State v. Sarbacher

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47280
STATE OF IDAHO, )
)
Plaintiff-Appellant, ) Boise, September 2020 Term
)
v. ) Opinion filed: December 23, 2020
KEITH ANTONE SARBACHER,
)
) Melanie Gagnepain, Clerk
Defendant-Respondent. )
Appeal from the District Court of the Second Judicial District of the State of
Idaho, Nez Perce County. Jeff M. Brudie, District Judge.
The district court’s order granting defendant’s motion to dismiss is vacated and
remanded.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. Ken
Jorgensen argued.
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Respondent.
Brian Dickson argued.
_______________________________________________
MOELLER, Justice
This case concerns the scope of the State’s constitutional duty to preserve material
evidence with unknown exculpatory value in a criminal case and the consequences of its failure
to do so. The State charged Keith Sarbacher with grand theft by receiving or possessing stolen
property: a 2001 Dodge pickup truck. After Sarbacher’s arrest, the State inventoried and
photographed the truck and then returned it to the insurance company, who then sold the truck
before Sarbacher’s attorneys could examine it. Sarbacher moved the district court for dismissal,
arguing that the State violated his constitutional right to due process by disposing of evidence
that was material and potentially exculpatory. The district court granted Sarbacher’s motion and
dismissed the State’s case. The State appeals the district court’s decision because the evidence at
issue was of unknown exculpatory value and the trial court expressly found that the State had not
acted in bad faith. We vacate the decision of the district court and remand for further
proceedings.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of February 27, 2019, Devin Hunt spotted a vehicle in Lewiston, Idaho,
that he recognized as his stolen truck. Hunt promptly called the Idaho State Police (“ISP”) to
make a report. Hunt described the vehicle, which had been stolen two years earlier, as a “2001
green Dodge 2500 diesel pick up [sic].” ISP Sergeant Christopher Middleton received the report
and shortly thereafter saw a vehicle matching the truck’s description.
Sergeant Middleton initiated a stop of the vehicle. The driver identified himself as Keith
Sarbacher, and said he was en route to his first day of work for a towing company. Sarbacher
was “handcuffed, pat searched, and placed in the back of the patrol vehicle.” Sergeant Middleton
called Hunt directly for more details about the truck. In addition to identifying unique features on
the truck (i.e., Hunt’s custom installed parts), the Department of Transportation later matched the
VIN number from the vehicle’s glove box with the VIN number of Hunt’s stolen truck.
While detained in the patrol car—and without being read his Miranda 1 rights—Sergeant
Middleton questioned Sarbacher about the truck and from whom he had purchased it. Sarbacher
told Sergeant Middleton that he bought the truck for $5,000 from a fellow-inmate he had met
while incarcerated in Washington. Once released from prison, Sarbacher claimed he took
possession of the truck from a third party about two to three months earlier. Sarbacher told
Sergeant Middleton that when he initially received the truck, it lacked wheels, a hood,
headlights, taillights, and it had to be rewired to start. Sarbacher also claimed he had a bill of sale
for the truck at his girlfriend’s house. Sergeant Middleton explained to Sarbacher that the VIN
plate did not match the vehicle, the rivets holding the VIN plate were irregular, and the ignition
system had been altered.
The owner of the towing company used by ISP—coincidentally Sarbacher’s new
employer—then arrived on the scene. Sarbacher’s employer gave Sergeant Middleton conflicting
information from Sarbacher’s account of acquiring the truck. Meanwhile, other officers on the
scene were attempting and failing to start the vehicle. Sergeant Middleton arrested Sarbacher,
charging him with grand theft by receiving or possessing stolen property, in violation of Idaho
Code sections 18-2403(4)(a) and 18-2407(1)(b)(1). Sergeant Middleton inventoried the truck and
photographed its contents the next day.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Sergeant Middleton submitted an affidavit explaining that he called defense counsel’s
office on March 4, 2019, to advise them of the truck’s release to Hunt’s insurance company.
While speaking with an office assistant, he testified he heard counsel say “very plainly” in the
background: “That is their problem, let them deal with it.” However, Sarbacher’s attorney
strenuously denied this account, arguing that the State was relying on perjured testimony because
he had been on a family vacation at the time the call was allegedly made. In a later affidavit,
Sergeant Middleton further explained that after Sarbacher bonded out, he came to collect his
personal effects on March 8, 2019. At that time, Sergeant Middleton testified that he informed
Sarbacher that law enforcement would be releasing the truck to the insurance company.
Sergeant Middleton asserted that he never received a request from counsel or Sarbacher to retain
the vehicle. The State later delivered the truck to Hunt’s insurance company on March 18, 2019,
two days before Sarbacher’s preliminary hearing. The insurance company sold the truck and the
State’s efforts to track it down were unsuccessful.
Sarbacher moved to exclude the statements he made to Sergeant Middleton while
detained in the patrol car, arguing that they were in violation of Miranda. The district court
agreed and granted his motion to exclude. Sarbacher then attempted to access the truck and
arrange for an expert witness to examine it for potential exculpatory evidence, including: a
search for DNA in the “grime” covering the VIN number, a rivet analysis to challenge Sergeant
Middleton’s testimony, and access to the truck to show there was a start-button ignition and anti-
theft system. Sarbacher claims that this was when he was first informed by the State that it had
already released the vehicle.
