Opinion
Case No. 2:99CR382K
March 22, 2000.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR BRADY VIOLATION
This matter is before the court on Defendant's Motion to Dismiss for Brady Violation. A hearing on that motion was held on March 21, 2000. At the hearing, Plaintiff was represented by Christopher Chaney, Alicia Cook, and Jonathan Harris. Defendant was represented by Dixon Hindley. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. After listening to the testimony and arguments presented at the hearing and since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Order.
I. BACKGROUND
This case involves alleged elk poaching on the Uintah Ouray Ute Reservation. It is anticipated that Dorene Arthur (formerly Dorene Thornton) will testify, among other things, that she witnessed Defendant shoot an elk, It is also anticipated that Laif Thornton will testify, among other things, that Defendant took him to the kill site, loaded the elk in a pick-up truck, and then transported it.
The investigation was initiated by the Utah Division of Wildlife Resources. When the kill site was discovered to be on Ute tribal land, the investigation was handed over to the Ute Fish and Wildlife Department. During the investigation, Dorene and Laif Thornton were interviewed by state wildlife officers. This interview was tape recorded. The court had previously ordered Plaintiff to turn over the tape recording of the interview. Plaintiff, however, informed the defense that it was unable to produce the tape because the tape had been lost.
Defendant claims that the content of the tape is material and exculpatory and that Defendant cannot effectively prepare to cross-examine Plaintiff's two primary witnesses or the investigating officers without access to the tape. Accordingly, Defendant claims that he will be denied a fair trial and Fifth Amendment due process if he is tried without having access to the tape. He also claims that he will be denied his Sixth Amendment right to effectively confront witnesses against him without the tape. Therefore, Defendant has moved to dismiss the case, or in the alternative, to exclude from Plaintiff's case-in-chief the testimony of all witnesses whose voices are on the tape.
II. DISCUSSION
In Brady v. Maryland, 373 U.S. 83 (1963) the United States Supreme Court placed on the government an affirmative duty to produce material that is favorable to the accused. However, in Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court determined that the failure of law enforcement officers to preserve evidence that potentially exculpates a defendant does not violate Brady or the due process clause absent a showing that the officers acted in bad faith. Id. at 57-58; Fero v. Kirby, 39 F.3d 1462 (10th Cir. 1994).
In Youngblood, the Court stated:
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 subjected to tests, the results of which might have exonerated the defendant. . . . We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases when the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold 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.
Youngblood, 488 U.S. at 57-58; see also California v. Trombetta, 467 U.S. 479, 486 (1984) (holding that the mere possibility that evidence may be exculpatory is not enough to require preservation, and the exculpatory value of the evidence must be apparent before the evidence is destroyed); United States v. Parker, 72 F.3d 1444, 1452 (10th Cir. 1995) (in case involving a traffic stop and search, court found that defendant had to demonstrate bad faith on part of government in recording over videotape because exculpatory value of videotape was indeterminate and "potentially useful" at best). Furthermore, police negligence does not amount to bad faith. Youngblood, 488 U.S. at 58; Parker, 72 F.3d at 1451.
In this case, Defendant alleges that under Brady, the case must be dismissed because exculpatory evidence was lost and therefore Defendant will be deprived of a fair trial and his Fifth and Sixth Amendment rights. Specifically, Defendant alleges that Dorene Arthur or Laif Thornton told the state investigators that someone other than Defendant killed the elk and that the statement might be on the tape. In addition, Defendant suggests that possible animosity between Defendant and the state agency might have provided a motive to lose the tape.
The government, however, maintains that Brady is not applicable because the issue raised in that case involved evidence that was withheld by the government — not evidence that was lost. The government contends that Youngblood and Parker control this issue, and that Defendant has failed to show bad faith on the part of the investigators.
After listening to the testimony of the five witnesses called by Defendant, including the investigator and field officer from the state wildlife agency, the court finds that it was negligent to lose the tape of the interview, but that there is no evidence of bad faith. In addition, the exculpatory value of the tape recording is indeterminate and "potentially useful" at best. Thus, under Youngblood and its progeny, there is no Brady violation, and Defendant will not be deprived of a fair trial or his Fifth and Sixth Amendment rights.
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Brady Violation is DENIED.