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06/22/95 PEOPLE STATE ILLINOIS v. CHARLES S.

June 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
CHARLES S. NEWBERRY, APPELLEE.



The Honorable Justice Harrison delivered the opinion of the court: Justice Miller, dissenting: Justice Freeman, also dissenting:

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

The issue in this case is whether a criminal defendant charged with unlawful possession of a controlled substance is entitled to have the charges dismissed if the State destroys the substance in question after defense counsel has made a discovery request for it in accordance with Supreme Court Rule 412 (134 Ill. 2d R. 412). For the reasons that follow, we hold that dismissal of the charges is mandated by due process and is an appropriate discovery sanction under Supreme Court Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)). We therefore affirm.

The defendant in this case is Charles Newberry. In January of 1991, police arrested Newberry and seized asubstance from him they believed to be cocaine. After a field test conducted by police was negative for the drug, the Kane County grand jury indicted him for unlawfully possessing a look-alike substance with intent to distribute (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1404(b) (now 720 ILCS 570/404(b) (West 1992))).

A subsequent laboratory test conducted approximately one month after Newberry's arrest reached a contrary result. It indicated that cocaine was present in the substance seized from him. When this happened, the grand jury returned new indictments, this time charging him with two counts of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401 (now 720 ILCS 570/401 (West 1992))) and one count of unlawful possession of a controlled substance without paying the requisite tax and affixing a tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160 (now 35 ILCS 520/10 (West 1992))). The grand jury later returned additional indictments charging Newberry with unlawful possession of a controlled substance with intent to deliver while on school property (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(1) (now 720 ILCS 570/407(b)(1) (West 1992))) and unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(b) (now 720 ILCS 570/402(b) (West 1992))).

Shortly after the grand jury returned its first set of new indictments, the circuit court granted a motion by the State to nol-pros the original charge of unlawful possession of a look-alike substance with intent to distribute. That charge was withdrawn, and only the controlled substance charges remained. In connection with those charges, Newberry's counsel promptly filed a written discovery motion pursuant to Supreme Court Rule 412 (134 Ill. 2d R. 412). Included in that motion was a request to examine all tangible objects that had been seized from Newberry.

The State's initial response to Newberry's request was routine. A year after the discovery motion was filed, however, the State served a supplemental response advising defense counsel that the substance police thought was cocaine had been destroyed. When a hearing was held on the matter, testimony showed that the party responsible for the destruction was a police department evidence technician. The technician had not destroyed the material because it was necessary to do so as part of the testing process, nor had he acted out of some malevolent purpose. Rather, he had gotten rid of it simply because a computer check showed that the look-alike drug charge had been nol-prossed. The technician mistakenly assumed that this action signaled the end of the case against Newberry and that the material was no longer needed. He did not realize that new charges had been filed involving the same evidence.

When defense counsel learned that the substance had been destroyed, he moved to dismiss the indictments against his client. In the alternative, he asked the court to bar the State from presenting any evidence of the results of the laboratory test of the substance. Following a hearing, the court granted the motion to dismiss, holding that the State's destruction of the substance following receipt of Newberry's discovery request constituted a denial of due process. The appellate court affirmed over the dissent of one justice (265 Ill. App. 3d 688). We then allowed the State's petition for leave to appeal (145 Ill. 2d R. 315).

Section 114-1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114-1(a) (now 725 ILCS 5/114-1(a) (West 1992))) enumerates the 11 basic grounds for which an indictment, information or complaint may be dismissed. Although none of those grounds are applicable here, a trial judge also has inherent authority to dismiss an indictment for reasons otherthan those listed in section 114-1(a). ( People v. Fassler (1992), 153 Ill. 2d 49, 58, 178 Ill. Dec. 782, 605 N.E.2d 576.) Specifically, the court may exercise such authority "'when failure to do so will effect a deprivation of due process or result in a miscarriage of justice.'" Fassler, 153 Ill. 2d at 58, quoting People v. Sears (1971), 49 Ill. 2d 14, 31, 273 N.E.2d 380.

