State v. Copeland ( 2023 )

816
Submitted November 12, 2020, affirmed March 22, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEVIN SCOTT COPELAND,
Defendant-Appellant.
Josephine County Circuit Court
16CR16934; A169372
527 P3d 771
Defendant appeals judgments of conviction for murder with a firearm, ORS
163.115 and ORS 161.610, and felon in possession of a firearm, ORS 166.270(1).
Defendant assigns error to the trial court’s failure to give Uniform Criminal
Jury Instruction (UCrJI) 1030, the less-satisfactory-evidence jury instruction.
The challenge concerns the state’s accidental pretrial destruction of the mur-
der weapon before the defense could test it. The state responds that defendant
failed to satisfy the factual predicates for the 1030 instruction because defendant
did not establish that (1) the firearm was reasonably available to the state and
(2) that the firearm was more satisfactory evidence. Held: The trial court’s fail-
ure to give UCrJI 1030 was not error. The destruction of the murder weapon was
closest conceptually to the negligent spoliation of evidence, hence UCrJI 1030
was not required. Oregon does not currently have a uniform jury instruction for
negligent spoliation, and the Court of Appeals declined to address whether UCrJI
1030 could fill that gap.
Affirmed.
Lindi L. Baker, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Eric Johansen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Kamins, Presiding Judge, and Lagesen, Chief Judge,
and James, Judge pro tempore.
JAMES, J. pro tempore.
Affirmed.
Cite as 324 Or App 816 (2023) 817
JAMES, J. pro tempore
Defendant appeals his convictions for murder with
a firearm, ORS 163.115 and ORS 161.610, and felon in pos-
session of a firearm, ORS 166.270(1), raising three assign-
ments of error and one pro se assignment of error.1 We
reject defendant’s first assignment of error—challenging
the denial of his motion for judgment of acquittal—without
discussion. His third assignment of error, challenging the
giving of a nonunanimous jury instruction, is foreclosed by
State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020), cert
den, ___ US ___, 141 S Ct 2836 (2021), as the verdicts here
were unanimous. We write only to address defendant’s sec-
ond assignment of error, which concerns the state’s pretrial
destruction of the murder weapon, before the defense could
test it. As we explain, the destruction of this evidence is
deeply troubling, but the sole challenge on appeal is whether
the trial court erred by failing to give Uniform Criminal
Jury Instruction (UCrJI) 1030, the “less satisfactory evi-
dence” jury instruction, in response. UCrJI 1030 provides:
“LESS SATISFACTORY EVIDENCE (State’s Burden of
Proof). The state has the burden to establish the guilt of
the defendant beyond a reasonable doubt. When you evalu-
ate the evidence, you may consider the power of the state to
gather and produce evidence. If the evidence offered by the
state was weaker and less satisfactory than other stron-
ger or more satisfactory evidence that the state could have
offered, then you should view the weaker and less satisfac-
tory evidence with distrust.”
As we explain, the destruction of the murder weapon
here can best be conceptualized as the negligent spoliation
of evidence. Oregon does not currently have a jury instruc-
tion for negligent spoliation, and whether UCrJI 1030 can
fill that gap is an open question, but one we need not resolve.
Here, in light of how this case was litigated, the failure to
give UCrJI 1030 was not error. Accordingly, we affirm.
1
Defendant’s pro se assignment of error presents an unpreserved Due
Process argument. We typically will not consider claims of error that were not
raised in the trial court. State v. Nordholm, 293 Or App 369, 372, 427 P3d 211
(2018) (citing State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011)). Further, the
error claimed is not appropriate for plain error review in that it is not apparent
on the face of the record. We therefore reject that assignment of error without
further discussion.
818 State v. Copeland
We review a trial court’s failure to give a requested
jury instruction for errors of law. State v. Reyes-Camarena,
330 Or 431, 441, 7 P3d 522 (2000). An instruction is appro-
priate if it correctly states the law and is supported by
evidence in the record, when the evidence is viewed in the
light most favorable to the party requesting the instruction.
State v. Oliphant, 347 Or 175, 178, 218 P3d 1281 (2009). A
trial court is not required to give a requested instruction if
another instruction adequately addresses the issue. State v.
Tucker, 315 Or 321, 332, 845 P2d 904 (1993).
Defendant and the victim met each other for the
first time on the day of the murder in August 2013. They
were both staying with a mutual friend, and they decided
to visit a nearby bar together. Soon after the two men left
the bar, the victim suffered a gunshot wound to the head,
and his body was found on the side of the road. At trial,
witnesses for the state testified that they had seen two men
fighting by the side of the road shortly before the victim’s
body was discovered.
