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Thomas v. Commonwealth6/5/1992
material contraband that should be destroyed; under current criteria, he could not "even submit it to the state lab" for analysis. The Commonwealth's Attorney did not object to the sheriff's recommendation, and the material was "just put . . . down the commode."
Testifying at the hearing on his motion to dismiss, Thomas said that Jessica gave him the marijuana the day before the murders occurred and that he took it home and put it in his closet. The next night, he smoked some of the marijuana while Lanie Creech was with him "on the way to the Wiseman's." Ms. Marshall, Thomas's aunt, testified, however, that she talked with Thomas after she found the marijuana. He told her that the marijuana she found had been brought from the Wiseman house after the murders and that the marijuana he smoked on the way to the Wiseman's came from a different source.
We think, as the trial Judge held, that Arizona v. Youngblood, 488 U.S. 51 (1988), is dispositive of the issues raised by Thomas's motion to dismiss. There, in a prosecution for child molestation, sexual assault, and kidnapping, the police negligently failed to preserve evidence consisting of semen samples from the victim's body and clothing, making it impossible for the defense to have tests performed on the evidence. The defendant was convicted in the trial court, despite his claim that the failure to refrigerate the evidentiary material denied him the right to exonerate himself. The Supreme Court of Arizona reversed the conviction. The Supreme
Court of the United States reversed the holding of the Arizona court.
Distinguishing the situation where evidence is lost or destroyed from the circumstance where evidence is concealed, the Supreme Court held 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." Id. at 58. Continuing, the Court stated:
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But 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 been subjected to tests, the results of which might have exonerated the defendant.
Id. at 57. Here, the trial court found there was "nothing corrupt or in bad faith" in the destruction of the marijuana, and the evidence supports that finding. Thomas does not question the finding; indeed, he told the trial court during argument on the motion to dismiss that he was "not alleging bad faith" in the destruction of the marijuana.
Furthermore, this is clearly a case of failure to preserve evidentiary material, rather than one of concealment. When Ms. Alexander became Thomas's co-counsel, she already had knowledge of the circumstances surrounding the discovery of the marijuana, and she told Benton Pollok, Thomas's co-counsel, about the discovery of the drug.
More important, with the possible exception of Jessica Wiseman, Thomas himself knew more than anyone else about the role the marijuana played in the murder scenario, and he also knew early on that Mrs. Marshall had discovered the marijuana in his closet. While Attorneys Horne and West, later appointed to represent Thomas, may not have learned about the marijuana until the trial date approached, Thomas is as much to blame for their ignorance as anyone connected with the case. Under these circumstances, it would be unre
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