State v. Ortiz

Johnson, J.

(dissenting) — This case presents a question of first impression: In deciding whether a criminal defendant's rights to due process and a fair trial are violated when the government fails to preserve potentially exculpatory evidence, should we follow the Supreme Court's analysis of the federal constitution in Arizona v. Youngblood, 488 U.S. 51 , *316 102 L. Ed. 2d 281 , 109 S. Ct. 333 (1988), or should we instead expressly adopt an independent interpretation of Washington's state constitution and apply the more protective analysis this court previously developed in State v. Vaster, 99 Wn.2d 44 , 659 P.2d 528 (1983)? Once the proper test is determined, we must then decide if Mario Ortiz's rights to due process and a fair trial were violated.

The majority rejects an independent state constitutional analysis and finds no violation of the defendant's constitutional rights. I disagree with the majority on both points. I would expressly adopt Vaster as an interpretation of the state constitution and would conclude the State violated Ortiz's constitutional rights.

I

At issue here is a criminal defendant's constitutional due process right to a fair trial. See Vaster, at 54. In 1983, this court set forth the proper test for evaluating the due process implications of the State's failure to preserve potentially exculpatory evidence. State v. Vaster, supra. Under that test, the court examines first the likelihood that the destroyed evidence would have been exculpatory to the defendant. If a review of all the circumstances reveals a "reasonable possibility" that the evidence would have been exculpatory, then the court weighs that possibility against the State's ability to preserve that evidence. Vaster , at 52. These principles fully account for the competing interests of the defendant and the State.

The majority, however, applies the analysis developed by the Supreme Court in Youngblood. Youngblood, decided 5 years after Vaster , holds that due process is violated only if the defendant shows that the State's failure to preserve potentially exculpatory evidence was an act of bad faith. Youngblood , at 58. The Court thereby entirely eliminated from the previously well-accepted analysis the materiality of the destroyed evidence and its effect on the defendant's *317 ability to present a case. Under Youngblood , even if the State's case against the accused hinges almost entirely on the destroyed evidence, and even if the evidence is likely to exonerate the defendant, the due process clause of the United States Constitution is not violated unless the defendant can show bad faith.

This standard defies logic. We recognized as much in 1976 when we unanimously rejected the same bad faith standard that was eventually adopted by the Court in Youngblood :

[I]n destruction of evidence cases, as in true suppression cases to which they are closely analogous, the motive of those destroying the items is not determinative. The purpose of the duty of preservation is not to punish the police, but to insure a fair trial for the accused.

State v. Wright, 87 Wn.2d 783, 791 , 557 P.2d 1 (1976).

Simply put, "the absence of bad faith does not end the analysis", for "police actions taken in bad faith are not the only species of police conduct that can result in a violation of due process". Youngblood , at 65-66 (Blackmon, J., dissenting). Rather, the proper analysis is to determine whether the destroyed evidence was "so critical to the defense as to make a criminal trial fundamentally unfair". Youngblood , at 61 (Stevens, J., concurring). By eliminating this crucial element of the analysis, Youngblood transforms the constitutional right to a fair trial into nothing more than a " 'good faith' try at a fair trial". Youngblood , at 61 (Blackmun, J., dissenting).

Nor is this the only problematic aspect of Youngblood . It places defendants in the nearly impossible position of having to prove the Státe's failure to preserve evidence was an act of bad faith. See Youngblood, at 69; State v. Richard, 798 S.W.2d 468, 471 (Mo. Ct. App. 1990). All of the facts are in the State's possession, not the defendant's, yet the defendant must prove not only what happened to the evidence but also what motivated the governmental agents. The severity of this burden renders the protections of due process all but illusory.

