*1 Plaintiff-Respondent, Wisconsin, State
v. Michael R. Luedtke, Defendant-Appellant-Petitioner. Plaintiff-Respondent, State of Wisconsin,
v. M. Weissinger, Jessica Defendant-Appellant-Petitioner.
Supreme Court No. 2013AP1 737-CR & 2013AP218-CR. 3, 2015. February argument April
Oral —De cided 2015 WI (Also 592.) reported in 863 N.W.2d
9 defendant-appellant-petitioner For the Michael R. argued by Lang. Luedtke, the cause was Donald T by Lang, There were briefs Donald T. assistant state public defender. defendant-appellant-petitioner
For the Jessica M. Weissinger, argued by Boyle. the cause was Gerald P. by Boyle, Boyle, Boyle There were briefs Gerald P. Boyle, S.C., & Milwaukee. plaintiff-respondent
For the in both cases, argued by cause was Collins, Winn S. assistant attor- ney general, with whom on the briefs was J.B. Van attorney general. Hollen,
¶ 1. MICHAEL J. GABLEMAN, J. This is a re-
published
view of
appeals,
two
decisions of the court of
App
Luedtke,
State v.
WI
Attorney's ("Lu charged Office Michael R. Luedtke edtke") operating with one count of a motor vehicle while under the influence of a controlled substance (diazepam methadone), eighth, seventh, or ninth 346.63(l)(a) contrary offense, (2009-10),1 to Wis. Stat. operating and one count of a motor vehicle with a detectable amount of a restricted controlled substance
1All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 346.63(l)(a)
Wisconsin Stat. § states: *9 in the (cocaine metabolite, benzoylecgonine2) and its offense, contrary ninth or seventh, eighth, blood, 346.63(l)(am).3 found Luedtke jury The Wis. Stat. § under the vehicle while a motor of guilty operating not him but found substance of a controlled influence detectable vehicle with a a motor of operating guilty in the substance controlled of a restricted amount court4 withheld County circuit Winnebago The blood. for a period on probation Luedtke placed sentence time, jail conditional 12 months of with years, of four and stayed. imposed argu- motion filed á post-conviction Luedtke when rights his due process State violated
ing operate while: Under the person may a motor vehicle drive or No substance, intoxicant, controlled a controlled influence of an intoxicant, analog any a con- combination of an or substance analog, under the and a controlled substance trolled substance degree him or her any drug which renders to a influence of other safely driving, influence of an incapable under the combined or of degree any drug renders him or to a which other intoxicant safely driving. incapable of her substance Schedule IV controlled Diazepam is listed as a 961.20(2)(cr). as a Sched- Methadone is listed under Wis. Stat. § 961.16(3)(r). Wis. Stat. § under ule II controlled substance com/ http://www.merriam-webster. Benzoylecgonine, See 2015). (last visited Feb. dictionary/benzoylecgonine 346.63(l)(am) may person "No states: Stat. § Wisconsin has a person vehicle while: operate a motor drive or in his or substance of a restricted controlled amount detectable her blood." 967.055(lm)(b) con- defines restricted Stat. § Wisconsin following: "1. A controlled any as of the trolled substance than a I under ch. 961 other in schedule included substance analog, as substance 2. A controlled tetrahydrocannabinol. (4m), described a controlled substance 961.01 defined in s. 4. Metham- any its metabolites. in subd. 1. 3. Cocaine Delta-9-tetrahydrocannabinol." phetamine. Seifert, presiding. Karen L. The Honorable ("Labora *10 Laboratory Hygiene the Wisconsin State tory") destroyed of sample, his blood in accordance with procedures, opportunity routine he before had the to charge argued operating test it. Luedtke also that the of a motor vehicle with a detectable amount of a restricted controlled substance in the blood is unconstitutional Winnebago County without scienter.5 The circuit court rejected appealed. claims, both and Luedtke appeals
¶ 4. The court of and affirmed concluded (1) process that State did not violate Luedtke's due rights Laboratory destroyed sample when his blood (2) procedures; in accordance with routine and that the prohibiting operating statute a vehicle motor with a detectable amount of a restricted controlled substance liability in require is a the blood strict offense, and thus does not Luedtke, scienter. 1. Fur- ther, the court concluded that the statute was constitu- tional. Id. Weissinger, County
¶ 5. In the Ozaukee District Attorney's charged Weissinger Office Jessica M. ("Weissinger") injury by with one count of use of a vehicle awith restricted controlled substance in the causing great bodily contrary blood harm, to Wis. Stat. 940.25(l)(am),6 operating § and one count of a motor vehicle a with detectable amount of a restricted con (Delta-9-tetrahydrocan trolled substance the blood ("THC")), contrary nabinol offense, second to Wis. Stat. is degree "[a] Scienter defined as knowledge of person legally makes a responsible consequences for the of his (9th Dictionary her act or omission." Black's Law ed. 2009). 940.25(l)(am) "Any Wisconsin Stat. person states: § who any does following guilty felony: of the of a F Class Causes great bodily harm to being by operation another human person vehicle while the has a amount detectable of a restricted controlled substance his or her blood." 346.63(l)(am). Weissinger filed trial, Prior a mo arguing other dismiss, that the admission tion process her due results into evidence violated test destroyed Laboratory rights had her blood because the opportunity sample to test The she had the it. before County motion, circuit court7 denied Ozaukee guilty subsequently jury her of both counts. found on both The court withheld sentence counts Weissinger period placed probation on for a of five years years count to be two, for count one and two for concurrently. probation, the a condition of As served jail time, ordered five months of conditional court pending Weissinger's appeal. ap stayed court concluding peals that the did not vio affirmed, State *11 rights Weissinger's process due when Labora late destroyed sample tory in with its her blood accordance Weissinger, procedures. ¶ 546, 355 2d 1. Wis. routine presented The for our review. 6. Two issues are applicable parties, is the State first, to both whether Weissinger's process rights Luedtke and due violated Laboratory destroyed samples, blood their when procedures, pursuant each had the to routine before applicable samples. opportunity second, to test the The operating only a motor vehicle Luedtke, is whether to controlled amount of restricted with detectable 346.63(l)(am) § in the under Wis. Stat. substance blood liability and, so, if offense, whether statute is a strict is constitutional. precedent, that, hold in First, we 7. based on preservation destruction, context evidence provide greater does
the Wisconsin Constitution not process protection 1, 8, Section under Article due 7 Williams, Sandy presiding. W. Honorable
13
18
Clause
than the United States Constitution under
either
Fifth9 or Fourteenth10 Amendments. As a
Youngblood,
(1988),
result, Arizona
488
prevail,
v.
U.S.
Accordingly,
in
controls.
order to
Luedtke and
(1)
Weissinger must show that
the State
failed to
preserve
apparently exculpatory,
that
evidence
was
(2)
by failing
preserve
acted
bad faith
evidence
potentially exculpatory.
Greenwold,
State v.
(Ct.
1994)
App.