In the case before us, Newberry asserted, and the circuit and appellate courts agreed, that the destruction of the disputed substance following his discovery request constituted a due process violation. Although the State does not dispute that the failure by police to preserve evidence may violate due process (see People v. Ward (1992), 154 Ill. 2d 272, 297-99, 181 Ill. Dec. 884, 609 N.E.2d 252), it argues that under Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, the destruction of evidence rises to the level of a due process violation only where a defendant can show that the police officers responsible for the destruction acted in bad faith. Because the police evidence technician here simply made a mistake when he discarded the disputed substance and did not act in bad faith, the State reasons that the failure to preserve the evidence cannot justify dismissal of the grand jury's indictments on due process grounds.

In Youngblood, the defendant, who was charged with child molestation, sexual assault, and kidnapping, claimed that his due process rights were violated because the State failed to promptly test samples found on the victim's clothing or to properly refrigerate the clothing so that it could be properly tested later. In rejecting this claim, the United States Supreme Court held, as it had in the past, that the good or bad faith of the State is irrelevant when the State fails to disclose to the defendant exculpatory evidence that is material. The Court concluded, however, that the due process clause requires a different result when no more could be said of the evidence "than that it could have beensubjected to tests, the results of which might have exonerated the defendant." ( Youngblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.) According to the Court, police do not have "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, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.) Where the evidentiary material is only "potentially useful," the failure to preserve that material does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the police. Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

Youngblood is distinguishable from the case before us today. In Youngblood, the disputed material was not essential for establishing the defendant's guilt or innocence. Its value was speculative, and it played no role in the prosecution's case. Because there was no bad faith on the part of the police, the defendant's due process challenge to his conviction was therefore denied. The situation in this case is markedly different. Here, the evidence in question is more than just "potentially useful." It is essential to and determinative of the outcome of the case. Newberry cannot be convicted of the drug possession charges absent proof of the content of the disputed substance, nor does he have any realistic hope of exonerating himself absent the opportunity to have it examined by his own experts.

In an effort to minimize the prejudice to Newberry's defense, the State wrongly asserts that the discarded substance here is no different than the breath sample that the police failed to preserve in California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528. In Trombetta, defendants charged with driving under the influence of intoxicating liquor unsuccessfully sought suppression of breath-analysis test results on thegrounds that the police failed to preserve the breath samples, thereby limiting the defendants' ability to challenge the incriminating test results. The State appellate court set aside their convictions, holding that due process demanded that the arresting officers preserve the breath samples, but the United States Supreme Court reversed. The Court reasoned that due process was not violated because the police had acted in good faith and in accord with normal procedures when they failed to preserve the samples, and the testing device's high degree of accuracy made it extremely unlikely that further testing of the samples would have helped the defense. ( Trombetta, 467 U.S. at 488-89, 81 L. Ed. 2d at 422, 104 S. Ct. at 2534.) The Court further noted that the defendants were not without alternative means of demonstrating their innocence. Trombetta, 467 U.S. at 490, 81 L. Ed. 2d at 423, 104 S. Ct. at 2534.

Here, by contrast, nothing in the record indicates that the laboratory procedures used to test the substance were especially reliable or that further testing would not have yielded different and more favorable results for Newberry. In addition, Newberry lacked alternative means for showing that he was not guilty. He could not "obtain comparable evidence by other reasonably available means." ( Trombetta, 467 U.S. at 489, 81 L. Ed. 2d at 422, 104 S. Ct. at 2534.) The sole basis for bringing criminal charges against Newberry was the chemical content of the substance seized by the police, and when that substance was discarded, it was lost to Newberry forever. It is now impossible for him to "meet or dispute the test results by evidence of equal integrity and persuasiveness." See People v. Taylor (1977), 54 Ill. App. 3d 454, 458, 12 Ill. Dec. 76, 369 N.E.2d 573.

