State v. Walker

                                        234

Argued and submitted August 5, 2020, affirmed December 14, 2022, petition for
                review denied March 30, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                CHRISTOPHER ROBERT WALKER,
                      Defendant-Appellant.
                    Coos County Circuit Court
                      17CR23843; A169812
                                    

    Defendant appeals from a judgment of conviction for second-degree man-
slaughter (ORS 163.125), fourth-degree assault (ORS 163.160), and reckless driv-
ing (ORS 811.140), arising out of a fatal car accident in which defendant crashed
into an oncoming car while attempting to pass other vehicles on a two-lane high-
way. Police impounded defendant’s vehicle, and a tow company eventually sold
the vehicle for scrap. On appeal, defendant first assigns error to the trial court’s
denial of his motion to exclude evidence of his vehicle’s mechanical condition,
arguing that the state violated his due process rights by failing to preserve the
vehicle and that the responding trooper acted in bad faith in failing to preserve
the vehicle. Defendant further assigns error to the trial court’s instruction that
the jury could convict him on nonunanimous verdicts. Held: Assuming without
deciding that the state failed to preserve the vehicle, the trial court did not err
when it denied defendant’s motion to exclude evidence. The trial court found that
the state did not act in bad faith in failing to preserve that potentially useful evi-
dence and there is evidence in the record to support that finding when the state
was acting in accord with its standard impound practices. Second, because the
jury was unanimous on each guilty verdict, any instructional error was harmless
beyond a reasonable doubt.
    Affirmed.



    Martin E. Stone, Judge.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
    Christopher R. Walker filed the supplemental brief pro se.
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  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  POWERS, J.
  Affirmed.
236                                           State v. Walker

        POWERS, J.
         Defendant appeals from a judgment of conviction for
second-degree manslaughter (ORS 163.125), fourth-degree
assault (ORS 163.160), and reckless driving (ORS 811.140),
arising out of a fatal car accident in which defendant crashed
into an oncoming car while attempting to pass other vehicles
on a two-lane highway. On appeal, defendant first assigns
error to the trial court’s denial of his motion to exclude evi-
dence of his vehicle’s mechanical condition, arguing that the
state violated his due process rights by failing to preserve
the vehicle and that the responding state trooper acted in
bad faith in failing to preserve the vehicle. Defendant fur-
ther assigns error to the trial court’s instruction that the
jury could convict him on nonunanimous verdicts. Lastly,
in a supplemental pro se brief, defendant advances three
additional assignments of error, which we reject without dis-
cussion. As explained below, even assuming that the state
failed to preserve the vehicle, the trial court did not err in
concluding that the state did not act in bad faith to preserve
that potentially useful evidence. Further, defendant’s claim
of instructional error was harmless. Accordingly, we affirm.
         We are bound by the trial court’s factual findings
so long as they are supported by sufficient evidence in the
record. See State v. Ehly, 

, 

 (1993).
If findings of historical fact are not made on all pertinent
issues and there is evidence from which such facts could
be decided more than one way, we will presume that the
facts were decided in a manner consistent with the court’s
ultimate conclusion. 

 We set out the relevant facts consis-
tently with our standard of review.
         Defendant was driving a Dodge Durango outside
of Myrtle Point on Highway 42, a two-lane highway. In an
attempt to pass two vehicles ahead of him—a pickup truck
and a box truck—defendant entered the oncoming lane in a
straightaway passing zone. He passed the pickup as the pass-
ing zone ended and the road began to curve. Although the
passing zone ended (and the roadway became a no-passing
zone), defendant remained in the lane for oncoming traffic
in an effort to pass the box truck. At that time, an oncom-
ing vehicle came around the curve. Defendant appeared to
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 brake, and the driver of the box truck saw smoke from defen-
dant’s tires. Defendant crashed into the oncoming Toyota,
passenger side to passenger side, injuring the Toyota’s
driver and killing the passenger, who died of her injuries
at a hospital later that day. Both vehicles were damaged to
the point that they were undriveable. A sheriff’s deputy who
was driving on Highway 42 noticed the crash scene shortly
after it happened, and other first responders arrived shortly
thereafter.

