State v. Banks (Edgar)

 interview notes pursuant to Las Vegas Metropolitan Police Department
protocol.
Consequently, Banks filed a motion with the district court to
dismiss the charges based on the State's failure to preserve evidence, or in
the alternative, requesting an evidentiary hearing to question Detective
Merrick about the destroyed evidence. The district court granted Banks
an evidentiary hearing. After the evidentiary hearing, and despite
Detective Merrick's testimony that the destroyed notes stemmed from
interviews of inconsequential witnesses and contained immaterial
information, the district court granted Banks' motion to dismiss. The
district court found that (1) the State acted in bad faith in failing to
preserve the notes, and (2) Banks was prejudiced by the destruction of the
notes.
The State now appeals, arguing that: (1) the district court
abused its discretion in finding that the State acted in bad faith, and (2)
the district court abused its discretion in finding that Banks was
prejudiced by the State's failure to preserve the evidence.
Standard of review
This court reviews a district court's dismissal of a charging
document for an abuse of discretion. Hill v. State, 124 Nev. 546, 550, 188
P.3d 51, 54 (2008) (reviewing the dismissal of an indictment). 'An abuse
of discretion occurs if the district court's decision is arbitrary or capricious
or if it exceeds the bounds of law or reason." Nunnery v. State, 127 Nev.
„ 263 P.3d 235, 247 (2011) (quoting Jackson v. State, 117 Nev. 116,
120, 17 P.3d 998, 1000 (2001)).
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The district court abused its discretion in granting Banks' motion to
dismiss
This court has consistently held that in order to establish a
due process violation resulting from the State's destruction of evidence, a
defendant has the burden of establishing that (1) the State destroyed the
evidence in bad faith, or (2) the defendant was prejudiced by the
destruction of evidence.' Sheriff, Clark Cnty v. Warner, 112 Nev. 1234,
1239-40, 926 P.2d 775, 778 (1996). We conclude that the district court
abused its discretion in finding both (1) bad faith and (2) prejudice.
The district court abused its discretion in finding that the State acted
in bad faith
In finding bad faith on the part of the State, the district court
applied the factors from United States v. Bohl, 25 F.3d 904, 909-10 (10th
Cir. 1994). We conclude, however, that the district court erred by not
applying established Nevada law in its bad faith analysis.
Under Nevada law, this court evaluates bad faith on a case-by-
case basis. See Warner, 112 Nev. at 1240, 926 P.2d at 778 (concluding that
even though the defendant obtained a court order to preserve the
evidence, there was no evidence that the police destroyed the evidence to
make it unavailable to the defendant); State v. Hall, 105 Nev. 7, 9, 768
P.2d 349, 350 (1989) (concluding that the State did not act in bad faith
when a chemist disposed of laboratory samples for a legitimate purpose
after saving it for a reasonable time); Howard v. State, 95 Nev. 580, 582,
600 P.2d 214, 216 (1979) (concluding that although the State maintained
'We conclude that the State's argument that defendants must show
(1) bad faith and (2) prejudice is inconsistent with Nevada law and is
therefore without merit.
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control over property and failed to take measures to protect it from loss or
theft, the State did not act in bad faith).
Further, the State does not necessarily act in bad faith if it
fails to preserve evidence, even if it received notice from the justice court
of the defendant's request to preserve that evidence. Mortensen v. State,
115 Nev. 273, 284, 986 P.2d 1105, 1112 (1999). In Mortensen, the police
examined a witness' truck for evidence. Id. at 277, 986 P.2d at 1108. At a
bail hearing, the justice court requested that certain evidence, including
the truck and the witness' clothing, be preserved. Id. The police returned
the truck to the witness, however, because he was not a suspect in the
investigation. Id. at 283, 986 P.2d at 1112. Further, the police did not
obtain the clothing that the witness wore at the time of the incident. Id.The defendant eventually received the truck and clothing to examine, but
the truck had been altered and the clothing had been washed. Id. at 277,
986 P.2d at 1108. This court concluded that the state did not act in bad
faith for failing to preserve these items because the police did not know of
the apparent exculpatory nature of the evidence at the time of the
investigation. Id. at 283, 986 P.2d at 1112.
We conclude from our review of the record that there is simply
no meaningful evidence to demonstrate that the destruction of the notes
resulted from any bad faith on the part of the State. Even though the
justice court gave the State a blanket request to preserve all material
evidence, "there is no indication that the police destroyed this evidence in
an attempt to make it unavailable to [Banks]." Warner, 112 Nev. at 1240,
926 P.2d at 778. Detective Merrick testified about the insignificance of the
'unrecorded interviews, and we are unpersuaded that apparent
discrepancies in the police report prove that the State acted in bad faith.
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ccordingly, we conclude that the district court abused its discretion in
finding bad faith.
The district court abused its discretion in finding prejudice
This court has held that a defendant's demonstration of
prejudice "requires some showing that it could be reasonably anticipated
that the evidence sought would be exculpatory and material to [his]
defense." Warner, 112 Nev. at 1240, 926 P.2d at 778 (quoting Boggs v.
State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). It is not sufficient that
a defendant's showing demonstrate merely a hoped-for conclusion, "nor is
it sufficient for the defendant to show only that examination of the
evidence would be helpful in preparing his defense." Id. (quoting Boggs,
95 Nev. at 911, 604 P.2d at 108); Mortensen, 115 Nev. at 285-86, 986 P.2d
at 1113 (noting that the defendant's contention alone that exculpatory
information existed in the destroyed evidence was not sufficient to show
prejudice). Further, when a defendant can show only that the lost
evidence would have aided in the impeachment of a witness but would not
have established the defendant's innocence, then the defendant has failed
to show the exculpatory nature of the evidence, regardless of whether the
evidence may have been helpful to his defense. Orfield v. State, 105 Nev.
107, 110, 771 P.2d 148, 150 (1989).
We conclude that Banks was not prejudiced by the destruction
of the handwritten interview notes because he cannot establish that the
notes were 'exculpatory and material to [his] defense." Warner, 112 Nev.
at 1240, 926 P.2d at 778 (quoting Boggs, 95 Nev. at 911, 604 P.2d at 108).
Specifically, we are not persuaded that the interview notes would have
een material to Banks' defense given the other independent evidence
establishing his guilt. The most compelling of this independent evidence
is Banks' own confession to the crime, along with testimony from various
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testimony from various other witnesses implicating Banks in the murder.
Instead, the record suggests that the only real value the notes would have
provided would be in aiding Banks in impeaching the witnesses. See
Orfield, 105 Nev. at 110, 771 P.2d at 150. Accordingly, because Banks
cannot establish that the handwritten notes would have been material to
his defense, we conclude that the district court abused its discretion in
finding that Banks' was prejudiced.
Conclusion
Because Banks cannot establish either (1) bad faith on the
part of the State, or (2) that he was prejudiced by the destruction of the
handwritten notes, we conclude that the district court abused its
discretion in granting Banks' motion to dismiss. 2 Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
C.J.
Gibbons
J. 442\ J.
Hardesty
Th
Pa
rir rre
Cherry Saitta
2 We have considered the parties' remaining arguments and conclude
they are without merit.
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
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