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COA holds discovery violation harmless, rejects spoliation claim

State v. Jacky Lee, 2020AP1633, 7/27/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The state arrested Lee for second-offense OWI and PAC violations. The intoximeter breath test he took at the police department was video-recorded. However, due to the state’s delay in charging Lee, he did not request the video until it had already been recorded over, consistent with the department’s practice of keeping such videos for 3-6 months unless there’s been a request to preserve them.

Lee asked the trial court to instruct the jury that the destruction of the video could support various inferences helpful to his case, but the court declined. On appeal, the court of appeals holds that Lee has not made the case that he was entitled to relief for spoliation of evidence:

A defendant’s due process rights may be violated 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. State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994). Bad faith is shown where: “(1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence.” Id. at 69.

Lee argues that the intoximeter video had “potentially exculpatory” value. However, even if the video had potentially exculpatory value, as the circuit court found, Lee failed to show that the video was destroyed in bad faith. Rather, based on Lee’s representations to the circuit court, the video was destroyed due to routine procedure. “Intentional destruction, without more, does not establish bad faith.” State v. Luedtke, 2015 WI 42, ¶¶56, 62, 362 Wis. 2d 1, 863 N.W.2d 592. Thus, the circuit court properly denied Lee’s request for a special instruction.


Lee also asked the court to exclude records showing the maintenance performed on the intoximeter machine, telling the court he had asked the state for them three times and that they were turned over on the day of trial. The court admitted the records. The court of appeals holds that if this admission was error, it was harmless.

The harmless error discussion is cursory, and it applies the wrong standard. As the Supreme Court has noted over and over, Kotteakos v. United States, 328 U.S. 750 (1946), Satterwhite v. Texas, 486 U.S. 249 (1988), Sullivan v. Louisiana, 508 U.S. 275 (1993), and Fahy v. Connecticut, 375 U.S. 85 (1963), the harmless error test is not a test for sufficiency of the evidence. The question is not whether there was enough evidence that a jury could convict the defendant absent the error, but whether the case was so strong and/or the error so insignificant that any reasonable jury would convict. But the court of appeals here says an officer’s testimony about the function of the machine supplied “sufficient other evidence … from which the jury could have concluded that the intoximeter machine was in proper working order.” (¶21).

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