*318 Additionally, Youngblood's apparent goal of establishing a bright-line rule will likely not be realized:

Apart from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between "good faith" and "bad faith" is anything but bright, and the majority's formulation may well create more questions than it answers. What constitutes bad faith for these purposes? Does a defendant have to show actual malice, or would recklessness, or the deliberate failure to establish standards for maintaining and preserving evidence, be sufficient? Does "good faith pohce work" require a certain minimum of diligence, or will a lazy officer, who does not walk the few extra steps to the evidence refrigerator, be considered to be acting in good faith? While the majority leaves these questions for another day, its quick embrace of a bad-faith standard has not brightened the line; it only has moved the line so as to provide fewer protections for criminal defendants.

Youngblood , at 66-67 (Blackmun, J., dissenting).

Youngblood's thesis is clear — fundamental fairness in a criminal trial matters less than administrative convenience to the State. I cannot agree.

II

We should not analyze this case under Youngblood's interpretation of the federal constitution. We are committed to deciding questions of state constitutional law first, before addressing the federal constitution, in order to determine if the state constitution provides greater rights. See Seattle v. Mesiani, 110 Wn.2d 454, 456 , 755 P.2d 775 (1988); O'Day v. King Cy., 109 Wn.2d 796, 801-02 , 749 P.2d 142 (1988). The state constitution should control this case.

Vaster's analysis is phrased only in general terms of due process; its language does not indicate whether it is interpreting due process under the state constitution or under the federal constitution. For the sake of maintaining continuity in the law of this State, this court should interpret Vaster s ambiguous language as representing analysis of the state constitution. Thus, Youngblood would not require this court to abandon Vaster .

My dissent, however, does not depend on this interpretation of Vaster . Even if one accepts the majority's characteri *319 zation of Vaster as representing an interpretation of federal law, it still leaves open the question of the proper interpretation under the state constitution. This question was left unanswered in two recent cases. See State v. Lord, 117 Wn.2d 829 , 867 n.9, 822 P.2d 177 (1991); State v. Straka, 116 Wn.2d 859, 883 , 810 P.2d 888 (1991).

State constitutional analysis begins with analysis of the factors set out in State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 , 76 A.L.R.4th 517 (1986), to determine what an independent interpretation of the state constitution will yield. The nonexclusive Gunwall factors include: (1) the textual language of the state constitution; (2) significant differences in the texts of the parallel provisions; (3) state constitutional and common law history; (4) preexisting state law; (5) structural differences between the federal and state constitutions; and (6) matters of particular state interest and local concern. Gunwall, at 61-62.

The state constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law." Const. art. 1, § 3. This language is similar to that contained in the federal constitution. 7 This similarity, however, does not preclude independent interpretation. Even identical provisions should be viewed in light of what the language meant to the framers at the time our constitution was adopted in 1889. They should be interpreted independently unless historical evidence shows the framers intended otherwise. See Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 , 514-16 (1984). The parties have not presented any historical evidence on this point. Thus, the first three factors suggest independent interpretation.

The fourth Gunwall factor, preexisting state law, provides crucial support to this conclusion. Washington courts have *320 already held that the state due process clause is subject to a broader interpretation than the federal clause. See State v. Bartholomew, 101 Wn.2d 631, 639-44 , 683 P.2d 1079 (1984); State v. Davis, 38 Wn. App. 600, 604-06 , 686 P.2d 1143 (1984). Additionally, in the very area of law that is raised in this case — due process violations arising from the State's failure to preserve potentially exculpatory evidence — we long ago rejected the bad faith test established in Youngblood. Wright, at 791-92. We have instead developed a test that depends primarily on the materiality of the lost evidence and the effect that its loss has on the fairness of the trial. Vaster , at 52; Wright , at 792. Preexisting law strongly favors an independent interpretation of the state due process clause.

The fifth and sixth factors also point to independent interpretation. Structurally, the federal constitution represents a grant of power from the states, while the state constitution represents a limitation of the State's power. Gunwall, at 66. This difference always supports independent analysis of the state constitution. State v. Smith, 117 Wn.2d 263, 286 , 814 P.2d 652 (1991) (Utter, J., concurring); Gunwall, at 62, 66. Finally, state law enforcement is a matter of local concern; national uniformity is not needed on this issue. Cf. State v. Schaaf, 109 Wn.2d 1, 16 , 743 P.2d 240 (1987) (concluding there is no need for national uniformity regarding juvenile justice systems).