Defendant provided numerous inconsistent and con-
tradictory statements to law enforcement over the course of
the lengthy investigation, starting with the night the victim
was killed and concluding with his testimony before the jury
at trial. On the night of the killing, defendant told police
that after an argument, the victim had pulled a gun out
of his pocket, handed it to defendant, and asked defendant
to shoot him. Next, defendant claimed that he pulled the
magazine out of the gun, handed the gun back to the victim,
and put the magazine in his pocket. Early the next morn-
ing, detectives recorded another interview with defendant.
There, defendant explained that he and the victim left the
bar and were “playing around,” and then the victim “popped
himself” and another round fired out of the gun when it fell
to the ground. Defendant then picked up the weapon and
walked away with it.
About a week after the incident, defendant was
interviewed yet again. There, he claimed that when he and
the victim left the bar, the victim was swerving because of
his intoxication, and defendant tried to keep him out of the
road. Defendant saw that the victim had a gun, which he
Cite as 324 Or App 816 (2023) 819
took from him and cleared it, making it safe. He thought
the victim was joking around so he returned the gun to him.
The victim then put the gun to his head and shot himself.
The victim dropped the gun, which caused another round to
fire. Defendant took the gun and left the scene. He returned
to the scene after he informed the group that he was staying
with that the victim had shot himself.
In December of 2013, several months after the
shooting, a resident found a gun in her home’s water shut-
off valve. The state crime lab determined that the gun was
a French-made Unique .22 long rifle caliber semiautomatic
pistol. Due to rust, it was not operable; the slide was fro-
zen, and the trigger was immovable. The state lab cleaned
the gun, made it operable with a replacement magazine,
and test fired it. However, it was not possible to compare
the test-fired cartridge to the original cartridge, and the
lab could only conclude that the gun had “possibly” fired
the cartridge. Additionally, according to the state lab, the
firearm could not fire if there was no magazine in it—
even if there was a round in the chamber—because it had
a magazine safety that precluded firing when the mag-
azine was removed. Finally, if the firearm was dropped,
the state lab concluded that it was “unlikely” that it would
discharge.
The state possessed the weapon for the next more
than three years. In advance of trial, defendant requested
the firearm to submit to a defense expert for testing. The
state refused, and defendant filed a motion to compel pro-
duction. The following May, the trial court held a hearing
at which the state argued that it should not be compelled to
produce evidence to a defense expert that does not meet the
state’s approval:
“[DEFENSE]: I have Dr. Ray Grimsbo available by
telephone, but I submit, Judge, that we’ve requested that
certain items of evidence be sent to him for analysis. The
Court can see his CV in the state’s response to the motion
to compel discovery. The state has refused to send those to
him.
“He’s been in practice about 41 years as a private inves-
tigator, forensic scientist.
820 State v. Copeland
“And if the Court looks at the objection of the state, one
of the statements is that first of all they’re arguing that he’s
not a forensic—a firearm—well, that there’s no showing of
expertise with forensic—firearm forensic discipline. Then
the state indicates in their objection that due to the nature
of the evidence requested, which is consumable and subject
to destruction, the state’s not willing to send it because he
doesn’t show the capabilities in this discipline of forensic
firearm—firearm forensic.
“This is evidence that the state obtained in 2013—
excuse me, 2014. So it’s been about three and a half years.
The state has sent these same evidence items up to the—
their own lab twice, once back in 2014 and once last year I
believe, in 2016.
“So we’re talking about a firearm that is inoperable. It
was found. It had been out in the weather. So it’s inopera-
ble, it’s incapable of being fired. And a shell casing that was
found at the scene of the alleged crime. So those are the
items that we’re asking that the state’s had for three and
a half years. Even if the items were subject to destruction,
and I submit they aren’t, it’s a shell casing and a firearm,
since they’re not subject to—they can’t be destroyed. But
the state’s had them for three and a half years. They’ve had
them analyzed twice. They’ve sent them up to the lab for
analysis twice. How can the state object?
“And if you look closely at the state’s objection, it’s like,
well, we don’t like this expert you’ve picked, but give us the
name of another expert, and we’ll tell you if we like the
next expert that you pick.
“* * * * *
“They’ve had it for three and a half years. They don’t
want to give it up to our expert that we chose who is emi-
nently qualified to look at the evidence.
“* * * * *
“[PROSECUTOR]: * * * The state is very familiar with
Mr. Grimsbo and the reputation that follows him, which is
in the DUII realm.