2d 59,
Wis.
hicle with a detectable amount of a restricted con- trolled substance the blood under Wis. Stat. 346.63(l)(am) liability § strict is a offense that does not require scienter, constitutional. We therefore appeals. affirm the court of I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Michael R. Luedtke April On 2:07 at PM in Oshkosh, driving belonging Wisconsin, Luedtke, a Ford Escort Const, 1, 8, Wisconsin art person cl. states: may "No *12 be held to answer process for a criminal offense without due of law, person and no may put for same offense be twice in jeopardy punishment, of may compelled any nor be criminal against case to be witness or himself herself." Const, United person States amend. V states: "No shall deprived life, liberty, be . . . of property, or process without due of law." Const, XIV, United States amend. 1 states: "No state deprive any life, shall. . person liberty, . of property, without process due of law." extensively employer, vehicle, rear-ended another his injuring damaging and driver. Luedtke stated it its eyes he took his the accident when off that he caused phone. his Police officers the road to reach for cell eyewitnesses them that at the scene and told arrived bag-like item had a blue into sewer Luedtke stuffed Christopher Guiliani after the collision. Detective ("Detective Guiliani") sewer found a searched the and wrapped syringes around and a metal blue shirt six syringes, spoon. he hid the Luedtke later testified that spoon, panic in the in a because he but not the sewer they illegal thought He testified that items. also were not that items were in car that he did know the accident. before ("Offi- Joseph scene, At the Officer Framke Framke") spoke Luedtke admitted
cer with Luedtke. prescription medications that he had taken several occasionally marijuana. consented and used Luedtke found, Framke to a of his vehicle Officer search syringes pocket, the driver's side door three additional containing pow- prescription and an unlabeled bottle Luedtke, In der his initial interactions with residue. signs any significant of Officer Framke did not notice impaired Luedtke intoxication but concluded that sobriety tests. De- standard field after Luedtke failed Robertson") ("Detective admin- Brett tective Robertson helps 12-step that to determine if a istered a test drugs person and concluded is under the influence impaired. that his that Luedtke was Luedtke claimed prior sobriety poor performance tests was due on the injuries, misunderstanding directions, his injuries during he the accident. Detec- sustained puncture marks fresh tive Robertson also observed right Luedtke admitted that near Luedtke's thumb. *13 while he did inject morphine, particular puncture marks observed Detective Robertson were by from work not injuries, drugs. It is at PM on undisputed that 3:28 the day
of the accident conducted a police legal blood draw. draw, Prior to the blood Detective Guiliani read Lu edtke the "informing accused"11 form after which Luedtke consented the blood draw. The informing the accused form that: told Luedtke agency
This law enforcement now wants to test one or breath, samples your more of blood or urine to deter- drugs your mine concentration of or alcohol system. you you requested tests, may ... If take all the may choose to take further tests. You take the alter- agency native test that this law provides enforcement may charge. by free of a You also have test conducted your qualified person your a at expense. choice Luedtke declined an alternative test. 12. On April 2009, Luedtke's blood sample
I arrived the Laboratory, at a health public laboratory at the University of Wisconsin that by accredited American Board of Forensic Toxicologists and that acts independently from of any direction law enforce- ment agency. May 1, 2009, On Advanced Chemist ("Neuser") Thomas Neuser tested Luedtke's for sample Laboratory alcohol. The generated report 343.305(4) requires Wisconsin Stat. that a law enforce provide ment officer certain person being information to a after operating arrested for while under the influence alcohol or drugs. The officer inform must the arrestee that his or her blood, breath, sample drugs or urine will be for tested alcohol. The officer also must inform the arrestee that he or she right has the charge take an alternative test free of and to by qualified have a person test conducted of the arrestee's expense. choice and at the arrestee's *14 May indicating that Luedtke's blood tested in 2009 "Speci- report negative for alcohol. The stated men(s) longer no than six months be retained will agency subject." requested by or unless otherwise sample 18, 2009, the under 13. On November Chromatograph comprehensive with a Gas went more ("GCMSD")drug panel screen. Mass Selective Detector anti-depressant presence of the This test indicated methadone, and the anti- venlafaxine, the narcotic therapeu anxiety diazepam, medication all within the presence range. The also indicated the tic test results nanograms12 per milliliter, 20 cocaine, of at less than benzoylecgonine, at 330 the cocaine metabolite and nanograms per limit for co milliliter. The detection reported nanograms, it is as below which caine ten Laboratory gen 2009, In not detected. November drugs report as that identified these erated a second present in Luedtke's blood. Laboratory copies mailed of both reports report
May to Lu- and November edtke, he never received them. but he claims that Winnebago 18, 2009, the 15. On December charged County Attorney's Office Luedtke District operating vehicle while of a motor with one count (diaz- a controlled substance under the influence of epam methadone), eighth, seventh, or ninth of- 346.63(l)(a), contrary § and one fense, to Wis. Stat. operating a motor vehicle with a detectable count of (cocaine a controlled substance amount of restricted benzoylecgonine) blood, in the sev- metabolite, its contrary eighth, to Wis. Stat. enth, offense, or ninth 346.63(l)(am). gram. nanogram A is one billionth ap- appear ¶ 16. Luedtke failed to at his initial pearance January 11, 2010, scheduled for because he custody Outagamie County. February On Laboratory destroyed Luedtke's blood sample. Luedtke claims that he first saw the blood test appearance May at results his initial on 28, 2010, 17. On December Luedtke filed suppress motion to dismiss test results ground Laboratory destroyed on the that the had his blood. The circuit court ing motion, denied Luedtke's find- part
no evidence bad faith on the of the Labora- tory. suggested jury The court that Luedtke inform the *15 given sample that he was not a chance to retest the due to its destruction. April 17, 2012, 18. On the State tried Luedtke jury. a
before Luedtke's counsel cross-examined testing Neuser, who testified that blood is not infallible reported always and that the value does not match the target an value with cocaine, unstable molecule like though discrepancy this does not constitute a false positive. Luedtke also Framke, cross-examined Officer display signs who admitted that Luedtke did not of impairment during their initial interactions. Luedtke explained testified and venlafaxine, his use of metha- diazepam, any done, and and denied cocaine use. Luedtke also testified that he could not retest his blood sample Laboratory destroyed because the it he before was Further, aware of the results. Luedtke admitted syringes, spoon, that he hid the but the not in the During closing argument, sewer. his Luedtke focused Laboratory's sample. on the destruction the of blood expert object any Luedtke did not call witness, an jury request any instructions, or additional informa- tion be added the record. guilty jury of 19. The found Luedtke not count operating influence of a controlled
one, under the jury guilty two, of The found Luedtke count substance. operating a detectable amount of a motor vehicle with April On a controlled substance the blood. restricted judgment conviction, entered of 17, 2012, the court a probation placed on sentence, and Luedtke withheld period years, of for offour with 12 months conditional a jail imposed stayed. time, May post- 31, 2013, On Luedtke filed challenged admission into conviction motion that test result and the constitution- evidence of blood 346.63(l)(am). ality § that, He asserted of Wis. Stat. if test into even the court admitted the blood results jury evidence, the have been instructed that should sample they could have been could infer that destroyed. exculpatory also had it not been Luedtke that he denied the effective assistance contended motions, con- of counsel. cluding circuit court denied violate Luedtke's due that the State did not destroyed Laboratory process rights his when the sample. The also concluded that court 346.63(l)(am) liability of- constitutional strict fense. appeals court 21. On June judgment conviction and
affirmed the circuit court's *16 ap- denying postconviction The relief. court of order 346.63(l)(am) liability peals a concluded that is strict Luedtke, offense and constitutional.
