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"Police have a duty to preserve evidence with apparent exculpatory value," says Van Hollen. "Here, Munford's van had no exculpatory value, apparent or otherwise. It was properly consigned to the scrap heap."
MADISON — Under state and federal law, police cannot destroy evidence in a criminal case if that evidence has apparent exculpatory value. This morning, the Wisconsin Court of Appeals concluded that a van driven by Joshua Lashawn Munford had no such value, and affirmed Munford's conviction for first-degree intentional homicide in the 2007 shooting of Bryant Pendleton.
Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin on appeal, praised the decision. "Police have a duty to preserve evidence with apparent exculpatory value," said Van Hollen. "Here, Munford's van had no exculpatory value, apparent or otherwise. It was properly consigned to the scrap heap."
Munford shot and killed Pendleton in the early morning hours of January 26, 2007, after a confrontation on North 39th Street in Milwaukee. Munford shot Pendleton from the driver's seat of his 1990 Ford Econoline van. Police who investigated the shooting found no evidence that any bullets struck Munford's van. Before Munford's trial, the vehicle was sold at auction to defray unpaid storage and towing fees. It was later destroyed for its scrap value.
Munford argued on appeal that the State violated his constitutional due process rights by destroying the van before he could examine it for possible bullet strikes. The Wisconsin Court of Appeals rejected Munford's claim.
From the court's decision:
First and foremost, Munford's argument ignores the trial court's finding that Detective Gastrow thoroughly examined the van and did not find a bullet or a bullet strike. Munford does not challenge this finding and provides no evidence or even a reasonable inference from the evidence to support his theory that a bullet remains lodged inside the interior of the van. And although Munford's expert was unable to physically examine the van, he was provided with thirty-two photos of the van from which such inferences could be obtained, and yet he found nothing. The mere possibility that a bullet remains lodged inside the van—after Detective Gastrow thoroughly examined the van and specifically looked for just such a bullet or bullet strike—does not support Munford's argument that the van's purported exculpatory value was apparent.
Moreover, Detective Gastrow did not act unreasonably in concluding, based on his experience, that the oval-shaped hole in the passenger's side window of the van was unlikely a bullet hole. Based on Detective Gastrow's experience, the shape and size of the hole did not comport with what he would expect to see if the hole had been created by a bullet. Detective Gastrow's conclusion that the hole was unlikely caused by a bullet was bolstered when he failed to locate a bullet strike or bullet inside the van to correspond with the hole, and by the multiple witnesses at the scene of the crime, none of whom saw an individual with a gun on the passenger's side of the van.
The court of appeals also concluded that the circuit court did not err in preventing Munford from revealing to the jury who destroyed the van and why it was destroyed.
Wisconsin Department of Corrections records indicate that Joshua Lashawn Munford, Inmate #476808, remains incarcerated at the Wisconsin Secure Program Facility in Boscobel, Wisconsin.
The Wisconsin Court of Appeals' decision in State of Wisconsin v. Joshua Lashawn Munford, No. 2009AP2658-CR, appears at the court's website:
The Milwaukee County District Attorney's Office prosecuted Munford in Milwaukee County Circuit Court. Assistant Attorney General James M. Freimuth represented the State of Wisconsin in the Wisconsin Court of Appeals.