The Gunwall analysis therefore supports independent interpretation of our own due process clause. We should interpret that clause by using the analysis adopted in Vaster . In so doing we would retain a defensible and principled meaning to an interpretation of due process we have adopted as persuasive. In retaining Vaster as a matter of state constitutional law, we would also be following an approach well accepted in this state. Washington courts have on numerous occasions declined to follow the Supreme Court's overturning of a principle of federal constitutional law, choosing instead to retain the principle as a matter of *321 state constitutional law. See State v. Jackson, 102 Wn.2d 432 , 688 P.2d 136 (1984); State v. White, 97 Wn.2d 92 , 640 P.2d 1061 (1982); State v. Davis, supra.

Moreover, retaining the Vaster test would also be consistent with the approaches taken by other states which have addressed the applicability of state constitutional analysis in this area. For example, when Youngblood was remanded to the Arizona state courts for further proceedings, the Arizona appellate court rejected Youngblood's federal analysis, and instead applied a test similar to Vaster s as an independent interpretation of the Arizona State Constitution. See State v. Youngblood, 164 Ariz. 61 , 790 P.2d 759 (Ct. App. 1989), review granted in part, denied in part (May 24, 1990). Arizona's due process clause is identical to Washington's. See Ariz. Const. art. 2, § 4. Delaware has adopted the same approach. See Hammond v. State, 569 A.2d 81 (Del. 1989). We should follow suit.

Finally, if nothing else, the Supreme Court's decision in Youngblood should be distinguished from the present case. In Youngblood, the court instructed the jury that "[i]f you find that the State has . . . allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State's interest." Youngblood, at 59-60 (Stevens, J., concurring). When such an instruction is given, but the jury still returns a guilty verdict, an appellate court has a basis for concluding that the jury considered the evidence to be so overwhelming that the lost evidence was unlikely to be exculpatory. See Youngblood, at 60 (Stevens, J., concurring). No such instruction was given in the present case. For this reason, we have no way of knowing whether the jury consciously rejected the permissible inference or whether instead the jury felt bound to disregard the evidence. Youngblood should not be applied absent a proper jury instruction.

Ill

If Vaster is the proper test, then I would find Ortiz's due process rights were violated in this case.

*322 Vaster requires us to first determine if there was a reasonable possibility that the evidence would have been exculpatory. In doing so, we examine both the probability that the deteriorated evidence itself would have been exculpatory and the weight of the other evidence against the defendant. Vaster , at 52-53. If the admissible evidence strongly indicates guilt, then the deteriorated evidence was not likely to have been exculpatory. Vaster , at 53.

Here, the trial judge concluded there was a reasonable possibility that analysis of the vaginal samples would have exculpated Ortiz if the samples had not been allowed to deteriorate. Solid evidence supported this conclusion. As to the samples themselves, a 55 to 60 percent chance existed that the testing of the vaginal samples would have revealed blood characteristics other than Ortiz's. In Vaster , we stated that even a 12 percent chance that testing would have yielded exculpatory results can amount to a "reasonable possibility", depending on the strength of the other evidence. Vaster , at 53.

The other admissible evidence in this case did not strongly support the guilty verdict. In fact, the trial judge concluded that the admissible evidence here was circumstantial and susceptible to a difference of opinion among reasonable people. The State's case involved primarily analysis of evidence left at the scene. Brief of Respondent, at 43. Each piece of this analysis was open to considerable dispute. The State analyzed hair follicles found at the scene of the crime and concluded that one hair could have been Ortiz's. A defense expert, however, looked at the same evidence and concluded that "very possibly and probably" someone other than Ortiz was the assailant. The State argued that footprints in the victim's blood were consistent with shoes owned by Ortiz, but the defense showed that nothing about the footprints pointed specifically to Ortiz's shoes; rather, the evidence showed only that they were made by similar shoes — which can be purchased at Kmart and possibly other places — with a similarly standard pattern of wear. The State also found *323 significant that the assailant left a track leading toward Ortiz's subdivision, but that subdivision contained perhaps 40 or 50 other houses, and there was no evidence where the assailant went after nearing the subdivision.

