STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1943

State of Minnesota,
Respondent,

vs.

Daniel Lee Woodbeck,
Appellant.

Filed June 28, 2005

Affirmed

Minge, Judge

Pine County District Court

File No. K9-02-1169

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063-1693 (for respondent)

Richard A. Sand, Daniel S. Adkins, Richard Sand, Adkins & Associates, 175 Lexington Parkway North, Suite 200, St. Paul, MN 55104 (for appellant)

Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges the district court’s denial of his motion to suppress evidence from the examination of dogs that were later euthanized and cremated by animal control officers. Because we find that the evidentiary value of the dogs was not apparent at the time they were destroyed and because we find that the rules of criminal procedure did not require the police to preserve the dogs to allow appellant to examine them, we affirm.

FACTS

On March 23, 2001, Pine County deputies executed a warrant to search appellant Daniel Woodbeck’s property. Eighteen pit bull terriers were seized; many exhibited signs of malnourishment and neglect. Evidence that the dogs were being bred and used for dog fighting was also found, including syringes, iodine, catgut suture, bottles of Vitamin B complex for injection, a bottle of Dexamethasone (a prescription anti-inflammatory drug), an advertisement for a treadmill for dog conditioning, and a bite or break stick used for training dogs to fight.

The seized animals were examined by an Animal Humane Society veterinarian. The veterinarian made records of her examinations of the seized dogs, including five of the dogs appellant is charged with mistreating. The veterinarian stated that the dogs were 10-30% underweight and had scars and lesions that were consistent with dog fighting.

Subsequently, a deputy interviewed appellant on the telephone. Appellant stated that he owned the dogs, that they came from fighting bloodlines, that he knew some of the dogs were in poor shape, that he obtained the prescription drug from a friend, and that his dogs had been confiscated the previous year, but he had gotten them all back. The deputy informed appellant that he had until April 3, 2001, to request a hearing for the possible return of the animals. Several dogs were transferred to the Animal Humane Society of Minneapolis; others were placed with the City of St. Paul Department of Animal Control. Pursuant to Minn. Stat. § 343.235 (2000), the dogs were held for ten days and then euthanized and disposed of by the Minneapolis and St. Paul units.

Approximately one-and-a-half years after the dogs were seized, a complaint was filed charging appellant with five counts of animal fighting, in violation of Minn. Stat. § 343.31 (2000). Appellant made a discovery motion seeking production of the dogs seized, or in the event they had been euthanized, access to the carcasses of the dogs for physical examination. Because the dogs had been euthanized and cremated so appellant was not able to inspect them, he moved to suppress the evidence of the condition of the dogs. This motion was denied. Appellant waived his right to a jury trial and stipulated to the prosecution’s case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). On March 22, 2004, the district court found appellant guilty of all five counts of animal fighting. This appeal followed.

D E C I S I O N

A. Due Process

Appellant argues that because he was not allowed to examine the dogs or their carcasses, his due process rights and rights under the Minnesota Rules of Criminal Procedure were violated, and the evidence from the examination of the dogs should be excluded. Due process rights are implicated when the state fails to preserve evidence relevant to the case. State v. Krosch, 642 N.W.2d 713, 718 (Minn. 2002). When reviewing these types of constitutional issues, this court reviews the district court’s legal conclusions de novo and its factual findings for clear error. State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

For an appellate court to reverse a district court ruling on lost or destroyed evidence, the appellant must show that the destruction was intentional and that the exculpatory value of the evidence was apparent and material. State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992) (citing California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34 (1984)). It is also important to consider the defendant’s ability to obtain comparable evidence from other reasonably available sources. Trombetta, 467 U.S. at 489, 104 S. Ct. at 2534; Heath, 685 N.W.2d at 55-56; Friend, 493 N.W.2d at 546. In Friend, the defendant had opportunity to cross-examine the pathologist who examined the body when the fingernail scrapings had not been saved. 493 N.W.2d at 546. When the only thing that can be said about the destroyed evidence is that it could have been subjected to tests, the results of which might have exonerated the defendant, to succeed in a claim of a denial of due process of law, the defendant must show bad faith on the part of the police in failing to preserve potentially useful evidence. Arizona v. Youngblood, 488 U.S. 1051, 1057, 109 S. Ct. 333, 337 (1988); Heath, 658 N.W.2d at 55.

