State v. Weissinger

2014 WI App 73, 851 N.W.2d 780, 355 Wis. 2d 546, 2014 WL 2871339, 2014 Wisc. App. LEXIS 505

• Court: Court of Appeals of Wisconsin
• Decided: June 25, 2014
• Docket: No. 2013AP218-CR
• Status: Published

Opinions

NEUBAUER, EJ.

¶ 1. Jessica M. Weissinger appeals from a judgment convicting her of causing great bodily harm by intoxicated use of a motor vehicle while having a detectable amount of a restricted controlled substance in the blood, Wis. Stat. § 940.25(l)(am) (2011-12),¹ and operating a motor vehicle while having a detectable amount of a restricted controlled substance in the blood, Wis. Stat. § 346.63(1)(am), second offense. Weissinger hit and seriously injured a motorcyclist while driving her vehicle. Weissinger consented to a blood test. When she later moved to retest the blood sample, it had been destroyed. The admission of the blood test results did not violate Weissinger's due process rights. We affirm.

FACTS

¶ 2. On July 6, 2009, the vehicle Weissinger was driving struck a motorcycle, severely injuring the operator of the motorcycle. At the scene, the police did not suspect Weissinger of being under the influence of an intoxicant. Weissinger was not arrested. Nevertheless, the police asked Weissinger to consent to give a blood sample, which she did.

¶ 3. An officer took her to the hospital, without arresting her and without handcuffs, and hospital personnel drew Weissinger's blood. The blood sample was sent to the Wisconsin State Laboratory of Hygiene, where it was tested on July 13, 2009. The sample showed no alcohol. The lab report indicated that the "[s]pecimen(s) will be retained no longer than six months unless otherwise requested by agency or subject." On August 7, 2009, Weissinger's blood was tested again, this time for drugs. The test revealed a detectable amount of tetrahydrocannabinols (THC). A February 24, 2010 test confirmed the presence of THC in Weissinger's blood.² The results of that test were reported on March 7, 2010. The blood sample was discarded near the end of April 2010 because it was outside the six-month retention period. According to Weissinger, the results of the tests were not furnished to her until after August 18, 2010.

¶ 4. On May 24, 2010, Weissinger was charged with causing injury while having a detectable amount of a controlled substance in her blood and operating a motor vehicle while having a detectable amount of a controlled substance in her blood. One year later, Weissinger moved to retest her blood sample and to dismiss the charges because the blood sample had been destroyed and she could not retest. The State moved to preclude Weissinger from questioning the State's witnesses about the destruction of the blood sample. The trial court denied all three motions. Weissinger's case was tried to a jury, and she was found guilty and convicted on both charges.

DISCUSSION

¶ 5. Weissinger argues that the trial court erred in allowing the State to present evidence of the blood test results because Wis. Stat. § 971.23(5) gave her the right to retest the blood sample and because the failure to preserve the blood sample denied her due process.

¶ 6. The State responds that Wis. Stat. § 971.23 does not allow for discovery of the blood sample itself, but rather only the blood test results. Weissinger's due process rights were not violated because she had the opportunity to have an additional test and to challenge the test results on cross-examination. Finally, argues the State, Weissinger has not shown that the blood sample was apparently exculpatory or that the State acted in bad faith in destroying the blood sample.

Standard of Review

¶ 7. We review the trial court's evidentiary decisions for an erroneous exercise of discretion. State v. Munford, 2010 WI App 168, ¶ 27, 330 Wis. 2d 575, 794 . Whether Weissinger's due process rights were violated is a question of law we review de novo. Id., ¶ 20.

United States Supreme Court Cases Regarding Destruction of Potentially Useful Evidence

¶ 8. The Due Process Clause of the Fourteenth Amendment requires that criminal prosecutions conform to fundamental notions of fairness and that criminal defendants are given "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984); see also U.S. Const. amend. XIV, § 1. Due process requires that the prosecution disclose material exculpatory evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

¶ 9. In Trombetta and Arizona v. Youngblood, 488 U.S. 51 (1988), the U.S. Supreme Court developed a test to determine whether the government's failure to preserve evidence violated a defendant's due process rights. Trombetta and other respondents challenged convictions for drunk driving after the breath samples showing their blood alcohol content were destroyed before they could independently test the samples. Trombetta, 467 U.S. at 483. In upholding the convictions, the Supreme Court noted that the police officers had no apparent intent to destroy exculpatory evidence but rather acted in good faith and according to their protocol. Id. at 488. Further, the breath test evidence was not apparently exculpatory; "the chances [were] extremely low that preserved samples would have been exculpatory." Id. at 489. Finally, respondents had "alternative means of demonstrating their innocence," such as attacking the reliability of the testing. Id. at 490.

