Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of             Dec 23 2014, 6:38 am
res judicata, collateral estoppel, or the
law of the case.



ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                         GREGORY F. ZOELLER
Marion County Public Defender Agency           Attorney General of Indiana
Indianapolis, Indiana
                                               RYAN D. JOHANNINGSMEIER
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

HAROLD BISHOP,                                 )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )     No. 49A02-1405-CR-367
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )



                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Mark D. Stoner, Judge
                           Cause No. 49G06-1209-FA-61225



                                    December 23, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                Case Summary and Issue

       Following a jury trial, Harold Bishop was convicted of attempted murder, a Class

A felony. Prior to trial, the State destroyed two .45 caliber shell casings found at the

crime scene without first allowing the defense to test them. Bishop appeals, asking

whether the trial court erred by allowing the State to present expert testimony that both

shell casings were fired from the same gun.         Concluding the shell casings were

“potentially useful evidence” as described by the United States Supreme Court in Arizona

v. Youngblood, 488 U.S. 51, 58 (1988), and that no evidence suggests the casings were

destroyed in bad faith, we affirm.

                               Facts and Procedural History

       Bishop developed a friendship with William Cullens as a result of their

membership at a local gym. In the spring of 2012, Cullens borrowed $500 from Bishop,

and the debt remained outstanding several months later. On August 29, 2012, Bishop

angrily approached Cullens at the gym and inquired about the money. The two men took

the conversation outside, at which point Bishop acted as if he wished to fight. Cullens

told Bishop that he was expecting to receive an annuity payment in the near future and

would repay Bishop then.

       On the evening of August 31, 2012, Cullens was home with his girlfriend, Yvonne

Johnson. Around 10:45 p.m., Johnson decided she wanted to go out for a night on the

town. As Johnson and Cullens were walking to Cullens’s car, they heard a voice say,

“Will, where’s my money?” Transcript at 33, 66. Cullens recognized the voice as

Bishop’s, and Cullens turned to see Bishop raise his arm and point a gun directly at him.

                                            2
Cullens turned and ran. He heard a gunshot and was struck in the back by a bullet, but he

continued running and called 911 after he exited the apartment complex.

       The State charged Bishop with attempted murder, a Class A felony, and

aggravated battery, a Class B felony, but the State later moved to dismiss the aggravated

battery charge. The police recovered two .45 caliber shell casings from the parking lot

where the shooting occurred. Although a gun was never recovered, the State’s forensic

scientist determined that the two shell casings were fired from the same gun. On January

30, 2014, the State notified Bishop and the trial court that the casings had been destroyed

without consultation with the prosecutor’s office or the detective assigned to the case.

On February 27, 2014, Bishop filed a Motion to Dismiss Due to Destruction of Evidence

or in the Alternative for Exclusion of Evidence. Following a hearing, the trial court

denied the motion. At trial, over Bishop’s objection, the State presented expert testimony

that the two casings were fired from the same gun. The jury found Bishop guilty of

attempted murder, and Bishop was sentenced to thirty-five years imprisonment. Bishop

now brings this appeal.

                                 Discussion and Decision

                                  I. Standard of Review

       Bishop argues the trial court erred by denying his motion to exclude evidence and

allowing the State to present evidence that the casings were fired from the same gun,

asserting that the State’s destruction of the casings violated his due process right to have

the State preserve material exculpatory evidence. A trial court’s decision to admit or

exclude evidence is reviewed for an abuse of discretion. J.K. v. State, 8 N.E.3d 222, 228

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(Ind. Ct. App. 2014). A trial court abuses its discretion when its decision is clearly

against the logic and effect of the facts and circumstances or when the trial court has

misinterpreted the law. Id.

