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COURT OF APPEALS
DECISION
DATED AND FILED
August 11, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Timothy Maurice Hurst,
Defendant-Appellant.
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APPEAL
from judgments of the circuit court for Milwaukee County: Charles
F. Kahn, Jr., Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 CURLEY, P.J. Timothy M. Hurst appeals
from a corrected judgment of conviction for burglary with a person present,
false imprisonment while armed, substantial battery while armed, and a judgment
of conviction for armed robbery, all as a party to the crime, contrary to Wis. Stat. §§ 943.10(2)(e),
940.30, 940.19(2), 939.63, 943.32(1)(a), (2), and 939.05 (2005-06). Hurst argues that the trial court erred in
denying his motion for a mistrial and motion to dismiss because an ID card
found at the scene of the crime, which was later lost by police, was evidence
containing exculpatory value that was apparent to police and was of such a
nature that he would not have been able to obtain comparable evidence by other
reasonably available means. Hurst claims that the
loss of the ID card violated his due process rights. Because we conclude that the lost ID card was
merely potentially exculpatory evidence and that there was no bad faith on the
part of the police, we affirm the trial court’s denial of Hurst’s motions.
I. Background.
¶2 During the early morning hours of July 20, 2006, an armed robbery
and burglary occurred in the apartment of Mathew Gasparek and Eric Cohen. Gasparek, the only person home at the time,
was awoken by having a gun thrust in his mouth.
He was subsequently forced to lie on his stomach with his face down and
was tied up. Gasparek believed, by
virtue of the voices he heard, that there were four separate intruders.
¶3 A neighbor called the police at about 4:00 a.m. and reported
seeing four men loading various items into a van. When police officers arrived, they found a
fifth man, Dash Brown, who was the driver of the van. A few minutes after arriving, police officers
arrested Hurst. Hurst
was apprehended when he was spotted by police officers running towards Gasparek’s
and Cohen’s apartment. Hurst claimed that he was there to buy
marijuana from Cohen.
¶4 At trial, Brown and James Genous, another one of the men who
was arrested for his involvement in the crimes, testified against Hurst in accordance with
their plea agreements. Brown testified
that Hurst
helped to plan the robbery because Gasparek owed someone money from a drug
deal. Genous testified that “somebody
owed Tim [Hurst]
some money, so we [were] just going for him to get his money.”
¶5 Police officers found numerous items inside of the van that
had been removed from the apartment. Additionally,
police officers found a backpack inside of one of the bedrooms of the apartment
that contained a bottle of whiskey along with some pantry items. Gasparek indicated to one of the detectives
that the backpack was not his, but that he thought it belonged to Cohen. Trial testimony revealed that two days after
the incident, Gasparek and Cohen went to the police station. Cohen informed the lead detective on the case
that the backpack was not his and gave the detective an ID card that Cohen had
found inside the backpack.
¶6 The detective testified that she “remember[ed] reviewing the
i.d., running it through our system, through our computers.” The detective concluded that the ID card was
a valid Wisconsin driver’s license, that it
belonged to a black male, and that there were no open warrants for the person
identified on the card. She also determined that the ID card did not
belong to Hurst,
to Brown, or to anybody who was named by Brown as being involved in the
crime. Furthermore, the detective
testified that the ID card did not belong to Genous. Unfortunately, the ID card was lost prior to
trial. When asked when she last saw the
ID card, the detective answered, “[p]robably [in the] middle of August,”
approximately eight months before the trial began.
¶7 Hurst moved for a mistrial and
to dismiss, alleging that the lost ID card—which Hurst’s attorney first learned about during
Cohen’s testimony—was clearly exculpatory evidence and that it had been
unlawfully suppressed by the State. The
State contended that the loss of the ID card, which occurred early on in the
investigation, was neither of special importance nor was there any reason to
believe that it was exculpatory evidence or that it was intentionally
lost. The trial court took the motions
under consideration but allowed the trial to continue.
¶8 The jury found Hurst guilty of burglary with a person
present, false imprisonment while armed, substantial battery while armed, and
armed robbery, all as a party to the crime.