Sarbacher filed a motion to dismiss the charges against him, arguing a violation of his
due process rights under the U.S. and Idaho Constitutions because the State disposed of material
evidence. The State opposed the motion but “acknowledge[d] that the pick-up is material to this
investigation.” The district court granted Sarbacher’s motion, explaining:
Here the truck in question is clearly material to Sarbacher’s defense. The
vehicle was not recently stolen, and the Court has suppressed Sarbacher’s
responses to law enforcement questioning at the traffic stop. Therefore, the
condition of and alleged physical alterations to the vehicle comprise the
circumstantial foundation of the State’s case.
It appears that the truck was released from ISP’s custody mere days after the
State’s first response to discovery and just prior to the preliminary hearing,
providing no opportunity for Sarbacher to examine or fully investigate the
evidence against him. While the Court does not find this an act of bad faith on the
3
part of the State, it has nevertheless resulted in an irreparable infringement on
Sarbacher’s due process rights. Accordingly, Sarbacher’s motion is granted.
The State first filed a motion for reconsideration, which the district court denied. The State then
filed a timely notice of appeal. One day after the State filed this appeal, the district court denied
the State’s motion for reconsideration.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision regarding a motion to dismiss a criminal action
for an abuse of discretion. State v. Roth, 166 Idaho 281, 458 P.3d 150, 152 (2020). See also
I.C.R. 48(a) (the dismissal of a criminal action is a discretionary decision of the trial court based
on its own motion or by motion of any party). In reviewing discretionary rulings, we engage in a
multi-tiered inquiry to determine whether the trial court: “(1) correctly perceived the issue as one
of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with
the legal standards applicable to the specific choices available to it; and (4) reached its decision
by the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194
(2018).
Like a motion to suppress evidence, when a decision on a motion to dismiss is
challenged, “the Court accepts the trial court’s findings of fact that are supported by substantial
evidence, but freely reviews the application of constitutional principles to the facts as
found.” State v. Bodenbach, 165 Idaho 577, 589, 448 P.3d 1005, 1017 (2019) (quoting State v.
Moore, 164 Idaho 379, 381, 430 P.3d 1278, 1280 (2018)). “This Court will accept the trial
court’s findings of fact unless they are clearly erroneous.” State v. Gonzales, 165 Idaho 667, 671,
450 P.3d 315, 319 (2019) (quoting State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183
(2009)).
III. ANALYSIS
On appeal, the parties primarily dispute the legal standard applied by the district court.
The State contends that the district court erred by applying Brady v. Maryland, 373 U.S. 83, 86–
88 (1963), rather than Arizona v. Youngblood, 488 U.S. 51 (1988). The State maintains that had
the district court properly applied Youngblood, the court’s finding that disposing of the vehicle
was not “an act of bad faith on the part of the State” would have been dispositive and required
that the motion to dismiss be denied. Sarbacher argues that the district court correctly applied the
4
materiality standard from Brady, as articulated by the Idaho Court of Appeals in State v.
Leatherwood, 104 Idaho 100, 103, 656 P.2d 760, 763 (Idaho Ct. App. 1982).
A. The district erred in applying Brady, instead of Youngblood, to a case where the
missing evidence was of unknown exculpatory value.
“The due process clause of the Fourteenth Amendment requires that criminal
prosecutions comport with prevailing notions of fundamental fairness,” which “requires a
meaningful opportunity to present a complete defense” and “constitutionally guaranteed access
to evidence.” Lewis, 144 Idaho at 66, 156 P.3d at 567. Thus, the State has a constitutional duty to
disclose “all material exculpatory evidence known to the state or in its possession.” Id. at 66–67,
156 P.3d 565, 567–68 (citing Brady, 373 U.S. 83, 86–88); U.S. v. Agurs, 427 U.S. 97, 111–12
(1976); Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000)). As the U.S. Supreme Court
held in Brady: “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. This is a crucial
protection under the Fourteenth Amendment because it helps ensure the fair administration of
justice. Id. at 87–88. In addition, “a constitutional violation for failure to disclose material
evidence requires a showing of ‘a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.’ ” Stuart v. State, 127 Idaho
806, 815, 907 P.2d 783, 792 (1995) (quoting U.S. v. Bagley, 473 U.S. 667, 682 (1985)).
While we have consistently held that Brady applies when the State fails to disclose known
exculpatory evidence, we have applied a different federal precedent in cases where the State has
failed to preserve material evidence of unknown exculpatory value. In Youngblood, a defendant
accused of sexual assault lost the ability to examine potential exculpatory evidence when police
failed to test and preserve semen samples collected from the victim and her clothing. 488 U.S.