          Oregon State Police Trooper Dunlap arrived at
the crash scene and spoke with defendant. Defendant told
Dunlap that he was driving without insurance and that
his driver’s license was suspended. Because defendant was
driving without insurance and without a valid license,
Dunlap impounded the Durango. Before the Durango was
towed, Dunlap allowed defendant and his wife, who had
arrived after the accident, to remove some, but not all,
personal items from the vehicle, explaining there was an
ongoing criminal investigation. Dunlap gave defendant a
copy of the completed “780 Form,” also known as a “Towed
Auto Report,” as he normally does, which provided that the
vehicle was being impounded under the authority of ORS
809.720 and outlined the process that defendant would need
to go through to retrieve the impounded vehicle. Dunlap tes-
tified at the pretrial omnibus hearing that he was unsure if
he told defendant that he would phone defendant to notify
defendant of when he could retrieve the vehicle.

         A tow company took the Durango from the crash
scene to its gated tow yard. Dunlap obtained a warrant to
search the Durango. About three weeks after the crash,
Dunlap photographed the impounded vehicle at the tow
yard while Trooper Brock performed a mechanical inspec-
tion of the Durango. After Brock completed the inspection,
Dunlap verbally released the Durango to the tow company.
The Durango was not placed into evidence, and Dunlap
did not command the tow company to destroy the vehi-
cle. Dunlap neither called defendant nor wrote to tell him
that the Durango had been released to the tow company.
Defendant did not attempt to retrieve the Durango from
the tow company. The tow company unsuccessfully tried to
238                                             State v. Walker

contact defendant by mail and, subsequently, foreclosed on
the Durango and then sold the vehicle for scrap to recover
the cost of towing and storage.
          Before trial, defendant moved to exclude evidence of
the Durango’s mechanical condition, arguing that the state
violated his due process rights to a fair trial and to compul-
sory process under the Sixth and Fourteenth Amendments,
and Article I, section 11, of the Oregon Constitution, when,
in bad faith, it failed to preserve the Durango and there-
fore deprived him of the chance to test the vehicle. After a
pretrial omnibus hearing, the trial court denied defendant’s
motion. The trial court first concluded that the state had not
failed to preserve the Durango. It found Dunlap credible and
noted that Dunlap gave defendant the “Towed Auto Report,”
which explained the process for retrieving the impounded
vehicle, although defendant did not sign the “release” por-
tion of that form. Second, following the analysis set forth in
State v. Faunce, 

, 

 (2012), rev den,

 (2013), the trial court concluded that, even if
it were to find that the state failed to preserve defendant’s
vehicle, an inspection and test of the vehicle would not have
produced material exculpatory evidence; rather, the vehicle
would have produced only potentially useful evidence. See
id. at 67 (noting the distinction between “potentially useful”
evidence and “material exculpatory” evidence). The trial
court explicitly found that defendant failed to show that the
state acted in bad faith with respect to preserving the vehi-
cle as evidence. The trial court found that there was no “bad
faith here on the part of the police in order to try to secrete or
* * * try to inhibit or hide this vehicle from [defendant]” and
that the “only evidence of alleged bad faith” was “Dunlap’s
supposed failure to follow up with defendant by telephone
regarding the vehicle.” The trial court went on to explain
that any obligation that Dunlap had “to contact defendant
personally by phone” was negated because Dunlap had pro-
vided defendant with written instructions on how to retrieve
the vehicle from the tow company.
          During defendant’s jury trial, the state introduced
evidence of the Durango’s mechanical condition. At the
close of trial, the trial court instructed the jury that it could
return a nonunanimous verdict, to which defendant did
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not object. The jury unanimously found defendant guilty
on Count 1 (manslaughter in the second degree as a lesser
included offense of first-degree manslaughter), Count 2
(assault in the fourth degree as a lesser included offense of
third-degree assault), Count 3 (reckless driving), and Count
4 and 5 (recklessly endangering two different victims). The
trial court merged Counts 4 and 5 with Counts 1 and 2,
respectively.
         On appeal, defendant challenges the trial court’s
denial of his motion to exclude evidence of the Durango’s
mechanical condition, reprising his argument that the
state failed to preserve evidence—the Durango—that was
potentially useful to his defense and that the state failed
to preserve the Durango in bad faith, which violated his
right to due process and compulsory process. Defendant
acknowledges that the analysis for his Sixth Amendment
and Article I, section 11, compulsory process arguments
are absorbed into his due process arguments under the
Fourteenth Amendment. See State v. Zinsli, 

, 

 (1998) (explaining that, to determine
“whether evidence is material and favorable, the compulsory
process analysis is identical to the due process analysis”).
         On appeal, defendant raises three arguments in
support of his contention that the state failed to preserve
the Durango in bad faith, only one of which is preserved
for appellate review. See Peeples v. Lampert, 

