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State v. Gibney3/28/2003
, we find this a relatively close case on the evidence presented. Thus, we cannot say that the Bailey balancing weighs in favor of the State based on the overall evidence against defendant.
. We conclude, however, that the investigatory notes were not important to defendant's case and that their loss did not substantially prejudice defendant. In part, we reach this conclusion because the trial judge, who listened to the evidence of the officers and judged their credibility, found that the notes contained no additional exculpatory information. We understand defendant's point that the court could make that finding based only upon the self-serving testimony of the officers involved, but we entrust credibility determinations to the judge who hears the evidence.
. In any event, the court's finding is not the primary reason for our conclusion. As in Delisle and Devine, defendant here had alternative means to develop the evidence he desired. Through the liberal discovery available in criminal cases in this State, as well as his own investigation and the evidentiary hearing on defendant's motion, defense counsel could identify and question all witnesses interviewed by the officers and explore in detail their investigatory methods. Using these methods, defendant was able to identify examples of what was missing from the official reports that he argued might be disclosed by the notes. Of course, because defendant already knew that the information was known to the officers, its presence in the notes, or its absence, was relatively unimportant. Indeed, the destruction of the notes aided defendant in his claim to the jury that the officers had conducted a one-sided, incomplete, and incompetent investigation aimed only at convicting him rather than at solving the crime. The court did give some relief that also aided defendant's claim when it instructed the jury that if it found the officers had "either negligently or in bad faith discarded notes . . . you must infer that the information contained in those destroyed notes was unfavorable to the State's case."
. We emphasize that the alternatives cited in Delisle and Devine did not reproduce the lost evidence, but provided methods by which the defendant could make the same point to the jury that would have been made with the lost evidence. Similarly, here, defendant could make those points and impeach the quality of the investigation fairly and effectively. See Trombetta, 467 U.S. at 490 (although DUI defendant could not independently evaluate breath sample after the State destroyed it, he could point out all the reasons the analysis machine could give an inaccurate reading).
. Defendant argues - to the point of citing articles to the effect that " aw professors and scholars have concluded that lying and deception are widely practiced in police reports" - that the proven omissions from the reports were so numerous and significant that the notes certainly would have shown more deficiencies. He particularly points to the evidence that the officers offered inducements and made threats to potential witnesses to obtain favorable testimony and never disclosed these inducements or threats, as required, or included them in the reports. Because the offers of consideration and threats came out in pretrial discovery, defendant has made no claim that they provide an independent ground for relief on appeal. Indeed, defendant's ability to detail promises and threats made by police demonstrate the effectiveness of the investigation and discovery process.
. We have no doubt that access to the notes could have provided more ammunition with which to criticize the reports and the investigation, but defendant faces a likelihood of dimini
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