51, 53–55. The Arizona Court of Appeals reversed the judgment of conviction because preserved
semen samples could have exonerated the defendant. Id. at 54–55. The U.S. Supreme Court
reversed the Court of Appeals. Id. The Court first explained that the police complied with Brady
by providing police reports, laboratory results, and the criminologist’s report to the defendant, as
well as providing the defendant’s expert with access to the swabs and clothing. Id. at 55. The
Court then held “that unless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due process of law.”
Id. at 58.
5
The U.S. Supreme Court reasoned that the Due Process Clause does not impose “an
undifferentiated and absolute duty to retain and to preserve all material that might be of
conceivable evidentiary significance in a particular prosecution.” Id.We think that requiring a defendant to show bad faith on the part of the police
both limits the extent of the police’s obligation to preserve evidence to reasonable
bounds and confines it to that class of cases where the interests of justice most
clearly require it, i.e., those cases in which the police themselves by their conduct
indicate that the evidence could form a basis for exonerating the defendant. We
therefore hold that unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.
Id. While the lack of bad faith was essential to the Court’s decision in Youngblood, it also noted
the police’s compliance with Brady in making all information and evidence otherwise accessible
to the accused:
The failure of the police to refrigerate the clothing and to perform tests on the
semen samples can at worst be described as negligent. None of this information
was concealed from respondent at trial, and the evidence—such as it was—was
made available to respondent’s expert who declined to perform any tests on the
samples. . . . there was no suggestion of bad faith on the part of the police. It
follows, therefore, from what we have said, that there was no violation of the Due
Process Clause.
Id.In the case at hand, the district court looked to the Leatherwood case, which the Idaho
Court of Appeals decided in the interim between Brady and Youngblood. It addressed “the ambit
of cases where the nature of the evidence lost or destroyed can be established indirectly by other
evidence or testimony.” Leatherwood, 104 Idaho at 103, 656 P.2d at 763. In Leatherwood, the
police failed to preserve tape recordings of telephone conversations where a restaurant patron,
Fazio, called in to warn the police multiple times of an upcoming drug store robbery. Id. at 101,
656 P.2d at 761. A different restaurant patron overheard Fazio’s phone conversations. Id. The
witness then saw another man—later identified as Leatherwood—come to the restaurant window
and knock, beckoning Fazio. Id. The two men left together in Leatherwood’s vehicle. Id. Fifteen
minutes later, police apprehended Fazio robbing a different drug store at gunpoint and arrested
Leatherwood who was waiting in his vehicle outside the store. Id. Each were charged with first-
degree burglary and robbery, but Leatherwood “testified that he drove Fazio to and from the drug
store as a personal favor, and that he had no knowledge of any robbery until he was arrested.” Id.6
At the outset of his jury trial, Leatherwood requested the tape recordings of Fazio’s
telephone calls with the police but a clerical error resulted in the tapes being erased and reused.
Id. Leatherwood moved for the dismissal of his charges, arguing the State’s failure to preserve
the tape recordings deprived him of his right to due process. Id. The Court of Appeals rejected
Leatherwood’s argument on appeal, explaining:
We believe that conceptually there should be—and in actuality there is now
recognized to be—a unified standard of materiality in Idaho. This standard
governs application of the due process clause of Art. 1, § 13, Idaho Constitution,
to those cases where evidence has been withheld by the prosecution, and in those
cases—like the one before us—where evidence has not been preserved, but its
nature can be determined indirectly through other evidence or testimony. We hold
that such evidence is “material” under this standard if, viewed in relation to all
competent evidence admitted at trial, it appears to raise a reasonable doubt
concerning the defendant’s guilt.
Id. at 105, 656 P.2d at 765.
Contrary to Sarbacher’s assertion on appeal, the Court of Appeals’ citation to the Idaho
Constitution in Leatherwood did not establish a new standard based solely on our constitution.
Leatherwood largely followed Brady and relied on Agurs, a direct descendent of Brady. Agurs,
427 U.S. 97; see Leatherwood, 104 Idaho at 103-05, 656 P.2d at 763-65. In establishing a
materiality standard, the Court of Appeals recognized the two different tests articulated by
Agurs–one for when a specific discovery request was made and the other for when a general
discovery request (or no request at all) was made. Leatherwood, 104 Idaho at 103, 656 P.2d at
763. If a specific discovery request was made, the evidence would be deemed material if it “
‘might have affected the outcome of the trial.’ ” Id. (quoting Agurs, 427 U.S. at 104). If a broad
request or no request was made, the evidence would be deemed material if it “ ‘creates a
reasonable doubt that did not otherwise exist.’ ” Id. (quoting Agurs, 427 U.S. at 112). The court
found that both tests are the same when applied to appellate review, but rejected the first test
because it was such a broad and speculative approach. Id. at 104, 656 P.2d at 764. Instead, it
adopted and applied the second test. Id. at 104-05, 656 P.2d at 764-65. However, the Court of
Appeals explained the different standard for those cases that fall outside the ambit of Brady:
[I]f the nature of the evidence lost or destroyed is unknown, and cannot be
established indirectly by other testimony or evidence, then the materiality tests
are not meaningful. In those cases, it would appear necessary to focus primarily
upon the reasonableness of the government’s conduct, placing a heavy burden
upon the government to show that none of its procedures, or the conduct of its
agents, has been tainted by disregard for an accused’s right to a fair trial.
