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State v. Engesser4/23/2003
any proper inferences that a jury may draw. Absent a showing of bad faith on the part of the State, such emphasis is unwarranted.
Id. at 649 (internal citation omitted). An instruction on the inference that may be drawn from the spoliation of evidence is proper only when substantial evidence exists to support a conclusion that the evidence was in existence, that it was in the possession or under the control of the party against whom the inference may be drawn, that the evidence would have been admissible at trial, and that the party responsible for destroying the evidence did so intentionally and in bad faith. See Langlet, 283 NW2d 330.
[ .] Here, the record does not show that the destruction of the missing evidence was intentional or made in bad faith. On the contrary, before Trooper Fox left the auto in the impound yard on the night of the accident, he recognized the possible value of any such evidence and looked for indications of bodily fluids in the car. He saw none. Nevertheless, he notified his superiors of the possibility that there may be evidence in the vehicle and asked them to send someone to examine it. When the State's forensic expert, Rex Riis, looked at the car, he found only a trace amount of blood on the roof. He concluded that because the car had rolled, the significance of any bodily fluids in the vehicle was greatly diminished. He also concluded that no evidentiary value existed in the form of biological evidence. Even if one could deduce that Trooper Fox should have taken steps to make sure the vehicle was not exposed to the elements, nothing in the record suggests that he intentionally sought to destroy evidence. In fact, it is apparent from the record that he looked for any evidence that would demonstrate who the driver of the vehicle was. If he erred in not preserving the car from the elements, such an act can only be deemed negligent. Consequently, the evidence simply does not support an inference that any State agent intentionally destroyed evidence thought to be unfavorable to the State, and the circuit court did not err in refusing Engesser's requested instructions. As the Wisconsin Court wrote in Jagmin v. Simonds Abrasive Co., 61 Wis2d 60, 81, 211 NW2d 810, 821 (1973), the spoliation doctrine is "reserved for deliberate, intentional actions and not mere negligence even though the result may be the same as regards the person who desires the evidence." Other authorities agree. See 1 Jones on Evidence §§ 3.90, 3.93, at 321, 329 (6th ed 1972); 1 Wharton's Criminal Evidence § 117 at 197 (13th ed 1972). The inference and the scope of its application are discussed at 31A CJS Evidence § 152 at 388 (1964). "Such a presumption or inference arises, however, only where the act was intentional, and indicates fraud and a desire to suppress the truth." AmJur2d Evidence § 244 DESTRUCTION OR SPOLIATION OF EVIDENCE (2002 supp).
[ .] Even assuming that some form of a spoliation instruction should have been given, an unwarranted assumption here, Engesser has shown no prejudice in the court's failure to give one. No forensic expert testified that if the blood spatter evidence had been preserved, it would have shown who was in the driver's seat. In examining this concept, the Iowa Supreme Court warned that the spoliation rule should be "applied with caution[.]" Langlet, 283 NW2d at 335. A "mere possibility" that the destroyed evidence would be helpful is not enough. Id.
[ .] Lastly, there was no due process violation in denying these proposed instructions. In accord with Arizona v. Youngblood, 488 US 51, 109 SCt 333, 102 LEd 2d 281 (1988), to establish a due process violation, there must be some showing of bad faith on the part of law enforcement, such as the destruction of
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