Opinion
No. 06SA232.
April 16, 2007.
Appeal from the District Court, Jefferson County, Christopher Munch, J.
Scott W. Storey, District Attorney, 1st Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Plaintiff.
Douglas K. Wilson, State Public Defender, Nancy Holton, Deputy Public Defender, Golden, Colorado, Attorneys for Defendant.
In this C.A.R. 21 proceeding, we hold that the trial court abused its discretion when it committed to ordering suppression of DNA results for tests that had not yet been conducted if the CBI refused to permit videotaping and the district attorney refused to pay the expense of a defense expert. Thus, we vacate the ruling.
I. Facts and Procedural History
The defendant, Matthew Wartena ("Wartena"), is accused of eleven felonies, including extreme indifference murder and attempted murder after deliberation, stemming from a high-speed pursuit. At a preliminary hearing, police officers testified that Wartena and an accomplice were seen-stealing a Honda Civic from a residential street. A passing motorist who witnessed the alleged theft followed the Civic until it pulled over. The Civic's passenger, purportedly Wartena, fired a shotgun at the trailing motorist before speeding away. Moments later, when the Civic attempted to merge onto southbound I-270 at Commerce City, it swerved across traffic, causing a multi-car accident that killed one motorist and seriously injured two others.
In April 2006, the Colorado Bureau of Investigation ("CBI") notified Wartena's counsel that tests would be performed on the handle of a shotgun found at the accident scene. The CBI further informed Wartena that these tests likely would destroy the sample and not permit subsequent defense testing. It is unclear from the record whether the CBI offered Wartena the opportunity to hire an expert to be present for the testing or whether the defense requested that the CBI delay testing while it considered its alternatives.
After receiving notice of possible destructive testing, Wartena asked the CBI to allow his attorney or an investigator to videotape the testing procedures, to be reviewed by his trial expert at a later date. The CBI refused this request. In refusing, the prosecution team referred Wartena to the CBI evidence manual, which states that "[p]hotographic and/or video recording of any in-progress analytical procedure is prohibited." Colo. Bureau of Investigation Forensic Lab. Evidence Manual, Version 1.6, 22 (Apr.2003).
The parties then involved the trial court in a discussion to explore possible alternatives that would allow Wartena the opportunity to observe the test. Defense counsel urged that the court either require the CBI to allow the defense to videotape the test or order the prosecution to pay the cost of a defense expert. The prosecution challenged both options.
At a subsequent proceeding, the court heard testimony from a CBI representative as to the reasons for its protocol prohibiting videotaping. The prosecution argued that its only obligation to the defense regarding the trace evidence was to allow a defense expert to be present during testing. Defense counsel countered that an expert would cost $2,000 per day plus expenses and given that the test would take three days to complete, the total expense would likely top $7,000. Conversely, videotaping could be done unobtrusively and for far less than $7,000. The prosecution then argued that the public defender's office had an appropriation from the Genera] Assembly for expenses like expert witnesses. The public defender countered that "we call and beg for experts . . . [we have] funding problems." In considering the available options, and in light of the CBI's policy, the court asked the prosecution whether it would contribute some portion of the cost arising from the CBI's videotaping prohibition. The prosecution refused. The prosecution also refused to ask the CBI to allow videotaping of the tests.
The trial court then entered an order stating that it would suppress the results of the DNA test unless the prosecution paid the costs of the defense expert in excess of $1,000. Discussing the order, the judge stated in part:
Now, if the prosecution, whether through your office, public donations, or any other way comes up with the money to reimburse this expert, then I will admit the evidence as long as you have made available to the defense the opportunity to have this done at no expense to the defendant or, for that matter, at an expense that doesn't exceed a thousand dollars, because it seems me that at least the first time that's what it would cost.
But absent the prosecution coming up with some method where the defense can exercise this constitutional right for a cost that does not exceed a thousand dollars, and absent the Colorado Bureau of Investigation being willing to participate in the development of a protocol that permits videotaping of this extraction of DNA material without risks of contamination or disruption, then it is likely that the evidence obtained will not be admitted in this court because it will be my view that the defendant's constitutional right to have this testing reasonably observed will have been violated.