The State asserts that Newberry is not without recourse because he can still assail the State's test results by introducing the conflicting field test results and bycross-examining the State's experts about the procedures they followed. While these opportunities may exist, the relief they offer is illusory. Whatever the actual reliability of the tests performed in the lab -- and the reliability may not be great (see Taylor, 54 Ill. App. 3d at 456) -- the laboratory analysis of the evidence will carry great weight with the jury (see Taylor, 54 Ill. App. 3d at 458), and the jury will undoubtedly give such an analysis more deference than the initial field test procedures, which are inherently less precise and controlled.

Wholly aside from these considerations, there is a fundamental distinction between this case and those decisions cited by the State requiring a showing that the police acted in bad faith. Here, unlike Youngblood and Trombetta, the police destroyed the disputed substance after defense counsel had requested access to it in his discovery motion. Where evidence is requested by the defense in a discovery motion, the State is on notice that the evidence must be preserved, and the defense is not required to make an independent showing that the evidence has exculpatory value in order to establish a due process violation. (See People v. Sleboda (1988), 166 Ill. App. 3d 42, 53, 116 Ill. Dec. 620, 519 N.E.2d 512.) If the State proceeds to destroy the evidence, appropriate sanctions may be imposed even if the destruction is inadvertent. No showing of bad faith is necessary. ( People v. Koutsakis (1993), 255 Ill. App. 3d 306, 312, 194 Ill. Dec. 272, 627 N.E.2d 388.) The appellate court was therefore correct in affirming the circuit court's judgment dismissing the indictments against Newberry here.

Although the appellate court did not address the issue, we note, in closing, that the circuit court's dismissal of the indictments can also be sustained as a proper discovery sanction under our Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)), independent of any due process considerations. Rule 415(g)(i) confers broad power on the trial court to impose sanctions where, as here, the State failsto comply with its discovery obligations. Where evidence has been destroyed following a defense request under Rule 412 (134 Ill. 2d R. 412), no showing of bad faith by the State is required in order for the trial court to act. The correct sanction is a decision appropriately left to the discretion of the trial court, and its judgment is entitled to great weight. (See Koutsakis, 255 Ill. App. 3d at 312.) Considering the pivotal nature of the evidence at issue in this case, we cannot say that the trial court abused its discretion in dismissing the indictments when it learned that the State had destroyed the material following receipt of the discovery motion filed by Newberry's lawyer.

For the foregoing reasons, the judgment of the appellate court is affirmed.

Affirmed.

The Honorable Justice MILLER, dissenting:

I do not agree with the majority's conclusion that the failure of authorities to preserve certain evidence denied the defendant due process. Unlike the majority, I believe that the present case is controlled, as a matter of Federal constitutional law, by the United States Supreme Court's decisions in Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, and California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528. In accordance with those authorities, I would reverse the judgments of the courts below and allow the present prosecution to go forward.

In Trombetta, the Court held that the State was not required to preserve, for possible future testing by the defense, breath samples taken of allegedly intoxicated drivers. In Youngblood, a prosecution for child molestation, sexual assault, and kidnapping, the Court held that authorities had no duty to preserve semen samples in a manner that would have enabled the defense to have them tested. The majority opinion seeks to distinguishYoungblood and Trombetta on several grounds, but none of the reasons cited by the court are persuasive.

The majority begins by asserting that the evidence at issue in Youngblood "was not essential for establishing the defendant's guilt or innocence" (slip op. at 4), while declaring that the evidence at issue here was central to the prosecution's case against the defendant. The majority also maintains that the defendant lacked alternative means of contesting his guilt once the evidence was destroyed and, further, that there is nothing to show that the tests performed by the State prior to the destruction of the evidence were particularly reliable. Slip op. at 5.

I do not agree that the holding in Youngblood is limited to marginal evidence, or to cases in which a defendant possesses alternative means of countering the evidence of guilt, or to circumstances in which the accuracy of scientific tests ...


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