Gimble v. State

EYLER, DEBORAH S., J. A jury in the Circuit Court for Wicomico County convicted Justin Gimble, the appellant, of two counts of possession of cocaine with intent to distribute, two counts of possession of marijuana with intent to distribute, one count each of simple possession of cocaine and marijuana, and one count of possession of drug paraphernalia. He was sentenced to a total of 15 years’ imprisonment with all but 6 years suspended. On appeal, the appellant presents three questions for review, which we have reworded: I. Did the circuit court err in denying his motion to dismiss?

II

Was the evidence legally sufficient to support his convictions?

III

Did the trial court err in denying his requested jury instruction on destruction of evidence? For the following reasons, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The charges in this case stem from events that happened in the late morning of March 26, 2008, when Wicomico County Sheriffs Office Deputy Joel Arnold attempted to effect a ⁶¹⁴ traffic stop of a sedan automobile the appellant was driving, and in which the appellant was the sole occupant. Deputy Arnold had observed the sedan traveling above the posted speed limit.

When he drove up behind the sedan to make the traffic stop, the appellant sped off. A chase ensued, with the appellant’s vehicle reaching speeds of around 100 mph. Deputy Arnold’s patrol vehicle was equipped with a camera mounted on the dashboard, which recorded the entire series of events, beginning with the attempted traffic stop. Deputy Arnold never lost sight of the sedan during the chase.

The appellant failed to negotiate a turn and lost control of the sedan. It veered off into a field and crashed, overturning. Deputy Arnold witnessed the crash. He saw items coming out of the sedan as it overturned.

The DVD recording of the crash showed that as well. Items found in close proximity to the overturned vehicle included a camouflage backpack. The backpack was spotted by Deputy Matthew Cook (who had responded to the scene) around 20 feet from the overturned sedan. Inside the backpack Deputy Cook found marijuana and cocaine, clear baggies, a USC 300 digital scale with narcotics residue on it, and various personal items.

The appellant suffered significant injuries in the crash. It took about a half hour to extract him from the sedan. He was transported to a regional medical center. There, Deputy Dennis Taylor confiscated a silver Cingular cell phone and $1,311 in United States currency from a pocket in the appellant’s pants, which had been removed by hospital personnel.

The appellant was transported to the Shock Trauma Unit in Baltimore for treatment of his injuries. We shall include additional facts in our discussion of the issues. DISCUSSION I. Motion to Dismiss Charges The case ■ was scheduled for trial on January 20, 2010. Three months before then, on October 19, 2009, defense ⁶¹⁵ counsel made discovery requests of the State.

On October 29, 2009, he received in response documents, including police reports and evidence logs, detailing the items that had been found in the field near the overturned sedan right after it crashed, and stating that there was a DVD recording of the chase and crash taken from the camera in the patrol vehicle, and there were 11 photographs taken at the crash scene by an EMT responder. Defense counsel asked for the DVD and the photographs. He was provided with the DVD but was told that there were no photographs. (There were many other photographs taken of the crash scene, including one that showed the location of the backpack.

They were taken by other responders to the scene.) As the trial date neared, defense counsel arranged to meet with the prosecutor at the Sheriffs Office on January 15, 2010, to view the evidence. The prosecutor canceled the meeting at the last minute and it was rescheduled for January 19, which was the next business day. (A holiday weekend intervened.) On the morning of January 19, the prosecutor called defense counsel and told him she had learned that the only items of evidence the Sheriffs Office still had for the case were the marijuana and cocaine that were found in the backpack and the money that was seized from the appellant’s pants pocket in the hospital. Everything else had been either returned to the appellant’s girlfriend or destroyed.

At the outset of the proceedings the next day, defense counsel moved to dismiss all charges on the ground that the appellant’s due process rights had been violated by the State’s destruction of evidence. 1 Defense counsel complained that the State had destroyed the backpack, personal items in the backpack, and the 11 crash scene photographs. The prosecutor responded that some of the items of evidence had been destroyed mistakenly by the Sheriffs Office in the course of routine purging of its evidence room. She offered to call as a ⁶¹⁶ witness Corporal Brian Donohoe, the property and evidence supervisor for the Sheriffs Office. The court agreed and Corporal Donohoe was called to the stand.