“When you look at his curriculum vitae, outside of his
experience in the crime lab 40 years ago, he has nothing on
his curriculum vitae that indicates he’s done anything in
firearms.
Cite as 324 Or App 816 (2023) 821
“* * * * *
“When you look at his entire history, he has a PhD from
a university from back in the ‘80s when there was no inter-
net, but yet, he received a PhD without acquiring a mas-
ter’s first. So I do question his even, his expertise, because
he didn’t have a PhD when he was with the crime lab from
1975 to 1985.
“* * * * *
“* * * [T]he state has a right, before releasing evidence
that is in the state’s custody and control, that the evidence
is being presented to an individual who actually has qual-
ifications and the ability to test those items before it’s
released, and has the qualifications to be able—and the
ability, even the technology to do the testing, being that his
crime lab is no longer active, that he doesn’t appear on his
CV to have the expertise in this particular area.”
Ultimately, the trial court did not allow the defense
expert to test the firearm, and the case continued in a pre-
trial posture for considerable time. Eventually, there was
a change of counsel, but new counsel did not renew the
request to test the firearm. Shortly before trial, the weapon
was mistakenly classified as found property and destroyed
according to the police department’s retention schedule for
found property. As trial started, the prosecution tried to
explain the missing weapon to the jury by claiming
“It had been forensically examined. We had never had a
request to keep it or to submit to an expert for the defense.
So (indiscernible) forensically we, there was nothing more
for us to do other than for you to be able to see it in trial.”
The trial proceeded with a picture of the firearm, and only
the test results from the prosecution. Defendant requested
the less-satisfactory evidence instruction, and the trial court
declined to give it. Defendant was ultimately convicted, and
this appeal followed.
It bears emphasis what is not at issue here. On
appeal, defendant does not assign error to the denial of
his motion to compel discovery. Accordingly, we express no
opinion on the state’s argument before trial that it could
precondition disclosure of evidence upon its approval of a
defense expert. Nor does he allege that the destruction of
822 State v. Copeland
evidence constitutes a constitutional violation under Brady
v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963).
Finally, defendant does not assign error to the prosecutor’s
statement in opening that the defense had never requested
to test the weapon—an assertion that was both patently
false, as well as based on facts the state would be unable to
introduce into evidence because they did not exist.
The singular question presented is whether the
trial court erred in refusing to give the less satisfactory evi-
dence instruction. On appeal, defendant focuses his atten-
tion on the destruction of the murder weapon, and he argues
that “the state had in its possession crucial evidence about
the murder that it destroyed,” and that because “the state
could have obtained stronger evidence, defendant was enti-
tled to ask the jury to draw an adverse inference from the
state’s failure to produce that evidence.” Defendant contin-
ues to explain “[t]hat is the very purpose for which the less-
satisfactory-evidence instruction exists.” And, he asserts,
the error was not harmless because the murder weapon was
a crucial piece of evidence: “A defense expert could have dis-
covered some indicia on the gun itself as to who had been
holding it at the time it was fired.”
The state responds that defendant has failed to
satisfy the factual predicates for the less-satisfactory evi-
dence instruction because defendant did not establish that
(1) the firearm was reasonably available to the state and
(2) that the firearm was more satisfactory evidence. In terms
of the availability of the evidence, the state argues that the
trial record reflects how and why the firearm was destroyed.
Therefore, the firearm was not available to be introduced
into evidence. Instead, the state introduced pictures of
the firearm and testimony from those who discovered and
examined it. Furthermore, the state contends that defen-
dant failed to establish that the presentation of the physi-
cal firearm would have been stronger or more satisfactory
evidence. Instead, the state claims, defendant’s argument
is based on the speculation that a defense expert could have
discovered some kind of exculpatory evidence on it.
As we explain, we find the state has the better argu-
ment in this instance. However, we pause a moment to note
Cite as 324 Or App 816 (2023) 823
that our resolution of the discrete issue on appeal should
not be taken as comfort with what transpired. The state’s
negligent handling, and destruction, of a murder weapon is
profoundly troubling. As we discuss, this case illuminates
a potential gap in Oregon law addressing the negligent, as
opposed to intentional, destruction of evidence.