At Hurst’s
sentencing hearing, the trial court ruled on his motion to dismiss due to the
missing ID card. The trial court found
that because the ID card had been lost at such an early point during the
investigatory process, the court was unable to tell whether it was exculpatory
or not. The court stated that it was
unfortunate that the loss of the ID card had not been disclosed to Hurst prior to trial, but that a grant of Hurst’s motion for a mistrial, or even an
earlier disclosure by the State that the ID card existed, but had been lost,
“really wouldn’t help anything.” In
conclusion, the trial court denied the motion to dismiss, finding that Hurst had received value from the ID card by arguing that
it belonged to a possible phantom burglar or robber, and that Hurst had received a fair trial. Hurst
was sentenced to twelve years of incarceration and ten years of extended
supervision on the armed robbery charge, and the sentences on the other charges
were stayed. This appeal follows.
II. Analysis.
¶9 Hurst
contends that the trial court erred in denying his motion for a mistrial
because the State’s failure to preserve the ID card was a failure to preserve evidence
that had exculpatory value to him. Hurst
asserts that the exculpatory value of the ID card was apparent to police and
that he was unable to obtain comparable evidence by other reasonably available
means; thus, he claims his due process rights were violated when the trial
court denied his motion for a mistrial. In
support, Hurst
claims that when police lost the ID card, he “lost a chance to prove his
innocence” because “[t]here is a reasonable possibility that the ID card
belonged to one of the robbers.” Hurst alleges that if he
had known the name on the ID card, he could have shown that the person on the
ID card was involved in the robbery, instead of himself. Additionally, Hurst claims that he “could have shown that
Brown and Genous were lying when they gave the names of the remaining three
accomplices.”
¶10 “The decision whether to grant a motion for a mistrial lies
within the sound discretion of the trial court.” State v. Ross, 2003 WI App 27, ¶47,
260 Wis. 2d
291, 659 N.W.2d 122. “The trial court
must determine, in light of the whole proceeding, whether the claimed error was
sufficiently prejudicial to warrant a new trial. The denial of a motion for mistrial will be
reversed only on a clear showing of an erroneous use of discretion by the trial
court.” Id. (citation omitted). Our review entails determining “whether the
court examined the relevant facts, applied the proper standard of law, and
engaged in a rational decision-making process.”
State v. Foy, 206 Wis.
2d 629, 644, 557 N.W.2d 494 (Ct. App. 1996).
¶11 When the police fail to preserve evidence, the defendant’s due
process rights can be violated in either of two ways. See State v. Greenwold, 189 Wis. 2d 59, 67, 525
N.W.2d 294 (Ct. App. 1994) (Greenwold II). The first is when police fail to preserve
evidence “that might be expected to play a significant role in the suspect’s
defense.” California v.
Trombetta, 467 U.S.
479, 488 (1984). To satisfy this
standard, the evidence must both: (1)
“possess an exculpatory value that
was apparent to those who had custody
of the evidence ... before the evidence was destroyed, and (2) ... be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.” State v. Oinas, 125 Wis. 2d 487, 490, 373
N.W.2d 463 (Ct. App. 1985) (emphasis in Oinas).
¶12 The second way is when the police, acting in bad faith, fail to
preserve evidence that is merely potentially useful. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); State v. Greenwold, 181 Wis. 2d 881, 884-85, 512
N.W.2d 237 (Ct. App. 1994) (Greenwold I) (adopting the federal Youngblood
analysis). The defendant has the burden
of proving bad faith by showing that the police acted with official animus or
made a conscious effort to suppress the evidence. See Greenwold II, 189 Wis. 2d at 69‑70.
¶13 Whether the State’s loss of the ID card violated Hurst’s due
process rights raises a question of constitutional fact, which we review de novo.
See id. at 66. However, we uphold
the trial court’s findings of historical fact unless clearly erroneous. State v. Martwick, 2000 WI 5, ¶18,
231 Wis. 2d
801, 604 N.W.2d 552. “Therefore, unless
the evidence was apparently exculpatory, or unless the officers acted in bad faith,
no due process violation resulted.” Greenwold
I, 181 Wis.
2d at 885.
¶14 Regardless of whether we analyze this case under Trombetta
or under Youngblood, Hurst’s appeal cannot succeed. Hurst
argues that the lost ID card possessed exculpatory value that falls under the
standard set forth in Trombetta. In support, Hurst first alleges that the ID card had
exculpatory value to him because “it could have impeached Brown and Genous
which would have created reasonable doubt as to [his] involvement in the
crime.” He contends that the ID card’s
exculpatory value was apparent to police because “[o]n the night of the crime,
police found the backpack and photographed its contents (they apparently did
not see the ID card in the backpack),” and when Cohen brought the ID card to
the police station and informed the detective that it did not belong to him or
to Gasparek, Hurst argues, “[t]he exculpatory value of the ID must have been
apparent to [the detective] before she lost it.” (Parenthetical in brief.) Furthermore, Hurst contends that the detective’s initial
check of the ID card is proof that the exculpatory value of the ID was apparent
to her because “[i]f the exculpatory value was not apparent to [the detective],
she would not have investigated the ID, or attempted to preserve it.”
