Thursday, May 05, 2011

DUI Appeal - Destruction of Video OK Say Mississippi

In Ellis v. State of Mississippi, --- So.3d ----, 2011 WL 1486610 (Miss.App.), NCDD members Vic Carmody, Kevin Stewart, and Lance Mixon appealed the defendant's conviction, based in part on the issue of whether the circuit court erred in failing to grant a verdict of acquittal because the State failed to preserve video evidence from the traffic stop.
The defendant was arrested on January 14, 2009. On February 2, 2009, Ellis's attorney sent a letter to Patrolman Conner citing Mississippi Code Annotated section 63–11–15 (Rev.2004) FN3 and requesting eight items, one of which was “the video, if any, taken by the officer of the test or tests.” By the time of the circuit court trial, Ellis had converted this request for any video of alcohol testing by the officer to mean the trooper's memory card of Ellis's traffic stop. Patrolman Conner did not supply the memory card to Ellis. Patrolman Conner testified that if there was nothing “extraordinary about the stop and nothing goes on,” he does not keep the memory card of each traffic stop. Patrolman Conner said there was no requirement that he keep the card of each stop and that he routinely erased the memory card in order to record future stops. He stated: “When it fills up, you've got to get rid of it where you can video your future stops.”

FN3. The section provides: “Upon the written request of the person tested, or his attorney, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or to his attorney.” Miss.Code Ann. § 63–11–15.

The appeals court summarized the applicable federal law as follows:

“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). In Trombetta, a two-part test was developed for determining whether a defendant's due-process rights are violated in situations where physical evidence has been destroyed. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489. Secondly, the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. A bad-faith factor to the Trombetta test was added in Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988). There the United States Supreme Court 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.” Id. at 58.

The Mississippi appeals court identified the 3-part due process test for destruction of video as follows:

"What has developed then is a three-part test to use when determining if a due-process violation has occurred when physical evidence has been destroyed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card."

As far as the exculpatory value was concerned, the court stated that:

"[W]e doubt that the memory card had apparent exculpatory value prior to its erasure. Patrolman Conner testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis's own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test."

As far as the bad faith element was concerned, the appeals court wrote:

"We can find no bad faith on the part of the State in the destruction of the card. Ellis's attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. Patrolman Conner explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera's memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis's traffic stop to circumvent its disclosure. In failing to preserve the card for Ellis, Patrolman Conner was acting “in good faith and in accord with [his] normal practice.” Trombetta 467 U.S. at 488 (quoting Killian v. United States, 368 U.S. 231, 242 (1961)). Further there is no evidence in the record of any “allegation of official animus towards [the defendant] or of a conscious effort to suppress” the memory card. Id.

Thus the court denied this ground on appeal. It should be noted that two interesting facts appear from this opinion: first, the request for video was not received until AFTER it had already been destroyed. If the destruction (however innocent or inadvertent) had occurred after the request was received, the outcome may have been different (as it has been in other opinions).

Second, the appeals court failed to address the applicability of Mississippi Code Annotated section 63–11–15, which arguably required preservation of this video independently from the due process clause. Some states have found that a destruction of a video, while not a violation of the due process clause, was still sanctionable for violating state discovery rules.

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