ANALYSIS
Before we turn to the less-satisfactory evidence
instruction, it is first necessary to discuss the concept
of spoliation. Spoliation is “the destruction of evidence
through intent or neglect.” Stephen Sheppard, 2 Bouvier
Law Dictionary Desk Edition 2658 (2012). Spoliation can
be intentional in which “a person deliberately alters or
destroys evidence, or it may be accidental.” Id. The reme-
dies for spoliation are diverse, including the presentation of
evidence of spoliation, an adverse inference instruction, a
rebuttable presumption, or a spoliation claim. Gorelick et al,
1 Destruction of Evidence § 2.1 (Supp 2022).
Oregon law attaches a presumption to the willful
and intentional destruction of evidence. OEC 311(1)(c) cre-
ates a presumption that “[e]vidence willfully suppressed
would be adverse to the party suppressing it.” That statu-
tory presumption, however, does not attach to negligent spo-
liation. Similarly, no Oregon statute speaks directly to the
negligent spoliation of evidence. That absence is not uncom-
mon. Because of the constitutional standards that govern
the availability and destruction of evidence in a criminal
proceeding, remedial jury instructions, especially for the
negligent destruction of evidence, have frequently been over-
looked. Scholarship on this subject has observed that “[t]he
emphasis on the constitutional and discovery aspects of pros-
ecutorial destruction of evidence has led some courts to a
myopic view of the role of the evidentiary spoliation inference
in criminal trials.” Gorelick et al, 1 Destruction of Evidence
at § 6.3. That myopia has the potential to blur the spoliation
doctrine whereby criminal courts analyze spoliation in the
context of a due process framework rather than as an eviden-
tiary question. Id. In many jurisdictions, absent a violation
of due process, a defendant cannot ask for a permissive infer-
ence in the face of the state’s spoliation of evidence.
824 State v. Copeland
Other jurisdictions, however, have recognized the
need for an instruction to address the state’s negligent spo-
liation of evidence. In State v. Willits, the Arizona Supreme
Court noted
“We think that the rule permitting an inference is not
based only on the notion that the destruction is motivated
by a desire to conceal the truth. Evidence, of course, may
be innocently destroyed without a fraudulent intent simply
through carelessness or negligence or, as the case might
have appeared to the jury here, an unwillingness to make
the necessary effort to preserve it. In any event, the State
cannot be permitted the advantage of its own conduct in
destroying evidence which might have substantiated the
defendant’s claim regarding the missing evidence. But the
damage to the defendant is equally great because the evi-
dence was no longer available at the trial by which the facts
with certainty could be determined.”
96 Ariz 184, 393 P2d 274, 279 (Ariz 1964). In Willits the
instruction took the following form: “If you find that the
plaintiff, the State of Arizona, has destroyed, caused to be
destroyed, or allowed to be destroyed any evidence whose
contents or quality are in issue, you may infer that the true
fact is against their interest.” Id. at 276.
Similarly, the Nevada Supreme Court determined
that there is “a permissible inference that missing evi-
dence would be adverse * * * when evidence is negligently
lost or destroyed.” Bass-Davis v. Davis, 122 Nev 442, 134
P3d 103, 105 (2006). The court drew a distinction between
that permissible inference in the case of negligent spolia-
tion in contrast to the presumption afforded when a party
willfully suppresses evidence “in which the party destroying
evidence intends to harm another party[.]” Id. An adverse
inference based on negligently lost or destroyed evidence “is
tied to a showing that the party controlling the evidence had
notice that it was relevant at the time when the evidence
was lost or destroyed.” Id. at 108. In other words, the per-
missible inference requires the party asking for it to show
that the spoliator had a duty to preserve the evidence, which
could arise from a court order or the foreseeable use of the
evidence in litigation.
Cite as 324 Or App 816 (2023) 825
In a bridge between negligent and intentional spo-
liation, the Ninth Circuit Court of Appeals determined that
when the government destroys evidence before trial that
it was ordered to preserve, bad faith is not necessary for a
remedial instruction. United State v. Sivilla, 714 F3d 1168,
1172 (9th Cir 2013). In Sivilla, a defendant was accused of
using a hidden compartment in a jeep to smuggle narcotics
across the United States border. Id. at 1170. The defendant
repeatedly requested an opportunity to inspect the vehicle;
however, the jeep was sold and stripped for parts in spite of
a court order to preserve it. Id. at 1171. Only photographs
of the jeep remained, many of them indecipherable, and at
trial, the government based its case on specific informa-
tion about the compartment and how difficult it was for the
defendant to remove it. Id. The Sivilla defendant requested
that the court instruct the jury that “ ‘we were not allowed
or given an opportunity to inspect the vehicle even though
the court had ordered that the government preserve [it].’ ”
Id. The Ninth Circuit held that the trial court had erred in
refusing to give the jury a remedial instruction. Id. at 1174.
A Sivilla remedial instruction is conditioned, how-
ever, upon the existence of the court order for preservation.
