Destruction of Blood Exemplar After Defense Demand to Preserve it Does Not, Alone, Support Suppression of Evidence of Testing of That Exemplar

State v. Hawkinson, Minn.S.Ct., 4/24/2013.  This case comes up from the court of appeals, read here, and asks whether the trial court can properly exclude alcohol content test results for the sole reason that the exemplar is destroyed after the defense files a demand to preserve it.  The short answer is, no.

The court of appeals had concluded that the destruction of the exemplar following a defense demand to preserve it was a due process violation that did not require a showing of bad faith.  Justice Paul Anderson, writing for a six member court, disagrees.  If the destroyed exemplar has apparent and material exculpatory value then its destruction violates due process, regardless of bad faith.  That’s a Brady v. Maryland, 373 U.S. 83 (1963) violation.  If not, then Mr. Hawkinson still has to establish, notwithstanding the preservation demand,  that the “potentially useful evidence” was destroyed in bad faith.  The court concludes that the exemplar does not qualify as Brady” material.  As to bad faith, the court concludes that the state had not destroyed the exemplar so as to hide favorable evidence; and that because the destruction had occurred in accordance with the applicable retention policy and schedule, there was no bad faith.  That the destruction occurred following Mr. Hawkinson’s demand to preserve it does not, by itself, relieve Mr. Hawkinson of showing bad faith.  Rather, that demand is but an additional factor to consider in the bad faith determination. 

When the court looked at the preservation demand, it turned out that the destruction was all Mr. Hawkinson’s fault.  His demand was too vague: he requested that the “blood tests” be preserved; the court could not decide whether this was a request for just the test or also the exemplar.  His demand did not specify the date of the exemplar (was there more than one?).  Next, the demand was “in a long string of boilerplate requests, many of which were inapplicable to this case.”  Next, Mr. Hawkinson’s attorney took no further action to preserve the exemplar after being notified that it was to be destroyed twelve months hence.  Last, counsel conceded that he had no intention to use or retest the exemplar.

Mr. Hawkinson also made a Crawford confrontation claim, which the court rather summarily dismisses.  After, the right of confrontation is the ability to cross examine witnesses, not go over to the evidence room and rummage through exemplars and other physical items. 

His last challenge invoked the discovery rules of criminal procedure.  While it’s correct that in gross misdemeanor and felony cases the state must allow defendants to conduct their own “reasonable” testing of physical evidence, Minn.R.Crim.R. 9.01, subd. 1(4)(b), that obligation does not extend to misdemeanors.  Rule 9.04 only obligates the state to allow a defendant who is charged with a misdemeanor to inspect the police investigatory reports and Brady material.  Any other disclosure has to be by motion to the court.   The charges against Mr. Hawkinson were misdemeanors, and he did not seek a court order for additional discovery.  (Apparently, his demand of the state did not count.)  In essence, the court does not say what, if any, remedy under the rules may be available in gross misdemeanor and felony cases.  It seems unlikely, however, that the court would apply the rules in isolation from the due process analysis the court utilizes here.