ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS; ST. THOMAS Crim. No. 76-167.
Adams, Rosenn and Hunter, Circuit Judges.
This case, in which Paul Testamark was charged with assaulting Merry Cook with intent to rape, raises the issue of how a court should deal with a police department's failure to preserve evidence that is potentially critical in a criminal proceeding.
At the trial, which took place before a jury, Ms. Cook testified to the following version of the event. Testamark had been drinking early in the day on July 9, 1976, at the self-service bar of the gift shop where Ms. Cook worked. He had then left to go swimming. Upon his return, two and one-half hours later, Testamark made himself another drink, and chatted with Ms. Cook about farming. He then unexpectedly grabbed her from behind, covered her mouth and dragged her outside.
Ms. Cook related that when Testamark threw her to the ground, he lost his hold on her mouth, and she then cried for help. Testamark, at that point, told her to "be cool" and "she would like it." When he proceeded to pull her dress up, Ms. Cook screamed again. Testamark then covered her mouth, and told Ms. Cook that he would let her breathe if she would turn over and be quiet. He began to pull her dress up again, and informed her if she screamed once more he would choke her to death. Ms. Cook shouted yet a third time, and Testamark began to carry out his threat.
At that point, the encounter was interrupted by one Carl Strauch, who arrived in response to the screams. Testamark left hurriedly, saying, according to Strauch, something about having been cheated.
Both Strauch and Ms. Cook identified Testamark in court as the assailant. In addition, Ms. Cook's husband testified that shortly after the assault, he confronted Testamark, and that when Mr. Cook stated "you're the one", and grabbed him, Testamark replied "no, it was someone else", and fled.
Testamark testified in his own defense, and provided a somewhat different account. Some time after leaving the gift shop where Ms. Cook worked, he recounted, he began to feel "strange" and "saw my mind going through optical changes." Deciding that his previous drink was the source of his discomfort, Testamark returned to the gift shop to confront Ms. Cook. When Ms. Cook turned to walk away without answering, he grabbed her, believing her to be responsible. They struggled and fell to the ground, with Ms. Cook on top. Testamark declared that at that point "sex was the furthest thing from my mind." When Strauch arrived, Testamark maintained he simply left, and passed out shortly thereafter.
A policeman testified that he found Testamark on the afternoon of July 9, 1976, apparently asleep, in the bushes that were nearby the gift shop where Ms. Cook worked. The officer stated that Testamark appeared normal, but that the defendant smelled of alcohol and, upon questioning, falsely identified himself as "Davey Crakker."
After placing Testamark under arrest, the police took him to a hospital to draw a blood sample. By that time it was after 5:00 p.m. on Friday afternoon, and the police chemist, who analyzed such samples, was no longer in his office. Consequently, one of the officers, Harry Daniels, took custody of the sample. Daniels neglected, however, to refrigerate it, and upon delivering it to the chemist on the following Monday, the sample was unusable.
Although, at the trial, Testamark admitted the assault, he defended on the theory that he was so bemused by the intoxicant he had imbibed that he was unable to form a specific intent to rape. He argued that either he was drunk or that the liquor he had taken contained drugs. The jury rejected Testamark's defense and he was found guilty as charged. The court sentenced him to 10 years in prison.
Testamark's first contention on appeal, and the most troubling one, is that by allowing the blood sample to spoil, the Government of the Virgin Islands has denied him due process of law. It is clear that had the blood sample been preserved, Testamark could have successfully requested that it be disclosed.*fn1 And, had the government suppressed the blood sample, or denied access to a copy of the report of the sample's analysis after a defense request, Testamark's constitutional rights might well have been violated if the blood sample could be characterized as "material".*fn2 By allowing the blood sample to spoil, Testamark urges, the government has in effect suppressed evidence which could have conclusively established his defense of incapacity.*fn3 The government has thus immunized itself, Testamark argues, to subsequent defense requests by destroying potentially exculpatory evidence.
In support of his claim, Testamark points a) to the fact that Officer Daniels testified that he knew that the blood would spoil if not refrigerated and b) to indications that the failure to refrigerate was a violation of standard police procedure. Moreover, Testamark notes that the trial judge commented that he ...