2009AP2658-CR State v. Munford

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Criminal Procedure
Exculpatory evidence

Where a defendant could not show that evidence had exculpatory evidence, the State’s destruction of it did not violate his due process rights.

“First and foremost, Munford’s argument ignores the trial court’s finding that Detective Gastrow thoroughly examined the van and did not find a bullet or a bullet strike. Munford does not challenge this finding and provides no evidence or even a reasonable inference from the evidence to support his theory that a bullet remains lodged inside the interior of the van. And although Munford’s expert was unable to physically examine the van, he was provided with thirty-two photos of the van from which such inferences could be obtained, and yet he found nothing. The mere possibility that a bullet remains lodged inside the van-after Detective Gastrow thoroughly examined the van and specifically looked for just such a bullet or bullet strike-does not support Munford’s argument that the van’s purported exculpatory value was apparent.”
“Moreover, Detective Gastrow did not act unreasonably in concluding, based on his experience, that the oval-shaped hole in the passenger’s side window of the van was unlikely a bullet hole. Based on Detective Gastrow’s experience, the shape and size of the hole did not comport with what he would expect to see if the hole had been created by a bullet. Detective Gastrow’s conclusion that the hole was unlikely caused by a bullet was bolstered when he failed to locate a bullet strike or bullet inside the van to correspond with the hole, and by the multiple witnesses at the scene of the crime, none of whom saw an individual with a gun on the passenger’s side of the van.” Affirmed.

Recommended for publication in the official reports.

2009AP2658-CR State v. Munford

Dist. I, Milwaukee County, McMahon, J., Brennan, J.

Attorneys: For Appellant: Sommers, Joseph L., Oregon; For Respondent: Loebel, Karen A., Milwaukee; Freimuth, James M., Madison

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