In Heath, the police searched a methamphetamine laboratory and discovered numerous items consistent with the manufacture of methamphetamine, as well as a white substance that turned out to be methamphetamine. 685 N.W.2d at 54. The defendant was convicted of five counts of controlled-substance crime, including conspiracy to manufacture and aiding and abetting possession with intent to sell. Id. at 55. The police destroyed the contaminated items in accordance with state and federal regulations. Id.at 56. On review, this court held that because the officers were acting in accordance with state and federal law in destroying the evidence and because the defendant failed to show the police destroyed the evidence knowing it had exculpatory value, there was no showing that the officers acted in bad faith. Id. The court rejected the defendant’s argument that because the state could not show that the defendant was not prejudiced by the destruction of the evidence, the evidence had exculpatory value. Id.

Appellant argues that the exculpatory value of the evidence is undeniable because the physical appearance of the dogs, including the nature of the lesions, is at the center of the charged offenses. However, appellant does not state how his ability to examine the dogs would produce exculpatory evidence or what type of exculpatory evidence he hopes to obtain. In this case, the appellant presumably knew the dogs’ condition. Until they were seized, they were in his custody and control. Appellant makes no claim that the appearance of the dogs supports his innocence. Therefore, appellant has not shown that the exculpatory nature of the evidence was apparent at the time the dogs were euthanized and cremated by animal control officers. Furthermore, appellant has failed to show that by allowing the dogs to be killed and cremating their remains, the officers acted in bad faith. Police officers have a duty to take possession of any animals which have been cruelly treated and deliver them to the care of the proper officials for care and custody. Minn. Stat. § 343.12 (2000). An animal taken into custody under Minn. Stat. § 343.12 may be humanely disposed of by the jurisdiction with custody of the animal after ten days, as long as the party with an interest in the animals is given proper notice of his or her ability to request a hearing to obtain the return of the animals. Minn. Stat. § 343.235 (2000). The state followed these procedures and the dogs were disposed of in accordance with Minnesota law.

Appellant could also have questioned the veterinarian who examined the dogs and introduced evidence to explain their appearance. Courts have often found that the ability of a defendant to examine the person who gathered the evidence shows the ability of the defendant to obtain comparable evidence, which diminishes any burden on a defendant’s due process right from the destruction of evidence. See Trombetta, 467 U.S. at 490, 104 S. Ct. at 2535 (defendant could cross-examine the officer administering the breath test to raise doubts about proper administration); Friend, 439 N.W.2d at 546 (defendant could cross-examine pathologist examining body about whether proper procedures were used); State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987) (arresting officer and defendant could both testify as to results of field sobriety tests when videotape was lost), review denied (Minn. Apr. 17, 1987).

The facts of this case are very similar to the recent decision of this court in Heath. As in Heath, police destroyed evidence pursuant to state regulations, and there is no indication that the officers acted in bad faith. See 685 N.W.2d at 56. Also the case before us is similar to Heath, in that there was no evidence that the dogs had an exculpatory value that should have been apparent to the state. See id.

B. Rule 9.01

Appellant also argues that his rights to discovery under the rules of criminal procedure were violated because he was not allowed to examine the dogs or their carcasses. Appellant relies specifically on Minn. R. Crim. P. 9.01, subd. 1(4), which states:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of physical or mental examinations . . . . The prosecuting attorney shall allow the defendant to have reasonable tests made. If a scientific test or experiment of any matter, except those conducted under [the chapter on traffic regulations], may preclude any further tests or experiments, the prosecuting attorney shall give the defendant reasonable notice and an opportunity to have a qualified expert observe the test or experiment.

Appellant argues that the rule required the state to give reasonable notice to appellant that the examination of the dogs was going to occur so that appellant could have a qualified expert observe the examination of dogs. However, the examination of the dogs by a veterinarian is not a test or experiment that precludes further tests or experiments. The euthanization and cremation of the dogs was not related to the examinations performed by the veterinarian. Rather, the dogs were euthanized and cremated after the appellant chose not to request a hearing to regain possession of the dogs. None of the rules for discovery cited by the defendant require the state to turn over evidence it does not have in its possession and cannot obtain. In accordance with Rule 9.01, subd. 1(4), appellant was allowed to inspect the reports that the veterinarian made regarding the physical examination of the dogs.

The district court did not err by refusing to suppress the evidence from the examination of the dogs because the exculpatory value of the dogs at the time they were destroyed was not apparent and because the state did not act in bad faith in permitting destruction of the dogs. Furthermore, the requirements for discovery contained in the Minnesota Rules of Criminal Procedure did not require the state to retain the dogs or the carcasses until appellant could examine them.

Affirmed.