He testified as follows. Every item of evidence submitted to the Sheriffs Office is accompanied by a property report stating the case number. Evidence is stored in numerical order by year and case number. “General” evidence (the category in which all the items in this case fit, except the drugs and currency) is put in a padlocked locker when received and, shortly thereafter, is moved to a locked vault. On March 26, 2008, the day of the events involving the appellant, Corporal Donohoe received property report forms for several items of evidence associated with this case.

The items included a USC 300 digital scale, a silver Cingular cell phone, and a camouflage backpack containing glassine baggies, a cell phone charger, batteries, and a comb. That same day, Corporal Donohoe also received property report forms associated with this case for a cell phone, a driver’s license, keys, a PNC bank card, two folding knives, two pictures, and a black folder. All of these items were stored in the vault for general property in the property room at the Sheriffs Office. In addition, Corporal Donohoe received marijuana, cocaine, and $1,311 in United States currency associated with this ease.

The drugs were stored in a separate evidence locker specifically for controlled dangerous substances. The currency was deposited with the county financial office. On April 11, 2008, in response to a property form submitted by Deputy Arnold the day before, Corporal Donohoe released the driver’s license, keys, PNC bank card, two folding knives, two pictures, a cell phone (different from the silver Cingular cell phone), and black folder to the appellant’s girlfriend. The Sheriffs Office follows a routine annual purging procedure for evidence collected the previous year.

Pursuant to the procedure, the seizing deputy (ie., the deputy who seized the evidence to begin with) is sent a property disposal form listing the evidence. The seizing deputy fills out the form, indicating ⁶¹⁷ whether the evidence should be “held, destroyed, or returned to the owner” and whether the evidence is associated with active warrants, investigations, or criminal proceedings. In September 2009, Corporal Donohoe issued over 600 property disposal forms for evidence collected in 2008. On September 29, 2009, such a form listing the backpack, the silver Cingular cell phone, and the USC 300 digital scale in this case was issued to Deputy Taylor, who mistakenly was identified in the computer system as the seizing officer.

In fact, Deputy Matthew Cook was the seizing officer for those items. Therefore, the property disposal form for those items should have been issued to Deputy Cook. It was not, however. On November 3, 2009, Deputy Taylor returned the property disposal form marking the three items for destruction.

He did not fill in the top portion of the form with respect to active warrants, investigations, or criminal cases associated with the evidence. According to Corporal Donohoe, the top portion of the form is for the convenience of the seizing officer, and is not reviewed by him or the staff in the property room. Deputy Taylor submitted the property disposal form on November 3, 2009. The items were destroyed on November 5, 2009.

All items remaining inside the backpack would have been destroyed when the backpack was destroyed. Corporal Donohoe testified that the Sheriffs Office property room never received any crash scene photographs associated with this case and that it would not be usual for photographs of that sort to be submitted to the Sheriffs Office property room for housing. At the conclusion of Corporal Donohoe’s testimony, the court found as a fact that the November 5, 2009 destruction of items of evidence in this case (the backpack and its contents, the silver Cingular cell phone, and the digital scale with residue) was “part of an annual purge of the 2008 Wicomico County Sheriffs Department inventory.” It found that “the destruction of this evidence was done in a routine administrative fashion” and was “not done in bad faith or with the intent to cause any injustice to [the appellant].” The court also ⁶¹⁸ found that the prosecutor did not know that the evidence had been destroyed until January 15, 2009, and that “there’s no evidence that the State, through its law-enforcement officers or other agents, willfully suppressed any evidence.” The court further found that there was no evidence that “what was destroyed was favorable to [the appellant].” The court denied the appellant’s motion to dismiss. On appeal, relying primarily upon and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988), the appellant contends the State violated his due process rights by destroying the backpack and its contents, the silver Cingular cell phone, the digital scale with residue, and 11 crash scene photographs.

