State of Connecticut v. Ronald A. Leroux, 18 Conn. App. 223

Borden, J. The decisive issue in this appeal involves the scope of the constitutional duty of the state to preserve evidentiary material that, had it been subjected to certain tests, might have exonerated the defendant. The state appeals from the dismissal of the information charging the defendant with manslaughter in the second degree with a motor vehicle, in violation of General Statutes § 53a-56b. The state claims that the trial court erred in dismissing the information. We find error. Certain facts are not in dispute.

On September 24, 1985, a tractor trailer occupied by the defendant and Jeffrey White ran off the westbound lanes of Interstate 84 in Waterbury. The truck rolled onto its right side, skidded along the pavement and came to an abrupt halt. Both the defendant and White were thrown through the windshield, which was driven out of its frame and onto the ground. White subsequently died from his injuries. The initial police investigation of the scene of the accident failed to determine whether White or the defendant had been driving.

State Police Trooper Lee Osborne returned to the scene approximately one month after the accident and recovered the shattered windshield of the truck. In early November, the windshield was sent to the state police forensic laboratory to determine whether there was hair or blood on it. In early February, 1986, before the forensic laboratory had completed its examination of the windshield, the defendant’s attorneys informed the state police by letter that they had retained an accident reconstruction expert and wished to discuss the available evidence.

Later that month, the forensic laboratory returned the windshield to Osborne along with a report that indicated that no blood or hair was found. Osborne concluded that the windshield had no evidentiary value, and destroyed it at the end of March, 1986. On April 8, 1986, the defendant was charged with manslaughter in the second degree with a motor vehicle, in violation of General Statutes § 53a-56b.

Thereafter, the defendant moved to require the state to disclose and produce, inter alia, “all exculpatory information and materials,” and to compel the preservation of, inter alia, “any and all tangible objects which may at any time have been sent to the State Police Forensic laboratory for analysis . . . . ” On the basis of the destruction of the windshield, the defendant moved to dismiss the information.

The trial court found that there were no eyewitnesses to the accident to establish who was the driver, and that the driver’s identity would have to be established by reconstruction of the accident through physical evidence. The court also found, based on the testimony of the defendant’s accident reconstruction expert, that the windshield was essential to determine the trajectories of the bodies as they were thrown from the truck.

It further found that there was no comparable evidence to establish the trajectories, and that it should have been obvious to the police that the windshield was of great importance and should have been preserved. The court concluded that the destruction of the windshield deprived the defendant of evidence critical to his defense, and dismissed the information with prejudice. This appeal, filed with permission of the court, followed.

The state’s principal claim is that the trial court erred in ruling that the destruction of the windshield violated the defendant’s right to present a defense, as guaranteed by the due process clause of the federal constitution. U.S. Const., amend. XIV. We agree. We recently explored the contours of the state’s duty, under the federal constitution, to preserve potentially exculpatory evidence. See State v. Scott, 16 Conn. App. 172, 178-81, 547 A.2d 77 (1988). In Scott, we examined the then most recent pronouncement of the United States Supreme Court; California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L.

Ed. 2d 413 (1984); and concluded that Trombetta delineated two inquiries for discerning whether the state’s destruction of evidence had violated a defendant’s right to present a defense. The first inquiry was whether the police were acting in good faith, and the second inquiry was whether the evidence was material — whether its exculpatory value was apparent before its destruction and whether comparable evidence was reasonably available. State v. Scott, supra, 178. It was not clear from Trombetta, however, precisely what the relationship was between the bad faith standard and the materiality standard.

That relationship has now been clarified by the Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The court in Youngblood articulated several principles. First, although in cases involving prosecutorial suppression of exculpatory evidence; e.g., Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194, 10 L.

Ed. 2d 215 (1963); the good or bad faith of the state is irrelevant, “the Due Process Clause requires a different result when we deal with the failure of the State to preserve 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.” Arizona v. Youngblood, supra, 337.

Second, what we in Scott characterized as a two-part test in Trombetta is in fact a singular test, namely, whether the police acted in bad faith “turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id., 336-37 n.1. Thus, Youngblood collapsed the bad faith and materiality inquiries into one. In doing so, moreover, it reemphasized Trombetta’s focus on whether the exculpatory value of the evidence was apparent before its destruction. Id.

