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State v. Ware6/29/1993
g this case. (no prejudice where other evidence available to defendant to support its case); (prejudice shown where "virtually no other credible evidence" supported defendant's guilt except the lost evidence). We conclude that the trial court's alternative finding supports its Conclusion that the police had a duty to collect and preserve the weapon alleged to have been used in the commission of the offenses and that Defendant was materially prejudiced by the State's failure to collect and preserve material evidence.
Once a trial court concludes that the Chouinard test is satisfied, Chouinard affords two choices:
Exclusion of all evidence which the lost evidence might have impeached, or admission with full disclosure of the loss and its relevance and import. The choice between these alternatives must be made by the trial court, depending on its assessment of materiality and prejudice. The fundamental interest at stake is assurance that Justice is done, both to the defendant and to the public.
. Moreover, the Supreme Court in expanded the options of the trial court set out in Chouinard by endorsing the further option of dismissal of the charges. As further noted in Chouinard, " he trial court is in the best position to evaluate these factors."
The decision of the trial court, in determining what remedy to apply for a failure to preserve evidence, will be upheld unless it is shown that it has abused its discretion.
In the case at bar, the trial Judge excluded "photographs of any rock and all of the State's witnesses are prohibited from mentioning directly, or indirectly, in any manner whatsoever any reference to a rock." The court's order was premised on its determination that due process of law as guaranteed by the New Mexico Constitution required such a remedy. We cannot say, as a matter of law, that the trial court abused its discretion in ordering the suppression of such evidence. We therefore affirm the trial court's order.
IT IS SO ORDERED.
BENJAMIN ANTHONY CHAVEZ, Judge
WE CONCUR:
THOMAS A. DONNELLY, Judge
A. JOSEPH ALARID, Judge
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