State v. Beavers

 (1988), the Supreme Court reviewed a case in which the state had failed

to properly preserve semen samples and clothing obtained from a child who

was the victim of a sexual assault. A police criminologist performed testing

on the evidence but was unable to identify the assailant.

 at 53–54,

.     Expert witnesses testified at trial that the

defendant might have been completely exonerated by timely performance of

tests on properly preserved semen samples.

Id. at 54

.   The defendant was convicted of child molestation, sexual

assault, and kidnapping.

Id. at 52

. The

Arizona Court of Appeals reversed the conviction on the ground that the state

had breached a constitutional duty to preserve the semen samples.


       The Supreme Court reversed, stating:

       The Due Process Clause of the Fourteenth Amendment, as
                                                                                         7

                 interpreted in Brady [v. Maryland,

373 U.S. 83

83 S.Ct. 1194

10 L.Ed.2d 215

 (1963)] makes the good or bad faith of the

                 State irrelevant when the State fails to disclose to the

                 defendant material exculpatory evidence. But we think the

                 Due Process Clause requires a different result when we deal

                 with the failure of the State to preserve evidentiary material of

                 which no more can be said than that it could have been

                 subjected to tests, the results of which might have exonerated

                 the defendant.

       Id. at 57,

. In that situation, the court held

       that “unless a criminal defendant can show bad faith on the part of the police,

       failure to preserve potentially useful evidence does not constitute a denial of

       due process of law.”

Id. at 58

. See also

       Illinois v. Fisher,

540 U.S. 544, 545

124 S.Ct. 1200

157 L.Ed.2d 1060


       (2004).

                 Youngblood made a clear distinction between materially exculpatory

       evidence and potentially useful evidence. “If the evidence in question is not

       materially exculpatory, but only potentially useful, the defendant must show

       bad faith on the part of the state in order to demonstrate a due process

       violation.”    State v. Geeslin,

116 Ohio St.3d 252

2007-Ohio-5239

878 N.E.2d 1

, ¶ 10.

(Footnote omitted.) Powell at ¶ 73-77.
[Cite as State v. Beavers,

2012-Ohio-6222

.]
        {¶ 12}     As stated above, the defendant generally bears the burden of establishing

that lost or destroyed evidence was materially exculpatory. E.g., Powell at ¶ 74, quoting

Trombetta,

467 U.S. 479

. However, several Ohio appellate districts have held that, when

the defendant specifically requests that certain evidence be preserved and that evidence is

subsequently destroyed or lost by the State, the burden shifts to the State to show that the

evidence was not materially exculpatory. E.g., Columbus v. Forest,

36 Ohio App.3d 169

522 N.E.2d 52

 (10th Dist.1987); State v. Benton,

136 Ohio App.3d 801

737 N.E.2d 1046


(6th Dist.2000). But see State v. Canter, 5th Dist. Fairfield No. 01 CA 51,

2002-Ohio-3473


(rejecting Forest).

        {¶ 13}     In concluding that Beavers’ due process rights had been violated, the trial

court followed Forest, a case decided after Trombetta, but prior to Youngblood. In Forest,

the Tenth District framed the issue before it as “the constitutional duty of the state to respond

to a criminal defendant’s discovery requests and the remedies available upon breach of that

duty.” Forest,

36 Ohio App.3d at 171

. The Forest court concluded that the Due Process

Clause places a duty upon the State to respond in good faith to a defense request to preserve

evidence.

Id. at 172

. The court noted that this duty was limited to a good faith response;

there was no attendant constitutional right to pretrial discovery or to have evidence

preserved, other than evidence which is apparently exculpatory and unique.

Id. at 173

.

        {¶ 14}     Under Forest, the remedy for the State’s breach of this duty was not

necessarily dismissal of the charges. Rather, where the State breaches its duty to respond in

good faith to a defense request to preserve evidence, “the appropriate remedy is to shift to

the state the burden of proof as to the exculpatory value of the evidence.”

 If the State

could not demonstrate that the destroyed evidence was not exculpatory, the defendant was
                                                                                           9

still required to show that the evidence could not be obtained through “alternate channels.”


       {¶ 15}   The trial court followed Forest based on dicta in State v. Kuralt, 2d Dist.

