The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.
Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument, whether or not preserved below, in support of the appealed-from ruling. That’s the State’s typical posture, but not this time.
The State’s failure to preserve messages on cell phones it had seized and whose exculpatory value was apparent violated due process.
¶17 This is a rather unusual case in that, while the physical evidence was solely within the State’s possession, the concomitant electronic evidence was stored elsewhere and could have been accessed by both the State and the defense. Given the facts of this case, however, it was reasonable for Huggett to expect that the State would preserve the voicemail recordings. The sheriff’s department was immediately aware of the apparently exculpatory value of the evidence and confiscated the cell phones as part of its investigation. It knew, or should have known, that the voice recordings would be automatically deleted by the cell phone provider at some point in time—this is common knowledge. Additionally, the department was in a better position to preserve the evidence given its collective investigatory experience and access to necessary technical equipment.
¶18 By creating an expectation of preservation, the State became responsible for ensuring that it occurred. Huggett was not charged with any crime until nearly four months after the incident—long after the apparently exculpatory evidence had been destroyed. It would be fundamentally unfair for the State to induce reliance and then place the responsibility on Huggett for failing to seek and preserve the evidence prior to ever being charged.
The court reaffirms what it terms “the leading evidence preservation case, State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994),” to the effect that where the evidence “clearly exculpatory, a bad faith analysis need not be evoked; the defendant’s due process rights are violated because of the apparently exculpatory nature of the evidence not preserved,” ¶11. The court also rejects the idea that active destruction is required: “It is irrelevant, however, whether the State affirmatively destroyed evidence or passively allowed it to be destroyed,” ¶20. (In this instamnce the phone company destroyed the messages, but while the phones were in the State’s possession, and that was enough.) Nor would a mere description of the threats suffice: “Simply put, there is no replacement for a live recording of the threats screamed at Huggett shortly before Peach broke down the door to Huggett’s home,” ¶23. (The court thus implicitly distinguishes between text and voicemail messages.) Finally, the trial court remedy of dismissal with prejudice is upheld as a proper exercise of discretion, ¶¶25-28.