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Due process – destruction of evidence by the state

State v. Viliunas, 2012AP2284-CR, District 2, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity

State’s destruction of video from police car’s dashboard camera did not violate OWI defendant’s due process rights. The defendant, who was found in the driver’s seat of a ditched car, claimed another person had been driving—although not until his jury trial, which occurred over a year after the incident, and after Viliunas had missed two earlier trial dates. The video was destroyed six months after the incident in compliance with police department policy. (¶¶2, 4-5). Applying State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, the court rejects Viliunas’s claim:

¶6        The State’s destruction of evidence violates a defendant’s due process rights if the police (1) failed to preserve evidence that is apparently exculpatory or (2) acted in bad faith by failing to preserve potentially exculpatory evidence. [Munford, 330 Wis. 2d 757, ¶20]. Since Viliunas does not argue that the police acted in bad faith, he must show that the evidence was apparently exculpatory as opposed to potentially exculpatory. See id  In order to do so, he must demonstrate that “(1) the evidence destroyed ‘possess[ed] an exculpatory value that was apparent to those who had custody of the evidence … before the evidence was destroyed,’ and (2) the evidence is ‘of such a nature that the defendant [is] unable to obtain comparable evidence by other reasonably available means.’” Id., ¶21 (citation omitted) …

¶7        Viliunas argues that the exculpatory value of the evidence was apparent based on his testimony conflicting with Schmitz’s testimony. The problem with Viliunas’ argument is that the conflicting testimony occurred after the video was destroyed by police. As the trial court noted in its decision, while the dash cam video might have shown whether the car was running when the police arrived, it would not have shown whether the keys were in the ignition. And even if the car was not running, finding Viliunas in the driver’s seat of his vehicle in a ditch with the keys in the ignition would be sufficient to circumstantially prove that Viliunas drove the vehicle into the ditch. See State v. Mertes, 2008 WI App 179, ¶16, 315 Wis. 2d 756, 762 N.W.2d 813. In other words, there was nothing apparently exculpatory about the video at the time of its destruction.

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