The prosecution then sought to clarify the court's ruling by asking, "If we do this testing [with] no videotaping, . . . is this court going to preclude us from putting that evidence in at trial?" The court replied, "It sounds like I probably am." The court continued, "Oh, you want a `yes' or `no'?" The prosecutor said, "Yes, please." The court then responded, "Yes."
II. Analysis
We turn to the substance of the court's commitment to suppress the test results. The prosecution argues, and we agree, that the General Assembly has largely codified the applicable constitutional considerations pertaining to destructive testing. § 16-3-309, C.R.S. (2006). The statute mandates that the trial court take account of various factors when considering whether to suppress test results if the testing will not leave a sufficient sample for independent analysis.
Section 16-3-309 states in part:
(1) When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant.
(2) The trial court shall consider the following factors in determining, pursuant to subsection (1) of this section, whether the state has met its obligation to preserve the evidence:
(a) Whether or not a suspect has been identified and apprehended and whether or not the suspect has retained counsel or has had counsel appointed for him at the time of testing;
(b)Whether the state should have used an available test method more likely to preserve the results of seized evidence;
(c) Whether, when the test results are susceptible to subjective interpretation, the state should have photographed or otherwise documented the test results as evidence;
(d) Whether the state should have preserved the used test samples;
(e)Whether it was necessary for the state agency to conduct quantitative analysis of the evidence;
(f) Whether there is a sufficient sample for the defendant's expert to utilize for analysis and the suspect or defendant has made a specific request to preserve such sample;
(g) If paragraph(f) of this subsection (2) cannot be complied with, in view of the small amount of evidence, or when the state's duty to preserve the evidence would otherwise be enhanced, whether it was reasonable for the state to have contacted the defendant to determine if he wished his expert to be present during the testing. § 16-3-309 (emphasis added).
Section 16-3-309 leaves for the court the determination of admissibility based on the reasonableness of the prosecution's actions. The statute establishes a good faith standard of prosecutorial conduct requiring that the state seek to preserve evidence where possible and act reasonably in destroying evidence where necessary. If the court determines that it was foreseeable that test results might aid the defendant, the statute mandates that the court consider the state's choice in tests, whether the state should have kept a photographic record, and whether the state should have preserved test samples for later analysis. § 16-3-309(2). Alternatively, if, after collecting the evidence, the state has reason to suspect that the sample will be destroyed during testing, the state has the duty to contact the defendant so that his expert may be present during testing. § 16-3-309(2)(g).
The touchstone of the statute is the reasonableness of the state's conduct. Thus, when the sample is destroyed the court may be asked to suppress the test results as a sanction for unreasonable state conduct. Under these circumstances, the statute requires that the court consider whether the state performed the testing in good faith and gave the defendant an opportunity to have an expert present during destructive testing. See People v. Brown, 194 Colo. 553, 555, 574 P.2d 92, 94 (1978) (when the state acts unreasonably in destroying evidence, the court, in its role of guarding the preservation of evidence, may impose an appropriate sanction). An order suppressing results prior to testing could only be based on possible future conduct. Thus, when it commits to ordering test results suppressed before evidence has been destroyed in testing the court acts outside its discretion because it is in no position to assess the reasonableness of the prosecution's future actions.
Instead of deciding whether evidence will be suppressed, the court's role prior to testing is to oversee the preservation of evidence. The authority of the court to supervise the preservation of evidence originates in the court's role to protect the "civilized standards of procedure and evidence." McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The trial courts' supervisory role extends to remedies when addressing a failure to preserve material evidence. United States v. Valenzuelar-Bernal 458 U.S. 858, 870, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); see also, California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
The McNabb court also stated, "Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as `due process of law' and below which we reach what is really trial by force," McNabb, 318 U.S. at 340, 63 S.Ct. 608. (McNabb's statement of the court's supervisory role has been relied upon, albeit in different contexts. See United States v. Young, 470 U.S. 1, 24, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (Brennan, J., concurring); see also United States v. Hammad, 846 F.2d 854, 860-61 (2d Cir.1988)).
