State v. Thomas R. McEssey, 2011AP2668-CR, District 4, 9/20/12
court of appeals decision (not recommended for publication); case activity
The police inadvertently destroyed a recording of a phone conversation between McEssey and the alleged victim. (A separate, but partial recording – containing only the latter’s side of the conversation – was made, misplaced, and belatedly disclosed to the defense.) Finding that the destruction of the recording of the full conversation was unintentional, the trial court nonetheless dismissed the case based on its lack of confidence that McEssey could receive a fair trial. The court of appeals reverses.
The court summarizes the operative principles, as follows:
¶22 The current state of this law, as applied to this case, is that McEssey’s due process rights were violated only if one of the following is true: (1) the audio recording was “apparently exculpatory” evidence; or (2) the audio recording was merely “potentially exculpatory” evidence, but the police acted “in bad faith” in failing to preserve it. See Greenwold II, 189 Wis. 2d at 67-68 (citing Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); State v. Greenwold, 181 Wis. 2d 881, 885-86, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I)). It is McEssey’s burden to prove that this evidence was apparently and not merely potentially exculpatory, State v. Munford, 2010 WI App 168, ¶21, 330 Wis. 2d 575, 794 N.W.2d 264, or that it was potentially exculpatory and not preserved through bad faith conduct, see Greenwold II, 189 Wis. 2d at 69-70.
Applying the test to the facts, the court concludes in the first instance that the destroyed evidence wasn’t apparently exculpatory (i.e., “of such a nature that the defendant cannot obtain comparable evidence by other reasonable means”), ¶26. To the contrary, the trial court itself had determined that the evidence was merely “potentially” exculpatory, ¶27. (McEssey’s statements, the trial court found, were at best “equivocal”; at worst, he “confessed” during the conversation.) Turning, then, to the question of bad faith, the court of appeals essentially deems that issue determined by the trial court’s finding that the recording’s destruction was a function of negligence, ¶¶32-37. In brief, the loss of evidence doesn’t satisfy the test for violation of due process from failure to preserve evidence, and the order of dismissal therefore is reversed.