Petition for Writ of Certiorari — Alabama v. Gingo

92-63 4

NO.

IN THE SUPREME COURT OF THE ™ |

UNITED STATES

OCTOBER TERM, 1992

STATE OF ALABAMA,

PETITIONER,

Vv.

MCRAY GINGO, and

ATLAS INDUSTRIAL PAINTERS, INC.,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

PETITION OF THE STATE OF ALABAMA

OF

JAMES H. EVANS

ATTORNEY GENERAL

AND

WILLIAM DUNCAN LITTLE, III*

ROBERT DOUGLAS TAMBLING

ASSISTANT ATTORNEYS GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

*COUNSEL OF RECORD

Il.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE DECISION OF THE

SUPREME COURT OF ALABAMA

CREATING AN EXCEPTION TO THE

DOCTRINE OF ARIZONA v. YOUNGELOOD

IS CONTRARY TO CALIFORNIA v.

TROMBETTA AND TO THE APPLI-

CATION OF BOTH YOUNGBLOOD AND

TROMBETTA BY THE COURTS OF

VARIOUS JURISDICTIONS?

WHETHER THE DECISION OF THE

SUPREME COURT OF ALABAMA

REGARDING THE DESTRUCTION OF

EVIDENCE IN THE HANDS OF A

SEPARATE GOVERNMENT CONFLICTS

WITH THOSE OF OTHER JURIS-

DICTIONS ON THIS QUESTION?

TABLE OF AUTHORITIES

CASES PAGES

Arizona v. Youngblood,

468 U.B.s Gi CRBS) «oan cece viass passim

California v. Trombetta,

Tle fae eee ee passim

Commonwealth v. Dennis,

S588 A.2d 30 (Pa. 1991)......0-- 17

Ex parte McRay Gingo,

No. 1910360 (Ala.

peeks 12, SOUR is eee 13, 19

State v. Mabe,

412 &S.86.26@ 386 (6.C. 1991).«.. i?

Thor v. United States,

974 F.2G 215 (Sth Cir. 2978)... 20

United States v. Belden,

957 F.2d 671 (9th Cir. 1992),

cert. denied, 425 U.S. 970

LD TGs obs 66 o 06s ee ee bees ene eee ee io

United States v. Bermudez,

526 F.2d 89 (2nd Cir. 1975).... 20

United States v. Donaldson,

915 F.2d 612 (10th Cir. 1990).. 16

United States v. Harris,

738 F.2d 1068 (9th Cir. 1984),

cert. denied, 484 U.S. 832

tL) er rere eS 19

United States v. Malbrough,

922 F.2d 458 (8th Cir. 1990),

cert. denied, 111 S.Ct. 2907

(2098) 6.0054kdsssee 16

TABLE OF AUTHORITIES (CONTINUED)

PAGES

United States V. McKie,

951 F.2d 399 fo.¢. Cir. 299i). 15

United States vy. Pirre,

927 F.2d 694 (2nd Cir. Seeadccs 2S

United States yv. White,

766 F.Supp. 873 (E.D.

Wash. 1991)

el

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1992

STATE OF ALABAMA,

PETITIONER,

Vv.

MCRAY GINGO, and

ATLAS INDUSTRIAL PAINTERS, INC.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

OPINIONS AND ORDERS BELOW

The Order of the Circuit Court of

Shelby County, Alabama, suppressing

test results based on waste samples

obtained by the Alabama Department of

Environmental Management (ADEM) and the

United States Environmental Protection

Agency (EPA), is not reported, but a

copy of this order accompanies this

petition as Appendix A.

1

The decision of the Court of

Criminal Appeals of Alabama reversing

the order of the Circuit Court of

Shelby County is not yet reported, but

a copy of this decision accompanies

this petition as Appendix B.

The decision of the Supreme Court

of Alabama reversing the decision of

the Court of Criminal Appeals is not

yet reported, but a copy of this

decision accompanies this petition as

Appendix C. The denial by the Supreme

Court of Alabama of Petitioner’s

application for rehearing is not

reported, but a copy of it accompanies

this petition as Appendix D.

