State v. Wagner, 2013 MT 47

Wagner was convicted at a second trial of attempted deliberate homicide with a weapon after remand for a new trial following a prior reversal for plain error related to post-Miranda silence comments.
Wagner moved to dismiss claiming negligent destruction of exculpatory evidence because Dr. Peters entered Peters’ vehicle and moved it prior to processing, allegedly destroying evidence.
A March 24, 2010 hearing on the motion to dismiss was held; the district court denied the motion in an order dated March 31, 2010, after findings about the crime scene and Peters’ actions.
At issue is the February 25, 2010 pretrial hearing where Wagner’s request for transcripts was denied due to a technical problem; Wagner later sought remand, which this Court previously denied, finding the missing transcript would have limited value for appeal.
The State argued the law of the case precludes relitigation of the transcript-pendency issue; the Court held the law of the case foreclosed Wagner’s challenge to the missing transcript.
During the second trial, the State moved to exclude Polly’s other-crimes evidence; the court limited cross-examination to balance credibility with probative value.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Wagner denied due process due to a missing hearing transcript?	Wagner	Wagner argues the missing transcript violates due process and prevents effective appellate review.	Law of the case controls; no due process violation.
Did the district court err by denying the motion to dismiss for negligent destruction of exculpatory evidence?	Wagner	State argues no duty to gather exculpatory evidence and evidence was only potentially exculpatory.	No error; evidence was not shown to be exculpatory or material.
Did the district court abuse its discretion by limiting cross-examination of Polly on prior/pending charges?	Wagner	Court limited cross-examination under Rule 608 and confrontation rights; discretion lies with trial court.	No abuse of discretion; cross-examination properly limited.

Britt v. North Carolina, 404 U.S. 226 (1971) (due process in transcript availability; rights apply to appellate review)
Sadowski, 247 Mont. 63, 805 P.2d 537 (1991) (distinction between gathering vs preserving exculpatory evidence; not violation when evidence not gathered)
Swanson, 222 Mont. 357, 722 P.2d 1155 (1986) (police duty to preserve evidence; no duty to assist in gathering exculpatory evidence)
Heth, 230 Mont. 268, 750 P.2d 103 (1988) (exculpatory value of evidence and preservation issues)
Giddings, 2009 MT 61, 349 Mont. 347, 208 P.3d 363 (2009) (materiality standard for destroyed/exculpatory evidence; due process)
Saxton, 2003 MT 105, 315 Mont. 315, 68 P.3d 721 (2003) (materiality and exculpatory value; police duty to preserve exculpatory evidence)
Cooksey, 2012 MT 226, 366 Mont. 346, 286 P.3d 1174 (2012) (duty to provide exculpatory evidence within government possession (concerning use-of-force cases))
Skinner, 2007 MT 175, 338 Mont. 197, 163 P.3d 399 (2007) (Confrontation Clause allows reasonable limits on cross-examination)