¶¶ The court also concluded that Luedtke 15-19. sample apparently to failed show that his blood was destroyed exculpatory Id., it in bad faith. that was Finally, despite ¶¶ 22, that, the court concluded sample's a fair destruction, Luedtke received the blood Id., 25-26. trial. successfully petitioned
¶ 22. Luedtke court this for review. Weissinger
B. Jessica M. July Mequon, 23. On 2009, in Wisconsin, Weissinger's between PM, 5:00 and 5:30 col- vehicle motorcycle. motorcyclist lided with a saw Weiss- inger's Weissinger vehicle swerve into his lane when Despite applying turned left at an intersection. his motorcyclist Weissinger's brakes, struck vehicle pavement causing and was thrown to a broken back, wrists, shattered a laceration, head and a con- cussion. Weather not a factor in the crash. emergency 24. Law enforcement and medical personnel arrived at the scene and administered treat- motorcyclist. Investigating ment to the Officer Mark ("Officer Riley Riley") spoke Weissinger with for about Riley Weissinger one minute. Officer noted that had eyes, acknowledged bloodshot but that this was consis- necessarily tent with her emotional state and not ("Officer impairment. indicative of Officer Brent Smith Smith") Weissinger also examined and did not believe her be intoxicated. Riley initially 25. Officer did not believe that
Weissinger drugs was under the influence of or alcohol. anticipating fatality investigation, However, he ob- Weissinger's tained consent for blood draw. Officer Riley transported Weissinger hospital to the in a Mequon Department undisputed, Police vehicle. It is however, that she was not under arrest at the time. police Weissinger Because did not arrest an for impaired driving offense, Officer Smith was not re- quired provide "informing her with an the ac- *17 warning her blood draw. Officer Smith before cused"13 Weissinger did inform that she he not testified that also that he test but testified could take an alternate request complied such a had she have with would made one. evening, technician At 6:45 PM that same parties Weissinger's blood, all drew with
Lisa Brandt confirming the draw and the return of that both the July police acceptable. sample 2009, 10, On the were to Laboratory. Weissinger's sample arrived at the blood Laboratory July 2009, the blood 13, On sample the tested day, Laboratory following the for alcohol. The generated report that the results did that stated test presence report alcohol. also stated not show the longer "Specimen(s) no than six will be retained that: by requested agency or sub- unless months otherwise ject." August Laboratory 2009, the tested On drugs
Weissinger's sample using for the GCMSD Weissing- drug panel screen. The GCMSD found that range near-therapeutic levels of contained er's blood range therapeutic anti-depressant the fluoxetine February oxycodone. On the narcotic levels of analysis revealed that her blood the final GCMSD nanograms per milli- at a 5.9 contained THC level of Laboratory generated 7, 2010, On March liter. identifying report presence THC. Laboratory July re- mailed the 28. The though
port report Weissinger, she March 2010 April them. In late that she never received claims amendment This incident occurred before 343.305(4), legislature amended in which the Wis. Stat. "informing the information require that accused" statute to injury, any involving grave provided be after vehicular collision harm, great bodily or death. *18 Laboratory sample
2010, the her discarded blood practice. accordance with its routine May County ¶ 24, 2010, 29. On the Ozaukee Attorney's charged Weissinger District Office with one injury by count of use a vehicle a with restricted (THC) causing great controlled substance in the blood bodily contrary 940.25(l)(am), harm, § to Wis. Stat. operating count and one a motor vehicle with a amount detectable (THC) of a restricted controlled substance contrary blood, in the offense, second to Wis. 346.63(l)(am). Stat. May Weissinger 3, 2011, 30. On made her first
request sample. after, to retest the blood Soon she filed May sample. a formal motion to the retest In Laboratory destroyed informed that her it had her sample Weissinger April blood in late 2010. filed a charges ground motion to dismiss the on the that her sample destroyed. blood had been The circuit court Weissinger's concluding motion, denied that the State Weissinger's process rights. did not violate due April From 23-24, 2012, 31. the case was tried jury. gave Weissinger before The a circuit court wide during Weissinger latitude cross-examination. cross- Amy ("Miles"), examined Advanced Chemist Miles analyst Weissinger's sample who tested blood for drugs. During acknowledged cross-examination, Miles testing that is not infallible and she that had no knowledge certain evidence or direct of whether Weiss- inger Laboratory's reports. received the Miles also that, testified based on results, the blood test Weiss- inger likely regular marijuana a user of probably had consumed substance within a few certainly accident, hours before within hours. prior gave Weissinger court, The also trial, addi- expert defense, hire witness her time to an for tional ultimately though to do declined so. she jury The court also allowed the circuit Weissinger explaining from she was hear statement sample longer her it no retest because unable to indicating prohibited State The court from existed. May Weissinger request a until 2011 to waited the blood. retest of Weissinger jury guilty of both found placed The circuit court withheld sentence and
counts. years probation period for of five for count one her on *19 years period count served two, of two for to be and a concurrently. probation, As a of the court condition stayed jail time, five months of conditional Weissinger's appeal. ordered pending appeals
¶ 2014, 25, rejected Weissinger's argument June the court of 34. On court affirmed. The sample due destruction of her blood violated
that the Weissinger, process. ¶ 546, court 2d 1. The 355 Wis. Youngblood, Weissinger pursuant that to reasoned sample appar- either the blood was failed to show that destroyed ently exculpatory faith. or it in bad that was ¶ Id., 19. Reilly Judge Reilly Judge
¶ ar- dissented. 35. system gued justice "[a] that allows criminal government person's destroy sole evidence of a oppor- guilt charging, meaningful prior a notice, tunity inspect State's evidence for accused to (Reilly, fundamentally Id., J., unfair." 31 dissent- f Reilly Youngblood inapplicable ing). Judge argued Weissinger's sample present in the case because merely inculpatory value, "conceivable eviden- had not (Reilly, dissenting). tiary significance." ¶ Id., J., 38 Weissinger successfully petitioned ¶ this court for review.
23
II. STANDARD OF REVIEW
¶ 37. "Whether state action constitutes a viola-
process presents
question
tion of due
law,
which
independently.
this court decides
. . ." State v. Neu-
mann,
¶
2013
58,
32,
WI
455,
832 N.W.2d
uphold
findings
560. We
the circuit court's
of historical
they
clearly
fact unless
are
Felix,
erroneous. State v.
