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Exculpatory Evidence Preservation; Right to Inform Jury of Evidence Destruction

State v. Joshua Lashawn Munford, 2010 WI App 168 (recommended for publication); for Munford: Joseph L. Sommers; Munford BiC; State Resp.; Reply

Munford’s claim that police destruction of his van violated due process is rejected, because the van didn’t have apparent exculpatory value. His defense against the homicide charge was that someone else fired shots that went through the van and struck the victim who was on the street. His claim is that preservation of the van was necessary to support the defense. But the trial court found that prior to its destruction, the van’s examination by the police revealed nothing to suggest a bullet had struck or been fired through it.

¶20      “[T]he due process clause of the Fourteenth Amendment to the United States Constitution imposes a duty on the State to preserve exculpatory evidence.”  State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I).  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 evidence which is potentially exculpatory.”  State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II).  Admitting the “difficulty of determining bad faith,” Munford only argues that the State failed to preserve apparently exculpatory evidence.  When reviewing a claim that evidence was lost or destroyed in violation of due process, we independently apply the constitutional standard to the facts as found by the trial court.  Id. at 66-67.

¶25      In short, Munford has not demonstrated that the van’s purported exculpatory value should have been apparent at the time the van was destroyed.  Following a thorough examination, Detective Gastrow did not locate a bullet or bullet strike in the interior of the van and he reasonably concluded that the hole in the passenger’s side window was not created by a bullet.  At best, the van was merely potentially exculpatory, and Munford does not argue that the State destroyed the van in bad faith.  See Greenwold II, 189 Wis. 2d at 67 (requiring a defendant demonstrate bad faith when “potentially exculpatory” evidence is destroyed).  The State did not violate Munford’s due process rights when it destroyed the van.

Munford’s constitutional right to present a defense wasn’t violated by trial court refusal to allow him to inform the jury who destroyed the van or why it was destroyed.

¶30      The trial court took note that the jury could be informed that the State had custody of the van and that the van was destroyed in April 2007, ostensibly before the defense hired Martin.  The jury could reasonably infer from that information that the State destroyed the van.  Further, the trial court only prohibited Munford from revealing who destroyed the van and why the van was destroyed, thereby keeping its ruling very narrow.  The trial court determined that alternative means were available to attack Detective Gastrow’s credibility, noting that if Munford wished to demonstrate that Detective Gastrow’s examination of the van was incomplete, he was free to question him on cross examination about his thoroughness in examining the van and was free to question Martin about what additional examination he thought Detective Gastrow should have conducted.  Such considerations are proper under WIS. STAT. § 904.03 (2007-08)[1] (stating that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence”).

The court goes on to say that any error was harmless, given that the probative value of the circumstances surrounding destruction was minimal at best and the evidence of guilt overwhelming, ¶32. But this conclusion only begs the question of why the court reached the merits of the issue, let alone why the case is recommended for publication.

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