7
Id. at 103, 656 P.2d at 763 (emphasis added). The Leatherwood court applied the materiality test
because, in the absence of the recordings, the restaurant patron who overheard Fazio’s telephone
conversations could testify as to what he heard Fazio say, thereby indirectly establishing the
“nature” or probative value of the missing evidence. Id. at 103, 656 P.2d at 763. In other words,
unlike the case at bar, the Leatherwood court concluded the evidence had known exculpatory
value.
Sarbacher argued below that article 1, section 13, Idaho Constitution provided
independent state constitutional grounds to conclude Sarbacher’s due process rights were
violated. This argument was premised on the belief that the Court of Appeals decision in
Leatherwood, which his attorney incorrectly attributed to the Idaho Supreme Court, did just that.
However, this Court has not previously held in any case concerning evidence of unknown
exculpatory value that a meaningful distinction exists between the due process guaranties in
article 1, section 13 of the Idaho Constitution and the provisions of the 4th and 14th
Amendments to the U.S. Constitution. A fair reading of Leatherwood suggests that the Court of
Appeals did not find such a distinction either. We decline to find such a distinction now.
For example, the Court of Appeals has only applied Leatherwood in other cases where
the lost evidence, “viewed in relation to all competent evidence, . . . appears to raise a reasonable
doubt concerning the defendant’s guilt” and “there is a reasonable probability” that disclosure to
the defense would have led to a different result. State v. Johnson, 120 Idaho 408, 412, 816 P.2d
364, 368 (Idaho. Ct. App. 1991) (citing Leatherwood, 104 Idaho at 100, 656 P2d at 760; Bagley,
473 U.S. at 667). In Johnson, the Idaho Court of Appeals analyzed the totality of the evidence
and determined that the withheld police reports were “exculpatory and material” because they
“may tend” to negate the elements of the defendant’s criminal charge. 120 Idaho at 413, 816
P.2d at 369. However, in examining cases of lost evidence of alleged, but unknown exculpatory
value, Idaho courts have followed the standard laid out in Youngblood. See e.g. State v. Davis,
165 Idaho 709, 713-16, 451 P.3d 422, 426-29 (2019); Stuart, 127 Idaho at 816, 907 P.2d at 793;
State v. Edney, 145 Idaho 694, 696–97, 183 P.3d 782, 784–85 (Idaho Ct. App. 2008).
In Paradis v. State, a case we decided two years before Youngblood, we established a
three-part balancing test to determine whether a defendant’s due process rights were violated by
the loss or destruction of evidence of unknown exculpatory value. 110 Idaho 534, 539, 716 P.2d
1306, 1311 (1986). That test requires courts to consider “(1) whether the evidence was material
8
to the question of guilt or the degree of punishment; (2) whether the defendant was prejudiced by
the loss or destruction of the evidence; and (3) whether the government was acting in good faith
when it destroyed or lost the evidence.” Id. Where the value of the evidence is known, the party
asserting a due process violation “has the affirmative burden of establishing the materiality and
prejudice elements of the balancing test.” State v. Lewis, 144 Idaho 64, 66, 156 P.3d 565, 567
(2007). However, where the evidence’s value is unknown, “the materiality and prejudice
elements are presumed and the inquiry focuses on the presence of bad faith.” Id. “In conducting
this analysis, this Court engages in a case-by-case assessment of the fault of the government and
the significance of the loss or destruction to the critical elements of the defendant’s case.” State
v. Porter, 130 Idaho 772, 781, 948 P.2d 127, 136 (1997). Bad faith is a high bar, requiring “more
than mere negligence;” rather, bad faith refers to “a calculated effort to circumvent the disclosure
requirements established by Brady v. Maryland and its progeny.” California v. Trombetta, 467
U.S. 479, 488 (1984); Lewis, 144 Idaho at 67, 156 P.3d at 568. While “[a] deviation from normal
practice can indicate bad faith,” the deviation must be accompanied by additional evidence of
intent and calculated efforts. Lewis, 144 Idaho at 67, 156 P.3d at 568.
This Court has since recognized that the test articulated in Youngblood encompasses our
three-part inquiry established in Paradis, and we have applied the former. See, e.g., Davis, 165
Idaho at 715, 451 P.3d at 428; Stuart, 127 Idaho at 816, 907 P.2d at 793. Importantly, in none of
these cases did this Court deem it necessary to overrule Leatherwood. 2 Ultimately, Sarbacher
relies on Brady to argue that the truck was material to his case, making its loss a violation of his
due process rights “irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
However, the key distinctions between Brady and Youngblood is the evidentiary value of the lost
evidence: Brady dealt with the State’s failure to disclose known exculpatory evidence while
Youngblood dealt with the destruction of evidence of unknown exculpatory value. See Stuart,
127 Idaho at 816–16, 907 P.2d at 792–93 (comparing Brady and Youngblood, and applying
Youngblood where the exculpatory value of lost evidence is unknown).
