This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Robert Joseph Hutchins,


Filed May 6, 1997


Willis, Judge

Morrison County District Court

File No. K194849

Hubert H. Humphrey, III, Attorney General, Nancy J. Bode, David Orbuch, Assistant Attorney Generals, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Conrad Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN 56345 (for Respondent)

John M. Stuart, State Public Defender, Patricia Rettler, Special Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Robert Hutchins challenges his conviction of criminal vehicular operation, arguing that (1) the district court erred in refusing to admit evidence of the victim's traffic and criminal records and (2) because certain evidence was not preserved, his due process rights were violated. We affirm.


In May 1994, Robert Hutchins and Jeremiah Balaski were involved in a one-car accident in Balaski's car that killed Balaski and injured Hutchins. Hutchins was picked up by a passing driver, who dropped him off near a house where he went to seek assistance. The homeowner called 911. The sheriff's deputy who responded to the call said that when he arrived, Hutchins appeared intoxicated. Hutchins told the deputy that his neck hurt, but gave inconsistent explanations for the injury.

The deputy heard on his radio that there had been an accident and proceeded to the scene with Hutchins. On the way to the accident scene, Hutchins made contradictory statements to the deputy, alternately saying that he had been driving a car and that he was only a passenger in a car. A teenager who was riding with the deputy that night testified that when the deputy left to examine the accident scene, Hutchins told him that he had been driving a car and it had gone in the ditch a few times.

A Minnesota State Patrol accident reconstructionist examined Balaski's car and the accident scene and determined that the car had rolled over and Balaski had been thrown from it. A deputy made plaster casts of footprints discovered near the driver's door of the car. Deputies at the scene determined that Hutchins's boots matched the footprints and took the boots for evidence before Hutchins was taken to the hospital. The car was taken to the lot of a local towing company and was destroyed in November 1994.

A deputy coroner examined Balaski's body at the scene of the accident. The body was taken to the morgue, where x-rays, photographs, and a blood sample were taken. Balaski's blood-alcohol content was .21. The coroner reviewed the work of his deputy and determined that Balaski's injuries were consistent with being thrown from a car.

A blood sample taken from Hutchins at the hospital showed that his blood-alcohol content was .16. Hutchins told police at the hospital that he was a passenger in the car, but also said that he could not remember what happened.

Hutchins's accident reconstruction expert testified that the unavailability of the car and an autopsy report made it difficult for him to determine who was the driver of the car because he was not able to compare damage to the interior of the car with the injuries sustained by Balaski. Hutchins's medical expert testified that it was difficult for him to ascertain the precise cause of Balaski's death without an autopsy report.

A jury found Hutchins guilty of criminal vehicular operation. The district court denied Hutchins's motions for a new trial and for exhumation of Balaski's body, and this appeal followed.


1. Excluded Evidence.

Hutchins argues that the district court erred in excluding evidence of incidents in Balaski's criminal and traffic records because the evidence is relevant to the determination of whether Hutchins or Balaski was driving the vehicle at the time of the accident, is not prejudicial, and is admissible as evidence of a habit. The incidents occurred between 1992 and 1994 and involved (1) motor vehicle theft, (2) minor consumption and open bottle, (3) criminal damage to property, and (4) speeding, no driver's license, and no insurance.

"Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith." Minn. R. Evid. 404 (b). Evidence of prior acts of a victim of a crime may be admissible, however, if the acts are sufficiently similar to current alleged actions in terms of time, place, or modus operandi. State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995). A district court's decision on the admissibility of such evidence will not be disturbed absent a clear abuse of discretion. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991).

The district court granted the state's motion to suppress evidence of the incidents because it found that, rather than shedding light on the issue of whether Hutchins or Balaski was the driver of the car at the time of the accident, the evidence would tend to show that it was part of Balaski's character to engage in bad acts involving driving and to imply that he acted in conformity with that character on the night of the accident.[1] See Minn. R. Evid. 404 (b). The district court did not abuse its discretion in concluding that the incidents on Balaski's traffic records were not sufficiently similar in terms of time, place, or modus operandi to his alleged actions on the night of the accident to be admissible.

