PEOPLE v. QUERIO (1981)

Respondent Michael Dale Querio was charged by information with one count of attempted robbery while armed with a knife.   After a jury was impaneled and sworn the trial court dismissed the case pursuant to Penal Code section 1385 upon a defense request for sanctions for the destruction of evidence which had the possibility of assisting the defense.   The People appeal, contending:

1.  Respondent's motion for dismissal after the jury was sworn served to waive jeopardy so that the dismissal was subject to a People's appeal and the action was subject to a retrial in the event of reversal.

2. The inability to reconstruct a group of photographs displayed to witnesses which did not result in identification does not deprive the defendant of evidence material to his defense so as to preclude the possibility of a fair trial where in-court identification is anticipated.

3. Assuming arguendo that some sanction is called for by virtue of the investigating officer's inability to reconstruct from memory a group of photographs non-maliciously dismantled after failure to produce identification by witnesses, the slight possibility of some impeachment value hardly warrants the draconian measure of dismissal.

Appellant's first contention is a correct statement of the law on the facts before us (People v. Mills (1978) 87 Cal.App.3d 302, 310–311, 151 Cal.Rptr. 71) which we have considered and therefore requires no further discussion.

FACTS

On August 12, 1980, Thomas Castaneda, the cashier for U.S.A. Petroleum in Azusa was the victim of an attempted robbery.   Respondent was suspected of having committed the crime because a car registered to him was involved.   The police officer assigned to investigate the case showed Castaneda and the station manager a folder containing six photographs, including one of respondent, in an attempt to obtain an identification of the suspect.   Neither witness made an identification after viewing the folder, and it was therefore dismantled by the investigating officer.

According to the investigating police officer the photograph of respondent included in this folder was approximately one year old and in it his appearance was “quite a bit different” or “entirely different” from the way he looked at the time of trial.   The other photographs contained in the folder had been selected to match that of respondent's photo as closely as possible.   The folder was dismantled because it was of no further use to the prosecution and because of a “shortage of pictures to try to get people that are very much alike;  the individuals we are trying to identify.”

At the time of the hearing on defendant's motion for sanctions, the negative of that photograph of respondent was available, and a print could have been made from it.   It was impossible to recreate the entire folder, however, because although the other photographs were still in existence, the investigating officer did not remember which ones had been used in the folder.   He had not taken a photograph of the folder or kept a record of the photographs included therein.

About one week after viewing the first photographic lineup, the witnesses were shown another photographic lineup which included a more recent picture of respondent.   They also viewed a physical lineup in which respondent participated.

The trial court ruled that it was reasonably possible that the unavailable photographs could assist the defense and imposed the sanction of dismissal for the intentional but non-malicious destruction of the evidence.

DISCUSSION

The California Supreme Court held, in People v. Zamora (1980) 28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361, that the suppression or destruction of citizen complaints against police officers, which were discoverable in a criminal action charging battery on a police officer, constituted a violation of due process which required the imposition of appropriate sanctions in order to protect the defendant's right to a fair trial and to deter “prosecution attempts to defy or circumvent judicial authority.”  (Id., at p. 96, 167 Cal.Rptr. 573, 615 P.2d 1361.)

 The determination of the sanction to be imposed for destruction of discoverable evidence depends upon the circumstances of the destruction, the materiality of the evidence, and the impact of the sanction upon future cases and future police conduct.  (Id., at p. 100, 167 Cal.Rptr. 573, 615 P.2d 1361.)

 Respondent was entitled to discovery of the photographic lineup in question in order to explore the fairness of the identification procedure. (People v. Padgitt (1968) 264 Cal.App.2d 443, 449, 70 Cal.Rptr. 345.)   Thus, the destruction of this evidence raised the issue of what, if any, sanctions should be imposed.

 The record supports the trial court's determination that the circumstances of destruction indicated intentional but non-malicious action on the part of the investigating officer.¹

The trial court also found that it was reasonably possible that the nonavailable evidence would assist the defense.   Appellant argues that this finding of materiality is in error since the first photographic lineup did not result in an identification of respondent, and thus the only arguably possible taint would arise if the combination of the first and second photographic displays were unduly suggestive.   Appellant concludes that this possibility is remote because they used all different photographs in the second lineup.