, 

 (2008) (explaining that preservation
serves several purposes, including providing the trial court
the chance to consider and rule on an issue, ensuring fair-
ness to the opposing party by giving them an opportunity
to respond, and fostering full development of the record).
Defendant preserved his argument—by asserting the same
contention before the trial court—that the state acted in bad
faith when it failed to notify him that he was able to retrieve
the Durango, which he argues prevented him from under-
standing that he could retrieve the Durango and ultimately
resulted in the Durango’s foreclosure and destruction. He
has not, however, preserved his argument—because he did
not raise it before the trial court or give the state an oppor-
tunity to respond at trial—that Dunlap acted in bad faith
when he chose to impound the Durango pursuant to ORS
240                                                          State v. Walker

809.720 rather than seize the Durango as evidence in a crim-
inal investigation under ORS 819.200.1 Similarly, by not pre-
senting it first to the trial court, defendant failed to preserve
his argument that the written information on the 780 Form
that Dunlap provided to him failed to satisfy the notice pro-
visions outlined in ORS 819.180.2 See ORS 809.720(2) (pro-
viding that notice shall be given in the same manner and
within the same time limits as provided in ORS 819.180);
ORS 819.180(2) (providing, in part, that a vehicle taken into
custody and towed is subject to towing and storage charges
and that the vehicle and its contents are subject to a lien for
payment of towing and storage charges and will be sold to
cover such charges if the charges are not paid by a specified
date). Because defendant has not preserved those two argu-
ments for appellate review, nor asked us to review them as
    1
      ORS 809.720 provides, in part:
         “(1) A police officer who has probable cause to believe that a person, at
    or just prior to the time the police officer stops the person, has committed an
    offense described in this subsection may, without prior notice, order the vehi-
    cle impounded until a person with right to possession of the vehicle complies
    with the conditions for release or the vehicle is ordered released by a hearings
    officer. This subsection applies to the following offenses:
         “(a) Driving while suspended or revoked in violation of ORS 811.175 or
    811.182.
         “* * * * *
         “(d) Driving uninsured in violation of ORS 806.010.
         “(2) Notice that the vehicle has been impounded shall be given to the
    same parties, in the same manner and within the same time limits as pro-
    vided in ORS 819.180 for notice after removal of a vehicle.
         “* * * * *
         “(6) Notwithstanding subsection (3) of this section, the holder of a towing
    business certificate issued under ORS 822.205 may foreclose a lien created by
    ORS 87.152 for the towing and storage charges incurred in the impoundment of
    the vehicle, without payment of the administrative fee under subsection (3)(c)
    of this section.”
ORS 819.200 provides:
         “A vehicle that is being held as part of any criminal investigation is not
    subject to any requirements under ORS 819.170 to 819.190 unless the crimi-
    nal investigation relates to the theft of the vehicle.”
    2
      This argument also carries another procedural impediment to reaching the
merits of defendant’s contention because it was raised for the first time in his
reply brief. See, e.g., Ailes v. Portland Meadows, Inc., 

, 

 (1991) (explaining that this court should not have reached an alternative
waiver argument when that argument, in addition to not having been preserved
in the trial court, was not raised in the opening brief on appeal and was instead
presented for the first time in a reply brief).
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plain error, we do not address them; instead, we focus solely
on defendant’s preserved argument that the state failed to
preserve the Durango in bad faith when it failed to notify
defendant that he could retrieve the Durango.
          Under the Fourteenth Amendment, “unless a crim-
inal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not con-
stitute a denial of due process of law.” Arizona v. Youngblood,

, 

, 

 (1988). Given
that requirement, we begin and end with an inquiry into
whether defendant demonstrated that the state acted in bad
faith. See Faunce, 

 (following Youngblood
and explaining that, when a defendant claims that the state
“failed to preserve merely potentially useful evidence, such
as evidentiary material of which no more can be said than
that it could have been subjected to tests, the results of which
might have exonerated the defendant[,] * * * the defendant
must show that the state acted in bad faith” (internal quota-
tion marks omitted)).
         To begin, the parties’ arguments diverge on the
standard of review that we use to evaluate a trial court’s
determination that the state did not act with bad faith in
violation of a defendant’s rights under the Due Process
Clause of the Fourteenth Amendment when the state failed
to preserve potentially useful evidence. Both parties look to
our decision in Faunce in support of their respective argu-
ments: defendant advocates that we review bad faith as a
question of law whereas the state asserts that a trial court’s
decision on bad faith is reviewed as a question of fact.
         We conclude that bad faith is reviewed as a question
of fact. Although we were not explicit in Faunce, our dis-
cussion implies that we reviewed the defendant’s bad faith
claims under the federal constitution as a question of fact.
See Faunce, 

. In particular, when we
rejected the defendant’s first and third bad-faith arguments,
we highlighted the trial court’s explicit factual findings.

