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Breaking Legal Developments

02-16-2004

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Indiana Court Finds Failure To Preserve Arson Evidence Not Fatal


(1) INDIANA COURT FINDS FAILURE TO PRESERVE ARSON EVIDENCE NOT FATAL

In Donald Land vs. State Of Indiana, No. 82a04-0304-Cr-176, Court Of Appeals Of Indiana, Fourth District (January 21, 2004), Donald Land appealed his convictions for arson as a class B felony n1 and arson as a class D felony.

In November 2001, Land and his wife, Mayme Eaton, were in the process of divorcing. Eaton began having an affair with Land's neighbor and friend, Chris Griffith. Eaton had moved some of her possessions into Griffith's house, and Land learned of the affair. On November 18, 2001, Land told Griffith that he "was a piece of garbage and [he] was lucky that [Land] didn't beat [his] head in with a baseball bat." Land also told his neighbors, Don and Janeta McNeele, that Griffith was "messing with [his] wife" and that Land would "just do something to his house. [He would] burn his house down."

The next day, Chad Owens, who was living with Land, heard Land and Eaton arguing. When Eaton left the house, Land followed her outside. Eaton and Land continued to argue outside, and Eaton went to Griffith's house. A few minutes later, as Eaton and Griffith were walking to Griffith's truck, Eaton and Land began arguing again. Eaton and Griffith then left to visit a friend who lived a couple of blocks away.

When Land returned to his house, he asked Owens to talk with him on the porch. As they talked on the porch, Owens noticed a "flickering" in the window of Griffith's house. Land and Owens walked to Griffith's house, and Land looked in the window. Land said that the couch was on fire and told Owens to call 9-1-1. Land and Owens went into the house to see if anyone was in the house and attempted to extinguish the fire. They also tried to pull the couch out of the house. When the fire department arrived, Land went to tell Eaton and Griffith about the fire. When Land arrived where Eaton and Griffith were visiting their friend, he kept telling Griffith "that he didn't do it."

While the fire was being extinguished, Land asked Owens "to leave out the part about him going outside," but Owens refused. A Fire Investigator Jesse arrived on the scene with his accelerant-detecting canine. The canine is trained to recognize petroleum-based accelerants. The canine "alerted on" Griffith's shoes. He requested that Griffith let him perform additional testing on his shoes, and Griffith consented. He tested the shoes with an electronic hydrocarbon detector, and the test results were negative. He then collected Griffith's shoes in a sealed container. However, he determined that the soles of Griffith's shoes were manufactured "using a type of solvent that was a flammable and detectable by the canine but not sufficient to be detected by the electronic detector." He then returned the shoes to Griffith.

The canine also gave a "slight alert" on the exposed foam rubber of the couch. However, the couch's foam rubber is "a petroleum based product and when burnt, gives off some of the same type of byproducts as found in some common accelerants." The investigator determined that the origin of the fire was in the center cushion of the sectional couch. He found no evidence that Griffith had removed any possessions from the residence before the fire. He found no evidence that the fire was accidental. Rather, he concluded that the fire was intentionally set. However, he found no evidence that an accelerant was used to start the fire.

The State charged Land with arson as a class B felony and later added a charge of arson as a class D felony. Land filed a motion to dismiss alleging that the State failed to preserve exculpatory evidence, specifically, alleged accelerants on Griffith's shoes. However, the trial court denied the motion.

One issue was whether Land's due process rights were violated when the State failed to preserve evidence of alleged accelerant on Griffith's shoes. Land argues that the evidence of accelerant on Griffith's shoes was materially exculpatory and that the trial court erred by denying his motion to dismiss. In the alternative, Land argues that the evidence of accelerant on Griffith's shoes was potentially useful and was destroyed in bad faith.

To determine whether a defendant's due process rights have been violated by the State's failure to preserve evidence, you must first decide whether the evidence in question was "potentially useful evidence" or "materially exculpatory evidence." Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999). Potentially useful evidence is defined as "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." The State's failure to preserve potentially useful evidence does not constitute a denial of due process of law "unless a criminal defendant can show bad faith on the part of the police." "Bad faith is defined as being 'not simply bad judgment or negligence, but rather implies the conscious doing of wrong because of dishonest purpose or moral obliquity.'" Wade v. State, 718 N.E.2d 1162, 1166 (Ind. Ct. App. 1999).

On the other hand, materially exculpatory evidence is that evidence which "possesses an exculpatory value that was apparent before the evidence was destroyed" and must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Chissell, 705 N.E.2d at 504. "Exculpatory is defined as 'clearing or tending to clear from alleged fault or guilt; excusing.'" Wade, 718 N.E.2d at 1166. The scope of the State's duty to preserve exculpatory evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." Noojin v. State, 730 N.E.2d 672, 675 (Ind. 2000). Unlike potentially useful evidence, the State's good or bad faith in failing to preserve materially exculpatory evidence is irrelevant. Chissell, 705 N.E.2d at 504.