Third, the reasons for a difference in treatment between suppressed and lost or destroyed evidence are (1) to avoid the treacherous task of determining the import of unknown, often disputed materials, (2) the unwillingness to impose on the police an absolute duty to preserve all material that might be of conceivable evidentiary value in a particular prosecution, and (3) a belief that requiring a showing of bad faith “both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id., 337.

The Youngblood court “therefore [held] that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. Application of these principles to this case leads us to conclude that the destruction of the windshield did not violate the defendant’s federal due process rights.

The trial court found that “the windshield was . . . highly material and might well have been exculpatory,” and that “[i]t certainly should have been obvious to the police that the windshield was of great importance and . . . should have been preserved.” More important, the trial court did not find that the evidence of the windshield was exculpatory; the absence of such a finding makes it impossible even to conjecture that Osborne knew at the time he destroyed it that the windshield had any exculpatory value.

Youngblood equates bad faith in this context with the intentional destruction of evidence known to be exculpatory. Thus, despite the dissent’s argument to the contrary, there was no evidence from which the trial court could have found, as a matter of federal law, that the destruction was done in bad faith. The most that can be said of Osborne’s conduct is that it was negligent. Indeed, even the testimony of Edmund R. Sullivan, the defendant’s accident reconstruction expert, discloses that any exculpatory value of the windshield could not have been apparent to the police before it was destroyed.

On the basis of the evidentiary material that was available to him, Sullivan was able to form an opinion regarding the identity of the driver of the vehicle.

The gist of his testimony regarding the windshield was that it would have been the most important piece of physical evidence, that it could have been subjected to forensic tests to disclose the patterns of glass breakage and other damage, that the results of those tests, when taken together with the locations of the defendant’s and White’s bodies, would have aided a trajectory analysis, and that “if the [windshield] had been preserved . . . [his] opinion probably would be better and it would have been easier to arrive at.” It is apparent from this testimony that neither the police nor Sullivan could have apprehended the exculpatory value of the windshield, if any, from the information available when the windshield was destroyed.

The windshield was simply “evidentiary material of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. This does not suffice for a finding of bad faith. In support of the trial court’s decision, the defendant argues that, even if the destruction of the windshield did not constitute a deprivation of his due process rights under the fourteenth amendment, it did constitute such a deprivation under

article first, § 8, of the Connecticut constitution. We disagree. Our Supreme Court has repeatedly held that, as a general rule, “the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.” State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977).

On the sole occasion thus far that the court has ascribed to our due process clause an independent meaning that imposed a duty on law enforcement officials broader than that imposed by the federal constitution, it did so based specifically on “both the historical record and our due process tradition” regarding the right to and importance of counsel in a criminal case. State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988) (police have duty to inform suspect in custody of efforts by counsel to render legal assistance).

The defendant argues that our Supreme Court has made a similar departure from federal case law on the issue of the duty of the police to preserve potentially exculpatory evidence. He points to a series of recent cases on the issue of lost or destroyed evidence that were decided by our Supreme Court, using a balancing test that differs from the test enunciated in the then controlling federal case, California v. Trombetta, supra. See State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988); State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986).

The standard used by our Supreme Court in those cases was derived from pre Trombetta federal case law, and the defendant urges us to employ it under our own due process clause. We need not decide in this case whether, under the due process clause of

article first, § 8, the proper test is the same as that articulated under the federal constitution, or whether it is the balancing test stated in Gonzalez, McIver and Boucino. We conclude that, even under the test urged on us by the defendant, his claim fails. “ ‘ “In considering whether testimony concerning lost or destroyed evidence should be admitted [or the underlying prosecution dismissed], the trial court has to look to numerous factors including [1] the reason for the unavailability of the evidence, [2] the materiality of the evidence, [3] the likelihood of mistaken

interpretation of it by witnesses or the jury, and [4] the prejudice to the defendant caused by the unavailability of the evidence.” State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).’ State v. Boucino, [supra, 229].” State v. Gonzalez, supra; see also State v. McIver, supra. With regard to the first factor, namely, the reason for the unavailability of the evidence, our cases have focused on the motives behind the destruction of the evidence. See, e.g., State v. Gonzalez, supra (although destruction of evidence was negligent, no evidence of deliberate and intentional destruction); State v.