¶ 10. Expanding on this test in Youngblood, the Court noted that while the prosecution must turn over material exculpatory evidence, the Supreme Court has been unwilling to "impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58. Youngblood "refined" the Trombetta rule, distinguishing between "potentially useful evidence" and "exculpatory evidence" and requiring a showing of bad faith when the police fail to preserve evidence that is merely potentially useful. State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II) (quoting Youngblood, 488 U.S. at 57-58); see also State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I) (adopting Youngblood standard and noting refinement of Trombetta rule). After Youngblood, a defendant's due process rights as to the loss of evidence are violated if the police (1) fail to preserve evidence that is apparently exculpatory or (2) act in bad faith by failing to preserve evidence that is potentially exculpatory. Greenwold II, 189 Wis. 2d at 67 (citing Trombetta, 467 U.S. at 489, and Youngblood, 488 U.S. at 57-58). Thus, "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." Youngblood, 488 U.S. at 58. Bad faith can only be shown if "(1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence." Greenwold II, 189 Wis. 2d at 69.

¶ 11. The Youngblood rule applies even when the defense has made a discovery request for potentially useful, outcome-determinative evidence; there is no due process violation from the destruction of such evidence unless the defendant can show the evidence was destroyed in bad faith. Illinois v. Fisher, 540 U.S. 544, 548 (2004) (per curiam). Fisher was charged with possession of cocaine and made a discovery request for the bag of powdery substance the police had seized which had tested positive four times for cocaine. Id. at 545. Fisher fled the state, and when he returned, ten years later, the evidence had been destroyed. Id. Fisher was convicted, but his conviction was overturned on appeal. Id. at 546. The Illinois appellate court relied on Illinois v. Newberry, 652 N.E.2d 288 (Ill. 1995), distinguishing Youngblood on the grounds that Fisher had requested the evidence and the evidence was Fisher's "only hope for exoneration." Fisher, 540 U.S. at 546-47. The Illinois Supreme Court did not take the case. Id. at 547.

¶ 12. The United States Supreme Court took the case and reversed. Id. at 545. The Court reiterated the necessity of a finding of bad faith in order to show a due process violation when potentially exculpatory evidence has been destroyed. Id. at 547-48. "We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of police." Id. at 548. "We also disagree that Youngblood does not apply whenever the contested evidence provides a defendant's 'only hope for exoneration' and is 'essential to and determinative of the outcome of the case.'" Id. (citation omitted). The applicability of the Youngblood bad-faith requirement depends on whether the evidence was exculpatory or just potentially useful, not on whether the evidence was central to the state's case. Fisher, 540 U.S. at 549. The destroyed substance in Fisher's case, having tested positive for cocaine four times, was, at best, potentially useful, so the bad-faith requirement applied. Id. at 548-49.

¶ 13. Fisher tells us that Youngblood applies to Weissinger's case even though the destruction of the evidence prevented an independent test and the blood sample test result arguably determined the outcome of the case.³ Applying the Youngblood analysis, Weissinger has not shown that the blood sample was apparently exculpatory at the time it was destroyed. Indeed, the sample was inculpatory.⁴ The sample had tested positive twice for THC, showing both times that Weissinger had controlled substances in her blood at the time of the accident. Weissinger herself admits that the retest could only "hopefully find that the test of the blood was not correct." Because the evidence Weissinger sought was only "potentially useful" rather than apparently exculpatory, she would have to show that it was destroyed in bad faith. See Youngblood, 488 U.S. at 58. Weissinger makes no such assertion.⁵

Pre-existing Wisconsin Law on Destruction of Potentially Useful Evidence

¶ 14. Under Youngblood, Greenwold I, and Green-wold II, Weissinger has shown no due process violation. The Greenwold II court expressly rejected the argument that, in an evidence destruction case, the due process clause of the Wisconsin Constitution affords greater protection than that of the United States Constitution. Greenwold II, 189 Wis. 2d at 71. Weissinger does not argue otherwise. Nevertheless, we address Weissinger's other arguments based on Wisconsin's criminal discovery statute and pre-Youngblood/Greenwold cases.