¶
2012
36,
22,
WI
339
670,
Wis. 2d
III. DISCUSSION Youngblood A. Controls Weissinger's 39. primary argu- Luedtke and appeal ment on is that the Wisconsin Constitution provides greater process protections due than the United States Constitution in the context of evidence preservation disagree. and destruction. We Based on precedent our we hold that, in the context of evidence
24 Constitu- preservation destruction, the Wisconsin and process protections greater provide due does not tion the United 8, Clause than 1, Section Article under or either the Fifth does under Constitution States v. result, Amendments. Arizona As Fourteenth prevail, Youngblood, Luedtke and In order to controls. (1) Weissinger failed that the State have to show would exculpatory apparently preserve that evidence to (2) failing preserve by to evidence faith acted in bad exculpatory. II, potentially Greenwold that was appar- samples neither were The blood 2d at 67. Wis. destroyed therefore, ently exculpatory faith; in bad nor Weissinger's due Luedtke did not violate the State process rights. stare doctrine of follows the "This court abiding respect scrupulously for of our because
decisis Employers Controls, Inc. v. of law." Johnson the rule 60, 665 94, 264 Wis. 2d Wausau, 2003 WI Ins. of Adhering precedent to N.W.2d will not be abandoned existing law that ensures every existing open to revision law lightly. When judicial a mere exercise case, deciding cases becomes Conse- unpredictable results. will, arbitrary and with any departure from held that court has quently, this special justifica- demands stare decisis the doctrine of tion. 2d Natwick, 37, 257 Wis. 2002 WI v.
Schultz omitted). (citations quotations 653 N.W.2d of stare following the doctrine for The rationales desirability law '[1] the ... include: decisis individuals, conduct of guide clear for furnish a assurance affairs with plan their them enable fur- importance of surprise; [2] the against untoward *21 expeditious adjudication by fair and thering eliminat- every ing relitigate need to proposition the relevant in every case; and [3] the necessity maintaining public of judiciary the a impersonal faith in as source of and judgments.' reasoned Controls,
Johnson Wis. 2d 60, 264 95 (quoting Lines, Inc., States Moragne 375, v. Marine 398 U.S. 403 (1970)). "Stare decisis is the preferred judicial [of course it evenhanded, action] because promotes predictable, and development legal consistent ... principles and to the and perceived contributes actual integrity Ferron, judicial 481, 504, State v. 219 process." Wis. 2d (1998) Tennessee, 579 654 N.W.2d v. (quoting Payne 501 (1991)). 808, U.S. 827 typically
Five factors contribute to a decision to over- prior likely turn case law. This court is more to overturn prior decision when or following one more of the (1) present: Changes developments circumstances or have the law undermined the rationale behind a (2) decision; there is a need to make a decision corre- (3) spond newly facts; ascertained is a showing there precedent has become detrimental coherence (4) consistency law; prior decision is (5) in principle; prior unsound decision is un- in practice. workable
Bartholomew v. Wisconsin Patients Comp. Fund &
Compcare Health
Ins.
91,
Servs.
2006 WI
Corp.,
33,
38,
omitted).
717
216
N.W.2d
(quotations
41. Wisconsin has
well-settled
and long
body of law
standing
on the due process implications of
See,
evidence
preservation
destruction.
State
e.g.,
Disch,
v.
119 Wis.
2d
351 N.W.2d
(1984);
492
State
Ehlen,
v.
Wis. 2d
(1984);
N.W.2d 503
State
(1984).
Walstad,
v.
Wis. 2d
preme
did not re-
that due
Court concluded
sample
preservation
quire
order
of breath
breathalyzer
Trombetta, 67
at trial.
results
introduce
though
could lead to
Even
a re-test
U.S. at 491.
exculpatory
held
evidence,
the Court nevertheless
process
the de-
due
violation because
there was no
good
in accordance with
faith and
struction occurred
practice.
at 488.
retention
Id.
normal evidence
Youngblood,
Supreme
In
Court reaf-
principle.
importance
firmed this
The Court noted "the
purposes
good
for constitutional
or bad faith on
part
of the Government when the claim is based on
loss of evidence attributable to the Government."
Youngblood,
unwilling
¶ 45.
Wisconsin courts have
precedent.
adhered to this
appeals
II,
In Greenwold
the court of
process
concluded that "the due
clause of
the
equiva-
Wisconsin Constitution is the substantial
respective
lent of its
clause in the federal constitution."
(citing
II,
Greenwold
¶
longstanding
46. Therefore, under
Wisconsin
precedent, it is clear that the routine destruction of a
sample,
driver's blood or breath
more,
without
does not
deprive
process.
prevail
a defendant of due
To
on a due
process challenge, the defendant must show that the
apparently exculpatory
evidence was
or that
it destroyed in
II,
bad faith. Greenwold
tion alone does not create a due violation under Weissinger constitution, Luedtke and ar either gue both changes developments specifi law, that cally Dubose, 143, State v. 2005 WI 285 Wis. 2d undermined the 699 N.W.2d have rationale be precedent.14 hind our Dubose, I, In we held that Article Section 8
of the Wisconsin Constitution contained a broader due process right than that contained within the Fifth and Fourteenth Amendments to the United States Consti- Dubose, However, tution. we right specific to the context of restricted this broader procedure "showup." Id,., an identification known as a showup pretrial ¶ 45. "A is an out-of-court identifica- presented procedure suspect singly tion which purposes." Id., a witness for identification 1 n.l omitted). (quotations explained and citation We by showup the identification of a defendant "a not will *24 totality unless, be admissible based on the of the showup necessary" circumstances, the a because "lineup photo array generally or fairer than a reducing showup . a . . thus risk of misidentifica- ¶¶ Id., 33, tion." 45. We held that the Wisconsin greater protection provided con- Constitution this text new studies had demonstrated that unre- because
14 briefing We restricted to the first Bartholomew factor: changes developments in the law in State v. "Whether Dubose, 126, 143, 582, Wis. 2d 699 N.W.2d have 2005 WI 285 Ehlen, Disch, Walstad, [the] undermined the rationale behind Pankow, and Greenwold II decisions."
29 eyewitness wrong- identification contributed to liable thereby providing compelling convictions, ful a justification overruling precedent. ¶¶ Id,., 29-30, for justices dissented, 33. Three and would have held that provided and federal identical state constitutions (Wilcox, dissenting), protections. ¶ ¶ Id., J., 56 68 (Prosser, dissenting), (Roggensack, J., J., 89 dissent- ing). post -Dubose, However, we have held that precedential change
the decision did not create a sea recognition respect process with to the of a broader due protection under the Wisconsin than un- Constitution Drew, der the United States Constitution. In State v. App ¶¶ 213, 2, 17, 641, 2007 WI appeals 404, N.W.2d the court of held that DuBose did respect precedent lineups photo not alter with arrays, explaining recognized that Dubose iden- those procedures preferable showup. tification are to a In Hibl, 52, 56, State v. 2006 WI 595, Wis. 2d directly 194, N.W.2d we held that Dubose did not spontaneous control or accidental identifications of by lacking police defendant a victim involvement. Finally, Ziegler, ¶¶ 81-82, State v. 2006 WI distinguished Wis. 2d 816 N.W.2d we showup through from an identification made in court showing single mug of a shot. correctly notes, 50. The State even within the specific eyewitness post- identification, context of jurisprudence Dubose confirms the limited reach itsof holding: process actual that due under the Wisconsin provides greater protection Constitution in one identi- procedure, showup. fication language Dubose withdrew no Ehlen, Disch, Walstad,
from or Pankow. change Dubose is therefore not a sea or even a devel- *25 opment sufficient to undermine the rationale behind Ehlen, Disch, Walstad, Pankow, and Greenwold II. questions precedential
¶ 51. Luedtke
value
they
of Ehlen and Disch because
were decided before
Dubose.
