State v. Robert Lee Banks

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 16, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP891-CR Cir. Ct. No. 2019CF3517

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ROBERT LEE BANKS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
DANIELLE L. SHELTON, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP891-CR

¶1 PER CURIAM. The State of Wisconsin appeals from the circuit
court order granting Robert Lee Banks’s motion to suppress his confession to
cocaine possession during a law enforcement interrogation interview. Banks
moved to suppress because the video recording of his custodial interview
including an alleged confession was irretrievably deleted from the Milwaukee
County Criminal Information Bureau (CIB) computer system. The State argues
that the deletion was not in bad faith or with official animus, even if the recording
was potentially exculpatory; therefore, the circuit court improperly excluded the
deputies’ testimony about the interview. We reject the State’s argument and we
affirm.

BACKGROUND

¶2 According to the criminal complaint, a Milwaukee County Sheriff’s
Office (MCSO) deputy stopped a silver Kia Sportage in Milwaukee for unsafe
passing on August 6, 2019, when it passed a vehicle at a traffic light on the right
while the other vehicle was also going straight. The deputy detained the driver
and made contact with Banks, who was the front-seat passenger in the vehicle.
Because neither the driver nor Banks had a valid driver’s license, the deputy
determined that the vehicle would need to be towed. With the driver’s consent,
the deputy searched the vehicle and found a 9mm handgun in the glove box.
Because both the driver and Banks were convicted felons, the deputy arrested both
of them.

¶3 In the search of Banks’s person incident to arrest, the deputy found a
clear plastic baggie of suspected cocaine. The substance was later tested and
found to be cocaine, weighing 2.53 grams. During the search of the vehicle, the
deputy also found suspected marijuana, cocaine, and methamphetamine, as well as

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plastic baggies and a scale. After testing, the suspected drugs were confirmed: the
marijuana weighed 40 grams, a separate bag of cocaine weighed 3.5 grams, and
the methamphetamine tablets weighed 2.64 grams. The deputies also found
several small pieces of paper with the word “ghost” written on it along with
several phone numbers. When the deputies called the numbers, phones found on
the driver’s person started ringing.

¶4 Relevant to this appeal, the complaint also states that the deputy
conducted a Mirandized1 interview of Banks and the driver. The deputy reported
that Banks admitted to possessing the cocaine found on his person. Banks was
charged with one count of possession of cocaine as a second or subsequent
offense.

¶5 At a status conference in September 2019, counsel for the defense
informed the court it was awaiting discovery. At a status conference in November
2019, Banks’s trial counsel requested a delay for additional discovery. The State
informed the court that the State did not have the recordings of the interrogation
interviews requested by the defense, stating, “Either they don’t exist or we simply
don’t have them.” The State requested additional time to find the video
recordings. The State, out of court, informed Banks and counsel that the recorded
interviews of Banks and the driver were not maintained on the CIB system so no
recordings of the interviews were available.

¶6 In January 2020, at another status conference, Banks’s attorney
again noted that it had received a blank disc during discovery, but the State was

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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“working on that”. The State told the court, “We’ve made a request from the
deputy to produce a new copy for us. And as soon as we have it, I’ll forward it
down.” There was no mention of the missing video recordings at status
conferences in May, July or September 2020. At a November 2020 hearing,
Banks’s counsel referenced filing a spoliation motion regarding the missing video
recordings.

¶7 In November 2020, Banks moved to dismiss the case based on
destruction of evidence. He argued that the written summary of his interview with
MCSO was inaccurate or incomplete. He contended that because the video
recordings of the interrogation interviews for Banks and his co-actor, the vehicle’s
driver, were not preserved, Banks was unable to present evidence to dispute the
MCSO version of his statement. He asserted that the recordings were apparently
exculpatory and the State’s failure through MCSO to preserve the evidence was in
bad faith; accordingly, he demanded dismissal of the case. Alternately, he argued
that the evidence was potentially exculpatory because the defense could use it to
verify the deputies’ and Banks’s statements or to contradict the proffered officer
reports. As remedies, Banks requested that the charges be dismissed, or the jury
be instructed that it could consider MCSO’s failure to preserve the video recording
when evaluating the credibility and weight of the evidence, or that the testimony
of MCSO deputies be excluded.

