State v. Jeffrey A. Roth, 2024AP737, 12/11/24, District II (1-judge decision, ineligible for publication); case activity
Three police officers confronted Roth after receiving a complaint that he was stumbling around and then sitting in a vehicle. The state charged Roth with five counts, including resisting. Before his jury trial, which resulted in two misdemeanor convictions, Roth moved to dismiss based on the police officers’ failure to preserve body and squad camera footage of the underlying incident. After a three-day evidentiary hearing, the circuit court denied the motion. The COA affirms, concluding that Roth failed to prove the videos were apparently exculpatory, or that the police acted in bad faith.
The parties agreed that for Roth to establish that a failure to preserve evidence violated his due process rights, he had to show that the police “(1) failed to preserve evidence that was apparently exculpatory, or (2) acted in bad faith by failing to preserve evidence that was potentially exculpatory.” State v. Luedtke, 2015 WI 42, ¶7, 362 Wis. 2d 1, 863 N.W.2d 592; State v. Greenwold, 189 Wis. 2d 59, 67-68, 525 N.W.2d 294 (Ct. App. 1994). (¶8).
The court first addresses Roth’s argument as to the second prong, which was that the police had duty to take “extra action” due to their use of force. Roth does not provide any legal support or explanation for this contention. He also fails to show that the government’s failure to preserve evidence was done in bad faith, as required by the test for potentially exculpatory evidence. (¶10).
As to the first prong of the test, the court concludes that Roth failed to prove that the evidence is apparently exculpatory. Roth relies on State v. Huggett, 2010 WI App 69, ¶23, 324 Wis. 2d 786, 783 N.W.2d 675, for the proposition that “there is no replacement for a live recording” of the incident. However, there was no evidence to suggest that the videos would have been helpful to Roth’s defense. In Huggett, the defendant presented evidence that demonstrated the value of the live recording to his defense (alleged victim was “angry and yelling” and had a “very threatening tone”). Because Roth cannot point to any evidence of what the videos would have shown, he cannot meet his burden to show that they are apparently exculpatory. (¶¶11-16).