JURISDICTION

The decision of the Supreme Court

of Alabama was issued on April 17,

1992. A timely application for

rehearing filed by the State of Alabama

was denied on July 10, 1992, and this

petition is filed within 90 days of

this date. This Honorable Court’s

jurisdiction is invoked under 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Section 1, Amendment XIV, U.S.

Constitution.

All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United

States and of the State

wherein they reside. No

state shall make or

enforce any law which

shall abridge the

privileges or immunities

eee

of citizens of the United

States; nor shall any

state deprive any person

of life, liberty, or

property, without due

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the laws.

STATUTORY PROVISIONS INVOLVED

No statutory provisions are at

issue in this proceeding.

STATEMENT OF THE CASE

Respondents were indicted in

November 1988 by the Grand Jury of

Shelby County, Alabama, for illegally

disposing of hazardous waste; for

illegally violating an order of the

Alabama Department of Environmental

Management (ADEM) regarding disposal of

hazardous waste; and also for

unlawfully failing to prepare a

manifest for transportation of

hazardous waste, all in violation of

Code of Alabama 1975, §22-30-19.?+ In

February 1989, Respondent McRay Gingo

filed a motion for production and

disclosure requesting "any and all

tangible evidence in the State’s

possession, care, custody or control

relating to or consisting of ... paint,

hazardous waste, sludge, drums, ..."

After this motion was granted, the

State advised the defendants in writing

that the samples of hazardous waste

which had been collected by ADEM no

longer existed.

1A third defendant, kobert D.

White, was also indicted for related

violations of Code of Alabama 1975,

§22-30-19. White was a party in the

Alabama Court of Criminal Appeals but

did not file a petition for writ of

certiorari in the Supreme Court of

Alabama.

On September 4, 1990, the State of

Alabama filed a motion for pretrial

determination of the admissibility of

evidence, in anticipation that at some

point Respondents would object to the

introduction into evidence of the

laboratory test results on the ground

that the underlying samples were not

preserved fcr independent testing and

analysis by Respondents.

On October 12, 1990, a hearing was

held on the State’s motion. At this

hearing it was established that the

ADEM samples had been destroyed in late

April or early May, 1987. Furthermore,

separate samples taken by the United

States Environmental Protection Agency

(EPA) for its own purposes and

maintained in its custody and control

were destroyed in August 1989. On

February 22, 1991, the Circuit Court of

Shelby County entered an order finding

no bad faith in the destruction of

either set of samples but nonetheless

suppressing the test results from both

sets of samples (see Appendix A).

While the trial court did not specify

the basis for its decision, the briefs

for both sides addressed the question

of whether destruction of the samples

violated the Due Process Clause of the

14th Amendment. This decision was

appealed pretrial to the Court of

Criminal Appeals of Alabama.

On November 27, 1991, the Court of

Criminal Appeals reversed the decision

of the Circuit Court, holding that

because there was no bad faith in the

destruction of either set of samples

there was no violation of the Due

Process Clause of the 14th Amendment

and the test results were admissible

(see Appendix B). After rehearing was

denied, Respondents filed a petition

for writ of certiorari in the Supreme

Court of Alabama, which petition was

granted.

On Apri) 17, 1992, the Supreme

Court of Alabama reversed the decision

of the Court of Criminal Appeals. The

Supreme Court of Alabama agreed that

there was no bad faith in the

destruction of either set of samples,

but recognized an exception to the

doctrine of Arizona v. Youngblood, 488

U.S. 51 (1988), based upon the critical

nature of the evidence destroyed. The

Supreme Court of Alabama thus held that

the destruction of the samples violated

the Due Process Clause of the 14th

Amendment, and suppressed the test

results as to both the ADEM samples and

the EPA samples, even though the EPA

samples were never in the State’s

possession (Appendix C). On July 10,

1992, the Supreme Court of Alabama

denied Petitioner’s application for

rehearing.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE

SUPREME COURT OF ALABAMA

CREATING AN EXCEPTION TO

THE DOCTRINE OF ARIZONA vy.