¶8 In the State’s response, it opposed Banks’s motion, explaining that
when the State requested the video recordings, the MCSO deputy informed the
State that the videos were unavailable. The deputy reported that “[t]he video
application stores the video for only [sixty] days unless it gets exported, and we
did not export it in time. I was unaware that [the CIB] system only saves video for
that period, because our other system stores it for [six] months.” The State argued

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that there was no evidence that the deputy knew of any potentially exculpatory
value and acted with official animus or conscious effort to suppress the video
recordings. The State asserted there was no bad faith, and at worst, it was
negligent to not preserve the video recordings.

¶9 In April 2021, the circuit court issued a written decision on Banks’s
motion, after a hearing in February 2021 during which the parties and the court
agreed that testimony was not necessary to resolve the motion. It concluded that
the videos were not apparently exculpatory. The court concluded that the
recordings were potentially exculpatory and that the State, through the MCSO
deputies, failed to preserve this potentially exculpatory evidence in bad faith. The
circuit court concluded that while Banks had not shown “that law enforcement
deliberately attempted to suppress” the video recordings, there was a “concession
by the State of a policy that allows for the automatic purging of this type of
evidence [which was] a clear display of official animus toward a defendant’s due
process rights.” The court found that a violation of Banks’s due process rights
occurred and it granted Banks’s motion to exclude the MCSO deputies’ testimony
regarding Banks’s statements in the interrogation interview.

¶10 The State appeals from the order excluding the deputies’ testimony
regarding Banks’s statements in the interrogation interview pursuant to WIS. STAT.
§ 974.05(1)(d)3. (2021-22).2

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP891-CR

DISCUSSION

¶11 The State argues that the circuit court erred when it granted Banks’s
motion to suppress the deputies’ testimony regarding his interrogation interview in
which the deputies state that Banks admitted to possessing the cocaine that was
found on his person. The State argues that allowing this testimony would not
violate Banks’s due process rights. Conversely, Banks argues that that the circuit
court’s order was proper and should be upheld.

¶12 “Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of fundamental
fairness. We have long interpreted this standard of fairness to require that criminal
defendants be afforded a meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984).3 To establish a due process
violation, “evidence not preserved, lost or destroyed by the State ‘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.’” State v. Greenwold, 189 Wis. 2d
59, 67, 525 N.W.2d 294 (Ct. App. 1994) (“Greenwold II”) (quoting Trombetta,
467 U.S. at 489).

¶13 Whether the State’s action constitutes a due process violation is a
question of law that this court reviews independently. State v. Luedtke, 2015 WI
42, ¶37, 362 Wis. 2d 1, 863 N.W.2d 592. “We uphold the circuit court’s findings

3
We rely on both Wisconsin and federal case law on the issue of evidence preservation.
“Our precedent interprets the Wisconsin Constitution as providing the same due process
protections for evidence preservation and destruction as the United States Constitution.” State v.
Luedtke, 2015 WI 42, ¶41, 362 Wis. 2d 1, 863 N.W.2d 592.

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of historical fact unless they are clearly erroneous.” Id., ¶37. However,
“questions of constitutional fact are also subject to independent review and require
an independent application of the constitutional principles involved to the facts as
found by the [circuit] court.” State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d
827 (1987).4

¶14 To determine whether a defendant’s due process rights have been
violated, we engage in a two-prong analysis of police conduct. Greenwold II, 189
Wis. 2d at 67. The first prong is to determine if the police “failed to preserve the
evidence that is apparently exculpatory.” Id. The second prong is to determine if
the police “acted in bad faith by failing to preserve evidence which is potentially
exculpatory.” Id.

¶15 It is undisputed on appeal that there are no allegations to support that
the deleted video recordings were “apparently exculpatory”; therefore, our
analysis turns on prong two, which would rise to a due process violation only if
the evidence was “potentially exculpatory” and the police acted in bad faith or
with official animus. Id. at 68-69. Evidence is potentially exculpatory if it offers
“an avenue of investigation that might have led in any number of directions.”
Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988). Bad faith is “shown if: (1)
the officers were aware of the potentially exculpatory value or usefulness of the

4
We note that Banks argues that the circuit court’s finding of bad faith is a factual
finding, held to the clearly erroneous standard. See Mowry v. Badger State Mut. Cas. Co., 129
Wis. 2d 496, 517, 385 N.W.2d 171 (1986) (“Bad faith is a determination to be made by the trier
of fact.”). We note that Mowry analyzes a bad faith insurance claim. While the bad faith analysis
of an insurance claim raises similar factual concerns, it does not raise constitutional concerns.
The State correctly states that the reviewing court independently reviews the application of the
constitutional standard to questions of constitutional fact. State v. Greenwold, 189 Wis. 2d 59,
66-67, 525 N.W.2d 294 (Ct. App. 1994) (“Greenwold II”).