Sarbacher also relies on a plurality opinion in State v. Fain, 116 Idaho 82, 774 P.2d 252(1989), overruled on other grounds by State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991). Fain
2
Even in Leatherwood, the Court of Appeals noted that in cases where the “the nature of the evidence is unknown,
… it would appear necessary to focus primarily upon the reasonableness of the government’s conduct, placing a
heavy burden upon the government to show that none of its procedures, or the conduct of its agents, has been tainted
by disregard for an accused’s right to a fair trial.” Leatherwood, 104 Idaho at 103, 656 P.2d at 763.
9
is a complex decision with unclear precedential value because it contains multiple concurring
and dissenting opinions. In Fain, the defendant was convicted of first-degree murder, among
other crimes. During the autopsy of the victim, a pathologist took swabs of bodily fluid but
inadvertently discarded them. The defendant moved for dismissal. Even though Fain was
decided after Paradis and Youngblood, the Court applied a balancing test to affirm the trial
court’s conclusion that there was no violation of due process, but the defendant was entitled to a
remedy less than dismissal of the case. Leatherwood. Id. at 88-97, 774 P.2d at 258-67. Id.Beyond the justice authoring the majority opinion, one justice concurred in the result of the
author’s opinion on this issue, one justice specially concurred, and two justices dissented. Id. at
100-02, 774 P.2d at 270-72. In Justice Bakes’ special concurrence, he recognized the test set out
by Youngblood and opined that because there was no evidence of bad faith, the trial court did not
err in concluding the defendant’s due process rights were not violated.
In this case, unlike the facts in Leatherwood, the truck’s potential exculpatory value is
unknown. Based on the record below, it would have been entirely speculative for the district
court to conclude that any of the additional analyses Sarbacher wanted to conduct would have
resulted in the discovery of any exculpatory evidence to exonerate him. For example, while it is
possible there may have been third party DNA or fingerprints found in the grime covering the
VIN plate, 3 it is highly questionable whether that would lead to any inferences that would help
Sarbacher prove he had no knowledge that the vehicle was stolen. Evidence of an unknown third
party’s involvement in altering the VIN would not exonerate Sarbacher from the charge of
receiving or possessing a stolen vehicle. An expert’s rivet analysis may have challenged Sergeant
Middleton’s testimony regarding the alleged irregularity of the rivets he found on the VIN plate,
but that would still not contradict the evidence in the record that the VIN on the windshield was
different from the VIN in the glove compartment. The condition of the VIN in both locations
was photographed and preserved. While evidence of the ignition system’s “dead switch” starter
could suggest that it was a system installed by Sarbacher following his purchase of a vehicle with
an inoperable ignition, it could also demonstrate the type of tampering typical of stolen vehicles.
The dead switch and steering column were also photographed and preserved by the State.
Undoubtedly, the truck itself was material to the case simply by the nature of the charges—it was
the veritable corpus delicti of the charge of grand theft by receiving or possessing this stolen
3
Sergeant Middleton admitted to touching the plate with his finger in order to remove the grime so he could read it.
10
vehicle. Nevertheless, the evidentiary value of the truck as the corpus delicti of the crime was
sufficiently preserved by the State through its inventorying and photographing the vehicle prior
to its release to Hunt’s insurance company. On the other hand, the potential exculpatory value of
additional evidence tests on the truck remains unknown.
This is clearly a case that falls within the scope of Youngblood. Although Sarbacher is
entitled to a presumption that (1) the missing truck was material evidence and (2) its loss was
prejudicial to him, the unknown exculpatory value of the lost evidence necessitates that the
central issue in this case is one of bad faith. Lewis, 144 Idaho at 67, 156 P.3d at 568. For these
reasons, we conclude that the district court erred by dismissing the case pursuant to Brady and
Leatherwood, rather than conducting a bad faith analysis under Youngblood.
B. Inasmuch as Youngblood is the applicable standard, this matter must be
remanded because the district court’s finding of no bad faith was not supported
by referencing competent evidence in the record.
When the district court erroneously applied a Brady analysis to the facts of this case in
granting Sarbacher’s motion to dismiss, it also made a seemingly superfluous finding that the
release of the truck was not “an act of bad faith on the part of the State.” While such a finding
was unnecessary to dismiss the case pursuant to the district court’s Brady analysis, it would have
been critical to a proper Youngblood analysis. The State has taken hold of that finding and now
argues that it should be applied by this Court to the Youngblood analysis in order to reverse the
district court and deny the motion to dismiss. However, the record is unclear whether the district
court’s comment about the lack of bad faith was intended merely as a passing observation or as a
specific factual finding.