YOUNGBLOOD IS CONTRARY TO

CALIFORNIA v. TROMBETTA

AND TO THE APPLICATION OF

BOTH YOUNGBLOOD AND

TROMBETTA BY THE COURTS OF

VARIOUS JURISDICTIONS.

In the case at bar, the Supreme

Court of Alabama has unilaterally

created an exception to the rule of

Arizona v. Youngblood, 488 U.S. 51

(1988), that a defendant must prove bad

faith on the part of the prosecution in

the loss or destruction of potentially

exculpatory evidence in order to

establish a violation of due process.

In so holding, the lower court has held

contrary to California v. Trombetta,

467 U.S. 479 (1984), upon which

10

Youngblood was based. Furthermore, the

Alabama Supreme Court’s decision in

this case is inconsistent with the

application of Youngblood and Trombetta

by courts in various federal and state

jurisdictions.

This case involves a prosecution

for various illegal acts regarding

hazardous waste. Prior to trial

Respondents moved for production of all

tangible evidence within the possession

of the State. The State subsequently

notified Respondents that the samples

of the hazardous waste had been

destroyed. The trial court, ina

pretrial ruling, suppressed the test

results as to the samples collected by

the Alabama Department of Environmental

Management (ADEM) and separate samples

collected by the United States Environ-

mental Protection Agency (EPA) and

11

maintained by EPA. This decision by

the trial court was eventually upheld

by the Supreme Court of Alabama.

In its ruling the Alabama Supreme

Court recognized the general rule of

Arizona v. Youngblood, supra, that a

defendant must establish bad faith

before the loss or destruction of

potentially exculpatory evidence will

be considered a due process violation.

The lower court, however, created on

its own an exception to the Youngblood

rule in this case, based on the

following language in the concurring

opinion in Youngblood of Justice

Stevens.

In my opinion, there may

well be cases in which the

defendant is unable to

prove that the State acted

in bad faith but in which

the loss or destruction of

evidence is nonetheless so

12

gC ee

critical to the defense as

to make a criminal trial

fundamentally unfair.

488 U.S. at 61 (concurring opinion,

Stevens, J.) The Alabama Supreme Court

held in effect that because proving the

hazardous nature of the waste was the

heart of the State’s case, the

destruction of the samples was

fundamentally unfair, and thus the case

fit the exception recognized by Justice

Stevens. Ex parte McRay Gingo, No.

1910360 (Ala. April 17, 1992), ms. op.

at 6-10 (Appendix C at 31-33.

This holding by the lower court is

contrary to California v. Trombetta,

supra, upon which Youngblood was

based. In Trombetta, which involved a

charge of driving while intoxicated,

the defendant was presumed to be

13

intoxicated if his blood alcohol level

was above 0.10 percent. 467 U.S. at

482. The evidence destroyed was the

breath sample from which were obtained

the test results which the State

intended to rely on in proving its

case. Id., at 482-483. The missing

evidence in Trombetta was thus as

important to the State’s case as that

here. The Court nonetheless held that

bad faith must be established in order

for the suppression of the test results

to be required. Id., at 488-489.

Moreover, other cases applying

Trombetta and Youngblood have held in

cases involving evidence similar to

that here that a defendant must show

bad faith in order to establish a due

process violation. In United States v.

Belden, 957 F.2d 671 (9th Cir. 1992),

where the charge was manufacturing

marijuana, the Ninth Circuit held,

citing Youngblood, that a showing of

bad faith was required where the

government had destroyed a number of

the marijuana plants. In United States

¥, Mokie, 951 F.2d 399 (0.C. Cir.

1991), the defendant was charged with

possession of more than five grams of

crack cocaine; bad faith was needed to

suppress test results where the crack

had been lost. In United States v.

Pirre, 927 F.2d 694, 696-697 (2nd Cir.

