State v. Jerry L. Parker, 2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose
Issue: Whether posttrial destruction of potentially exculpatory evidence (taped drug transaction) requires new trial.
¶14. A defendant’s due process rights are violated by the destruction of evidence (1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. State v. Noble, 2001 WI App 145, ¶17, 246 Wis. 2d 533, 629 N.W.2d 317, review granted, 2001 WI 117, 247 Wis. 2d 1031, 635 N.W.2d 781 (Wis. Sept. 24, 2001) (No. 99-3271-CR).¶15. Neither condition is present here. The tape can hardly be said to be “apparently exculpatory.” Both Parker and his trial defense counsel reviewed the tape and declined to introduce it as evidence. The inescapable conclusion is that the tape was not “apparently exculpatory.” A defendant may not sit back while evidence is available and then argue for a new trial on the grounds that evidence is no longer available to him or her. SeeState v. Holt, 128 Wis. 2d 110, 134, 382 N.W.2d 679 (Ct. App. 1985).
Additionally: trial counsel testified that the tape contents were consistent with trial testimony; the tape contents could be effectively reconstructed; and the tape’s destruction wasn’t the result of governmental bad faith. ¶¶16-18.
Similar effect, Ferguson v. Roper, 400 F.3d 635 (8th Cir 2005), in sense of its holding that Arizona v. Youngblood, 488 U.S. 51 (1988) applies to pre-trial not post-trial destruction of evidence.