It is undisputed that seventeen days prior to the truck’s disposal, Sarbacher filed a
standard discovery request seeking to “inspect” any “tangible objects, which were in the
possession, custody or control of the Prosecuting Attorney and which are material to the
preparation of the defense or intended for use by the Prosecutor as evidence at trial, or obtained
from or belonging to the Defendant.” The State later explained its failure to comply with the
request by asserting that Sergeant Middleton advised the defense of its intention to release the
truck at least ten days before it occurred—a fact hotly disputed by the defense. The district court
made no express findings as to whether it believed such testimony from the State. In reviewing
the district court’s ruling, we further note that there was no discussion regarding an appropriate
timeline or department policy for returning stolen vehicles. While the timing of the truck’s
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release was clearly troubling to the court, it failed to specifically address the other conflicting
evidence of bad faith in the record. In fact, other than a single conclusory statement that it found
there was no bad faith, the district court referenced no evidence in the record to explain or
support this finding. Findings of fact are clearly erroneous unless they are based on “substantial
and competent evidence in the record.” State v. Ish, 166 Idaho 492, 515, 461 P.3d 774, 797
(2020), citing Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995).
As previously noted, we grant considerable deference to a trial court’s findings of fact
and avoid making our own findings from the record. Here, the district court’s analysis of the
facts was clearly insufficient to support a Youngblood analysis on appeal. However, in fairness,
we note that at the time it made its ruling, the district court was not conducting a Youngblood
analysis. Therefore, based upon the unique facts of this case, we hold that the trial court’s
application of the wrong legal standard to the facts, coupled with its unsupported finding that this
was not “an act of bad faith,” requires that the district court’s ruling be vacated and remanded. It
is clear from the record below that the issue of bad faith will likely come down to weighing the
credibility of the respective witnesses and their divergent descriptions of the events preceding
disposal of the truck. Thus, we conclude that such a determination is best made by the trier of
fact on remand who can personally observe the witnesses and their demeanor to assess
credibility, rather than by an appellate tribunal reading from a cold record.
Sarbacher argues against a remand and urges this Court to affirm the district court’s
result, citing our recent decision in State v. Hoskins, 165 Idaho 217, 443 P.3d 231 (2019), and
suggesting that the “right-result, wrong-theory” doctrine should apply. We have previously
described that doctrine as follows: “Where an order of a lower court is correct, but based upon an
erroneous theory, the order will be affirmed upon the correct theory.” Andre v. Morrow, 106
Idaho 455, 459, 680 P.2d 1355, 1359 (1984) (citations omitted). However, in Hoskins we
explained that “[t]hough it has been characterized as a ‘rule,’ this is a misnomer. Rather, the
phrase ‘right-result, wrong-theory’ provides an explanation for appellate review.” Hoskins, 165
Idaho at 217, 443 P.3d at 236. It is typically applied in cases where there is a question as to
whether an issue was preserved on appeal. Id. However, as the State correctly points out, this
concept applies to theories, not facts. In Hoskins, we noted that “right-result, wrong-theory”
presumes that the party asserting it “developed a sufficient factual record in th[e] case.” Id. at
217, 443 P.3d at 240.
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Here, in order to apply the doctrine, we would have to resolve the issue of bad faith based
on the highly disputed evidence in the record. Again, inasmuch as we believe that this type of
factual determination is best made by the trier of fact, we decline the invitation to make our own
findings from the disputed record. Therefore, we vacate the district court’s decision and remand
this matter to the district court to conduct a proper Youngblood analysis and determine whether
there was bad faith on the part of law enforcement.
IV. CONCLUSION
The district court’s decision granting Sarbacher’s motion to dismiss is vacated and the
case is remanded for further proceedings consistent with this opinion.
Justices BRODY and BEVAN CONCUR.
STEGNER, J., concurring in the result and dissenting in the analysis.
If this case only presented the applicability of the U. S. constitution’s due process clause
to the issue of destruction of evidence, I would concur with the majority’s reasoning. As
interpreted by the United States Supreme Court, a defendant cannot prove a violation of the due
process clause without first showing bad faith on the part of the government. See Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). I also agree with the majority that the Court of Appeals’
decision in State v. Leatherwood, 104 Idaho 100, 105, 656 P.2d 760, 765 (Ct. App. 1982), did
not create a standard based entirely on the Idaho Constitution that now stands in opposition to
Youngblood. I further acknowledge that due to the posture of this case the appropriate remedy is
to reverse and remand for further proceedings. I reach that conclusion because the district court
erred when it decided the State’s destruction of the evidence was not in bad faith and yet
dismissed the charges against Sarbacher. Such a result is incongruous with Youngblood.
However, this conclusion does not end our analysis because it does not deal with Idaho
precedent, nor does it answer the question this case necessarily raises. The question presented is:
does article 1, section 13, of the Idaho constitution provide greater due process protection to
Idaho’s citizens than its federal counterpart? There are two reasons why I believe the answer to
the question is yes.
First, this Court explicitly established that Idaho’s constitution required a balancing test
to determine what process is due when a court is faced with the State’s destruction of evidence.