did
Dubose
not involve evidence destruction.
provides
protec-
The Wisconsin Constitution
identical
tions to the United States Constitution in this context.
argues
Luedtke also
that Ehlen and Disch are distin-
guishable
implicitly
because "the Court
assumed the
specific
defendants were aware of the
focus of the
testing
argues
on alcohol." Luedtke
that, unlike the
Disch,
defendants in Ehlen and
he had no reason to
independent
prior
Laboratory's
seek an
test
to the
sample.
destruction of his blood
That distinction is not
persuasive. When the State conducted
draw,
the blood
the officer informed Luedtke that his blood would be
drugs
tested for
and alcohol and that he could have the
independently
Although
alleg-
blood
tested.
Luedtke
edly
sample
had no reason to
that
believe
his blood
positive
would test
for restricted controlled substances
Laboratory destroyed
before the
it, he knew that his
sample
drugs.
would be tested for
Thus, he had
independent
reason to seek an
test before the Labora-
tory destroyed
sample.
Disch,
his blood
In Ehlen and
significant
we found it
the defendants knew of
right
independent
their
to seek
tests before the State
destroyed
samples. Ehlen,
their blood
"law enforcement
now wants to test one or
samples
your breath,
more
blood or urine to deter-
drugs
your
mine the concentration of alcohol or
343.305(4).
system."
See Wis. Stat.
Luedtke thus
*26
investigation
knew the nature of the
when he declined
pursue
Weissinger's
an alternate test. Luedtke and
argument
discovery granted
post-charge
that
them a
right
preservation
sample
to the
of the blood
is in
longstanding precedent.
conflict with our
We have
consistently held that
it
results,
is the test
not the
samples,
discovery
blood
that fall within the
statute.
Ehlen,
sin Constitution no due regarding tections than the United States Constitution preservation proceed evidence and destruction, we now application Youngblood Again, to the Youngblood of the test. under process rights regarding
a defendant's due
the destruction of evidence are
if
violated
the State
(1)
preserve
apparently
fails to
evidence that is
excul-
(2)
patory
by failing
preserve
acts in bad faith
potentially exculpatory.
evidence that is
II,
Greenwold
their blood
were
positive
fact that Luedtke's blood tested
for restricted
controlled substances, cocaine and its metabolite ben-
zoylecgonine,
appar-
demonstrates that his blood was
ently
exculpatory.
e.g.,
See,
not
Fisher,
Illinois v.
(2004) ("[P]olice testing
U.S.
indicated that
makeup
inculpated,
the chemical
of the substance
not
exculpated,
respondent.").
[the]
Weissinger
Nor has
sample
apparently exculpa-
shown how her blood
was
tory
Laboratory destroyed
at the time the
it. Her
sample,
positive
which tested
for the restricted con-
inculpatory
trolled
THC,
substance
was
as well. Id.
Weissinger's
process
Luedtke and
due
destroy
claims also fail because the State did not
their
samples
argues
bad faith. Luedtke
that the
by destroying
sample
State acted in bad faith
his blood
charged
after he
before he received notice of
charge. Weissinger argues
the State
acted
bad
by destroying
sample
charged.
faith
her
before she was
Weissinger
prove
However, Luedtke and
have failed to
they
bad faith because
have not shown that the State
(1)
potentially exculpatory
was "aware of the
value or
[the
pre-
State]
usefulness of the evidence
failed to
*27
(2)
serve"; and
"acted with official animus or made a
suppress exculpatory
conscious effort to
evidence." See
II,
Greenwold
[R] a defendant to show bad faith on the police of police's the both limits the extent of the obligation preserve to evidence to reasonable bounds and confines it to that class of cases where the inter- justice it, i.e., clearly require ests of most those cases police by in which the themselves their conduct indi- cate that the evidence could form a basis for exonerat- ing the defendant.
Youngblood,
¶ 56.
bad faith is
sensible
sample
positive
once a blood
has tested
for a controlled
point
sample
substance,
at
because
is "much
likely
provide inculpatory
exculpatory
more
than
Trombetta,
evidence." See
Wis. 2d
placed.
trast, explained patory above, the fact that because, as value positive sample indicated for THC her blood tested supra, inculpatory. sample See, that her blood evidence that faith, destruction of 54. Absent bad merely exculpatory potential violate value does not has (citing process. II, Wis. 2d at 67 due Greenwold 58). Youngblood, at 488 U.S. Finally, Weissinger Luedtke and re- both Disch, we framed the
ceived fair trials. In Ehlen
destroyed
process
as one of
due
issue when evidence is
456;
2d at
and in
fairness,
¶ 60. Luedtke cross-examined witnesses and the gave opportunity expert him an court to call his own although witness, he chose not to do so. Luedtke also opportunity jury had the to tell the that he was unable sample Laboratory to test his blood because the de- stroyed discovery it. Luedtke received and additional prepare time from the circuit court to his defense and Laboratory through to seek documents from the an open request. Although records Luedtke was unable to sample, analyze retest the blood he was able to the raw methodology Laboratory data and that the used to test sample. Further, the when Luedtke's blood was drawn writing, right the officer independently him, informed of his sample test the or to have a second test performed by safeguards the State. Due to these these we conclude that Luedtke's claim of an unfair trial is unpersuasive. Weissinger
¶ 61. also received a fair trial. The gave Weissinger circuit court full rein to cross-examine Weissinger the State's witnesses. also received discov- ery. Although expert witness, she did not call an granted circuit court her extra time to hire one. The jury Weissinger's circuit court instructed the sample motion to retest her blood was denied because Laboratory destroyed sample her before the State charges. filed We have held that defendants unable to independently samples test their blood have received fair Disch, trials under similar circumstances. See Ehlen, 471; Wis. 2d at 2d at Wis. 456-57. Laboratory ¶ itWhile is true that de- stroyed Weissinger's sample before the State filed charges, obligation preserve it was under no any sample longer than its internal six month reten- policy required. Laboratory upheld Further, tion duty Weissinger mailing its the test results. The test *29 requested other- that, her unless she informed
results destroy sample Laboratory her blood wise, would Weissinger receipt. Further, was months after its six draw, her thus the at the time of blood not under arrest regarding obligation advise her no to officer was under Weissinger argues opportunity additional tests. for distinguishable not told because she was that Ehlen is right independently test her to that she had the destroyed. sample However, Ehlen is still it was before requested controlling. Weissinger in- Ehlen both destroyed dependent their after the State tests samples. Ehlen, fact, Ehlen, at In 119 Wis. 2d 453-54. destroyed Weissinger, charged after the State like was sample. Id. his blood Consequently, we hold that because Weissinger's due violate Luedtke and
State did not
process rights,
that the circuit court was
we conclude
jury
allowing
jury
required
give
not
to
instruction
exculpatory.
infer
was
that the lost evidence was
Nor
To
denied the effective assistance of counsel.