Evidence of habit is relevant to show action in conformance with the habit. Minn. R. Evid. 406. Habit is a "'regular response to a repeated specific situation.'" Id. 1989 comm. cmt. (quoting C. McCormick, Evidence § 195 (2d ed. 1972)). Hutchins alleges that Balaski's traffic and criminal records were evidence of habit because they showed he used alcohol irresponsibly and drove dangerously. Hutchins does not allege that Balaski's behavior was in response to a repeated specific situation, nor does he claim that the incidents constituted uniform responses to a situation. The incidents described in Balaski's traffic and criminal records do not constitute a habit. See Rusciano v. State Farm Mut. Auto Ins. Co., 445 N.W.2d 271, 274 (Minn. App. 1989) (concluding that evidence of "playing chicken" in cars on prior occasions was insufficient to constitute habit).

2. Due Process.

Hutchins argues that his due process rights were violated because the state failed to analyze thoroughly and to preserve evidence that could have shown he was not the driver of the car at the time of the accident.

The state's duty to preserve evidence is limited to preserving evidence that (1) possessed an exculpatory value that was apparent before it was destroyed and (2) was of such a nature that the defendant would not be able to obtain comparable evidence. Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664, 667 (Minn. App. 1984). Factors to be considered in determining whether destruction of evidence necessitates reversal of a conviction include:

(1) whether the destruction was intentional; (2) the strength of the State's case even if the evidence was available; and (3) the possible exculpatory value of the lost or destroyed evidence.

State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987).

From the record, it does not appear that the state intentionally destroyed evidence. Before the car was destroyed, one of the investigating deputies attempted to put a "hold" on it at the impound lot so that it would be preserved for the investigation. However, the operator of the towing company's lot was given authorization by a dispatcher at the sheriff's office to destroy the car. It appears that here, as in Harris, the evidence was lost due to "negligent inventory practices," rather than to intentional destruction. Id.

As to the failure to perform an autopsy before releasing the body, the county coroner testified that although an autopsy would have been helpful in this case, it is not county procedure to perform an autopsy after every fatal automobile accident. The county's failure to do an autopsy before releasing Balaski's body cannot, therefore, be characterized as intentional destruction of evidence.

The state presented expert testimony on the condition of the body and of the car after the accident, Hutchins admitted to the deputy's passenger that he had been driving the car, and footprints leading from the driver's side of the car matched Hutchins's boots. The state's case would have been strong even if the car and an autopsy report had been available to the defense.

It is not clear that the destroyed evidence would have been exculpatory, and Hutchins has not argued that any exculpatory value of the evidence was known by the police before its destruction. Hutchins had access to numerous photographs of the car and the scene of the accident, as well as photographs and x-rays of the body. Further, Hutchins presented to the jury his experts' testimony and evidence of the state's failure to preserve the evidence, and he cross-examined the state's witnesses. See State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987) (concluding that where exculpatory value of videotape was unknown, existence of other evidence showing guilt made it unlikely evidence was exculpatory, and availability of testimony of person who made videotape provided other comparable evidence), review denied (Minn. Apr. 17, 1987).

Hutchins cites State v. Tollefson, No. C9-91-283 (Minn. App. July 23, 1991), in which this court affirmed a district court's decision to dismiss a complaint because the state destroyed a burned building before charging the defendant with arson. In Tollefson, this court concluded that evidence was intentionally destroyed and that its destruction was prejudicial because the state's evidence against the defendant was "far from overwhelming." Id., unpub. op. at 2. Here, the state had significant evidence of Hutchins's guilt, and there is nothing to show that the destruction of evidence was intentional.


[ ]1Hutchins argues that State v. Pride, 528 N.W.2d 862 (Minn. 1995), is analogous to the present case. In that case, the supreme court found that the defendant's Confrontation Clause rights were violated by the exclusion of evidence of a romantic relationship between a witness and police officer because the evidence was important in determining the witness's credibility. Id. at 867. Hutchins argues that the two cases are similar because in both cases the prosecutor was unable to show how the evidence would have been prejudicial. Here, however, the evidence would have been prejudicial because it was offered to show action in conformity with prior bad acts. Further, the cases are not analogous because in this case there is no Confrontation Clause issue, nor is there an issue of witness credibility.