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See Paradis v. State, 110 Idaho 534, 540, 716 P.2d 1306, 1312 (1986) (modification on other
grounds recognized in Stuart v. State, 127 Idaho 806, 907 P.2d 783 (1995)). Paradis was decided
two years before Youngblood, and four years after Leatherwood. In Paradis, the defendant was
convicted of first-degree murder, and in post-conviction proceedings claimed his due process
rights had been violated when the murder victim’s body had been cremated following the
examination by the State’s pathologist, but before the defense could conduct its own independent
examination. Paradis, 110 Idaho at 535, 716 P.2d at 1307. This Court examined the federal and
state claims separately, adopting in both claims a balancing test synthesizing several federal and
state court precedents. Id. at 539, 716 P.2d at 1311. The Paradis test involved three factors: “(1)
whether the evidence was material to the question of guilt or the degree of punishment; (2)
whether the defendant was prejudiced by the loss or destruction of the evidence; and (3) whether
the government was acting in good faith when it destroyed or lost the evidence.” Id. Importantly,
no one factor was dispositive. Although this Court later recognized that the federal constitutional
analysis in Paradis had been displaced by Youngblood, see Stuart v. State, 127 Idaho 806, 816,
907 P.2d 783, 793 (1995), its creation of a state constitutional process has never been disavowed.
In other words, if the federal constitution is the “floor” for due process protection, the fact that
the “floor” has dropped out from underneath the “ceiling” of Idaho’s constitution should not
change the protection afforded a defendant by our state’s constitution.
Second, even if the state constitutional analysis in Paradis somehow has been called into
question in the intervening years, it is within this Court’s power to conclude Idaho’s constitution
creates greater responsibility (and more process would therefore be due a defendant) for
destruction of evidence by the State’s actors than what has been established by the United States
Supreme Court. This power should be wielded sparingly and with appropriate circumspection.
Nevertheless, this is one instance in which we can and should exercise it. I think we abdicate our
responsibility by blindly following the United States Supreme Court’s decision in Youngblood.
This Court has, on multiple occasions, emphasized that the United States constitution is a
floor, not a ceiling, when it comes to constitutional protections and that Idaho’s constitution may
provide greater protection for her citizens than does the United States constitution. See, e.g.,
State v. Fees, 140 Idaho 81, 88, 90 P.3d 306, 313 (2004); State v. Donato, 135 Idaho 469, 20
P.3d 5 (2001); State v. Webb, 130 Idaho 462, 943 P.2d 52 (1997); State v. Henderson, 114 Idaho
293, 756 P.2d 1057 (1988); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988). Idaho has
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rejected the temptation to “borrow” readily defined constitutional standards from the federal
courts in interpreting Idaho’s constitution. See State v. Newman, 108 Idaho 5, 11 n.6, 696 P.2d
856, 862 n.6 (1985) (“Long gone are the days when state courts will blindly apply United States
Supreme Court interpretation and methodology when in the process of interpreting their own
constitutions.”).
I think this is an instance for Idaho’s courts to vary from the United States Supreme
Court’s jurisprudence because the protection afforded the citizenry by the United States
constitution is inadequate. Not only does the holding in Youngblood countenance and approve
negligence on the part of the State’s actors, in many respects it rewards it. By my count, at least
ten states have rejected the Youngblood standard regarding claims of due process violation with
respect to lost or destroyed evidence. Some have taken issue with the Youngblood standard itself,
noting that a bright-line, bad-faith test limits a state court’s ability to reach the heart of the due
process violation:
Youngblood is both too broad and too narrow. It is too broad because it would
require the imposition of sanctions even though a defendant has demonstrated no
prejudice from the lost evidence. It is too narrow because it limits due process
violations to only those cases in which a defendant can demonstrate bad faith,
even though the negligent loss of evidence may critically prejudice a defendant.
State v. Delisle, 648 A.2d 632, 643 (Vt. 1994); see also State v. Tiedemann, 162 P.3d 1106, 1117
(Utah 2007). Others have focused on the unfair effect of Youngblood, when it “substantially
increases the defendant’s burden while reducing the prosecution’s burden at the expense of the
defendant’s fundamental right to a fair trial.” State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999).
The consensus among those numerous states that have both carefully analyzed and rejected
Youngblood is clear: “The fact that the police did not act in bad faith when they negligently lost
the potentially exculpatory evidence cannot in fairness be dispositive of the issue.” Com. v.
Henderson, 582 N.E.2d 496, 497 (Mass. 1991) (italics added).
I would add to these concerns the tendency of the Youngblood standard to invite
negligence on the part of the State’s actors. When negligence is sanctioned, corresponding
behavior declines. If negligence is readily forgiven, it is no longer necessary to act reasonably.
Indolence is rewarded. Evidence, it must be remembered, is the cornerstone of every criminal
proceeding. Allowing its negligent destruction should be roundly condemned whenever it is
encountered. Courts are, at our core, truth-seeking institutions. When we lose sight of that fact
we should think of another line of work. We cannot on one hand meaningfully require proof
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beyond a reasonable doubt and on the other reward the State for its negligent destruction of
evidence, making it markedly easier to meet its significant evidentiary burden.