Luedtke
counsel,
Luedtke
demonstrate ineffective assistance
performance
deficient
show that counsel's
must
prejudiced
performance
him.
that
the deficient
(1984).
Washington,
668, Strickland v.
466 U.S.
arguments,
rejected
Luedt-
Because we have
Luedtke's
fail.
claim of ineffective assistance of counsel must
ke's
Maloney,
¶ v.
2005 WI
See State
("Counsel
not render defi-
595,
B. a Motor Vehicle with a Restricted Con- trolled Substance in the Blood is a Constitutional Liability
Strict Offense. operating 64. Next, we consider whether a mo- tor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. 346.63(l)(am) liability § is a strict offense, and, so, if Only whether the offense is constitutional. Luedtke presents though this as an issue for review, we note charged Weissinger the State under the same operating statute. We hold that a motor vehicle with a detectable amount of a restricted controlled substance 346.63(l)(am) in the blood under Wis. Stat. is a strict liability offense and is constitutional. liability 65. "An offense is a strict if offense it
punishes
regard
a defendant's behavior without
to the
mental state of the
Polashek,
defendant." State v.
¶ 74, WI
27,
527,
253 Wis. 2d
when liability held that the statute creates a strict we have offense.") language Because the of the statute does not weighs contain scienter this factor in favor of strict liability. language factor, The second the of related weighs liability.
statutes,
of strict
Related
also
favor
1)
prohibit
operation
the
of a motor vehicle
statutes
2)
prohibited
opera
concentration,15
with a
alcohol
by
tion of a motor vehicle
a driver who has not attained
legal drinking age
any
and who has
alcohol in his
346.63(l)(b)
person may-
Wisconsin Stat.
states: "No
§
operate
person
a
a
drive or
motor vehicle while:
has
prohibited alcohol concentration."
3)
operation
blood,16
or her
of a commercial
any
motor vehicle with
alcohol in the driver's blood.17
These statutes do not refer mental
state and thus do
require
showing
not
of state of mind. Had the
legislature
operating
intended
while under the influ
require
knowledge requirement,
ence crimes to
we
expect
requirement
would
to see such a
in related
legislature
statutes, but none exists.
Because
has
requirement
not drafted a scienter
into the related
statutes, we will not read one into this statute.
Jadowski,
22.18
legislative
factor,
68. The third
the statute's
history,
weighs
liability.
also
favor of strict
In the
346.63(2m)
person
Wisconsin Stat.
states: "If a
§
has not
legal drinking age,
(8m),
attained the
as defined in s. 125.02
person may
operate
not drive or
a motor vehicle while he or
an
she has
alcohol concentration of more than 0.0 but not more
than 0.08."
(7)(a)l
person may
Wisconsin Stat.
346.63
states: "No
operate
duty
drive
respect
or be on
time with
to a commer-
any
cial motor vehicle under
following
of the
circumstances:
having
While
an alcohol concentration above 0.0."
*32
Griffin,
371,
Luedtke's reliance on State v.
(Ct.
1998),
App.
Two defenses are available if a detectable amount of a restricted controlled substance is found the blood- (1) causing stream: a defense to injury death or if the prove defendant can injury or death would have occurred even if the exercising defendant had been due care and did not have a restricted controlled substance *33 (this her is an extension of defenses in his or (2) law); a under current defense to available GHB, having methamphetamine, ingre- or the active marijuana in if the defendant dient of the bloodstream prescription she had a valid for that can show he or substance. Importantly, "unknowing ingestion" is not
Id. at listed as a defense. legislative history Further, indicates prosecutions legislature make intended to by removing require-
easier, the "under the influence" Requiring prove knowledge the State to would ment. undoubtedly prosecutions By difficult. re-
make more moving requirement the "under the influence" and not "unknowing ingestion" providing defense, as a attempting regulate drugged legislature driv- good, impose high ing, accomplish a social using drive after re- standard of care on those who stricted controlled substances. practi- factor, law enforcement 70. The fourth liability.
cality, weighs Intent can also in favor of strict prove, argument difficult and, under Luedtke's be knowingly defendant could assert that he did not ingest and thus es- a restricted controlled substance liability. example, cape a defendant could claim For marijuana accidentally smoke, or ate a that he piece inhaled legislative candy of laced with cocaine. The history legislature make indicates that the intended to knowledge Requiring proof prosecutions Id. of easier. contrary practical purpose enforce- or intent is to the ment. public protection factor, 71. The fifth liability. weighs harm, in favor of strict
from further legislature enacted the statute because drivers in their have restricted controlled substances who *34 public safety.19 Smet, blood are a threat to See State v. App 263, 16, 2005 WI 288 525, Wis. 2d 709 N.W.2d legislature 474. The created a strict standard to facili prosecution drugged driving protect tate the and to Jadowski, those who travel on the roads. See 272 (holding legislative purpose Wis. 2d 24 protecting weighs liability). children in favor of strict potential penalties factor, 72. The sixth imposed, "significant is neutral. This factor is a con- determining sideration in whether a statute should be dispensing Id., construed as with mens rea." liability "Criminal without criminal intent almost al- ways impose has involved statutes that fines or short jail sentences." Id. A first-offense violation of 346.63(l)(am) § is a civil forfeiture. Wis. Stat. 346.65(2)(am)l. § up A second offense can result in jail, up six in and a third months offense can result in 346.65(2)(am)2-3. year jail. § to one in Wis. Stat. A year jail, fourth can offense result in one if the individual has a total of four convictions their felony lifetime, or a H Class with six or more months of imprisonment, if the individual has a total of four lifetime, convictions in their one of which was in the 346.65(2)(am)4 years. § last five Wis. Stat. A fifth —4m. 19The Institute for Behavior and Health estimates that 20 percent by of motor vehicle drugged crashes are caused driv- ing, 8,600 deaths, 580,000 which injuries, "translates into property damage year billion in $33 each in the United States." Cafaro, Tina Wescott Slipping Through Why the Cracks: Can't Stop Drugged We Driving?, Eng. 32 W. New L. Rev. (2010). DuPont, See M.D., also Robert L Drugged Driving (Mar. A Paper 31, 2011), Research: White http://stop (re- druggeddriving. org/pdfs/DruggedDrivingAWhitePaper.pdf porting that fatally injured one-third of drivers with known positive test results drugs.). tested for felony subsequent results in a Class H for offense felony eight, seven, for convictions, or six a Class G five felony F convictions, and a class for ten or more or nine 346.65(2)(am)5-7. These se- Wis. Stat. convictions. repeated penalties violations of the statute vere for legislature "support an inference that did not liability." impose Jadowski, See intend to strict ¶¶ However, though any ulti- 2d 27-29. this factor is Wis. *35 mately because, convictions after neutral felonies, the is a civil the third offense are first offense mandate forfeiture, and the second and third offenses "any jail only Nevertheless, inference short sentences. penalties outweighed by drawn from the severe ¶ id., Polashek, 527, 253 2d 29; other factors." See Wis. (noting although imprison- ¶ six months of 32 seriousness, crime we have ment indicates a of some felony impose strict held that some liability). criminal statutes apply ¶ 73. decline Luedtke's invitation to We lenity. lenity rule The rule of states "that ambiguous penal interpreted in statutes should be Cole, 59, 2003 WI favor of the defendant." State v. | apply 167, 2d 663 67, 262 Wis. N.W.2d We "(1) only ambigu- lenity penal if rule of statute is (2) clarify [a is] ous; and court unable to the intent of by legislative history." legislature Id. Here resort to liability. unambiguous imposes the statute is strict legislature knowledge did not include or intent as lenity thus, of the crime and the rule of an element apply. does not Alternatively, argues that, Luedtke with- scienter, the statute is unconstitutional and vio-
out
rights.
