Appeal from the Circuit Court, of Kane County. Honorable T. Jordan Gallagher, Judge, Presiding. No. 07--CF--745
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the opinion of the court: An indictment charged defendant, Carl Voltaire, with unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2006)) and unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2006)). Sometime during the lengthy pretrial delays, the parties learned that the substance in question had been destroyed. Defendant moved to dismiss the charges, arguing that the destruction of the substance deprived him of due process. The trial court granted the motion. The State appeals, contending that under Illinois v. Fisher, 540 U.S. 544, 157 L. Ed. 2d 1060, 124 S. Ct. 1200 (2004), the inadvertent destruction of the evidence did not deprive defendant of due process. We reverse and remand.
Defendant was indicted in March 2007. Shortly thereafter, defense counsel filed a standard discovery request seeking, among other things, any "books, papers, documents, photographs or tangible objects" that the State intended to use at trial. Laboratory reports were tendered in September 2007. Sometime in 2008, defendant obtained new counsel.
In June 2009, the prosecution filed its discovery response, disclosing for the first time that the evidence, including the alleged controlled substance, had been inadvertently destroyed when a co-defendant's case was concluded. Defendant moved to dismiss the charges on due process grounds. He argued that People v. Newberry, 166 Ill. 2d 310 (1995), mandated dismissal of charges where the State destroyed evidence that was "outcome-determinative," even where the destruction was in good faith. The State responded that Newberry was based on federal due process grounds and that Fisher superseded Newberry's due process analysis.
The trial court dismissed the charges, holding that it was bound by Newberry. The State timely appeals.
In this court, the State renews its argument that Fisher implicitly overruled Newberry and that, under Fisher, no due process violation occurred. Defendant responds that Fisher declined to expressly overrule Newberry, that Newberry had an adequate state-law basis for its holding, and that, in any event, the Illinois Supreme Court does not invariably follow lockstep with the United States Supreme Court on federal constitutional questions.
The issue thus is whether Fisher or Newberry governs. To fully understand this issue, we review a quartet of cases involving a state's destruction of evidence prior to trial. In California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984), defendants charged with driving under the influence unsuccessfully sought to suppress breath-analysis test results on the ground 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 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.
In Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), the defendant, who was charged with child molestation, sexual assault, and kidnaping, 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 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 been subjected 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.
Newberry held that the case was "markedly different" from Youngblood. Newberry, 166 Ill. 2d at 315. The evidence in Newberry was more than just " 'potentially useful' "; it was outcome- determinative. Newberry, 166 Ill. 2d at 315. Moreover, the defendant had no "realistic hope of exonerating himself absent the opportunity to have [the evidence] examined by his own experts." Newberry, 166 Ill. 2d at 315. Thus, dismissal of the charges was the only appropriate remedy, even though there was no evidence of the State's bad faith. Newberry, 166 Ill. 2d at 317.
In Fisher, the defendant was charged with cocaine possession. He skipped bail and remained a fugitive for 10 years. By the time he returned, the alleged cocaine had been destroyed. However, lab tests had concluded that it was, in fact, cocaine. The trial court dismissed the charge on due process grounds and the appellate court, citing Newberry, affirmed. See Fisher, 540 U.S. at 546-47, 157 L. Ed. 2d at 1065, 124 S. Ct. at 1201. The supreme court denied leave to appeal but the Supreme Court granted certiorari and reversed.
The Court held that the "substance seized from respondent was plainly the sort of 'potentially useful evidence' referred to in Youngblood ***. At most, respondent could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him." (Emphasis in original.) Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202. The Court further held that Youngblood applies even where the evidence offers a defendant's sole hope for exoneration and is essentially outcome-determinative. Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202.
In the present case, defendant did not argue nor did the trial court find that the evidence was exculpatory. While defendant argued that the police acted in bad faith, the trial court specifically found that there was no indication of bad faith on anyone's part. On appeal, defendant does not contest this finding or argue bad faith as an alternative basis for us to affirm. We see no reason to disturb the trial court's finding on this point.
The court below simply applied Newberry's outcome-determinative test in finding a due process violation. Therefore, if we follow Fisher, as the State urges, we are bound to reversethetrial court's ruling as a matter of law. See People v. Blaylock, 311 Ill. App. 3d 399, 404 (2000) (finding that the standard of review regarding a court's ruling on a motion to dismiss an indictment on ...