Gregory S. Powers v. State of Indiana (mem. dec.)
16A01-1707-CR-1525
| Ind. Ct. App. | Dec 27, 2017Background
- In Sept. 2014 police found a hole cut in Hoeing Supply’s metal siding and a socket with a screw head nearby; copper tubing and boxes had been moved inside.
- Officers encountered Gregory Powers on nearby private property, observed him climb a fence, discard gloves and pliers, and recovered pliers and a nut driver; gloves had paint dust matching Hoeing’s siding.
- Powers was charged in 2014 (Cause No. F5-662); charges were dismissed May 15, 2015.
- Under Greensburg PD policy evidence from dismissed cases is destroyed after 60 days; the pliers were destroyed in an audit on Feb. 2, 2016.
- The State re-filed charges May 23, 2016 (burglary, attempted burglary, trespass; habitual-offender allegation later dismissed); at trial Powers was convicted of Level 5 burglary and Class A misdemeanor trespass and sentenced to 1,980 days.
- On appeal Powers argued (1) due process violation from destruction of the pliers and (2) the court erred by refusing a lesser-included instruction for Class B criminal mischief.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Powers) | Held |
|---|---|---|---|
| Whether destruction of the pliers violated due process | Destruction followed GPD policy, evidence was at best "potentially useful," not materially exculpatory, and was not destroyed in bad faith | Pliers were materially exculpatory; destruction deprived him of unique evidence and warranted dismissal | Court: Pliers were not materially exculpatory (comparable pliers were available); no bad faith in destruction; denial of dismissal affirmed |
| Whether Class B misdemeanor criminal mischief was a factually included lesser offense of burglary such that an instruction was required | Charging information did not include factual allegations (damage) necessary to charge criminal mischief; State may omit facts to foreclose instruction | Criminal mischief can be a lesser included offense in some cases and should have been instructed here | Court: Criminal mischief was not factually included because the information omitted damage allegations; withholding the instruction was proper |
Key Cases Cited
- Arizona v. Youngblood, 488 U.S. 51 (1988) (police duty to preserve evidence limited; bad-faith destruction required for due-process violation when evidence is only potentially useful)
- California v. Trombetta, 467 U.S. 479 (1984) (materially exculpatory evidence must have apparent exculpatory value before destruction and be irreplaceable by other means)
- Noojin v. State, 730 N.E.2d 672 (Ind. 2000) (defines materially exculpatory evidence and prosecutor’s preservation duty)
- Wright v. State, 658 N.E.2d 563 (Ind. 1995) (three-part test for lesser-included offense instructions and State may foreclose factually included lesser by omitting charging facts)
- State v. Durrett, 923 N.E.2d 449 (Ind. Ct. App. 2010) (standard for reviewing dismissal for destruction of evidence; distinction between materially exculpatory and potentially useful evidence)