process
"The Due
lates his substantive due
43
Process Clauses
the United States and Wisconsin
protect
procedural
Constitutions
both substantive and
process rights."
due
State ex rel.
v.
Greer Wiedenhoeft,
¶ 55,
19,
307,
WI
353 Wis. 2d
¶ scrutiny 76. We rational basis to this implicate statute because the statute does not a fun right suspect damental Smith, class. See State v. ¶ 2010 16, 12, WI 323 377, 90; Wis. 2d 780 N.W.2d ¶¶ Rational basis scru- 525, 21-26. Smet, Wis. 2d rationally tiny related to is if the statute is satisfied governmental Smith, achieving legitimate interest. a ¶ faced with substantive 377, 12. When Wis. 2d challenge, the stat- process "whether we examine due legisla- to the rational means and is a reasonable ute ¶ 11. Smet, 288 Wis. 2d end." tive scrutiny present case, rational basis In the rationally related to is the statute because is satisfied agree safety. achieving public the Id., with 17. We addressing problem "[i]n appeals of that court reasonably driving, legislature drugged have could 'proscribed rationally substances that concluded may potency widely purity range be and thus in Luedtke, unpredictable and effect.'" their duration omitted). (citation Though it driving people after may from difficult to deter be more ingesting unknowingly sub- controlled a restricted dangerous as those are at least as stance, such drivers ingest knowingly sub- controlled a restricted who of im- measure" no "reliable Further, because stance. legislature drugs, many pairment illicit for exists reasonably more sen- that concluded could have having any approach from drivers was to ban sible systems. Smet, 2d 288 Wis. in their amount rationally legislature a strict conclude that could way approach liability, the best zero-tolerance Ultimately, driving. drugged are "satisfied we combat operation while prohibiting vehicle of motor having controlled a restricted amount of a detectable scienter] proof [without one's substance relationship and rational a reasonable bears *37 objective purpose that the statute statute, and of the or
45 fundamentally Id., ¶ is not 20. unfair." Wisconsin 346.63(l)(am) presents process Stat. no due violation and is constitutional.20 Therefore, 78. because the statute ais strict
liability constitutional, offense is Luedtke is not justice. in entitled to new trial the interest of jury did Because not have to determine whether or ingested cocaine, not Luedtke knew he the real contro- versy fully Bannister, tried. 2d 158, Wis. 43.
IV. CONCLUSION precedent, First, based that, on we hold preservation the context of destruction, evidence greater provide the Wisconsin Constitution does not process protection due under Article Section Clause than the United States Constitution under Fifth either the or Fourteenth Amendments. As a Youngblood Accordingly, result, prevail, controls. in order to Weissinger
Luedtke and
must show that the
(1)
preserve
appar-
State
failed
evidence that was
(2)
ently exculpatory,
by failing
acted
bad faith
preserve
potentially exculpatory.
evidence that was
II,
Greenwold
By the court of decision of Court.—The the is affirmed. the two cases in each of (concur- ABRAHAMSON, C.J. ¶ S. 81. SHIRLEY State ring). is whether the the court The issue before rights (protected process defendants' due the violated Constitution) laboratory, when a the Wisconsin under destroyed practice, following the defendants' routine opportunity samples. had an defendant Neither sample. independently test his | question of raise the broader These cases 82. due capacity a matter of defendant, as of the the gain the defendant process evidence access to law, to may use at trial. deciding approaches in two The court takes 83. lose:
that the defendants deny approach that is The first 84. greater protection than offers constitution Wisconsin Rather, the court holds Constitution. the United States Supreme Court decision United States that (1988), interpret- Youngblood, U.S. 51 v. Arizona guaranty, process ing due the federal constitutional guaranty of due applies constitutional to the Wisconsin process. approach assert that is to The second by decisis, of stare the doctrine bound, under
court is Youngblood. adopting prior decisions its present approach to the third I take a process rely of the clause on the due I do not cases. require hereafter I would Constitution. Wisconsin a circuit court to instruct finder in the fact cases like may, not, the instant that the fact but cases finder need destroyed infer that would evidence have been jury favorable to the defense. If hereafter such a given, instruction is not should be cause remanded for a new trial.
I disagree persistent I 87. First, with the court's antipathy construing to the Wisconsin Constitution's Rights differently way Declaration of from the the Supreme analogous United States Court construes an provision jurispru- in the federal Federal constitution. persuasive helpful, dence is and but this court must independent judgment considering competing make an principles policies under the Wisconsin Constitu- tion. precedent
¶ 88. We should follow our earlier re- garding interpretation of the Wisconsin Constitution. years ago, emphasized Ten the court that the similar- ity language between the in the Wisconsin Constitu- language tion and the in the United States Constitu- tion is not conclusive.
(cid:127) Knapp, 127, 60, In State v. 2005 WI Wis. 2d
86, 899, 700 N.W.2d the court stated: "While tex similarity identity tual important is when deter mining depart to when from federal constitutional jurisprudence, conclusive, it cannot be lest this power court its interpret forfeit to its own constitu tion judiciary. people to the federal of The this state shaped constitution, our and it is our solemn re sponsibility interpret jurisprudence to it. Federal is persuasive helpful, indepen but we must save considering competing principles judgment for dent the Constitution."1 policies under Wisconsin and (Citation omitted.) (cid:127) 41, Dubose, 126, 2d 285 Wis. v. 2005 WI In State "[Wjhile court stated: 699 N.W.2d divergence meaning in a of between
this results
state
same in
federal and
which are the
both
words
constitutions,
envisaged
system
of federalism
tolerates such
by the United States Constitution
divergence
greater protection
the result is
where
than under fed-
rights under state law
individual
omitted.)
