Metropolitan News-Enterprise


Tuesday, December 13, 2005


Page 1


Proposition 115 Does Not Require Preservation of Police Officer’s Raw Investigative Notes, C.A. Rules


By a MetNews Staff Writer


Police officers need not preserve their rough investigative notes after using them to prepare written reports, provided that they act in good faith and pursuant to agency policy, the First District Court of Appeal has ruled.

In an opinion authored Friday, the same day she was nominated to the California Supreme Court, Justice Carol Corrigan said there is no requirement, either under the U.S. Constitution or the reciprocal discovery provisions of Proposition 115, that police preserve every piece of evidence that could possibly become relevant to a subsequent prosecution.

The court affirmed the San Mateo Superior Court conviction of Eric J. Coles on charges of arson and attempted arson stemming from the firebombing of a vehicle in the garage of a large apartment building across the street from his girlfriend’s residence.

The December 2002 incident came about after the sister of Coles’ girlfriend, Priscilla Rosales, had an altercation with a resident of the apartment building who owned an SUV.

Prosecutors charged that Coles responded to his girlfriend’s challenge to “be a man” and “do something” about the altercation by setting a fire that caused substantial damage to a Ford in the garage and igniting a paper towel that had been rolled up and shoved in the fuel neck of a Mercedes SUV, which was not damaged because the flame went out quickly.

Coles, identified by a witness as the man seen near both vehicles on a surveillance tape from the garage, allegedly told police he had been drinking and had set the fire to satisfy his girlfriend and avenge the altercation with her sister. He wrote a letter of apology, at a police officer’s suggestion, saying he was sorry and would “love to help with any damages.”

At trial, the prosecution called Rosales and her mother, Rene Jones, as witnesses. Both confirmed the incident earlier in the day but denied that Coles had admitted setting the fire.

The prosecution then called the two officers who had investigated the fire. They testified that they had interviewed Jones and Rosales, and that each told them that Coles admitted setting the fire, contrary to their testimony in court.

The two said they had destroyed the notes of the conversations, but that the notes had been used to refresh their recollections of the interviews in preparing their reports, which clearly stated that the witnesses implicated Coles. Their destruction of the notes, they testified, was consistent with their personal practice and department policy.

Both said that everything that was in the notes was also in their reports.

Coles was convicted and sentenced to nine years in prison.

Corrigan, writing for the Court of Appeal, said that under U.S. and California supreme court decisions, a defendant complaining of the destruction of evidence bears the “substantial burden” of showing that the police acted in bad faith and contrary to established procedure, and that the evidence had obvious exculpatory value at the time of the destruction.

Coles did not meet that standard under the facts as testified to by the officers, the justice said, rejecting the claim that retention of investigating notes is mandated by Proposition 115. The measure only requires that that the prosecution disclose material that is in its possession or that it knows to be in the possession of the investigating agencies, Corrigan wrote.

She distinguished Thompson v. Superior Court (1997) 53 Cal.App.4th 480, which held that the defense had a obligation to turn over the raw notes prepared by its investigators, as well as their reports of witness interviews. The Thompson court, Corrigan explained, acknowledged that the defense had not been under any obligation to preserve the notes prior to the entry of a discovery order.

The case is People v. Coles, 05 S.O.S. 5450.


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