¶ 15. Weissinger argues that, under preYoungbloodlGreenwold Wisconsin precedent, her due process rights were violated when the state lab destroyed the blood sample before she was charged. Although decided before the Youngblood analysis was set forth by the Supreme Court, in State v. Disch, 119 Wis. 2d 461, 478-79, 351 N.W.2d 492 (1984), and State v. Ehlen, 119 Wis. 2d 451, 456, 351 N.W.2d 503 (1984), the supreme court rejected the defendants' arguments that their due process rights were violated when the original blood samples were no longer available for retesting.⁶

Wisconsin Stat. § 971.23

¶ 16. First, the supreme court rejected an argument Weissinger makes here: that the blood sample— evidence that she hoped would aid in her defense — was destroyed in violation of her right under Wis. Stat. § 971.23(5) "to inspect and perform tests on any physical evidence the State had in its possession." Disch, 119 Wis. 2d 478-79. Section 971.23(5) provides that "the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes." While § 971.23(5) gives a defendant the right to inspect reports of the results of blood tests, it does not provide for inspection or testing if the blood itself is not going to be introduced into evidence. Disch, 119 Wis. 2d at 478-79. The Disch court held that no statute or case law required production of the sample, and consequently, "[n]o duty devolves upon the district attorney to preserve or maintain a quantity of a blood sample in order that a defendant may retest the blood." Id.; see also Ehlen, 119 Wis. 2d at 452-53 (a blood sample is not "evidence intended, required, or even susceptible of being produced by the state under the provisions of [§] 971.23(4) and (5) [(1979-80)]"). The blood sample itself was not subject to discovery under § 971.23(5).

Admissibility Under Wis. Stat. § 885.235

¶ 17. The Disch court also noted that blood test results for alcohol were statutorily admissible per se under Wis. Stat. § 885.235 (1979-80), and it would be error to exclude the results from evidence. Disch, 119 Wis. 2d at 473. The court held that the blood test was entitled to a prima facie presumption of accuracy. Id. at 475. The current version of § 885.235 also provides that chemical evidence of a detectable amount of a controlled substance in a person's blood is prima facie evidence in an action in which it is material to prove a detectable amount of a controlled substance in the defendant's blood. Sec. 885.235(1k). Under the comment to the corresponding jury instruction, the statute's definition that such evidence makes a prima facie case "strongly implies" that such evidence is admissible. Wis JI — Criminal 1266 at 6. Thus, the blood test results here were admissible under the statute whether or not Weissinger had an opportunity to conduct her own testing.

Ability to Challenge Testing Procedure as Due Process Safeguard

¶ 18. The Disch court went on to hold that due process is afforded by the disclosure of the blood test results and the right to cross-examine regarding the accuracy and credibility of the analysis. Disch, 119 Wis. 2d at 463, 477-79. The court further noted that a defendant's due process rights will be preserved by his or her opportunity to obtain additional tests at the time of the arrest. Id. at 462-63; see also Ehlen, 119 Wis. 2d at 452-53.

¶ 19. Weissinger was able to cross-examine persons in the chain of custody as well as persons involved in the testing of her blood sample. Additionally, the trial court allowed Weissinger to examine the State's witnesses regarding the destruction of the blood sample. Thus, the only difference between this case and Disch and Ehlen is that in those cases the defendants were arrested and advised of their ability to obtain further tests. See Wis. Stat. § 343.305(2)-(4). Weissinger was not under arrest, and thus the officer was under no obligation to advise her regarding additional tests. That factual difference does not compel a different result here. Youngblood, Greenwold I, and Greenwold II establish the test we must apply to determine whether there has been a due process violation by the destruction of evidence. Weissinger has not shown that the destroyed test was apparently exculpatory or that the test was destroyed in bad faith.

CONCLUSION

¶ 20. The dissent cites articles suggesting that laboratory results are not always reliable. Weissinger points to nothing to suggest that her test results were unreliable. If the general reliability of routine blood testing on samples that are likely to be outcome determinative is questionable, then the supreme court or the legislature is the proper body to address this issue. Justice Bablitch urged, in his concurrence in Ehlen, 119 Wis. 2d at 460 (Bablitch, J., concurring), the adoption of a requirement that the state preserve blood samples if the defendant establishes the materiality of the sample, opining that such a rule "is necessary both to fully safeguard the due process rights of defendants, and to promote the sound administration of the criminal justice system." We, however, are bound by the Wisconsin Supreme Court decisions in Disch and Ehlen, as well as the Youngblood standard adopted in Greenwold I and Greenwold II. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (court of appeals cannot modify supreme court holdings or overrule court of appeals precedent).

¶ 21. Weissinger maintains that her due process rights were violated when the State introduced test results from a blood sample that had been destroyed. Weissinger has not shown that the blood sample was apparently exculpatory and therefore has not shown a violation of due process. The trial court properly admitted the blood test results.

