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State v. Ellenburg8/24/2000
sed on a Brady violation because there was no requirement that an inventory be prepared of evidence seized pursuant to an ISP agreement; there was no evidence other than Ellenburg's own testimony that exculpatory evidence was lost or destroyed, but there was evidence to the contrary; and the evidence Ellenburg alleges was missing could have been provided by other means.
52 In Gollehon v. State, we set forth as follows:
To establish a Brady violation, the petitioner must establish that: (1) the State possessed evidence, including impeachment evidence, favorable to the defense; (2) the petitioner did not possess the evidence nor could he have obtained it with reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different. See Mills v. Singletary, 63 F.3d 999, 1014 (citation omitted) (11th Cir.1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). Gollehon v. State, 1999 MT 210, 15, 296 Mont. 6, 15, 986 P.2d 395, 15.
53 First, Ellenburg asserts that the State violated Brady when it allegedly lost a letter which accompanied a blank check signed by Harold Gunlock. Ellenburg asserts that the letter authorized him to cash the check to pay for additional premiums.
54 The State points out that even if the letter existed, no Brady violation occurred because Ellenburg could have obtained comparable evidence by other reasonably available means, such as the testimony of Harold Gunlock. The State relies on the following, as set forth by the United States Supreme Court:
Whatever the duty the constitution imposes on the state to preserve evidence, that duty must be limited to those that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534. Moreover, the State notes that the evidence would not have been exculpatory because the letter and the blank check had no relevance to the charges in this case. We agree that Ellenburg has failed to demonstrate the letter's relevance.
55 Ellenburg next asserts that the State violated Brady by allegedly losing documents, including a power of attorney from Kenneth Gunlock, a prospectus from the Fidelity Alliance Company, and records of court proceedings regarding Fidelity's bankruptcy , all of which related to his alleged reinvestment of the $48,000 check payable to Kenneth Gunlock.
56 In response, the State points to Miller's testimony, in which he testified that he did not seize those types of documents and that the only items he did seize were bank statements, cancelled checks, and viatical documents. The State further points out that Ellenburg could have obtained comparable evidence by other reasonably available means.
57 We agree that Ellenburg has not demonstrated that he was unable to obtain comparable evidence by other reasonably available means. Therefore, we conclude that Ellenburg has failed to demonstrate that his due process rights were violated. Accordingly, we further conclude that the District Court did not err when it denied Ellenburg's motion to dismiss based on a Brady violation.
58 The judgment of the District Court is affirmed.
TERRY N. TRIEWEILER
We Concur:
J. A. TUR
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