destruction. In this regard, the State points to the testimony of three government officials who each opined that the device was fashioned to be a weapon and was capable of causing bodily injury. Under the specific circumstances of this case, however, these are clearly subjective opinions. It is a troubling prospect when the primary evidence is lost or destroyed while in the care of the State, and the State is then permitted to argue that the evidence had no exculpatory value because government officials knew that the device was indeed a weapon. See United States v. Belcher, 762 F. Supp. 666 (W.D. Va. 1991) (dismissing charges where officers destroyed alleged marijuana plants before they had been laboratory tested). See footnote
As noted previously, the device was allegedly fabricated from items that Roberson was allowed to possess in his cell items that have legitimate uses and that are generally not construed as weapons. It is certainly conceivable that had Roberson and the trier of fact been able to examine the device, a different conclusion regarding its intend use and ability to cause bodily injury might have been reached. Therefore, we conclude that there is some indication that the evidence possessed an exculpatory value that, however tenuous, was evident to the State prior to its destruction.See footnote Without such evidence, Roberson is faced with the monumental task of presenting a defense in which he is obliged to accept the subjective opinions of three government officials. Under the specific circumstances of this case, we hold that it would be fundamentally unfair and a violation of due process to allow the State to proceed in this manner.
VAIDIK, J., concurs.
BARNES, J., dissents with separate opinion.
, dissenting with separate opinion
I respectfully dissent. The majority here categorizes the evidence the State misplaced
or destroyed as materially exculpatory, and reverses the trial courts denial of Robersons
motion to dismiss based on its reading of Arizona v. Youngblood. I
do not agree that the evidence was, in fact, materially exculpatory, and posit
that it was, at best, potentially useful to Roberson. As the majority
correctly states, to be materially exculpatory, there must be some indication in the
record that the evidence possessed exculpatory value that was apparent before the evidence
was destroyed. Albrecht, 737 N.E.2d at 724. I see no such
indication in the record. As such, it was incumbent upon Roberson to
show bad faith on the part of the State in its mishandling of
the evidence. Youngblood, 488 U.S. at 57-58. I find no such
Although the slip-shod handling of this evidence was certainly not a perfect example of law enforcement procedure, there is a photograph of the alleged weapon that could be viewed by a fact finder. I would remand this case and allow the State to offer the testimony of the three officers as to the description of the device. I would prohibit them from answering the ultimate question, i.e., was the device dangerous, by invoking Indiana Evidence Rule 403 and concluding the prejudicial impact of such testimony would outweigh its probative value under the circumstances of this case. In that way, a fact finder would decide the question and the State would not gain an advantage from its mishandling of the evidence, a concern the majority correctly points out.
The prosecutor in Youngblood did not attempt to make use of incriminating evidence
denied to the defendant. Both the prosecution and defense were denied the
use of evidence which was unavailable because no tests were conducted on samples
until the passage of time made such testing futile. There was no
suggestion by the prosecutor that the missing evidence would have incriminated the defendant,
and it was pure speculation by the defendant that the evidence, if it
existed, might have exonerated him. In this case, however, the prosecutor conducted
an examination and is attempting to introduce the results of his examination as
evidence against the defendant while denying to the defendant any possible benefit to
be derived from an examination of the primary evidence in the case.
It is one thing to conduct a trial in which neither side has
evidence because the prosecution failed to take affirmative steps to preserve it, and
it is quite another to conduct a trial in which the prosecution has
evidence but the defendant does not because the prosecution lost it. In
the former, Youngblood, situation, due process is not violated unless there was bad
faith by the prosecution; in the latter, Deans, situation, to permit the prosecution
to use the evidence would deprive appellant of due process irrespective of good
faith or bad faith on the part of the prosecution.
Commonweath v. Deans, 530 Pa. 514, 518-19, 610 A.2d 32, 34 (1992).
In Deans, the defendant was charged with the forgery of a lottery ticket.
The state lost the ticket after a state police document examiner analyzed
the ticket but before charges had been filed against the defendant.
The court is certain that law enforcement officials are almost always correct in
determining, by a simple visual inspection, whether a plant is marijuana or not.
But, it is the almost that convinces the court not to allow
this prosecution to go forward. Law enforcement officials are not infallible, and
it is certainly conceivable that laboratory results might occasionally exculpate someone accused of
manufacturing marijuana or some other drug. Given the facts in this case,
the court finds that it would be a violation of due process to
prosecute the Belchers.
Id. at 673.