Before discussing the specifics of his contention, it will be helpful to review those cases. In Trombetta, two defendants were convicted of driving while intoxicated. During their initial traffic stops, each defendant had submitted to a breath test to determine his blood-alcohol concentration (“BAC”). Each defendant’s BAC tested at higher than .10 percent, the legal limit in California at that time.

The State did not preserve the breath samples. On appeal, the defendants argued that the State had violated their due process rights by not preserving the breath samples because, without the samples, they had no opportunity to conduct re-tests and to impeach the test results introduced into evidence by the State. The California Court of Appeals agreed, and reversed the convictions. The United States Supreme Court granted certiorari and reversed.

It reviewed its prior aecess-to-evidence cases, which established that the prosecution must disclose evidence that either is material to the defendant’s guilt or relevant to the punishment to be imposed. It noted that in prior decisions it had “suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant’s preparation for trial.” Trombetta, 467 U.S. at 486 , 104 S.Ct. 2528 . ⁶¹⁹ Acknowledging the difficulty in fashioning rules and remedies regarding the preservation of evidence, the Court looked for guidance in Killian v. United States, 368 U.S. 231 , 82 S.Ct. 302 , 7 L.Ed.2d 256 (1961), in which it had addressed the government’s failure to preserve potentially exculpatory evidence. In Killian , F.B.I. agents had taken notes while interviewing witnesses. They prepared an investigatory report from the notes, and then threw the notes away.

The Court ruled that the defendant’s due process rights had not been violated because the notes only were made for the purpose of later transferring the information they contained, and because the notes were destroyed in good faith and in accordance with the F.B.I.’s standard practice. In Trombetta , the Court analogized to Killian and concluded that the officers had acted in good faith and in accordance with standard departmental practices when they failed to preserve the breath samples. The Court held: Whatever duty the Constitution imposes on the State to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 467 U.S. at 488-89 , 104 S.Ct. 2528 (citing United States v. Agurs, 427 U.S. 97, 109-110 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (footnote omitted)).

In Youngblood , the Court was asked to determine to what extent due process requires the State to preserve evidence that does not satisfy the Trombetta constitutional materiality test, but still is potentially exculpatory. The defendant was convicted of child molestation, sexual assault, and kidnapping. After the assault occurred, the victim had been taken to the hospital where a physician used a “sexual assault kit” to collect various samples resulting from the attack. The sam ⁶²⁰ pies were collected but not tested.

Police officers also collected the boy’s clothing, but failed either to refrigerate or freeze it. At trial, expert witnesses testified “as to what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy’s clothing had the clothing been properly refrigerated.” Id. at 54, 109 S.Ct. 333 . The Arizona Court of Appeals reversed the conviction, holding that because identity was an issue at trial, and the sample evidence could have established the perpetrator’s identity, the evidence was material to the defense and the failure to preserve it was a denial of the defendant’s due process rights. The United States Supreme Court reversed.

It distinguished the case from Trombetta in two ways: First, the evidence in Trombetta had “apparent” exculpatory value, and therefore was constitutionally material, whereas, in Young-blood’s case it was a mere “possibility” that the semen samples would have exculpated him if they had been preserved or tested. That mere possibility did not satisfy the standard of constitutional materiality. Second, under Trombetta , the exculpatory value of evidence must have been apparent “before the evidence was destroyed.” 488 U.S. at 57 n. *, 109 S.Ct. 333 (emphasis in original) (quoting Trombetta, 467 U.S. at 489 , 104 S.Ct. 2528 ). The semen samples were “simply an avenue of investigation that might have led in any number of directions,” and therefore did not have apparent exculpatory value.