Given the insufficiency of the Youngblood standard, states providing greater protection
under their own due process clauses consider the context of the entire case, rather than only
analyzing whether the State’s actors have acted in bad faith. Several states articulate specific
factors to be used in a balancing inquiry 1; for example, Delaware’s test examines “1) the degree
of negligence or bad faith involved; 2) the importance of the missing evidence, considering the
probative value and reliability of secondary or substitute evidence that remains available; and 3)
the sufficiency of the other evidence used at trial to sustain [a] conviction.” Hammond v. State,
569 A.2d 81 (Del. 1989). Others take a different view and ask if the loss or destruction of the
evidence was so crucial to the defense to make the proceedings “fundamentally unfair?” See Ex
parte Gingo, 605 So.2d 1237 (Ala. 1992); State v. Matafeo, 787 P.2d 671 (Haw. 1990); see also
Arizona v. Youngblood, 488 U.S. 51, 61 (1988) (Stevens, J., concurring in the result) (“[T]here
may well be cases in which the defendant is unable to prove that the State acted in bad faith but
in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a
criminal trial fundamentally unfair.”).
Before Youngblood was decided, this Court utilized a standard most like that articulated
in Hammond. When asked to apply the protection afforded by both the federal and Idaho
constitutions, this Court applied a multi-factor balancing test. We were not content to simply
determine if the behavior was in bad faith. Paradis, 110 Idaho at 540, 716 P.2d at 1312. It must
be remembered that it is extraordinarily difficult to prove bad faith, making such a showing
almost impossible. Yet prior to the decision in Youngblood, Idaho’s courts did not require a
showing of bad faith in order to find a due process violation. See id.; see also State v. Ward, 98
Idaho 571, 573–74, 569 P.2d 916, 918–19 (1977). The question needs to be asked: if negligence
on the part of State actors was wrong prior to Youngblood, what makes it acceptable post-
Youngblood? In addition, Idaho’s courts looked at the effect of the loss of the evidence in the
context of the other available evidence. See Ward, 98 Idaho at 573–74, 569 P.2d at 918–19;
1
Of the seven states using a balancing test, five require a threshold showing before the test may be employed.
Delaware, Tennessee, and West Virginia require a showing that the State had a duty to preserve evidence, as defined
by the rules of criminal procedure. Hammond v. State, 569 A.2d 81 (Del. 1989); Ferguson, 2 S.W.3d 912; State v.
Osakalumi, 461 S.E.2d 504 (W.Va. 1995). Similarly, Massachusetts and Utah require a showing that there is a
“reasonable possibility” that the evidence would be favorable (Massachusetts) or exculpatory (Utah). Henderson,
582 N.E.2d 496; Tiedemann, 162 P.3d 1106.
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Paradis, 110 Idaho at 540, 716 P.2d at 1312. The test we found appropriate to Idaho’s
constitution in Paradis is as follows: “(1) whether the evidence was material to the question of
guilt or the degree of punishment; (2) whether the defendant was prejudiced by the loss or
destruction of the evidence; and (3) whether the government was acting in good faith when it
destroyed or lost the evidence.” Paradis, 110 Idaho at 535, 716 P.2d at 1307. Only after this
examination could the trial court decide whether the proceeding was rendered so fundamentally
unfair by the loss or destruction of the evidence as to require dismissal of charges.
This is not to say that the loss of all evidence will merit dismissal of charges, regardless
of the relative culpability of the State’s actors. As stated by the Connecticut Supreme Court,
“The trial court [should] not [be] faced with the Hobson’s choice of either dismissing all criminal
charges or denying any relief whatsoever to a criminal defendant who possibly has been
prejudiced as a result of the negligence of the state.” State v. Morales, 657 A.2d 585, 595–96
(Conn. 1995). Instead, the trial court should determine the appropriate remedy in an exercise of
its discretion.
The touchstone for the balancing process is fundamental fairness. If the behavior
of the State in a given case is so reprehensible as to warrant sanction, a sanction
might be available even where prejudice to the defendant is slight or only
speculative. If prejudice to the defendant, on the other hand, is extreme, fairness
may require sanction even where there is no wrongdoing on the part of the State.
In between those extremes, we have confidence that trial judges can strike a
balance that preserves defendants’ constitutional rights without undue hardship to
the prosecution.
State v. Tiedemann, 162 P.3d 1106, 1117 (Utah 2007). The Tennessee Supreme Court cautions
that dismissal is “but one of the trial judge’s options. The trial judge may craft such orders as
may be appropriate to protect the defendant’s fair trial rights.” State v. Ferguson, 2 S.W.3d 912,
917 (Tenn. 1999) (suggesting as an example that a defendant’s rights may be protected by
instructing the jury that it is proper to infer that lost or destroyed evidence would be favorable to
the defendant).
For the reasons stated, I agree with the majority that the proper remedy is to remand this
case for further proceedings. However, I view Youngblood as falling far short of the due process
protections afforded by Idaho’s constitution. To conclude that Idaho’s police and prosecutors
may negligently destroy evidence in a criminal case is neither just nor fair. The holding of
Youngblood is troubling and has prompted numerous states in the years since its decision to
reject its adoption when it comes to state due process challenges. Accordingly, I concur in the
17
result but respectfully dissent from the reasoning articulated by the majority. I would remand for
further proceedings, but I would reject Youngblood and take Idaho’s jurisprudence on a fairer,
more just path.
Chief Justice BURDICK concurs.
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