Duty of Prosecution to Preserve Evidence in Washington Criminal Case

The Due Process Clause of the Fourteenth Amendment requires criminal defendants to have “a meaningful opportunity to present a complete defense.” The prosecution generally has a duty to preserve evidence, but it is not absolute. State v. Wittenbarger.   The state’s failure to preserve “material exculpatory evidence” generally requires dismissal, but a failure to preserve “potentially useful evidence only requires dismissal if the state acted in bad faith.  Potentially useful evidence is evidence that could have been subjected to tests which might have exonerated the defendant.  State v. Groth.

A Washington criminal defendant recently appealed his drug and gun-related convictions after the police department allowed the vehicle in which he was found to be towed from its lot.

According to the appeals court’s opinion, the defendant was arrested on a warrant after a police officer found him sleeping in a vehicle.  The officer testified that he found significant amounts of cash and drugs in the defendant’s pocket in a search incident to arrest.  The drugs subsequently tested positive for methamphetamine and fentanyl. The officer found paraphernalia, including a box of baking soda, in the car and a revolver in a bag in front of the driver’s seat.

The defendant was charged with possession of fentanyl with intent to manufacture or deliver while armed with a firearm, possession of methamphetamine with intent to manufacture or deliver while armed with a firearm, escape in the second degree, and unlawful possession of a firearm in the first degree.

The defendant moved to dismiss, arguing the police department let the car be declared abandoned and towed three days after his attorney requested discovery.  The trial court denied the motion.  The defendant was found guilty of all charges.  He appealed, arguing the court erred in denying his motion.

The defendant argued the vehicle was potentially useful evidence.  He noted that the vehicle was the crime scene and testing could have supported his argument that the baking soda had been used as a deodorizer in the car.  The appeals court agreed that testing the car could have resulted in some potentially exonerating evidence so the car was “potentially useful.”

The state argued the defendant had “comparable evidence,” such as witness testimony and photographs.

The appeals court noted that the test for potential usefulness did not consider whether the evidence was duplicative or whether the exclusion of the evidence would be prejudicial. It further pointed out, however, that the defendant had to show that the state acted in bad faith in failing to preserve the evidence.  The defendant needed to show improper motivation through “specific, nonconclusory factual allegations. . .” State v Armstrong.

The defendant based his argument on the fact the car had been towed three days after his attorney requested discovery.  The notice of appearance and request for discovery, however, were “generalized” and did not include a specific request regarding the car.

The Washington Supreme Court has held that bad faith is based on the police knowing the evidence’s exculpatory value when it was destroyed or lost.  State v. Armstrong.  There was nothing in the record showing the police department thought the car had exculpatory value after it was photographed. It was not registered in the defendant’s name and the property custodian contacted the apparent owner before releasing the vehicle.  The appeals court concluded the police department was at worst negligent or incompetent when it let the vehicle get towed after the defendant’s attorney filed a discovery request, but there was not evidence of bad faith.

The defendant also argued there was insufficient evidence to prove intent to deliver.

The officer testified there was enough methamphetamine in the vehicle for “28 different uses” and “more than a month’s supply” of fentanyl.  There was also other evidence found on the defendant and in the vehicle that were consistent with selling drugs, including the cash, baggies, rubber bands, and the firearm.  The appeals court concluded a rational juror could have concluded inferred an intent to deliver based on this evidence.

The defendant testified that the drugs belong to his son and the son’s girlfriend, that he did not intend to sell them, and he and his wife had earned the money by working.  The appeals court noted that the jury was responsible for resolving conflicts between the evidence and the defendant’s testimony and rejected the defendant’s argument there was insufficient evidence of intent.

The appeals court also rejected all of the issues raised in the defendant’s statement of additional grounds.

If you are facing criminal charges, an experienced Washington criminal defense attorney can work with you to identify evidence and seek its preservation.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation to discuss your case.


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