 (recognizing that the trial court found that the
police did not know that a potential suspect’s weapon, which
was seized by the police after they arrested the defendant
and then later returned to that potential suspect without
242                                                            State v. Walker

notification to the defendant, “was evidence favorable to defen-
dant and instead acted in good faith to investigate” the
potential suspect). Reviewing the trial court’s determination
that the defendant did not carry his, her, or their burden to
prove that the state acted in bad faith as a factual finding
is also consistent with the Supreme Court’s decision in State
v. Johnson, 

, 

 (2003) (explaining
that a reviewing court is “bound by a trial court’s ‘finding’
that a party’s evidence is not sufficiently persuasive”).3
          Moreover, reviewing bad faith as a question of fact
is consistent with how other courts review a potential vio-
lation of the federal constitution. See, e.g., State v. Johnson,
297 Kan 210, 215, 

 (2013) (explaining that, in
the context of a challenge under the federal constitution, the
court’s review for whether the state acted in bad faith in fail-
ing to preserve evidence is a question of fact); United States
v. Sivilla, 

 (9th Cir 2013) (explaining that
the absence of bad faith is a factual finding reviewed for
clear error, a highly deferential standard that is met only
when the reviewing court is left with a definite and firm con-
viction that a mistake has been committed); United States
v. Flyer, 

 (9th Cir 2011) (describing the
absence of bad faith as a factual finding that is reviewed for
clear error).4 Whether the trial court correctly applied the
    3
      The Supreme Court explained:
    “It is familiar doctrine that we are bound by a trial court’s findings of fact, if
    there is evidence in the record to support them. Ball v. Gladden, 

, 

 (1968); State v. Miller, 

, 

 (1985),
    cert den, 

 (1986). Although this court never has had occasion
    to say so expressly, we think that it follows from the foregoing rule that it
    equally is true that we are bound by a trial court’s ‘finding’ that a party’s evi-
    dence is not sufficiently persuasive. We believe that that rule follows, because
    it incorporates the same judicial respect for the trial court’s weighing of the
    evidence. Thus, unless the evidence in a case is such that the trial court as
    finder of fact could decide a particular factual question in only one way, we
    shall in the future consider ourselves equally bound by a trial court’s accep-
    tance or rejection of evidence.”
Johnson, 

; see also State v. A. L. M., 

, 

, rev den, 

 (2020) (applying Johnson in a juvenile delinquency pro-
ceedings and explaining that “we will disturb the juvenile court’s finding that it
was not persuaded that youth had met his burden of persuasion only if the record
would compel every reasonable juvenile court to be persuaded that youth had met
that burden”) (emphasis omitted).
    4
      Although the federal courts’ standards of review are not necessarily com-
parable to our standards of review—for instance, the use of the term “de novo” is
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applicable legal principles to the historical facts is reviewed
as a matter of law. Zinsli, 

.
         Turning to the merits of the parties’ arguments on
appeal, there is no dispute that the Durango was “potentially
useful evidence.” The trial court so concluded, and defen-
dant does not challenge that conclusion on appeal. Thus, we
turn to defendant’s argument that the trial court erred in
finding that he failed to show that the state acted in bad
faith. That is, when a defendant claims that the state “failed
to preserve merely ‘potentially useful’ evidence, such as ‘evi-
dentiary material of which no more can be said than that
it could have been subjected to tests, the results of which
might have exonerated the defendant[,]’ * * * the defendant
must show that the state acted in bad faith.” Faunce, 

 (citing Youngblood, 

).
         Generally, when evidence is destroyed in the course
of carrying out a standard practice, the state has not acted in
bad faith. See, e.g., California v. Trombetta, 

,

, 

 (1984) (concluding that there
was no due process violation under the federal constitution
when police destroyed breath samples “in good faith and in
accord with their normal practice”); United States v. Del Toro-
Barboza, 

 (9th Cir 2012) (“[W]here evi-
dence is routinely destroyed * * * and the evidence is later
sought for testing, the destruction or loss of such evidence is
not fundamentally unfair to a defendant and will not offend
traditional notions of due process.”); State v. Rossiter, 