                                  II. State’s Duty to Preserve Evidence

         Bishop contends that the State’s failure to preserve evidence relevant to his case

violated his right to due process under the United States Constitution.1 A defendant’s due

process rights are violated when the State fails to disclose or preserve material

exculpatory evidence. See United States v. Agurs, 427 U.S. 97 (1976). For evidence to

be constitutionally material, it “must both possess an exculpatory value that was apparent

before the evidence was destroyed, and be of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available means.” California

v. Trombetta, 467 U.S. 479, 489 (1984).                        When the evidence at issue is material

exculpatory evidence, it is irrelevant whether the State’s failure to disclose or preserve

the evidence was in good or bad faith. Illinois v. Fisher, 540 U.S. 544, 547 (2004).

         In contrast, when the evidence at issue is “potentially useful evidence,” as opposed

to material exculpatory evidence, failure to preserve that evidence does not amount to a

due process violation “unless a criminal defendant can show bad faith” on the State’s

behalf. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Evidence that is “potentially

useful” was described by the Supreme Court 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


         1
           Although Bishop refers to Article 1, Section 12 of the Indiana Constitution at the close of his initial brief
and reply brief, he has not raised an independent argument under the Indiana Constitution.

                                                           4
exonerated the defendant.” Id. at 57. At the heart of the Youngblood decision was the

Court’s unwillingness to impose under the Due Process Clause “an undifferentiated and

absolute duty to retain and to preserve all material that might be of conceivable

evidentiary significance in a particular prosecution.” Id. at 58.

         Bishop does not assert the State acted in bad faith when it destroyed the shell

casings at issue in this case. Thus, the success or failure of his claim depends upon

whether the casings were material exculpatory evidence or merely potentially useful.

         Bishop contends that loss of the shell casings is significant because it deprived

him of the opportunity to test the casings and contradict the State’s expert testimony that

the casings came from the same firearm. It is quite clear that the destroyed shell casings

fall under the category of “potentially useful evidence.”                         The casings did not have

“exculpatory value that was apparent before the evidence was destroyed.” Trombetta,

467 U.S. at 489. Indeed, the casings were only potentially helpful to Bishop’s defense,

and Bishop’s own argument declares their significance is contingent upon the chance that

additional testing would yield a result inconsistent with that of the State’s expert.

Therefore, Bishop’s due process argument must fail without a showing of bad faith.2

         We also note that even if additional testing would have revealed that the two .45

caliber shell casings came from different guns, such evidence would have only minimal

         2
             Much of Bishop’s argument is founded on his contention that “Indiana has further refined the definition
of exculpatory evidence that must be preserved by the State as ‘evidence that might be expected to play a significant
role in the suspect’s defense.’” Appellant’s Brief at 5 (quoting McGowan v. State, 599 N.E.2d 589, 595 (Ind. 1992))
(emphasis added). He uses this language as a springboard for his argument that the State should have known he
would desire to test the casings and use them as part of his defense. Bishop is incorrect that Indiana has “refined”
the test for determining what is “material exculpatory evidence” as it is referred to in Youngblood and related cases.
It appears that the language quoted by Bishop originated in the Supreme Court’s decision in Trombetta, 467 U.S. at
488, which was in turn relied on by the majority in Youngblood. In no way does that language broaden the sphere
of “material exculpatory evidence” or narrow that of “potentially useful evidence.”

                                                          5
exculpatory value, if any. Cullens clearly identified Bishop as the shooter, and evidence

that the discovered casings were fired from two different guns would not change that fact

or even decrease its likelihood. At best, the potential evidence Bishop proposes would

indicate that at least one of the casings did not come from Bishop’s gun or that he only

fired one shot at Cullens, which struck him in the back. But it could also be inferred that

Bishop shot at Cullens with two different guns. Thus, from Bishop’s perspective, even

the potential value of the casings is negligible.

                                         Conclusion

       We conclude the two shell casings were “potentially useful evidence” as described

by the United States Supreme Court in Youngblood and that no evidence suggests their

destruction was carried out in bad faith. Therefore, the trial court did not abuse its

discretion by allowing the State to present expert testimony regarding the casings.

Accordingly, we affirm.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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