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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DONYELL GERARD JOHNSON, Defendant-Appellant.

UNPUBLISHED January 12, 2006

No. 258101 Wayne Circuit Court LC No. 04-005339-01

Before: Murray, P.J., and Jansen and Kelly, JJ. PER CURIAM. Defendant appeals as of right his bench trial convictions for felon in possession of a firearm, MCL 750.224f, and carrying or possessing a firearm when committing or attempting to commit a felony, MCL 750.227b. Defendant was sentenced, as a second habitual offender, MCL 769.10, to two years' probation for his felon in possession of a firearm conviction, and to five years' imprisonment for his felony-firearm conviction. We affirm. Defendant first argues that the prosecution's loss of the weapon confiscated from the scene of the crime denied defendant his right to present a defense. We disagree. This Court reviews de novo a constitutional issue. People v Toma, 462 Mich 281, 310; 613 NW2d 694 (2000). The United States Supreme Court has held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). Further, this Court has held that, "[a]bsent the intentional suppression of evidence or a showing of bad faith, a loss of evidence that occurs before a defense request for its production does not require reversal." People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1993). "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, supra at 56 n 1. Defendant did not introduce any evidence of bad faith on the part of the police. At trial, Officer Young, the officer in charge of defendant's case, testified that he did not discover that the

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confiscated gun was missing until the morning of defendant's trial. He testified that it was standard procedure to destroy evidence after a case was dismissed,1 and that the property officer destroyed the confiscated gun because he was unaware that Officer Young had refiled the case against defendant. Although defendant characterizes the police's conduct as being "grossly negligent" in his statement of the issue on appeal, defendant makes no showing of bad faith on the part of the police or prosecution. Defendant bears the burden of showing bad faith conduct by the police--that they knew the gun had an exculpatory value to defendant and that they destroyed it after discovering its exculpatory value. Youngblood, supra at 56 n 1. Because defendant did not show the police acted in bad faith when they destroyed the gun, his Due Process rights were not violated. Johnson, supra at 365; Youngblood, supra at 58. Defendant also argues that the trial court committed error requiring reversal when it denied his motion to suppress evidence of the confiscated gun. We disagree. In evaluating a motion to suppress, this Court reviews a trial court's factual findings for clear error. People v VanTubbergen, 249 Mich App 354, 359-360; 642 NW2d 368 (2002). "To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). Both the state and federal constitutions guarantee protection against unreasonable searches and seizures. US Const, Am IV; Const 1963 art 1,

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Michigan Law