And absent such a preexisting order, many courts have
resisted instructions in the face of negligent spoliation. See
e.g., United States v. Fries, 781 F3d 1137, 1152 (9th Cir),
cert den, 577 US 1029 (2015) (distinguishing the standard
in Sivilla for a remedial instruction when the government
destroys evidence but no bad faith exists from a case in
which there was no court order for the preservation of evi-
dence and it was not clear how the destroyed evidence would
have benefited the defendant).
We turn now to the less-satisfactory evidence
instruction, which finds its statutory grounding in the
instructions that trial courts must give “on all proper occa-
sions.” ORS 10.095; see also State v. Payne, 366 Or 588, 595-
98, 468 P3d 445 (2020) (discussing the statutory instruc-
tions). Under ORS 10.095, the jury is “to be instructed by the
court on all proper occasions” as follows:
“(7) That evidence is to be estimated, not only by its
own intrinsic weight, but also according to the evidence
826 State v. Copeland
which it is in the power of one side to produce and of the
other to contradict; and, therefore
“(8) That if weaker and less satisfactory evidence is
offered when it appears that stronger and more satisfac-
tory evidence was within the power of the party, the evi-
dence offered should be viewed with distrust.”
See also State v. Palacios-Romero, 320 Or App 563, 565, 514
P3d 137, rev den, 370 Or 472 (2022).
To determine whether or not it is appropriate to
give the instruction, the court must evaluate whether the
party requesting the instruction demonstrated that “other
evidence was reasonably available on a fact in issue and that
there is a basis for the jury to conclude that the other evi-
dence is stronger and more satisfactory than the evidence
offered.” State v. McDonnell, 313 Or 478, 500, 837 P2d 941(1992). Therefore, the less-satisfactory evidence instruction
must be supported by a showing that (1) the evidence the
state did not present was reasonably available, and (2) the
evidence was stronger than other evidence the state offered.
State v. Hendershott, 131 Or App 531, 535-36, 887 P2d 351(1994), rev den, 320 Or 587 (1995).
We have previously used the less-satisfactory evi-
dence framework to analyze spoliation, and the result has
been to conflate the two doctrines instead of observing the
lack of a negligent spoliation instruction under Oregon law.
In State v. Dream, 202 Or App 245, 121 P3d 699 (2005),
rev den, 340 Or 34 (2006), the weapon used in an assault had
been discarded before trial. 202 Or App at 249. The defen-
dant argued that the weapon, a 40-ounce beer bottle, might
contain some evidence that would be adverse to the state’s
case thus meriting a less-satisfactory evidence instruction.
Id. We determined that the defendant had failed to show
that “there was any favorable evidence that was lost with the
bottle or that the state acted in bad faith in disposing of it.”
Id. at 250. We took that phrasing from Hendershott because
we noted that Dream was “materially indistinguishable
from it.” Dream, 202 Or App at 250. In Hendershott, we also
briefly referenced the constitutional standard articulated in
Arizona v. Youngblood, 488 US 51, 56-57, 109 S Ct 333, 102
L Ed 2d 281 (1988). Hendershott, 131 Or App at 535. However,
Cite as 324 Or App 816 (2023) 827
we did not use the terminology of spoliation to address the
spoliation of the evidence because our gaze was trained on
the demands of either the less-satisfactory evidence instruc-
tion or the constitutional due process claim.
Even assuming that a less-satisfactory evidence
instruction can be given in instance of negligent spoliation,
in the context of this case we cannot conclude that defen-
dant has established that “the evidence was stronger than
other evidence offered by the state.” Hendershott, 131 Or
App at 535-36. Defendant’s argument is that the picture of
the firearm, as opposed to the firearm itself, was “less satis-
factory” because it deprived defendant of the ability to test
it. Defendant was certainly denied that opportunity—but
that is a pretrial discovery issue, one that defendant doesn’t
raise on appeal. Defendant advances no argument, separate
from concerns about pretrial discovery, as to how, in the con-
text of trial testimony, the actual firearm, as opposed to the
photograph, was needed in questioning witnesses, or in the
jury’s evaluation. In this circumstance, the less-satisfactory
evidence instruction is not the panacea to cure the collateral
consequences the spoliation brought about.
We emphasize again, our task here is narrow: to
determine whether UCrJI 1030 was required. It was not.
We do not foreclose that some instruction here might have
been permissible, had it been requested. Nor are we asked
to determine whether Oregon law, as currently drafted, pro-
vides a statutory basis for a negligent spoliation instruction.
Affirmed.