People v. Savage

Opinion

ELKINGTON, Acting P. J.

Defendant John Westco Savage appeals from a judgment based upon jury verdicts finding him guilty of forcible rape (counts I and III) and forcible oral copulation (count II). He makes but one contention of error, which he states as: “Officer Hubbard’s notes were material evidence, and their intentional non-malicious destruction required the court to exclude that evidence which they might have impeached.”

We affirm the judgment for reasons as follow.

Police Officer Hubbard had interviewed the complaining witness of the case soon after the charged offenses occurred. He made some rough

[3]

handwritten notes of the interview, the contents of which were five or six hours later incorporated in a required formal police report. The handwritten notes were then destroyed or discarded in accordance with the officer’s practice. Following such testimony Savage’s attorney moved to strike the complaining witness’ earlier testimony “based on the failure of the police and the district attorney to preserve evidence.” No contention was (or is) made that the officer’s notes were destroyed in bad faith. The motion was denied.

It has been consistently held that, absent a showing of bad faith, the discarding of a police officer’s raw or rough notes, under the circumstances of this case, constitutes no denial of due process or other right. (See

In re Gary G.

(1981) 115 Cal.App.3d 629, 639-642 [171 Cal.Rptr. 531];

People

v.

Torres

(1971) 19 Cal.App.3d 724, 729-731 [97 Cal. Rptr. 139];

People

v.

Dickerson

(1969) 270 Cal.App.2d 352, 359-360 [75 Cal.Rptr. 828].)

In a similar factual context it was said in