Three from the Second: Part I
There were a trio of decisions from the 2nd District in the past couple of weeks that merit some mention. I'll address one of them today.
Can the state prove a drug possession case if it no longer has the drugs? I'd think so; in fact, just the other week I did an appeal where the trial court had 29'd one of two possession counts because the state didn't introduce the drugs into evidence. The court comes to a different conclusion, though, in State v. Brown.
Actually, Brown addressed the issue only tangentially; the question there was whether the case had to be dismissed on due process grounds because the state had inadvertently destroyed the drugs. I wrote about this issue before in connection with destruction of the videotape of a DWI arrest, and the court here applied the same test. If the evidence is "materially exculpatory," its destruction requires dismissal, regardless of the circumstances under which the evidence was destroyed. But
when evidence is only potentially exculpatory, the destruction of such evidence does not deprive an accused of due process unless the police acted in bad faith when destroying the evidence.
The defense attorney tried to argue that the actual drugs would be useful at trial:
"So not just for the reasons that it's not available for independent testing, but what stands out the most for me is all my cross examination would be based on what that baggie looked like, what kind of package it was in, what the drugs looked like, and whether they were, in fact, truly visible or were found as a result of possible an illegal search. We didn't get that opportunity and don't have that opportunity."
Unfortunately, the court had already overruled a motion to suppress at this point, and so the legality of the search wasn't an issue at trial. The defense hadn't requested an independent examination of the drugs, and the lab report indicated the substance was cocaine. The court rightly concluded that meant the evidence wasn't inherently exculpatory, requiring proof of bad faith. Since the destruction was inadvertent, due process wasn't violated.
The court went a little overboard at the end, concluding that the "trial court erred in granting Defendant's motion to dismiss when the evidence was neither exculpatory nor potentially exculpatory." It didn't have to reach the latter question; as noted, even if the evidence had been potentially exculpatory, dismissal wouldn't have been justified because no bad faith was shown.
The court did address the issue of how the state could prove the crime without the drugs, but indicated that would be a jury question:
Ironically, the most significant exculpatory feature of the destroyed evidence is the very fact of its destruction. The State's error in destroying the evidence, which denies the jury an opportunity to see what it actually looks like, preponderates in the Defendant's favor. Whether the error is effectively exploited to his benefit can only be resolved by a trial of the possession of cocaine offense with which Defendant was charged.
I still had a problem getting my head around the idea that the state can prove a drug possession charge without the drugs, so I did some more digging. Apparently they can: I came across this 8th District decision from 2003 where something similar had happened. The defendant had been charged with possession in 1992, then went capias; by the time he was captured and the case resumed in 2002, the drugs had been destroyed. The court ruled the same way the 2nd District did in Brown: the evidence wasn't exculpatory, so the destruction didn't prejudice the defendant, and the case could proceed on the testimony and the lab report.
You learn something new every day.