Id. While recognizing that good faith is not relevant when constitutionally material evidence has been destroyed, the Youngblood Court determined that “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.” Id. at 57 , 109 S.Ct. 333 . The Court held that the State does not have an “absolute duty to retain and to preserve all material ⁶²¹ that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58 , 109 S.Ct. 333 . When evidence is only “potentially useful,” not constitutionally material, the State’s failure to preserve it is not a denial of due process “unless a criminal defendant can show bad faith on the part of the police.” Id.

The Supreme Court assessed the evidence and concluded that “there was no suggestion of bad faith on the part of the police.” Id. On that basis, the Court held that there was no due process violation. We return to the case at bar. The appellant does not contend the evidence the State destroyed was constitutionally material.

He contends the evidence was potentially useful, however, and that bad faith was established because the State failed to act in accordance with established police procedures and the items were destroyed after defense counsel had filed a discovery request. The State acknowledges that the evidence that was destroyed was potentially useful to the defense. It maintains that the evidence was not destroyed in bad faith, however, because the police officers responsible for its destruction were not aware that it had any exculpatory value. Furthermore, although police procedures were not followed, the officers’ conduct was at most negligent, which is insufficient to establish bad faith.

As noted, the trial court found that the police officers did not act in bad faith in destroying the evidence in this case. We agree. Although the appellant correctly points out that the failure to follow police procedures can indicate bad faith, that is but one factor to be considered. See Patterson v. State, 356 Md. 677, 697 , 741 A.2d 1119 (1999); Elliott v. State, 185 Md.App. 692, 736-37 , 972 A.2d 354 (2009).

We must also consider whether the police knew of the evidence’s potential exculpatory value before it was destroyed. Youngblood, 488 U.S. at 56 -57 n. *, 109 S.Ct. 333 . The evidence at issue was seized on March 26, 2008, and then was housed in the Sheriffs Office’s evidence room. ⁶²² Because the appellant was so seriously injured in the crash, there was a long delay in charging him, and the evidence remained in the evidence room for well over a year. In September of 2009, as part of the annual purge process for evidence seized the year before (2008), Corporal Donohoe mistakenly issued a property disposal form to Deputy Taylor for the backpack, digital scale, and Cingular cell phone.

The mistake happened because Deputy Taylor’s name was incorrectly entered in the computer as the seizing officer. When Deputy Taylor received the property disposal form, he did not recall either the case name or the case number. He knew, however, that he did not have any upcoming cases relating to the evidence. For that reason, he indicated on the property form that the items should be destroyed. 2 There was no evidence that anyone was aware of the mistake that resulted in the property disposal form being sent to Deputy Taylor until after the items already had been destroyed.

At most, the failure to follow procedures in this case constituted negligence, which is insufficient to establish bad faith. Youngblood, 488 U.S. at 58 , 109 S.Ct. 338 (remarking that “[t]he failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent.”); Patterson, 356 Md. at 697 , 741 A.2d 1119 . Furthermore, there was no evidence that either Corporal Donohoe or Deputy Taylor was aware of the potential exculpatory value of the items until after they were destroyed. Corporal Donohoe sent the property disposal form as part of the routine purging process, to determine whether the items were evidence in an active case, and Deputy Taylor, not realizing that the property disposal form had been sent to him in error, filled out the form to indicate that the evidence ⁶²³ should be destroyed because he did not have any upcoming cases relating to the evidence.

The fact that the police were unaware of any potential exculpatory value when the evidence was destroyed also weighs against a finding of bad faith. See Youngblood, 488 U.S. at 56 -57 n. *, 109 S.Ct. 333 . We agree with the trial judge that the evidence in this case did not support a finding of bad faith on the part of the law enforcement officers. Accordingly, the appellant’s due process rights were not denied, and the trial court did not err in denying his motion to dismiss.

II

Sufficiency of the Evidence The appellant contends the evidence adduced at trial, viewed in the light most favorable to the State, was legally insufficient to support a finding beyond a reasonable doubt that he was in possession of the marijuana, cocaine, and paraphernalia that were in the camouflage backpack found in the field where the sedan crashed and overturned.