DCCA to the government: Don’t blame the defense when you fail to preserve material evidence

Smith v. United States (decided September 21, 2017).

Players: Associate Judge Easterly, Senior Judges Washington and Ferren.  Opinion and concurrence by Judge Ferren.  William C. Claiborne, III for Mr. Smith.  Trial judge: Neal E. Kravitz.

Facts: Mr. Smith was arrested when his girlfriend, Iesha Miller, called police to her apartment.  When the police arrived, Mr. Smith was wearing boxer shorts and no pants.  The arresting officer asked whether Mr. Smith had clothes he could put on.  Ms. Miller responded that there was some clothing in the bedroom.  The police officer retrieved a pair of white shorts, and Ms. Miller confirmed they were what she had in mind.  When the police officer told Mr. Smith to put the shorts on, he declined to do so, saying they were not his.  The police officer then searched the shorts and found a bag of white pills in the pocket.  Mr. Smith was directed to put the shorts on and was photographed wearing them.  The shorts were not preserved and at trial, the photograph of Mr. Smith was admitted over the defense’s objection.  One of the white pills was tested and found to be a controlled substance commonly known as Bath Salts.  

Issue #1: Whether the trial court erred in determining that the government committed only “ordinary negligence” in failing to preserve the shorts, when the arresting officer violated an MPD general order requiring police officers to preserve potentially discoverable material that comes into their possession, and evidentiary value of the shorts was clear from the government’s Gerstein proffer.  

Holding: Yes.  Contrary to the trial court’s finding, the government committed gross negligence by failing to preserve the shorts.  Given the obvious evidentiary significance of the shorts, the prosecutor had an independent responsibility to preserve them.  The trial court erroneously factored only the police officer’s negligence into its culpability analysis.  See Koonce v. District of Columbia, 111 A.3d 1009, 1013 (D.C. 2015) (listing “the degree of government negligence or bad faith involved” as the first of three criteria for evaluating trial court sanction decisions under Rule 16).  

Issue #2: Whether the trial court erred in determining that the defendant shared responsibility for preserving the shorts.

Holding: Yes.  “[W]e are unwilling to say that the government’s failure to preserve the shorts in its custody can be mitigated  by an opportunity the defense may have had to prevent their disappearance.”  Slip op at 16.  

Of note:

• Counsel for Mr. Smith made no request for the government to preserve the shorts, and the Department of Corrections provided Mr. Smith with notice that its policy is to destroy all property taken from inmates if it is not picked up within 15 days.  However, the Court found that Mr. Smith’s failure to take some steps to preserve the shorts had no bearing on whether the government was negligent, for purposes of the first element of the Koonce analysis.  NG

Read full opinion here.