State v. Durrett

923 N.E.2d 449, 2010 Ind. App. LEXIS 386, 2010 WL 876836
CourtIndiana Court of Appeals
DecidedMarch 12, 2010
Docket29A05-0910-CR-612
StatusPublished
Cited by17 cases

This text of 923 N.E.2d 449 (State v. Durrett) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Durrett, 923 N.E.2d 449, 2010 Ind. App. LEXIS 386, 2010 WL 876836 (Ind. Ct. App. 2010).

Opinions

OPINION

VAIDIK, Judge.

Case Summary

The State appeals the trial court's dismissal of a case in which Natasha Durrett allegedly drove a van that struck someone, resulting in serious bodily injury to that person, and allegedly failed to return to the seene of the accident. The State contends that the trial court abused its discretion in concluding that the absence of the van, the victim, and the investigating officer warrants dismissal. We find no evidence of bad faith in the State's failure to preserve the van, no denial of Durrett's right of confrontation due to the victim's absence as a witness, and no evidence of bad faith in the State's failure to provide discovery. Accordingly, we conclude that the trial court abused its discretion in granting Durrett's motion to dismiss. We therefore reverse.

Facts and Procedural History

On October 9, 2004, in Westfield, Indiana, Durrett allegedly drove a van that struck Whitney Uphold, resulting in serious bodily injury to Uphold, and allegedly failed to return to the scene of the accident. Officer Charles Pulfer of the Hamilton County Sheriff's Department was dispatched to the seene. During the course of the investigation, Officer Pulfer spoke with witnesses who said that Durrett, her boyfriend Jeremy Frantzreb, and her friend Jesse Schoolcraft drove up to Uphold, Ben Loller, and two others on Washington Street. Schoolcraft argued with Loller, and at some point, Durrett, Frantzreb, and Schoolcraft were back in the van. The accounts then diverge. Lol ler, Schoolcraft, Uphold, and two others said no one was approaching the van when Durrett veered toward Uphold, struck her, and drove off, Loller additionally stated that he beat the van with his fists before Durrett drove off, breaking a window, because Uphold was pinned underneath it. Conversely, Durrett and Frantzreb said Loller ran toward the van with a shovel, and when Durrett swerved to avoid him, she struck a fence. Loller then started beating the van with the shovel, so Durrett drove off.

Officers Pulfer and Kija Ireland located the van in Indianapolis and took photographs of it. Both sides of the van displayed damage. Boggs Wrecker Service, Inc., then towed the van to Boggs' lot in Noblesville: Although the van was released from investigative hold on October [452]*45221, 2004, Frantzreb, the registered owner, never claimed it. The fees for towing, recovery, and storage time continued to accrue, and after waiting the statutory time period, Boggs submitted a request to the Indiana Bureau of Motor Vehicles to sell the van. After the BMV notified Frantzreb regarding the prospective sale and received no response, it published a notice of the sale of the van in The Indianapolis Star. When the van did not sell at auction, Boggs sold the van on January 18, 2005, to a buyer who used it for serap parts.

On February 14, 2005, the State charged Durrett with Class C felony eriminal recklessness resulting in serious bodily injury 1 and Class D felony failure to return to the scene of an accident resulting in serious bodily injury.2 Durrett appeared for her initial hearing in March 2005. Due to multiple continuances requested by Dur-rett and granted by the trial court and resetting due to court congestion, the jury trial was ultimately rescheduled for April 20, 2009.

In the meantime, over three years after the sale of the van, in September 2008, Durrett filed a Motion for Physical Inspection, in which she requested the opportunity to inspect and photograph the van. The trial court granted the motion. Also in October 2008 Durrett filed a Motion to Compel Supplemental Discovery, in which she requested the court to compel the State to provide the current addresses for the State's listed witnesses, which included Uphold and Officer Pulfer. The State responded to the motion to compel, noting that Durrett had verbally informed the State within the last two weeks that she could not locate the witnesses. The response also provided the addresses of some witnesses and requested additional time to locate the other witnesses. The trial court first granted Durrett's motion, then denied it the next day and gave the State thirty days to provide the addresses. The order denying the motion also indicated that Durrett could refile her motion to compel in the event the State was unable to provide the addresses. Later in October, the State filed a Motion for Extension of Time. The motion indicated, "Unbeknownst to counsel for the State, the lead detective, Charles Pulfer, no longer works for the Hamilton County Sheriffs Office. Counsel received a letter to that effect on October 20, 2008." Appellant's App. p. 63. The State's motion also indicated that it was in the process of determining the whereabouts of the van. The trial court granted the motion, giving the State fifteen additional days.

On April 17, 2009, Durrett filed a Motion to Dismiss or in the Alternative to Bar Evidence. The motion stated that: (1) the van had been sold and although photographs were taken of the van, the State had not yet located them; (2) the State had advised Durrett on April 14, 2009, that Officer Pulfer resides in Florida, it was unlikely the State would call him as a witness, and Officer Pulfer "does not accept phone calls regarding his former cases and will not accept a subpoena served via mail," id. at 82; and (8) Durrett could not locate Uphold. The State provided Durrett with photographs of the van the same day.

A hearing on the motion was held on April 20, 2009, the day the jury trial was set to begin. The State noted that it took time for Officer Ireland to locate the photographs because they were not indexed as a criminal case. Tr. p. 40. Durrett acknowledged that she received photographs [453]*453showing damage to the right side of the van and that Officer Ireland would be available to lay the proper foundation for the photographs. Durrett nonetheless argued for dismissal because the van had been sold and the photographs were not sufficient, the State failed to seize the shovel, and Officer Pulfer and Uphold were not testifying at trial. The trial court granted the motion to dismiss, finding that the cumulative effect of the missing van and the absence of Uphold and Officer Pulfer would deny Durrett her fundamental rights to due process and to confront her accusers. The State filed a motion to correct error, which was deemed denied. The State now appeals.

Discussion and Decision

The State argues that the trial court abused its discretion by granting Durrett's motion to dismiss. We restate the issues as whether the absence of the van, the absence of Uphold as a witness, and the State's failure to provide discovery warrants dismissal. We review a trial court's ruling granting a motion to dismiss for an abuse of discretion. State v. Fettig, 884 N.E.2d 341, 343 (Ind.Ct.App.2008), reh'g denied. We therefore reverse only where the decision is clearly against the logic and effect of the facts and cireum-stances. Id.

I. Absence of the Van

The State contends that the absence of the van does not weigh in favor of dismissal. Durrett argues that the van constitutes material exculpatory evidence and that its absence violates her due process rights. When determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence, we must first decide whether the evidence is potentially useful evidence or material exeulpatory evidence. Land v.

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State v. Durrett
923 N.E.2d 449 (Indiana Court of Appeals, 2010)

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Bluebook (online)
923 N.E.2d 449, 2010 Ind. App. LEXIS 386, 2010 WL 876836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-durrett-indctapp-2010.