When a jury is called upon to assess the fairness of identification procedures, the exact photographs shown to the witnesses are obviously the most useful evidence upon which to base that assessment.  (See, People v. Padgitt, supra.)   If the first photographic lineup was impermissibly suggestive, and if the second photograph of respondent which was included in the subsequent photographic lineup was sufficiently similar to the first, it is possible that the witnesses may have been subtly influenced by their repeated viewing of respondent's likeness to identify him as the perpetrator of the crime.  (See Note, Did Your Eyes Deceive You?   Expert Psychological Testimony on the Unreliability of Eyewitness Identification, (1977) 29 Stanford L.Rev. 969, 983.)

Thus, although the trial court's finding of materiality necessarily rested upon questioning what the missing evidence might demonstrate, it is the absence of the evidence which necessitates that questioning (People v. Hitch (1974) 12 Cal.3d 641, 648–649, 117 Cal.Rptr. 9, 527 P.2d 361) and we find no error in the conclusion.

The question remains, however, as to the appropriateness of the sanction imposed.   The sanctions available to the court included an instruction to the jury on the inference to be drawn from the unavailability of the evidence (People v. Zamora, supra), suppression of testimony concerning the missing evidence (People v. Hitch, supra), suppression of all related testimony (see, People v. Goss (1980) 109 Cal.App.3d 443, 167 Cal.Rptr. 224), and dismissal (People v. Mejia (1976) 57 Cal.App.3d 574, 129 Cal.Rptr. 192).

 The trial court has broad power to fashion sanctions for the intentional destruction of evidence to insure a fair trial.  (Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363, 150 Cal.Rptr. 216;  People v. Zamora, supra, 28 Cal.3d at p. 99, 167 Cal.Rptr. 573, 615 P.2d 1361.)   However, the authority to dismiss a criminal case pursuant to Penal Code section 1385 is not absolute and requires a consideration of the interests of the public as well as of the defendant.  (People v. Harris (1976) 62 Cal.App.3d 859, 861, 133 Cal.Rptr. 352.)

 Under the circumstances presented, dismissal is not required.   Respondent's right to a fair trial can be adequately protected by the suppression of all identification testimony, and by instructions which inform the jury that;

1. There was a photographic lineup which included respondent's photograph from which no one identified him as the person involved in the commission of the crime.

2. There was a second photographic lineup thereafter which included respondent's photograph from which he was tentatively identified by one witness to the extent of 5.5 on a scale of ten and by another witness to the extent of six or seven on a scale of ten.

3. After those two photographic lineups there was a physical lineup which included respondent.   At that lineup one witness who recognized respondent as a person she had seen on another occasion, identified a person other than respondent as the perpetrator of the crime.   The other witness identified respondent.

4. The first photographic lineup may have been unduly suggestive and the subsequent identifications of respondent may have been the result thereof.

This procedure will adequately protect the interest of both parties.   It gives to respondent all of the benefit the missing evidence might have provided him, and at the same time allows the People to pursue prosecution without the benefit which may have accrued to it by the destruction of the evidence.

The judgment of dismissal is reversed, and the case is remanded for further proceedings consistent with the views expressed herein.

FOOTNOTES

1.   For this reason cases holding the “mere claim that a procedure might have been unfair” does not require production of the photographs where their unavailability is not the result of an intentional act (People v. Kaiser (1980) 113 Cal.App.3d 754, 764, 170 Cal.Rptr. 62;  People v. Dewberry (1974) 40 Cal.App.3d 175, 180, 114 Cal.Rptr. 815;  People v. Apo (1972) 25 Cal.App.3d 790, 798, 102 Cal.Rptr. 242) are distinguishable and not controlling on the facts before us.

McCLOSKY, Associate Justice.

KINGSLEY, Acting P. J., and WOODS, J., concur.