By the Court.

Judgment affirmed.

1 All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

2 Additional blood tests were done that detected the presence of oxycodone, fluoxetine and norfluoxetine, all at therapeutic levels. These drugs did not form the basis of the charges against Weissinger.

3 The dissent attempts to distinguish Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam), on the fact that Fischer had the opportunity to independently test the evidence but instead fled the state. The Fisher decision did not turn on these facts, but on whether the evidence had exculpatory value. See also, e.g., People v. Kizer, 851 N.E.2d 266, 269, 275 (Ill. App. Ct. 2006) (no due process violation where state destroyed blood evidence prior to filing of amended information); State v. Hawkinson, 829 N.W.2d 367, 370, 373 (Minn. 2013) (upholding conviction predicated on blood evidence that was destroyed after defendant had requested its preservation); Commonwealth v. Borovichka, 18 A.3d 1242, 1250-52 (Pa. Super. Ct. 2011) (no due process violation where inculpatory blood sample was destroyed prior to issuance of summons). The dissent also cites Justice Stevens' concurrence in Arizona v. Youngblood, 488 U.S. 51 (1988), but Justice Stevens' outcome-determinative approach was not adopted by the Youngblood majority or the Fisher majority. Fisher, 540 U.S. at 549 (Stevens, J., concurring). The dissent cites no post-Youngblood authority for the proposition that the destruction of inculpatory evidence prior to an opportunity to independently test is dispositive, nor any post-Greenwold Wisconsin authority. Compare State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), and State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (Gree n wold II), with State v. Amundson, 69 Wis. 2d 554, 577-78, 230 N.W.2d 775 (1975).

4 Evidence that has been tested by government agents and appears to be inculpatory is not apparently exculpatory. Elizabeth A. Bawden, Here Today, Gone Tomorrow — Three Common Mistakes Courts Make When Police Lose or Destroy Evidence With Apparent Exculpatory Value, 48 Clev. St. L. Rev. 335, 343 (2000). See also, e.g., Fisher, 540 U.S. at 548 ("[Plolice testing indicated that the chemical makeup of the substance inculpated, not exculpated, respondent. ..."); Kizer, 851 N.E.2d at 271-75 (destruction of blood samples prior to independent testing did not deprive defendant of due process); Hawkinson, 829 N.W.2d at 373 (destruction of sample that produced inculpatory results did not constitute denial of due process absent showing of bad faith); Harness v. State, 58 So.3d 1, 4-6 (Miss. 2011) (no due process violation in destruction of blood sample that had shown inculpatory test results four times; sample was not apparently exculpatory); State v. Hall, 768 P.2d 349, 350 (Nev. 1989) (no showing of bad faith where chemist disposed of inculpatory blood sample according to routine practice); Borovichka, 18 A.3d at 1250-52 (no due process violation where inculpatory blood sample was destroyed prior to issuance of summons); Jamie S. Gorelick et al., Destruction of Evidence § 6.8 (2014) (collecting cases holding that failure to preserve potentially useful evidence does not violate due process unless defendant shows it was destroyed in bad faith).

5 Weissinger's reliance on State v. Hahn, 132 Wis. 2d 351, 392 N.W.2d 464 (Ct. App. 1986), is misplaced. Hahn's theory of defense was that a mechanical defect in his truck, not his intoxication, caused the crash. Id. at 358-59. The truck had been dismantled by the time Hahn asked to inspect it. Id. at . Unlike Weissinger, however, Hahn had a witness who was able to testify that the truck had a defective steering mechanism. Id. at 359. Furthermore, the fact that the State impounded the truck showed that the State recognized its apparent exculpatory value. Id. at 360. More importantly, the Hahn court relied on California v. Trombetta, 467 U.S. 479 (1984), under which the defense had to show that the evidence might be expected to play a significant role in the defense. Trombetta, 467 U.S. at 488. The Trombetta rule was "refined" by Youngblood, 488 U.S. at 51. See Greenwold I, 181 Wis. 2d at 885 (noting Youngblood's refinement of Trombetta rule); Greenwold II, 189 Wis. 2d at 67 (noting Youngblood's departure from Trombetta).

6 In its due process analysis, the Disch court also focused on whether the defendant could show that the missing evidence was material at the time the defense requested it. State v. Disch, 119 Wis. 2d 461, 463, 468, 351 N.W.2d 492 (1984). We are to assess the constitutional materiality of the evidence in question at the time of its destruction. Trombetta, 467 U.S. at 489 ("[E]vidence must. . . possess an exculpatory value that was apparent before the evidence was destroyed ... .").