State v. Copeland

[T]he less-satisfactory evidence instruction must be supported by a showing that (1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered. State v. Hendershott, 131 Or App 531, 535-36, 887 P2d 351 (1994), rev den, 320 Or 587 (1995).

Defendant appealed convictions for murder with a firearm and felon in possession of a firearm.  Defendant assigned error to the trial court’s failure to provide the “less satisfactory evidence” jury instruction after the State’s pretrial destruction of the firearm. On appeal, Defendant argued the firearm was key evidence in the State’s case and the failure to produce it at trial represented weaker evidence against him; therefore, Defendant merited a jury instruction that invited jurors to infer the State’s photo evidence of the firearm was insufficient to establish his guilt for the charged crimes.  The State contended that Defendant did not satisfy the predicates for a less-satisfactory evidence instruction because he failed to establish the physical presentation of the firearm at trial represented stronger evidence than the pictures and testimony of witnesses who found and examined the firearm. "[T]he less-satisfactory evidence instruction must be supported by a showing that (1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered." State v. Hendershott, 131 Or App 531, 535-36, 887 P2d 351 (1994), rev den, 320 Or 587 (1995). Defendant failed to show the firearm was reasonably available for presentation at trial and that the firearm was necessary for witness testimony and jury evaluation.  The Court emphasized that even if Defendant succeeded in his claim for a less-satisfactory evidence instruction, it would not cure the State's negligent spoliation of evidence because Defendant failed to raise a pretrial discovery issue on appeal that the firearm's destruction hampered his defense before trial. Additionally, the Court was not asked to evaluate if Oregon law provides a remedial jury instruction for negligent spoliation of evidence. AFFIRMED.