McIver, supra (no bad faith or malice); State v. Boucino, supra (no intentional destruction); State v. Hamele, supra, 382 (no bad faith or malice); see also State v. Williamson, 14 Conn. App. 108, 117, 552 A.2d 815 (bad faith demonstrated by reckless disregard for defendant’s rights), cert. granted, 209 Conn. 801, 548 A.2d 442 (1988); Snyder v. Reshenk, 131 Conn. 252, 257, 38 A.2d 803 (1944) (good faith defined as honesty of purpose, lack of intent to defraud, and honest intent to refrain from taking unconscientious advantage of another).

Although the record demonstrates negligence by Osborne, as the trial court found in effect, there was no evidence to suggest that he destroyed the windshield in order to help the state’s case or to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights. In this connection, we emphasize that when the windshield was destroyed, the case was still in the investigatory stage. The reasoning of Justice Stevens, concurring in Arizona v. Youngblood, supra, 59, is particularly apt.

At the time the police destroyed the windshield, and “thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime. Indeed, at that time it was more likely that the evidence would have been useful to the police — who were still conducting an investigation— and to the prosecutor — who would later bear the burden of establishing guilt beyond a reasonable doubt— than to the defendant.

In cases such as this, even without a prophylactic sanction such as dismissal of the indictment, the State has a strong incentive to preserve the evidence.” At the least, therefore, courts should be very cautious in dismissing a case where no more than police negligence led to the loss or destruction of evidence during the investigatory phase, because as a matter of policy there is slight need for such a severe sanction. The second factor, namely, the materiality of the evidence, bears strongly in favor of the defendant.

Based on the testimony of Sullivan, which the trial court credited, the windshield would have yielded significant and relevant evidence regarding the identity of the driver. With regard to the third factor, the trial court’s pretrial dismissal of the information has deprived us of a full record on which to assess the likelihood of mistaken

interpretation by the jury. That assessment can best be made in the context of all the evidence in the case and the court’s instructions. In this connection, however, we note that the likelihood of such a mistake can be minimized at the trial by permitting testimony on the issue; see State v. Gonzalez, supra, 225; and by an appropriate instruction from the court permitting the jury to draw an adverse inference against the state. See id., 225 n.7; State v. Hamele, supra, 382 n.5.

With regard to the fourth factor, namely, the prejudice to the defendant, we recognize that, on the basis of Sullivan’s testimony, the court found that the windshield was essential to determine the bodies’ trajectories and that there was no comparable evidence to establish those trajectories. We conclude, however, that these findings are clearly erroneous. First, Sullivan’s affidavit is squarely at odds with these findings.

In the affidavit, which was in evidence at the hearing on the motion to dismiss, he stated that he had reviewed all the available police reports and measurements, and the medical and autopsy reports of the defendant and White.

He further stated: “Based on my experience and my reconstruction investigation, I can state with reasonable certainty that Jeffrey White was the driver of the tractor trailer and that Ronald Leroux was a passenger.” This opinion was based on his finding that White’s injuries were consistent with his being the driver, and on his finding that “[t]he location at which Jeffrey White’s body was found is consistent with the trajectory his body would have had after being ejected through the driver’s windshield and being catapulted over the guard rail.” Sullivan’s opinion was based further on the defendant’s medical records, “which clearly indicate that the injuries sustained to his left leg were caused by his being in the passenger seat and then being propelled through the passenger’s window and becoming entangled in the wreck of the motor vehicle and then propelled down the highway.” Thus, Sullivan was able, without the windshield, to arrive at an opinion regarding the trajectories of the bodies based on all the other available physical evidence.

Second, Sullivan’s testimony fails to support the court’s critical factual findings. Although, as he testified, the tests on the windshield would have aided his trajectory analysis and made his task much easier, that is an insufficient basis in this case for findings that the windshield was essential to that analysis and that there was no comparable evidence. The most that can be said is that, if the results of the tests had matched Sullivan’s expectation, they would have bolstered the opinion he formed on the basis of the remainder of the physical evidence.