Montgomery No. 20532,

2005-Ohio-4529

, that placing “a burden on the State to show that

the destroyed evidence was not exculpatory … may be appropriate where the State

destroys evidence after Defendant has requested that it be preserved.” Kuralt at ¶ 26, citing

Forest. See also State v. Terry, 2d Dist. Greene No. 04 CA 63,

2004-Ohio-7257, ¶ 13

.

However, we have never adopted the approach taken in Forest, and we have expressly

declined to address it when no request to preserve the evidence was made prior to the

evidence’s destruction.   See Kuralt at ¶ 26; State v. Fuller, 2d Dist. Montgomery No.

18994, *3 (Apr. 26, 2002).

       {¶ 16}   With the issue now squarely before us, we decline to follow Forest. We

reach this conclusion for several reasons. First, we note that Forest was decided one year

prior to Youngblood and 19 years before the Ohio Supreme Court addressed the standard for

evidence that was lost or destroyed by the State in Geeslin. Although Forest ostensibly

interprets Trombetta, the Tenth District in Forest framed the issue differently than the

United States Supreme Court and established a constitutional duty “to respond in good faith

to a defense request to preserve evidence.” Forest,

36 Ohio App.3d at 172-173

522 N.E.2d 52

. That duty was neither addressed nor recognized in Trombetta.

       {¶ 17}   More significantly, the standard established in Trombetta and Youngblood

marks a clear distinction between materially exculpatory evidence and potentially useful

evidence and the State’s duties with respect to each category of evidence. The United
                                                                                           10

States Supreme Court recognized that materially exculpatory evidence was limited to

evidence where the exculpatory nature was apparent and the evidence was unique.

Trombetta at 489

, Powell at ¶ 74.

       {¶ 18}    Under Forest, in which the burden is shifted to the State to establish the

inculpatory nature of the destroyed or lost evidence, evidence that has been destroyed by the

State may be treated as exculpatory, even though the exculpatory nature was not apparent

prior to the evidence’s destruction.         Indeed, as the United States Supreme Court

commented, “[w]henever potentially exculpatory evidence is permanently lost, courts face

the treacherous task of divining the import of materials whose contents are unknown and,

very often, disputed.” Trombetta, 483 U.S. at 486. The fact that a defendant has previously

requested that an item be preserved suggests that the evidence may be potentially useful, but

it does not reasonably suggest that the evidence is exculpatory when the exculpatory nature

was not apparent prior to its destruction.

       {¶ 19} We further note that in Illinois v. Fisher,

540 U.S. 544

124 S.Ct. 1200

157 L.Ed.2d 1060

(2004), which is cited in Powell, the United States Supreme Court reaffirmed

the burden faced by defendants, even when the defendants had requested that the evidence

be preserved prior to its destruction. In Fisher, the defendant was charged with possession

of cocaine, and eight days later he filed a motion for discovery seeking all physical evidence

that the State of Illinois intended to use at trial. The State responded that all evidence

would be available, upon request, at a reasonable date and time. The defendant absconded

prior to trial. Eleven years later, while Fisher was a fugitive, the substance seized from the

defendant was destroyed in accordance with established procedures.
11

{¶ 20} Fisher moved to dismiss the charge due to the destruction of evidence.

The motion was denied, and the defendant was convicted after a jury trial. The appellate

court reversed, however, on the ground that the destruction of the evidence, after the request

to preserve it, violated the defendant’s right to due process, even though the State had not

acted in bad faith. The Illinois Supreme Court denied leave to appeal.

{¶ 21} The United State Supreme Court reversed, reasoning that the substance had

been tested and found to be cocaine, and, thus, it was not materially exculpatory. Rather,

the substance was “potentially useful evidence,” the destruction of which violates due

process only upon a showing of bad faith by the State. Although discussing potentially

useful evidence rather than materially exculpatory evidence, the Supreme Court discounted

the significance of a pending discovery request or the importance of the destroyed evidence

to the defense. It stated:

We have never held or suggested that the existence of a pending

discovery request eliminates the necessity of showing bad faith on the part of

police. Indeed, the result reached in this case demonstrates why such a per

se rule would negate the very reason we adopted the bad-faith requirement in

the first place: to “limi[t] the extent of the police’s obligation to preserve

evidence to reasonable grounds and confin[e] it to that class of cases where

the interests of justice most clearly require it.”

488 U.S., at 58