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evidence they failed to preserve; and (2) the officers acted with official animus or
made a conscious effort to suppress exculpatory evidence.” Greenwold II, 189
Wis. 2d at 69 (italics omitted).

¶16 We begin by reviewing two primary cases on the subject of
potentially exculpatory evidence destruction in Wisconsin: Greenwold and
Luedtke. In Greenwold, the defendant argued that the State unreasonably delayed
testing blood samples for almost six months after a car crash that resulted in
charges for homicide by intoxicated use of a motor vehicle. State v. Greenwold,
181 Wis. 2d 881, 883, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I) (explaining
that the accident and initial investigation occurred in September 1990, but the
search warrant for samples from the vehicle was not obtained until February
1991). The eventual testing of the samples showed inconclusive results.
Greenwold II, 189 Wis. 2d at 65. This court concluded that while the police were
negligent, the defendant had not proven bad faith in the totality of circumstances
because he had not made a showing that the officers intentionally obstructed
evidence nor had the officers been aware of the potentially exculpatory value of
the evidence when they failed to collect it sooner. Id. at 69-70.

¶17 In Luedkte, our supreme court addressed two cases in which the
defendants challenged the destruction of blood samples drawn arising out of
operating a motor vehicle while under the influence of a controlled substance. Id.,
362 Wis. 2d 1, ¶¶2, 5. The blood samples were destroyed by routine policy
approximately nine months after the blood draw in each case. Id., ¶¶16, 28. The
reports analyzing the blood samples in both defendants’ cases stated that the blood
sample specimens would not be retained longer than six months unless requested
by an agency or the subject. Id., ¶¶12, 26. Our supreme court held that even

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intentional destruction of blood samples according to routine procedures “without
more, does not establish bad faith.” Id., ¶56.

¶18 Banks argues that the recordings were potentially exculpatory
because they were an avenue for him to dispute the deputies’ written reports
summarizing the interviews. The State appears to concede this point when it
argues to this court that Banks’s burden to show bad faith persisted “even if the
recordings of the interviews were potentially exculpatory[.]” At the suppression
hearing, the parties did not request that the deputies testify to allow the court to
make credibility findings with regard to their recollection of the interview. The
video recordings would have allowed the court to assess the entire interaction to
determine the merits of Banks’s complaint.5 We conclude that Banks has
adequately alleged that the video recordings were avenues of investigation
relevant to Banks’s defense; therefore, the destroyed video recordings were
potentially exculpatory.

¶19 Banks next contends that the failure to preserve the recordings was
an act of bad faith by the State, the second part of the second prong analysis in
Greenwold. The State argues that Banks has not shown that the deputies acted in
bad faith when they did not act to preserve the video recordings prior to the sixty
day automatic deletion. The State contends that this is negligence at most.
Appellate courts have generally concluded that police conduct resulting in the
failure to preserve evidence may be unprofessional or “slip-shod,” but a showing

5
As discussed below, Wisconsin has established an affirmative duty for law enforcement
to record custodial interviews in adult felony cases. See WIS. STAT. § 968.073.

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No. 2021AP891-CR

of “mere negligence, without more, does not amount to a constitutional violation.”
Montgomery v. Greer, 956 F.2d 677, 681 (7th Cir. 1992).

¶20 While we agree with the State’s argument that Banks has not shown
an intent by the State to deprive Banks particularly and individually of potentially
exculpatory evidence, we conclude that a policy of routinely deleting recordings of
interrogation interviews at sixty days is unreasonable and demonstrates bad faith
through official animus. Although we may hope that all cases flow smoothly
through the justice system in time for a law enforcement officer to retrieve a
recording in under sixty days, this evidence retention policy is unreasonably short.