¶15 Additionally, Hurst
claims that the ID card was of such a nature that he was unable to obtain
comparable evidence by other reasonably available means. Hurst alleges that due to the lack of
anyone’s knowledge as to the name of the owner of the ID card, there was no
reliable way to determine whether it belonged to one of the robbers, and that
if the person on the ID card was involved in the crime, it would have proven
that Genous and Brown lied as to their accomplices.
¶16 First, Hurst
has not established that the exculpatory value of the ID card was apparent to
police. Hurst’s contention that the detective’s
initial check of the ID card is proof of its apparent exculpatory value has no
merit. The lead detective testified that
when the ID card was received by police she ran the ID card through the police
computer system, found nothing that she felt was of particular importance at
that early stage of the investigation, and put the ID card in a folder, never
to be seen again. This reflects no more
than a possibility that the ID card might have been useful to Hurst if it had not been lost. The “possibility” that the ID card “could
have exculpated” Hurst
if it had been preserved “is not enough to satisfy the standard of constitutional
materiality in Trombetta.” See
Youngblood, 488 U.S. at 56 n.*.
¶17 Further, the detective’s actions when the ID card was turned over
to her and her testimony make it clear that the value of the ID card was not
apparent to her. First, after conducting
initial research on the ID card to determine whether the person reflected on it
was involved in the crimes, the detective “put [the ID card] in the file for
further investigation.” The detective
testified that the ID card “may or may not have been related” to the
investigation, stating that it “might have been [evidence]. It was possible, but [she] wasn’t sure.” There is no indication that the ID card was
evidence “that might [have been] expected to play a significant role in [Hurst’s] defense.” See
Trombetta,
467 U.S.
at 488. On the contrary, the detective’s
testimony clearly indicates that she was not aware of whether the ID card would
or would not be of any relevance to the investigation; thus, the exculpatory
value of the ID card was not apparent to the detective.
¶18 It is illogical to conclude that Hurst would have been absolved from
committing the crime, and that this was apparent to the detective, had the ID
card not been lost. There are multiple
scenarios in which Hurst
still could have been found guilty. For
instance, the ID card could have belonged to one of the two participants who
had not yet been apprehended at the time of Hurst’s trial. The ID card also may have belonged to a
person unrelated to the crime, such as someone who had attended the party that
had taken place at the apartment just hours before the crime occurred. In either circumstance, Hurst is neither exonerated nor incriminated;
thus, there was no reason to believe the exculpatory value of the ID card was
apparent to police. Evidence that might
as easily incriminate as exonerate the defendant is not “apparently
exculpatory.” Therefore, Hurst fails to meet the
first prong of the Trombetta test.
¶19 Hurst
contends that he satisfied the second prong of the Trombetta test. He argues that “[t]he ID card was of such a
nature that [he] was unable to obtain comparable evidence by other reasonably
available means.” However, because Hurst has not satisfied
the first prong, we do not address this argument. See Oinas, 125 Wis. 2d at 491 (“We need not address the
second criteria concerning the unavailability of comparable evidence. Both criteria must be satisfied in order to
raise a claim resulting from negligent destruction of evidence. The defendant has not satisfied the first test.
On that basis alone, his argument fails.”).
¶20 The ID card had an exculpatory value that was merely
potentially useful to Hurst
and, therefore, the Youngblood test governs.
Hurst
agreed at the sentencing hearing, and he does not otherwise dispute now, that
there was no bad faith on the part of the police in failing to preserve the ID
card. See Greenwold II, 189 Wis. 2d at 68 (“[T]here
is no bad faith when the police negligently fail to preserve evidence which is
merely potentially exculpatory.”). We
agree that there is no evidence to support bad faith on behalf of the police in
failing to preserve the ID card.
Accordingly, even under a Youngblood analysis, there was no
violation of Hurst’s
due process rights. The trial court
correctly exercised its discretion to deny the motion for a mistrial, as well
as the motion to dismiss.
¶21 For the reasons stated, the judgments are affirmed.
By the Court.—Judgments affirmed.
Not
recommended for publication in the official reports.