The State presented evidence that Ortiz told the police: "I didn't want to screw the old woman. She wanted to screw me." The State never showed, however, that this statement was made in reference to Fannie Slotemaker. Indeed, the circumstances surrounding the statement and Ortiz's mental condition suggest otherwise. Ortiz made this comment after he had just been arrested, not for the Slotemaker murder, but for an entirely unrelated crime. He was being arrested for allegedly trespassing on the property of a different woman living in another city. While he was being transported to the police station, and in the midst of proclaiming his innocence to the arresting officer, who was not even aware of the Slotemaker killing, Ortiz made the statement referred to above. The context of the statement therefore does not suggest that he was referring to Fannie Slotemaker.

Adding to the ambiguity of the statement is Ortiz's limited mental capacity. The record reflects that Ortiz has the communication skills of a preschool-aged child, his functioning overall is that of a preschool or elementary school-aged child, and his thinking is dominated by fantasy. He frequently confuses recent events with past events and mistakes fantasy for reality. Especially when Ortiz does not understand what is going on around him, as certainly must have been the case here, he responds with talk filled with imagination and fantasy. Given this tendency, it is difficult to say with any certainty that Ortiz's statement about sexual desires was a reference to Fannie Slotemaker, or whether instead Ortiz was talking about imagined aspects of the trespassing incident or about other real or imagined events. Therefore, the statement, like the rest of the State's circumstantial evidence, is open to differing interpretations by reasonable people.

*324 The record thus bears out the trial judge's assessment of the relative weakness of the State's case. Because there was, at the very least, a "reasonable possibility" that the vaginal samples would have proven exculpatory, we should next weigh that possibility against the State's ability to have preserved it:

[We] must balance the consideration of "reasonableness" against the ability of the prosecution to have preserved the evidence. Further, in determining the appropriate sanction, a court should consider procedures established for preserving evidence, the nature of the lost evidence, and the circumstances surrounding its loss.

Vaster , at 52.

Here, the State had every ability to preserve the vaginal samples. When the samples were first taken, they were in a condition to be tested for blood types. The samples were frozen and sent to the Federal Bureau of Investigation Laboratory in Washington, D.C., by parcel post registered mail. The samples took 3 or 4 days to arrive at the laboratory, where a serologist noticed that the evidence had thawed during transit. He then refrigerated the samples, but did not dry or freeze them. Finally, 2 months after the samples were taken, laboratory personnel tried to test the samples. They found that the samples had putrefied due to bacterial growth — which occurs during warm, moist conditions — and thus could no longer be reliably tested. The more time that passes before a sample is tested, the greater the chance of contamination. Therefore, the 3 or 4 days of thawing and the 2-month delay in testing each played major roles in the deterioration of the evidence.

Although the State's agents were acting pursuant to their usual procedures during much of this time, it is difficult to understand why critical evidence would be submitted to such sloppy procedures. The evidence was not placed in dry ice for transit; it was not sent by overnight express; it was not dried out or refrozen after it had thawed; and even after all this, testing was not attempted until after 2 months had *325 passed. In light of these circumstances, and given the strong showing of the exculpatory value of the vaginal samples, I would hold that the proper sanction in this case is reversal.

In summary, I would apply Vaster as a matter of state constitutional law. Under that test, the State violated Ortiz's due process right to a fair trial. The conviction should be reversed and the charge dismissed.

Dore, C.J., and Utter, J., concur with Johnson, J.

See U.S. Const. amend. 5 ("No person shall be . . . deprived of life, liberty, or property, without due process of law..."); U.S. Const. amend. 14, § 1 ("No state shall . . . deprive any person of life, liberty, or property, without due process of law . . .").