¶21 We distinguish Luedkte and Greenwold from Banks’s case by two
factors: the short evidence retention time period, and the type of evidence
proffered. First, the time period established to retain recordings from MCSO’s
recording application was unreasonably short at sixty days. While the defendant
in Greenwold alleged the collection of evidence was improperly delayed, the
evidence was still retained for more than six months. The blood samples in
Luedtke were scheduled to be retained for about six months. Even the deputy in
this case expressed an expectation of having six months to retrieve the video
recordings. Moreover, unlike the defendants in Luedtke, Banks had no
opportunity to directly request the preservation of the evidence. In fact, Banks’s
counsel raised the issue of missing discovery by the September 2019 hearing date,
which arguably occurred within the sixty day preservation window.

¶22 Second, we distinguish Banks’s case from prior cases by the type of
evidence at issue. The examination of physical, testable evidence such as blood
samples in Greenwold and Luedtke raises different concerns than the contents of a
video interrogation interview. Banks’s avenues to challenge the alleged

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confession in the interrogation interview did not rely on scientific testing but on
arguments about the interactions between Banks and the deputies, including the
words used and body language. The absence of a video affects the trier of fact’s
ability to exercise its function of fact finding and credibility determination about
what occurred during the interrogation.

¶23 Moreover, recording adult felony custodial interviews is required
under Wisconsin law. See WIS. STAT. § 968.073(2) (providing it is the “policy of
this state to make an audio or audio and visual recording of a custodial
interrogation of a person suspected of committing a felony” except under specific
circumstances). This statute creates a duty for law enforcement agencies to record
custodial interviews. The statute does not contain a preservation requirement, but
it would be illogical to compel the State to record custodial interviews without
providing a means for defendants and the State to access that information.

¶24 In 2005, the legislature enacted requirements for recording custodial
interviews for felony adult cases in WIS. STAT. § 968.073 and juvenile cases in
WIS. STAT. § 938.195. See 2005 WIS. ACT 60. This legislative action was in
response to State v. Jerrell C.J., 2005 WI 105, ¶47, 283 Wis. 2d 145, 699 N.W.2d
110, in which our supreme court established that “unrecorded interrogations and
any resultant written confession inadmissible as evidence in court” in juvenile
cases. However, the statutory enactment included provisions for adult felony
cases as well as juvenile cases. In explaining its rationale, our supreme court
noted that “a recording requirement will provide courts with a more accurate and
reliable record of a juvenile’s interrogation. This will eliminate conflicts in
evidence that are attributable to flaws in human memory. It will also enable
judges to conduct nuanced reviews to resolve admissibility issues.” Id., ¶51
(footnote omitted). We infer that the advantages of recording juvenile

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interrogations would similarly apply for purposes of adult felony interrogations.
Further it is reasonable to infer that by the legislature establishing this recording
requirement, the interviews themselves would be accessible during criminal
investigations and prosecutions. MCSO having a policy that severely inhibits
defendants or the State from accessing those recordings defeats that purpose.

¶25 Ultimately, we conclude that Banks satisfied his burden to show
“official animus” by the State in failing to preserve these video recordings.
Setting a policy with an unreasonably short retention time period takes “conscious
effort” to disregard due process rights. See Trombetta, 467 U.S. at 488.
Accordingly, we conclude that Banks has met his burden under the second prong
of Greenwold II, by showing that the evidence was potentially exculpatory and
that the destruction of evidence was made with official animus or bad faith by the
State. We conclude that Banks’s due process rights were violated. We therefore
affirm the circuit court’s decision to exclude the deputies’ testimony to the extent
it discusses any confession by Banks or his co-actor.

¶26 Further, we conclude that the exclusion order was narrowly tailored
to react to the State’s failure by policy to preserve potentially exculpatory
evidence. The court did not dismiss the charges against Banks. While we do not
doubt the State’s claim that Banks’s confession is important to its case, the
probable cause in the criminal complaint relies on facts of the traffic stop itself and
only references the custodial interview once. Banks was found in possession of
the illegal substance giving rise to the charge. The State routinely proves to a jury
beyond a reasonable doubt that a defendant is guilty even without the use of a
confession.

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CONCLUSION

¶27 For the reasons stated above, we affirm the circuit court’s order
excluding the deputies’ testimony regarding Banks’s statements during the
custodial interrogation.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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