Land argued that the alleged evidence of accelerant on Griffith's shoes was materially exculpatory. Specifically, Land argues that his defense was predicated upon a theory that Griffith set the fire for financial gain. Land relies upon Roberson v. State, 766 N.E.2d 1185 (Ind. Ct. App. 2002). In Roberson, the defendant was an inmate in a county jail. He was found in possession of "two wooden sticks wrapped on the one end and sharpened to a point on the other end," and the State charged him with possession of a dangerous device or material by a prisoner. Prior to trial, the State discarded the device. However, a poor quality picture of the device existed. Id. The defendant filed a motion to dismiss, which the trial court denied.

On interlocutory appeal, the appellate court reversed, holding that the evidence was materially exculpatory. Specifically, the court held that the evidence of "the character of the device is the sole basis of the defendant's defense." The defendant could not "secure comparable evidence by other reasonably available means." As for whether the device had an exculpatory value that was apparent before its destruction, the State pointed to the testimony of three government officials who each opined that the device was fashioned to be a weapon and was capable of causing bodily injury. The court held that:

Under the specific circumstances of this case, however, these are clearly subjective opinions. It is a troubling prospect when the primary evidence is lost or destroyed while in the care of the State, and the State is then permitted to argue that the evidence had no exculpatory value because government officials "knew" that the device was indeed a weapon.

As noted previously, the device was allegedly fabricated from items that Roberson was allowed to possess in his cell--items that have legitimate uses and that are generally not construed as weapons. It is certainly conceivable that had Roberson and the trier of fact been able to examine the device, a different conclusion regarding its intend (sic) use and ability to cause bodily injury might have been reached. Therefore, we conclude that there is some indication that the evidence possessed an exculpatory value that, however tenuous, was evident to the State prior to its destruction. Without such evidence, Roberson is faced with the monumental task of presenting a defense in which he is obliged to accept the subjective opinions of three government officials. Under the specific circumstances of this case, we hold that it would be fundamentally unfair and a violation of due process to allow the State to proceed in this manner.

Land argued that, as in Roberson, the shoes were materially exculpatory because the evidence was crucial to his defense. Land argued that his "entire defense was premised on the theory that Griffith started the fire for financial gain." Further, Land argued that the fact that additional tests were needed to confirm the presence of an accelerant does not transform Griffith's shoes into potentially useful evidence instead of materially exculpatory evidence.

The State argued that Roberson is distinguishable because, unlike the device in Roberson, Griffith's shoes were not critical to either the State or the defense. According to the State, Griffith's shoes were neither material nor exculpatory. The State contended that "whether the soles of Griffith's shoes had some kind of accelerant on them would not have made a difference in the outcome of the trial because the evidence showed that the fire was not ignited by use of an accelerant." Moreover, the State argued that Land's defense was based primarily upon a claim that he was not alone long enough to start the fire and that he attempted to put the fire out when it was discovered.

The Appellate Court agreed with the State and conclude that the shoes were not materially exculpatory. Unlike Roberson, here, the evidence was not the sole basis of Land's defense. Moreover, because Storey determined that the fire was not set with the use of accelerants, even if accelerant was on Griffith's shoes, the shoes were not exculpatory. The shoes more closely fit the definition of potentially useful evidence, which is "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Chissell, 705 N.E.2d at 504. The shoes could have been subjected to additional tests, the results of which might have assisted Land in his defense. Thus, the shoes are, at most, potentially useful evidence not materially exculpatory evidence.

As noted above, the State's failure to preserve potentially useful evidence did not constitute a denial of due process of law "unless a criminal defendant can show bad faith on the part of police." The State argued that Land failed to demonstrate bad faith on the part of the State. The court agreed. As noted above, bad faith is defined as "not simply bad judgment or negligence, but rather implies the conscious doing of wrong because of dishonest purpose or moral obliquity." Wade, 718 N.E.2d at 1166. Land argued that Storey deliberately destroyed the evidence because of "moral obliquity." The court found no evidence in the record to support this assertion. Rather, the evidence demonstrates that Storey returned the shoes to Griffith after concluding that the canine's alert was caused by accelerant used in the manufacturing process of the shoes. Land's due process rights were not violated, and the trial court did not err by denying Land's motion to dismiss. See, e.g., Chissell, 705 N.E.2d at 504 (holding that the defendant was not denied due process where the evidence was not materially exculpatory and the defendant failed to demonstrate bad faith on the part of the police).

For the foregoing reasons, the appellate court affirmed Land's convictions for arson as a class B felony, arson as a class D felony, and his status as an habitual offender.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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