The court's authority over evidence is broad. For instance, C.R.C.P. Rule 16 gives the court authority to require the disclosure of information that tends to negate guilt or reduce punishment. This authority extends to material and information in the possession of anyone who has participated in the investigation or evaluation of the case and who reports to the prosecution. Trial courts exercise authority over this possible evidence by issuing subpoenas duces tecum or ordering the production of evidence. Courts in various jurisdictions have found that rules similar to C.R.C.P. Rule 16 do not prevent the court from making more extensive orders. United States v. Fletcher, 74 F.3d 49, 54 (4th Cir.1996). The court's authority is not constrained to those areas specified in the rules. Peek v. United States, 321 F.2d 934, 942 (9th Cir.1963).
Acting to avoid or mitigate a failure to preserve evidence, the court may order that evidence cannot be destroyed, or may permit the consumptive testing of evidence. Brown, 574 P.2d at 94; see also People v. Braunthal, 31 P.3d 167, 174 (Colo. 2001). Except in unusual circumstances, this authority does not extend to dictating procedures to a particular laboratory or ordering the prosecution to pay for a defense expert. Nonetheless, the court may exercise its authority over the evidence by prohibiting testing that does not comply with procedures adopted by the court to permit independent evaluation of evidence.
We have not previously addressed whether, in the exercise of its authority to set appropriate procedures, the court may require videotaping of testing procedures as a condition of permitting consumptive testing. The American Bar Association recently addressed the duty to preserve evidence in consumptive testing situations, noting in the Criminal Justice Section Standards on DNA Evidence that courts should consider ordering procedures such as videotaping that would allow for independent evaluation. We agree with the recommendation of the American Bar Association and adopt Standard 3.4(e). However, we are unable to apply this Standard given the record before us.
This Standard reads in full:
If a motion objecting to consumptive testing is filed, the court should consider ordering procedures that would permit an independent evaluation of the analysis, including but not limited to the presence of an expert representing the moving party during evidence preparation and testing, and videotaping or photographing the preparation and testing.
A.B.A. Criminal Justice Section Standards on DNA Evidence, Standard 3.4(e) (2006).
We have previously adopted American Bar Association criminal standards. In People v. Jones, 677 P.2d 383 (Colo.App. 1983), we adopted Standard 12-2.31, which prevents criminal defendants from asserting speedy trial while confined in a hospital or mental institution. In Cordova v. People, 817 P.2d 66 (Colo. 1991), we adopted ABA criminal Standard 7-6.8, which sets out jury instructions for insanity claims.
The trial court correctly recognized that it did not have the authority to dictate procedures to the CBI or to order the prosecution to pay the expense of a defense expert when it specifically stated it was not making such orders. After recognizing this limitation, the trial court did not assert its authority over the evidence itself and address whether it would permit the evidence to be destroyed in testing or outline the procedures it found appropriate to permit independent analysis as a condition of permitting consumptive testing. Moreover, the trial court did not make findings about the appropriateness of videotaping as a condition of permitting consumptive testing. Although the court did entertain testimony from the CBI about videotaping, it did not make findings and conclusions about the CBI's objections to videotaping and whether videotaping should be part of the testing procedures in the circumstances of this particular case. Instead, the trial court prematurely focused on sanctions for unreasonable conduct in failing to preserve evidence.
Any further discussion of the court's authority to order the prosecution to pay defense expenses or to order the CBI to permit videotaping misses the mark as the court expressly declined to enter such orders.
While the court's effort to determine how a suppression issue may be avoided was appropriate, the court's commitment to a future ruling was an abuse of discretion. Because the court's consideration of sanctions was premature, it could not consider the factors set forth in section 16-3-309. First, there was no test. Second, no evidence was destroyed. Third, the results were not offered into evidence. Finally, no determination was made that the evidence might be favorable to the defendant.
The CBI has not destroyed evidence and the prosecution has not acted unreasonably; the defendant's rights have not been violated. Therefore, a commitment to suppress unknown results of testing that has not yet been conducted based on circumstances that might develop exceeds the court's authority and is an abuse of discretion.
III. Conclusion
We make the rule absolute.
Justice COATS concurs in judgment only, and Justice RICE and Justice EID join in the concurrence.