Indeed, it is possible that the negligent destruction of the windshield by Osborne, the state’s reconstruction expert, will yield a greater benefit to the defendant than the preservation and testing of the windshield would have. The defendant will be able to impeach Osborne on his destruction of the windshield, thus damaging the credibility of his opinion testimony on the, rest of the reconstruction evidence, whereas it is pure speculation whether further testing of the windshield would have yielded exculpatory evidence.

Weighing in the balance the four factors articulated by Gonzalez, McIver and Boucino, we conclude that the defendant was not deprived of his constitutional right to present a defense by the destruction of the windshield. Although the evidence potentially yielded by the tests on the windshield would have been material, the reason for that destruction, the availability of adequate trial mechanisms to minimize the likelihood of mistaken

interpretation of the destroyed evidence, and the absence of a significant showing of prejudice to the defendant, did not justify the dismissal of the information. There is error, the judgment is set aside and the case is remanded with direction to deny the motion to dismiss and for further proceedings according to law. In this opinion Daly, J., concurred. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), was released after the present case was argued in this court.

The defendant brings to our attention the fact that our Supreme Court has continued to employ a standard derived from federal cases that predate even Youngblood’s predecessor, California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), to decide cases involving the loss or destruction of evidence by the state. See, e.g., State v. McIver, 201 Conn. 559, 518 A.2d 1368 (1986). We are required to follow Youngblood, however, in analyzing the defendant’s claim under federal law.

When “ ‘a state court confronts a question of federal constitutional law “it may not impose greater restrictions as a matter of federal constitutional law when [the United States Supreme] Court specifically refrains from imposing them.” (Emphasis in original.) Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). State v. Perez, 10 Conn. App. 279, 287 n.6, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987).” State v. Coleman, 14 Conn. App. 657, 679-80, 544 A.2d 209, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

The dissent’s emphasis on the fact that the defendant in Youngblood did not accuse the police of destroying evidence in bad faith fails to distinguish Youngblood from the present case. It is of no moment that the defendant in Youngblood urged the court to dismiss the charges against him on grounds other than bad faith, because the specific holding of Youngblood predicates the dismissal of charges due to the destruction of evidence on a showing of bad faith on the part of the police and specifically defines the meaning of bad faith in this context.

We therefore disagree with the dissent’s insistence that Youngblood is inapposite in the present case. That “bad faith is the gravamen of the defendant’s argument”; infra, 237, O’Connell, J., dissenting; makes Youngblood, if anything, more pertinent.

Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall . . . be deprived of life, liberty or property without due process of law We disagree with the dissent’s contention that Hamele, Boucino, Gonzalez and Mclver do not control the present case because those cases were couched in the factual context of negligent or accidental destruction of evidence, as opposed to intentional destruction. The first factor considered in Hamele and its progeny is “the reason for the unavailability of the evidence.” State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).

In Hamele itself, the physical evidence “was destroyed by the . . . police because of the mistaken belief that the charges against the defendant were no longer pending.” Id., 372. Thus, the destruction of that evidence was intentional, albeit under a mistaken belief regarding its relevance. Similarly, in McIver the police, knowing that the victim’s coat contained blood stains, returned it to her, thus permitting the subsequent elimination of the stains by cleaning. State v. McIver, 201 Conn. 559, 564, 518 A.2d 1368 (1986).

This was the functional equivalent, at least, of an intentional but negligent destruction of the evidence by the police. Those cases, therefore, do apply to this case, where the destruction of the windshield was intentional — in the sense that Osborne intended to destroy it — but where that act was negligent in the sense that, under all the circumstances, it was unreasonable for him to do so. For purposes of this discussion, “materiality” has a broader meaning than the term as used in Arizona v. Youngblood, 488 U.S. 51, 62 n.1, 109 S. Ct. 333, 102 L.

Ed. 2d 281 (1988) (“materiality” refers to evidence whose exculpatory value is apparent without necessity of further testing). In our cases, the inquiry into the materiality of a piece of lost evidence has focused on whether that evidence was relevant and important to the defense. See, e.g., State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986).