, 

 (2019), rev’d on other grounds,

, 

 (2020) (concluding that the defen-
dant was neither entitled to dismissal of charges nor sup-
pression of the medical examiner’s testimony when the medi-
cal examiner, as a matter of standard practice, destroyed the
audio recording of his autopsy observations after complet-
ing his written report, and the defendant conceded that the
recording was not destroyed in bad faith).

markedly different in federal practice from its use in Oregon law—bad faith has
been described as a “factual inquiry.” See, e.g., Foy v. Lamas, No 2:12-0088, 

, at *10 (WD Pa Mar 6, 2013) (“Whether the state’s failure to preserve
material exculpatory evidence violated due process is a mixed question of law and
fact; however, the question of the state’s good or bad faith is a factual inquiry and
the presumption of correctness applies.”).
244                                           State v. Walker

         Similarly, here, the Durango was destroyed as the
end result of a standard process—indeed, a statutorily
authorized process—allowing for a tow company to foreclose
on a vehicle that it had towed to recoup the cost of towing and
storage. That process began when Dunlap impounded the
Durango under the authority prescribed by ORS 809.720. At
that time, Dunlap provided defendant with written instruc-
tions outlining how defendant could obtain release of the
Durango by giving defendant a copy of the completed 780
Form, as Dunlap testified that he “normally” does. Insofar
as he has preserved his arguments, defendant’s contention
of bad faith reduces to the proposition that Dunlap, acting
in bad faith, did not sufficiently notify defendant that he
was permitted to retrieve the Durango because Dunlap pro-
vided only the 780 Form to defendant and did not follow up
with defendant by phone. Dunlap provided defendant with
a copy of the completed impound form that included writ-
ten information about how to retrieve the vehicle—an act
that was akin to following a standard practice. Other than
the fact that Dunlap did not follow up with defendant by
phone when he may have offered to do so, there was no other
evidence that Dunlap acted in bad faith. That is, Dunlap
followed a standard practice to inform defendant of how to
retrieve the impounded vehicle, and, absent any other evi-
dence of bad faith, that Dunlap followed normal practices to
inform defendant of how to retrieve the impounded vehicle
is insufficient to show that Dunlap acted in bad faith.
         Moreover, even if Dunlap was negligent in not
phoning defendant when the Durango was released to the
tow company, that would not constitute bad faith. Indeed,
“[b]ad faith requires more than mere negligence or reckless-
ness.” Flyer, 

; see also Youngblood, 

 (concluding that the government’s failure to preserve
potentially useful evidence could “at worst be described as
negligent” and therefore police did not act in bad faith);
Faunce, 

 (explaining that “the state’s neg-
ligence does not amount to bad faith for failing to preserve
potentially useful evidence”). That is, the state does not nec-
essarily act in bad faith merely because a different action
would have been more prudent. See, e.g., Del Toro-Barboza,

 (concluding, in a cash smuggling case, that
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the government did not act in bad faith when it failed to
preserve a box in which border agents found half a million
dollars in cash and when it deposited the money in a bank,
stating, “[i]t might have been a better practice for the gov-
ernment to have retained both the box and the money for
[d]efendants to test, but bad faith requires more than mere
negligence or recklessness”). Here, the trial court ultimately
found that the state did not act in bad faith. In so conclud-
ing, the trial court did not expressly characterize the state’s
action or inaction as negligent or reckless; rather, the court
noted “Trooper Dunlap’s supposed failure to follow up with
defendant by telephone regarding the vehicle.” However,
even if Dunlap negligently failed to follow up with defendant
by phone, that would not constitute bad faith.
         In short, assuming without deciding that the state
failed to preserve the Durango, we conclude that the trial
court did not err when it denied defendant’s motion to
exclude evidence. The trial court found that the state did not
act in bad faith in failing to preserve that potentially useful
evidence and there is evidence in the record to support that
finding when the state was acting in accord with its stan-
dard impound practices. Moreover, even if the officer was
negligent in not phoning defendant when the impounded
Durango was released to the tow company, that would not
constitute bad faith. Therefore, the trial court did not err
when it denied defendant’s motion to exclude evidence.
         Turning to the second assignment of error, defen-
dant asserts that the trial court plainly erred when it
instructed the jury that it could return nonunanimous ver-
dicts. Although the trial court instructed the jury that it
could convict defendant with a vote of 10 out of 12 jurors, the
record reflects that the jury was unanimous on each guilty
verdict. As such, we conclude that any error was harmless
beyond a reasonable doubt. State v. Ciraulo, 

,

 (2020), cert den, 

, 

, 

 (2021). Accordingly, we reject defendant’s sec-
ond assignment of error.
        Affirmed.