(Quoted
law...."
source
eral
support
of office to
In
with
oath
keeping
my
of the
Constitution and the Constitution
the Wisconsin
States,
I
and Dubose and
Knapp
United
adhere
Doe,
172,
¶ case. v. applies The Arizona opinion majority
¶ constitution. to the Wisconsin Youngblood interpret ais troublesome case. Youngblood 1 55-81, 127, 285 2d v. 2005 WI Wis. Knapp, ¶¶ See State id., J., (Crooks, concurring, 86, 899; 84-94 ¶¶ 700 N.W.2d J.). Butler, Abrahamson, C.J., J., & Bradley, Justice joined by (Tex. Garcia, 4, 12 v. 834 S.W. 2d Davenport Crooks relied on 1992), interprets the consti- declaring: "When a state court merely of the Federal tution its state as restatement of Constitution, charter dignity it of state and both insults protection rights." their the fullest denies citizens
49 II majority opinion Second, relies on Wis (Greenwold precedent. consin See v. State Greenwold (Ct. II), App. 59, 2d 68-69, Wis. N.W.2d 1994).
¶ 93. Stare "let decisis, stand," the decision is an principle system justice. essential in bedrock our To precedent requires special justification. overrule "A keep damage court must that it mind does 'more to by obstinately refusing the rule lawof errors, to admit thereby perpetuating injustice, by overturning than an "2 erroneous decision.1 following 94. The court has set forth the factors typically prior contribute to a decision to overturn case law:
(cid:127) Changes or developments have undermined the decision;
rationale behind a (cid:127) There is a need correspond to make a decision
newly facts; ascertained (cid:127) is showing precedent There that the has become
detrimental consistency coherence in the law;
(cid:127) prior The decision "unsound in principle;" (cid:127) prior The decision practice; is "unworkable" in (cid:127) prior decided; The decision correctly was not (cid:127) prior produced decision not body has a settled
of law.3
sufficiently implicated
95. These factors are
present
justify overturning
case to
Greenwold, as
Comp. Fund,
v.
Bartholomew Wis. Patients
2006 WI
50 by Judge Brown's concurrence demonstrated Weissinger Judge Reilly's in the decision in the dissent appeals. court of Judge
¶ in concur Brown wrote 96. up Youngblood . The an illusion. . . bad rence: "sets by Supreme component Court sets devised the faith impossible virtually high to overc bar, a it is such Judge compiled comprehensive a re Brown ome."4 against Youngblood bad of criticism levied requirement view by and commentators state courts faith published only 1,500 7 out of cases alike.5 The fact that citing Youngblood illustrates the inher found bad faith Youngblood test. ent unfairness Judge Reilly ¶ "Acriminal wrote in dissent: 97. destroy government justice system to that allows the prior person's guilt notice, evidence of sole meaningful opportunity charging, the accused for fundamentally inspect unf evidence is the State's air."6 judges' unease with fed I share these 98. (and adopted by Youngblood
eral standard set forth law).7 case Wisconsin Youngblood II decisions and Greenwold protection give meaningful defendant. to a not
do [Youngblood] by "Ironically, law the rule of established upon an man."8 conviction of innocent was founded 4 73, 29, 2d App 355 Wis. Weissinger, v. 2014 WI State (Brown, 546, C.J., concurring). 780 851 N.W.2d 5 30, (Brown, id., C.J., concurring). See n.l 6 J., 546, (Reilly, dissenting). Weissinger, 355 2d 31¶ Wis. 7 Greenwold, 294 2d 525 N.W.2d State v. 189 Wis. 1994) (Greenwold (Ct. ID; App. majority op., ¶ see Blood, Blood, Young Bay, Old Bad Norman C. Process, Evidence, Bad and the Limits Lost blood: Due (2008). Wayne Faith, R. See also U. L. Rev. 86 Wash. *42 emerging among
¶ 100. is an There consensus courts that have considered the issue that the bad faith go enough protect adequately far standard does not to rights person charged agree of a with a I crime. require with those courts that viewed the bad faith "potentially pit ment as bottomless for a defendant's stepped trial, in a interest fair and back from the approach I brink."9 take a third to the instant cases.
Ill I conclude that under the circumstances of Youngblood these cases the court should moderate way helping Greenwold. One to alleviate the concern destroyed about evidence and ease the fundamental Youngblood requirement unfairness of the bad-faith is require an instruction that states that the fact may, destroyed finder not, but need infer that evidence have would been favorable to the defense.10 governs 102. This often court evidence requiring circuit courts and a curative instruction is not unusual in Wisconsin Indeed, law.11 this court 24.3(e) (3d LaFave, 2007). Criminal Procedure at 388-89 ed. § 9 (Md. 2010). State, 184, Cost v. 10 A.3d 195 rejected Numerous Youngblood states have Arizona v. on state grounds. Cynthia Jones, constitutional Right E. Remedy the Wrongly Convicted: Judicial Sanctions for for Evidence, Destruction (2009); 77 Fordham L. Rev. 2893 of DNA Blood, Bay, Blood, C. Norman Old Bad Youngblood: Due Process, Evidence, Faith, Lost and the Limits Bad 86 Wash. Fisher, U. (2008); 544, L. Rev. 279 Illinois v. 540 U.S. 549 n.* (2004) (Stevens, J., concurring). 10 propose given The instruction I would not be when it necessary sample destroyed perform for the to be the test. See State Ehlen, (1984). 451, v. 351 N.W.2d 503 superintending authority This court has over all courts. Wis. Const, 3(1). VII, C.J., WI 105, ¶ art. See In re Jerrell 110; id., Wis. 2d 699 N.W.2d see also frequency. A cura with on curative instructions relies by adopted has courts other tive been instruction present cases.12 like the states in cases jury not If instruction is hereafter such given cases, the cause in cases such as the instant a new trial. should remanded for be *43 approach I favor because there should this negligent consequences or loss or be for even innocent losing the evidence to deter State from destruction of destroying and to ensure that defendants or evidence of the State's conduct.13 do the total burden not bear account the The inference instruction takes into explanation evidence destruction of the State's of the by permitting finder the to draw an adverse fact when fact finder from the destruction the inference explanation the of the loss determines that State's inadequate. destruction is Finally, a the of I note that invocation important light especially in of
curative instruction is
developing
state.
law of evidence in this
recent
the
cases
being given
arguable
and
are
fewer
It is
that defendants
against
opportunities
them.
assess evidence
fewer
to
(Abrahamson, C.J., concurring);
v. Jezwin-
71-94,
Arneson
¶¶
('"The
(1996)
ski,
217, 226,
N.W.2d 721
Wis. 2d
556
206
necessary
power
and as
as
superintending
is as broad
flexible
justice
of this
in the courts
to
the due administration
insure
omitted)).
(citation
state.'"
12
(N.Y.
879,
See,
Handy,
e.g., People
988 N.E. 2d
v.
2013) ("An
done
charge mitigates the harm
inference
adverse
terminating the
without
by the
of evidence
to defendant
loss
2014)
(Ariz.
Glissendorf,
v.
rately. State, (Md. 2010). Cost v. 10 A.3d 196-97