1991), where the defendant was charged

with importation of cocaine, the

destruction of part of the cocaine did

not result in the suppression of test

15

results absent bad faith. In United

States v. Malbrough, 922 F.2d 458, 463

(8th Cir. 1990), cert. denied, 111

S.Ct. 2907 (1991), a prosecution for

manufacturing marijuana, bad faith was

required for suppression where most of

the marijuana was intentionally

destroyed before trial. In United

States v. Donaldson, 915 F.2d 612 (10th

Cir.1990), where the charge was

conspiracy to possess more than 100

kilograms of marijuana, destruction of

the marijuana did not result in the

suppression of test results absent a

showing of bad faith. In United States

v. White, 766 F.Supp. 873, 884-885

(E.D. Wash. 1991), a hazardous waste

prosecution like the case at bar, the

consumption of the waste during testing

did not require suppression of the

16

results without bad faith. In State v.

Mabe, 412 S.Ed.2d 386 (S.C. 1991), a

case involving trafficking in cocaine,

suppression of test results could be

based only upon a showing of bad

faith. In Commonwealth v. Dennis, 588

A.2d 30 (Pa. 1991), a DUI case,

destruction of a blood sample showing

blood alcohol level did not require

suppression of the test results without

bad faith.

These cases are all similar to the

instant case because in each the

government, in order to make its case,

had to introduce test results to prove

the identity or chemical make-up of a

particular substance which had been

destroyed. None of the cases

recognized the exception to Youngblood

found by the Alabama Supreme Court.

17

Deena

Thus, the decision by the lower court

represents a departure from the

prevailing interpretation of Trombetta

and Youngblood, and creates a split

among the courts as to the application

of those cases.

Because of division among the

courts as to whether bad faith is

required for a due process violation in

cases involving evidence such as this,

the Court should grant certiorari as to

this issue.

Il. THE DECISION BELOW

REGARDING THE DESTRUCTION

OF EVIDENCE IN THE HANDS

OF A SEPARATE GOVERNMENT

CONFLICTS WITH THOSE OTHER

JURISDICTIONS ON THIS

QUESTION

In the instant case the Supreme

Court of Alabama Suppressed not only

18

- |

the results of tests on the samples

taken by the state agency, ADEM, but

also results based on EPA’s samples,

even though these later samples were

never in the State’s possession. Ex

parte McRay Gingo, supra, ms. op. at

9. (Appendix C at 32-33).

This holding, which makes the State

responsible for the acts of a third

party government over which it has no

actual control, is inconsistent with

what appears to be the general rule

that one government has no obligation

to turn over evidence in the posses ;ion

of another government. United Sta‘.es

v. Harris, 738 F.2d 1068, 1072 (9th

Cir. 1984), cert. denied, 484 U.S. 832

(1987) (no duty on federal prosecutor

to turn over tapes possessed by state);

19

Thor v. United States, 574 F.2d 215,

220-221 (5th Cir. 1978) (no duty on

federal prosecutor under Rule 16,

F.R.Cr.P. to turn over address book in

state possession); United States v.

Bermudez, 526 F.2d 89, 100 n. 9 (2nd

Cir. 1975), cert. denied, 425 U.S. 970

(1976) (no duty on federal rrosecutor

under Jencks Act to turn over material

in state investigator’s file). While

these cases do not specifically address

the question of whether one government

can be held on constitutional grounds

to be responsible for the acts of

another, they at least imply that this

is not the case.

Because of the difference between

the holding in the case below and those

in other cases regarding the responsi-

bility of a government for evidence in

20

ee

the possession of a third party, the

Court should grant certiorari to decide

this issue.

CONCLUSION

As has been shown above, the

holding of the Supreme Court of Alabama

regarding the two questions discussed

above are in conflict with both those

of this Court and those of the courts

of various other jurisdictions. For

21

this reason the Court should grant

certiorari to address these questions.

Respectfully submitted,

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

OA — - — Z. KEE o>

WILLIAM DUNCAN LITTLE, III

ALABAMA ASSISTANT ATTORNEY

GENERAL

CFF , <) i. )

ROBERT DOUGLAS TAMBLING

ALABAMA ASSISTANT ATTORNEY

GENERAL

Ss

ATTORNEYS FOR PETITIONER

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

1909C